Director of Public Prosecutions v Harvey
[2023] VSC 80
•9 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0125
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| KENNETH NORMAN HARVEY | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2022 |
DATE OF SENTENCE: | 9 February 2023 |
CASE MAY BE CITED AS: | DPP v Harvey |
MEDIUM NEUTRAL CITATION: | [2023] VSC 80 |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Sentenced to 2 years and 6 months’ imprisonment with non-parole period of 12 months – Crimes Act 1958 - Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Ramsay | Office of Public Prosecutions |
| For the Accused | Mr T Fitzpatrick | Michael Benjamin & Associates |
HIS HONOUR:
Introduction
Kenneth Norman Harvey, on 11 February 2022 you pleaded guilty to one charge of dangerous driving causing death, whereby you caused the death of Robert Herbert. Mr Herbert died on 11 June 2018.
The maximum penalty for the offence of dangerous driving causing death is ten years’ imprisonment. The mandatory sentencing provisions currently in force do not apply to your case because your offending predated the enactment of those provisions.
Robert Herbert
At the time of his death, Robert Herbert was 61 years old and lived in Frankston with his wife, Jennifer Herbert. They had been married for 37 years. Mr Herbert was a secondary school teacher at a local college where he had taught for the previous 16 years. As it turns out, he had taken up cycling about two years before these events and he enjoyed regular cycling as a form of exercise, which he did five to six times each week.
Kenneth Norman Harvey
At the time of when your driving caused Mr Herbert’s death, you were 53 years old. You were employed as a truck driver by JJ Richards & Sons Pty Ltd, and had been driving rubbish trucks for that company since November 2011. The truck you were driving at the time was a 2007 model, three-axle, Iveco rubbish truck. The truck was owned by your employer and operated out of a depot in Dandenong South.
Circumstances of the offending
At approximately 10:35am on Monday, 11 June 2018, Robert Herbert was riding his bicycle along the Moorooduc Highway when he was fatally struck by the truck driven by you. Mr Herbert died at the scene.
The collision occurred on the highway in the Mornington area, in a rural setting, with trees lining the sides of the road. In the vicinity of the collision the highway is a two-way divided road, with two lanes in each direction. The highway is divided by a wide tree-screened median strip. The applicable speed limit at the time was 100 km/hour. The collision occurred on the left-hand shoulder of the northern bound lanes of the highway between the Mornington–Tyabb Road, and Bungower Road. At the time of the collision visibility was good. Photographs taken of the scene and tendered at the plea hearing showed that there were no obstructions to visibility as a result of either weather conditions, or physical obstructions. After the collision, the truck was inspected by a Victoria Police mechanic, who concluded that there was no fault with the vehicle which could have caused or contributed to the collision.
When your truck struck him, Mr Herbert was engaging in a recreational bicycle ride along the highway. You were operating a commercial collection run in the rubbish truck which had taken you from Dandenong South down the Mornington Peninsula, then to return to your depot. The evidence establishes that you swiped on at work at 4:09am that morning, thereafter commencing your run.
Your supervisor on the morning recalls listening to the encrypted radio channel available to the JJ Richards commercial bin collection drivers during which he heard you talking to a co-worker saying something along the lines of, “you should have been there. You missed out on a massive Saturday night. I had so much fun. I still don’t think I’m over it yet”. Your supervisor was left with the impression that you were talking about the great weekend you had, that you had partied hard on Saturday night into the Sunday morning, and that you had a few drinks and were still tired on Monday from your weekend activities.
At approximately 10:35am you were travelling north on the Moorooduc Highway when your truck collided with Mr Herbert, who was also riding north on the shoulder of the left-hand running lane. A Victoria Police accident re-constructionist attended the scene of the collision and examined it, as well as the physical evidence. He has expressed the opinion that you were travelling at a minimum speed of 94 km an hour at the commencement of tyre marks, shortly after striking Mr Herbert and his bicycle, at a speed of 75 km an hour. At the time he was struck, Mr Herbert’s bicycle was approximately 80 cm outside the fog line of the northbound lanes of the highway. On the other hand, the side of the truck that should be furthest into the road, was also 30 cm outside of that fog line, such that the entire truck was outside of the line. Furthermore, the truck was in left-hand drive mode at the time, it being the type of vehicle that can be driven from both sides of the vehicle. Thus, when you were driving this vehicle at the time of the impact, you were seated on the left side of the vehicle, if facing forwards towards the front of the vehicle. This was consistent with your role of collecting rubbish bins on the left side of your vehicle and so required you to sit on that side of the vehicle.
At 10:37am, shortly after the impact, you called 000 and requested assistance from emergency services. The call-taker asked you what happened, and you replied that, “a bike’s come out in front of me”. You were reported as being highly emotional at the time of that call as you attempted to direct emergency services to the location of the event.
The first police unit arrived at 10:49am. You were asked what had happened and you responded that, “I was driving around the bend. I saw him swerve out in front of me like he was missing a Coke can or something. I tried to swerve over but I couldn’t, because there was a car coming up beside me, and he hit the front of my truck. He didn’t go under the truck”.
At 10:52am, another police officer arrived, took possession of your mobile telephone, and transported you to the Frankston Hospital where a sample of blood was obtained from you. Later analysis showed that your blood contained methylamphetamine with .28 mg/l, and amphetamine with .03 mg/l. You also had some non-illicit medication in your system.
Police later interviewed you, during which you said:
I spotted this man riding his pushie. It was a beautiful day, why wouldn’t you? And he was really close to the bump – bumpity bits, which most bikes are. And I was watching him, I was in the left-hand lane so I could see him directly in front of me. I mean, visibility was 100% virtually, so I could see him. I spotted him, and there was about three cars on my right hand side. I’ve gone as close as I can, you know within safety – say six, 8 inches from the centre of the two lane highway, and keep me eye on – eye on the pushbike. And I don’t know – has just – I couldn’t go any further over and he is pretty close but I wouldn’t – I wouldn’t have gone anywhere near him if he just stayed there. And it was as if there was a Coke can or a big rock or something on the road, and he goes like that, and he’s come out from the bobbly bits, and probably a foot, foot and a half.
Further you stated:
I couldn’t go anywhere. There were people beside me. I couldn’t do anything. I didn’t see the bike hit the ground or anything like that. I slammed the brakes on and pulled the truck over so if he did land on the road up ahead I wouldn’t run over him, and then I went through the trees and the truck came to a stop.
Post-mortem examination
A forensic pathologist who examined Mr Herbert’s body attributed the cause of death to injuries sustained in a cycling accident. There is no dispute about the fact that the way in which you drove your motor vehicle caused his death.
Role of drugs and sleep deprivation
You were the sole occupant of the truck and did not receive injuries as a result of the events. Your ability to drive the truck was impaired in two important respects, the first being by drugs later detected in your system, the second being a considerable degree of fatigue due to a lack of sleep.
As to the role of the drugs in your system at the time of these events, Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine provided an expert opinion in relation to your ability to drive at the time of the collision. Dr Gaya stated that:
…the methylamphetamine level that was found was high. It is in the range of levels found in large numbers of people driving under the influence of drugs. It is at a level where significant numbers of drivers have been shown to be drifting across the centre line. It is hard to say whether impairment in this case was due to the stimulant effects of the drug, or exhaustion crash at the end of a methylamphetamine binge. However, it is quite possible that fatigue and sleep deprivation engendered in the days leading to the collision made the latter more likely. I am of the opinion that Mr Harvey’s driving ability was impaired by the detected drugs at the time of the index collision.
As to the role of sleep deprivation, police examined evidence of your activity and inactivity, based on accounts from recorded interviews, data retrieved from the interrogation of your mobile telephone, call charge records associated with your telephone use, witness accounts, GPS data acquired from the truck, and work records held by JJ Richards and sons. Using a summary of that evidence compiled by the police, Prof Matthew Naughton, head of the Alfred Hospital’s general respiratory and sleep medicine services, determined the total available periods in which you could have rested on the Friday, Saturday, and Sunday nights before these events. Prof Naughton has provided an expert opinion in relation to your ability to drive at the time of the collision, and states that:
...in the presence of illicit recreational drugs it is very likely that his sleep quality during the Saturday and Sunday nights would be poor. The collision reconstruction report indicates Harvey was driving erratically. This driving behaviour is the type commonly seen in sleep deprived, fatigue related crashes. The findings of the collision re-constructionist are consistent with a fatigue related crash. I have little doubt that Harvey was experiencing sleep deprivation at the time of the crash following his weekend activities. A reduction from his eight hours regular sleep to 6 hours average for three nights prior to the crash would contribute to a relative sleep deprivation. On the two nights prior to the crash, I estimate his sleep quality to be poor and of insufficient quantity, thus predisposing Harvey to fatigue conditions. I believe the crash was caused by considerable fatigue experienced by Harvey.
Accordingly, it is the prosecution case that the charge of dangerous driving causing death is established on the basis that the collision was caused by you driving the truck while impaired by drugs and while suffering from considerable fatigue. It was further made clear that the prosecution case is that the erratic driving commented on by Prof Naughton related only to your driving at the time of the crash itself and coming off the road at that time, there being no evidence of you driving erratically prior to that.
Findings on the cause of the collision
I am satisfied that the vehicle you were driving veered off the road surface and struck Mr Herbert and his bicycle. Your truck ended up completely off the road surface and well into bushes on the side of the road. There are marks on the surface of the bitumen, and also the gravel, which demonstrate the approximate point of impact with the bicycle. At that point your truck was not travelling in a straight direction and was entirely off the road surface. It appears to have veered off the road, and there are skid-marks about 20 metres in length, in a direction heading off the road. When your truck started to brake, one tyre was within the fog line, with the left-hand tyre being outside the fog line. The prosecution case is that from the point where the skid-marks started, the truck was braking, with it half off the road, and it continued to travel off the road. Further, it appears that the truck, just prior to impact, tried to swerve to avoid the collision, and it then drove quite sharply off the road and into the bushes.
With respect to the question of fatigue, it was pointed out on your behalf that before the impact occurred, you had had 2 x 15 minute breaks during your shift, as well as refreshments, and that you complied with a mandatory condition of breaks as imposed by the Road Safety Act when driving a heavy vehicle. It is not disputed that those rest breaks took place. It was further pointed out that the police evidence did not provide an estimate into your reaction times prior the vehicle skidding, it thus being not clear whether through fatigue you had woken up and seen the cyclist or gained your senses and have seen the cyclist and then swerved to the left. It was conceded that on the evidence of the police reconstructionist, there was a sharp deviation to the left, of which it was argued, demonstrated you were trying to avoid running over the top of the cyclist. It was acknowledged that Mr Herbert was “picked up and then thrown 38 metres”. It was conceded there were 20 metres of skid-marks prior to the impact, and that the point of impact on the truck was on the front, in the middle to the right side.
You participated in two records of interview with police, the first one being before the level of methylamphetamine in your system became known. During the second interview you told police that you had been out and someone had given you something which you thought was a drug. It was asserted by you in both interviews that you were driving within the fog line and that the bicycle swerved into the path of your vehicle, but due to traffic on the right side of your vehicle, you were unable to move to the right to avoid a collision with the bicycle. In essence, you maintained a position that the collision occurred within the fog lines, and it was because the bicycle had swerved onto the road proper that the collision occurred.
I do not accept the version of these events that suggests the bicycle veered into the path of your truck. I am satisfied to the required standard the evidence points the other way, establishing that your truck travelled across the left fog–line of the highway for a significant distance before the impact, and that the impact occurred when the front of your truck struck the bicycle as your vehicle continued its path of veering off the road surface, and into the bushes. I am satisfied that the point of impact was on the front of the truck between the middle and the right-hand side of the truck if facing forward. In those circumstances it was conceded, and I accept, that the truck did not clip the bicycle, but struck it directly on the front of the truck.
Victim impact statements
One victim impact statement was provided to the Court in this matter. Robert Herbert’s wife, Jennifer Herbert, spoke of the shock and grief experienced by her and her two sons at the death of her husband and their father. His death only increased the grief being experienced by another loss in their family the year before, and a subsequent illness on the part of Mr Herbert’s brother shortly after the news of his death became known. Mrs Herbert reflected on her marriage of over 37 years and her feelings of being unable to cope, being stressed about covering family finances, and maintaining her home. She said she often felt real anger when she thought of their two little granddaughters who would now not have a relationship with their grandfather, and her husband’s loss of enjoyment with them. She became resentful of others who had retired and were enjoying their lives together, in a way that she and her husband had planned for their retirement in the next few years. She expressed how she had become anxious, leading to a loss of confidence and patience. Further, she ultimately had to leave her teaching career in 2019, and began counselling treatment. The loss of her husband’s teaching salary, as well as her own, meant that there were significant financial implications, including her having to sell her family home which she and her husband had built and lived in since 1994. Since 2022 she has been forced to live from her savings.
In respect of the social impact of your crime, she only occasionally sees ex-workplace friends, and has not established any new interests or social connections. When with her grandchildren, she wishes her husband could be there to enjoy their grandfather. Finally, she described how her life has been so up-ended that she is still trying to envision her future now that she is alone.
Personal circumstances
As above you are now 57 years old. You have three siblings, one of whom supported you during the course of the plea hearing. The Court was informed that the balance of your family are supportive of you, but were unable to attend the Court hearing.
Your parents are still living and remain together. You described your father as authoritarian in nature, and you still maintain a relationship with him. You grew up in the Melbourne area. You were educated to Year 8 level and commenced an apprenticeship with a company engaged in patternmaking. You married in 1987, but regrettably it was not a happy marriage. You have one child of that relationship, who suffers from mental health issues, with the consequence that you yourself have had to resort to pharmaceutical treatment for depression issues, evidence of which was located in your system as a result of the collision.
You have had a lengthy work history, starting as a patternmaker, moving to cabinetmaking for a period of six years, a maintenance manager for 3½ years, another period of cabinetmaking, then becoming a driver in resource recovery for nine years, and then as a driver for JJ Richard and Sons for seven years. It was pointed out that this last period of employment has been without blemish, until the events of June 2018.
Counsel informed me that in 1987 you were the victim of a serious crime, along with a female acquaintance who was most seriously offended against.
You have had one other significant relationship between 2007 and 2011, from which you have a stepson who regards you as his father. A strong relationship is said to exist between you and your stepson.
Psychological report
A psychological report authored by Dr Anthony Cidoni, consultant psychiatrist, was provided to the Court. Dr Cidoni noted that you were unable to attend your first scheduled appointment due to suffering from a panic attack in your car and you interviewed later that day by video link. He described you as highly anxious and distressed throughout the interview process, depressed and tearful. He described your thought content as prominently depressive with post traumatic themes. He concluded you displayed no disturbance of perception or cognition, and you showed no evidence of delusions. You denied any current suicidal ideation.
You reported to Dr Cidoni that you have been depressed for most of your life, this being put down to aspects of your childhood, including a significantly physically abusive father, of whom you were scared of. You described long standing low self-esteem. Further, you described pervasive depression almost all of the time since June 2018, including a high degree of anxiety with panic attacks and daily thoughts about the incident with regular flashbacks and nightmares. Dr Cidoni noted you having reported to Jeni Kousoulinis, another psychologist, that you have persistent re-experiencing of intrusive and distressing memories of the accident, including disturbing images, thoughts and perceptions of events.
Dr Cidoni is of the opinion that you suffer from a dysthymic disorder, or chronic depression, which is long-standing, and exacerbated by a major depressive disorder and post-traumatic stress disorder occurring subsequent to your offending. He opines that your mental state is currently significantly compromised with a high degree of depressive and post-traumatic symptoms, and very obvious distress on mental state examination. Significantly, in relation to your mental state at the time of your offending, Dr Cidoni was unable to conclude that your dysthymic disorder was significantly operating at the time of your offending. Conversely, it appears that you were in good spirits for your offending. In respect of a prognosis, Dr Cidoni concludes that you have had a poor response to psychological medication treatment so far, partly exacerbated by the ongoing court process. He believes that your prognosis is relatively poor and would be significantly worsened by imprisonment. He regards you as entering prison with an already significantly compromised mental state. Furthermore, he is of the opinion that you would experience imprisonment as far more difficult than a person in normal health, it being almost inevitable that your mental state will deteriorate in custody, with an escalation of depression and significant risk of suicide, as well as a significant escalation in anxiety. Further, your poor coping skills would be further compromised in custody. Finally, Dr Cidoni noted that you are experiencing a significant degree of guilt, that you have demonstrated significant distress and regret in relation to the offending, and that he recommends psychological and psychiatric treatment into the foreseeable future.
A report from psychologist, Jeni Kousoulinis, dated 12 April 2021, was tendered. You have attended regular counselling with her from 20 August 2018, and as of the date of her report still experience significant levels of distress. She is satisfied that you were experiencing significant psychological distress meeting the criteria for a diagnosis of PTSD, with co-morbid depression. Essentially, her conclusions mirror those of Dr Cidoni, and confirm his findings. She concluded that your PTSD is likely compromising your decision-making and judgement, and that your prognosis remains guarded. She added that ongoing adjournments of your case have further exacerbated your anxiety, and is of the opinion that you have demonstrated some positive progress, with a positive prognosis for recovery. I note these last conclusions may represent a somewhat differing opinion than Dr Cidoni.
Further, on your behalf a number of references were tendered which attest to your satisfactory past-employment, that you get on well with people, and have been regarded as reliable. Your sister, Vanessa Bennett also provided a reference in support of you, and noted your past dependability, that you have not been recently employed and that you have had substantial physical and mental issues since the events in 2018. I have taken these reports and references into account.
Furthermore, and as to your physical health, a report from Dr Kira Turlakow was tendered and relied upon. You received injuries to your knees as a result of the impact and you suffer ongoing issues with them.
Criminal history
You have a criminal history, but the last matter occurred in 1994. It was submitted, and I accept, that there is little of relevance in that history to your current offending, and as a consequence there is little, if any, practical relevance to the sentence which must be passed upon you today.
Procedural history
Charges against you were first filed on 5 June 2019, about 12 months after the collision. This delay, and further delays that occurred, are explained by the need for police to gather expert evidence, and for it to be considered by both the prosecution and defence. Thereafter, the matter was expected to proceed through the Magistrates’ Court in the usual way, but delays occurred as a result of the need to call the expert evidence for examination, along with the impact of the COVID-19 pandemic. It was not suggested that such delay as occurred was a result of your actions.
On 19 January 2021, the matter was transferred to this Court for hearing.
Thereafter, a plea of guilty was offered on 11 February 2022, and then not accepted until three months later, in May 2022.
Submissions for the prosecution
The prosecution submitted that your dangerous driving of this vehicle was a very serious example of this type of offence, and that it is only cases involving low moral culpability and momentary inattention which might avoid the imposition of an immediate term of imprisonment. Further, it was pointed out that this approach to sentencing was decided when the maximum penalty for this offence was five years’ imprisonment.
It was submitted that the assessment of gravity can be informed by the degree of risk of harm being caused and the extent of potential harm, and references were made to number of propositions noted in the case of Neethling, which included that general deterrence must be given considerable weight, that a person who kills or injures another when driving dangerously is likely to receive a significant term of imprisonment, that the sentence imposed must take account of variations in the moral culpability of the responsible person, and that a custodial sentence will usually be appropriate except in cases where the offender’s level of culpability is low.
It was submitted that the degree of risk of harm in this case was high given your ability to drive was impaired by both drugs and fatigue, and further that you were aware there were many cyclists on the road that day, and that the vehicle you were driving carried a risk of causing more harm than the average vehicle. Accordingly, it was submitted that the combination of these factors rendered this a very serious example of this offence.
It was submitted that a combination sentence was not open in this case, as it is insufficient to meet appropriate sentencing objectives. As to your moral culpability, it was submitted that the features of aggravation in your driving of this vehicle included the impairment caused by substance abuse and fatigue caused by a lack of sleep, as well as poor quality sleep, both factors which must have been evident to you from the time when you began your shift until the time of the impact. Reference was made to the heavy vehicle regulations which provide, without a degree of specific definition, that a person in your circumstances was prohibited from driving a vehicle if impacted by fatigue. It was submitted that you had enough experience to know that given these circumstances you should not have been driving the truck on that day, and that you were well aware of the elevated duty of care necessary when driving such a heavy vehicle.
Furthermore, it was pointed out that you agreed in your record of interview that you knew that there were a number of cyclists on the road that day, and there had been chatter on the truck radio to that effect. As well, you conceded in your police interview that you had seen Mr Herbert on the side of the road for some period of time before the collision occurred. The prosecutor submitted that your explanation to the police that Mr Herbert moved his bicycle onto the carriageway and placed himself in the path of the truck, was contrary to the evidence in the prosecution case in that the truck was entirely outside, or on the wrong side, of the fog line and off the carriageway by some 30 cm at the time it struck Mr Herbert.
It was acknowledged that during the first record of interview, at a time when the results of your blood analysis had not become known, you admitted to using a drug. You admitted to using “a little rock thing”, which was provided to you by a barman, for which you paid $20.
The prosecution submitted that the most likely explanation for the impact was that due to a combination of deprived and poor quality sleep, and the effect of drugs, you fell asleep at the wheel of your truck and woke when it was too late, your truck having begun to veer off the road, resulting in the death of Mr Herbert. The prosecution submitted your offending conduct is not an example of momentary inattention or misjudgement, but rather a serious departure in standards, with a high level of culpability given your driving experience, and the awareness of your deprived ability to drive.
In particular, the prosecution submitted that your case can be distinguished from one where the seriousness of the offending was towards the lower end, and where the level of culpability is also low, and as well, not a case where although there may have been the presence of drugs and poor sleep, these factors were not connected to the offending. It was argued that this was not case of misjudgement or bad driving alone, but one where there is clear evidence of the impact of sleep deprivation and the effect of drugs being factors that had a significant causative connection in your offending. It was these factors that increased the seriousness and culpability level of your offending.
In these circumstances, the prosecution submitted that on the basis of an established approach to sentencing in dangerous driving cases, the only proper outcome was that you should receive an immediate sentence of imprisonment, with a head sentence and non-parole period, even in the presence of the strong mitigating factors of delay and compromised mental health, the presence of which were acknowledged.
Submissions for the defence
On your behalf, your Counsel filed written sentencing submissions, and supplemented those with oral submissions, which particularly focused on your personal history and the mitigating features relied on.
As to the seriousness of your offending, it was pointed out on your behalf that you had had breaks during the course of your shift, and that there was no evidence of erratic driving in the period leading up to the impact. It was pointed out that the evidence is not clear whether, through fatigue, you had woken up and seen the cyclist or gained your senses and seen the cyclist and then swerved to the left. It was noted there was evidence of a sharp deviation to the left before the impact. So it was submitted there was a gap in the evidence as to where the truck was at the first moment before braking, and the realisation of being aware of the cyclist. However, it was accepted that there were skid-marks that started about 20 metres prior to the impact. It was accepted that the point of impact on the truck was more or less in the front on the middle to the right of the front of the truck, and that the impact could not be described as the truck clipping the cyclist.
At the same time, it was accepted on your behalf that there was a greater increase of risk as a result of your driving a much heavier vehicle than usual, and that your offending could not be characterised as being at the low end, but certainly not at the highest end. It was also accepted that you voluntarily ingested the drug, and that the degree of sleep was not of the length that you should have had.
As to matters of mitigation, particular reliance was placed on the aspect of delay, noting that the offence was committed on 11 June 2018, resulting in the final resolution of this matter in 2023. It was submitted that such delay as there was should not be attributed to you, and further that you had been living with this matter hanging over your head for over 4½ years, and that this has had a particularly adverse impact on you. Accordingly, it was submitted that the Court should be satisfied that your offer of a plea of guilty should be regarded as having been made at the first available opportunity, and was made at a time when the effect of competing expert witness opinions had been properly assessed, and also that your offers to plead guilty were made in the aftermath of the COVID-19 pandemic, in the context of the strain on the judicial system. In all, it was submitted that the delay in this case should be regarded as a powerful mitigating factor, attracting significant weight in the sentencing calculus, particularly given the deterioration in your mental health.
It was submitted on your behalf that your plea of guilty should be given significant or full weight on the basis that there has been a benefit to the community, and to witnesses who were saved from having to give evidence, all of this occurring during the effects of the pandemic.
As to the expert evidence relied on by you in respect of the state of your mental health, namely the reports of Dr Anthony Cidoni and Jeni Kousalinos, it is submitted that you present with a combination of mental health issues. It was pointed out that you have been diagnosed with a long-standing dysthymic disorder, which is exacerbated by a major depressive disorder and post-traumatic stress disorder, subsequent to the accident. It was submitted that you have suffered considerably. It was submitted on your behalf that the rendering of assistance to Mr Herbert following the impact was a very traumatic situation which contributed to the combination of mental health issues that you now present with. Furthermore, in May 2022 your home was subject to a burglary, with the theft of treasured items, which led in turn to an attempt by you to take your life when at a very low point.
Relying on the expert reports regarding mental health, it was submitted that you present as a person with a combination of mental health issues which have been already described in these reasons and which include the long-standing dysthymic disorder which has been exacerbated by a major depressive disorder and PTSD occurring subsequent to your offending. As a result, it was submitted that the Verdins principles 5 and 6 are engaged as having an effect at the time of sentencing, and have application to your case.
As to the question of remorse, whilst acknowledging the nature of the events you maintained to the police, it was submitted that this did not mean that you were not remorseful for the death of Mr Herbert. In this regard, reliance was placed on comments you have made to Dr Cidoni about the impact of the events on the deceased man and his children, and that you have demonstrated significant distress and regret. It was submitted that the Court should accept you are remorseful for the events that occurred.
As to disposition, whilst it was accepted that specific and general deterrence are relevant factors for consideration, it was put on your behalf that there are mitigating factors which should lead the Court to impose a Community Corrections Order, [‘CCO’] in place of an immediate term of imprisonment. Reliance was placed on the fact of your plea occurring during the COVID-19 period, your mental health issues and the application of principles 5 and 6 of Verdins, and the delay that has occurred through no fault of yours. The Court was referred to a number of previous sentencing decisions where offenders have been sentenced to CCO’s solely, as well as circumstances where a combination of CCO and a period of imprisonment has been imposed.
In particular, the Court was referred to the case of Flintrop as such an example. As well, the Court was provided with a folder of 19 past sentencing decisions of the Victorian Court of Appeal and County Court, and was invited to have regard to those decisions in determining the appropriate sentence to pass in your case. I have reviewed all of those decisions and have had regard to current sentencing practices.
Ultimately, it was submitted that, taking into account all of the circumstances discussed above, a CCO can be imposed in this matter. At the same time, it was conceded that your offending could not be characterised as being at the low end of seriousness, but that it was not at the highest end.
Sentencing purposes
As to the purposes of sentencing, these are set out in s 5 of the Sentencing Act 1991 (‘Sentencing Act’) and I have had regard to each of those purposes.
Sentencing conclusions
Nature and seriousness of the offending
As to the nature and seriousness of your offending, it was conceded that the seriousness of your offending could not be regarded as being at the lower end, however in turn, that it was not necessarily at the highest end. It was accepted that you were driving a heavy vehicle and that this involved a greater degree of risk. The Court was informed that the truck weighed 24 tonnes. Furthermore, you undertook driving this vehicle when you had a level of methylamphetamine in your system which adversely affected your ability to drive.
In my opinion, the objective circumstances of your offending should be regarded as a serious example of dangerous driving causing death, and not towards the lower end. The death of Mr Herbert caused by your driving was not an example of a momentary inadvertent lack of attention, but rather occurred in the circumstances of you having control of a very heavy vehicle where you were adversely affected by an illicit drug and, were sleep deprived. Both of these factors affected your control of the vehicle, and it is apparent to me that your loss of control happened a considerable distance from the bicycle, and from where your vehicle eventually ended up entirely off the road amongst the trees.
In my opinion, these aggravating features played a significant causative connection to the loss of control and impact that killed Mr Herbert.
Level of culpability
As above, you had a level of methylamphetamine in your system when you drove this vehicle. You ingested this drug voluntarily on the previous Saturday night, or early Sunday morning, when a barman apparently gave you a pill, or a rock, at a nightclub. It was put forward on your behalf that you did not know the full nature of the drug you had purchased.
Thereafter, you remained at a nightclub until about 5:00am on the Sunday morning. It was submitted on your behalf that you could very well have been unaware that the drug was still in your system when you drove the vehicle. I agree that this is possible, and I am unable conclude against your interests that you did know that you were still affected by the drug. It is worth noting that during oral submissions the Court was told that your employer normally would have tested you for the presence of drugs in your system, but on this day that did not occur because it was a public holiday and your boss was not working. If that was indeed the case, then it reflects some degree of failure in the supervision afforded by your employer. The fact that it might have been a public holiday should have made no difference in the circumstances. Nevertheless, you knew that you had ingested an illicit drug 24 to 48 hours before you drove this vehicle, and the objective evidence is that it did affect your driving.
As to the effects of sleep deprivation, it was submitted that rising at 4:00am to carry out your work is not something unusual for you, and that you had had 4½ hours of sleep. Despite you having had some breaks during the course of your shift, the expert evidence placed before the Court is that you were experiencing deprived sleep at the time of the impact and that this state of affairs, in combination with the effects of methylamphetamine, adversely affected your ability to drive this heavy truck.
In my opinion, yours is not a case of momentary inattention or distraction. You likely fell asleep at the wheel of a very large and heavy vehicle, which significantly heightened the risk to other road-users. As a result, along with the seriousness of the offending, it cannot be said yours is a case of low moral culpability. The level of offending was serious in that you were affected by both sleep deprivation and having recently ingested an illicit drug. There was a high level of responsibility on a driver such as you in driving and controlling this truck, and you failed in that responsibility.
In my opinion, this offending was serious and your level of culpability could not be said to be at a low level, given the degree of failure in your responsibility, given that you were driving while sleep deprived and drug impaired, with both of these factors playing a role in your offending.
In my opinion, these significant circumstances place your case in a more serious category than those illustrated by most of the instances of previous sentencing cases for dangerous driving causing death brought to the attention of this Court.
Matters in mitigation
As against the aspects of seriousness and culpability, there are a number of matters in mitigation that must be taken into account. I acknowledge that you have pleaded guilty to your offending, and I accept that in all circumstances you should be given full weight of that plea. I accept that you are remorseful for your offending and I have no doubt that you never intended harm to anybody on that day.
Furthermore, there was a delay in resolution of this matter, and approximately 4½ years have passed since your offending, the explanation for which is not attributable to you. The delay is a significant mitigating factor, and is of significant weight in your favour. I accept that this delay has clearly taken a toll on your state of mental and physical health. The delay has been unacceptably long.
The prosecution did not take issue with matters contained in the psychological report or, generally speaking, the matters put forward in mitigation. Rather, the prosecution submitted that, even accepting these matters in your favour, yours was a very serious example of this type of offence and it is clear that the only available sentence to be imposed is one of immediate imprisonment. I accept that the Verdins principles 5 and 6 apply to you and that you will find the serving of a sentence of imprisonment more burdensome than if you were not suffering from compromised mental health.
I have also taken into account all of the other matters in mitigation that have been put forward on your behalf.
You were driving a very large truck, capable of causing significant damage, and as well, driving under the effect of a drug, combined with deprived sleep. I am satisfied that the effects of drugs combined with sleep deprivation were significant causes of your offending, resulting in the death of Mr Herbert.
In my opinion, general deterrence has a significant role to play and should be extended particular consideration in this case. Drivers of large vehicles such as the one you had control of, being vehicles that are capable of catastrophic damage to innocent members of the public if improperly driven and controlled, must be reminded of the serious consequences attaching to the dangerous mismanagement of these vehicles. You clearly had a responsibility to make sure that you were fit to drive this type of vehicle. Regrettably, on this occasion, your employer did not make any assessment of your fitness to drive the truck. Had this taken place, as was apparently a matter of workplace routine, things may have turned out quite differently. Ultimately, however, the responsibility for your driving was in your hands.
The results of your dangerous driving have had significant impact on Mr Herbert’s family, in particular his wife of 37 years, who now faces the unwanted prospect of living alone and in continuing grief. She has lost the enjoyment of her future as a result of your actions. This case is yet another example of how the mismanagement of a motor vehicle can have wider implications beyond those caused to an immediate and primary victim to a crime. The circumstances have not only resulted in tragic consequences for your victim and his family, but also for you.
Your driving of this very large and heavy truck, which was capable of causing significant damage, whilst affected by an illicit drug, combined with deprived sleep, was serious misconduct and must be denounced as unacceptable. I am satisfied that the effects of drugs, combined with sleep deprivation, were significant causes of your offending, resulting in the death of Mr Herbert. It should be said that like so many similar cases of dangerous driving causing death, I consider that you did not ever intend to cause harm to Mr Herbert.
You have a previous criminal history, which is now dated, and you have a good work history. In the circumstances, I do not regard that the sentence to be imposed should contain particular emphasis on special deterrence, or protection of the community. I accept that you have good prospects of rehabilitation.
With regard to the ultimate submission made on your behalf as to the appropriate disposition, in all the circumstances and having weighed and taken into all the relevant factors, I am not persuaded that a CCO alone, or in combination with a sentence of imprisonment, is an appropriate outcome in your case. In this case, in my opinion, considerations of general deterrence, just punishment, and denunciation lead me to conclude a sentence of imprisonment is the appropriate outcome. I do not conclude however, that it is necessary to impose the added burden of punishment and supervision provided by a CCO. I agree with the submission of the prosecution that this is a case where a head sentence and non-parole period should be ordered.
Sentence
Having taking into account all of the factors discussed above, you will be sentenced to two years and six months’ imprisonment.
I will order that you serve a period of 12 months’ imprisonment before being eligible for parole. In setting a lower non-parole period than might be considered usual, I have taken into account the additional burden that serving a sentence of imprisonment will impose on you personally, and the delay in bringing this matter to a conclusion.
Orders to be made
As the offence is a serious motor vehicle offence as defined by s 87P of the Sentencing Act, the Court must make an order, as pursuant to s 89(1) of the Sentencing Act, cancelling your driver’s licence and disqualifying you from obtaining a further licence for a minimum period of 18 months.
In the circumstances, the Court will order that any driver’s licence held by you be cancelled and you are disqualified from obtaining a further licence for a period of 18 months.
The prosecution has also sought a drug contribution finding pursuant to s 89C(1) of the Sentencing Act, which provides that where an offence is committed while the offender is under the influence of a drug which contributed to the offence, such a finding can be made. This means that if you seek to become re-licensed, you will need to go through a process before being re-licensed. I will make that finding.
Section 6AAA declaration
I declare that pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty to the offence before the Court, you would have been sentenced to imprisonment for a period of three years and six months’ imprisonment with a non-parole period of two years’ imprisonment.
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