Director of Public Prosecutions v Grainger

[2024] VCC 417

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00352

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILIP GRAINGER

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2024
DATE OF SENTENCE:	25 March 2024
CASE MAY BE CITED AS:	DPP v Grainger
MEDIUM NEUTRAL CITATION:	[2024] VCC 417

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charge of dangerous driving causing death – failure to give way at an intersection – acceptance of a sentence indication – plea of guilty – no criminal history – gravity of offending is a moderately low level – Verdins principles - exception under s5(2H)(c)(ii) established.

Legislation Cited:      Sentencing Act 1991 ss 5(1), 5(2), 5(2H)(c)(ii), 5(2H)(e), 5(2HA), 5(2I), 48CA.

Cases Cited:R v Verdins (2007) 18 VR 269; Worboyes v The Queen [2021] VSCA 169; DPP v Perry [2023] VSC 761; DPP v Maher [2023] VCC 2455; R v Al-Anwiya [2022] VSC 428; DPP v Browne [2023] VSCA 13; Peers v The Queen [2021] VSCA 264; DPP v Kenneison [2023] VSCA 321.

Sentence:                  Three year community corrections order with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Office of Public Prosecutions
For the Accused	Mr T. McCulloch	Emma King Criminal Law

HIS HONOUR:

1I will say at the outset that what I propose is obviously to convict Mr Grainger of the charge and to, with his consent, sentence him to a community corrections order of three years' duration with these special conditions:

(a)   to perform 250 hours of unpaid community work;

(b)   to be supervised, monitored and managed as directed by the Secretary;

(c)   to undertake any mental health assessment and treatment; and

(d)   to undertake any programme which addresses factors relating to his offending.

2I would also say for the purposes of his informed consent, that I will not give a direction under s48CA of the Sentencing Act. That is, any hours of satisfactorily performed under the therapeutic conditions I am imposing on this order, would count as unpaid community work.  In other words, I intend him to complete the entirety of the unpaid community work.

Introduction

3Mr Grainger sought a sentence indication in relation to a charge of dangerous driving causing death. The charge arose out of a motor vehicle accident which occurred on 10 December 2021 at the intersection of Finlay and Trevaskis Roads, Wyuna East. Mr Grainger's mother was riding as a passenger in the car he drove.  His car was involved in a collision with a truck at that intersection where
Mr Grainger failed to give way. A fuller description of the circumstances of this accident and the aftermath is given in the prosecution trial opening.

Circumstances 

4The accident occurred at about 1.30 pm. Your sedan entered the intersection. It was travelling south along Trevaskis Road. The truck, laden with 15 cattle, was travelling west along Finlay Road. The continuation of Trevaskis Road on the other side of the intersection is offset. You gave way to a vehicle travelling along Findlay Road before entering the intersection. The truck was travelling at about 97 kilometres per hour.  It braked about 25.2 metres from the point of collision.  As a result of the collision, your mother died and you were injured.

5You did not see the truck before the collision. It was a large, white vehicle. For a driver keeping a proper lookout, it could not be missed. Why you did not see the truck is unknown. It would be speculation to think the configuration of the intersection played a part.   

Criminal history

6You have no criminal history. 

Victim impact statement

7The driver of the truck, Paul McMahon, made an impact statement on 11 March 2024.  The accident was the worst thing that had ever happened to him.  He has a vivid memory of the accident and its aftermath.  He believes this memory will last for the rest of his life.  The effect has been such he suffers now from a post-traumatic stress disorder with anxiety, for which he takes medicines. The effect of the accident caused him to give up truck driving and to sell the business which he and his wife had established.  His inability to work has caused financial hardship to his family.  Although he continues to attend social functions, he is now more isolated at those functions.   

Personal

8You are now 58.  You were born and raised in Queensland. You still live there.  You have an older brother and sister. Your parents separated when you were four.  After the separation you had little contact with your father.  He died in June 2023. For many years, you have lived with your mother and cared for her from 2017.

9Owing to ill health, your secondary education was twice interrupted. You attended several schools but ultimately finished Year 12. Afterwards, you studied management and marketing.

10You are now single and have been so for many years. You have no children.

11You used to conduct a business as an internet service provider.

12Several persons have written references including your older brother. Your sister has not. The references speak highly of your character.  

Psychologist

13Alison Mynard is a clinical psychologist. On 9 September 2023, she interviewed you at the request of your solicitors. She diagnosed you as suffering from a recognised psychological disorder – the complex bereavement disorder. In paragraph 25 of her report, she explained the basis upon which she made the diagnosis.

14She considered your mental health issues will continue and would likely deteriorate if you were imprisoned. You would find it very difficult to cope with imprisonment 'along with his ongoing issues with social relationships and interacting with others'.

15In a supplementary report, Ms Mynard answered four questions asked by your lawyers.

16The first question referred to paragraph 30 of her report and the impact of imprisonment upon you. If imprisoned, she considered the complex bereavement disorder would:

(a)   you would continue to suffer from grief, shock, difficulty accepting your loss and grief. Together these mean you would have less energy, appetite and insomnia. You would isolate yourself more than at present. You would undertake fewer programmes and receive less treatment or support.

(b)   your recurring dreams will continue and, if you share a cell, will make you feel quite vulnerable. 

(c)   your perceptions of lacking control of your emotions, body and safety will be heightened.

(d)   your feelings of anxiety, helplessness and hopelessness will be increased.

17The second question asked for greater detail at paragraph 31 of her report. She replied:

(a)   a symptom of the disorder is your strong yearning for your mother and your reliance on her for emotional support. This yearning would increase in custody even though it is almost intolerable at present.

(b)   your intrusive images of the accident occur frequently. They distract you. You become emotional very easily. To cope, you would withdraw to protect yourself.

(c)   you would become more depressed. Your feelings of guilt will increase. This, and other, feelings will adversely affect your everyday functioning.

18The third question asked of the interventions required and Ms Mynard considered:

(a)   grief and loss counselling by an experienced psychologist or counsellor;

(b)   this counselling will be very difficult to obtain in custody because there are few such therapists available and the focus of prisons is on crisis management and acute mental health.

The final question returned to whether the type of therapy is available in prison to which she replied in the negative. 

The offence

19The offence of dangerous driving causing death is a category 2 offence under the Sentencing Act 1991. If found guilty, an accused must be sentenced to imprisonment unless an exception exists. Here, you rely on the exceptions contained in s 5(2H)(c)(ii) of the Sentencing Act, which provides:

‘the offender proves on the balance of probabilities that –

The offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.’

20You also rely upon the exception in s5(2H)(e). Apart from the requirements of s5(2HA) and s5(2I), the central requirement is the presence of substantial and compelling circumstances that are exceptional and rare and justifying not making a particular sentencing order, that being a sentence of imprisonment or detention.

Gravity 

21Given the appropriate circumstances the concept of dangerous driving can encompass momentary inattention. However, such inattention may not. The standard direction to juries on the concept includes:

…remember that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes. For this element to be satisfied, the accused must have driven at a speed or in a manner that significantly increased the risk of serious injury or death.

22As a magistrate, I presided over many cases of dangerous driving. In many of those cases, the degree of dangerousness was significant and incontestable. Often the driving was protracted and accompanied by many infringements of the traffic laws to the danger of others. On the spectrum of dangerous driving, your case is at a moderately low level.     

Discussion   

23This part of my reasons for sentencing starts with the purposes of sentencing. They are set out in s5(1) of the Sentencing Act 1991 ('the Sentencing Act') and they are:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

24Each of those sentencing purposes is relevant to your case. General deterrence is always important in this kind of case. However, your relationship with the deceased and the profound effect of her death upon you moderates the impact of this sentencing purpose.

25Given your circumstances, the purposes of specific deterrence and protecting the community from you are of little importance. I would not expect you to re-offend in the same or similar manner again, bearing in mind the therapeutic aspects of the community correction order I will impose. Nor would I expect you to re-offend generally after all these years of good behaviour.

26Principles 5 and 6 of the case of R v Verdins[1] do apply and they also work to moderate the sentence.  

[1](2007) 18 VR 269.

27Section 5(2) of the Sentencing Act sets out various matters which a court should consider in imposing a sentence, where they are relevant to a particular case.

28The maximum penalty for the offence of dangerous driving causing death is 10 years' imprisonment.

29If I were charging a jury on the elements of the dangerous driving aspect of the offence, I would have said:

…the prosecution must prove that the accused was driving in a manner that was dangerous to the public. That is, his driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed.

In determining whether this was the case, remember that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes. For this element to be satisfied, the accused must have driven in a manner that significantly increased the risk of death, over and above the ordinary risks of the road.

30In this case, the failure to see the truck, having given way to another vehicle, was careless.  The offence encompasses both deliberate and negligent behaviour. This is a case of the latter.  One cannot say why you failed to see the obvious presence of the truck. One could speculate about the unusual configuration of the intersection but there is no evidence in that regard. On the evidence, this is a moderately low-level example of the offence.

31The opinion of Ms Mynard means your impaired mental functioning would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment. The exception under s5(2H)(c)(ii) of the Sentencing Act 1991 is established.

32Since I am no longer bound by the opening words of s5(2H), a sentence of imprisonment is still open.  However, the maximum effective sentence I will impose is a community correction order.

33Since that particular clause applies, it is strictly unnecessary to consider the application of s5(2H)(e). However, I am inclined to think it is not established given the narrowness of the relevant circumstances encompassed by the expression 'substantial and compelling circumstances that are exceptional and rare' and qualified by the succeeding sub-sections.

Guilty plea  

34Your guilty plea was entered after a sentence indication. In turn, this occurred after a committal hearing in March 2023 where three witnesses were examined. In terms of the timing of the entry of your plea, it occurred at about the mid-point of a process starting with the laying of the charge or charges in this case and ending with a verdict of a jury. Usually, in this Court, there are several court events before a jury is empanelled.    

35There are benefits of your guilty plea. It is an emphatic acknowledgement of your offending. It shows the world in general you committed the offence. 

36Second, it relieves witnesses, including Mr McMahon, from the need to give evidence against you in a trial. I note Mr McMahon and two others gave evidence at the committal hearing. However, there is a considerable difference in giving evidence in a preliminary hearing rather than before a jury where your guilt or innocence is to be determined.    

37Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.

38Fourth, the crisis addressed in Worboyes v The Queen[2] and other cases has abated. The sense of crisis has faded. Nevertheless, the virus still disturbs the smooth running of jury trials in this Court, principally through the unavailability or loss of jurors. Pleading guilty still has the benefits to the system identified in the case of Worboyes but to a much lesser extent.

[2][2021] VSCA 169.

39Overall, your guilty plea entitle you to a significant discount on the sentence which would have been imposed if you had pleaded not guilty to the charge but had been found guilty after a trial.

40You were charged on 13 December 2021. It has taken a long time to reach this stage. No doubt, the delay is largely due to the impact of virus on the courts. However, not all of the delay is due to that reason. Quite legitimately, you have used the court's processes which have delayed this proceeding. As others have stated, this proceeding has weighed heavily upon you.   

Current sentencing practices

41I have been referred to a number of sentencing outcomes for this particular offence and I have taken them into account.[3]

[3]DPP v Perry [2023] VSC 761; DPP v Maher [2023] VCC 2455; R v Al-Anwiya [2022] VSC 428; DPP v Browne [2023] VSCA 13; Peers v The Queen [2021] VSCA 264; DPP v Kenneison [2023] VSCA 321.

Assessments

42You were assessed for the purposes of a community correction order. You were seen as suitable for such an order and assessed as a low risk of re-offending. Separately, a mental health condition was recommended and I have had the benefit of the Community Correction officer who assessed you, in giving evidence today to clarify two points; one of them relating to the ability of Queensland Correctional facilities to have you undertake an unpaid community work condition.

43The issue lies with the unpaid community work condition. You reside in Queensland. You have no ties to this State. You are currently unemployed and receiving a Jobseeker allowance. Although having once worked in information technology, you have not done so for years. You have physical incapacities relating mainly to your left arm and shoulder.

Sentence

44On the charge of dangerous driving causing death, subject to your consent, I will firstly convict you, and I will sentence you to a community correction order of three years' duration with these special conditions.

(a)   to perform 250 hours of unpaid community work;

(b)   to be supervised, monitored and managed as directed by the Secretary;

(c)   to undertake any mental health assessment and treatment; and

(d)   to undertake any programme which addresses factors relating to your offending.

45I do not propose to give a direction under s48(CA) of the Sentencing Act. I intend you to undertake the hours of unpaid community work without any therapeutic hours offsetting it.

Licence

46You do not hold a Victorian driver licence. Nevertheless, I will disqualify you from obtaining a licence for a period of 18 months.

Section 6AAA

47If you had not pleaded guilty to the charge but had been found guilty after a trial, I would have sentenced you to three months' imprisonment and made a community correction order of the same length and conditions.  

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