Director of Public Prosecutions v Gray
[2021] VCC 30
•22 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00974
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MACAULAY GRAY |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 December 2020 |
| DATE OF SENTENCE: | 22 January 2021 |
| CASE MAY BE CITED AS: | DPP v GRAY |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 30 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: culpable driving causing death, youthful offender, general and specific deterrence, just punishment, denunciation and community protection, good prospects of rehabilitation, COVID-19
Legislation Cited: s.5A of the Sentencing Act 1991; s 2B(2)(b) of the Sentencing Act 1991; s6AAA of the Sentencing Act 1991; s.11A (4)(c) of the Sentencing Act
Cases Cited:Arpaci v The Queen [2020] VSCA 81; R v Verdins & Ors [2007] VSCA 102
Sentence:9 years and 4 months imprisonment with a minimum non-parole period of 5 years and 8 months imprisonment
Section 6AAA Declaration: 12.9 years imprisonment with a minimum non-parole period of 9 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Dickie | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey (plea) Mr G. Vassis (sentence) | Vassis & Co. |
HIS HONOUR:
Macaulay Gray, you have pleaded guilty to one charge of culpable driving causing death for which the maximum penalty is 20 years imprisonment and three charges of conduct endangering life, for which the maximum penalty is 10 years imprisonment.
You were 20 years old at the time of this offending. You turned 21 about three weeks after, and you are now aged 22 years. You lived in Sandringham at the time of the offences. You held a P2 probationary driver’s licence and you drove a black 2005 Nissan Navara double cabin ute, registered in your name.
Brief outline of offending
The circumstances of your offending were set out in the prosecution opening tendered as an exhibit on the plea in this matter. I will summarise those circumstances.
Rosemarie Kelly, then 43 years old, was married to Christian Kelly and was the mother of 11 year old Ryan Kelly. She was the director of the Windsor Community Child Care Centre. She was driving to work from Mount Martha on the morning of
5 December 2019 in her red Mazda MX6 Sedan.
Brenden Kelly, unrelated to Rosemarie Kelly, was then 37 years old. He also lived on the Mornington Peninsula. That morning, he was driving to work in his silver Hyundai i30 Sedan.
Freya Blackwood was then 27 years old. She was driving her Subaru Forester from Mount Eliza towards her work in the city.
Travis Sweetnam was then 42 years old. He also lived on the Mornington Peninsula. He was driving his white Nissan Pulsar to work.
Circumstances of offending
Your phone records indicate you slept very little over the three days before
5 December 2019. Further, at some point prior to the collision, you had consumed the drugs gamma hydroxybytrate (GHB) and methylamphetamine.
From 3.50 am to about 5.00 am on 5 December 2019, you were at the Milanos Tavern in Brighton with two other men, playing the pokies. A tavern employee who saw you and recognised you as a regular patron, did not observe anything indicating you were affected by alcohol or drugs.
At 6.20 am, your Nissan Navara was captured on CCTV footage driving south along the Nepean Highway through Mordialloc. Around this time, your driving caught the attention of others, including Patrick McEntegart and Shaun Phillips, who were in a car together, and another witness Mr Damian Kimura. Mr Phillips commented to Mr McEntegart on how fast your ute was driving.
At 6.22 am, you sat at a set of traffic lights just past the Doyle’s Bridge Hotel in Aspendale for about 20 to 30 seconds after the lights turned green. Mr McEntegart noticed this. He also saw your Navara coming up right behind him about a minute later, almost colliding into the back of his car, before sharply turning. You drove around at speed into the right-hand lane and got stuck behind two other cars. You were veering on both sides of the road as you appeared to try and get around these cars. You mostly veered onto the wrong side of the road across the centre line, rather than into the left lane.
Damian Kimura, another driver, saw your Navara from Bonbeach just before the Carrum Bridge. He described you as swerving, not to dodge cars, but as though you had no control of the car. You could not drive in a straight line. You were mainly in the right lane, but crossed into the left lane and back. Mr Kimura dropped back away from you because of your driving.
Mr McEntegart saw you swerve from oncoming cars at the last second a few times. Your car was possibly less than half-way across into the other side of the road, but enough that the other cars had to react. You did this 10–12 times. Both
Mr McEntegart and Mr Phillips were concerned about the inevitability of a crash and wanted to get away from you for their own safety.
About 6.27 am, Mr Phillips rang 000. He told the operator that police were required because there was a man driving on the road who was going to cause an accident. He said:
'He’s driving on the wrong side… He’s – he just went on the wrong side of the road again. He’s just going across lane. He’s – I’m scared as fuck, man... He should not be on the road. He’s so close to having a collision, this bloke. He’s about to run into a - there’s a bus now. He might hit them. The operator warned Mr Phillips to keep himself safe. Mr Phillips reported the car’s registration number. He was told police had been notified. Mr Phillips said, “Yep. He’s dangerous, mate. He’s wild.”
At 6.27 am, footage from CCTV at Chelsea Train Station showed you veering from the right to the left lane and back to the right lane in your Navara.
You stopped at traffic lights just before the Patterson River Bridge in Carrum. You pulled up behind Mr McEntegart and Mr Phillips who were in the right lane, but you angled to the left and sat for a couple of seconds before driving around them to the left and stopping next to them in the left lane. Mr McEntegart saw you in your car shouting and hitting the driver’s window four to five times with your right elbow. Your head was falling all over the place. Your behaviour, lasting only four to five seconds, was 'not normal' to Mr McEntegart. Mr Kimura also saw you banging on the window. He could see the window move. The shadow of your head moved up and down erratically.
When the lights turned green, you took off at speed. Mr McEntegart estimates that you drove between 80 to100 kilometres an hour through an area where the speed limit reduced to 40 kilometres an hour. Mr Kimura described you as going off like a rocket. Construction workers stepped out onto the road to look at the Navara after it passed. CCTV footage captured the car veering onto and across the centre white line.
You drove out of Mr McEntegart’s sight for about 30 seconds. Mr McEntegart saw one further near miss, when you drifted towards the other side of the road towards oncoming traffic.
Travis Sweetnam was driving northbound in his Nissan Pulsar. He saw your ute slowly drifting across the dividing lane coming towards him. The Navara had just come around the slight bend on the road about 150 to 200 metres ahead of
Mr Sweetman. It appeared to Mr Sweetman that the ute was travelling faster than the speed limit, which he understood to be 70 kilometres an hour. When the ute was about 50 metres away from him, Mr Sweetman started to realise that the driver was not going to correct himself and get back into his lane. Mr Sweetman saw you and noticed you were not looking at the road and that you seemed to be doing something else inside your car. Mr Sweetman took evasive action, turning his steering wheel hard left and hitting the brakes, as the Navara, your car, nearly scraped his driver’s mirror.
Your driving was noticed by Brenden Kelly, who was approaching and had a clear view of oncoming traffic. He wondered if you were on your phone and hoped you would correct your position on the road. He saw your car hugging the middle line during the stretch of the Nepean Highway, where there was no physical barrier. When Mr Kelly initially saw your ute, he did not feel like he had to adjust his course and he maintained his position in the inside lane. As you travelled towards each other, you continued to drive across the road into his lane. It was a gradual drift across. As the ute continued to move into his lane, Mr Kelly started to move his car towards the outside of his lane, but he had not shifted into the outside lane. He very soon realised that your vehicle was not going to move and he needed to take evasive action. As he manoeuvred his Hyundai i30 towards the outside lane, he felt like the ute was following his movements. As they got closer, Mr Kelly shifted from slight adjustments to a swerve to avoid your ute. He vividly remembers the ute’s bull-bar narrowly missing his rear vision mirror on the driver’s side. He thought how close the ute was, but then he felt a major impact at the back of his car, which put his car into a spin. He thought he was going to end up in the southbound lane and was concerned about oncoming vehicles, but his Hyundai did not do a full 360-degree spin. It did stop in the southbound lanes, between the inside and the outside lanes.
Freya Blackwood saw your Navara ute swerve onto the wrong side of the road, towards the lane furthest away from the beach heading to Frankston. She assessed your ute as travelling significantly faster than the other cars on the road. She was sitting on the 70 kilometre per hour speed limit and estimates the ute was travelling at about 80 kilometres per hour. She saw the ute try to correct itself, but moved into oncoming traffic, about 150 metres in front of her. Another driver saw your ute veer across the road, describing it as a slow, smooth drift, but not a fast reaction.
The collision occurred between Armstrong’s Road and Ti-Tree Grove in Seaford. This section of the Nepean Highway is a four-lane bitumen road in a good state of repair. It comprises two lanes of traffic in each direction. A single solid white line in the centre of the highway divided the north–south traffic, transitioning to a painted traffic island. Adjacent lanes were each separated by a single broken white line down the centre. The road is bordered by solid white painted fog lines and square concrete gutters on each side at the edge. There were no shoulders. This section has a designated speed limit of 70 kilometres an hour. At the time, it was daylight, moderately overcast and about 15 degrees.
You drove your Navara ute across into the northbound lanes. The front-driver side quarter panel impacted the rear-driver side door of Brenden Kelly’s Hyundai i30, causing his vehicle to rotate clockwise.
Your Navara continued south in the northbound lane. It collided with the Mazda MX-6, driven by Rosemarie Kelly. The impact removed the driver-side door from Mrs Kelly’s car. It pushed her car onto the western grass shoulder about 6.2 metres from the area of impact.
Your car continued south in the northbound lane, rotating clockwise. It collided with the front quarter panel of the Subaru Forester driven by Freya Blackwood.
Ms Blackwood cannot recall the collision. She thinks she shut her eyes and braced for impact. She said in her original statement she was unsure if she lost consciousness, but she knows she shut her eyes because she saw what was coming. The Mazda’s driver’s door, likely to have been carried by the front passenger side of your ute's bull bar, was transferred and affixed to the front driver side quarter panel of the Subaru. The Subaru was pushed rearwards to its rest position in the left of the two northbound lanes. The Navara was pushed northbound and rotated to its rest position.
The speed of the Navara at the time of the initial impact with the Hyundai cannot be determined, due to the complex nature of the collision, including the number of secondary collisions and limitations of pre-impact tyre marks.
You caused extensive damage to Mrs Kelly's Mazda MX-6 and the Subaru Forester and moderate damage to the Hyundai i30.
Your driving placed Travis Sweetnam, Brenden Kelly and Freya Blackwood in danger of death. This driving caused the death of Rosemarie Kelly, who sustained multiple injuries, including head injuries.
Other drivers and passers-by immediately attempted to assist Mrs Kelly, including Brenden Kelly.
Freya Blackwood does not remember opening her eyes, but remembers knowing she had been in a collision and feeling blood coming from her nose. She moved her legs and she tried to open the car door. It was jammed shut, so she slipped her feet out of her Doc Martin shoes and pulled herself out of her car through the broken driver’s window. Once out of the car, she recalls her socks becoming wet because she was standing in the coolant from her car. She observed the scene, which included other people abusing you and people going to try to help Mrs Kelly.
After the collision, you climbed out of the car and walked over to the other cars. You were described by one witness as looking stunned and in shock. You sat in the gutter, where you were abused by at least one person who approached you and blamed you for what had happened and for killing Mrs Kelly. People called 000. Others tried to secure equipment to try and remove Mrs Kelly from her vehicle.
You asked Brenden Kelly to get your phone from your car, saying it was on the front passenger seat. Mr Kelly tried to access the car, but it was locked. He returned to you and you reached out of your car to give the keys to Mr Kelly.
Mr Kelly dismissed you and he walked away. Mr Kelly described you as looking like you were a bit disorientated and subdued and in a bit of disbelief as to what had happened. At one point, after people had called for tools and a saw, you went to your ute and opened your toolbox, but did not seem to take anything out. You returned to the gutter, where you sat looking towards the ground.
An off-duty doctor driving past stopped and tried to assist Mrs Kelly. CPR was attempted. Two off-duty police officers stopped and assisted. An ambulance arrived and further police attended.
One of the off-duty police officers approached you and identified himself as a detective. He asked you if you had been driving the ute. You said you had and asked for your phone to ring your father. The officer described you as being in a distressed, emotional and agitated state. You kept saying, 'What have I done?'. Later, when observing CPR being conducted on Mrs Kelly, you asked, 'Have I hurt anybody?'. After being told the person in the red car was hurt badly, you rolled on the ground, wailing, 'What have I done?'. When asked how the accident happened, you told the officer you were on your phone, but it was hands-free.
At about 6.42 am, some seven minutes after the collision, the other off-duty police officer arrested you for culpable driving. You asked if the lady in the car was going to be okay. The officer described you as becoming more and more distressed when you understood Mrs Kelly had died. After being cautioned, you asked to speak with your father. You were searched. You appeared to show erratic body movements and your conversation was disjointed. You did not answer when you had been asked if you had taken any drugs. When asked what happened, you said, 'I fell asleep'. You lay on the grass strip, rubbing and scratching at your chest with your t-shirt lifted up and groaning. You were later taken to the Alfred Hospital.
Freya Blackwood was taken to Frankston Hospital, where she had scans and X-rays and was kept for observation overnight. She had bruising down the entire right side of her body and a very sore neck on the right side. Her hip was sore on the left side. Her nose stopped bleeding before she arrived at the hospital.
Brenden Kelly was also taken to Frankston Hospital, but released around midday with no physical injuries.
Police found a used, empty plunger syringe in the driver’s side footwell of your Navara ute. These types of syringes are suitable for the oral ingestion of GHB and other drugs. Inside your wallet was a Ziploc bag with three tablets and another bag with traces of white powder.
At 3.46 pm at the hospital, you were cautioned and given your rights, you were asked some questions.
You were not formally interviewed at that time because you were found unfit to be interviewed and you needed six to eight hours of rest. You had marks and swelling on your forehead as a result of the collision. Your hands and feet were dirty and your appearance was dishevelled.
From 8.09 am until 8.51 am on Friday 6 December 2019, you were formally interviewed. You mainly exercised your right to make no comment. You said your recollection was very spotty. You could remember the impact, but nothing before. It happened so fast and you were shaken around in the car. You said you were heading to work in Mount Martha. You have worked as an apprentice carpenter for about the year prior to the offending. You have had your ute for about a year and a half. You remembered people shouting at you after the collision.
A blood sample taken from you at 8.48 am on 5 December 2019 and it was later analysed. It showed readings of 16 milligrams per litre of gamma-hydroxybutyrate (GHB), 0.4 milligrams per litre of methylamphetamine and 0.07 milligrams per litre of amphetamine.36, which is a metabolite of methylamphetamine. The exact doses and times of the use of drugs cannot be determined from the blood analysis. The methylamphetamine was said to be in relatively high levels. GHB was also at levels in which effects are expected. The prosecution opening provided that GHB is an anaesthetic drug with the main effect of reducing the level of consciousness. Initial effects cause relaxation and euphoria, followed by confusion, dizziness and drowsiness. It can very rapidly render a person completely unfit to drive. The person may recover very rapidly as the drug wears off.
Methylamphetamine and amphetamine are stimulant drugs. They may cause euphoria, restlessness, agitation, rapid and confused speech, paranoia and violent and aggressive behaviour, but also altered consciousness or blackout. Drivers who are intoxicated with methylamphetamine are more likely to drive dangerously and erratically, to speed and show disorientation, agitation, irrational or violent behaviour as well as cognitive impairment. A rebound effect occurs as the drug wears off, which is characterised by fatigue, depression and an irresistible urge to sleep. Impairment is frequently seen in patients with significantly lower blood concentration levels.
Forensic physician Dr Jason Schreiber described your agitated, confused and erratic driving and demeanour as an indication you were probably acutely affected by the drugs in your system at the time of driving. In
Dr Schreiber’s opinion, you would have been incapable of having proper control of the motor vehicle.
In addition, data was downloaded and analysed from your seized mobile phone. This data showed limited opportunities for rest over the preceding days. A report was obtained from Professor Matthew Naughton, a respiratory and sleep physician. He estimated that you had chances to sleep about thirteen and a quarter hours over the three nights before the collision and about two and a half hours per night over the two nights before the collision, but the actual amount of sleep is estimated to be less. Any sleep must have been before 3.40 am when you entered Milanos Tavern. The fact that you had taken illicit drugs, which can significantly interfere with sleep quality, would very likely amplify the effects of sleep deprivation.
Professor Naughton was of the view that you had insufficient sleep prior to the collision, for two nights at least, possibly more, such that you had impaired alertness and no capacity to drive safely. His opinion is that your lack of sleep contributed to the crash.
Freya Blackwood’s car was a write off. At the time of his statement in December 2019, Brenden Kelly had seen his GP about a mental health plan because the collision was playing over in his mind a lot. Travis Sweetnam’s immediate reaction was that he had dodged a bullet, after he swerved to avoid your ute. After he heard that Mrs Kelly had died, he had an immediate sense of guilt and went into ‘a bit of shock’. He understands he was lucky.
Victim impact statements
I turn now to the victim impact statements that have been provided in this matter. Moving victim impact statements have been supplied by Mrs Kelly’s husband, Christian Kelly, her son Ryan Kelly and her mother Miriam Rosewarne. Each attest to profound grief arising from Mrs Kelly’s death. Victim impact statements have also been provided by Freya Blackwood, Travis Sweetnam and Brenden Kelly, who have also suffered substantial long-term consequences arising from your offending. I will summarise those statements.
Ryan Kelly
Ryan Kelly’s victim impact statement was very moving in its simplicity, capturing completely his love for and his reliance on his mother. He misses his mother every day and he wants to tell her about his day and about this basketball wins.
His birthday after his mother died was really hard. He says she used to make a big deal of those days and while Dad did his best, it was a really sad occasion.
Before this happened, he was excited about traveling to Darwin in April for a holiday that was booked with his mum. That booking was cancelled as there was no way he could go without his mum.
He knows his mum would be proud of him, including getting picked to try out for the state basketball team and for doing well in school. He knows she loved him, but wishes he could see her face, hug her and tell her he loves her again.
Christian Kelly
Christian Kelly says in his victim impact statement that he fears the shock and trauma of the incident will lead Ryan down a negative path as he grows up.
He hates that Ryan worries about him now more than ever and knowing he will forever be burdened with worrying about him.
He finds it harder to cope now than in the first few weeks after his wife’s death, because he knows she is never coming back and somehow they have to continue living. He says it is not possible to quantify what they have missed out on in the future. Rose always used to say ‘we are very lucky, it doesn’t matter that we aren’t wealthy, because we are happy’.
He cannot remember a time when Rose was not by his side. She was his partner of 23 years and his only love, his only girlfriend and his best friend. He second guesses his decisions now that she is gone, because they made all their decisions together.
He has suffered from anxiety and panic attacks for years and Rose stood by him through it all. She was encouraging and patient when he was at his lowest. Just before she died, he was feeling calmer and decided to study at TAFE, hoping that one day he could work part-time.
He is afraid of what the future looks like for Ryan and himself. He questions whether he will be mentally and emotionally well enough to work as a single parent. Suddenly, Ryan and himself need to rely on extended family and friends far more than they would like. When Rose was alive, they were their own independent loving little unit and now that is broken.
Miriam Rosewarne
Miriam Rosewarne says her world has been shattered. She has been waiting for the day her daughter would once again knock on her door, but that hope has now gone.
She has trouble sleeping and now has regular counselling and has been prescribed anti-depressant medication.
Her life is consumed by grief at the loss of her only child.
Since the incident, she finds she is anxious and nervous whilst driving in traffic. She is more aware of speeding drivers and those who drive erratically.
She struggles to sleep and is reluctant to get out of bed in morning. The cost of medical treatment for depression and anxiety is an expense she can barely afford and that she has lost interest in her usual hobbies. She no longer tutors tai chi which provided income.
She rarely sees her friends and colleagues and has little interest in the things she used to love doing, such as ballroom dancing, bush walking and martial arts.
Her friends are reluctant about discussing the incident with her out of fear of upsetting her.
Brendan Kelly
Mr Kelly says that the hardest part for him is the daily reminder when passing the scene of the incident and having the event play through his mind and asking himself whether he could have done anything differently to change the outcome.
Upon arriving home from the hospital, he felt overwhelmed with emotion at seeing his young children who had little knowledge of what had just happened, and how close he had been to not coming home that day. He thinks frequently about this and about how differently this day may have ended.
Freya Blackwood
Freya Blackwood feels as though her freedom was stolen from her the day of the collision.
She says that immediately after the incident, she was shaking like she has never shook in her life.
She says that contrary to what she told the paramedics, she realised that she did hit her head and was not conscious for the impact.
She says that the thing that will haunt her the most is seeing Rose.
She says that out of respect for Rose’s family, she will not go into detail other than to say she could not leave and desperately wanted to believe Rose had just gone into shock, though deep down she knew the truth.
In some ways it gives her comfort to know that she was with Rose in her final moments. That Rose was not alone.
Ms Blackwood returned to work around three weeks after the collision, as she did not have any immediately noticeable injuries, aside from a sore neck, back, hip and arm as well as nausea and headaches.
She said she has struggled without her car, as she lived around 50 kilometres from work and about 60 kilometres from her partner. The local supermarket is a 30 to 40 minute walk one way. This has caused great difficulties in her day-to-day life.
She feels guilty that she somehow survived and that she did not do more to help the other victims.
Several times a week she will smell something or hear something that reminds her of that day and will start reliving it.
She is currently seeing a psychologist to assist her with gaining skills to help herself. She has a range of ongoing psychological symptoms since the collision.
She has gained weight and she is far less physically active.
She has experienced ongoing pain in her lower back and hip area, as well as pins and needles in her right arm.
The collision had had a detrimental effect on most areas of her life, including her work.
The ramifications for her are ongoing.
Travis Sweetnam
Travis Sweetnam says that the date of the incident is one he will never forget. He states that he is grateful to be alive and safe with his family and friends and feels sadness for Rose, who lost her life on that day.
He says he was physically and emotionally shaken up for some time after the incident. Some of his friends and family had known Rose and her child personally and this has left an impact on the community. He thinks about the incident every day and it makes him realise how short life can be. He states that he will have some closure once the court proceedings are concluded.
I do wish to direct some comments to the family and friends of Mrs Kelly and to
Mr Brendan Kelly, Mr Sweetnam and Ms Blackwood at this point of the sentence.
There is nothing that this court can say or do that will bring Rose back or heal your grief and your pain. The sentence I must impose can in no way be a measure of the worth of her life. Rather, the sentence I must impose is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the impact on the victims.
I emphasise though, that it is understood that Mrs Kelly’s tragic and unnecessary death will be felt by her family and friends and by those drivers involved in the collision forever. The psychological impact on Mr Kelly and Mr Sweetnam and
Ms Blackwood is ongoing. That impact is an important consideration in sentencing in this case.
Nature and gravity of the offending
I turn now to the nature and gravity of your offending, Mr Gray.
The offence of culpable driving causing death is by its nature a very serious offence, as it involves the death of another human being. Rose Marie Kelly, an entirely innocent person, was on her way to work that morning and lost her life as a result of your reckless driving. The seriousness of the offence is reflected in the maximum penalty of 20 years' imprisonment and the standard sentence of eight years to which I will return later in these sentencing remarks.
You drove on this occasion having consumed methylamphetamine and GHB at some point before driving. You were also sleep deprived over the preceding three days at least. You cannot have had much sleep at all before attending Milanos in the early hours of the morning. Indeed, you told Ms Lechner you had not slept that night and had been using drugs. On your own account to Ms Lechner, you had hardly been sleeping at all in the days leading up to the collision and you had been taking drugs; you were very clearly in no condition to be driving a motor vehicle.
In my view, your driving and conduct in your vehicle that morning indicates you were grossly intoxicated and affected by the lack of sleep. Your driving was extremely erratic and dangerous over a protracted period in the lead up to the fatal collision. On my understanding of the summary, the time period from when you were first observed driving badly, until the collision, was approximately 15 minutes. Others on the road, even outside of those involved in the collision, were exposed to risk over an extended period. I accept the prosecution submission that the collision in this case did not result from a momentary piece of reckless driving. You made the choice to drive with drugs in your system and having hardly slept for three days prior to driving and you thereafter engaged in driving of such a low standard, that one witness rang 000 correctly anticipating the grave danger you were creating.
The gravity of your offending lies in the combination of drug use before driving, sleep deprivation and protracted appalling driving involving speeding, remaining stationary at traffic lights, long after the lights had changed, weaving in traffic, and repeatedly veering onto the wrong side of the road in traffic. A serious collision was inevitable. This is plainly a serious example of culpable driving, with high objective gravity. The prosecutor Mr Dickie submitted it was a serious example of culpable driving and your counsel, Mr Toohey, did not argue against that prop]osition.
I also assess your moral culpability as high, given the combination of factors involved in this offending.
The reckless conduct offences arise out of the same incident or the same driving as the culpable driving charge and have necessarily influenced my assessment of the gravity of that offence. I must therefore be careful to avoid double punishment for the one episode. The totality principle, that is the need to ensure your overall sentence remains just and appropriate, is also applicable to sentencing for these offences. However, the reckless conduct charges are serious, involving the same features as the culpable driving, but involving separate victims. The impact on each victim must be reflected in the sentence and some cumulation is appropriate, but moderated in accordance with sentencing principles.
Having come to that point in the sentence, I am going to have a short break before I turn to the remainder of the sentencing remarks. I will come back in approximately ten minutes.
(Short adjournment.)
HIS HONOUR: All right thank you Mr Dickie, Mr Vassis. Are we ready to proceed?
MR DICKIE: Yes, Your Honour.
MR VASSIS: Yes, Your Honour.
HIS HONOUR: All right, thank you.
Mr Gray, Mr Toohey delivered a detailed and comprehensive plea in mitigation on your behalf, outlining the mitigating matters to be taken into account. Tendered on your behalf at the plea hearing, were your letter of apology, which Mr Toohey read in open court and which was tendered, a letter from Malvern Private Hospital where you attended for drug rehabilitation after this offence, a letter from Dr Kottler, the director of the Malvern private clinic, various negative drug screen results; a psychiatric report from Carla Lechner, dated 27 September 2020, a neuropsychological report from Dr Linda Borg, a letter from Janet Costin, a psychologist who treated you over some years when you were younger, various reports from Dr Alasdair Vance from Royal Melbourne Hospital, who also treated you as a teenager and referred you to Ms Costin, a letter from your general practitioner, Dr Kozminsky and letters from your mother and your father (who also gave evidence on your behalf). There were other documents tendered, including an additional 21 further character references on your behalf.
I indicate to you that I have read and taken into account all of this material.
Firstly Mr Gray, you pleaded guilty at an early stage in proceedings. There were negotiations in relation to appropriate charges, but I accept that you always intended to plead guilty to the substance of the case against you and never intended to cross examine witnesses in this matter. I accept your plea is an indication of genuine remorse and shows a willingness to facilitate the course of justice. You have spared the witnesses the experience of reliving these events and that is significant. I give you credit for utilitarian value of your plea which is significant in this case.
Further, evidence of remorse and insight into your offending is to be found in your letter of apology. As I said earlier, Mr Toohey read and tendered that letter. I accept the sincerity of what you wrote and that it shows genuine remorse and some insight into your offending and your behaviour generally. Additionally, multiple character references were tendered – the authors detail your expressions of remorse to them. Ms Carla Lechner, who provided a psychological report which was tendered on your behalf, also refers to the expressions of remorse you made during her assessment. It has to be said that you did give her a frank account of the lead up to the offending in this case.
I also accept that your conduct at the scene of the collision was consistent with immediate distress and remorse for what you had done. Mr Dickie, the prosecutor, fairly pointed out that you also showed distress in the record of interview. I accept that you have not sought to minimise your conduct or obfuscate about your drug use and sleep deprivation in this plea.
Personal circumstances
Mr Gray you were born on 21 December 1998. You are currently aged 22 years.
You live at the family home with your parents and your siblings.
You were in fact born in Detroit because your father Roger was working there for Ford. You came back to Australia with your family when you were aged one. You have a younger brother and a younger sister. Your parents separated in 2017, but I am told are now living together again to support you.
Your father is aged 56 and he owns a printing business. As I said earlier, he gave evidence on your behalf. Clearly you have a close relationship with him. Your mother is 49 and she is a make-up artist at a department store. She also wrote a long and supportive letter on your behalf, explaining many facets of your background that have led you to the position you are in when you committed these offences.
You are single with no current relationships and no dependants. You are currently unemployed and you have been since the incident. My understanding is your employment was terminated understandably as a result of this driving.
You started your education at Somers Primary School where you remained until Grade 2. After that, you attended St Joan of Arc Primary school in Brighton, where you remained until you were in Grade 5.
You were offered a scholarship to both Brighton Grammar and Wesley College and you opted to take the scholarship to Brighton Grammar. You went there from Grade 6 until you completed Year 12 in 2017.
The scholarship you received was for General Excellence. My understanding is that you were a talented sportsman, and this was the primary reason for the scholarship offers.
In the end, you did not sit final exams or obtain an ATAR score, but you received a VCE certificate of completion. You had not wanted to attend university.
Work History
You held various part-time jobs while you were in school.
After you left school, you had a concreting job in 2018, and then you obtained a carpentry apprenticeship in 2019, where you were working at the time of the collision. As I said, your employment was then terminated after the collision.
History of drug and alcohol usage
You have a history of drug use from a young age, which in my opinion is related to your history of psychological issues. You started using cannabis at the age of 13 and then a range of ‘party’ drugs in your mid-teens. At the age of 16, you started using methamphetamine.
You have also used Xanax and Valium.
I am told you have been a weekend binge drinker over the years.
In 2018, after your final year at school, you attended the 'Seasons Rehab Program in Bali' (Run by Hader Clinic for three months). You then started the 12 Steps program in Melbourne and eventually got a job in concreting.
I am told that you were drug free while you were working, but after your job concluded, you relapsed into drinking and then into taking drugs.
However, you obtained the carpentry apprenticeship based in Mount Martha.
Your drug taking continued up to the time of the collision in this case, even while you were undertaking your first year of the apprenticeship.
Psychological, Behavioural problems
I turn to your psychological and behavioural problems. You have exhibited psychological problems from an early age, as described in reports from various professionals, (in particular Dr Vance from the Royal Melbourne and Ms Costin, the clinical psychologist who treated you when you were younger). As I said, your mother describes the psychological issues you had as a child. In a letter written in 2013, Janet Costin said this of your psychological history:
'Mac has a history of problems with attention, poor impulse control and emotional regulation that were noticeable in primary school.… More recently, symptoms of depression have been reported with self-esteem apathy, irritability and a pessimistic view of the future. Negative thoughts and on occasion, the wish to die has been expressed'.
She noted your difficulty in connecting with your peers. She notes, and I am told that at the age of 13, you stood in front of a train in an apparent suicide attempt.
You were admitted into a psychiatric hospital in 2017 for some days and as I said, you then attended the Drug Rehabilitation program in Bali for two months in 2017-2018.
After this offence, you attended the Malvern Private Hospital in January 2020 for a period of six weeks. The letters for the Malvern Hospital and Dr Kottler, attest to your successful rehabilitative efforts whilst at that clinic.
A report was tendered from Ms Lechner dated 27 September 2020, and she gave evidence on the plea hearing. Ms Lechner says that your psychosocial immaturity has led to a diminished ability to regulate your behaviour, in comparison with most people of your age. She was of the view that you should be assessed by a neuro psychologist for neuro- cognitive compromise. In her opinion, you present with symptoms of stimulant use disorder in early remission, major depressive disorder and post-traumatic stress disorder with a past diagnosis of ADHD.
She is of the view that you suffer from post-traumatic stress disorder, arising from the collision in this case and that this condition is likely to worsen and is difficult to manage in prison. She referred to your symptoms being nightmares, flashbacks, rumination and avoidance. She was cross examined by the prosecutor Mr Dickie on the basis that these symptoms are really indistinguishable from grief and sorrow.
Dr Borg provided a neuro psychological assessment. She says you have struggled with emotional regulation and anger management since your early childhood.She noted your lengthy history of drug use. You reported to her that you have been abstinent from drugs and alcohol since the offences in December 2019. I accept this. Dr Borg felt at interview, you did not demonstrate any signs or symptoms to suggest you were affected by alcohol or other substances.
She noted the previous assessment from the Royal Children’s Hospital of depression, ADHD, oppositional defiant disorder and anxiety.
You told Dr Borg that you felt that relying on mental illness to reduce your culpability for this offending feels like 'shirking responsibility'.
Dr Borg conducted IQ testing, the result of which is that you fall into the average to high average range. Your performance on these tests indicate a pattern of 'sound executive skills, intact reasoning, mental flexibility, planning, problem solving, self-monitoring and impulse control'.
In summary, Dr Borg described you as a person who had mental health issues throughout your childhood and adolescence and who has engaged in polysubstance abuse.
Dr Borg says you show no evidence to indicate neurocognitive compromise suggestive of any developmental or required cognitive disorder. In her view, your behavioural presentation is likely associated with your mood state, in particular, elevated anxiety and underlying dysthymic features. You have underlying psychiatric vulnerabilities combined with temperamental characteristics. However, you have a sound capacity to appreciate the wrongfulness of your actions and to moderate and regulate behaviour. In the absence of acute factors, such as drug and alcohol intoxication, you have the cognitive abilities to make decisions that are reasoned and informed. There is no neurocognitive compromise, which is a causal or contributing factor to the offending. You have the ability to understand the impact of using drugs and the dangers associated with driving whilst under the influence. In her opinion, you were merely intoxicated at the time of the offending.
She does consider that you are a risk of psychiatric decompensation associated with incarceration and recommends ongoing psychiatric monitoring and the reinstatement of some form of medication whilst incarcerated, such as a mood stabiliser or an antidepressant to mitigate the risk of a deterioration of your mental state.
Mr Toohey submitted that principles five and six of Verdins[1] apply. These principles apply if a prison sentence will weigh more heavily on you, because of your mental health condition and in relation to principle six, that there is a serious risk that a term of imprisonment will have a significant detrimental effect on an offender’s mental health. Mr Dickie conceded that the sentence will weigh heavily upon you and that I should have regard to that. He submitted that I should exercise caution in applying Verdins principle number five, by reasons of post-traumatic stress disorder arising from the offence and that it was a fine line between sorrow or grief and the symptoms of post-traumatic stress disorder. He likened your current psychological situation to someone suffering from depression, arising from the commission of the offence and the ensuing consequences. As to principle six,
Mr Dickie submitted the evidence fell short of meeting the test. With respect to principle six, I accept his submission. In my view, the evidence does not establish a serious risk of a significant detrimental effect arising from imprisonment. I note the risk of decompensation as adverted to by Dr Borg, but which can be mitigated by the use of medication in the prison.
[1] R v Verdins & Ors [2007] VSCA 102
I note, however, that your treatment will increase the burden of your imprisonment and therefore, I do give some weight to Verdins principle number five. Whilst I am a little reluctant to put that particular label on the issues that arise concerning the burden of your imprisonment, I am satisfied that given your troubled psychological history and your substantial grief and anguish manifesting as post-traumatic stress disorder, the sentence I impose will weigh very heavily on you. This is consistent with the views of both Dr Lechner and Dr Borg. As indicated by Dr Borg, you will need to be monitored and potentially given medication in prison.
In the case of Arpaci v The Queen [2020] VSCA 81 at paragraph 274, the offender’s post-traumatic stress disorder arising from a fatal road incident was characterised as extra curial punishment and that is also a relevant consideration here.
These matters are compounded by your age and the fact that this the first sentence of imprisonment and it will be for a long period. In addition, the current restrictions in the prisons as a response to the COVID-19 pandemic, such as the suspension of personal visits and rehabilitative programs, will add considerably to the burden of your imprisonment for the foreseeable future.
I have had regard to all of these matters in moderating the sentence to be imposed in this case.
Rehabilitation
It was submitted by Mr Toohey that you have very good prospects of rehabilitation due to the following factors:
a.Your youth;
b.Your stable and loving family;
c.Your very limited history of prior offending, unrelated to driving;
d.That you have taken positive steps since the offending, regarding previous drug addiction towards rehabilitation;
e.That You attended at a recovery program up until the plea date in December;
f.You have a daily exercise routine;
g.You are currently studying a Certificate III in fitness, the industry in which you hope to later on be employed;
h.You visit the local priest Father Cartwright and have rediscovered faith and religion;
i.You have negative drug testing over a long period since the collision;
j.Up until the time of the plea, you were attending a 12 Steps Program twice weekly;
k.Evidence of good character;
l.You have taken responsibility for your offending and you have not sought to minimise your conduct; you have shown remorse.
You were 20 years old at the time of this offending Mr Gray, and you are now 22. You have one prior matter recorded in the Children’s Court in 2015. I do not regard that prior conviction as of any great significance to my sentencing task in this matter. In my view, it reflects the ongoing behavioural problems and drug issues you have had for some time, which are relevant, but the conviction itself has not influenced my view of your prospects of rehabilitation and it does not in my opinion, elevate in any significant way, the importance of specific deterrence.
You have the support of your family and many others as demonstrated by the many references tendered on your behalf. Because of your ongoing psychological issues, and your history of drug and alcohol abuse, I must exercise some caution in relation to your prospects of rehabilitation. However, I accept the evidence of Ms Lechner, confirmed by the contents of your letter, that this incident has been an enormous shock. You will have to live with the consequences of your behaviour forever, as a reminder of devastating impact the lifestyle choices you made.
In this case, a lengthy period of imprisonment is inevitable, and I would expect that you will mature over the years you spend in gaol and be a very different person when released. In that context, the efforts you have made so far towards rehabilitation are considerably in your favour. The evidence establishes that since the offending, you have managed to avoid resorting to drugs. You are still a young man and you were just 20 when you committed these offences, so the principles in relation to young offenders and the need promote rehabilitation, are not extinguished, though the authorities are very clear they have less application in cases of culpable driving, involving very serious offending often committed by young men in your age group.
On all the material though, it is my view that you do have good prospects of rehabilitation and I have taken this into account, along with your age, in formulating the length of the head sentence and the minimum non-parole period in this case. I agree with the submission, as did the prosecutor, Mr Dickie, that a crushing sentence is to be avoided.
Standard Sentence
I turn now to the considerations of the standard sentencing scheme. Culpable driving is a standard sentence, for which the standard sentence is eight years. Pursuant to s.5A of the Sentencing Act 1991, s.5A of the Sentencing Act 1991, the period specified as the standard sentence for the offence, is that which, taking into account, the objective factors affecting the relative seriousness of that offence, is in the mid-range of seriousness. The standard sentence for an offence is a guidepost for the court to consider as part of the instinctive synthesis, like any other factor, and it does not have primacy in the exercise of the discretion. I am required to 'identify fully the facts, matters and circumstances' which bear upon the judgment, I have reached as to the appropriate sentence. I have endeavoured to do that in some detail, during these reasons for sentence.
The sentence that I will impose is slightly longer than the standard sentence for culpable driving, and in fixing that sentence, I have taken into account all of the matters I am required to consider under s.5(2) of the Sentencing Act, including the standard sentence. I have considered any mitigating factors which apply in your case. And by the process of instinctive synthesis, I have arrived at the sentence that I will shortly announce.
I note that Section 5B(2)(b) of the Sentencing Act 1991 s.5B(2)(b) of the Sentencing Act provides that in sentencing an offender for a standard sentence offence, a court must only have regard to sentences previously imposed for the offence as a standard sentence offence. I have read and had regard to the Court of Appeal authorities for culpable driving and some sentences of this court, since the standard sentence scheme was introduced. A number of those cases were discussed on the plea. Of course, current sentencing practices are a factor to which I must have regard, but they are not a controlling factor, in the exercise of the sentencing discretion.
Further, when fixing a non-parole period for a standard sentence offence, pursuant to s.11A (4)(c) of the Sentencing Act, s.11A(4)(c) of the Sentencing Act unless the court considers it is in the interest of justice not to do so, the court must fix a non-parole period of at least 60 per cent of the relevant term. Mr Toohey submitted that it is in the interest of justice to impose a non-parole period of less than 60 per cent, given your history of psychological problems leading to your drug problems; because you have not tried to shift responsibility for what you did; the absence of relevant prior convictions; that this was an isolated event, not indicative of person you are; and to avoid a crushing sentence given your age and prospects of rehabilitation; and because imprisonment will be more onerous for you, given your constellation of problems. I will return to that issue.
Sentencing principles
The only appropriate sentence in this case is a substantial period of imprisonment with a non-parole period.
There was no argument about this between the parties in this case. Mr Gray, very often this court deals with cases where young men such as yourself, and around your age, under the influence of drugs, drive their motor vehicles irresponsibly and dangerously and cause the death of another person. This is what you did.
For this serious offending, considerations of general and specific deterrence, just punishment, denunciation and community protection are all relevant. The appellate authorities are clear that general deterrence must be the primary consideration.
Given your age and my view that you have good prospects of rehabilitation, I must still give some weight to principles relating to young offenders and I have regard to these principles in formulating the sentence. I give less weight to specific deterrence, because of your limited history, the evidence relating to your character and your positive prospects of rehabilitation, but it is still of some importance.
I have given consideration to imposing a non-parole period of less than 60 per cent for the reasons argued by Mr Toohey, but I must balance those matters against the need to ensure that the non-parole period also meets considerations of general deterrence, just punishment and denunciation. In the end, I have decided 60 per cent is the appropriate differential between the head sentence and the minimum non-parole period and reflects the various matters argued by Mr Toohey.
In fixing the sentence in this matter, I have had regard to the totality principle and the need to avoid double punishment for what was one episode of reckless driving.
I have attempted to balance the objective gravity of this various serious offence, against the mitigating factors in light of the relevant sentencing principles.
Sentence
Mr Gray, for Charge 1, you are sentenced to a period of imprisonment of eight years and six months.
For each of Charges 2, 3 and 4, you are sentenced to a period of imprisonment of three years. The periods of cumulation will be as follows. In relation to Charge 2, I order that three months of that sentence be cumulative on the sentence for Charge 1, which is the base sentence. In relation to Charge 3, I order that three months of the sentence be cumulative on the sentence for Charge 1, which is the base sentence and on the other sentences for Charges 2, 3 and 4. For Charge 4, I have made it four months to reflect Ms Blackwood's more significant physical injuries sustained in the collision. So four months cumulative on Charge 1 and the other charges in this case. So that is a total of 10 months cumulative on the sentence of eight years and six months, which amounts to a total effective sentence of nine years and four months. I fix a non-parole period of five years and eight months which is as close as I can get to 60 per cent to reflect your age and my views as to your positive prospects of rehabilitation.
I will allow, and I will have the parties check this, but on my understanding, it is 45 days of pre-sentence detention to be deducted from your sentence administratively pursuant to s.18 of the Sentencing Act. Pursuant to s.6AAA of the Act, I indicate that but for your plea of guilty, I would have imposed a sentence of twelve and a half years, with a minimum of nine years.
Culpable driving is a serious motor vehicle offence.
There is a mandatory minimum disqualification period of two years. Your licence is cancelled and you are disqualified from obtaining a further licence for a period of six years.
Pursuant to s.89C of the Act, I find that you were affected by drugs at the time of the offences.
I will make the disposal orders sought by the prosecution for the:
a.201912-P-0068-0005 – Zip lock bag containing three tablets; and
b.201912-R-0005-0001 – Clear Plastic syringe plunger.
All right, any other orders Mr Dickie?
MR DICKIE: No, Your Honour.
HIS HONOUR: And do those figures - - -
MR DICKIE: Yes the figures accord with - yes, Your Honour.
HIS HONOUR: Yes. Mr Vassis, I have a media request for the defence plea submissions in this matter. Is there any reason they couldn't be released? They were almost read by Mr Toohey during the course of the plea I thought.
MR VASSIS: Is it sought to release the plea submission, Your Honour?
HIS HONOUR: Yes that's what is being sought.
MR VASSIS: No, I don't see anything sensitive in those materials, Your Honour, that the court ordered he - - -
HIS HONOUR: All right, in those circumstances, that document can be released, there being no opposition. All right, nothing else Mr Vassis?
MR VASSIS: Your Honour, just clarifying that disqualification period is six years and that takes effect from today?
HIS HONOUR: Correct.
MR VASSIS: Thank you, Your Honour. No, no other matters, other than that.
HIS HONOUR: All right. I thank you both for your assistance and I will now adjourn until Monday.
MR VASSIS: As Your Honour pleases.
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