Director of Public Prosecutions v Hallford
[2024] VCC 250
•7 March 2024
HER
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01712
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARCY HALLFORD |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2024 | |
DATE OF SENTENCE: | 7 March 2024 | |
CASE MAY BE CITED AS: | DPP v Hallford | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 250 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Dangerous driving causing death; Dangerous driving causing serious injury
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Neethling(2009) 22 VR 466; R vVerdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence : 4 years and 8 months imprisonment with a minimum of 2 years and 10 months before being elligible for parole, 23 days reckoned
Section 6AAA: 6 years imprisonment with a minimum of 4 years imprisonment before being eligible for parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Ms P. Marcou | Markotich Lawyers |
HER HONOUR:
1Darcy Hallford, you have pleaded guilty on indictment to charges of dangerous driving causing death and dangerous driving causing serious injury, these offences occurring on 22 January 2023.
2In sentencing you for your crimes, I am obliged to consider the maximum penalty for each of the offences that you have committed. Charge 1, dangerous driving causing death, carries a maximum penalty of 10 years imprisonment. Charge 2, dangerous driving causing serious injury, carries a maximum penalty of five years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
3The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 13 February 2024. This is an agreed document. It represents your acceptance of each of the elements of the offences to which you have entered your guilty plea as well as the factual basis on which I am to sentence. The contents will be referred to in my sentencing remarks. I have had recourse to the full document.
The offending
4On Sunday 22 January 2023, you had attended the Public Brewery, Croydon, for a family function with your partner, Amelia McAlister, your brothers Cameron and Rowan Hallford, your mother Melinda Ford, your grandmother and other relatives.
5At approximately 2.30 pm, you, Amelia McAlister and your two brothers left the function in a blue Volkswagen Golf R station wagon registered to your father, Andrew Hall. You held a current Victorian P2 Probationary Licence and were not authorised to drive such a vehicle as it had a power to weight ratio of 140 kilowatts per tonne in excess of the permitted 130 kilowatts per tonne for a probationary driver.
6You were the driver and Ms McAlister was seated in the front passenger seat. Amelia McAlister also held a probationary licence, as such you were driving without a full licence holder seated next to you which was also a requirement of your P2 licence.
7Your brother, Cameron, was seated in the rear passenger side and Rowan was seated in the rear driver side.
8At approximately 2.45 pm, you were observed driving at high speed at the intersection of Stintons Road and Knees Road, Park Orchards, by witnesses Lucy and Sophie Clark.
9Stintons Road, Park Orchards, is a two-way, two-lane, winding road, between Tindals Road to the west and Knees Road to the east. It is of a general east-west orientation with numerous left and right bends. The opposing lanes were divided by painted double white lines. The outer edges of the lanes were denoted by a single white fog line that ran along the bitumen edge. The fog lines abutted a grassed and treed elevation along the south side of the road and a falling grassed and treed embankment along the north side of the road.
10You accelerated west along Stintons Road, downhill from the roundabout at Knees Road and came to a right bend in the road, where Nioka Court intersected the road to the south. While attempting to negotiate the right bend, you lost control of the vehicle and the Volkswagen rotated clockwise onto the incorrect side of the road. The vehicle then rotated in an anticlockwise direction back into the westbound lane, before rotating in a clockwise direction onto the incorrect side of the road.
11The Volkswagen continued to rotate until the passenger side of the vehicle impacted two gum trees on the northern road shoulder. The vehicle rotated around the gum trees and came to a rest down the northern embankment, facing south, approximately 130 metres from the initial loss of control.
12Your driving was captured on dash camera footage affixed to the front and rear of the Volkswagen and was made available to the court as were photographs of the aftermath of the accident.
13The scene of the collision is one classified as semirural, with large residential properties and natural bushland on each side of the road. A 70 km/h speed zone applied. The road was dry, weather fine and visibility good. Traffic was light.
14There were no mechanical faults, failures or conditions that could have caused or contributed to the collision. You were driving at 109-134 kilometres per hour before you lost control of the vehicle. Your decision to speed remains unexplained. You have no memory of the accident.
15Passing motorists stopped to assist. This included your mother, Melinda Ford, who had been travelling several cars behind you.
16Police and paramedics attended the scene.
17Amelia McAlister had to be cut from the vehicle and was treated by paramedics but unfortunately sustained fatal injuries and died at the scene. At the time of her death, she was aged 21 years and was 11 to 13 weeks pregnant with your child.
18Your brother, Cameron, was aged 20 years at the time of the collision. He was assisted from the vehicle by members of the public. He was also treated by paramedics at the scene and conveyed to the Royal Melbourne Hospital. He sustained injuries to his pelvis and left leg. On later examination he was found to have complex unstable left foot fractures, left upper lobe lung bruising, a seat belt mark, a small abrasion to the lower back and a left scalp laceration.
19He required the suturing of the scalp laceration and, after conservative management failed for the left foot injury, underwent specialist orthopaedic surgery from 6 to 7 February 2023. According to Dr Schreiber of the Victorian Institute of Forensic Medicine, it was expected that even with surgery, complete healing and consolidation process would take an extended period and that other surgeries may be required to remove metal fixation devices or metallic foreign bodies.
20Your brother, Rowan Hallford, aged 18 years at the time, was also treated by paramedics at the scene of the accident. Whilst taken to the Alfred Hospital he fortunately sustained only minor injuries.
21You were cooperative with police at the scene. You were also taken to the Royal Melbourne Hospital and suffered injuries to your left shoulder and collarbone.
Offence gravity and victim impact
22In relation to the charge of dangerous driving causing serious injury the Crown case refers to the need for surgical intervention to mend fractures to Cameron’s foot by the insertion of metal plates which would require further surgical intervention to remove the plates. I was told that surgery did occur. No further medical information was made available in relation to the injury suffered by your brother, Cameron. It is conceded by the Crown that Charge 2, that of dangerous driving causing serious injury, is at the lower end of serious injury.
23It is conceded by you that your dangerous conduct, which relates to each charge, is at the higher end.
24Principles of general deterrence and denunciation must loom large in the circumstance.
25For dangerous driving causing death and the offence of dangerous driving causing serious injury, a court’s assessment of the dangerousness of the driving is informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise. It thus covers a wide range of driving behaviour.
26The accepted Crown case is that your driving was dangerous based on a combination of factors being:
(a) driving a vehicle that you are not permitted to drive because it exceeded the power to weight ratio;
(b) driving at approximately 40 to 65 kilometres above the speed limit; and
(c) in those circumstances, driving the vehicle and losing control of it on a road that has bends with three other passengers, therefore posing a real risk of death or serious injury to them, other road users and pedestrians.
27In DPP v Neethling(2009) 22 VR 466, the Court accepted that the following principles apply to sentencing for dangerous driving causing death:
1.General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2.A person who kills or injures another whilst driving dangerously is likely to receive a significant term of imprisonment.
3.The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4.A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
28Referencing item 4, this decision predates the provisions of s5(2H) of the Sentencing Act 1991 to which I will later refer.
29The court in Neethling also identified a non-exhaustive list of factors which may aggravate the seriousness of such an offence. These include:
(a) The extent and nature of the injuries inflicted.
(b) The number of people put at risk.
(c) The degree of speed.
(d) The degree of intoxication or of substance abuse.
(e) Whether there was erratic (or aggressive) driving.
(f) Whether there was competitive driving or showing off.
(g) The length of the journey during which others were exposed to risk.
(h) Ignoring of warnings.
(i) Escaping police pursuit.
(j) The degree of sleep deprivation; and
(k) Failing to stop.
30Subsequent decisions have added to these factors to include circumstances such the use of a mobile phone, driving experience and familiarity with the vehicle or terrain. None of these factors should be considered as a 'check list'.
31I accept that your particular case does not carry the too often hallmarks of alcohol or drug intoxication, or extended police pursuit.
32However, in your case you placed yourself, your partner and your brothers at obvious risk as informed by the catastrophic outcome of your driving on 22 January 2023.
33Sentencing submissions on your behalf refer to you being a confident driver with an extensive knowledge of cars. Whilst you have no memory of events the circumstances would indicate a degree of aggressive driving in your rapid acceleration and driving in a high-powered car at high speed on a single lane and winding road such that, even over a short distance, your accident occurred. This highlights perhaps the dangerousness of your driving. You did so in a 70 kilometre per hour zone which was signed.
34The Crown submit that you drove with the clear knowledge of Ms McAlister’s pregnancy and that is an aggravating feature of your offending. I heard submissions from each of the parties and received helpful written submissions. The Crown had particularised the circumstances in which you are said to have driven at a speed that was dangerous to members of the public and those circumstances caused the death of Amelia McAlister and serious injury to Cameron Hallford. The tragic death and serious injury are necessary elements of their respective charges.
35I am satisfied that the fact that you drove in the way as admitted by you, and that you did so with the knowledge that Ms McAlister was pregnant, elevates the seriousness of Charge 1 overall as part of her circumstance and the extent of injury to her.
36I do find your moral culpability to be at a relatively high level.
37The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
38Cameron and Rohan Hallford have chosen not to make victim impact statements.
39Fleur McAlister is Amelia McAlister’s mother. She read her victim impact statement to the court. She also provided photos of Amelia and an ultrasound of the child. From her victim impact statement, it is palpable that Ms McAlister has been deeply affected by her daughter’s death, as you would expect her to be. She speaks of having to leave work early, having difficulty concentrating and to there being times where she is simply unable to function. She anguishes over what she will not experience in her relationship with Amelia and her unborn grandchild.
40Amelia McAlister’s father, Brett McAlister has also provided a victim impact statement which was read to the court by the prosecutor. He speaks of losing a child as being the most devastating thing that he has gone through. Special occasions for him are now tinged with sadness because it cannot be shared with his daughter.
41Noreen Rowe, Amelia’s grandmother, has also provided a victim impact statement which was also read to the court by the prosecutor. She says she will miss her granddaughter for the rest of her life and that her heart is shattered to think that she will not see Amelia again.
42I take the contents of the victim impact statements into account.
43Not only were each of these statements read to the court but I was told that they had been read to you in advance of your plea hearing on 15 February 2024. The impact of your wrongdoing on others therefore cannot be lost upon you.
Plea of guilty
44In terms of your plea of guilty, the Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea.
45You had offered a plea of guilty to dangerous driving causing death at committal stage. The chronology before me indicates that there were ongoing discussions and negotiations between the parties until an agreement was reached and you were able to formally enter a plea of guilty on 23 January 2024. Obviously, you were only in a position to enter your pleas once an agreement had been reached and the facts to be alleged were settled. In that sense, your plea of guilty has been entered when you first were in a position to do so and can be considered to be at an early stage. I accept that you were always intent on resolving the matter.
46Your indication of your willingness to plead guilty has saved the court the time and expense of contested proceedings and importantly, witnesses of the need to attend court and relive obviously traumatic events.
47On the materials before me you have expressed remorse for your offending and I do accept that you are genuinely sorry, if not absolutely devastated by your actions.
48These factors will be taken into account in your favour.
Personal circumstances
49I now turn to your personal circumstances.
50You are now 23 years of age. You were born in Melbourne and grew up in the suburbs of Mitcham and Doncaster.
51I understand you to be the eldest of three brothers.
52One brother has attention deficit disorder, dysgraphia and dyscalculia and you believe that your other brother is on the autism spectrum.
53Your parents, Andrew Hall and Melinda Ford, remain together. Your father was a Metro train driver and your mother was a cardiorespiratory nurse. You describe your parents as heavy drinkers and that, as a child, you were exposed to family violence. Your father would throw things, punch holes in walls, smash windows and, on one occasion, you say that your father threatened you with a knife.
54Your father had been a witness to a suicide in the context of being a train driver. In 2019 he did get assistance and his alcohol use is no longer problematic.
55In spite of your difficulties, you describe having a good relationship with your family members and, until remanded into custody on 15 February 2024, you resided with your parents and your brothers. Your paternal grandfather also lives with your family, and you also have a number of pets.
56You attended Serpell Primary School in Templestowe and graduated from Templestowe Secondary College after completing Year 12. Between Years 8 and 12, you trained in basketball, practising before, during and after school and on weekends, playing approximately 30 hours per week. You qualified for the state basketball team. You completed four Year 12 subjects in Year 11 and passed VCE with a non-scored ATAR.
57You also participated in Scouts from the ages of five until 18, where you attended weekly and engaged in a multitude of activities, including voluntary contributions to the community. You report that Scouts provided a stable support structure which allowed you to foster great networks with a strong circle of friends. It was in this context that you met Amelia McAlister.
58You commenced a relationship with Amelia McAlister in November 2019. You described having a loving relationship with her. There were understandable difficulties along the way but you remained supportive of each other and, at the beginning of 2023, you both learnt of her pregnancy. You both remained resolute at being parents and settled into a solid relationship.
59In terms of employment, you started work as an apprentice mechanic at Ferntree Gully Nissan immediately after Year 12. Due to COVID restrictions, you completed your apprenticeship in four and a half years as opposed to the usual three years. You also worked at Volkswagen but settled at a private workshop in Lilydale. You commenced a management role and worked 60 hours per week.
60You have had struggles with your own mental health and reportedly experienced depression for most of your life. You have also suffered a variety of illnesses and have sustained a variety of injuries in the past.
Prior criminal history
61The criminal record admitted by you is part of your personal circumstances. It contains three entries of offending against the Road Safety Act 1986 and is not without its relevance.
62On 7 April 2019, you received a traffic infringement notice for a charge of exceed speed limit by 25 kilometres or more but less than 30 kilometres. Your licence was suspended for three months as a consequence.
63On 12 January 2021, you appeared at the Ringwood Magistrates Court in relation to a charge of driving a vehicle causing loss of traction. The facts of that offence were made known to me. You were placed on an adjourned undertaking of 12 months duration which included a condition that you complete a Safe Driving Program. No conviction was recorded. Apparently you did complete this program.
64These two matters would indicate that you were put on notice as to the risks of driving in a manner outside the privilege of holding a drivers licence and as to your responsibility to other road users, elevating the consideration of specific deterrence in your sentencing.
65On 28 June 2021, you were again placed on an adjourned undertaking for a period of 12 months by the Ringwood Magistrates Court for a single charge of use unregistered vehicle. That matter has less relevance, indeed perhaps no relevance, to the sentencing considerations.
66Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance to your sentencing exercise.
67It is also relevant to the assessment of your prospects for rehabilitation to which I now turn.
Prospects for rehabilitation
68As a direct consequence for your offending you spent two days in custody before receiving a grant of bail.
69I am told that you abided by bail conditions imposed.
70You were 22 years of age at the time of the offending and have limited, albeit relevant, prior traffic offences. There has been no further offending.
71You do not have any issues with drugs or alcohol and appear to be of sound intelligence.
72Reference material was also tendered on your behalf and I have had regard to the contents. Each referee has known you in a different capacity and is able to reflect on the person they know you to be.
73Yonit Chiat speaks of knowing you since 2017 when you became friends with his younger sister. You are regarded as an extension of his family. Mr Chait describes you as a passionate and hard-working person but also as being a kind, gentle and attentive friend. Mr Chait also notes your insight and remorse in relation to your offending. He believes that you understand the impact of your actions and that you are able to learn from your mistakes and even to educate others.
74Your parents provided a joint reference. They are heartbroken by the loss of Amelia who was very much part of your family and have found it difficult to reconcile your decision-making in January of 2023 with the young man they otherwise know you to be. Your parents describe you as empathetic, protective, caring and nurturing towards others. They have seen you try to deal with the profound loss to you in the death of Amelia and your child. Your parents describe you as a shell of your former self and observe you to be filled with remorse and regret and as willing to take responsibility for your actions.
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A reference from Jen Softley, Group Manager at Lilydale Service Group, confirms that she has worked with you since March of 2022. She describes you as an extremely hard worker - dedicated to your job as a leading senior mechanic. You are described as considerate and helpful to all consumers and colleagues and as never being too busy to help anyone in any capacity required. You spoke to
Ms Softley about your offending and she describes your sense of remorse, guilt and devastation as being palpable.
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A treating psychologist’s report dated 24 January 2024 authored by Mr Peter Hanley and a supplementary report dated 1 February 2024 have been tendered on your behalf. You have attended on Mr Hanley on six occasions between
30 October 2023 and 23 January 2024.
77You reported to Mr Hanley having auditory hallucinations from when you were aged five to six years. The voices make condemning remarks to you. More recently these have involved the voice of Amelia McAlister.
78You have also described being depressed for most of your life with prolonged feelings of low self-worth, thoughts of self-harm and of a pervasive sense of failure. You reported symptoms consistent with depressed mood associated with grief and trauma, including emotional numbing, unusual pain tolerance, feelings of worthlessness, and compensatory coping behaviours. You have been embarrassed about your mental well-being and your association with Mr Hanley is perhaps the first occasion you have revealed any of this.
79In more recent times you have distracted yourself with your work, doing 60 hours per week in the work environment.
80Mr Hanley recommended psychiatric assessment. He did see your acknowledgment of problems, attitude and motivation regarding treatment to point towards a good prognosis. In his supplementary report Mr Hanley indicated that you had made good progress in your treatment.
81I accept that you have made efforts to understand your own mental health, factors which contributed to your low mood, and to commence to deal with your grief.
82A forensic psychiatric report authored by Associate Professor Andrew Carroll dated 29 January 2024 was also tendered on your behalf and he gave evidence at your plea hearing on 15 February 2024.
83At the time of your attendance on Associate Professor Carroll on 25 January 2024 you were experiencing vivid visual post-traumatic flashbacks on a daily basis relating to the scene of the accident and were still experiencing distressing internal voices with derogatory content.
84You expressed both guilt and contrition in relation to your offending.
85You had found benefit from your sessions with Mr Peter Hanley.
86Your personality profile was suggestive of a shy, introverted young man, combined with a tendency towards risk-taking. You do not have a personality disorder.
87Associate Professor Carroll did not find evidence of antisocial behaviour, criminal attitudes or other factors suggestive of an antisocial pattern. Your risk of reoffending was rated as very low.
88You were diagnosed with persistent depressive disorder which, until recently, was untreated. This condition has been in existence since your teenage years. You also presented with post-traumatic symptomology directly related to your offending and resulting in a diagnosis of adjustment disorder with anxiety.
89Associate Professor Carroll did express concern for you in prison due to the interruption in your work with Mr Hanley and inability to access a similar level of psychological treatment. He was of the opinion that it was possible that the stress of going into custody for the first time, estrangement from family as a result and termination of your therapeutic work will negatively affect your existing conditions. Deterioration to the point of a major depressive episode and possible suicidal risk was certainly possible in his assessment.
90It is conceded that Limb 5 of the decision in R vVerdins & Ors (2007) 16 VR 269 has application. Limb 5 refers to 'the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.' I do take that into account.
91There do not appear, however, to be any barriers to your rehabilitation. Your prospects appear to be good.
92You are a young man with a supportive family, a good education, community commitment and a solid work history. You are fortunate to be well supported by your family who have rallied together over the past 12 months. You are part of a strong family unit and they provide you with support in your mourning and the loss of Amelia and your child.
93Associate Professor Carroll recommended that you continue to access Mr Hanley or another skilled psychologist. I encourage you to do this.
94You were relatively young at the time of your offending. Overall there is a basis to place some focus on your rehabilitation in your sentencing. There is a basis for a lengthy period of supported transition in your return to the community.
95Your assessed future prospects, combined with the horrific circumstances of your offending and its consequences for you in terms of your own loss, and the term of imprisonment which simply must be imposed, indicate that less weight should attach in your sentencing to the principles of specific deterrence and protection of the community.
Section 5(2H)
96Dangerous driving causing death is a category 2 offence under the Sentencing Act 1991. Section 5 (2H) of that Act requires the court to impose a custodial order unless a circumstance set out in paragraphs (a) to (e) of that subsection exist. This is not sought in your case and, in any event, your offending is such that a custodial sentence would follow.
97Both parties have referred me to cases said to be comparative to assist me with the sentencing task and I have had regard to each of those decisions. Statistics from the Sentencing Advisory Council were also provided.
98I am just going to check with each of you that there have not been any factual errors as I indicated I was likely to do.
99MS MARCOU: Only one, Your Honour. It's the maternal grandmother who resides with the Hallford family, not the grandfather.
100HER HONOUR: Thank you for bringing that to my attention. I will adjust that accordingly.
Sentencing
101Each charge is a serious motor vehicle offence pursuant to s87P of the Sentencing Act 1991 requiring the mandatory cancellation of your licence for a minimum of 18 months. In your case, and in relation to each charge, any licences held are cancelled for a period of three years commencing today.
102The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
103In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society.
104I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act 1991. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of totality and proportionality.
105You are a young man with a caring nature, a supportive family and enviable work ethic who was about to become a father with a person I accept that you loved. Your whole life was ahead of you.
106Amelia McAlister’s whole life was ahead of her too.
107Nothing in this decision is to trivialise what has happened. There is nothing that the court can do or say that offers repair. The sentence ultimately to be imposed is not a measure of Amelia McAlister's life or your brother’s health but a reflection of a number of factors I am required to take into account.
108Driving cases where lives are lost and changed forever are often cases where we are called upon to sentence otherwise good and decent people to imprisonment, such as the case today.
109I see no option if I am to apply sentencing principles that I have identified properly other than to sentence you to a term of immediate imprisonment. It must be long enough to properly reflect your moral culpability for the life taken and the injuries inflicted and to reflect the needs of general deterrence, just punishment and denunciation as well as the other matters to which I have referred.
110Darcy Hallford, on Charge 1, dangerous driving causing death you are convicted and sentenced to four years imprisonment. This is the base sentence.
111On Charge 2, dangerous driving causing serious injury, you are convicted and sentenced to 12 months imprisonment.
112Eight months of Charge 2 is cumulative on Charge 1, making a total effective sentence of four years and eight months imprisonment.
113I fix a period of two years and 10 months before you are eligible for parole.
114Twenty-three days are reckoned as having already been served.
115Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty you would have received a total effective sentence of six years imprisonment with a minimum of four years imprisonment before being eligible for parole.
116Thank you. Close the court until 2.15 tomorrow, thank you.
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