Director of Public Prosecutions v Gray

[2021] VCC 896

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE (from Bendigo circuit)

CRIMINAL JURISDICTION

CR-20-00063

Indictment No. K11489040

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATHEW GRAY

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2021
DATE OF SENTENCE:	2 July 2021
CASE MAY BE CITED AS:	DPP v Gray
MEDIUM NEUTRAL CITATION:	[2021] VCC 896

REASONS FOR SENTENCE

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Subject: Dangerous driving causing death. Truck driver failed to give way to 18 year old cyclist who had right of way. Good visibility. Related summary offence of exceeding the prescribed concentration of methylamphetamine. 43 years old. No prior history of any significance; guilty plea. Not earliest. Some remorse; Verdins 5^th limb; delay; COVID-19.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr M. Habib	Docherty Legal

HIS HONOUR:

1Mathew Gray, you have pleaded guilty to one charge of dangerous driving causing death and a single related summary matter of exceeding the prescribed quantity of drug.  That drug was methylamphetamine but it is not suggested that it had any role to play in the event that I will shortly summarise.

2The maximum penalty for dangerous driving causing death is 10 years' imprisonment.  The summary matter has a maximum fine of 12 penalty units.

3You are 43 years of age with no relevant prior history before the courts.  There is an old drug trafficking prior appearance from 1996 and a couple of quite old speeding matters.  They do not inform my task at all.

4The prosecutor Mr Porceddu opened the matter to me on Wednesday of last week in accordance with a revised written summary dated 22 June 2021.  There had been an earlier plea opening but issue had been taken with the suggestion of fatigue having some role to play.  The amended summary removed that suggestion.  Your counsel, Mr Habib, told me that the revised summary was an agreed summary.

5It is a lengthy summary and there is no utility in my simply restating all the agreed facts.  I sentence in accordance with that agreed document and will only say something very briefly now so that my sentencing remarks and ultimate sentence might be understood by those who may access these reasons.

Facts

6You were driving a waste collection truck on the day in question, that day being Friday 7 June 2019.  You started your shift at 6 am and around 12 midday you had collected your final bins.  You were travelling south along Woodward Road towards the intersection with Hattam Street in Golden Gully in Bendigo.  Your vehicle had dual controls and you were in the left hand driver’s seat.  There was a give way sign and you elected to slow but not stop.  You said in the police interview that you slowed down to around 15 to 20 kph as you approached that intersection.  You plainly should have stopped.  You plainly should have observed that a fluoro vested cyclist was travelling east down the hill towards you.  He was doing nothing wrong at all.  That young man was 18 year old Michael Keating and he was heading out to get his. He did not have the slightest sense that his young life was about to end.  You entered the intersection when you should not have, proceeded through it and the right-hand front of your truck struck Michael Keating.  Part of my job is to view the footage and the photographs, and I have done that.  Having done that I say that he, Michael Keating, would never have known what was about to happen and was killed instantly.

7You stopped your truck, you got out and you remained at the scene.  Well, there was nothing you or anyone else could do for Mr Keating.

8You were spoken to by the police and provided a preliminary test which indicated the presence of methylamphetamine.  You were taken to hospital for a blood test and then taken back to the police station for interview.  Jumping ahead to that interview, you answered the questions that were asked of you and said that you had not seen the cyclist.  You thought you had struck a sign or even a car before noticing the bike on the road.  I see no need to set out all of your answers.  I have read the full interview.  You were at a loss to explain how the collision occurred.

9There is CCTV footage taken from a nearby business which shows the manner in which you entered the intersection.  It also shows the clear presence of the cyclist.

10Your truck had a GPS tracker which showed that you were travelling at 34 kph about 17 metres from the intersection.  It is impossible to know your speed once in the intersection.  It is not critical.  Speed was not the issue here in the sense that you were not travelling over the speed limit.  Entry into the intersection and the failure to heed the warning and to make observations were the critical things here.

11Sometimes poor road design may play a role in these events.  Not so here.  This intersection was one with clear visibility to the west along Hattam Street for driver’s approaching as you did along Woodward Road.  It is largely an unobstructed view and that is so from well shy of the actual intersection.  You agreed in your interview that there was good visibility at that intersection.  The photographs make that clear enough.  Somehow you just did not see the cyclist.  You cannot have conducted the checks that you should have.

12The summary sets out the details of the procedural listings and the periods that you have spent on remand.  You had bail revoked on two occasions, once when you breached a condition of bail as to not driving.  You were riding a pedal-less bike with an engine large enough to be classed as a motor vehicle.  You were ultimately re-bailed.  The second occasion, an application was being made to revoke your bail courtesy of your leaving the State, and hence your bailed address, and that was for a number of days.  At that stage the matter settled and you went into custody and have been there since.

13A brief committal was conducted in this case.  You were intent upon running a trial.  That was your right.  A defence response was filed where you denied any failure to give way.  That was quite bizarre when regard is had to the reality of what we all can see on the CCTV footage.  It was your right to run a committal and a trial and to file such a defence response as that.  I mention the chronology for two reasons.  Delay is relied upon here to an extent and also I will need to consider the extent to which remorse is present here.  I was told that you did not view the CCTV footage until the case conference in January of this year when another judge of this court spelt out the realities of your situation as observable from that footage.

14Why there had been a strong desire to obtain a defence reconstructionist expert report in circumstances where there was such footage as this and such an unobscured view as existed is just not clear to me at all.  Nor was it clear to Judge Mullaly who presided over some of the initial direction hearings.

15I have given only a brief summary of the facts.  I will sentence in accordance with the agreed statement of the facts that are marked as Exhibit A in these proceedings.  The summary sets out the particulars of dangerousness and I have mentioned them already.  I repeat though that neither fatigue or drug use is relied upon in any way here as a particular of the dangerousness.  The footage and the photographs speak for themselves.  They always did.  The presence of the drug in your system is only relevant to the summary offence for I must sentence you for that offence.

Victim Impact material

16To this point I have provided really only a relatively dry factual and clinical statement of the facts, of how your truck came to collide into a bike ridden by Michael Keating.  Well that young man who was really on the cusp of his adult life was killed by your act.  He was going to lunch and then he was dead in an instant.  His family are devastated by their loss and the manner of Michael’s death.  The materials touch upon the deep sense of loss and grief felt by his mother, father, sister and brother, his grandparents, uncles and aunts, cousins, work colleague and friends.  I will turn now then to the impact of your crime.

17Michael Keating is so deeply missed by so many.  By his mother and father, his sister and brother and by so many others in the extended family and beyond.

18A death such as his was so sudden and so unexpected. He was so young.  There is no way of preparing for this sort of sudden and unexpected loss.  It strikes so hard and there are so many occasions for people to question their own decisions.  All the ‘what if’s’ that always exist in such a setting.

19There is a sentiment in some of the impact materials as to what this young may have become.  He really was at the start of life’s journey and then it was over in a millisecond.  His family and friends will now never know where his life would lead.  There is of course a sense of grief as to that fact.  It is a fair bet it was heading very much in the direction of a successful life.  He was a fine young man by all accounts, did not drink or smoke, was a very hard worker and a keen sportsman.  A person who helped out others when he could.  A dedicated grandson and cousin to younger cousins.

20A number of victim impact statements were filed in the course of the plea.  A number of those victim impact statements were bravely read out aloud by their authors.  So we had Michael’s father Glenn and mother Susan read their impact statements.  So too his younger sister, Natalie.  Natalie was just 17 at the time of this event.  Michael’s brother Jonathan who was 15 at the time of his brother’s death had prepared a victim impact statement which was read aloud by a support worker.  Michael’s aunty Fiona Reed read her own impact statement.  We had both sets of grandparents represented with Brian Keating and Arthur Alsop speaking of the deep loss felt by that generation.  They were read aloud, Mr Alsop’s by a support worker and Brian Keating’s by the prosecutor.  Then there are some impact statements from two uncles, Craig and Leigh Keating.  Finally one from a work colleague.  I sense that there are so many others who would have been affected and who could have prepared impact statements.  As is plain from the materials, Michael was a very keen and good hockey player and his sister Natalie comments on the breadth of the loss felt within the hockey community and his club.

21I have read all these impact statements again since the plea.  I am not going to go into the full detail of the various statements.  It would do none of them real justice.  I mention only a few aspects of some of the statements.

22Well no mother or father expects to bury a son.  Glen Keating was interstate with Natalie on the day in question and describes the horrible phone call he received which led to his world falling apart.  Michael’s mother Susan was down in Bendigo with Jonathan off at school and she describes that police attendance that every parent would dread.  It is every parent’s worst nightmare.  Things passed then in a bit of a blur for her.  There was just an unreality to it all.  Susan is haunted by visions of her son’s last moments.  She worries about her other children.  She says she is not the same person.  She believes she cannot do anything to help her family, she has a husband who struggles with his emotions, Natalie who tries to hide them and be strong and her youngest son, Jonathan who really has no idea how to process this loss.  She says she is not the woman that she was. That woman is gone and she feels she will never be whole again. There is pain, darkness and emptiness and she mourns the loss of her oldest son, the loss of all those things that were yet to take shape, his falling in love and marrying and having children.  All those things are just gone.  Michael’s father Glenn is similarly haunted.  All the things he shared with Michael are gone now.  There is still an unreality to his son’s death.  He still thinks sometimes that his son will come down the drive or tap on the window in the way that he used to.  And then he remembers.

23Michael was destined to take over the family business.  Where to now with that?  He, like other members of the family, have to drive through that very same intersection very regularly.  The family business is just up the road.  That was where Michael was riding from on the day of his death, to duck out for lunch.  So his father regularly sees the spot where he knows his son died.  He worries about his wife.  He says that the period since Michael’s death has been a devastating one for the family.  I sense he is probably a very practical man working in the industry he works in but he cannot fix any of this.  It is just beyond fixing.  There are no words to explain the loss.  Natalie has been thrust into a very different life as a result of the death of her brother.  She had to grow up very quickly.  She feels a sense of helplessness seeing her parents hurting so much.  She stopped sleeping and eating and stayed away from school.  The whole family has altered.  She says she is quick to snap with anger and sadness and guilt.  She last saw her brother on her birthday.  His last words were him wishing her happy birthday and her birthday is now really marred for all time.  There is grief at the loss of future experiences, being an aunty to her brother’s children, the loss of opportunity to be so involved.  It is all gone.  She says she is heartbroken that her brother has been taken away.

24Jonathan’s worst fear was that one of his family might walk out the door and never come back and then on this day it actually happened.  He is angry but chooses to hide his feelings as best he can.  He misses his older brother, he misses gaming with him, talking with him, even arguing with him . It is easier for him to cope by ignoring things.  He has never really thought about what it means not to have Michael in the future, he has just tried to stay in the present.

25Then there are all the extended family, the aunts and uncles and grandparents.  It has been an exhausting and draining experience.  Mention was made of the empty desk at the depot, Michael’s speakers that once boomed out music have fallen silent.  His backpack and boots sit awaiting his return.  He will not return.  A fluoro vest remains in his father’s truck.  His aunt Fiona mourns the loss of a dear and much-loved nephew who meant the world to her.  His uncle Craig had come down Hattam Road only minutes after Michael had ridden off for lunch and he was diverted by a lady standing out on the road and he saw a blanket on the road.  His wife went to check and discovered the truth.  He speaks of the sadness in not seeing his nephew’s life unfold.  All the questions that exist as to how it would unfold.  The statements of the grandparents are also very poignant.  Brian Keating tending the grave on a daily basis.  Arthur and the bond that he had with Michael who accompanied him on trips to Korea and trips up to Canberra commemorating Arthur’s service in the Korean war. Then there is the work colleague Ian Ross who speaks of his guilt.

26Some of the other authors also speak of guilt.  They should not.  Guilt that they were up in Brisbane.  What if they had not been?  What if Michael had gone to Brisbane?  What if he had been pushed perhaps to get his car licence a little bit quicker, perhaps he would not have been on a bike.  I cannot stop people from having those feelings but none of them should.  For you see, the only person at fault is the person who I will shortly sentence.  That is you.  Your acts and omissions, no one else’s, caused Michael Keating's death.

27I have only touched upon a few aspects of the impact statements.  I take into account the more complete documents.  This is so very obviously a strong family and they have been rocked to the foundations.  How do you put into words the impact of a loss such as this?  It is almost impossible really though they did a pretty mighty job.  It is a sobering experience as a judge reading this sort of material or hearing it read aloud by the author.  It is why this offence is as serious as it is, involving not just an act of dangerous driving which is serious enough, but dangerous driving causing the death of another human.  In this case a young man on the cusp of adulthood.

28Well, Michael Keating’s life has been tragically cut short.  He was 18 and he should not have died on this day.  He is dead because of the dangerousness of your driving.

29The impact of a crime is one of a large number of matters that I must have regard to as the sentencing judge in this case.  There are of course many other matters that I must have regard to including the various matters in mitigation that have been placed before me.  I must not let the impact of your crime swamp my consideration of other sentencing factors in this case.  Of course I guard against that.  But I do take into account the impact of your crime as I am required to.  It has been profound.

In Mitigation

30Mr Habib conducted the thorough plea on your behalf.  He prepared some written submissions.  They were quite lengthy and included much detail as to your personal background.  They detailed the periods you had spent on remand.  He relied upon a report from Ms Carla Lechner and a final progress report from CISP.  There were also character references from your brother and mother as well as a letter from your mother’s general practitioner.  I also have your written apology.  There were many drug screen results attached to the CISP report but also a drug screen that has been conducted whilst you have been in prison.

31Mr Habib made submissions as to the relevant purposes of sentencing and to the objective gravity of this offence.  He made submissions as to your past lack of relevant offending, your low risk of reoffence and your prospects of rehabilitation.

32In mitigation he relied chiefly upon the following matters;

·The guilty plea;

·The presence of remorse;

·The delay;

·The application of limbs 5 and 6 from the Court of Appeal decision of Verdins[1];

·The increased custodial burden arising from the COVID-19 as well as your knowledge of your mother’s and stepfather’s health predicaments.

[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

33Dangerous driving causing death is what is referred to as a category 2 offence and unless an offender brings themselves within an exception set out in s5(2H) of the Sentencing Act, confinement is required and not in combination with a community corrections order. Mr Habib was not submitting that any exception was made out here. He conceded the inevitability of a prison term and of a dimension requiring the fixing of a non-parole period. It was a sensible concession. I will not therefore spend any time going to the exceptions set out in s5(2H) of the Sentencing Act.  None of them apply.  I must send you to prison.  The question is for how long.  He suggested by way of submission that it would be open to provide for a lengthy period on parole.

Prosecution

34The prosecutor, Mr Porceddu, had prepared some brief written submissions which have been marked as part of Exhibit A.  He also made some brief oral submissions as well.  The prosecution challenged the extent of remorse here. They challenged any application of the sixth limb from the case of Verdins.  They challenged any suggestion that this was not a late plea.  They submitted it certainly was not an early one.

35The prosecutor took me to some of the aspects of seriousness of this instance of dangerous driving causing death and did not concede that it fell towards the lower end of offence seriousness.  The prosecution was calling for a term of imprisonment with a non-parole period but so much had already been conceded by your own counsel.

Background

36I will not turn to your background in any great detail as it is set out in
Ms Lechner’s report as well as in your counsel’s written submissions.  I accept the family and personal background placed before me.  I just see no need to repeat it chapter and verse.  Very briefly then, you are 43 years of age, born
29 August 1977.  You were born and raised up in Bendigo.  Your parents separated when you were 15 and you spent some time with your father after separation.  You were raised, however, mainly by your mother who has written a letter.  She is not in good health. You are close to her and her husband.  You also have an older brother who also has written a reference.  You have had no contact with your father for many years.

37You were educated to Year 10 and really from the time you left school, you have had a good employment record, firstly in panel beating and spray-painting.  You worked for about 14 years in one job at a chicken factory but you were stood down as a result of drug use.  You obtained a truck licence and you had been driving for some four years in the lead up to this collision.  You had two children with your wife Belinda.  You were together for close to 20 years.  That marriage was in decline and you separated in 2020.  The children are 19 and 17 years of age.  I was told that you formed a new relationship with a woman in New South Wales.  Drugs have been an issue for a number of years though not consistently.

38I have already commented on the very short and mostly irrelevant prior criminal and traffic history.  It does not in any way inform my task.

39You lost your job and your ability to drive as a result of this offending which of course I take into account.

40I am told you have been drug free in custody and deprived of visits since your most recent remand in February of this year.  Ms Lechner comments on the existence of a depressive disorder as well as post-traumatic stress disorder.  I will come back to that in one moment.  You have been employed in custody.  Prior to being in custody you had been living with and providing assistance and care to your mother and her husband, both of whom are, as I have said, unwell.  Your mother’s letter and that of your brother speak of many of your qualities.  It is never all black and white. It is not here.

41This was an unmistakably serious crime but one committed by a person who really has not troubled the courts too much over the years.  If you were disposed to being a fiend on the road, we might expect a much lengthier criminal and/or traffic history.  You have after all been a licensed driver for many decades with very little by way of traffic history.

42I turn now then to some of the other matters that have been raised in mitigation on your behalf.

Guilty plea

43Firstly, I turn to your guilty plea.  Your counsel does not submit that it is an early plea.  Plainly it really is not.  Your counsel submitted that it is not a late one.  The fact is it plainly is a relatively late plea, though of course some are later still.

44You have ultimately pleaded guilty.  You ran a brief contested committal as was your right.  You were committed to this court on the charge of dangerous driving causing death.  It was not one of those cases where a culpable driving charge interfered with or complicated the resolution of the matter.  It is true there was some focus by the prosecution on aspects of drug use and fatigue which may have been something of a distraction to all concerned.  Some of those issues were ultimately litigated with a ruling delivered in January of this year.  I have a sense people were focussing on those issues and not the bigger picture being the clear dangerousness as disclosed on the footage.

45You were plainly going to trial, which was your right, but COVID-19 put paid to that.  The fact is there were many listings in this court and from the very first, that is the initial directions hearing on 6 January 2020, there was a puzzled enquiry from the Bench as to what the triable issues were in this case.  The first Judge said the following, 'Well there’s a give way sign?  He has got to obey it.  He didn’t' (see 6 February 2020 Transcript at page 1).  By July, the same judge said, 'But the cyclist is there to be seen and isn’t seen or he doesn’t obey the law in the sense of giving way to the traffic’ (see 23 July 2020 Transcript at page 4).  There had been earlier issues raised by your counsel as to line of sight issues but you had made it clear that the intersection was a very open one with no difficulties observing other traffic.  The photos and the CCTV spoke for themselves.  The claim in your ultimate defence response was that you had not failed to give way and that your driving had not amounted to dangerous driving.  See the defence response from 28 September 2020.

46On the date that the judge delivered the ruling on the issue of the methylamphetamine, that was on 20 January of this year, she immediately convened a case conference and expressed her very strong views as to the reality of the case.  She had seen the footage by then and spelt out what it showed.  She was startled to learn that you had not seen the footage.  The case settled reasonably quickly after that date.

47I do take into account the fact that you have pleaded guilty.  That is a matter of importance and it must be rewarded and that is so irrespective of the chronology of listing.  No trial is now necessary.  No witnesses are required to be called.  The trial would have been further delayed by the impact of the COVID-19 virus upon the listing of matters in this court.  There would likely have been a further delay and no finality.  The finality which now exists may not have taken shape for a considerable period, even into next year.

48You have ultimately admitted your guilt.  You have ultimately taken responsibility for your crime.  You have facilitated the course of justice and I must reward you for that. That is the law.  The community has been saved the time, cost and effort associated with an actual trial in this court.  All witnesses have been spared the experience of giving evidence before a jury.  The case really should have settled much earlier but the fact that it did not is not some matter in aggravation.  It simply deprives your counsel of the ability to claim that it is an early plea with all that that involves.  It is not.

49I take into account your guilty plea.  It is still important.  You have also pleaded amidst the disrupted operations of this court brought about by the global pandemic.  There is a massive backlog of cases and yours is now not one of them.  There is a much heightened value for a plea in these times for the many reasons set out in the recent Court of Appeal decision of Worboyes [2021] VSCA 169.

Remorse

50I turn then to the issue of remorse.  Your counsel relies upon your reactions at the scene, as well as the fact of your guilty plea and the observations made by your mother, brother and Ms Lechner.  Also your apology.  I am not going to restate the listing chronology in great detail.  You knew within seconds on the day that you had been involved in a collision which had killed a young man.  You were plainly affected at the scene.  Who would not be?  But the use of the term 'remorse' relates to a feeling of remorse or contrition for the commission of the crime.  Until quite recently you were denying any criminality.  In a way, that is not too difficult to understand.  You plainly did not see Mr Keating.  Had you seen him, you would not have entered the intersection. You did not intend any harm on the day.  It is a more complex setting to accept responsibility in this sort of case than where for instance there is an intended physical act with an intended or desired outcome.  The legal concept of dangerousness is not that easy for a lawyer to explain or for an accused person to grasp.  It is a great shame you were not shown the footage very early on.  But for whatever reason, you were not.  Having considered all the material placed before me in this case, I am satisfied that there is actual remorse here and I take that into account in mitigation.

COVID-19: Increased burden

51Your counsel in his written submission relied upon the mitigatory value arising from the impact of the COVID-19 pandemic upon your custodial experience (see paragraphs [30]-[33]).  He amended his submission as he had really overstated the time that you had actually been held where there had been any impact.  There had of course been no impact from COVID-19 back in 2019.

52I do accept that the COVID-19 virus and the response to it by those who run the prisons has increased your prison burden to a degree.  Prison has been a more stressful environment.  Social distancing is not easy there.  No doubt there is worry about catching the virus in that sort of setting, where unlike a person in the community, there is no level of autonomy.  You have only been in prison since February so it is not a massive point being made on your behalf.  It has not been easy.  There have been no visits and limited courses but at least you have had a job.

53As to what lies ahead on the pandemic front, well it is impossible for me or anyone else to know.  The impacts of the virus upon prisoners had been lessening, with visits and courses getting back underway earlier in the year.  But we have been experiencing ups and downs as the events of the last few months and indeed the last few weeks make plain enough.  We had the circuit breaker lockdown in February and the temporary suspension of prison visits that coincided with you going back into prison.  We have had the issues over the last three or four weeks with another lockdown in the State and implications arising once again for prisoners.  Whilst we had been travelling very well in the community, it is not that difficult to see how restrictions may yet spring up again as they have in the last month.  In fact, we have a large number of States around Australia now activating community lockdowns at present in response to the Delta variant.  There will be some ongoing anxiety amongst prisoners as to how they will fare.  I take that into account.  I cannot know if limitations will be prolonged or if once lifted, whether they may start up again down the track and I just cannot speculate about that.  I take into account the impact of the virus in the ways urged upon me by your counsel.

54I do also accept that there is an increased custodial burden arising from your knowledge of the predicament of your mother (see paragraph 33 of the submissions).  You had been providing assistance to her and to your stepfather.  You know that they are not in great shape.  It will no longer be available as you are in prison and you will have an understanding of their predicament and some anxiety as to their unhappy position.

Verdins

55I have mentioned the report of Ms Lechner, the psychologist.  Your counsel relied upon that report both generally and as attracting one if not two principles from the case of Verdins.  That is a Court of Appeal decision dealing with the impact upon the sentencing process of mental health conditions existing either at the time of offence or at the time of sentence or both.  I am not going to set out the report in any detail.  Ms Lechner has seen you by video link on two occasions and has expressed an opinion as to the existence of symptoms of two conditions, being post-traumatic stress disorder and a major depressive disorder.  She says that prison will be more stressful for a person suffering those conditions.  I do note that she says there is a reactive component to the depression, it being partly reactive to the accident and to the court sequel.  It is fair to say your counsel recognised that there was a qualitative difference between the evidence in support of limb 5 as compared to limb 6.  In fact, when first going to the area, he said that there was evidence of at least the fifth limb with the sixth limb less clear.

56Well I am prepared to give some modest weight to the fifth limb of Verdins.  I do not however believe the sixth limb is engaged in this case.  The opinion is too speculative as to the likelihood of any significant deterioration of your condition in a custodial setting.  Maybe it will, maybe it will not.  I cannot know.  I take into account the report.  It was also a useful repository of material as to your background and your sense of remorse, and as to your level of risk and future prospects.

Delay

57Your counsel relied upon delay but made it plain it was not a sizeable matter on the plea.  I see no need to set out again the listing chronology.  There has been a delay.  Much of it has been brought about by your failure really to come to grips with the reality of the situation.  There has also been some COVID contribution.  Some time was spent considering the obtaining of a reconstructionist report.  This in the face of CCTV footage of the event.  There was also, I think, the distraction posed by the way in which the Crown was seeking to rely on drug use connected to fatigue.  At the end of the day the reasons for the delay are unimportant.  The matter has been hanging over your head for a decent period.  You have continued to live your life awaiting for the axe to fall and that cannot be easy.  Nor can it be easy for the victim’s family to be held waiting in suspense.

58You have remained out of trouble other than the foolish conduct in relation to the motorised bike and those fresh ‘driving’ offences and the contravention of the bail conduct conditions that were dealt with at the Bendigo Court, way back in November 2019.  I take into account the delay in the ways contemplated by your counsel but he was right; it is not a large matter here.

Rehabilitation

59I turn to your prospects of rehabilitation.  Your counsel submitted that you had at least reasonable prospects of rehabilitation.  You have had a very decent employment record and a minimal history before the courts.  You have been driving for very many years and as I have said earlier you have not racked up any serious history before the courts.  You had performed well on the CISP bail as the report and the attachments makes clear.  You have pleaded guilty and ultimately accepted your responsibility and you are remorseful.  You are using your time usefully in prison.

60No doubt the time you have served already and the sentence I will soon impose will serve to deter you into the future.  I have Ms Lechner’s views as to your risk of reoffence and your rehabilitative prospects.  I accept your counsel’s submissions that you have at least reasonable prospects of rehabilitation.  I would rate them as really being quite decent prospects into the future.

General

61I now make some general statements as to the crime and relevant sentencing principles.

62Dangerous driving causing death is an inherently serious offence.

63The offence can encompass a very wide range of conduct but of course it will always involve a death.

64There is always that tragic outcome and almost always dire impact upon relatives of the person killed.

65The cases demonstrate that there can in fact be sizeable differences in the moral culpability of an offender.

66Each instance of the offence will necessarily involve a serious breach of the proper management or control of a vehicle so as to be dangerous to others.  Dangerousness involves a serious breach creating a real risk of death or serious injury.  It is not dependent on what the driver thought of their driving or what the driver may or may not have foreseen.  The driving must have a feature which subjects other road users to some risk over and above the risks ordinarily associated with road use.

67By your plea, you have admitted the offence.

68However the court still needs to engage in an assessment of the dangerousness in this case and that will be informed by the extent of the risk which the driving created as well as the potential harm should the risk eventuate.

69Your counsel pointed to the absence of many features of aggravation mentioned in the case of Stephens[2].  The decisions of Stephens and the later decision of Weybury[3] spell out that moral culpability is not to be assessed by listing all the aggravating features that could have been present but were not, and then asserting that the instant case cannot therefore be regarded as serious or very serious because of the absence of some of those factors.  The dangerousness and your moral culpability fall to be assessed by reference to all of the conduct and the circumstances of the specific case.

[2] Stephens v The Queen [2016] VSCA 121

[3]DPP v Weybury [2018] VSCA 120

70Offending by someone with knowledge of the risks associated with the driving would ordinarily be adjudged more blameworthy than by someone without knowledge.  The degree to which particular consequences of the acts were or should have been foreseen will also inform this question of the moral culpability.  See the case of Stephens.

71As was plain, there are some matters of aggravation absent here.  You were not driving at some ridiculous speed or the worse for wear as a result of alcohol or drugs.  You were not engaging in erratic driving or showing off.  You were not escaping from police or driving when sleep deprived.  Aspects of fatigue and drug use were at one point, to an extent, relied upon by the prosecution, but no longer form any part of this case.  You were not engaging in what you knew at the time to be a dangerous manoeuvre such as for instance crossing double lines on a blind bend.  So those various features of aggravation were absent in this case.

72Many of the potential features of aggravation as listed in the cases would often enough give rise to a more serious charge being that of culpable driving.  I must assess your moral culpability by reference to the offence you are charged with, not by the spectrum of offending for the more serious offence of culpable driving.  See paragraph [35] in Weybury.[4]

[4] Ibid at [35]

73If those other features were present, well the short answer is, I would deal with you for such a crime.  Well what I have got to do is deal with you for your crime.  The absence of those features does not alter the serious features that do exist in this case.

74You were an experienced truck driver.  You were driving a large truck. You were familiar with that truck. You were familiar with the roads that you were travelling on.  It was broad daylight.  Really, the conditions could not have been better.  The road design permitted ample opportunity to observe all traffic on the road you were entering with a view for 120 metres to your right and 40 metres to your left.  There were warning signs facing you, one well back from the intersection and two at the intersection.  You were familiar with them and with the intersection and with your requirement to give way.  There was no emergency braking in this case.  You did not see the cyclist.  Well, he was wearing high visibility clothing and was visible to anyone conducting anything resembling an appropriate check before entering that intersection.  You could not have engaged in an appropriate check prior to entry into the intersection.  It is that simple.  You rolled through the intersection at speed.  It was plain that you were not stopping from the footage.  No doubt that is because you believed the intersection clear and that was based on a deficient check that you must have made.  I do not accept the prosecution submission that there is some added seriousness owing to the fact that you were working at the time.  Whether working or not working, driving a truck of that size, requires real vigilance.  The ramifications of a collision can be quite dire.  There is an added responsibility which comes with driving a vehicle of that size.

75There was some discussion as to where this offence fitted on the spectrum of offence seriousness.

76Mr Habib was not submitting that this was some minor offence or that the consequences of this offence were anything other than quite disastrous for the Keating family.  A sentencing judge is however required to make a judgement as to the nature and gravity of the offence before the court.

77As I have mentioned, there can be sizeable differences in culpability and criminality.  We sometimes seek to place the offence on some spectrum of offence seriousness.  This is language that can be so easily misunderstood and really it must not be.  There is no such thing as an example of dangerous driving causing death that is not a serious criminal offence.  It is an inherently serious offence and that is because a person has always died.

78Your counsel conceded that this was not a case with the reduced culpability seen in some of the momentary inattention cases.  He was right.  It was not.  He conceded that it was not one falling at the lowest levels of offence seriousness.  He was right again.  It does not.  He suggested it fell towards the lower end of offence seriousness.  I do not agree.  Plainly it is not an offence in the highest category but I believe that for the reasons I have identified, it does not represent a low level example of the offence of dangerous driving causing death.

Purposes

79I have to consider a number of purposes of sentencing.  I must pay regard to your prospects of rehabilitation.  I have already commented on those prospects.  I think they are really quite decent.  That is only one of the purposes of sentencing that I must have regard to.

80I must punish you justly and proportionately.  Punishment is quite important in this sort of case.

81I must also denounce your conduct.  That is of real importance here.

82I must pay appropriate weight to specific deterrence.  Specific deterrence relates to the need to deter you from future offending.  I accept the submission made on your behalf that this purpose can be moderated here.  The same really can be said of the need to protect the community from you.  That too can be significantly moderated.  It just stands to reason.  The community has not needed protection from you in the past nor is it likely to in the future.  With the exception of this offending, you have not offended seriously in the past and there is no reason to think that will change into the future upon your release.  It would be very different indeed, if you had relevant criminal history or an appalling driving record or had breached court sentencing orders in the past.  Or if you had a cavalier attitude to this offence and the tragic outcome.  In those settings, there would be less positive findings as to your future prospects and a higher risk of reoffence and accordingly a greater need to reflect specific deterrence and community protection in any sentence selected.  But in the situation confronting me, a person with minimal history before the courts, one I find to have quite positive future prospects and a low risk of reoffending in the future, those purposes significantly drop away in my task.  You have been deterred already to a large degree.  You will regret your involvement in the death of this young man for the rest of your days.  Why would I doubt that?

83General deterrence is however a very different proposition.  By that I am referring to the need to deter other future potential offenders.  It is a matter of real importance in this sort of case.  I must send a clear message to other road users in the community.  The roads are dangerous enough places at the best of times even with people doing their very best to drive appropriately.  It is probably the most dangerous thing we all do.  Drivers must understand that significant punishment awaits those who by their dangerous driving cause the death of another on our roads.  It is an offence which involves a very serious breach of what we expect from responsible drivers and which always ends with tragic consequences.  The message must be sent to future potential offenders, and really it is almost every driver out there.  For as you have demonstrated, any driver can, in an instant by virtue of an act or an omission, engage in a serious breach of their proper management of a motor vehicle.  Well, they must not and the courts must send that message loud and clear.

84I must have regard to the maximum penalty.  It is 10 years' imprisonment.  I must also pay regard to the impact of your crime.  I have spoken of that at length.

85I must pay regard to current sentencing practices though it is not a single controlling factor.  I have looked at the relevant Sentencing Advisory Council data for cases dealt with between July 2014 and June 2019.  Those statistics disclose that the most common prison sentence when prison was selected fell at between three and four years.  Much of that data would predate the observations of the Court of Appeal in the case of Stephens, which spoke of the need for an uplift in sentences for mid and higher level offences.

86I have read a large number of cases.  Not just Stephens and Weybury but other cases such as Neethling[5], Pan[6] and Singh[7].  I have also looked at the relevant portion of the Judicial College of Victoria sentencing manual.  There are summaries not just of a large number of Court of Appeal decisions, but also of the many sentences passed by Judges of this court.

[5]DPP v Neethling [2009] VSCA 116

[6]Pan v The Queen [2020] VSCA 42

[7]Singh v The Queen [2021] VSCA 161

87I am exercising a sentencing discretion.  I am sentencing you for your crimes.  No amount of looking at other cases or statistics will provide the answer to my task.  Other cases are not precedents.  Statistics have inherent limitations.  I am not expected to pass sentence and base that on what the most common sentence has been in the past as disclosed by the statistics.  I am exercising an individual sentencing discretion in your case.

88Prison is a disposition of last resort, it always is, but it is inevitable here, as is correctly conceded by your counsel.  He conceded the inevitability of a prison sentence of a dimension requiring the fixing of a non-parole period.

89When I sentence someone to prison for two years or more, as I plainly must in this case, I am required as a matter of law to fix a non-parole period.  I am prohibited from speculating as to whether you will be released on parole.  The Adult Parole Board will make the decision as to whether you can be so released. It has nothing to do with me at all.  But I do take into account all the matters placed before me when considering the head sentence and the non-parole period in this case.

Sentence

90Well, Mr Gray, there are no winners in a case like this.  None.  You went to work one day and of course in an instant, your life changed.  In that same instant, the Keating family was shattered.  There is no sentence that I can impose which can do anything to restore the Keating family unit.  I am sure they will understand that my sentence is not to be taken as some attempt by me to measure out the worth of Michael Keating’s life.  His life was priceless. He cannot be replaced.  He will be missed forever by his family.  There will be no comfort for them in the sentence which I will now impose.

91But what remains to be done though is for me to pass an appropriate sentence upon you for your serious crime, taking into account all of the relevant matters that have been placed before me.

92On Charge 1, the charge of dangerous driving causing the death of
Michael Keating, I convict and sentence you to 50 months or four years and two months' imprisonment.  On the related summary matter, you are convicted and fined $750.

Non-parole period.

93I fix a period of 30 months or two and a half years during which you will not be eligible for release on parole.

Section 18 pre-sentence detention.

94It is 211 days, isn't it, by my calculation?

95MR HABIB:  Yes, Your Honour.

96HIS HONOUR:  You have already served 211 days by way of pre-sentence detention, and that is to be entered into the records of the court.

Licence order

97I must also make some orders against your licence.  On the major charge here, Charge 1, there is a mandatory requirement to make an order against your licence.  That is for a period of no less than 18 months.  You are going to prison for a substantial period.  Whenever you are released, you will need to try to establish yourself back in the community.  A licence is obviously an asset in the job market.  You are receiving sizeable punishment by virtue of the prison sentence that I have just pronounced.  You have also been deprived of your right to drive for a sizeable period whilst on bail though you did have a bit of a problem with that condition which led to your being remanded into custody at one point.

98Given the circumstances of this case, I believe the licence order must have a tangible effect upon you.  One way is to make an order of such a dimension as to continue to take effect beyond the lapse date of the sentence that I have imposed.  That sort of order is problematic as I do not know when you will be released.

99I believe that the better approach is for my licence order to be fixed by reference to some future defined event.  I model the form of my order on that form discussed in cases such as R v Tran[8] and R v Caldwell[9].

[8][2002] VSCA 52

[9][2004] VSCA 40

100On the charge of dangerous driving causing death, I cancel all licences to drive held by you and I disqualify you from obtaining another permit or from driving in this State.  That order will commence today.  You are disqualified from obtaining another licence or any permit or from driving in this State, effective from today and ending 18 months after you are first released from custody, whether on parole or on the expiry of this sentence.  What that means is that you will be disqualified from driving upon your release from prison for an 18-month period.  Further, on the summary offence, all licences are cancelled and you are disqualified for the period of six months effective from today.

Section 6AAA.

101I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of this offence, I would have convicted and sentenced you to five years eight months' imprisonment.  I would have fixed a non-parole period of four years in that setting.  That statement is to be entered into the records of the court.

102

I will just see if there is anything else I need to attend to.  Mr Porceddu,

Mr Habib, are there any other matters that I need to deal with at all?

103MR PORCEDDU:  No, Your Honour.

104MR HABIB:  No, Your Honour.

105HIS HONOUR:  No, all right.  Well thanks very much.  Thanks each of you for your assistance.  They are terribly difficulty for cases all concerned.  I will sign the formal order and - thanks.  Yes, I have signed that formal order.

106MR PORCEDDU:  Thank you, Your Honour.

107HIS HONOUR:  All right, well look I think that completes the matter.  I understand that there are various media representatives who are viewing the Webex.  There has been no application to me for release of any footage or photographs but I would not dream of releasing any.

108MR PORCEDDU:  That would be my ultimate submission, Your Honour.

109HIS HONOUR:  So I mean they have heard - - -

110MR PORCEDDU:  The family haven't seen it, there's no public interest.

111HIS HONOUR:  They have heard me say that.  I mean no doubt people have got things in their various libraries of other images, maybe even of this matter, but I will not be responsible for releasing any footage.  It could only be distressing for family members and I just will not do it.  But anyway, no one has asked me to do it.  So I will revise these reasons in due course and then they will be made available to each of the parties.

112MR PORCEDDU:  As Your Honour pleases.

113MR HABIB:  As the court pleases.

114HIS HONOUR:  I have another matter I think.  I have got another matter at midday so I will stand down at this stage until midday.  All right, thank you.  Sorry, I just should have mentioned one thing.  Mr Habib, you will - we are going to disconnect the link in a moment.  You will presumably have to organise a video conference with your client to discuss what has occurred to day and his rights in relation to it.

115MR HABIB:  Yes, Your Honour, I was simply going to seek the indulgence of your associate to let my client know that I will arrange a video conference with him.

116HIS HONOUR:  Well he has heard that

117MR HABIB:  Yes, Your Honour.

118HIS HONOUR:  So, Mr Gray, Mr Habib will be in touch with you.  He will organise a video link with you to have a chat about what has occurred here today and your rights in relation to this sentence.  All right?

119OFFENDER:  No worries, Your Honour.

120HIS HONOUR:  Otherwise then I think what I will do is I will disconnect the link and I will stand down, thank you.

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