Director of Public Prosecutions v Griggs

[2023] VCC 1516

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01522

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRACE GRIGGS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 29 August 2023; 11 September 2023
DATE OF SENTENCE:	20 September 2023
CASE MAY BE CITED AS:	DPP v Griggs
MEDIUM NEUTRAL CITATION:	[2023] VCC 1516

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Plea of guilty – Dangerous driving causing death – Offending at lower end of seriousness – Verdins – No prior convictions – Excellent prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 319(1); Sentencing Act 1991 ss 5(2H), 6AAA, 18, 89(2).

Cases Cited:DPP v Neethling (2009) 22 VR 466; Spanjol v The Queen [2016] 55 VR 350; Worboyes v The Queen [2021] VSCA 169; DPP v Lombardo [2022] VSCA 204; Peers v The Queen [2021] VSCA 264; DPP v Browne [2023] VSCA 13.

Sentence:                  Imprisonment for a period of 15 months with a non-parole period of 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G Haywood Ms J Malobabic	Office of Public Prosecutions
For the Accused	Mr B Newton	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Introduction

1Grace Griggs, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.

2You have no prior criminal history.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

Overview

4At about 5.55am on Friday 11 June 2021, you drove your black 2017 Mazda CX3 on the Mornington-Tyabb Road in a manner that was dangerous, colliding with a Ford Falcon utility and causing the death of Theodore Egan.[1]

[1] A pseudonym.

5Before the collision, you were travelling east on the Mornington-Tyabb Road behind a horse truck. The horse truck was travelling at around 65 km/h. You overtook the horse truck approaching a left-hand bend near an intersection with Stumpy Gully Road. Five seconds before the collision, you were approximately 130 metres from the area of impact. At that stage, you accelerated from 82 km/h to 102 km/h.

6At the same time a Ford was being driven by learner driver Dennis Egan[2] with his father Theodore Egan in the passenger seat. He was travelling west approaching the same bend as you.  You overtook the horse truck and entered the lane Dennis Egan was driving in. He reacted to that and moved to his right, towards the east bound lane.

[2] A pseudonym.

7You also began to move back towards the east bound lane. The front of your Mazda impacted the front passenger side of the Ford. The impact occurred near to the centre of the road but partly in the east bound lane with your Mazda being steered left and the Ford being steered right.

8At impact, you were travelling at approximately 88 km/h and the Ford was travelling between 22km/h and 47km/h.

Background

9At the time you were 20 years old. You lived in Mornington and held a Victorian probationary driver licence. On 11 June 2021, you were driving to work at BlueScope Steel in Hastings. You were due to start your shift at 7.00am. You had worked there since 24 May 2021.

10Theodore Egan was 56 years old. He was supervising his son’s driving.

11Dennis Egan was 18 years old. He held a Victorian Learners Permit, issued to him on 9 February 2021. He had completed about 41 hours of day driving and about 11 and a half hours of night driving. He was driving his father’s Ford to work.

12The Mornington-Tyabb Road is a two lane, two-way bitumen road that runs in a general east to west direction with a speed limit of 80 km/h.

13At the collision location, for vehicles travelling east, the road bends to the left just before the intersection with Stumpy Gully Road. The opposing lanes are separated by double solid white lines down the approximate road centre in the leadup to the intersection from both directions. The double white lines to the east of Stumpy Gully Road extend for about 77 metres from the centre of the intersection. The double white lines to the west of Stumpy Gully Road extend about 61 metres from the centre of the intersection.

14The northern side of the Mornington-Tyabb Road was tree lined. That limits the ability for people travelling east, near the bend, to see oncoming traffic.

15A single overhead streetlight was operational at the intersection. At the time of the collision, it was dark, there were some areas of patchy fog, and the road was damp.

Circumstances of the alleged offending

16On the day of the collision, Theodore and Dennis Egan woke up at about 5.00am and got ready for work. At about 5.30am, they got into Theodore Egan’s Ford. After checking over the vehicle, they left home. Dennis Egan was driving, and Theodore Egan was in the front passenger seat.

17You left your home around 5.40am. This was about eight kilometres from the collision scene. At the Moorooduc roundabout, you started driving behind a horse truck. You followed the horse truck on Mornington-Tyabb Road, past the Peninsula Link exit ramp.

18John Barbady was the driver of the horse truck. He was transporting horses from the Mornington racetrack to his employer’s stables. He travelled on Mornington-Tyabb Road about five to seven times a day. He approached the Stumpy Gully Road intersection and as he was coming up to the bend, he saw the lights of a vehicle travelling in the opposite direction. He looked in his side mirror and saw the lights of your vehicle. Your car was on the right side of the road and about in the middle to the back of his truck. When he first saw your car, he was driving at about 65 km/h. He took his foot off the accelerator and applied the brakes. He estimated that your Mazda was about 100 metres in front of him when the collision occurred.

19As he started braking, Mr Barbady saw the Ford swerve into his lane – the east bound lane. It is the prosecution case that this was Dennis Egan trying to avoid a collision. Mr Barbady states that he saw the Mazda continuing to travel in a ‘straight line’ impacting the passenger’s side of the Ford. He did not observe you trying to brake. He stopped the truck and provided help. He later assisted Police with a scene ‘recreation’ on 7 July 2021.

20Dennis Egan was familiar with the Stumpy Gully Road intersection. As he was approaching the intersection, he saw the illumination of headlights coming quickly towards him. When he first saw the light, it was illuminating the trees and he could only see one of the headlights of your oncoming car. He thought that vehicle might be going to turn south at the intersection.

21Your vehicle continued towards Mr Egan who then saw your two headlights. He states that at that moment he thought everything was fine and he kept driving for about a second. As you approached the intersection, your car was still completely on the wrong side of the road. Dennis Egan braked and turned to his right (roughly 45 degrees) to try and miss your oncoming car.

22You swerved back towards the eastbound lane and impacted the passenger side of the Ford, causing Theodore Egan to sustain fatal injuries.

23Cameron Edwards was driving west behind the Ford. He was about 10 to 20 metres behind the Ford as he got closer to the Stumpy Gully Road intersection. As Mr Edwards approached the intersection, he saw the lights of Mr Barbady’s truck coming towards him. Then he saw your headlights, to the left of the truck headlights, on his side of the road. When he first saw the lights, he estimated that he was about 40 metres from the intersection. He slammed on his brakes and saw the Ford swerve to the right and your car attempt to enter into its correct lane – the east bound lane. Mr Edwards swerved to the left to avoid a collision and impacted trees on the south side of the road.

Immediate aftermath

24Triple Zero was called by numerous people and emergency services responded shortly after the collision. Theodore Egan was pronounced deceased at the scene.

25Ambulance Victoria paramedic, Nathan Greenland, treated you. You told him that:

·        you were driving to work, heading towards Hastings, when you overtook a truck on the wrong side of the road;

·        you sped up to overtake this truck, but there was an oncoming car approaching heading towards Mornington. You tried to pull back into your appropriate lane, but the oncoming vehicle also pulled into your lane resulting in both cars colliding; and

·        you were travelling over 80 km/h and had not applied any braking prior to the collision.

26You were conveyed to the Alfred Hospital for observation and treatment of minor injuries.

27Holly Strickland arrived at the scene after the collision and assisted you. You said to her that you did not know what happened, you went to overtake, and the other car swerved into you.

28Dennis Egan was conveyed to the Alfred Hospital where he received treatment for a right collar bone fracture.

Police attendance and investigation

29Police officers from the Major Collision Investigation Unit attended and examined the collision scene. Test and surveys were conducted. Videos and photographs were taken.

30Both drivers provided blood samples which showed neither had consumed alcohol or drugs.

31The prosecution opening tendered on the plea details the findings of the Major Collision Investigation Unit in relation to the lead up to the collision which I will not reproduce in these reasons.

32Mechanical examination of your Mazda did not reveal any faults, failures or conditions that could have caused or contributed to the collision. The speedometer needle was locked and had a reading of approximately 102 km/h.

33The examination of the Ford driver’s side headlight showed evidence of it having been being illuminated when a force was applied to it. The Ford’s passenger side low beam fuse was blown. It could not be determined if this was a result of the collision, or if it was blown prior to the collision. There were no other faults with the lighting system at the time of the collision.

Record of Interview

34On Thursday 17 June 2021 you attended the Hastings Police station where you were interviewed by police. You told police that you met up with the horse truck at the Moorooduc roundabout on Tyabb-Hastings Road and followed it past the Peninsula Link. You said you were driving at 60 km/h behind the truck.

35In relation to the collision, you said the following:

·        after you passed the third roundabout, you double checked that it was a dotted line and that there was no oncoming traffic;

·        you did not see any signs;

·        you believed that it was safe and that it was a straight road, which is when you decided to overtake the truck;

·        that when you were a little more than halfway past the truck, you saw the oncoming traffic and made the decision that it would be safer to speed up to complete the overtake because you were too far forward to slow back behind the truck;

·        you sped up and once you had fully made it back into your lane, you let out a sigh of relief;

·        you thought you might have sped up to 80 km/h;

·        you thought that the oncoming driver had swerved and that is when you collided; and

·        you did not get to hit the brakes and just remember hitting the other car.

Nature and gravity of the offending

36The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by parliament, being 10 years imprisonment and its classification as a Category 2 offence. However, it is also an offence that is capable of being committed in a very wide variety of circumstances which must be assessed in order to form a view as to the gravity of the offending.

37In this instance, the dangerousness of your driving is particularised by the prosecution as being a misjudgement of the circumstances rather than momentary inattention. In your record of interview, you describe that the manoeuvre you took was as a result of you seeing the oncoming utility when you were halfway past the truck and then making the decision that it was safer to speed up and complete the manoeuvre rather than falling back into your lane.

38Mr Haywood, who appeared with Ms Malobabic on behalf of the Director of Public Prosecutions, submitted that the gravity of your offending is informed by: the fact that you were travelling at 102 km/h in an 80 km/h zone when overtaking; that you overtook on a bend in the road where the trees obscured the vision of oncoming vehicles; and that it was dark and the road was damp.

39Mr Newton who appeared on your behalf, with reference to DPP v Neethling,[3] highlighted the matters which are absent in this case including that there is no evidence of drugs or alcohol, no evidence of use of a mobile phone, that you were not sleep deprived and that there was no evidence of erratic driving before you made the decision to pass the truck. In summary, Mr Newton submitted that in all the circumstances, the gravity of the offending and your moral culpability fall within the lower range.

[3] (2009) 22 VR 466.

40As to your degree of responsibility, while you were familiar with the road and you did make a decision based on poor judgement, the fact that the deceased’s son made a split second decision to turn to the right to avoid a collision was a contributing factor in the collision. In Spanjol v The Queen,[4] a case of negligently causing serious injury where the victim was not wearing a seatbelt, the Court of Appeal outlined the principles that apply when considering if there was some contribution to the collision that would reduce the offender’s responsibility. The relevant consideration, applicable in this instance, is whether the offender is able to establish that there was an additional factor, outside the offender’s control, which was also a material cause of the serious injury.[5] In the circumstances, I accept that the Spanjol principle applies in this instance to a limited degree in relation to the movement of the victim’s vehicle that did contribute to the collision and the tragic consequences.

[4] [2016] 55 VR 350 (‘Spanjol’).

[5] Ibid, 352-3, [5]. See also, Guseli v The Queen [2019] VSCA 29.

41Thus in all the circumstances, in my view your conduct does fall towards the lower end of seriousness for an offence of this nature.

Victim impact statements

42A victim impact statement was prepared by Ms Roxanne Egan[6], the wife of the victim and mother of Dennis, which she read at the plea hearing. Ms Egan details the emotional pain she has experienced since her husband died. She describes how the devastating loss has affected her mental health and the difficulties her and her sons now face. She details how she and her sons continue to grieve the fact that her husband, their father will not be a part of significant life events. She remains concerned about the effects of the trauma on her son who was driving at the time.

[6] A pseudonym.

43Ms Egan continues to suffer post-traumatic stress, anxiety, depression and sleeplessness on a daily basis. She notes that she is no longer the happy, optimistic and strong woman she once was.

44I have taken her victim impact statement into account.

Personal circumstances

45You are 22 years of age and were 20 years of age at the time of the offending.

46You grew up in Sale before relocating to Mornington. You are the youngest of two children. Your father works at BlueScope Steel and your mother works at Australia Post. You had a stable and happy childhood, enjoying close relationships with your immediate and extended family members.

47You attended primary schools in Sale and Mornington, and then Mornington Secondary College. You struggled to make friends in primary school and were often excluded. As a result, you spent a lot of time on your own. You struggled academically but obtained your VSC after engaging with additional tutoring. You commenced a nursing degree after school but found it difficult to study and ceased your enrolment. You have expressed an interest in undertaking courses in veterinary nursing but are yet to enrol.

48You have been engaged in various forms of employment. At 14, you worked part-time doing pharmacy deliveries. You also worked at a family-owned café for three years. After leaving university, you gained employment at BlueScope Steel, driving forklifts and then working on the paint line. You found it hard being the youngest and only woman on the paint line and struggled to connect with your colleagues. After attending court in March of this year, you experienced bullying by some of the men on the line and were subsequently moved to the day shift, working five days on and five days off with an all-female crew. After the collision, you took personal leave at the recommendation of your psychologist before ultimately resigning because of the suicidal ideation and distress you experienced while driving to and from work. Your parents and other family members then drove you, but your distress did not alleviate. You have since avoided driving generally, particularly along the same road as the collision.

49You have never had a romantic relationship and reported that you struggle to make friends and bond with peers from a young age. You slowly lost contact with your friends, particularly after the collision, as they went on to complete university degrees, begin their careers and make new friends while you did not. You have been reluctant to socialise since the collision and rarely leave the house.

50You have never used illicit substances other than trying cannabis once at the age of 18. Prior to the collision, you would drink socially when out with friends but never to excess.

51A report was prepared by forensic psychologist Pamela Matthews and tendered on the plea. Ms Matthews reported that you are suffering from Dependent Personality Disorder, Major Depressive Disorder and moderate level Post-Traumatic Stress Disorder (‘PTSD’). Ms Matthews is of the view that the bullying and isolation you experienced in your adolescence – which manifested in low self-esteem, social isolation, sensitivity and low resilience – made you psychologically vulnerable prior to the collision.

52She opines that your Dependent Personality Disorder, which was present before the collision, causes a pervasive and excessive need to be taken care of, submissive and clinging behaviours and fear of separation. Your symptomology manifests in passivity, difficulty making decisions alone, an inability to voice resentful feelings and causal emotionality, which in turn elicits nurturance from others. As a result, you have become highly dependent on your parents, particularly your father, and you struggle to establish social relationships and assert yourself. Ms Matthews suggests that because of your diagnosis, a custodial environment is likely to exacerbate your symptoms of suicidal ideation, risk of self-injury and isolation.

53Ms Matthews reports that your PTSD and Major Depressive Disorder have occurred as a result of the collision and subsequent bullying and confrontations you have experienced through the media reporting of this case and from colleagues. She also reports that your symptoms have been exacerbated by court hearings and the anniversary of the collision.

54Reference letters from your mother, father and paternal aunt and an email from your employer were tendered on the plea. The letters described you as a calm, caring and friendly person who continues to experience the ongoing social isolation as a result of bullying in your adolescence. They detail how the collision caused you to become even more isolated and reclusive, dissociating from friends and colleagues and significantly relying on your parents support to undertake daily activities. The letters convey the decline in your emotional state and mental fragility since the collision, with your parents fearing that you may resort to self-harm. The email from your employer, which was sent at the time of your resignation, opines your positive work ethic and your kind and gentle nature.  

Sentencing considerations

55I first take into account your plea of guilty. I note that this matter was subject to a sentence indication hearing before me, resolving when you ultimately accepted the indication. While you conducted a contested committal hearing, your plea has saved the court the time and expense of a trial and demonstrates your acceptance of responsibility. Your plea carries additional weight which must be reflected in a further amelioration in sentence, as it was entered in circumstances where the effect of the pandemic still has an impact on the criminal justice system.[7]

[7] Worboyes v The Queen [2021] VSCA 169 at [39].

56At the sentence indication hearing a number of submissions were made on your behalf as to whether any of the s 5(2H) Sentencing Act 1991 (‘Sentencing Act’) exceptions can be established, specifically:

·Section 5(2H)(c)(ii): The offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or

·Section 5(2H)(e): That there are substantial and compelling circumstances that are exceptional and rare that justify not making an order for an immediate term of imprisonment.

57In relation to s 5(2H)(c)(ii), it is well settled that the hurdle set by that exception is higher than that which attracts the principles in Verdins. As to s 5(2H)(e) as was noted by the court in DPP v Lombardo,[8] the phrase ‘substantially compelling circumstances which are exceptional and rare’ refers to circumstances that ‘are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death’.

[8] [2022] VSCA 204, [71]-[72].

58In considering these matters I also considered the recent authorities of Peers v The Queen,[9] DPP v Lombardo[10] and DPP v Browne.[11]

[9] [2021] VSCA 264.

[10] [2022] VSCA 204.

[11] [2023] VSCA 13.

59Further, as was noted in Peers –

It is the necessary reality for offending of this kind that people with unblemished records, undoubted remorse, and with little or no prospect of reoffending, will receive an immediate term of imprisonment. That is the effect of making the charge a category two offence and a consequence of the need for general deterrence. However, other sentencing principles which serve to moderate sentence are not to be put aside as irrelevant. [12]

[12] [2021] VSCA 264, [73].

60Having taken in to account the materials tendered on your behalf, including the psychological reports of Ms Matthews and psychologist Daria Sizenko, I am not satisfied that that either of the exceptions relied upon are made out. Undoubtedly, this has been a devastating experience for you resulting in depression and PTSD and I accept that you suffer from a pre-existing Dependent Personality Disorder. As such, I am satisfied that the conditions you suffer from do enliven Verdins principle 5, which was also accepted by the prosecution.

61Turning to your prospects of rehabilitation, you come before the court at age 22 with no prior convictions. You do not have to grapple with any alcohol or drug issues, and you have the ongoing support of your parents who were present at your plea. In the circumstances, while your PTSD, Dependent Personality Disorder and Major Depressive Disorder will continue to require treatment, in my view, once you move through the criminal process, your prospects of rehabilitation are excellent.

62The primary sentencing consideration in a case such as this is general deterrence. In the circumstances, in my view, this case is a clear example where an otherwise safe and competent driver has driven without the required due care and attention in circumstances where the conditions at the time, while challenging, would not be uncommon. The clear message to be conveyed is that all drivers must remain alert at all times and make sound judgement when operating a vehicle. As to specific deterrence, for similar reasons outlined in relation to your rehabilitation, it carries little weight in this instance.

Sentence

63Ms Griggs, would you please stand.

64Grace Griggs, on Charge 1, dangerous driving causing death, you are convicted and sentenced to 15 months imprisonment. I direct that you serve 6 months imprisonment before becoming eligible for parole.

65Pursuant to s 18 of the Sentencing Act, I declare that 9 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

66Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 2 years and 3 months with a non parole period of 15 months.

67Pursuant to s 89(2) of the Sentencing Act, as the charge is a serious motor vehicle offence, any driver licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 18 months from today.