Director of Public Prosecutions v Jakobsson

[2017] VCC 688

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01164

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALEB JAKOBSSON

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2017
DATE OF SENTENCE:	30 May 2017
CASE MAY BE CITED AS:	DPP v Jakobsson
MEDIUM NEUTRAL CITATION:	[2017] VCC 688

REASONS FOR SENTENCE
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Subject:One count of culpable driving causing death; one count of failing to stop after an accident

Catchwords:  Small motorcycles; victim struck on pedestrian crossing at shopping centre; young offender

Legislation Cited:  Road Safety Act 1986; Children Youth and Families Act 2005

Cases Cited:DPP v McCloy [2006] VSCA 99; KT v R [2008] NSWCA51; DPP v Neethling [2009] VSCA 116; DPP v Hill [2012] VSCA 144; R v Franklin [2009] VSCA 77

Sentence:  7 years imprisonment; 4 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ong
For the Accused	Ms K. Churchill

HER HONOUR:

Charges

1Caleb Jakobsson, you have pleaded guilty to one charge of culpable driving causing death, and one charge of failing to stop after an accident.  The maximum penalty for culpable driving is 20 years, and for failure to stop after an accident, it is ten years. 

Circumstances of Offending

2A detailed prosecution opening was read to the court, and it will form part of this sentence.  Your offending may be summarised as follows.

3On 23 September 2015, you and four friends met at The Pines Flora and Fauna Reserve in Carrum Downs.  You were all riding small motorcycles.  At the time you were aged 18, you were not licenced to ride a motorcycle.  You had been disqualified by the Frankston Children's Court on 30 July 2015 from obtaining any licence or permit under the Road Safety Act 1986 for a period of 12 months.

4You and your friends decided to go to Carrum Downs Shopping Centre.  The shopping centre has a 10 km/h speed sign applicable to the area.  At the time of the collision it was a fine, clear afternoon, and the road surface was dry.  Witnesses heard the sound of the motorcycles travelling from the north-eastern corner of the shopping centre.  They were observed travelling at a fast speed in a westerly direction on the car park's service road outside the Kmart Tyre and Auto Service Centre prior to the collision scene.

5None of the riders were wearing helmets.  One rider pulled his front wheel off the ground and rode solely on the rear wheel, while another one was observed weaving on the road.  Witnesses estimated the speed of the motorbikes as between 30-50 km/h.  They described them as either "going pretty quick", "flogging it", "moving pretty fast", "going at a very fast speed", and that "they flew past me". 

6Shortly after 5 pm, Andrea Lehane, a 34-year-old registered nurse and mother of two young children, was crossing the service road via a marked pedestrian crossing towards the shopping centre.  It was a busy time at the shopping centre, with a number of pedestrians and cars in the area.  The first of the four motorcycles was observed travelling along the service road and overtaking a car that was stopping as it approached the pedestrian crossing.  The rider was riding on one rear wheel, and narrowly missed Andrea Lehane, who had commenced to cross the pedestrian crossing.  You were riding the second motorcycle and carrying a pillion passenger. 

7You overtook the same car on the passenger side while riding at an excessive speed.  You struck Andrea Lehane when she was less than a metre from completing the pedestrian crossing.  The force of the impact threw her
6.7 metres onto the road, leaving her with clearly visible, life-threatening injuries.

8You crashed to the ground, falling off the bike with your passenger. The third and fourth motorcycles ridden by your friends overtook the same car on the passenger side moments after you had.  However, they took evasive action to avoid Andrea Lehane, who was lying on the ground.  You re-mounted your motorcycle and rode away from the scene, with your pillion passenger running after you on foot.

9The other motorcycles also failed to stop.  Several witnesses stopped at the scene to assist Andrea Lehane, and contacted her husband, who attended the scene. 

10The bike that you were riding that day was a black and red 125cc motorcycle that you had reconstructed from used parts.  It was unregistered and not designed to be ridden on the road.  On inspection, the motorbike was found to be in average condition, with the front braking system removed.  Consequently, the overall stopping ability of the motorcycle would have been compromised.

11The motorcycle was not fitted with a horn or warning device, headlights, stoplights, taillights or indicators.  The motorcycle did not have a stop switch or button, and had to be stalled to stop the engine. 

12A collision reconstructionist attended the scene of the collision and determined that the minimum speed of the motorcycle at the time of impact was no less than 24.7 km/h.  After the collision, Andrea Lehane was transferred by air ambulance to the Alfred Hospital.  She was found to have sustained a severe traumatic brain injury and was declared brain-dead at 18:00 hours on
24 September 2015.  She was removed from life support and pronounced dead.

13On 25 September 2015, police contacted you and arrangements were made for you to attend the Melbourne City West Police Station.  You attended with your father, and you were arrested, and a record of interview was conducted.

14Your answers to the questions asked at the record of interview are set out in some detail in the prosecution opening.  In short, you admitted to exceeding the speed limit, and to striking Andrea Lehane by accident.  You said that after hitting her, you "got really scared", you panicked, you did not know what to do, you "did not mean for this to happen", and you were "truly sorry".

Victim Impact Statements

15It was apparent from the Victim Impact Statements which were read to this court that your actions on that fateful day had a devastating effect on their lives.  In his statement, Andrea's father said:

"It is a complete reversal to the natural order of things for a parent to have to bury the youngest child".

16In her statement, Andrea's mother described the impact of her daughter's death on her close family and friends as being "crushing".  She said:

"Andrea was stolen from us in the prime of her life.  She will never see her children grow up and share all the joys of a parent with James and her family as they reach various milestones in their lives."

17In her statement, Andrea's older sister, Adele, said that "she wanted to give awareness of the ripple effect such a preventable tragedy has".  It had forever altered her life and her family's lives in the most profound and irreversible way;  “one live was cruelly lost, and so many other lives had suffered and had forever been altered, and that needed to be acknowledged.”

18In his statement, Andrea's husband James said:

"In an instant, this crime took Andy away for eternity.  In an insane moment of unforgiveable recklessness, my beautiful wife, at a mere 34 years of age, was snatched away forever.  Andy's natural expectation to live a reasonably long life was carelessly tossed away for the sake of cheap, reckless thrills.  Overnight this cowardly and easily-avoidable crime left me a single parent to very young, innocent children.  None of this is something I could ever foresee or prepare for in any way."

Personal Circumstances

19Your personal circumstances were outlined to the court by your counsel, and further details were contained in a report from Jeffrey Cummins dated 16 May 2017.  You were born in Frankston on 26 January 1997, so you are now 20 years old.  You have an 18-year-old sister, who has never been in any trouble with the law.  Your parents separated when you were a baby, and you were raised by your mother.

20Your father relocated to Adelaide when you were young, but moved to Karingal approximately two years ago.  He was a very heavy smoker of cannabis, and is currently unemployed. He has been incarcerated for various offences. 

21You completed Year 10 at Chisholm TAFE in Frankston.  It appears that you were then unemployed and spent your time hanging around with your friends and smoking cannabis on a daily basis.  On 30 July 2015, you appeared before the Frankston Children's Court on various charges, including burglary, theft, unlicensed driving, use registered motor vehicle on a highway, reckless conduct, and endangering serious injury.  You were released without conviction upon entering into a good behaviour bond.  You were disqualified from driving for a period of 12 months. 

22With respect to the charges I am now sentencing on, you were granted bail at the Supreme Court on 14 October 2015.  An application to revoke your bail on the basis of your failure to comply with curfew conditions was refused on 9 June 2016.  In August 2016, when you were on bail for these offences, you worked for a six-month period at JBO Engineering.  However, several weeks prior to being made redundant at this firm, you started experimenting with ice.  Apparently this was due to you feeling overwhelmed with the legal situation, including the extensive media coverage, and the delay in the matter being finalised.

23On 23 February 2017 you were remanded in custody on further offences, including possession of a drug of dependence, use of a drug of dependence, retention of stolen goods, and commit indictable offences whilst on bail.  You have been in custody since then.

24You instructed your counsel that you have been assaulted in custody on two occasions.  The first assault occurred due to the publicity about this case.  While the circumstances of the second assault are unknown, it was confirmed in an email from the Department of Justice and Regulation that you were assaulted.

25The incident report suggests that you sustained a bump on your head and some small scratches to the back of your neck and ear.  You were placed in separation on 2 May 2017 pending investigation into this matter.

Submissions Regarding Sentence

26In her plea on your behalf, your counsel submitted that the two charges I am sentencing you for today arise out of the same facts and circumstances.  Accordingly, she submitted that the sentence imposed should reflect the principle of totality, and afford a significant measure of concurrency.

27Your counsel submitted that given the lack of aggravating features, such as the use of drugs and alcohol, or using a mobile phone while you were riding your motorcycle, this placed your offence of culpable driving in the low or mid-range for this type of offence.  The offence of fail to stop was also submitted to be in the low to mid-range for this type of offence. This was because there were other people at the scene, and you had been really scared, and panicked when you left the scene.

28Mitigating matters relied on for your offending were as follows: 

·that you had made an early plea of guilty, and this was submitted to be a reflection of your remorse and indication of your acceptance of responsibility;

·your letter, which had been addressed to Mr Lehane, in which you had apologised and accepted responsibility for the consequences of your offending;

·the admissions contained in your record of interview;

·you were a young offender at the time of committing the offence, being 18;

·you are still a young offender at the time of sentencing, being 20. Consequently it was submitted that rehabilitation was a primary sentencing consideration;

·the opinion of Jeffrey Cummins in his report that you presented as being "relatively immature";

·the opinion of Jacqueline Gouch, Youth Justice leader, that you presented as being quite young for your age and emotionally immature;

·your vulnerability in adult custody;

·the delay between the incidents on 23 September 2015 and your plea hearing.  Although not inordinate, it was submitted that it left you uncertain of your fate and subject to intense media scrutiny;

·your limited criminal history and the fact that this is your first time in custody; and

·you have been subjected to assaults resulting in you being placed in confinement.

29Your counsel also presented character references.  There was a character reference from your aunt, Kaysey Burch, Mr Tilley, who had known you since you were a baby, and Jeffrey Bruce Owen, the managing director of JBO Engineering.  There were also certificates from the Kangan Institute confirming that while you have been in custody you have completed certificates in construction and planning operations. 

30In her reference, your aunt said that during the first few months you were on bail and living with her family, you were making great choices, and you seemed positive about how you could change your life around.  However, as time got closer to sentencing, you began to derail, thinking about the uncertainty of your future.  Mr Owen referred to the period when you worked at his firm as a factory hand.  He said that most of the time you fulfilled the required duties and responsibilities adequately, however during February 2017, your behaviour changed abruptly, and your employment was ceased.

31Mr Owen was disappointed that things turned out the way they did.  He believe that you had the capacity to be a decent person, but needed proper guidelines and help to sort through your problems.

32Your counsel submitted that taking into account in particular: your youth, your acknowledgement and acceptance of responsibility for your offending, your genuine remorse and family support, that your prospects for rehabilitation could be described as favourable. In making this submission, she also relied on the evidence of Ms Gouch that you had positively engaged with Youth Justice while you were on bail.

33With respect to general sentencing propositions or principles, it was submitted by your counsel that while general deterrence is a significant and important consideration for culpable driving, you were a young offender, and it should not extinguish rehabilitation as a primary sentencing consideration.

34In support of this submission, she relied on the case of DPP v McCloy,[1] where the Court of Appeal said:

"In respect of a particular offence, general deterrence may ordinarily be a predominant sentencing consideration, thus the offence of culpable driving, but there can be no inflexible rule.  There may still be cases of culpable driving where prospects of rehabilitation is at the forefront of sentencing considerations."

[1] [2006] VSCA 99

35She also referred to the case of KT v R,[2] where the New South Wales Court of Appeal said:

"The law recognises the potential for cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law.  Accordingly, allowance must be made for the offender's youth, and not just their biological age.  The weight to be given to the fact of the offender's youth does not vary depending on the seriousness of the offence.  Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality will be less than if the same offence was committed by an adult."

[2] [2008] NSWCA51

36Relying on these cases and the mitigating factors I have just referred to, your counsel submitted that an appropriate sentence in this case would be a term of detention in a Youth Justice Facility.  The sentence could be for the maximum time allowable with no declaration as to the days you had already served.  Alternatively, if the court was not prepared or not persuaded by this primary submission, it was submitted that a head sentence with a longer than usual parole period would be appropriate.

37In addition, it was submitted that this was an appropriate case for a recommendation from the Bench regarding the application of s.471 of the Children, Youth and Families Act. 

Prosecution Case

38The prosecutor submitted that a period of detention in a Youth Justice Facility was not within range.  While it was acknowledged that you were a young offender, it was submitted that less weight should be given to your rehabilitation because of the serious nature of your offending, and the importance of general deterrence in cases such as this.  In support of this submission, the prosecution relied upon a number of authorities, including DPP v Neethling,[3] a case where a young offender had pleaded guilty to dangerous driving causing death and serious injury. 

[3] [2009] VSCA 116

39In allowing the Director's appeal against sentence, the Court of Appeal held:

“It has long been established that as a general rule, rehabilitation should be primary, if not the principal, concern in sentencing young offenders.  It was equally well established however that this principle had sometimes to give weight to other sentencing considerations.  The present was such a case.  It was precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight."

40The prosecution also relied on DPP v Hill,[4] where the Court of Appeal held that:

"The offence of culpable driving is one which is frequently committed by young drivers.  If general deterrence is to be meaningful, it must be directed towards this class of offenders, and cannot be regarded as irrelevant because of their youth."

[4] [2012] VSCA 144

41The prosecutor disputed that your case was in the low to mid-range for such offending.  It was submitted that this case was a serious case of culpable driving.  While no drugs or alcohol were involved at the time of the collision, you had been riding an unregistered motorbike whilst unlicensed, you knew the bike had a compromised braking capacity, and you had travelled at an excessive speed in a built-up area.  You did not stop at the pedestrian crossing, and did not pay proper attention to your surroundings.

Sentencing Remarks

42In sentencing you, I accept all the mitigating matters referred to by your counsel.  You are entitled to a discount for your plea of guilty, as it saves the witnesses the trauma of giving evidence in court, and the State the expense of a trial.  I accept that your plea of guilty is a reflection of your genuine remorse. This finding is supported by Jeffrey Cummins, who is of the opinion that you were generally remorseful concerning your offending behaviour.  He reported that you were “overwhelmed with feelings of shock, self-directed anger, guilt, shame and apprehension concerning your current situation.”

43In addition, I accept Mr Cummins' opinion on p.5 of his report that immaturity played a significant role in your offending behaviour.  In doing this, I have taken into account the evidence of Ms Gouch that you are young for your age and emotionally immature.

44I also accept and have taken into account that the delay in this case. While not extensive, has placed considerable strain on you.  You are a young offender with a limited criminal history, and I accept that you will be vulnerable in adult gaol.

45However, I consider that you prospects of rehabilitation are somewhat guarded, given your reoffending while on bail, and your immaturity. 

46This type of case presents a difficult sentencing exercise for the court, as the court has to balance all these mitigating factors, including that you are a young offender, with the fact that your offences had tragic and appalling consequences.

47In the case of R v Franklin,[5] Warren CJ said:

"Cases of culpable driving continue to come too frequently before the court.  What is striking about these cases is that one moment in time can have such devastating consequences."

[5] [2009] VSCA 77

48As a result of your negligent actions, a young woman, who should have had the rest of her life to look forward to, has met a traumatic death.  Her husband and two young children have been deprived of both a wife and a mother, and no doubt will suffer grief for many years to come.  It is because of the terrible consequence of this type of offending that Parliament has fixed a maximum penalty of 20 years' imprisonment.

49Unfortunately, culpable driving is frequently committed by young men, and the authorities I referred to earlier in this sentence establish that general deterrence is important, and in such cases youth must be given relatively less weight.

50In sentencing you, I accept the prosecution submission that this is a serious example of culpable driving, in particular because of the fact that you were riding a motorcycle in the service road of a busy shopping centre when you knew that the front braking system had been removed.  You built the bike yourself, and you should have been well-aware of its failing. 

51In your record of interview, you said to the police that your bike had no brakes, and you could not have stopped instantly, as you only have back brakes.  This factor alone, in combination with the fact that you were travelling at double the speed limit in a busy shopping centre over a pedestrian crossing, makes this a serious example of culpable driving.

52In a number of decisions, the Court of Appeal has also emphasised the importance of the moral and legal obligation of a driver to remain at the scene after an accident, and the gravity of that offence.  When you left the scene, you were aware that you had hit a pedestrian.  You knew, or ought to have known, that your actions could have resulted in the person being killed or suffering serious injury. 

53In your record of interview, you acknowledge that you should have stopped.  While I accept that you panicked, and that there were others on the scene who could attend to the victim, your actions were morally reprehensible, and I denounce your conduct.  In doing so, I note that in her victim impact statement, Andrea Lehane's sister said:

"What I find most upsetting about her death was the fact that the accident happened and she was left.  Such an inhumane act was done to my little sister.  I think 'how much pain did she feel?', 'how aware was she?', how could someone just leave her there?'.  That fact just grates against the most core of morals and values we have instilled in us as kids, and it hurts like hell."

Sentence

54Caleb Jakobsson, on the charge of culpable driving, you are sentenced to six years' imprisonment.  On the charge of failing to stop after an accident, you are sentenced to two years and six months' imprisonment.  The base sentence is the sentence of six years on Count 1.  I cumulate 12 months of the sentence on Count 2 on that sentence.  This means that your head sentence is a sentence of seven years.

55I fix a non-parole period of four years. Pursuant to s.89(1) of the Sentencing Act, your licence is cancelled.  You are disqualified from obtaining a licence for a period of four years.

56You have spent 118 days in presentence detention, I declare this as time served. 

57With respect to your counsel's submission concerning s.471 of the Children and Young Persons Act, I note that you are in the youth division within the adult prison system.  Given your age and immaturity, I consider that you would be for placement in such a division, however this is not a matter to be determined by this court.

58But for your plea of guilty, you would have been sentenced to nine years in gaol to serve six. 

59I make a forfeiture order for the motorbike.

60Is there anything else? 

61MR ONG:  No Your Honour.

62MS CHURCHILL:  No Your Honour. 

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