Director of Public Prosecutions v Hague
[2021] VCC 381
•1 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01680
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB KERRY HAGUE |
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| JUDGE: | HER HONOUR JUDGE HOGAN | |
| WHERE HELD: | Melbourne | |
| DATE OF PLEA HEARING: | 26 March 2021 | |
| DATE OF SENTENCE: | 1 April 2021 | |
| CASE MAY BE CITED AS: | DPP v Hague | |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 381 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of dangerous driving causing death – multiple lapses in judgment comprising dangerousness in all of the circumstances, including failure to adhere to medical advice not to drive, aggressive and impatient driving and entering a median strip already occupied by other cars and accelerating onto a highway without an adequate view of oncoming traffic whom offender knew were entitled to travel at 80km/hr – offender’s car struck a motorcycle and the rider died at the collision scene – early plea of guilty and true remorse – discretion of mercy enlivened
Legislation Cited: Sentencing Act 1991
Cases Cited:Director of Public Prosecutions (DPP) v Weybury [2018] VSCA 120
Sentence: Total effective sentence of 5 years’ imprisonment with a non-parole period of 2 years and 6 months. s.6AAA statement: 7 years’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Thomas | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr S Tovey | Markotich Lawyers |
HER HONOUR:
1Jacob Kerry Hague, you have pleaded guilty to one charge of dangerous driving causing death which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are summarised in the prosecution opening, Exhibit “A”.
3On 13 October 2019, you were driving your Mitsubishi sedan in a westerly direction on Clyde-Five Ways Road, Clyde and, shortly before 4:00pm, arrived at the intersection with the South Gippsland Highway (“the highway”) intending to make a right hand turn onto the highway to travel north. Clyde-Five Ways Road is a relatively minor road which provides only one lane of traffic either way. It terminates at the highway to create a T-intersection, albeit that it joins the highway at an acute north-easterly angle. Drivers, like you, at the intersection with the highway are obliged to give way to all vehicles on the highway.
4The highway at the intersection has two lanes for southbound vehicles, as well a “merge right” lane to enable vehicles to make a right hand turn into Fisheries Road to the south of the intersection. The northbound and southbound carriageways of the highway are separated by a grassed central median strip which has a break in it at the intersection. There are two northbound lanes, as well as a right hand turn lane to enable vehicles to turn into the break in the median strip which provides a refuge area prior to entering Clyde-Five Ways Road. The speed limit for vehicles travelling through the intersection on the highway is 80 kilometres per hour.
5When you arrived at the intersection you stopped prior to entering the highway to wait for two vehicles which were turning right into Clyde Five-Ways Road. In front of you there were two vehicles stationary in the break in the median strip. One was a black Holden Commodore sedan driven by Mr Lazarovski. He was waiting to turn right in order to travel north on the highway. The other was a white Skoda sedan driven by Mr Khullar. He was stationary and waiting to turn right across the southbound lanes of the highway into Clyde-Five Ways Road.
6You failed to yield right of way to Mr Khullar and entered the highway. You crossed the southbound lanes and drove into the break in the median strip in between Mr Khullar’s vehicle and Mr Lazarovski’s vehicle, that is, you pulled up on the left (passenger) side of Mr Lazarovski’s vehicle in circumstances where he was clearly waiting to turn right. There were no markings on the road surface or signs to indicate that it was permissible for two lanes of traffic to turn right from the break in the median strip into the northbound lanes of the highway.
7In his statement to police, Mr Lazarovski stated that he did not have a clear view of the northbound lane closest to him, so he did not move and was waiting until it was safe to do so. He stated that you looked aggressively at him and were shaking your head encouraging him to move forward and appeared to be in a rush, but he did not move because he could not see the oncoming traffic. Mr Khullar described in his statement to police how you were waving your hands in the air, forcefully, trying to make Mr Lazarovski move into the northbound lanes. Mr Lazarovski stated that your vehicle was stopped at an angle to your right and you looked over your left shoulder in the direction of the oncoming traffic for a couple of seconds and then drove forward. He stated that you did not look for long and, as soon as you drove forward into the northbound lane closest to him, you collided with a motorcycle.
8The rider of the motorcycle was Mr Stephen Troman. He had been travelling in the northbound lane of the highway nearest to the right hand turn lane for vehicles intending to enter Clyde Five-Ways Road. The collision was catastrophic. Mr Troman’s motorcycle collided with the passenger side doors of your vehicle. Shortly afterwards, Mr Troman died at the scene from injuries received in the collision.
9At the time of the collision, the weather was fine and visibility was clear. An assessment of your vehicle and Mr Troman’s motorcycle did not reveal any faults or failures that may have contributed to the collision.
10Detective Sergeant Robert Hay, collision reconstruction expert, inspected the scene and investigated the collision. He stated that drivers, like you, turning right into the northbound lanes of the highway had approximately 200 metres of sight south along the highway. He said that he could not explain why you failed to give way to the motorcycle.[1] Mr Hay was unable to calculate the pre-collision speed of the motorcycle as its forks were broken in the collision. However, he noted that there was no evidence that it had been travelling above the speed limit of 80km/hr. Witnesses to the collision stated that Mr Troman’s motorcycle appeared to be travelling safely and not exceeding the speed limit. There is no suggestion that either yourself or Mr Troman were affected by drugs or alcohol.
[1]Statement of Robert Hay dated, 31 January 2020, Depositions page142
11Following the collision you were able to get out of your car without assistance. Witnesses at the scene offered to call an ambulance for you but you declined. Several witnesses commented that you stated that you did not see the motorcycle. Mr Lazarovski stated that you told him that you had just finished work and were on the way to the hospital. He said you said something along the lines of you not feeling well and something to do with your chest.[2]
[2]Statement of Mr Lazarovski to police, dated 18 October 2019, Depositions, page 51
12Earlier on the day of the collision, at approximately 11.00am, you had consulted with a general practitioner, Dr Manikam, at Duff Street Medical Clinic in Cranbourne West. You had given her a history that three months previously you had had chest pain and been seen at the Emergency Department of Frankston Hospital. She noted that a left ventricular hypertrophy was suspected by clinicians at the hospital and you also noted that you had heart arrhythmia. Holter monitoring had been carried out, but you indicated to Dr Manikam that it had been normal and you had been advised to take Aspirin. At that time you had been given a referral for an echocardiogram, but had lost the referral. You told her that there was a family history of heart problems and ischemic heart disease. Your presenting problem was that you stated you had been having shortness of breath over the past two weeks and chest discomfort for the past three to four days, as well as orthopnoea (shortness of breath while lying down) for three or four days, as well as nausea for one week. You told her that you were an anxious person who suffered stress. Dr Manikam noted your blood pressure was 140/70 and your pulse was 68 beats per minute and regular. Air entry to the lungs was equal and clear, a cardiovascular examination revealed dual rhythm and no murmur and there was no raised jugular venous pressure. She wrote a written referral to the Emergency Department of Frankston Hospital, but you told her that you did not have ambulance cover and that your friend would take you to the hospital. She told you not to drive and planned a post-discharge review, and provided you a referral to a cardiologist for an echocardiogram, twenty-four hour heart monitoring and blood tests.
13You did not follow Dr Manikam’s advice. You drove from her surgery to your place of work, which involved selling homes which had already been designed, to clients who wished them to be built on new estates. You had had an appointment with a client the previous day, but had cancelled it because you were feeling unwell, and had rescheduled it for 12.00pm or 12.30pm that day. A work colleague noted that when you arrived at your workplace you stated that you were not feeling well and were only going to do the appointment and leave. The appointment did not conclude until after 3.00pm and he stated that he and another colleague had encouraged you to go home and get some rest. He stated that you appeared to be eager to get out of the office in a hurry and that you left at about 3.30pm, having said something along the lines of “I’m absolutely exhausted from this guy”. He stated that on this day you did not look “100 per cent”.[3]
[3]Statement of Andrew Bratina to police made on 24 May 2020, Depositions, page 36ꟷ38
14When interviewed by police on the evening of the collision, you told them that you had been suffering chest pain, and shortness of breath and dizziness for the past few days and that you suffer arrythmia and high blood pressure, which are congenital conditions in your family. I here interpolate that it is not disputed that following the collision you were assessed at hospital and found not to be suffering cardiac-caused symptoms. However, you told police that, on the previous night, your blood pressure had been 180 or 190 and had been sitting around that for at least a few months and had been very high, and that you had been concerned about having chest pains and things like that, and were really worried that you were having a heart attack, and had been taking Aspirin since you had attended Frankston Hospital a couple of months earlier. You stated that the previous evening you had woken up a couple of times in your sleep, frightened and short of breath, and that is why you had been to see the general practitioner that morning.
15You told police that the doctor had told you to go to the hospital, but after you left the doctor you decided to go to the appointment with your client because you did not want to have to cancel it again. You told police that, prior to going to work from the doctor’s surgery, you spoke with Sandra, who had tried to urge you to come home and go to the hospital, but you told her that you would see your client and come home, and go to the hospital later. You stated that, after you left the doctor, you were not having chest pains and wondered whether it might just be “in [your] head”, so thought that you would see how you coped in the next hour or so, but the appointment went longer than anticipated.
16You stated that, just before going into the appointment, you spoke by telephone to your partner, Sandra, and had an argument with her over where you had left the car keys for her, and had told her that you did not need that extra anxiety and stress right now. You mentioned to police that you had been reading up on various heart issues and, given your family’s history and signs and symptoms, you considered that there was something wrong with you, and the doctor had indicated that, with congestive heart failure, you could “just fall over and that could be it”.
17You went on to say that you were unable to really tell whether you were suffering periodic dizziness when you were driving to your work, but during the appointment with your client you were having chest pain on and off and were really dizzy, and had to excuse yourself and go around the corner and have five minutes to sort of collect yourself because you were really dizzy, and had a glass of water. You stated that, by the time your client left, you had been getting “on and off” dizzy spells and were a little bit dizzy before you left work, but waited for that to sort of calm down.[4]
[4]Question and Answer 108 of the Record of Interview.
18You described that after you left work and were driving home so that Sandra could drive you to the hospital, you thought you were sort of having chest pains on and off but could not remember whether you were having any dizziness. However, you pulled over to text your boss in order to tell him that you would not be coming into work the following day because you were going to have your cardiac condition checked out. You told police that you thought you were well enough to drive. You stated that you did not believe you were displaying anything that was immediately life threatening, you were suffering dizziness, but it was periodic. You said “so it was like I was getting very light headedness, nothing that would have impaired me from being able to drive myself to the hospital”.[5] Having read your record of interview, it appears that you were somewhat inconsistent as to the record of your symptoms leading up to the collision. You stated that you did not feel your driving was affected at all, although you did have chest pain a couple of times, but nothing consistent. You described it as erratic, in that “I get it really strong in my chest and then the next minute it would have gone mild for a few minutes”. You couldn’t put a pattern on it. You told police that, as you approached the intersection, you were not sure about the weather because you were not thinking about the weather. You stated “my mind was so concerned about my health. I was just trying to get myself to the hospital and was keen to get home, not speeding, but in a hurry to get home as soon as I could”.[6] You later told police that you had had trouble making observations of other vehicles at the time of the collision “not because of the windshield but because of the car obscuring it”.[7] I understand this to be a reference to Mr Khullar’s vehicle obscuring your view of the motorcycle as it approached the intersection. You went on to state that at the time of the collision “just – just out of nowhere, just hit this one car (sic) didn’t see anything coming. I looked. I looked before I got up to the intersection. I looked as I was in the intersection and I didn’t see anything”.[8]
[5]Question and answer 260 of the Record of Interview
[6]Questions and answers 305ꟷ322 of the Record of Interview
[7]Question and answer 382ꟷ385 of the Record of Interview
[8]Questions and answer 474 of the Record of Interview
19I note a witness, Mrs Weilbaecher, had been travelling in the eastern-most northbound lane of the highway. Prior to the intersection, she noticed two motorcycles in the lane to her right, both of which had their headlights on. The first of those had two people on it and passed her in the right lane. She stated that she took more notice of the second motorcycle, as it looked more beautiful. It was being ridden by a male and she described it as large and black, but not noisy at all. That motorcycle also overtook her, but she said neither of the motorcycles were speeding. They were cruising and just taking their time, like she was, and she thought they were driving safely. She stated that, as she approached the intersection with Clyde-Five Ways Road, she was in the left lane and the second motorcycle that had passed her was in the lane to her right, about one car length in front of her. She noted that both she and the motorcycle had slowed down, as the speed zone of this section of road is 80 kilometres per hour. She had observed the motorcycle brake and slow down as the rider approached the intersection. She stated at this time there was no traffic waiting to turn right from the highway into Clyde-Five Ways Road, but she noted a white car in the break of the median strip which was closest to her and a mustard-coloured car (the one obviously driven by yourself) next to it, positioned at an angle. She stated that, as the motorcycle reached the intersection, the mustard-coloured car pulled out into the right lane in which the motorcycle was travelling and collided with it. She grabbed the handbrake, because the motorcycle came across in front of her car and ended up on the left side of the road, partly on the verge. She stated that after the collision, the driver from the mustard-coloured car, a male aged in his thirties, came up to her and said “I didn’t see him”. She commented in her statement to police “There was no way you could miss this bike and not see it. Even though the bike was black and chrome it was so big you could see it”.[9]
[9]Statement of Jan Weilbaecher made to police on 18 October 2019, Depositions 83ꟷ85
20Mrs Weilbaecher’s husband was in the front passenger seat of the car. He stated that he saw your gold coloured sedan come from the right and stop in the centre median strip. In his statement to police he stated, “It only stopped there a moment and pulled straight out in front of the bike. The bike was maybe 2 car lengths in front of us by this point. I saw the bike didn’t even have time to brake and he hit the gold car just behind the front wheel or at the front wheel. I yelled at Jan to slam on the brakes so we didn’t crash into them. … If Jan didn’t slam on the brakes we would have hit him as well.”[10]
[10]Mark Weilbeacher, Statement to police made on 18 October 2019, Depositions 80-81
21In a plea on your behalf, Mr Tovey submitted that your offending represented a serious misjudgment or mistake in that you moved onto the freeway from your stationary position in the median strip in circumstances where northbound traffic would be expected to be travelling at the applicable speed limit of 80 kilometres per hour and where there was partial obstruction of your view by the white Skoda vehicle to your left driven by Mr Khullar. He noted your comment to Senior Constable Niven at the scene that, “I didn’t see him” and “I was turning right from Clyde-Fiveways. There was a car turning right into Clyde-Fiveways. I didn’t see him.”[11] Mr Tovey conceded that it was apparent from this exchange that your view of the closest northbound lane was partially obscured by the car which was waiting to turn right into Clyde-Five Ways Road.
[11]Statement of Leading Senior Constable Niven, Depositions 108
22Mr Tovey referred to a series of factors which may aggravate the seriousness of an offence of dangerous driving causing serious injury or death which had been identified by the New South Wales Court of Criminal Appeal in a guideline judgment of R v Juristic[12] and revised in R v Whyte[13]. This non-exhaustive list of factors was adopted by the Victorian Court of Appeal in DPP v Neethling.[14] Those factors are:
[12](1998) 45 NSWLR 209
[13](2002) 52 NSWLR 252
[14](2009) 22 VR 466
(i) extent and nature of the injuries inflicted;
(ii) number of people put at risk;
(iii) degree of speed;
(iv) degree of intoxication or substance abuse;
(v) erratic driving;
(vi) competitive driving or showing off;
(vii) length of the journey during which others were exposed to risk;
(viii) ignoring of warnings;
(ix) escaping police pursuit;
(x) degree of sleep deprivation;
(xi) failing to stop.
23Mr Tovey submitted that your offending was marked by the absence of these factors and, hence, your moral culpability for this offence was towards the lower end.
24Ms Thomas on behalf of the prosecution took issue with the characterisation of your offending as a misjudgment or a mistake. She opposed your counsel’s submission that this offending involved low moral culpability and submitted that it was “high end offending” for the offence of dangerous driving causing death.
25Ms Thomas correctly observed that the objective seriousness of this offending is not determined by referring only to a check list and identifying aggravating features that were not present in the particular case. Appropriately she referred to the Court of Appeal decision in Stephens v R[15] where in paragraphs [25] to [27] this point was clearly made. It is clear, as the Court stated in that case, that “both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.” The Court went on to state that “Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.”[16]
[15][2016] VSCA 121
[16]ibid paragraphs [26] and [27] and R v Van Boxtel [1994] 2 VR 98, 103-4
26Ms Thomas submitted that in any event (i) of the check list was clearly relevant in that the extent and nature of the injuries inflicted on Mr Troman caused his death. I here interpolate, with respect, that this cannot be an aggravating feature, as the offence you have committed involves as one of its elements that your manner of driving caused the death.[17] She submitted that (ii) was relevant in that the number of people put at risk included other road users and, (viii) was relevant in that you had ignored warnings, particularly that from your general practitioner earlier that morning who told you not to drive and to go straight to the hospital. She submitted that although a cardiac cause had been ruled out for your symptoms of chest pain and dizziness, the warning given to you by your doctor and the symptoms must have affected your emotional state of stress and agitation. Not only did you not go to hospital but you decided to drive to work against medical advice and engaged in a stressful meeting of some three hours’ duration. Having ultimately left work in order to finally go to the hospital to be assessed, you made a series of further bad decisions. These included moving from Clyde-Five Ways Road where you could have waited until it was safe to make a right hand turn onto the highway, but instead you moved across to the exposed position in the median strip and in doing so failed to give way to Mr Khullar in his Skoda vehicle whose position in the median strip blocked your view of northbound traffic. She submitted that you were in a precarious position between two turning vehicles and, rather than waiting for those vehicles to move, you were impatient and aggressive and the fact that you proceeded onto the northbound carriageway was indicative of your agitation and determination to proceed that way regardless of others’ safety. She submitted that you fleetingly looked to your left in circumstances where you could not adequately see all of the northbound traffic and moved onto a busy highway in circumstances where you were distracted and adversely affected by your emotional state and a demanding appointment with a client at work. For all of these reasons the prosecution submitted that your moral culpability for this offending was high.
[17] DPP v Weybury [2018] VSCA 120 at [26]
Assessment of the seriousness of offending
(a) It is not suggested that you in any way intended to cause the tragic death of Mr Troman. The charge to which you have pleaded guilty is that, by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, you caused the death of Mr Troman. The manner of driving a motor vehicle includes everything concerned with the control and management of the vehicle. In order for the manner of driving to be dangerous, it must have involved such a serious breach of the proper management or control of the vehicle that it posed a real danger to other members of the public who may have been in the vicinity. As I have stated, it is not necessary to prove that you intended to drive dangerously or were aware that your driving was dangerous to any particular road user. Your state of mind is only relevant insofar as it provides evidence concerning the circumstances of the offence. In order to be dangerous driving, the manner of driving must have created risks that significantly exceed the risks which are ordinarily associated with driving, and created a risk of harm which is not a fair or necessary risk of the road. In assessing the extent of the risk, the law says that one must consider both the likelihood of a collision and the seriousness of any likely consequences if a collision does occur.
(b) In this case, the immediate cause of Mr Troman’s death was your act of driving from the stationary position in the break in the median strip onto the northbound lanes of the highway, without having ascertained adequately that it was safe to do so. The evidence is that whilst your vehicle was on an angle towards your right, you looked to your left for a couple of seconds, but your view of northbound traffic was at least partially obscured by the presence of the Skoda sedan driven by Mr Khullar.
(c) The level of dangerousness of this act must be assessed in the light of all of the surrounding circumstances. These include the issue of whether you should have been driving at all at the time the collision occurred.
(d) The collision occurred on Sunday, 13 October 2019 at approximately 4 o’clock. It is plain from what you told police in your Record of Interview that you had been concerned about your health since, at least, the previous Friday because of symptoms of shortness of breath, chest pain and dizziness and that on the night prior to the collision you had twice woken up in a state of fright and short of breath. You had been investigated for cardiac symptoms a couple of months previously, but not followed up with a cardiologist to whom you have been referred. You knew that you suffered arrythmia and had been experiencing elevated blood pressure, and had been taking Aspirin since you had been reviewed at a hospital three months previously. You were aware that there was a family history of cardiac problems. You were plainly sufficiently concerned about your health to consult a general practitioner at approximately 11.00am on the day of the collision. She noted that you told her that you were an anxious person who had stress. She advised you to go to the Emergency Department of the Frankston Hospital and you told her that you had no ambulance cover. She advised you not to drive and she noted that you had said that a friend would take you to hospital. She provided you with a letter of referral to Frankston Hospital, as well as a letter of referral to a cardiologist, Dr David Chong, a request for an echocardiogram, 24-hour heart monitoring and blood tests;[18]
(e) You told police that after leaving the doctor’s surgery you telephoned your partner, Ms Sandra Hladni, and that she had urged you to come home and go to the hospital, but you felt compelled to attend an appointment with a client, with the intention of going straight to the hospital afterwards;[19]
(f) Colleagues at work observed that you were not well when you arrived there for your appointment, which was at 12.00pm or 12.30pm. The appointment was a long one which did not conclude until after 3.00pm and you told police that you had to excuse yourself during the appointment because you were really dizzy and you had a glass of water and came back and tried to “collect [yourself]”, and the dizziness stopped and you tried to conclude the appointment as quickly as you could. You also told them that, after your client left, you were experiencing dizzy spells “on and off” and that you were “sort of dizzy a little bit” before you left work and waited for that to “sort of calm down” and then left to go to Sandra’s family home in order for her to take you to hospital;[20]
(g) In the Record of Interview, when asked how you were feeling on the way home, you stated “Not good, no I’m concerned, very concerned. That’s why I was going to the hospital. Yeah”.[21] You told police that while you were driving home you were not having “any immediate life-threatening things that stopped [you] from driving”. You said initially you could not remember if you were having chest pains but then stated “I think I was having chest pains still and that was sort of on and off”. I have noted that work colleagues stated that you did not look well and, when you were leaving the office, you seemed to be in a hurry. You told police that, on the way home, you did not think you were having any dizziness, but could not remember. Further on in the Record of Interview, you seemed to indicate that while you were driving, the chest pains “were quite mild at the time so I thought you know if I just get myself to the hospital, I’m – I’m okay’”;[22]
(h) Between leaving work and the time of the collision, you pulled over on the Clyde-Five Ways Road to send a text message your boss to state that you would not be coming into work the next day. You went on to say that you believed that you were well enough to drive and your driving was not affected by your symptoms. You stated that a couple of times while driving you had chest pain. You described that it was “erratic … like I get it really strong … in my chest and then then the next minute it’s just you know mild. So for just you know it could be mild gone mild for a few minutes”;[23]
(i) You described your state of mind as you approached the intersection where the collision occurred as being such that you could not be sure whether it was sunny or overcast:
“To be honest my mind is – is not – not thinking about weather. My mind’s so concerned about my health. I’m – I was just trying to get myself to the hospital … I was keen to get home but not speeding but – clearly not speeding but um in a hurry to get home as soon as I could … .”;[24]
[18]Exhibit “K”
[19]Question and answer 242 of the Record of Interview, Depositions, page 184
[20]Questions and answers 108 ꟷ110 of the Record of Interview, Depositions, page 169ꟷ170
[21]Question and answer 265 of the Record of Interview, Depositions, page 188
[22]Question and answer 209 of the Record of Interview, Depositions page 191
[23]Questions and answers 304 ꟷ313 of the Record of Interview, Depositions page 193ꟷ194
[24]Questions and answers 315 ꟷ320 of the Record of Interview, Depositions page 195
(j) You were well acquainted with the intersection where the collision occurred, having lived in the area for some ten years and were aware that the speed limit for traffic on the highway at the intersection was 80 kilometres per hour. Although you stopped at the end of Clyde-Five Ways Road, prior to crossing the southbound lanes of the highway, you failed to give way to Mr Khullar’s white Skoda sedan, as he was waiting in the break in the median strip to turn right into Clyde-Five Ways Road;
(k) You moved across the southbound lanes of the highway to a position in the break in the median strip in between Mr Lazarovski’s vehicle and Mr Khullar’s vehicle and stopped briefly. Your attitude was aggressive and impatient in trying to get Mr Lazarovski to move from his position in the break in the nature strip onto the northbound lanes of the highway;
(l) CCTV footage from a property on the western side of the highway and from a camera in a bus which was travelling in the northbound lanes, shows there to have been a fairly steady stream of traffic in the northbound lanes shortly prior to and at the time of the collision. Indeed, a motorcycle (apparently ridden by one of Mr Troman’s friends), had passed through the intersection a very short time before the collision occurred;
(m) Prior to moving forward into the northbound lanes of the highway from the break in the nature strip, your view of northbound traffic was partially obscured by the position of Mr Khullar’s Skoda sedan and made more difficult by the fact that your vehicle was angled to your right. The collision occurred within a split second of you accelerating into the northbound lanes of the highway and you admitted that you did not see Mr Troman, even though he must have been almost entering the intersection as you commence to make your right-hand turn;
(n) In moving forward onto the highway, you overtook Mr Lazarovski’s vehicle on the left-hand side, when it was plain he was waiting to do a right-hand turn. The collision occurred in close proximity to Mr Lazarovski’s vehicle and other vehicles that were travelling north on the highway. In particular, Mrs Weilbaecher, who was in the northbound lane to the left of Mr Troman, had to brake heavily, including using the handbrake, in order to avoid becoming embroiled in the collision.
27Subsequent to the collision, a medical examination ruled out a cardiac cause for your symptoms, however you had been suffering physical symptoms which were clearly concerning you in the immediate lead up to the collision, and your conduct whilst in the break of the median strip shows you to have been in a heightened state of anxiety and, on your own admission, in a hurry to get home so that you could go to the hospital to be checked out.
28In these circumstances, I am satisfied beyond reasonable doubt that the stress and anxiety that you were experiencing, associated with the symptoms of chest pain and dizziness and breathlessness that you had suffered for some days prior to this event, and intermittently on the day of the event, coupled with your knowledge of a family history of cardiac issues and a concern that you may experience a cardiac event, was a very significant contributor to the way in which you drove at the intersection immediately prior to the collision.
29You had ignored your doctor’s warning not to drive and to go to the hospital, and had ignored your partner’s advice immediately after you visited the doctor to let her drive you to the hospital. Instead, you drove to work and subjected yourself to a lengthy and stressful appointment with a client, experienced further chest pain and dizziness, and whilst you were driving home from work in order to go to the hospital were sufficiently concerned about your condition to pull over and ring your boss to advise that you would not be attending work the following day, in circumstances where you had already taken off the previous day from work due to feeling unwell because of the same symptoms.
30I am satisfied beyond reasonable doubt that you were distracted by your symptoms and health concerns from fully focusing upon your driving and obeying the road rules. This lead to you entering a highway impatiently and without ensuring that you had an adequate view of oncoming traffic when you knew that vehicles would be most likely travelling at 80 kilometres per hour. You were plainly in a hurry to get to the hospital to be assessed and, in all of the circumstances, I consider that the likelihood of a collision was high. Further, the expected speed of 80 kilometres per hour with vehicles travelling in the northbound lane nearest to the break in the nature strip, made it highly likely that if your sudden movement into that lane resulted in a collision, serious injuries to another road user or users would occur.
31I do not consider your manner of driving to be in the highest category of culpability, like a person who is deliberately speeding or showing off, performing manoeuvres on a highway, as though engaged in some sort of spectator sport. However, the Court of Appeal has made it clear that it is unhelpful to simply categorise a particular offence as falling in a low, mid or high range of seriousness. That is because such an approach carries the risk of a sentencing court being attracted to refer to current sentencing practices for offences previously categorised in a similar particular range, thereby limiting the intuitive synthesis which must consider the facts of the particular case.[25] However, I have had regard to other sentences for this offence as providing sentencing yardsticks.
[25]DPP v Weybury op. cit. at [33-34]
32The gravity of your offending is that a person, like you, who was suffering symptoms of chest pain, shortness of breath and dizziness, no matter what the causation, should simply not be driving a car. You were not to know at the time of driving whether you had a cardiac event which, according to you, Dr Manikam had advised could happen suddenly so that you could “just fall over and just – that could be it”.[26] Your concern about your health, which in all probability was related to anxiety and stress, was playing heavily on your mind. You told police “as far as I was aware … something’s wrong with me”[27] and at the time of the collision your mind was so concerned about your health you were just trying to get yourself into hospital and you were in a hurry to get home.[28]
[26]Question and answer 247 of the Record of Interview, Depositions page 185
[27]Question and answer 246 of the Record of Interview, Depositions page 185
[28]Question and answer 319 of the Record of Interview, Depositions page 309ꟷ310
33The consequences of your offending have been profound and enduring upon Mr Troman’s family.
34Tendered at the plea hearing were four Victim Impact Statements from Mr Troman’s wife and three adult children.[29] I have no doubt that compiling these statements involved a painful and difficult task of trying to distil decades of memories and many complex emotions into a few pages. Each of the statements were deeply moving and, while it is not possible for me to do justice to the eloquence of each of Mr Troman’s family members, the courageous sharing of the thoughts and emotions contained within them have greatly assisted the Court in understanding the impact of this tragedy upon them personally and the extended Troman family.
· Mrs Dianne Troman writes of the deep sense of grief following the death of her husband of 43 years. She grieves for the loss of her “rock” whom she could always rely upon for conversation, companionship, love and affection. She misses the daily rituals that she shared with her companion of over four decades and his practical handiman skills which will now have to be done by a paid tradesman. At 63 years of age, she faces the loneliness of a future alone without the love of her life.
· Ms Samantha Elliott, Mr Troman’s eldest daughter, told the Court of her “fun loving, hard working, playful and straight forward” father and of the emotional toll upon her to recount stories to her young children so that the memories of their granddad do not fade. She also spoke of everyday occurrences, such as hearing a song, having a profound emotional impact upon her and which makes her feel “drained”. As a single parent, she relied upon her father’s talents to help her in the garden, fix cars and general home maintenance. She will feel the financial impact of her father’s absence keenly.
· Ms Keri Burnell, Mr Troman’s youngest daughter, expressed the sadness of experiencing some of life’s biggest milestones in the absence of her father, those of starting a young family and owning her own home. At the plea hearing, she spoke of the mental anguish caused by hearing of her father’s death during a course of IVF treatment. She also spoke of her mixed emotions when, some eight months after the collision, she discovered that she had indeed fallen pregnant. She described herself as being “over the moon” before the euphoria quickly turned to sadness, knowing that her father was not there to share the experience. She has become more introverted around friends and work colleagues and still suffers the raw emotional impact 18 months later.
· Mr Christopher Troman, Mr Troman’s son, described the profound sense of grief from having lost a close and tight-knit relationship with his father. He recalls the overwhelming emotions when trying to put words together to tell his young son and daughter that their grandad had died. He wrote of the role model that his father had been as “the perfectionist which [he tries] to emulate”.
[29]Exhibits “C”, “D”, “E” and “F” respectively.
35In carrying out the sentencing task, it is plain that the dangerousness and moral culpability must be assessed by reference to all of the conduct and circumstances of the case, including the circumstances of you, the offender.
36At the time of offending you were 34 years old. You are presently aged 36 years, having been born on 20 January 1985.
37You come before the Court with some criminal history relating to driving offences. Between 2006 and 2015, you had three appearances in the Magistrates’ Court for driving whilst authorisation had been suspended or driving whilst disqualified. On two occasions (2006 and 2015), you were fined and your licence was suspended for three months on the first occasion, and one month on the second occasion. In 2007, which was your second offence of driving whilst disqualified, you were given what was then a mandatory sentence for a second or subsequent such offence, namely one month imprisonment, which was wholly suspended for a period of 12 months.
38In addition, in February and April 2010, you received traffic infringement notices for exceeding the speed limit by 30 kilometres per hour but less than 35 kilometres per hour in the first case, and by 35 kilometres per hour but less than 40 kilometres per hour in the second case, which resulted in your licence being suspended for a period of one month and six months respectively.
39I note that the last prior offending by you (which was dealt with in the Magistrates’ Court on 5 May 2015) had been committed on 28 November 2014. Hence, there had been a period of approximately five years prior to the offending for which I must sentence you during which you did not commit any further offences.
40Whilst of some relevance, I note that your prior offending does not include any serious indictable driving offences. Nor does it include any offences whilst affected by drugs or alcohol. It would seem that since your last period of offending, you have matured in a stable ongoing relationship with your partner, Sandra, and together you have two children, a son who was born on 16 August 2016, and a daughter who was born on 13 May 2019. I note that your increased maturity is a factor mentioned in a reference from your mother, Lynette Pryor, and by inference in the reference from your partner’s parents, Mr and Mrs Hladni.[30]
[30] Character references of Lynette Pryor, dated 2 February 2021, and Srecko and Mirjana Hladni, dated 15 March 2021, part of Exhibit “5”
41Your counsel, Mr Tovey, stated that you were born in New Zealand and your parents separated when you were approximately six years old. Your father relocated to Australia where he re-partnered, and your mother re-partnered with your stepfather and they have been together for the last 25 years. When your were aged 12, your mother and stepfather moved the family to Australia in order that yourself and your three siblings could have a relationship with your father. You ultimately settled in the Cranbourne area and, after completing Year 12, immediately joined the workforce in various roles before eventually finding your way to a successful career in building sales. Although you began a career in real estate in 2008, you maintained a second job working for a cleaning company run by the father of your partner, Sandra. For several years you worked two jobs and, since October 2018, held your current position of selling homes through a large residential builder. There is no doubt that you were a hardworking and very family-oriented man at the time of this offending.
42Following the plea hearing, I carefully read or reread the material which had been tendered on your behalf. It is apparent from reading that material that, in any objective terms, at the time of committing this offence you had a number of stressors in your life:
· Your son was aged three years and two months, and your daughter was aged only five months. Your partner was suffering from post-natal depression and you were the sole breadwinner for the family at that time.[31]
· You had saved hard to purchase a house which was being renovated, which apparently included the removal of asbestos. During the renovation of your home, you had been staying for quite some months with the parents of your partner. You were out of your comfort zone, in the sense of the privacy of your own home, but it was helpful for Sandra in her state of post-natal depression to have the support of her parents during the day whilst you were away at work.
· It is plain that you felt something of a divided loyalty between your own parents (each of whom had separated and repartnered) and you battled to find an equal amount of time to spend with each of your parents.[32]
· You were working very hard in applying yourself to your job selling predesigned display homes in new estates. As I have previously mentioned, you were the sole breadwinner and anxious to provide for your family financially and complete the renovation of the family home. Obviously, you were concerned to conclude negotiations for a sale to a client on the day of this fatal collision.
· You are devoted to your wife and children and were juggling your onerous work commitments to try to spend as much time with them as possible, particularly given Sandra’s vulnerable psychological state after the birth of your daughter 5 months prior to the collision.
· As already mentioned, you were fearful about your increasing physical symptoms. You were suffering interrupted sleep, breathlessness, dizziness and chest pain after having suffered similar symptoms three months earlier and had been diagnosed with arrythmia and elevated blood pressure, and having a family history of cardiac episodes.
[31] Character references of Sandra Hladni, dated 17 February 2021, and Nicole Hladni, dated 14 March 2021, part of Exhibit “5”.
[32] Report of Mr Tatti, psychotherapist, dated 8 March 2021 (Exhibit “1”), at page 5 (albeit unpaginated).
43I consider that these stressors were significant background factors in you (then aged 34 years), feeling a heavy load of responsibility on your shoulders at the time of the offending, quite apart from the actual physical symptoms that you were experiencing on that day.
44Tendered as Exhibit “5” were a bundle of eleven character references of people close to you. The consistent theme of all of these references is of a dependable, hard-working family man with strong morals and values, who has a loving and supportive relationship with those close to him. All of these referees speak of your expressions of immense guilt and sadness over Mr Troman’s death.
· Your partner, Sandra Hladni, writes of attending upon you at the collision scene to find you distraught and in shock. She told the Court of your loving relationship with her and your two young children and how they idolise you and your unwavering support as she struggled with post-partum depression following the birth of your daughter five months before the collision. She speaks of the emotional decline you suffered following it as you dealt with your guilt of causing so much suffering to Mr Troman’s family and how you had endeavoured to deal with your psychological issues by attending counselling. She expresses her fear and vulnerability of being a single parent if you are imprisoned and the emotional, mental and financial toll this will have on her and the children. She states that, as she has only minimal income from part time retail work, the loss of your income will require the sale of the family home and she dreads the impact that that, along with your absence whilst in prison, will have on the children.
· Sandra’s sister, Nicole Hladni, told the Court of her observations of you as a caring family man. She stated that, at the time of the accident, you were doing everything possible to support Sandra, who was suffering from post-partum depression. You supported her and your young family by looking after your three year old and doing cooking and more, whilst also working full time.
· Your brother, Luke Hague, describes you as hard-working and goal oriented, as well as someone with a focus on self-improvement and a charitable mindset.
· The fiancée of your brother, Elizabeth Cross, speaks of her relationship with your entire family as akin to her own and how your offending has impacted upon everyone, including herself. She reiterates the sentiments that you feel the weight of your actions and feel genuine regret and sorrow.
· Your father, Kerry Hague, writes of his observations of your grief and the emotional distress that he experienced when you told him that you would gladly give your life if it could bring back Mr Troman. He confirmed this in oral evidence on oath. He also stated that he was not in a financial position to be able to pay the mortgage on your home if you are in prison.
· Your mother, Lynette Pryor, writes of you as a caring and supportive son, who assisted her during the death of her own mother. She shares in the consistent remarks that you are a kind and gentle person and that you are dedicated to your partner and children. She describes you as being horrified over Mr Troman’s death, as suffering deep remorse and expresses her view that you will never forgive yourself for it.
· Your older sister, Rebecca Thompson, describes the great relationship you have with her children as their uncle and how you share your love of animals and the environment with them. She writes of the shame and remorse you carry for what you have done and how tearful you became when speaking of Mr Troman’s death.
· Her husband and your brother-in-law, Simon Thompson, speaks of the weight that this tragedy has upon you and describes that your kind and confident personality has been “crushed with guilt”.
· A younger sibling of yours fondly recalls your respective childhoods and speaks of your ongoing support into adulthood as they confronted complex issues with their own sexuality and identity.
· The parents of your partner, Mr Srecko and Mrs Mirjana Hladni, note that since the collision, they have seen a transition from your “optimistic and cheerful” demeanour to becoming “withdrawn and quiet”.
· Your older sister, Rachel Reckerman, makes a similar observation as to your demeanour and how you had always prided yourself on upon being a pillar of strength for your immediate and whole extended family. She speaks of your expressions of immense guilt and writes of your distress over the burden that you have placed upon Mr Troman’s family and, also, your own family.
45Mr Tovey stated that, at the scene of the collision, you were observed to be obviously distressed with your hands over your head and, later, you were crying and sobbing after being advised that Mr Troman had passed away. Since then, your mental health deteriorated as you struggled with feelings of remorse and shame, as well as experiencing the after effects of trauma, which manifested themselves in nightmares and retriggering of symptoms of post-traumatic stress disorder, which apparently related to the death of your grandfather caused by a driver who was under the influence of drugs. This apparently occurred in New Zealand when you were approximately five years of age. As attested to in the character references, you became withdrawn, anxious and depressed and ultimately, on 14 December 2020, commenced regular counselling with Mr Mark Tatti, a clinical psychotherapist.
46A report from Mr Tatti was tendered as Exhibit 1. He noted that, when he first saw you, you had evidence of lowered mood, apathy, hypervigilance, social withdrawal and anxiety, and testing revealed a level of personal distress within the moderate to high range. He noted that your offending had been a significant trigger of past post-traumatic stress symptoms relating to the loss of your grandfather. He described you as a well-groomed, intelligent and considerate man, who engaged easily, sensitively and with insight. You reported disrupted sleep and dietary patterns and he considered there was clear evidence of mood disturbance and chronic anxiety within the significant range of psychological testing. He opined that the diagnosis typically attributed to your symptoms is that of an Adjustment Disorder with mixed anxiety, depression and trauma, which was complicated by a maladaptive coping ability in stressful situations.
47Mr Tatti stated that you had responded well to therapy and made obvious progress in relation to strategies for behaviour modification and some areas of social functioning. He considered you had gained insight into problematic emotional states contributing to anxiety, depression, self-esteem and loss of control. He also noted that you had frequently become emotional when speaking about Mr Troman’s death and had spoken openly about how you grieved for his family members having to cope with their loss. You also exhibited distress about how your family and extended family and employer view you, and the stress and worry you had caused to others. He considered your propensity for future offending to be extremely low.
48A report from Mr Jeffrey Cummins, forensic psychologist, dated 24 March 2021 was also tendered on your behalf (Exhibit “2”). He noted a history that, in 2014, you had reported symptoms of anxiety to your general practitioner and were prescribed medication which you believed to be either an antidepressant or anti-anxiety medication, but you only took that medication for a limited period of time. Subsequent to the collision on 13 October 2019, you had intermittently experienced suicidal ideation and some retriggering of the trauma of the circumstances surrounding your grandfather’s death. You reported feeling overwhelmed with feelings of regret, remorse, frustration, guilt and hurt over your offending behaviour. Mr Cummins recorded that, since the collision, you had never again driven through the intersection where the collision occurred and had limited your use of a motor vehicle to occasions when you thought there was no other alternative. He considered that your avoidance of the intersection, your negative emotions and thoughts regarding the collision, criticism of your role in the offending, hypervigilance when driving and sleep disturbance, were all symptoms which caused him to conclude that you had developed a Post-traumatic Stress Disorder in response to the collision. He also noted that on the Beck Depression Inventory self-report questionnaires, you were assessed as severely depressed. On the Depression Anxiety Stress Scale you were assessed as having symptoms indicative of severe stress, severe anxiety and extremely severe depression. On the Trauma Symptom Inventory-2, you had marked elevations on the scales measuring symptoms of trauma, including symptoms of negative intrusive thoughts, and there were elevations on the clinical scales measuring symptoms of anxiety and depression and suicidal ideation. Nevertheless, he stated that you did not present as being acutely suicidal and regarded yourself as being a psychologically-resilient person, albeit a worrier.
49He considered that given your current mental health, a prison sentence would be more burdensome, particularly as you regard yourself as a very moral person. He considered that you were genuinely grieving in relation to causing the death of Mr Troman and imprisonment would be additionally burdensome for you because of the age of your children and your partner’s history of experiencing post-natal depression, together with the apparent inevitability that the family home would have to be sold. He considered that these factors were such that there was a real risk that your mental health would significantly deteriorate if you were incarcerated. He assessed your risk of re-offending in a similar manner to be minimal. He expressed the opinion that you are likely to be a very cautious and prudent road user for the remainder of your life.
Conclusion in relation to mitigating factors
50Ms Thomas conceded that your plea has high utilitarian value as it was entered at an early stage and spared any witnesses having to be called for a committal. She also conceded that it had added utilitarian benefit as your indication of a plea of guilty was made during the time of COVID-19 pandemic restrictions which made it impossible to conduct criminal trials in the State of Victoria. Ms Thomas also conceded that you suffer true remorse. I accept those concessions and take those into account in mitigation of sentence.
51I must say that my impression is that you are riddled with remorse and guilt to an almost debilitating degree. This is well articulated in a letter of apology by you to Mr Troman’s family (Exhibit “3”), although the family have chosen, understandably, not to see or hear the contents of this. It is confirmed by your behaviour at the scene of the collision and the many testimonials as to the deep adverse impact of your grief for Mr Troman’s family. It is graphically illustrated by the statement to your father that if you could give your life so that Mr Troman’s life could be returned, you would do so. Throughout the reading of the Victim Impact Statements in court, you appeared to me to be a genuinely broken man, sobbing and distraught.
52An innocent life has been lost by your dangerous driving. Mr Troman was aged sixty-seven years, retired, and enjoying the fruits of his retirement by lawfully and harmlessly having been on a ride with a couple of friends who shared his love of motorcycle riding. Needlessly, his life was brought to an end by your offending, leaving in its wake terrible grief by all of Mr Troman’s family, as well as anxiety and distress in your family. Sentencing in these cases is a balancing exercise of some complexity.
53I accept that you are fundamentally a moral person who is very family-oriented, hardworking and decent. Sadly, a very significant percentage of people who come before the courts for causing the death of another on the road have previously led blameless lives. Unhappily, the toll of serious injury and death on our roads continues to be high. In sentencing for offences of dangerous driving causing death, the Court must denounce your conduct, place emphasis upon general deterrence and impose just punishment. These must be the principal sentencing objectives. It is important that people who are not vigilant concerning the obligations that come with the privilege of holding a licence, such that they deviate so seriously from the proper management or control of their vehicle as to pose a real risk to members of the public, must know that they will be appropriately punished. Your counsel has conceded that, in your case, the only appropriate sentence is a term of imprisonment comprising a head sentence with a non-parole period.
54Your manner of driving at the intersection of Clyde-Five Ways Road and the highway was a serious breach of the proper management and control of your vehicle at an intersection where the risks of potential collision with vehicles on the highway travelling at 80 kilometres per hour must have been known to you. In fairness, I must say that I regard this intersection as a problematic one. In my view, the layout of the intersection is such that it is eminently foreseeable that vehicles will encounter difficulty negotiating their way from the Clyde-Five Ways Road across the southbound carriageway in order to turn right onto the northbound carriageway of the highway. That degree of difficulty is likely to be high when, as on the day of this collision, there is a steady flow of traffic on the highway and no traffic lights which would compel traffic on the highway to stop in order to secure the safe passage of vehicles taking the route which you were taking on this fateful day. The layout of the intersection with these attendant difficulties cannot excuse your offending behaviour. However, I make the observation that, in these circumstances, the human frailty of impatience is more likely to come to the fore and, in your case, it was magnified by the background of stressors to which I have already referred.
55Whilst I consider that a person with your physical symptoms on this day should not have been driving at all, as human beings, we are all imperfect, and when under pressure, particularly from multiple stressors, the capacity to be diligent about the duty of care we owe to other road users as a driver can become clouded. As I have said, you behaved in a way which was very irresponsible in relation to your own health and in relation to the safety of other road users. However, I am moved by the plight of your partner, who has suffered post-partum depression and relied heavily upon you, and the fate of your very young children who must, by reason of the sentence I impose, be deprived of their father’s love, care and financial support for a significant period of time. There can be no price placed upon the precious life of Mr Troman. It cannot in any way be measured by the length of a term of imprisonment imposed upon you, but I do have an obligation to deter others from such serious irresponsible driving and impose just punishment. Having said that, I do consider that this is a case where, for the sake of your partner and young children, there is some basis for exercising mercy in the sentence which I intend to impose.
56I have already referred to your early and remorseful plea which entitles you to a substantial discount upon the sentence which otherwise would have been imposed. I accept that, although you made some rehabilitative gains in attending Mr Tatti for counselling, your psychological state as at the time of the plea hearing was such that imprisonment will be more onerous for you than for someone without your depression and anxiety and post-traumatic stress symptoms, particularly as you have never previously served an immediate custodial sentence. I accept Mr Cummins’ opinion that there is also a risk that your mental health may deteriorate in custody, particularly given the constraints made necessary by the COVID-19 pandemic. This includes the initial 14-days of isolation, the current ongoing limit on contact visits from family and friends, reduced out-of-cell hours and limited availability of rehabilitative programs.
57I should say that I accept that you have a history of diligent work and other prosocial values centring around your immediate and extended family. You have a significant network of support and I agree with both Mr Tatti and Mr Cummins that you are highly unlikely to ever offend in this manner again. I therefore regard your prospects of rehabilitation as being extremely good.
58On one charge of dangerous driving causing death, you are convicted and sentenced to be imprisoned for a period of 5 years.
59I direct that you serve a period of 2½ years’ imprisonment before becoming eligible for parole.
60I declare a period of six days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
61Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the total effective sentence would have been 7 years’ imprisonment, with a non-parole period of 5 years.
62The offence of dangerous driving causing death is a serious motor vehicle offence pursuant to s87P of the Sentencing Act. Thus, pursuant to s89(1), I must cancel your licence to drive and I do so for the minimum period of disqualification pursuant to s89(2)(a), namely, 18 months from today’s date.
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