Director of Public Prosecutions v Hamilton, Ewan Leigh
[2013] VCC 563
•30 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00985
AT HORSHAM
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EWAN LEIGH HAMILTON |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 29 April 2013 | |
DATE OF SENTENCE: | 30 April 2013 | |
CASE MAY BE CITED AS: | DPP v Hamilton, Ewan Leigh | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 563 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Culpable driving – high speed – alcohol
Legislation Cited: Crimes Act s318
Cases Cited: DPP v. Clark [2005] VSCA 2; R v. Williamson [2009] VSCA 21;
Shields v. R [2011] VSCA 386
Sentence: Head sentence 6 years, NPP 3.5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle | OPP |
| For the Accused | Mr A. Marshall | Power & Bennett |
HIS HONOUR:
1 Ewan Leigh Hamilton, you have pleaded guilty to one count of culpable driving causing death; maximum penalty 20 years' imprisonment.
2 The circumstances of the offence were set out in the Crown opening which was read yesterday and which was not contested by your counsel. In brief outline, the offence occurred near Dooen on 21 December 2011, at about 9.50pm. You were working at Horsham and had had a couple of stubbies after work with a relative of the deceased, Sally Anne Trethowan. You went home and then you were contacted by her cousin and invited to go to the Dooen Hotel, as some form of thanks for some work you had been doing on a harvester that he owned.
3 The deceased, Sally Anne Trethowan was at that hotel that evening having a pre-Christmas meal with a number of her girlfriends. You were an acquaintance of her and you had done some work on her vehicle. You drove out there, at about eight o'clock, and then proceeded to be given a beer by her and then opened a tab at the bar and proceeded to have a number of drinks with her and with other people at the hotel.
4
Around 9.30pm, when everyone was leaving, including Ms Trethowan and her friends, you were all in the car park and that point you say she pestered you to have a ride in your car. One of her friends indicates that she did ask to have a ride in your car. You, at that point, had a V8 station wagon, 2004, with a 5.8 litre engine in it. You apparently offered to take her out just to the corner. The two of you took off and, unfortunately, you lost control, four kilometres out of Dooen on the Henty Highway. Police reconstruction indicates you were doing
204 kilometres an hour, lost control on a slight bend, oversteered, and the car ended up in a wheat field, totally written off, parts everywhere. You managed to get out of the car. She was trapped in the car and when the Emergency Services were called she had to be pulled from the wreckage, got to the Horsham Hospital and she was found to be dead at that point.
5 You gave a blood sample at the hospital and that blood sample was found to have a reading of .092 per cent. Dr M. Odell, a well known forensic medicine specialist, has indicated that reading back to your blood alcohol content at the time of the driving would have been about between .110 and .128 per cent, subject to some variation. He is uncertain as to the variation, but that is about the figure. His opinion was your driving skills would have been adversely affected by the effects of alcohol with a BAC in the range quoted above. You would have had a statistical risk of a crash more than ten times greater than if you had a blood alcohol of zero.
6
You gave a record of interview where you made some assertions about an oncoming vehicle causing you to go into the gravel. You attended at the police station on 11 January 2012 and said that you admitted you were driving the car, said you had had one stubby of beer of Carlton Draught at the workplace and only consumed two pots at the Dooen Hotel and were travelling at
100 kilometres an hour or at most 105 kilometres an hour. You resiled of course from what is said in the record of interview by your plea of guilty to this offence.
Assessing the seriousness of the offence.
7 The offence is put by the Crown in the indictment on the basis that you are guilty of culpable driving by driving the vehicle negligently, or whilst under the influence of alcohol to such an extent as to be incapable of having proper control over the said motor vehicle. Dr Odell confirms that. As far as negligence is concerned, the test for culpable driving is gross negligence, negligence that calls for criminal sanction.
8 In terms of gross negligence, it is necessary to characterise the extent to which your conduct fell below the standards expected of all drivers. Here, to drive at double the speed limit at night on a single carriageway is, on any measure, a gross breach of driving standards. Your driving gave rise to a high degree of risk that something untoward would happen: the extent of the potential harm was high. To drive at such a speed when at double the legal blood alcohol limit only compounds the seriousness of the offending here. Your counsel did rightly accept that this was a serious example of the offence.
9 Further, I regard your moral culpability as significant on the basis that it must have taken some tens of seconds for your vehicle to reach the 204 kilometres an hour estimate, the final speed estimate. In assessing your moral culpability, however, I do take into account the circumstances in which you came to be driving with Ms Trethowan appear to have been a last minute event at the end of that evening.
Impact of your offence.
10
I am required to take into account the impact of your offence on the victims. Your conduct has had a devastating impact on the immediate family of
Ms Trethowan, the extended family and on her friends. The Court cannot bring her back, but her loss and its impact must be and is recognised.
11 I was moved by the victim impact statement bravely and poignantly read by her sister, Ms Kristy Thomas, on her own behalf and on behalf of her parents. Your conduct has created an unfillable gap in a close knit happy family of Kristy Thomas, her husband, Clayton Thomas, the younger sister, Wendy, her husband, Andrew Cunnellan, and of course Richard and Denise Trethowan, who have travelled over from Wagga Wagga for the plea; as well as her nephews and nieces, her aunties, Ms Maitland and Ms Pillu, her friends from childhood in the Riverina, including one for whom she was going to be bridesmaid, and another one for whom she had been a bridesmaid, as well as friends and acquaintances she has acquired here in the Horsham area. I have read all the victim impact statements that have been tendered.
12 As I noted yesterday, your conduct has resulted in ripple effects through a number of families, the impact of which remains and goes to increase the seriousness of the offending here.
Personal circumstances and matters in mitigation
13 I turn to your personal circumstances and matters put in mitigation by your counsel. You are aged 29.
14 The prior convictions alleged against you are two, one for driving whilst unlicensed, and another for driving an unregistered motor vehicle. Your counsel indicates you cannot remember the circumstances of ever having attended in court for those two offences which occurred in 2003. Your counsel put, and I accept, that you were delicensed as a result of regulatory points. Your counsel accepted that you also have had some speeding infringement notices issued against you as late as 2006. I regard them as of minimal relevance, so you come before the Court as of good character with no relevant prior convictions.
15 Your personal background is canvassed in the report of Mr Cummins. You hail from the Mount Gambier area and have three other siblings. You left school after Year 10. Both you and your brothers have had developmental conditions, known as autism, which may explain why you did not conclude your schooling. Your parents are alive and have come to Court to support you and live in the south-west region of South Australia, where your older brothers are all in business there. As your counsel put, you come from a strong family background in that area and you have married into a close knit supporting family in the Wimmera area.
16 After leaving school, you worked on a dairy farm and then in an abattoir and you then moved to working in a venom supplies business in the Barossa Valley and obtained some trade qualifications in that area. In 2005, your close work mate was strangled by a pet python and this event impacted significantly on you. You gave up that job and moved to the Wimmera at Rupanyup where your wife's family live. The Court heard evidence from your mother-in-law, Ms Meszaros, as to the impact of that event and how the family had encouraged you to switch careers. You were able to do that and worked in Horsham and became a qualified diesel mechanic and I have in evidence a number of different trade qualifications and certificates that you have achieved. After this offence, you went into a period of depression, according to Ms Meszaros. You managed to get out of that and in recent times have established your own mobile business servicing farm equipment on farms in the area and you have been very successful and busy in that pursuit.
17
The Court heard character evidence from Salvation Army chaplain, Mr Ryan. He has known you for less than a year, but has 15 years experience in counselling and court related activity. He testified that you were able to confide in him about this offence and he found you a broken man. You indicated to him that not a day goes by without you thinking about the event and the deceased. He also gave evidence as to your reputation in your business. I have noted the good references from your former employer,
Mr Spicer, at Norwood Farm Machinery.
18 In further evidence this morning, Mr Ryan confirmed that you had expressed remorse, in the true sense, to him about this event in terms of empathy for Ms Trethowan and her family. He was adamant that this was genuine remorse. I accept his evidence on that point. I regard it as important in assessing your prospects of rehabilitation.
Your personal circumstances
19 You met your wife when you were 19. She, at that point, had three year old twins from a previous relationship. You married and have treated these children, who are now aged 13, as your own. The two of you have two children of your own, Noah and Molly. Noah has been diagnosed with autism and requires a full time aide at school. Your wife has had to cease work to care for him. The young child also apparently may have that disorder. You have been the sole breadwinner for the family, and the children are at local Catholic schools. It is clear from a letter from your wife and from the evidence of Ms Meszaros, and also a reference from Sarah Coville that you are a very dedicated father and husband.
20 Your counsel relied on a report from Mr Cummins, forensic psychologist. He found that you had untreated post traumatic stress disorder following the death of your work mate in the venom supplies industry. He also found that you now suffer from an adjustment disorder, with mild anxiety and depressed mood. He found that you do not have an antisocial personality. He also states that you express remorse for your conduct and says, "I have no doubt that you will live with the guilt of causing her death for the balance of your life." What Mr Cummins says is consistent with the evidence of Mr Ryan on the question of remorse. It is also consistent with the evidence of Ms Meszaros as to the perceived impact on you of this offence.
Other matters in mitigation
21 You have pleaded guilty. You indicated you would plead guilty to the offence, shortly prior to the commencement of this circuit, through your solicitor in Melbourne. You pleaded guilty on the first day of the circuit. You pleaded guilty to the offence of dangerous driving causing death at the committal hearing. You did not contest that committal. Your counsel submitted that your plea to the lesser offence was evidence of remorse, as well as taking responsibility for your conduct. You are entitled to the benefit of your plea of guilty to culpable driving, albeit that it was late. It has utilitarian value in that it has obviated the need for a significant trial. Your plea to the offence of culpable driving I also accept as evidence of remorse. Your earlier plea to a lesser offence is also evidence of taking responsibility for your action and of remorse. Those matters are all objective evidence of remorse.
22 In relation to the subjective evidence of remorse, there is the evidence of Mr Ryan and the report of Mr Cummins, as well as the letter from Ms Meszaros. Although in the record of interview and in your consultation with Mr Cummins you have sought to downplay the speed and the alcohol level, I accept that you are remorseful for your conduct and that was confirmed by Mr Ryan.
23 Mr Cummins states that you would benefit from psychological counselling. I also note that you have in recent times been placed on antidepressant medication and Ms Meszaros indicates that you may be suicidal. I will take those matters into account. Due to your psychological condition and your role as a breadwinner for your family and the distance from your family, imprisonment will impact. You will find imprisonment a greater burden than a single able bodied male and I have taken that into account.
Prospects of rehabilitation
24 I accept the submission of Mr Marshall that specific deterrence is of little weight here, given the impact of the offending on you, your lack of significant relevant prior convictions and your wife's letter to the effect that you do not have a drinking problem, which was confirmed in what the analysis of Mr Cummins. I regard your prospects of rehabilitation as very good. You have a very good work ethic, a strong commitment to your family and strong family support. You have shown in the past that you are able to pick yourself up from setbacks and I feel confident that will occur upon your release.
25 Mr Cummins suggested a disproportionately long period for which you will be eligible for parole. I do not accept that recommendation. The non parole period is the minimum period of imprisonment that will meet the sentencing objectives. While I accept that you will utilise the parole eligibility period to the benefit of the community, I do not propose to accede to his recommendation of a disproportionate period.
Purposes of Sentencing
26 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims, if any, including extended family of course. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. This type of offence is one that calls for public denunciation.
27 The components of specific deterrence are of lesser weight, but general deterrence has considerable relevance. As far as general deterrence is concerned, the penalty must be sufficient severe to cause others to resist in engaging in similar conduct or give considerable thought to what the outcome can be from drinking and driving and particularly driving at speed. The sentence must send a signal to the community regarding speeding and alcohol influenced driving, that speeding and alcohol influenced driving at a level well above double the limits in both cases is totally unacceptable. Your conduct on that night cost an innocent life, devastated a loving family and is to be utterly condemned. Yesterday I referred to comments made by the Court of Appeal in DPP v. Clark [2005] VSCA 2 at paragraph 12 and I incorporate by reference those comments, which I read yesterday - they apply here.
Sentencing submissions
28 Your counsel submitted that the offence called for a sentence of four years' imprisonment with a two year non parole period.
29 The learned Crown Prosecutor submitted that an appropriate sentencing range was a five to seven year head sentence with a minimum term of three and a half to five years. He referred to the case of R v. Williamson [2009] VSCA 21. That case refers in it to a number of other sentences for culpable driving.
30 As your counsel submitted, each culpable driving case has its own features. Other sentences imposed, however, must be noted. As was said in the case of Shields v. R [2011] VSCA 386 at paragraphs 41 and 42, Robson AJA, quoted from a High Court case:
"Past sentences are no more than historical statements of what happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. When considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles may be discerned." (original emphasis)
31 He goes on:
"The High Court of Australia has also held that sentencing should be systematically fair, and that it involves, amongst other things, reasonable consistency. The obligation to achieve reasonable consistency involves a consideration of past sentencing practice and this provides a reason why past sentences “stand as a yardstick for sentencing judges against which to examine a proposed sentence."
32 In sentencing you, I must have regard to the maximum penalty, as well as to current sentencing practices, as well as to the circumstances of the offences and your personal circumstances. Current sentencing practices can be seen in the cases such as those cited in Williamson and the range proffered by the prosecutor.
33 Also relevant to current sentencing practices is the Sentencing Snapshot prepared by the Sentencing Advisory Council No.111 of May 2011. That indicates that over the period 2005-06 to 2009-10 the length of imprisonment terms for culpable driving range from two years to ten years, while the medium length of sentence was five years and six months, meaning that half of the imprisonment terms were shorter than five years and six months and half were longer. The most common length of sentence imposed was five years or six years over that five year period.
34 Licence disqualification is also part of the punishment of this offence. The period of a disqualification is an additional punishment. The length of the period, however, should not be such as to inhibit your rehabilitation.
35 I have taken into account all the matters put by your counsel and applying relevant sentencing principles, the sentence of the court is as follows:
Sentence of the Court
36 On the count of culpable driving causing death, you are sentenced to imprisonment for six years.
37 I direct that you serve a minimum period of three and half years before you are eligible for parole.
38 I direct that all licences you hold be cancelled and you be disqualified for a period of four years and that you are not to be re-licenced except on an order of a magistrate.
39 Pursuant to s.6AAA of the Sentencing Act had you not pleaded guilty I would have imposed a sentence of seven and a half years' imprisonment with a non parole period of five years.
40 I order that you have served one day pre-sentence detention.
41 HIS HONOUR: I thank counsel for their assistance in this plea and, as I have said, I thank the family members from both sides for their attendance here in court today.
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