Director of Public Prosecutions v Hennessy & Anor
[2022] VSC 244
•16 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0037
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| FLOYD HENNESSY | Accused |
S ECR 2021 0038
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BRANDON CUMMINGS | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2022 and 5 May 2022 |
DATE OF JUDGMENT: | 16 May 2022 |
CASE MAY BE CITED AS: | DPP v Hennessy & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 244 |
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CRIMINAL LAW – Sentence – Hennessy pleaded guilty to culpable driving causing death (gross negligence) – Deceased, enraged, jumped onto bonnet of vehicle when he saw both offenders on CCTV in the street, looking to steal from parked cars – Hennessy drove so as to dislodge deceased from car roof – No drugs, alcohol or excessive speed involved – Consideration of principles in Spanjol v The Queen (2016) 5 VR 350 – Aged 19 at time of offending and 22 at time of plea – No prior convictions – Standard sentence offence – Sentenced to seven years’ imprisonment with a non-parole period of four years, three months’ imprisonment.
SENTENCE – Cummings pleaded guilty to reckless conduct endangering life – Cummings was the passenger and instructed and encouraged Hennessy to drive as he did – Aged 18 at time of offending and 20 at time of plea – No prior convictions – Confession to police only basis for charge – R v Doran [2005] VSCA 271 – Sentenced to a three year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis | Office of Public Prosecutions |
| For the Accused Floyd Hennessey | Mr T Antos | Tait Lawyers |
For the Accused Brandon Cummings | Ms K Gracer | Galbally & O’Bryan Lawyers |
HER HONOUR:
Mr Hennessy you have pleaded guilty to one charge of culpable driving causing death. The maximum penalty for this offence is 20 years’ imprisonment. Mr Cummings you have pleaded guilty to one charge of reckless conduct endangering life. The maximum penalty for this offence is 10 years’ imprisonment. Both charges arise from the same single incident.
The offending
In the early hours of Friday, 20 December 2019, you were both in Toorak Drive, Dingley Village in Mr Hennessy’s Holden Commodore sedan. Mr Hennessy was 19 years old and only had his ‘L’ plates. Mr Cummings was 18 years old. You had both been driving around looking in parked cars for something to steal. The deceased, 53-year-old Mr Peter Stojanovic, was attending a celebration at Mr James Hurst’s home in Toorak Drive, Dingley Village. They were celebrating the release of Mr Hurst’s brother from prison. The house has CCTV cameras that provide various views of Toorak Drive. Toorak Drive is a 300 metre cul-de-sac; the south-west end is a dead-end, and the north-east end forms a T-intersection with Spring Road. Neither of you were familiar with the area.
At about 4:30am, Mr Stojanovic was watching the security camera footage and observed the two of you out in the street. He told other party-goers, ‘someone is breaking into the cars, I’m going to stop them’. He then ran out of the house into Toorak Drive, followed by four others. The two of you had been looking in a van using a flashlight. You both ran and quickly got into Mr Hennessy’s Commodore. Mr Stojanovic climbed onto the bonnet of the vehicle and Mr Hennessy took off rapidly forwards. As the vehicle accelerated, Mr Stojanovic ended up on the roof. He then held onto the roof racks to stop himself falling off the moving vehicle. As Mr Hennessy was driving, you, Mr Cummings, were telling him to, ‘shake the car a little bit’, ‘tap the brakes’ and ‘fishtail’, in an attempt to get Mr Hennessy to shake Mr Stojanovic from the roof. You, Mr Hennessy, drove to the end of Toorak Drive, tapping your brakes and punching them on and off, trying to dislodge Mr Stojanovic. When you reached the end, you skidded to a stop, accelerated, and then again skidded to a stop. Your vehicle stopped momentarily before you drove it rapidly backwards the entire length of Toorak Drive, with Mr Stojanovic still on the roof.
At the T-intersection, you reversed the car left into Spring Road. It was around this time that Mr Stojanovic lost his grip on the roof racks and fell from the vehicle onto the roadway. You stopped momentarily before accelerating rapidly forward along Spring Road. Mr Stojanovic was hit by your vehicle and trapped beneath it. As Mr Hennessy drove forward, you, Mr Cummings, encouraged Mr Hennessy to shake the vehicle a little bit, and you, Mr Hennessy, responded by deliberately shaking the vehicle left and right, and braking. The prosecution do not assert that either of you initially realised that Mr Stojanovic was now under the vehicle. However, you did both realise that at some point, possibly only just before Mr Stojanovic was dislodged and left behind on the roadway.
Mr Stojanovic was dragged along the roadway beneath the Commodore for a distance of about 80 metres before being dislodged. The two of you drove off along Spring Road, and then abandoned the vehicle in bushland on a dirt road, which is an extension of Spring Road. You both walked to a service station, where you, Mr Cummings, purchased a cigarette lighter and then ordered a car from a ride share service. Both of you returned to your respective homes. You, Mr Cummings, removed the jacket you were wearing and placed it in a rubbish bin, as you knew you had been seen on the service station security camera.
Neither of you remained at the scene or provided assistance to Mr Stojanovic. You are not charged with leaving the scene of an accident or any similar offence, and I am mindful you must not be punished for an offence with which you are not charged. However, it cannot be said in your favour and by way of mitigation, that your conduct immediately after the incident was commendable.
Shortly after the incident, a witness saw the legs of Mr Stojanovic on the side of Spring Road. Police and ambulance services were called, and Mr Stojanovic was pronounced dead at the scene. Police located your vehicle, Mr Hennessy, at about 7:45am. The registration was linked to your address. Your mother had heard you return home at about 5:30am that morning. During the day, you told her something really bad had happened, and gave her a version of events that had some aspects of truth. At around 2:00pm, you went with your mother to the police station and provided your contact details.
On the afternoon of Monday, 23 December 2019, you, Mr Hennessy, voluntarily handed yourself in to police at Springvale Police Station. You were arrested and interviewed.
Mr Cummings, police were able to identify you, as they saw you near Mr Hennessy’s house wearing the same distinctive torn shorts you had been wearing on the night in question. You were arrested on the morning of 24 December 2019 and interviewed.
Police experts examined the scene. The speed of your vehicle when you initially drove forward in Toorak Drive was approximately 35 to 40 kilometres per hour. The CCTV footage shows you reversing rapidly down Toorak Drive, however there is no evidence as to actual speed.
You have pleaded guilty, Mr Hennessy, on the basis that your driving, from the point in time when you drove forward with Mr Stojanovic on the bonnet, was grossly negligent. You failed by a gross degree to observe the standard of care which a reasonable person would have observed and your driving caused the death of Mr Stojanovic.
You have pleaded guilty, Mr Cummings, on the basis that while the vehicle was in motion and Mr Stojanovic on the roof, you gave instructions to Mr Hennessy as to how to drive. Those instructions were, to your knowledge, being followed by Mr Hennessy, and created a high and obvious risk of death to Mr Stojanovic. You realised that your conduct would probably expose Mr Stojanovic to the appreciable risk of death.
Your plea hearings proceeded on separate days due to complications caused by COVID-19. A victim impact statement from Ms Weiss was read on the plea of Mr Hennessy. Mr Stojanovic was her partner. They had been together for seven years and she misses him every day. She learned of his death when police came and knocked on her door to tell her what had happened. She never got to say goodbye or hold him before he died. Due to the lockdowns that commenced in 2020, she spent much of her time alone with her grief. Ms Weiss continues to mourn Mr Stojanovic, the life they had together and were going to have together.
There is of course nothing this Court can do to return Mr Stojanovic or heal the grief that Ms Weiss continues to suffer. The sentences I will impose are in no way a measure of the worth of Mr Stojanovic’s life. The sentences reflect, as they must, a number of matters which I must take into account, including the impact on the victims.
Records of interview
Both of you cooperated with police and made significant admissions in your records of interview.
Mr Hennessy, you admitted you were the driver and that you had been looking to break into parked cars. You said the deceased ran out and jumped on your bonnet. You said he was angry and screaming aggressively. You were ‘majorly panicking’ and tried to get him off the car. You admitted that you drove forward and then reversed. You were punching the brakes and swerving. You said the deceased was going ‘absolutely crazy’ on the roof. You said you were scared but did not mean for anyone to get hurt.
Mr Cummings, you gave a similar account. You said the deceased jumped onto the bonnet. He was yelling, screaming and very aggressive. You just wanted him to get off the car. Mr Hennessy drove forward, and you told him to shake the car a little bit. You wanted him to fall off but he was holding onto the roof racks, so the car reversed back and into Spring Road. You said that you did not want to hurt him, you just wanted him off the car and to get out of there. You admitted telling Mr Hennessy to try tapping the brakes, swerving and fishtailing in an attempt to dislodge Mr Stojanovic from the roof.
Mr Cummings – matters personal
I turn now to the personal circumstances of each of you, commencing with you, Mr Cummings. You are now 20 years old. You have no criminal history. You have one subsequent matter arising from the events of this night. You were charged with attempt to commit theft and possess a prohibited weapon, pleaded guilty and received a without conviction good behaviour bond. This matter is of no relevance when sentencing you today.
A report of Mr Patrick Newton was tendered on your behalf, and much of the information as to your background is found in that report. You are the youngest of three siblings, and also have three younger half-siblings from a subsequent relationship of your father’s. Your parents separated when you were an infant and divorced when you were aged four or five. You remained in your mother’s care and had limited contact with your father. It seems you resented and never understood why your parents divorced. You remained living with your mother, but you are not close, and describe her as manipulative and unsupportive. You blame her for the limited contact with your father, and you regard yourself as the black sheep of the family.
Your father has suffered from a long-term addiction to alcohol, opiates and other drugs. Despite this, you speak of your father in idealised terms, and describe a close and supportive relationship with a strong bond. Up until the time of this offence, you had been living with your mother. You then went to live with your father, who continues to have drug and alcohol issues and, more recently, problems with police.
You made the decision to move out of your father’s home about four months ago and move in with your girlfriend. You have been in a relationship with her for about three years. She lives with her parents, and this arrangement has provided you with a very stable and pro-social environment. Your girlfriend and her mother provided character references on the plea, and they both remain supportive of you.
You attended a local primary school, struggled to acquire basic literacy and numeracy skills, and experienced severe academic problems. You felt you did not fit in, you were on the periphery of social groups, and regularly involved in conflict. You attended Diamond Valley Secondary College and your academic, behavioural, disciplinary and social problems continued. You left school at the earliest opportunity after completing only Year nine.
You then attended Melbourne Polytechnic, where you completed a ticket to trade qualification and then commenced studies toward a Certificate III in Plumbing. You were also in paid employment for about 18 months as an apprentice plumber. I am told you have a desire to complete this apprenticeship. You have not worked since this incident and have not felt stable enough in your own mind to do so. It seems your life has been substantially on hold while you await the resolution of this matter.
You have a history of drug and alcohol abuse. You commenced drinking at age 15, including regular binge drinking. You told Mr Newton that you now only drink six or so drinks a week and never to excess. You have been smoking cannabis since the age of 16, and that had become a daily occurrence at the time of this incident. You have also used other drugs, such as cocaine and MDMA. Your drug use became part of your social life to the extent that you could not contemplate participating in social or recreational activities without drug use. You participated in a five-day detoxification program at the end of 2020 and you claim now to be abstinent, although there is no independent testing to verify this.
There were a number of aspects of your presentation that caused Mr Newton concern. You have mild symptoms of anxiety and depression, and a pessimistic future outlook. In Mr Newton’s view, your entrenched cynicism and wariness, together with some confusion, is a pattern commonly seen in young people who progress to develop major mental illness. You attended a psychologist for 14 sessions commencing in September 2020, and in her opinion, you engaged and made progress.
In Mr Newton’s opinion, you are standing at something of a crisis point in your life. Your future prospects are likely to depend, in large part, on how you rise to the challenges you now face. The need for ongoing drug treatment is ‘hard to overstate’. He considers that there would be some risk of your mental state deteriorating in custody, and there is also a genuine risk that if you were influenced by the ‘hardened’ elements within the custodial environment, your personality development could be permanently diverted into problematic pathways.
When asked by Mr Newton to write down how you felt about these matters, you wrote that you were truly sorry that you had hurt people because of your offending. You will hold yourself responsible forever and you are sorry to those whose lives will never be the same because of what you did. Your girlfriend and her mother, together with a family friend, also write of the remorse you feel. Overall, I accept that you are genuinely remorseful for what you have done.
I also accept this offending is out of character for you. Whilst you have limited education and a long history of drug use, you have no prior involvement with the criminal justice system or prior convictions of any type. The matters raised by Mr Newton do cause me some concern. Despite this, I am prepared to find that you have very good prospects of rehabilitation, however they will only be realised if you engage with the services and help you are offered.
Mr Hennessy – matters personal
I turn now to your personal circumstances, Mr Hennessy.
Your counsel described you as a poor historian, and no reports or references were tendered on your behalf. You are now 22 years old. You were born in Queensland and grew up in the Hervey Bay area. You have one older brother. Your parents separated when you were around two years of age. You continued to see both parents, but believe you spent more time with your mother than your father.
You were a poor student with behavioural problems. You attended approximately ten different schools, due both to your behavioural issues and your mother moving house. You came to Victoria in mid-2017 with your mother and brother, intending to make something of a fresh start. You commenced an apprenticeship in carpentry, before swapping to an apprenticeship in plumbing. Apparently, you injured your back in 2019 and were unable to work. At the time of this offending you were unemployed with little money. You told police you were looking to steal tools, sell them and use the money to buy Christmas presents for your family.
You commenced using cannabis and alcohol at age 12, and your cannabis use escalated rapidly, with you using up to half a gram a day. Once in Melbourne, you experimented with ‘party’ drugs before commencing methamphetamine use in 2018. You used infrequently, and instruct you have not returned to methamphetamine use since being on bail.
You have been in an on-again-off-again relationship with Rebecca since 2017. Together, you have a 2½ year old son. Rebecca has custody of your son, but things are amicable and you see him whenever you like. You are sad at the prospect of only seeing your son when he visits you in gaol, both because you will see him less, and because he will have to come into a prison environment. Rebecca remains supportive of you and attended the plea hearing by way of livestream, as did your father, brother, grandmother and a friend. I am told they all continue to support you.
You were initially charged with culpable driving causing death and spent 93 days in custody before being granted bail. Since then, you have been living with your mother and spending time with your son. I am told you have been ‘laying low’, and have not worked due to your back injury. You too have been waiting for this matter to resolve.
Initially, your counsel submitted that there has been no further offending since this incident. It then emerged that you were dealt with on 14 September last year, for offences including being a learner driver and driving without a supervising driver, retaining stolen goods, driving an unregistered motor vehicle, possessing cannabis and committing an indictable offence whilst on bail. You were fined an aggregate of $600.
There is little evidence of remorse beyond your plea of guilty, however I accept that you were contrite in your very lengthy record of interview. You told police that you were ‘more ashamed of it than anything’, and ‘every single day I think about this and I’m going to for a long time’.[1] Your counsel submitted that you have to live with the knowledge of what you did.
[1]Exhibit 6, Transcript of Record of Interview of Hennessy, answer 1271.
I regard your prospects of rehabilitation as good, principally due to your youth and lack of prior involvement in the criminal justice system. Your subsequent offending is of some concern, particularly that you continued to drive as a learner without a supervising driver present. That is what you were doing on the night of your offending, and it is troubling that you have not learned a simple lesson: do not drive without a fully licensed supervising driver present. If you had followed that rule, I would not be sentencing you today.
I turn now to other matters.
Delay
This matter has been hanging over your heads for 27 months, and the anxiety and uncertainty as to what might happen has weighed on you both. To a significant extent, your lives have been ‘on hold’ whilst you await your punishment, and I take this into account in mitigation. Additionally, in your case, Mr Cummings, you have demonstrated for over two years that you can remain offence-free in the community. This speaks positively to your prospects of rehabilitation.
Youth
You were both young at the time of this offending, aged 18 and 19. You, Mr Cummings, are still a young offender as that term is defined in the Sentencing Act 1991 (‘Act’) and you, Mr Hennessy, turned 22 in January this year. The principles relevant to sentencing young offenders are applicable in both of your cases.
Your youth mitigates sentence as expressed in the following well-established principles:[2]
[2]R v Mills [1998] 4 VR 235.
(a) Youth, particularly with a first-time offender, should be a primary consideration for a sentencing court;
(b) In the case of youthful offenders, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Punishment focussed on rehabilitation is to be preferred, and benefits the community as well as the offender; and
(c) A youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment might be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
The aim expressed in the above principles is consistent with protection of the community. There is great public benefit in the rehabilitation of a young offender, and maximising the prospect that they will live a productive and law-abiding life. Additionally, youth may be mitigatory because the courts recognise that the young and immature are more prone to ill-considered or rash decisions.[3] The decisions made by both of you on this night would fit that description. That said, the weight to be attached to youth correspondingly reduces as the level of seriousness of the criminality increases.[4]
[3]R v McGaffin (2010) 206 A Crim R 188, 210 [69].
[4]Azzopardi v R (2011) 35 VR 43, 57 [44].
Timing and value of guilty plea
Mr Hennessy was first charged with culpable driving, but later both of you were charged with manslaughter. In your case, Mr Cummings, you had previously offered to plead guilty to dangerous driving causing death, which carries a 10 year maximum penalty. Up until you pleaded guilty, the prosecution persisted with the more serious charge of manslaughter, which was ultimately withdrawn. In those circumstances, I regard you as having pleaded guilty to this indictment at a reasonably early opportunity.[5] This entitles you to a significant sentencing discount.
[5]Cameron v The Queen (2002) 209 CLR 339, 345 [20], citing Atholwoodv The Queen (1999) 109 A Crim R 465, 468 (Ipp J).
It was conceded by your counsel, Mr Hennessy, that yours was a reasonably late plea of guilty, however it still has substantial utilitarian value.
In both of your cases, I accept that your pleas of guilty provides some evidence of remorse. It also has substantial practical value, as it spared this Court the time and expense of a trial. Given the backlog caused by COVID-19, a plea of guilty continues to carry an additional utilitarian benefit which must be adequately reflected in sentencing.[6] I also take into account that conditions in custody continue to be more challenging due to COVID-19.
[6]Worboyes v The Queen [2021] VSCA 169, [35]; Papagelou v The Queen [2022] VSCA 53, [28].
Mr Cummings, in your record of interview, and without any pressure from authorities, you provided the prosecution with the evidence necessary to convict you of this offence. It is agreed that without your confession, the prosecution would not have had a case against you, as they could have proved no more than you were the passenger. This is a very significant matter in your favour, and mitigates any sentence I will impose. In my view, your confession reduces the need for specific deterrence, increases your prospects of rehabilitation and demonstrates genuine remorse. I also consider it important that you receive a real discount in order to encourage others to cooperate with authorities.[7]
[7]R v Doran [2005] VSCA 271, [14] (Buchanan JA); Younan v The Queen [2017] VSCA 12, [39]; Sharman v R [2017] VSCA 241, [38].
Nature and circumstances of the offending
The prosecution submit this is a ‘very serious example’ of culpable driving causing death; the objective gravity is ‘very high’, and Mr Hennessy’s moral culpability is ‘high’. The charge of reckless conduct endangering life is a ‘particularly serious example’ of the offence; the objective gravity is ‘very high’ and Mr Cummings’ moral culpability is ‘high’.
Terms such as ‘very high’ or ‘mid-range’ are to be avoided when considering the objective gravity of an offence.[8] The terms themselves are unavoidably vague and permit of a wide range of conduct and circumstances of differing degrees of seriousness. However, it is necessary to address where your crimes sit on the spectrum of seriousness, and for what reasons. Culpable driving causing death also carries a standard sentence of eight years’ imprisonment, and I must apply those provisions of the Act.
[8]DPP v Ristevski [2019] VSCA 287, [66] (Priest JA), citing DPP vWeybury (2018) 84 MVR 153, 165 [33]-[34] (Maxwell P and Hargrave JA), 170-171 [54] (Priest JA).
The standard sentence is intended to represent the sentence for an offence ‘in the middle range of seriousness’, taking into account only the objective features of the offence. It does not permit two-stage sentencing and I am not required to separately classify the objective gravity of the offending. The seriousness of the offence must still be assessed in the conventional way, taking into account both objective gravity and moral culpability.[9] The standard sentence, like the maximum penalty, is one factor I must take into account.[10]
[9]Brown v R (2019) 59 VR 462, 479 [55].
[10]Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27], citing McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).
I am obliged to disregard sentencing practice which existed prior to the introduction of standard sentencing,[11] although the principles found in those cases remain of relevance.[12] When fixing a non-parole period, I must fix a period of at least 60% of the head sentence, unless it is in the ‘interests of justice’ not to do so.[13] Mr Antos, did not submit that a non-parole period of less than at least 60% should be fixed in this case.
[11]Sentencing Act 1991, s 5(2)(b).
[12]Brown v R (2019) 59 VR 462, 464 [4].
[13]Sentencing Act 1991, s 11A(4)(c).
The prosecution provided two tables of cases, one of sentences in gross negligence culpable driving cases, and one of standard sentence cases. The prosecutor frankly conceded that given the unique facts here, the cases only assist to a ‘limited extent’. I have considered both tables and I agree.
Turning to the facts of this case. Culpable driving causing death is intrinsically serious, involving the loss of a human life. Mr Hennessy drove in a grossly negligent manner. That is, viewed objectively, a reasonable person in Mr Hennessy’s position would have known his driving involved a high risk that death or serious injury would result.
Your counsel, Mr Hennessy, described this as an ‘objectively serious offence’. He submitted your driving was a reaction to a rapidly evolving and escalating situation. Relying on Spanjol v The Queen[14] (‘Spanjol’), your counsel submitted that external circumstances were, in part, responsible for your driving. You were confronted by the deceased and his friends, which placed you in fear of being attacked. Your driving was induced by a reasonable fear, created when the deceased jumped onto the bonnet of your vehicle. Your counsel further submitted that the conduct of the deceased was also a material cause of the accident.
[14](2016) 5 VR 350.
The prosecution accept the driving was a reaction to what occurred, but submit it was out of all proportion to the situation faced by Mr Hennessy. The vehicle drove at ‘considerable speed’ down Toorak Drive, and reversed at ‘reasonably high speed’ onto Spring Road. The driving was designed to cause Mr Stojanovic to fall from the roof. Whilst the offending lacks many of the features commonly found in culpable driving cases, the driving created a ‘very high and very obvious’ risk of death or really serious injury to the deceased, in circumstances where Mr Hennessy knew he was creating such a risk. The prosecution argue the principles in Spanjol are inapplicable here, but concede that the explanation does, to some extent, reduce moral culpability.
The starting point, Mr Hennessy, is that you are solely responsible for the manner of your driving and the manner of your driving was the sole cause of the death of Mr Stojanovic.[15] In Arpaci v R,[16] Kaye JA conveniently summarised the two conclusions reached in Spanjol:
[15]Ibid, 352 – 353 [5].
[16](2020) 91 MVR 414.
(1) An offender’s responsibility, and moral culpability, may be moderated where it is demonstrated that some other person (whether or not the deceased) and/or some external circumstance was partly responsible for the offender’s conduct; and
(2) Further, where it is established that there was an additional factor, outside the offender’s control, which was also a material cause of the accident, that circumstance should ordinarily be taken into account in mitigation of sentence.[17]
[17]Arpaci v R (2020) 91 MVR 414, 477 [264] (Kaye JA).
In my view, the first qualification has no real application here. You, Mr Hennessy, were solely responsible for both your decision to drive with the deceased on the bonnet of the vehicle, and for the manner of your driving.
Dealing with the second qualification. Both of you had created the situation by trying to steal from cars in the early hours of the morning. The deceased saw you, which is why he ran outside. The CCTV footage shows the deceased jumping onto the bonnet and almost reaching the driver’s door just as you, Mr Hennessy, are entering the vehicle. Seconds later you drive forward; the deceased quickly ends up on the roof, and almost rolls off the back of the vehicle. He must have made an effort to remain on the roof, and can be seen on the roof about 20 seconds later, as you reverse back past the point where he jumped onto your bonnet.
I accept that the deceased chose to jump onto the bonnet of your stationary vehicle, and in that moment, he displayed some recklessness as to his own safety. I accept Mr Stojanovic was angry, there were at least three other men close behind him, and you panicked. You reacted by quickly accelerating forward, throwing him onto the roof. Once you did this, his conduct in remaining on the roof, rather than jumping from a moving vehicle, cannot reasonably be seen as a material cause of the accident.
However, I do accept that it was the deceased’s behaviour – that is, jumping aggressively onto the bonnet – that led both of you to engage in this offending. You both panicked and were concerned to escape what you perceived as a threat to yourselves. In your records of interview, you both independently describe the deceased as ‘going ballistic’, ‘going crazy’ and ‘holding onto the roof racks’. Your decisions were made spontaneously, and continued as part of a rapidly evolving incident. I find in the circumstances that your moral culpability is somewhat reduced.
Mr Hennessy, in my view, the following factors are relevant when assessing the seriousness of your offending:
· You were solely responsible for the manner of your driving. Mr Cummings gave you instructions and suggestions, but the decision to drive as you did was ultimately yours;
· Your driving was the sole cause of the deceased’s death;
· You spontaneously reacted to a perceived threat;
· Once you were inside the vehicle with the doors closed, and the vehicle was moving, the risk to you and Mr Cummings was not significant;
· The period of culpable driving, measured by both time and distance, was short;
· Only one person was placed at risk, being the deceased;
· I am unable to make any finding as to the actual speed of the vehicle once you commenced reversing. The speed was certainly too high in circumstances where a person is somewhere on the roof of your vehicle;
· You accelerated forward within seconds of the deceased jumping onto your bonnet, knowing he was there, and continued driving knowing he was on the roof. Other than stopping briefly to change into reverse, you gave him no real opportunity to disembark;
· You drove in a manner designed to dislodge the deceased from the roof of the vehicle. The risk to Mr Stojanovic was obvious. There is no suggestion however, that you intended or wanted any harm to come to him;
· You were driving on your ‘L’ plates; and
· At the time your vehicle first contacted the deceased, you did not realise he was under the vehicle. On the material I have, I cannot conclude that you were aware of his location until immediately prior to him being dislodged from under your vehicle.
The circumstances of this case are fairly unusual. Commonly seen aggravating features such as excessive speed, driving whilst affected by illegal drugs or alcohol, competitive driving, and driving to escape police are all absent. These matters – alone or in combination – are frequently seen in culpable driving cases, particularly where the driver is a young man. The culpable driving here is not of the most serious type seen by the courts. In my view, it is not a ‘very serious’ example of culpable driving by gross negligence, but it is still a reasonably serious example of this offence. You did not simply drive with the deceased on the roof, but deliberately braked, swerved and fishtailed in an attempt to dislodge him.
Turning to your offence, Mr Cummings. Mr Gullaci submitted it was not the most serious example of this crime, given the very wide range of conduct that may constitute this offence. He submitted that you, yourself, had no ultimate control over how Mr Hennessy drove.
By your plea, Mr Cummings, you admit that you knew your conduct would probably create a real or appreciable risk of death to the person on the roof, Mr Stojanovic. I find the following factors are relevant when assessing the seriousness of your offence:
· The offending was a spontaneous reaction to an unexpected event, being Mr Stojanovic jumping onto the bonnet whilst others from his group milled nearby;
· The offending was not a single act, but it was not prolonged. It is fairly described as of short duration;
· Once you were inside the vehicle with the doors closed, and the vehicle was moving, the risk to you and Mr Hennessy was not significant;
· You knew that Mr Stojanovic was first on the bonnet, and then on the roof, and remained on the roof throughout the period you were instructing Mr Hennessy to drive as he did;
· Only one person was placed at risk of death by the conduct, being Mr Stojanovic, as reflected in the charge;
· You knew Mr Hennessy was following your instructions, and engaging in the driving manoeuvres you suggested. You continued to give instructions throughout the incident; and
· Mr Hennessy was driving. Your conduct was not the sole cause of the risk, but your conduct nonetheless did create the risk.
The offence of reckless conduct endangering life may be committed in a wide variety of ways. A review of cases, including those I was referred to by the parties, reveal that firearms and motor vehicles are frequently involved. The offender may be motivated by a grudge, or driving in order to escape police. The types of circumstances seen include firing a shot into the ground near to a person with whom the offender has a grievance;[18] or driving dangerously, erratically and at very high speed for two hours whilst being pursued by police;[19] or driving at a victim through a plate glass window.[20] The facts here are unique, and although comparisons and labels are of limited utility, I find the offending to be somewhere in the mid-range of seriousness for offences of reckless conduct endangering life.
[18]Cooper v The Queen [2020] VSCA 288.
[19]Borg v The Queen [2017] VSCA 71, noting the charge there was reckless conduct endangering serious injury.
[20]Shau v The Queen [2020] VSCA 252.
Disposition
It was conceded on your behalf, Mr Hennessy, that the only available sentence is a head sentence with a non-parole period.
Your counsel, Mr Cummings, submitted you could be dealt with by way of a Community Corrections Order (‘CCO’). Alternatively, if you are to be sentenced to a period of detention, it should be by way of a Youth Justice Centre order. The prosecution submitted that the latter is an available option, but your offending is too serious for the former. I had you assessed for both a CCO and a Youth Justice Centre order. You were found suitable for both, and the reports were positive.
Other matters
General deterrence is relevant in both of your cases. It is a significant sentencing factor for offences of culpable driving causing death. Here, the principle continues to carry weight, however, given the somewhat uncommon facts, it is not a case where particular emphasis must be placed on general deterrence.
The sentences I impose must publicly denounce your unlawful conduct on this night, and punish you both for what you have done. Your offending is serious and a man has lost his life. It was your driving, Mr Hennessy, that caused his death. You, Mr Cummings, encouraged and instructed that driving, and in doing so, created a real risk that Mr Stojanovic would be killed.
Specific deterrence – that is, the need to deter each of you, personally, from further offending – has some work to do, but not a great deal. It is somewhat more relevant in your case, Mr Hennessy, given your subsequent charges. However, you will be going into adult jail as a 22 year old, and in those circumstances any period of imprisonment will likely have a deterrent effect.
Sentences
Floyd Hennessy
Floyd Hennessy, on the single charge of culpable driving causing death, you are convicted and sentenced to seven years’ imprisonment. I fix a non-parole period of four years and three months’ imprisonment.
I declare you have served 104 days by way of pre-sentence detention not including today, and that period is reckoned as time already served under this sentence.
Culpable driving causing death is a ‘serious motor vehicle offence’ as defined in s 87P(ba) of the Act. Pursuant to ss 89(1)(a) and 89(2)(b), I must cancel any licences or permits held by you, and disqualify you from obtaining any further permits or licences for a period of not less than 24 months. That is a substantial period and in all the circumstances, I do not propose to exceed that period. All permits and licences held by you are cancelled and you are disqualified from obtaining any further ones for a period of 24 months from today.
Pursuant to s 6AAA, I state that but for your plea of guilty, I would have sentenced you to nine years’ imprisonment with a non-parole period of six years.
Brandon Cummings
I must have regard to s 5(4) of the Act which reflects the principle of parsimony: that is, I must not impose a sentence that involves the confinement of the offender unless I consider that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
A CCO has a number of mandatory conditions which impinge on an offender’s liberty and monitors their movements. Further conditions can be added which impose restrictions, obligations and limitations. As the Court of Appeal has said, a CCO may be suitable for relatively serious offences, for example aggravated burglary and intentionally cause serious injury – offences which carry maximum penalties of 20 years’ imprisonment or more.[21] Here, I am dealing with a maximum penalty of 10 years’ imprisonment. A CCO is not as punitive as a term of imprisonment or youth justice detention, but it is punitive for each day of its operation, and able to be imposed for a lengthy period.
[21]Boulton v The Queen (2014) 46 VR 308, 316, [25].
In all the circumstances of your case, Mr Cummings, I have concluded that there is an alternative to imprisonment that is capable of satisfying the requirements of sentencing. You are convicted and sentenced to a Community Correction Order for a period of three years.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
· You are to be under the supervision of Corrections for the duration of the order;
· You are to perform 250 hours of unpaid community work. I direct pursuant to s 48CA(2) that hours successfully undertaken for treatment and rehabilitation are to be credited as hours of unpaid community work;
· You are to undergo treatment and rehabilitation for drug use as directed;
· You are to undergo treatment and rehabilitation for alcohol use as directed;
· You are to undergo any other program, course or treatment as directed; and
· You are to undergo mental health treatment and rehabilitation as directed.
I confirm you have consented to the Order.
If you breach this Order, either by non-compliance or further offending or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may find yourself being resentenced for this offence. If that were to happen, you may find yourself being sentenced to a term of adult imprisonment.
Mr Cummings, as I have imposed a CCO for more than two years’ duration, I must state pursuant to s 6AAA that but for your plea of guilty, I would have sentenced you to youth justice detention for a period of three years.
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