Director of Public Prosecutions v Jonathan Wilson
[2022] VCC 1349
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00828
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN WILSON |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2022 | |
DATE OF SENTENCE: | 19 August 2022 | |
CASE MAY BE CITED AS: | DPP v Jonathan Wilson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1349 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death - inattention - significant moral culpability - no prior convictions - early plea of guilty - genuine remorse - post traumatic stress disorder – Verdins principles 5 and 6 engaged - s 5(2H)(e) considered - general deterrence
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Lee v The Queen [2021] VSCA 156; Worboyes v The Queen [2021] VSCA 169; DPP v Dalgliesh (2017) 262 CLR 428; Woldesilassie v The Queen [2018] VSCA 285; Pan v the Queen [2020] VSCA 42; Koukoulis v The Queen [2020] VSCA 19; Papagelou v R [2022] VSCA 53; R v Verdins [2007] 16 VR 269; Lee v the Queen [2021] VSCA 156; Buckley v The Queen [2022] VSCA 138; DPP v Bowen [2021] VSCA 355; The Queen v Al-Anwiya [2022] VSC 428
Sentence: 18 months’ imprisonment with a 9 months non-parole period – licence disqualification and cancellation for a period of 18 months – s 6AAA declaration – 2 years’ imprisonment with a 1 year non-parole period – licence disqualification
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Mr P. Lawrie | HWL Ebsworth |
HIS HONOUR:
Sentence Indication
1Jonathon Wilson, in this case, the Court heard your sentencing indication application under s 208 of the Criminal Procedure Act 2009 (Vic.). The application was listed for hearing on 26 July 2022 and was adjourned part heard until 12 August 2022 to enable your treating psychologist, Mr Hahs to give evidence in court.
2On 12 August 2022 after hearing from Mr Hahs and hearing submissions from counsel, I reserved my decision.
3On 19 August 2022, I indicated that, if the you pleaded guilty to the one charge of Dangerous Driving Causing Death (DDCD), the court would be likely to impose a sentence of 18 months’ imprisonment with a non-parole period of 9 months.
4After a brief adjournment, your counsel informed the court that you accept the indication.
5You were then arraigned on the one charge on the Indictment and I proceeded to sentence you in accordance with the indication I had given. These are my reasons for imposing the sentence.
Background
6You have pleaded guilty to one charge of DDCD contrary to s 319(1) of the Crimes Act 1958 (Vic). This offence carries a maximum penalty of 10 years’ imprisonment.
7On Friday 16 April 2021 a fatal motor vehicle collision occurred at the intersection of Doveton Street South and Eyre Street in Ballarat Central. The victim was Mrs Angela Loader. The intersection, which is surrounded by a combination of residential and commercial premises, is controlled by traffic control signals for vehicular and pedestrian traffic.
8You were born in October 1975 and were 45 years old at the time of the offending. You were employed by Ballarat Council to collect residential rubbish and were on duty at the time of the collision. You were the holder of a Victorian car and heavy rigid driver licence which was due to expire on 20 June 2021.
9The deceased, Angela Loader, was born in Ballarat in November 1959. She had lived her entire life in Ballarat, and at time of the collision she was 61 years old.
Circumstances of the Collision
10The collision occurred in broad daylight at approximately 8:36 AM, and although the weather conditions were overcast, visibility was clear.
11You were driving a 2017 Isuzu FXY150G side loader garbage truck. The vehicle was registered to the City of Ballarat and the registration was due to expire on 30 June 2021. The vehicle was fitted with a dual steer system and a dash camera.
12Just prior to the collision, Mrs Loader was on her way to work, and was standing at the pedestrian crossing on the southern side of Eyre Street, waiting for the light to indicate that she had right of way to cross the road.
13You approached the intersection with Eyre Street on Doveton Street South and stopped in the left-hand turn lane at the red traffic light. You were sitting in the left-hand driver’s seat which was the normal passenger side of the vehicle.
14When the traffic light turned green, you began to turn into Eyre Street. The green light did not have a turn arrow, so you were required to give way to any pedestrians crossing Eyre Street. The green pedestrian light was also activated, and Mrs Loader began to cross Eyre Street.
15Just before the impact with the truck, Mrs Loader attempted to run, but she was ultimately struck by the front-right hand corner of the truck and fell to the ground. You immediately pulled the Isuzu over to the side of the road and exited the vehicle to assist Mrs Loader. Mrs Loader was taken to hospital with life threatening injuries and died later the same day.
16As I was invited to do by the prosecution, I have viewed three video recordings of the collision. One of these is the dashcam footage from your truck. According to that footage, the sequence of events leading up to the collision was as follows:
· At 2 minutes and 20 seconds into the recording, Mrs Loader can be seen standing at the pedestrian crossing having pressed the button;
· At 2 minutes and 31 seconds, you completed your final rubbish pick up before reaching the intersection;
· At 2 minutes and 36 seconds, you stopped at the red traffic signal in the left lane;
· At 2 minutes and 48 seconds the pedestrian light and the traffic light both turn green and Mrs Loader commences to cross the road. At the same time your truck starts to turn left; and
· At 2 minutes and 55 seconds, the truck collides with Mrs Loader.
17On 26 July 2022, I informed the parties that these are the times that I consider are revealed by the recording. There was no dispute about the accuracy of the times.
Objective gravity and moral culpability
18As the Court of Appeal has explained in relation to offences of dangerous driving, ‘…the degree of dangerousness depends upon the extent of the risk which the driving creates and the extent of potential harm which would be caused should that risk materialise’.[1] An assessment of the offender’s moral culpability will always be important to the sentencing task.
[1] Lee v The Queen [2021] VSCA 156 (Lee) at [18].
19In Lee, the Court held that:
The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road. Compliance with that obligation is essential to community safety.[2]
[2] Lee [2021] VSCA 156 at [20].
20Based on the time line summarised in [16] above, Mrs Loader was visible to the you for 35 seconds before the collision. Accepting as I do that until you had completed your last pick up, you would likely have been distracted by your work, Mrs Loader was still visible to a person sitting where you were sitting for 24 seconds after the pick-up was completed and for 19 seconds between the time you stopped at the red light and the time of the collision.
21I consider this period of 19 seconds to be the most relevant. Your failure to see Mrs Loader in clear daylight with no impediment between where you sat and Mrs Loader is unexplained. It represents a serious departure from the standard of care the law requires of an experienced driver in your position.
22Here the risk created by the driving was high and the potential harm was extreme given the size of the vehicle you were driving. I therefore assess your moral culpability as significant.
Impact of offending
23As is so often the case in such matters, the death of Mrs Loader has unsurprisingly caused great suffering among her family. That suffering is abundantly clear in the four victim impact statements that have been provided to the court. The statements are made respectively by:
(a) the late Mrs Loader’s sister, Mary Adriaans;
(b) her niece, Sarah Elksnis;
(c) her son, Matthew Loader; and
(d) her daughter Michelle Huie.
24They each speak movingly of the profound distress and grief they have experienced as a result of the death of Mrs Loader in such circumstances.
25The court is required to take into account the impact of the offending on victims and I have had regard to these victim impact statements.
Personal circumstances
26You have worked for the Ballarat Council for 25 years, 20 of which you have spent driving garbage trucks.
27You and your former wife have two children – Goldie who is 8 and Archie who is 15. Your overall health is good although you had an unexplained neurological episode immediately after the accident.
28You have a good work record and have contributed to the local community through your involvement in local junior sport.
Mitigating factors
29The defence relies on the plea of guilty which is early and therefore has a high utilitarian value. Because it is made while the pandemic continues to have an effect on the court’s backlog, it is a plea that entitles you to an additional substantial discount on sentence.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
30I accept that you are genuinely remorseful. Your treating psychologist, Mr Hahs states that you have shown ‘very deep remorse’ about your actions involving the fatality.[4] In his oral evidence, Mr Hahs said that you have ‘incredible remorse’.
[4] Letter from Adam Hahs dated 29 June 2022.
31Mr Hahs has seen you on 22 occasions since 21 May 2021. He has diagnosed you with Post Traumatic Stress Disorder (PTSD) and has treated you for that condition as well as for anxiety and depression. Mr Hahs states that your clinical problems are directly related to the fatality. He gave evidence that your PTSD will mean that a custodial sentence will weigh more heavily on you. He also expressed the opinion that because you will not be able to access all of the treatment you need in custody, your simple PTSD could become complex.
32You have no prior convictions and are generally of good character as is attested to in the character references tendered on your behalf.[5]
[5] The Court received character references from Jason Spark dated 12 June 2022; Warrick Davison dated 12 June 2022; and Gavin John Nash dated 12 June 2022.
Current sentencing practices
33The court is required to consider current sentencing practices which may inform the task of sentencing.[6] These are not precedents but merely one matter to take into account among the others listed in s 5(2) of the Sentencing Act 1991.[7]
[6] Sentencing Act 1991 (Vic.), s 5(2)(b).
[7] DPP v Dalgliesh (2017) 262 CLR 428.
34The court was referred to the cases of Woldesilassie v The Queen,[8] Pan v The Queen,[9] and Koukoulis v The Queen.[10]
[8] [2018] VSCA 285.
[9] [2020] VSCA 42.
[10] [2020] VSCA 19.
35In Woldesilassie,[11] the driver entered an intersection against a light that had been red for some time and collided with two pedestrians killing one and injuring the other. The Court of Appeal characterised the driver’s inattention as ‘prolonged and extended’ but did not consider he had deliberately taken the risk of ‘running’ a red light. The finding by the sentencing Judge that the driver’s moral culpability was low was endorsed by the Court of Appeal. There were powerful mitigating factors including the lack of prior convictions, his early guilty plea, his remorse and the risk of deportation on release from prison. The head sentence of 3 years 6 months, which was characterised by the Court of Appeal as ‘stern’, was left undisturbed.[12]
[11] [2018] VSCA 285.
[12] [2018] VSCA 285 at [46].
36Pan v The Queen[13] was a case in which the driver’s moral culpability was reduced by virtue of poor road design which meant the intersection in question was an ‘accident waiting to happen’.[14] The case is therefore clearly distinguishable and of little assistance.
[13] [2020] VSCA 42.
[14] [2020] VSCA 42 at [88].
37In Koukoulis,[15] a bus driver with an unblemished record struck and killed a pedestrian who was crossing the road lawfully. It was also a case of inattention. A combination sentence of 12 months imprisonment and a 2 year Community Correction Order was described by the Court of Appeal as sufficient punishment. I note that the case was decided before the ‘substantial and compelling circumstances’ test was added to the Sentencing Act 1991.
[15] [2020] VSCA 19.
38Two further cases are worthy of mention.
39In the case of Papagelou v R,[16] the defendant killed a pedestrian when he entered an intersection by overtaking a stationary vehicle on the left as the amber light was turning to red. He had a blood alcohol concentration of .075 and had been warned not to drive by his passenger.
[16] [2022] VSCA 53.
40The Court of Appeal reduced his sentence from 4 years to 3 years given that the pedestrian contributed to the accident by crossing against a red light himself and in light of the ‘powerful mitigating factors which in combination should have led to a significant amelioration of sentence’.[17] Those factors were his lack of prior convictions, the plea of guilty during the pandemic, his genuine remorse and his diagnosis of PTSD which activated limbs 5 and 6 of Verdins.[18]
[17] [2022] VSCA 53 at [23].
[18] [2022] VSCA 53 at [24]-[29].
41In Lee v The Queen,[19] the driver drove through a red light and collided with two pedestrians killing one and injuring the other. The facts were very similar to those in Woldesilassie.[20]
[19] [2021] VSCA 156.
[20] [2018] VSCA 285.
42The driver’s moral culpability was assessed as high.[21] The sentence of 6 months’ imprisonment was left undisturbed by the Court of Appeal which described it as ‘merciful’.[22]
[21] [2021] VSCA 156 at [23].
[22] [2021] VSCA 156 at [30].
43It is not easy to reconcile the outcomes in these various cases.
Sentence Indication
44DDCD is a category 2 offence under the Sentencing Act 1991 (Vic.).[23] As a result, a court is required to sentence a person who is found guilty of DDCD to a sentence of imprisonment unless one of the exceptions in s 5(2H) of that Act is applicable. The only exception relied upon by your counsel in this case is the one in s 5(2H)(e). I note that no reliance was placed on s 5(2H)(c)(ii).
[23] S 3(1).
45Section 5(2H)(e) provides that a court is not required to impose a sentence of imprisonment if there are ‘substantial and compelling circumstances that are exceptional and rare’ that justify not imprisoning the person.
46In determining if there are substantial and compelling circumstances that are exceptional and rare, the Act relevantly states that a court must:
a) regard general deterrence and denunciation of the offender’s conduct as having greater importance than other sentencing purposes such as rehabilitation of the offender;
b) give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
c) not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation.
47The Sentencing Act 1991 also provides that in determining if there are substantial and compelling circumstances that are exceptional and rare, the court must have regard to:
a) the Parliament’s intention that a custodial order should ordinarily be made; and
b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
48The net effect of these provisions is that the court’s otherwise broad discretion to impose a sentence that is appropriate in the circumstances of the case is circumscribed quite significantly. The Court of Appeal has recently observed that these provisions mean that the court is ‘effectively compelled – by law – to impose a custodial sentence and to fix a minimum term of imprisonment’.[24]
[24] Buckley v The Queen [2022] VSCA 138 at [1].
49In another case, the same Court described the test of ‘substantial and compelling circumstances that are exceptional and rare’ as ‘almost impossible to satisfy’.[25]
[25] DPP v Bowen [2021] VSCA 355 at [11].
50Mr Lawrie, on your behalf, submitted that the test is satisfied in the circumstances of this case. He referred the court to circumstances which were, he submitted, substantial, compelling, exceptional and rare when considered in combination. The circumstances are:
(a) that your moral culpability is low;
(b) the lack of prior convictions or findings of guilt; and
(c) the utility of the plea of guilty.
51For the reasons I have already explained, I do not accept that your moral culpability for this offending is low.
52While I accept that you have no prior convictions or findings of guilt, this is not a matter that I consider to be exceptional and rare. It is relatively common in cases of dangerous driving.
53Turning to the third matter upon which your counsel relies, I note that Mr Porceddu for the prosecution submits that the court is unable to take into account the plea of guilty by virtue of s 5(2HC)(c)(ii) of the Sentencing Act 1991 (Vic.). That sub-paragraph prevents the court from having regard to an ‘early guilty plea’. Mr Porceddu argues that it prevents the court from having regard to the fact of the plea of guilty because, as a matter of logic, the earliness of a guilty plea goes to its utilitarian benefit and it would be illogical if the court could consider a plea of guilty but not the date at which it was made.
54Mr Lawrie argues on your behalf that, had the legislature intended to exclude any consideration of a guilty plea, it could have said that.
55Neither party could direct the court to any applicable authority on the question.[26] While I find the prosecution’s proposed construction more compelling, it is not necessary, and nor would it be appropriate on a sentencing indication, to resolve this issue of statutory construction. It is unnecessary because, even accepting that I can have regard to the utility of the plea of guilty but not its timing, the circumstances identified by Mr Lawrie do not, in combination, meet the test.
[26] In The Queen v Al-Anwiya [2022] VSC 428 at [53], Fox J took into account ‘the value (but not the timing)’ of a guilty plea in the application of the s 5 (2H)(e) test. It does not appear that her Honour heard argument on the question.
56I am therefore compelled to impose a sentence of imprisonment and to fix a period before which you will be ineligible for parole.
Length of term of imprisonment
57In determining an appropriate total effective sentence, the court is able to have regard to all of the purposes of sentencing including the need to facilitate your rehabilitation. I can also consider all of the mitigating considerations including your mental health, your previous character and personal circumstances.
58I am satisfied that both limbs 5 and 6 of Verdins[27] have application in this case based on the evidence of Mr Hahs. The sentence is moderated accordingly.
[27] [2007] VSCA 102 at [32].
59While general deterrence is an important sentencing consideration in this case, I consider that specific deterrence is of less significance. I consider it is unlikely that you will offend again.
60It is important in my view that your rehabilitation be promoted and I have sought to do this by setting an appropriate non-parole period.
61Taking all of the above into account including current sentencing practices, and having regard to the applicable sentencing considerations including the gravity of the offending and the effect on the victims, I consider that 18 months’ imprisonment is an appropriate Total Effective Sentence. I consider that 9 months’ imprisonment is an appropriate Non-Parole Period.
62As noted, an indication to that effect was accepted by you and you were arraigned on the one charge of DDCD.
63You then made an apology to the family and friends of Mrs Loader through your counsel, Mr Lawrie. Mr Lawrie informed the court that you think about the events and the effect of the events every day. You are truly very sorry for the distress you have caused to the family and friends of the late Mrs Loader. I have taken this into account as part of my assessment of your prospects of rehabilitation which I have assessed as good.
64I make the following orders:
(a) On the charge of DDCD, you are convicted and sentenced to 18 months’ imprisonment.
(b) I direct that you serve a period of 9 months before becoming eligible for parole.
(c) Pursuant to s 89(2) of the Sentencing Act 1991 (Vic.), all your licences to drive motor vehicles are cancelled and you are disqualified from obtaining a licence for 18 months.
(d) Pursuant to s 6AAA of the Sentencing Act 1991 (Vic.), I indicate that if you had pleaded not guilty and had been found guilty after a trial I would have sentenced you to 2 years’ imprisonment with a non-parole period of 12 months.
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