Director of Public Prosecutions v Jenkins

[2015] VCC 1467

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN ROBERT JENKINS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2015
CASE MAY BE CITED AS:	DPP v Jenkins
MEDIUM NEUTRAL CITATION:	[2015] VCC 1467

REASONS FOR SENTENCE
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Subject:
Catchwords:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Offender	Ms A. Beech

HER HONOUR: 

1Ben Robert Jenkins, you have pleaded guilty before me to one charge of dangerous driving causing death.  The facts underlying your offending are as follows.

2At about 11.45 am on November 27, 2014, a fatal collision occurred when a Nissan Patrol four-wheel drive driven by you hit a motorcycle ridden by Victor Hymas at the intersection of Jeeralang North Road and Church Road in Hazelwood North.  You were driving your car, a work vehicle owned by the CFA, east along Church Road.  At its intersection with Jeeralang North Road, Church Road is controlled by a give-way sign.  Mr Hymas was driving his BMW motorcycle north along Jeeralang Road North and was not required to stop or give way at the intersection.  The speed limit for both roads was 100 kilometres per hour.  There is an intersection approaching warning sign on Church Road about 80 metres from the intersection and a give-way sign about ten metres back from the intersection.  However, you failed to obey the give-way sign and entered the intersection, colliding with Mr Hymas’ motorbike.

3As I understand it, you entered the intersection travelling at about 45 kilometres per hour, realised your mistake, applied the brakes and tried to avoid Mr Hymas’ bike, but your car skidded and at the time of collision were travelling at an estimated 23 kilometres per hour.  Mr Hymas, who had previously been travelling at about 90 kilometres per hour, also braked and swerved to avoid your vehicle and reduced his speed in the process to an estimated 58 kilometres per hour at the time he was hit.  On collision, both vehicles travelled to the north-east corner of the intersection where they came to rest.

4It is uncontested that you immediately used your car radio to call for emergency assistance and called out loudly for help and a number of nearby residents attended the scene.  You were described by one witness as "really distressed", crying out "What have I done?  What have I done?"  You performed CPR on Mr Hymas until another CFA crew arrived and took over.  Mr Hymas, however, was pronounced dead at the scene.

5On the day of the incident, as part of your duties as a district mechanical officer, you were attending repair jobs at various fire stations and, at the time of the collision, were heading to the Hazelwood North Fire Station in Jeeralang North Road, about 300 metres from the accident scene. 

6You were taken to the Latrobe Valley Hospital, where you were found not to have suffered any injuries.  Analysis of a blood sample did not detect either alcohol or drugs.  At the time of the accident the day was warm and sunny, the roads dry and in good condition and visibility was good.

7In a record of interview, after legal advice, you gave "no comment" answers to the allegations. 

8The matter was resolved at committal mention on August 20, 2015 and proceeded by way of a straight hand-up brief after you entered a plea of guilty.  That plea is accepted as one which was made at an early opportunity.

9The maximum penalty for this offence is ten years' imprisonment.

10

I received victim impact statements from Mr Hymas’ son, Chris; his daughter, Michelle; sister, Leonie; brother, Gerald; sister-in-law, Sandra;

daughter-in-law, Cathy; granddaughter, Natasha; and partner, Pauline Stanhope.  It was clear Mr Hymas’ was a man most beloved by his family and that his death has caused them ongoing and profound grief.  The evident love each person bore for him shone through the pages of each victim impact statement.

11I now turn to your personal circumstances.

12You are 25 years old, the second of two children born to your parents.  You have a sister two and a half years older than you.  Your parents separated before you were born, but you enjoyed regular contact with your father, and until you were about seven your family life was happy.  Your mother then commenced a relationship with a man who was abusive, violent and controlling to all of you.  Your sister, Karen Moon, gave evidence on the plea of his effect on all of you, describing in particular your loss of self-confidence and self-worth at the hands of this man. 

13According to psychologist, Patrick Newton, whose report dated 24 September 2015 was tendered on the plea, you, from an early age, developed anxiety and depression as a result. 

14In your early teens you went to live with your father, but as he then left to work interstate, you returned to live with your mother and her partner and the abuse continued.  Your sister had left home at 15 to escape it, so you had lost her support by the time you again returned.

15You had severe literacy and numeracy skills, (your father apparently suffers from dyslexia), and required remedial assistance at primary school.  Nevertheless, you persisted with your studies and completed Year 11.  You then undertook an apprenticeship as a diesel mechanic with the Country Fire Authority, which work you have thoroughly enjoyed.  You completed your apprenticeship and were then employed by the CFA as a diesel mechanic, which work you have continued to this day.  As I have said, the fatal accident occurred in the course of that employment as you travelled between CFA stations where you were effecting repairs.

16You have been in a relationship with your partner, Naomi, for about three and a half years.  The two of you rent a house on a property owned by your grandfather and the plan is that you will one day purchase it from him.  The property has cattle agisted on it and you also work on the farm and on weekends for a local mechanic.

17The effects of the collision upon you have been profound and devastating.  Both Mr Newton and psychologist, Lee Minton, on whom you have regularly attended since the accident, have diagnosed you as suffering post-traumatic stress disorder.  You experience symptoms of intense feeling of guilt, anxiety, depression, poor sleep, suffer constant flashbacks of the collision and of the deceased man's injured body.  You could not return to work for three months.  You were unable to drive a vehicle at all after the accident and travel to work and other places by pushbike.  Since May 2015 you have been able to drive a car only within the confines of a CFA workstation.

18I am satisfied that you continue to experience agonising remorse over your actions.  Indeed, Mr Newton stated:

"It should be noted that Mr Jenkins' current symptoms of depression are not primarily the result of pessimism regarding sentencing or distress at the prospect of punishment per se.  Rather, it is regret for the death of the rider and for the contribution of his conduct to that event that are currently pre-eminent in his mind.  Many aspects of Mr Jenkins' response are considered to be an indication of maturity and insight into the gravity of this situation."

19Both believe that your symptoms have not greatly improved over time, despite counselling, and will persist into the future.

20You were considered by each psychologist to be a law-abiding pro social young man, Mr Newton stating:

"He is generally a conventional and conscientious person who espouses prosocial personal values.  He respects lawful authority.  He has a strong work ethic.  His relationships with others are neither exploitative nor uncaring and evidence none of the callousness and characteristics of antisocial individuals.  Moreover, his general good character, his caring approach to his relationships and the high moral standards he has set for himself are the diametric opposite of the traits which would be seen in antisocial individuals."

21You apologised to Mr Hymas’ family at the committal mention hearing and also wrote a letter of apology which you forwarded to the informant in this case.

22I received a raft of references from family, friends and work colleagues.  All referred to your caring nature, your general quiet demeanour, your very strong work ethic (you were in fact nominated for Apprentice of the Year awards in 2010).  Your partner's father described you as "the type of young man that any parent would hope his daughter would bring home to meet them."  All spoke of the devastating, profound and almost crippling remorse you have experienced since the collision and which you experience to this day.  You continue to enjoy widespread support from your partner, her family, your parents, your sister and her husband, your friends and your colleagues. 

23The CFA has demonstrated its regard for you in the intense support it has provided by way of psychological counselling and a graduated return to work scheme.  Your work supervisor, Kelvin Gleeson, officer-in-charge of a district mechanical workshop, gave evidence on the plea as well as providing a reference.  Most of those who wrote references also attended court to support you.

24It was Mr Newton's opinion that your risk of reoffending was very low.

25You do have one prior matter, an appearance before the Children's Court in 2005, when you were 17, and apprehended by police riding on an unregistered dirt bike on a country road.  You pulled over when ordered, but then panicked and took off.  You were interviewed shortly after, made full admissions and were dealt with by way of a non-conviction good behaviour bond.  The age and circumstances of this offending are such that I do not regard it as relevant to the sentencing exercise before me.

26It was Mr Newton's opinion that you would find incarceration more onerous than the ordinary prisoner.  He believed there was considerable risk that your already compromised mental state would deteriorate and that you would be vulnerable to both more regular and more intense bouts of anxiety and mood disturbance than would a prisoner who did not suffer your pre-existing emotional challenges. 

27The authorities make it clear that a sentence of imprisonment should be imposed for dangerous driving causing death in all but exceptional circumstances.  Central to this is a level of moral culpability.  (See the case of Neethling v R [2009] VSCA 116).

28In this case I accept it appears not to be contested that the collision was caused by a momentary inattention by you.  You entered the intersection driving well below the speed limit, 45 kilometres per hour in a 100 kilometres per hour zone, you realised your mistake and sought to rectify it by braking so that your speed at collision was 23 kilometres per hour.  You were unaffected by drugs or alcohol.  You immediately sought to render assistance, radioed emergency services, calling for help and performing CPR. 

29

I am by no means trivialising the very tragic loss of Mr Hymas and the great grief that this has caused to his family when I say that I am satisfied that your level of culpability in this case was low.  By that I mean you were not behaving like a hoon.  You were not behaving in a way which was generally uncaring of road conditions.  You were obeying the speed limit. You had not been taking or using drugs. You did everything you could as soon as the accident occurred.  In my view, as I have said, your actions on that occasion overall, although resulting in the very tragic loss of

Mr Hymas’ life demonstrated a low level of moral culpability.

30Additionally, I am satisfied that despite your difficult upbringing, you are an entirely law-abiding, hardworking and prosocial young man who has exhibited entirely genuine and overwhelming remorse for your actions. 

31I am satisfied that paragraphs 6 and 7 of Verdins have application to this case.  You have immense personal and professional support.  In my view, yours is one of those exceptional cases whereby a court could appropriately respond to your offending by way of a non-custodial disposition. 

32I note that the authors of several of the victim impact statements were particularly gracious in expressing their desire that mercy be extended to you.  In particular, Mr Hymas’ partner of 17 years, Pauline Stanhope, wrote that the heaviness of the burden she now bears would be lightened if you were to receive a disposition that enabled you "a restoration to regain a composure of life with counselling and support to establish his life in the workplace, family and society."

33It is clear at law that the wishes of victims are not to play a prominent role in a court's sentencing exercise, but they do have a part to play in the constellation of exceptional circumstances that I have found exist in this case.

34I propose placing you on a community corrections order. 

35I am very conscious of the presence of Mr Hymas’ family.  I am very conscious of the great grief that you continue to endure and that you will continue to endure.  As I said, it was clear he was a most beloved man, that he lived a life where family and family occasions were of great joy and importance to him and, shortly after that, his great love of motorbikes, his love of touring country Victoria.  I found their victim impact statements to be incredibly moving, not just because of the sorrow that they exhibited, but because of the very vivid picture they painted of Mr Homes and of the very special relationship that each family member enjoyed with him, and that included the victim impact statement from his granddaughter, Natasha. It was just so evident, including the photographs, just what sort of man he was, and I want to make it very clear that in finding as I have, that the appropriate way to deal with Mr Jenkins is not by sending him to gaol in no way overlooks or trivialises or takes away from the wonderful man that Mr Homes was and the great loss that he has been to all his family, and the court extends its very sincere sympathy to the Hymas family.

36Now I propose sentencing you to a community corrections order for a period of two and a half years, Mr Jenkins.  Could you stand up, please?

37I can only place you on this order if you consent to being so placed on it, all right? 

38I need to explain to you the conditions attached to this order.

39They are that you must report to a Community Corrections Office within two works of the making of this order.  That is by Monday of next week.  Whilst on the order, you must not commit any offence punishable by imprisonment, whether inside or outside Victoria.  You must inform the Office of Corrections of any change of address or employment within 48 hours of that change.  You may not leave Victoria without the permission of the Community Corrections Office.  You must receive visits from and attend upon Community Corrections as they order.  You must obey all lawful directions of the Community Corrections Office. 

40I am going to add two special conditions.  The first is that you must undertake unpaid community work in the amount of 250 hours.  I know this is going to be difficult for you because of the other commitments that you have, but it does seem appropriate that you undertake this work.  I am also going to order that you undertake assessment and treatment for mental health difficulties.  You have got a post-traumatic stress disorder.

41They are notoriously long lasting and difficult conditions.  The way your life is going to proceed, your capacity to enjoy life, your capacity to be a partner, ultimately perhaps a father, a good employee, is going to be very, very difficult for you unless you can overcome this. 

42As I have said, it is quite clear that you have suffered enormously from this momentary and fatal inattention on the roads, but you have got a long life ahead of you.  You have got people who love you and want to be part of that life, and you owe it to them to overcome this.  Does that make sense to you?

43OFFENDER:  Yes.

44HER HONOUR:  I am not saying forget about what you did and go away.  I do not think you will ever forget.  I do not think you are the sort of person who will ever forget what occurred, but at some level you have to learn how to forgive yourself and you do have to learn how to live your life again.  The sort of reaction that you have had to this is in many ways commendable and is entirely appropriate in many ways, but it cannot go on forever.  It is going to be far too hard for your family, for your partner, for your friends, for your work colleagues.  You need to get back to a situation where you can enjoy your life again and where you can forgive yourself.  All right?  What happened happened.  It was appalling and it has had an appalling result, but you have got, as I said, many years of life again, and I want you to continue with the psychological counselling you are undergoing and you have to get past this.

45Unfortunately, and probably obviously, Mr Homes was obviously such a wonderful, loving and almost larger than life character.  He has a wonderful family, and whilst they are suffering a great deal of grief, they in no way wish you harm.  All right?  So you need to at some stage move past this.  It is going to take you some time, but you have to make efforts to do this, all right?  That is why I am ordering the psychological counselling that I am.

46Now are you prepared to enter this order?

47OFFENDER:  Yes, Your Honour.

48HER HONOUR:  Thank you.  Have a seat, we will prepare the paperwork.

49Your licence is cancelled and you are disqualified from obtaining any further licence for a period of two years. 

50Yes, thank you.  We will just get you to sign that, Mr Jenkins, thank you.

51(Community Corrections Order signed and acknowledged.)

52Yes, thank you.  I wish you well, Mr Jenkins, and again I wish the Homes family well, and I thank them very much for their participation in these proceedings, the provision of all the victim impact statements and for having the courage to participate in that first hearing.  It was not an easy thing to do.  Thank you.  I wish you all well for the future.

53Thank you very much.

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