Director of Public Prosecutions v Handley
[2024] VCC 566
•3 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01132
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIESEL HANDLEY |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 May 2024 | |
CASE MAY BE CITED AS: | DPP v Handley | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 566 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McCarthy | OPP |
| For the Accused | Mr M Allen | Stary Norton Halphen |
HER HONOUR:
1Diesel HANDLEY you have pleaded guilty to one charge of Culpable driving causing death – this offence has a maximum penalty of 20 years. The offence is a Category 2 offence, so a custodial term must be imposed as it was not submitted that you fell into any of the statutory exceptions. Further, the offence falls under the Standard sentence scheme with a standard sentence of 8 years. Additionally I am required to cancel any licences you have, and disqualify you for a period of at least 24 months.
2You have also agreed to have dealt with by me and pleaded guilty to the following related summary offences:
(i)Drive whilst authorisation suspended 240 penalty units or 2 years; and
(ii)Commit an indictable offence whilst on bail 30 penalty units or 3 months Imprisonment.
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 22 February 2024 (Exhibit A) I was also provided with and referred to video footage of the incident, and collision scene and other relevant material including maps, VicRoads records and the collision reconstruction report.
4By way of summary, on 6 January 2023, you drove a car through a red light arrow at an intersection, failing to give way to a motorcycle ridden by Darrell CHEPSEBA, and you collided, causing his death. The collision occurred on the Burwood Highway at the intersection with Middleborough Road (the Intersection). At the time the Burwood Highway was a two – way, six lane divided road, with three lanes in each direction and a raised median in between, with tram lines. At the Intersection there was provision for two right turn lanes, with all lanes controlled by traffic lights. The speed limit was 70 km/h.
5You were driving a Commodore with no registration plates - the registration had been cancelled on the 19th of November 2017. You had however, obtained a single day unregistered vehicle permit through VicRoads, which authorised the driving of the unregistered car on the date of the offence. However, your learners permit had been suspended on 3 January 2023 due a traffic infringement notice relating to excessive speed. You were therefore driving whilst your licence was suspended and you were on bail for other matters.
6Darrell CHEPSEBA was riding his black and green motorcycle along the Burwood Highway. Other drivers who were travelling in the same direction as the motorbike, and were stationary at the intersection, observed their turning arrow to be red, and the light for traffic heading straight, to be green. Drivers travelling in the same direction as you, or in the opposite direction to the motorbike, observed both the turning arrow and other lights at the intersection as red.
7You were observed entering the intersection – this was so even though the lights were red. You appeared to approach the intersection cautiously, then to speed up quickly and erratically, as you turned right into Middlebrough Road. This was consistent with the dash cam footage. On the footage your car is seen to slow down for 3 seconds, and is stationary at the stop line for a further 5 seconds. You then cross the stop line, against the red arrow, and travel 30 metres through the intersection to where the motorbike collided with your car.
8Based on damage or marks to your front passenger door, that area was determined to the be the primary contact point between your car and the motorbike. Expert opinion regarding the incident indicated:
(i)your car was travelling less than 64 km/h;
(ii)There was a pre-impact tyre scuff mark from the motorcycle that was 10.2 metres long and essentially straight, consistent with pre – impact emergency braking by the motor bike;
(iii)The motorbike applied both front and back wheel braking, and was travelling between 82 km/h and 93 km/h at impact. At the point of visible skidding, the motorcycle was travelling at a minimum of 89 km/h.
9After the collision, the motorcycle came to rest 14.7 metres from the area of impact, and was extensively damaged. Mr CHEPSEBA was thrown from the motorbike, over the roof of your car, and came to rest adjacent the traffic light pole on the median strip between the lanes. Mr CHEPSEBA was 10.8 metres from the area of impact.
10You came to a stop 108 metres from the area of impact. The post impact speed and braking of your car could not be determined due to the absence of any scuff marks. At the time of the collision, the road was dry, it was light and conditions were clear.
11Police, ambulance officers and other witnesses tried to assist Mr CHEPSEBA – however Mr CHEPSEBA died at the scene. Later tests revealed no alcohol or drugs in his system.
12You remained at the scene of the collision and were arrested. A blood specimen was collected from you which was found to contain traces of cannabis – the amount found indicated past use of cannabis; however the timing of past use could not be estimated, given the large variability in the blood concentrations of THC and the metabolites following your use of cannabis.
13Professor DRUMMER opined:
“ … it is not possible to form an opinion whether you were measurably impaired at the time of collision. Nor is it possible to determine whether there was an appreciable risk of driving.”
14Your car was inspected and although it had some issues relating to unroadworthiness, none of those were regarded as contributing factors to the collision.
As to the Particulars of culpability (charge 1)
15You drove culpably by, failing unjustifiably and to a gross degree, to observe the standard of care which a reasonable person would have observed in all the circumstances. That is by driving through the red right turn arrow at the Intersection, against oncoming traffic and failing to give way to Mr CHEPSEBA’s motorcycle.
16The prosecution do not allege the cannabis detected in your body was a circumstance of gross negligence, nor that you were “under the influence” of cannabis when the collision occurred or that the cannabis in your body contributed to the collision.
17The prosecution also do not allege the unroadworthiness of your car was a circumstance of gross negligence, nor that the defects in the car identified during the mechanical inspection contributed to the collision.
18However, the prosecution do allege that the presence of cannabis and the unroadworthiness of your car are relevant to sentence in relation to the objective gravity of related summary offence driving whilst licence suspended, together with your prospects of rehabilitation.
Record of interview
19You participated in a record of interview and told police that you were aware that there were some issues with your car and had collected it from the impound yard. You commenced driving the car a short while after you had picked it up. You knew it was not registered but you had arranged for an unregistered vehicle permit that morning, on the VicRoads website operative for a day.
20You said you were familiar with the intersection as you grew up around that area – you initially maintained that the lights facing the motor bike were orange. During the course of the interview you gave different accounts as to your perception of the colour of both the arrow turn lights, and the lights to go straight ahead.
21You ultimately agreed that the arrow applicable to your turning lane was “definitely” red, and the light in the other lane (to go straight ahead) had just changed to yellow (Q273 – 277). You said you had slowed down (Q207), and wanted to turn right into Middleborough Road before the traffic started coming through and you were trying to beat the traffic. (Q217)
22These responses were relied by the prosecution not as to recklessness and your state of mind, rather as to your conduct being “grossly negligent” and as to the breach of the standard of care you owe to other road users.
23You admitted the collision was caused by “your actions” (Q674), it was “your fault” (Q675) and it was “because you ran a red light” (Q677).
Victim Impact Statements
24I received VIS from: Mr Chepseba’s sister, Valentine Kipyego, mother Darrell Kimutai Chepseba, and step father Kenneth James Heiwell
25Unsurprisingly they reveal the significant and devastating impact that the death of their brother, son and step son has had on all aspects of their lives and family unit. Expressions of anguish, anger and hopelessness are also expressed as is the impact of them living in close proximity to the scene.
26His step father notes that the family grieve doubly – first grief for the hole that is left in their own lives personally and individually. And secondly, grief for the promising future that was taken away from his step son, who will not see his beloved sister achieve her goals in life, or her getting married or her becoming a mother. He describes the utterly futile waste of his step son’s young and promising life.
27His mother is plagued by haunting nightmares trapping her in an endless cycle of grief and despair she concludes:
The journey of learning to live without Darryl is the most difficult path I have ever walked, a path marred by sorrow, longing and a profound sense of loss.
28Clearly he had a very close relationship with his sister, and had provided a strong support to her navigating peers and friendships in the country that they now call home. She notes:
I believe that I have been dealt an emotional blow to last me a lifetime ,,, maybe even a couple of lifetimes.. my bond with my brother was not just of blood, I lost a best friend, a carer and confidant… my friends and family have watched me languish in heartache daily and my heart breaks for my mum because she has lost a huge part of her heart
29As in many cases of this nature, there are tragic consequences and the impact on family of the death of a loved one in such circumstances is shocking and profound.
Personal circumstances
30I turn then to your personal circumstances and background.
31The following material was filed on your behalf:
32Reports from Patrick Newton Clinical and Forensic Psychologist dated 15 and 20 March 2024. He was requested to attend by the prosecution, and he gave oral evidence expanding on the material in his reports and was cross examined;
· Pre- Sentence Report Youth Justice dated 6 March 2023;
· Closure Report Youth Justice dated 2 November 2023;
· Report form Bob Ives Psychologist dated 17 June 2018 and
· Pre Sentence Report Youth Justice dated 23 November 2023.
33Additionally your counsel filed detailed submissions that incorporated extensive portions of your child protection history and professional assessments/opinions as have been documented in the relevant files. (“defence submissions”) I do not propose to repeat all of those details, rather these remarks should be read in conjunction with the defence submissions.
34I take all of this material into account.
35You were born into a deeply dysfunctional and traumatic family environment in July 2004 – you are currently aged 19 years. You are the third of 5 children. You and your siblings are what could be described as life time clients of the Department, with a notification made to authorities only days after you were born. There was continued and consistent monitoring by and involvement with the Department through your childhood and adolescent years, until you turned 18.
36The history set out in paras 9 and 10 of the defence submissions is very disturbing, revealing you being the subject of severe neglect both environmentally and emotionally from birth. The records chronicle ongoing parental drug use and violence, dysfunction, abuse and neglect. The state of the home was described variously as putrid, in a significant state of disarray and extremely unhygienic with all the children described as being malnourished.
37Your development was noted as compromised growing up in this environment with concerns expressed in your early years as to your behaviour. These reports were as early as before, and at the time of you attending kindergarten. In this background, was continued drug use by your parents, serious domestic violence and lack of co-operation by them with child protection authorities.
38Your mother passed away in 2011 from a drug overdose – this event did not change the chaotic nature of your home life. It is apparent you and your siblings had a number of different placements, though the intense instability and upheaval in your lives continued. Your father was placed in custody for a period of time, and you were placed with your siblings at a placement which was characterised by you engaging in heightened behaviour, low level criminal behaviour, school refusal and absconding. Reports of violence towards you on your father’s release from custody were noted. Ultimately you were placed on a custody to the Secretary order in 2018 when you were aged 14 years – that order remained in force until you were 18 years.
39There is clearly before me a proper evidentiary foundation for your disadvantaged background to be taken into account. What was in dispute was whether that evidence, in conjunction with the opinion of Mr Newton, was sufficient to establish a nexus or realistic connection between the offending and relevant background circumstances and your level of functioning, a matter I will address later.
40Continuing with your personal circumstances:
Education and employment
41Given this background you attended multiple schools and your education and development was highly disrupted. Your attendance was spasmodic, then very limited, and you finally did not return to school after September 2017 – you were aged 12 years. Apart from brief periods of work in a “kebab shop” and a factory, you have otherwise been unemployed.
Substance use
42Given this history it is unsurprising that you have engaged in chronic and severe drug and alcohol use since a very young age. I was informed that you commenced using alcohol at about 12, and moved quickly to marijuana and ice use – you have regularly used a variety of drugs since that time.
Criminal history
43You have a significant criminal history in the Childrens Court with numerous property, dishonesty, drug related and violent offences. I note that none of the dispositions for those matters included the recording of a conviction, and that you were placed on orders in the community – this is your first time in custody whether in the juvenile or adult system. You have shown that you have some capacity to engage with youth justice on relevant orders.
44You have outstanding matters alleged to have occurred in October 2022. These charges include possession of firearm and intentionally cause injury – they are listed for committal in June this year.
Relationships and child
45You have a child Dakota, currently aged almost 3 years, I was informed that you have video visits with her on a weekly basis since you have been on remand and that your brother occasionally brings her in to visit you. You were in a relationship with her mother for about 4 years , having met her when she was about 13 years.
46I was informed that she was in Court to support you, along with your brother and your maternal grandfather.
Current circumstances
47As indicated, this is your first period in custody whether juvenile or adult – you have been remanded at Fulham Correctional Centre. You have been engaged in full-time work in the nursery whilst in custody. You have also participated in some therapeutic counselling and programs though you are not currently engaged in any counselling or treatment.
Personality disorder
48Related to your background and your personal circumstances is the impact that has had on your mental development and level of functioning – this was well documented with specific reference to expert opinions and material in defence submissions.
49It is apparent that when you and your siblings were assessed in February 2018, that you all presented with symptoms consistent with abnormal emotional development and dysfunctional behaviour – that you had reliance on each other as a coping mechanism – that you would each meet the criteria for oppositional defiance disorder. This, it was noted was in the context of having experienced punitive, sadistic and unpredictable authority figure in your father.
50I note that since you have been remanded you have engaged well in therapeutic programs in an attempt to gain some understanding of the impact of your upbringing on your functioning.
51Mr Newton opined that in his assessment, your prominent issues have been with the disrupted development of your personality, which “was derailed from childhood by the pervasive neglect, abuse and instability you suffered.”
52You were diagnosed as suffering from antisocial personality disorder, pursuant to the criteria in the DSM-5. Mr Newton opined that your symptoms manifested the core features of this condition including: your “judgment is marred by impulsivity”; you fail to “adequately think through the consequences of your actions”; you experience considerably less behavioural inhibition than is normal”; you find risky situations more compelling and exciting”; you are prone to make impulsive decisions without considering their full implications” and “you are prone to act impulsively”. Mr Newton described “[t]he origin of these traits lying in the abuse and neglect you suffered from a young age, and the pervasive alienation from mainstream society and its mores which resulted”. Further, he regarded your condition as pervasive and becoming more entrenched, as its severity increases.
53It was submitted that based on Mr Newton’s opinion, these features reflect entrenched tendencies in your personality: displaying a profound failure on your part to develop and internalise a coherent sense of yourself in the world around you, and your place within society. That is, the personality disorder suffered by you provides the context not only for this offending, but also for the broader behavioural disturbances evident in your life to date.
54Further it was submitted that although Mr Newton noted that the elements of your condition were not sufficient to “act as a cause of your [offending] behaviour per se”, that your condition is “important in understanding your offending”. In other words, “the personality disorder suffered by you provides the context … for your offending”.
55Your counsel submitted that based on this opinion as a consequence of your disorder, – especially the features of impulsivity, behavioural disinhibition, and poor judgment –these were manifest at the time of the offending. That there is an “explanatory nexus” and “realistic connection” between your disorder (and the childhood deprivation and abuse from which the disorder stems) and the offending conduct, namely your gross negligence in the driving of the motor vehicle or the decision and action in turning against the red arrow.
56With that connection established, it was relevant to the assessment of both your moral culpability for the offending and the risk that you pose to the community. A similar issue arose in Hermann and I have been guided by the approach taken in that case.
57Your counsel submitted that your moral culpability for the offending was reduced by reason of two distinct but closely related factors, namely your traumatic childhood and deprivation, or the principles in Bugmy and second, your personality disorder, a condition that impaired your mental functioning at the time of the offending or the principles in Verdins. Some aspects of this submission were not in dispute.
58In respect of Bugmy, moral culpability of an offender may be reduced in both a general and specific sense. I accept that the evidence regarding your upbringing and the impact that has had on your development is such that your moral culpability for this offending, in a general sense, is less than that of an offender whose development was not so marred. The prosecution did not dispute that submission. I take that into account in assessing your moral culpability.
59The prosecution did not dispute that application of Verdins principles 2 and 5 – that your condition and functioning should have a bearing on the structure or kind of sentence imposed, and that your condition would be likely to make custody more burdensome for you and may serve to increase the severity of your condition. I take each of these matters into account.
60What was in dispute, and the subject of oral evidence from Mr Newton, was the establishment of the relevant connection or nexus for the application of Bugmy in a specific sense, and the application of Verdins principles 1,3 and 4. As has been authoritatively recognised, these principles concerning reduction of moral culpability, are closely related, and may converge when considering evidence that establishes the link or connection between the condition, or traits an individual possesses of that condition, and the offending. (see Hermann)
61The prosecution submitted that no such connection had been established on the evidence. As I understand the prosecution position, it was submitted that the offending related to the decision then actions by you in turning against the red arrow. That was a decision you made and you gave a number of reasons in your interview for doing so. That although the prosecution did not take issue with “the condition being operative” in making the decision to drive and more general decisions in the context of this offending or driving, given that you provided inconsistent reasons for making the turn in your interview with police, and the opinion of Mr Newton was based in part on your account, there was insufficient evidence to support Mr Newton’s opinion that your decision to turn was impacted by your condition.
62On questioning by me, counsel submitted that I should therefore reject that aspect of Mr Newton’s opinion.
63As I indicated in the course of the plea, I find that is an artificial analysis. As mr Newton said in evidence, the arguably inconsistent responses you gave are part of the manifestation of your condition.
64I accept that the evidence establishes an explanatory nexus between your childhood deprivation and upbringing with this offending. That characteristics or traits that you have as a consequence of that upbringing, were such as to provide part of the explanation for this offending – in those circumstances your moral culpability is reduced.
65Further, Mr Newton was clear in his opinion that your personality disorder was not the sole cause of the offending or your decision to turn right. However, your condition is such that it had the effect of:
(a) impairing your ability to exercise appropriate judgment;
(b) impairing your ability to make calm and rational choices, or to think clearly; and
(c) making you disinhibited;
66all operating at the time of the offence or you driving in the manner in which you did including going through the red arrow.
67I am therefore satisfied of the relevant causal connection in the Verdins sense such that your moral culpability is reduced and that general deterrence and specific deterrence to a limited extent should be moderated.
Youth
68I take into account your youth – the authorities recognise that it is generally accepted that an offender's youthfulness is a proper reason for extending leniency. A youthful offender may be immature, therefore more prone to ill-considered or rash decisions, and may lack the insight, judgment and self-control of an adult. Chronological age, of course, is not determinative, since age of itself does not conclusively establish immaturity.
69I am mindful that in cases of serious offending and matters like this involving the death of an individual as a consequence of the grossly negligent driving of another, that an offenders youthfulness may be given less weight than it otherwise would be in sentencing. I accept youth is a mitigating factor to take into account.
Plea of guilty – remorse
70I take into account your early plea of guilty – it was entered at the first opportunity. , Your plea is indicative of your acceptance of responsibility for your actions. There is a utilitarian value in your plea saving the cost to the community of running of a trial and contributed to the more efficient running of the Courts. No witnesses were required to give evidence and relive the traumatic incident.
71Your plea is also indicative of some remorse – in your record of interview you ultimately accepted responsibility and recognised the incident was your fault – you expressed an apology to Mr Chepseba’s family. The existence of remorse is also consistent with matters discussed with Mr Newton.
Rehabilitation
72In respect of your rehabilitation prospects the following are relevant:
· your conduct immediately after the incident, plea of guilty, remorse and acceptance of responsibility;
· Your relative young age;
· You have engaged in counselling and participated in work whilst you have been in custody;
73It was conceded that given your background and the complexity of your current level of functioning as a result, your prospects are guarded. The prosecution did not dispute that categorisation and I accept that is a fair assessment.
74Mr Newton comprehensively sets out his opinion as to your high and complex treatment needs relating to drug and alcohol, psychiatric or mental health functioning with a focus on individuals who have a similar background to you, and related practical living skills.
75As noted by Mr Newton:
the more Mr Handley can attend to the issues identified in regard to his substance use, disturbed background and personality disorder, the more negative influence can be contained, and the more he can be encouraged to participate in pro-social activities such as education and training, the more optimistic I would be that he would be able to engage with mainstream society upon his release. To achieve these goals the provision of long-term supervision, monitoring and oversight would be important.
76Clearly without treatment as recommended community protection and your high risk of reoffending are important sentencing considerations.
Objective seriousness
77The maximum penalty of 20 years, classification of the offence as Category 2 and the standard sentence of 8 years, is reflective of the seriousness with which parliament regards this offence;
78The offending occurred on a large busy highway – the risk to other road users was high;
79As a consequence of your gross negligence, a family have lost a young son and brother – there is a profound and ongoing impact on them, Mr Chepseba’s family;
80You were on bail and undergoing a deferred sentence imposed by the Childrens Court at the time of the offence;
81I accept that there were some features that are commonly present in other instances or examples of your offence not present here – your driving did not involve speed, alcohol or drugs, a police pursuit, you had no passengers, and you did not flee the scene. Of course the absence of aggravating features does not mitigate your offending, but assists in evaluating the objective seriousness of your offending.
82In respect of the driving whilst suspended: this offending was aggravated by you driving an unroadworthy car and having cannabis in your system.
Standard sentence
83As previously noted, culpable driving is a standard sentence offence. The standard sentence is simply one of the relevant sentencing factors to which the court must have regard. The court is required to assess the nature and gravity of the offending and the standard sentence is a “legislative guidepost” and does not impact on the instinctive synthesis in the sentencing process.
84The prosecution conceded that this particular example of culpable driving causing death, without diminishing the tragedy of the death of Mr Chepseba, falls below the hypothetical mid range of sentences for offences of this type.
Current sentencing practices
85Current sentencing practices are a mandatory consideration in sentencing and I have taken them into account. Further any such authorities are only relevant to offending for this offence committed or sentenced under the standard sentence scheme. Some guidance is obtained from those authorities and relevant statistics but ultimately each case depends on its own facts and individual circumstances.
Sentencing purposes
86General deterrence and denunciation are important sentencing considerations with this offence involving gross negligence in driving – those who engage in such behaviour on the roads, that is driving that fails unjustifiably and to a gross degree to observe a standard of care which a reasonable person would have observed in the circumstances of driving need to know such behaviour is criminal and that they will face stern punishment. Your prior driving and criminal history is also relevant to specific deterrence . Further, community protection is prominent, particularly so in your case given our personality disorder which is described as entrenched and escalating in severity and requires significant treatment. These must be balanced against matters in mitigation including your plea of guilty, youth and assessment of your moral culpability as described in these reasons.
87I want to emphasise in respect of this matter, the focus on you, your background, level of functioning and connection to this offending reflects no disregard of the impact on the victims or seriousness of this offending. Rather it is a function of my obligation to impose punishment which is just in all the circumstances and to deliver individualised justice.
88Your counsel conceded that the only appropriate disposition was a term of imprisonment with a head sentence and non-parole period. It was submitted that given the likely increase in the severity of your condition whilst in custody and your complex treatment needs requiring strict supervision and monitoring, along with other matters in mitigation, that a should impose a shorter than usual non-parole period.
89As to the non parole period given Charge 1 is a standard sentence offence I am required to impose a non-parole period 60% of any term imposed on that charge unless the Court is satisfied it is in the interests of justice not to do so. Given the matters raised on your behalf, particularly your background, level of functioning and the opinion regarding treatment needs, I propose to impose a shorter non-parole than is mandated.
Sentence
90In respect of Charge 1, culpable driving causing death, you are convicted and sentenced to a term of imprisonment of six years.
91In respect of the summary charge, drive whilst authorisation suspended, you are convicted and sentenced to a term of imprisonment of three months.
92In respect of the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of 7 days.
Pre-sentence detention and 6AAA
93I declare pre-sentence detention of 483 days, and pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a sentence of eight and a half years with a non-parole period of four.
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