Director of Public Prosecutions v Kenneison

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01799

THE DIRECTOR OF PUBLIC PROSECUTIONS

DANNY KENNEISON

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Horsham and Melbourne
DATE OF HEARING:	30 March 2023
DATE OF SENTENCE:	14 April 2023
CASE MAY BE CITED AS:	DPP v Kenneison
MEDIUM NEUTRAL CITATION:	[2022] VCC 593

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE

Catchwords: Sentencing – dangerous driving causing death, dangerous driving causing serious injury, reckless conduct endanger serious injury.
Legislation Cited: s5(2H) Sentencing Act, Criminal Procedure Act, s6AAA Sentencing Act
Cases Cited: Farmer [2020] VSCA 140, Buckley [2022] VSCA 138

Sentence:Convicted and sentenced to 3-year Community Correction order. 300 hours unpaid community work, 50 hours of treatment and rehabilitation satisfactorily completed to be counted as unpaid community work. Participation in programs and/or courses to address factors relating to offending behaviour. Licence cancellation and disqualification for 18 months.
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Ms S. Ross, Office of Public Prosecutions
For the Accused	Ms J. Clark	Mr N. Graham, Nick Graham Legal

HIS HONOUR:

Danny Raymond Kenneison, you have pleaded guilty to two charges of dangerous driving causing death, one charge of dangerous driving causing serious injury and two charges of reckless conduct endangering serious injury. All five charges result from a motor vehicle collision that occurred on 8 October 2021 at Stawell Road, Horsham about 70 metres south of the intersection of Duff Street.
The facts of your offending are comprehensively set out in Exhibit A, the prosecution plea summary. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.
Very briefly stated, at about 2.40 pm on 8 October 2021 you were driving a
Hino truck fitted with a concrete agitator. You had delivered a load of concrete and were driving north on Stawell Road returning to your plant. Barbara Mackley was driving a Hyundai Tucson SUV north in Stawell Road and her sister, Fay Barber, was seated in the front passenger seat. In the rear seat of that car were her sister, Joy Wheaton and her niece, Lynn Mackley.
The intersection of Duff Road is controlled by traffic lights. Those lights turned red for traffic travelling north in Stawell Road. Barbara Mackley pulled up behind several cars in the left-hand lane of Stawell Road. Immediately ahead of her vehicle was a stationary Holden Utility driven by Cheryl Axell.
You approached the stationary vehicles at Duff Road from behind. The speed limit as you approached was 70 kilometres per hour, changing to 60 kilometres per hour about 90 metres from Duff Road. You were travelling at about 49 kilometres
per hour. On the western side of Stawell Road about 80 metres from Duff Road is the Glynlea Motel. Outside the front of that motel were a number of classic motor vehicles belonging to car club members who had driven up from Warrnambool.
As you travelled north in Stawell Road your attention was diverted by one of those classic cars and you turned your head to look at it. When you turned back to the road you saw the stationary Hyundai was still stationary in front of you. You braked hard but could not stop running into the rear of the Hyundai shunting it into the Holden Utility in front of it.
You had seen the line of stationary cars ahead of you as you travelled north. You started to slow down, and you were then distracted by the classic cars. The lights applicable to the northbound traffic had turned green, however, the vehicles at the rear of the line of traffic had not moved off. Your truck hit the Hyundai at about
39 kilometres per hour. The impact was severe and pushed the Hyundai forward about 11 metres. You remained at the scene as bystanders attempted to provide assistance. A retired nurse did what she could until emergency services arrived.
Fay Barber died at the scene. Barbara Mackley was flown to the Alfred Hospital but died on 11 October as a result of her injuries. Lynn Mackley received serious injuries and was also taken to the Alfred Hospital. Her injuries included head trauma and a spinal fracture. Joy Wheaton was taken to the Wimmera Base Hospital for precautionary X-rays, but she was fortunate not to suffer serious injury. Similarly, Cheryl Axell fortunately escaped serious injury.
The court was not provided with details of the timing of the traffic light cycles at
Duff Road. It appears that your attention was distracted from the road ahead for a second or two. You were interviewed by the police on the day of the collision and made a complete and frank account of what had occurred. You admitted being distracted by the classic vehicle and conceded that you had not left enough space between your truck and the other traffic.
Your dangerous driving is defined by your failure to keep a proper lookout at the time you were distracted by the classic car. The size of your truck, over 10 tonnes in weight, places a higher duty on truck drivers to be vigilant.
Your case is clearly one of momentary inattention with catastrophic consequences. The prosecutor correctly conceded that your offending represents a low-level example of the offence of dangerous driving causing death. Your moral culpability is, in my view, at a low level. This is, of course, not a reflection on the loss of
Fay Barber and Barbara Mackley's lives. It is an objective judgement as to the seriousness of your offending.
There is no suggestion that you were speeding or using drugs or alcohol. Nor were you sleep deprived or driving in an erratic or aggressive manner. Your conduct did not involve any wilful disregard to the safety and welfare of others on the road. That is, you did not knowingly take any risk.
Victim impact statements were tendered on behalf of Paris Barber, Fay Barber's granddaughter, Graham Meyer, Fay, and Barbara's brother, Sarah Smith,
Fay Barber's granddaughter, Roxanne Smith, her daughter, and Cheryl Axell, the driver of the Holden Utility.
The family of the deceased are devastated by the death of Fay and Barbara. The family was destroyed by one tragic incident. The grief is constant and overwhelming. Cheryl is traumatised and continues to be frightened on the road.
Holly Stevens also completed a victim impact statement. She was a witness to this horrific collision. She is troubled by assumed guilt and demonstrated how widely the trauma associated with catastrophic road collisions extend. I take the victim impact material into account in sentencing you.
You have admitted a dated criminal record. In 1994 you were sentenced to a good behaviour bond for damage to property. In 1992 you were fined $200 for possession use cannabis. In 1989 you were given a good behaviour bond for possession use cannabis. In the same year you were fined and lost your probationary licence for speeding. You were then 20 years of age. You have not offended for nearly 30 years. Given that you have worked as a professional truck driver for 20 of those 30 years without offending I regard your prior history as irrelevant to the sentencing process.
Dangerous driving causing death is a category 2 offence. The courts must impose a custodial sentence unless the criteria set out in s5(2H) of the Sentencing Act are established. The relevant provisions read,
'(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless, (a) the offender has assisted or given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of the offence'.
Relevantly in your case that can be thinned down to you have assisted law enforcement authorities in the investigation of an offence and sub-ss(c) and (d) are not relevant in this case unless sub-s(e) reads, 'There are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3'.
The Act stipulates that in determining whether there are substantial and compelling circumstances the court must regard general deterrence and denunciation of the offender's conduct as having greater importance than other purposes set out
in s5(1) of the Act and I must give less weight to the personal circumstances of the offender than other matters such as the nature and gravity of the offence. I am prohibited from having regard to the offender's good behaviour, early plea of guilty, prospects of rehabilitation or parity with other sentences in determining whether there are such circumstances.
Finally, as Mr Moore recently submitted, in determining whether there are substantial and compelling circumstances I must have regard to parliament's intention that in sentencing an offender for a category 2 offence ordinarily a term of imprisonment will be imposed. I must determine whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
I shall return to the application of these provisions to your case subsequently, but I want to turn to your personal circumstances. You are now 53 years of age having been born in June 1969. You have four older siblings, and both your parents are 89 years of age living in Diamond Creek. You grew up in the Greensborough area and were educated to mid-Year 12 level at Montmorency Secondary College. You left school midway through Year 12 to commence an apprenticeship as a locksmith. You worked in that industry for eight years until 1995 when you took up a position as an instructor with the Stay Upright Motorcycle Training company. You remained with that company until 1999 running courses for that company in the Wimmera until you moved to Horsham in 1999.
You took up a four-year position as a field technical assistant with the Department of Natural Resources at Horsham. From 2003 you have been continually involved with the trucking and transport industry working for several Horsham companies. You are an experienced and competent truck driver.
You were in a relationship with your ex-partner, Leanne, for 12 years. You separated in 2013. You have two daughters from that relationship, one who is in her late teens and one who is still in school and doing well. You have the majority of responsibility of care for your youngest daughter.
Since moving to Horsham, you have involved yourself in the local community.
You became the treasurer of the Pimpinio Football and Netball Club, secretary of the Horsham Motorcycle Club and secretary/treasurer of the Dooen Recreation Reserve.
References tendered on your plea describe you as an honest, kind, and caring person. You are said to be committed, dedicated, civil, honest, and generous in your executive roles in community organisations. You are described as a dedicated father of two children who has worked hard to provide the best life possible for those children.
The reference from your nephew, Leigh, is most helpful. It is also most extraordinary. He comes from an extremely impoverished and troubled background. His mother was killed in a motorcar accident when he was two and his father was a manic depressive. He fell into drug use and went into prison. In his reference he says,
'When I was released from prison I had nowhere to go. It was very earth shattering after all my hard work and self-reflection that I might end up back where I started. My Uncle Danny heard about my circumstances. He called me and told me to pack my bags and head to Horsham. I look back now and see Uncle Danny as nothing short of my own personal carer. He did so much for me. He put a roof over my head. He taught me patience. He got me a job and gave me ambition and a work ethic. I was encouraged and pushed to be a better person.
Eighteen months after moving to Horsham I was the manager of Tyreright with a company car. Uncle Danny inspired me to become a truck driver.
Six years later I am now a full time B Double Driver earning a good wage… I have a new family, a beautiful baby girl. My Uncle Danny is a hardworking, kind, compassionate and loving father who is selfless and willing to help others'.
Returning to the sentencing provisions that I previously outlined. It is clear that the mandatory sentencing provisions do not apply, in my view, if the offender has assisted law enforcement authorities in the investigation of an offence. This provision clearly is not confined to providing evidence or undertaking to do so against other alleged offenders. The Sentencing Act and the Criminal Procedure Act has other separate provisions that deal with undertakings to assist prosecutors and parliament has not restricted the operation of s5(2H)(a) to such cases.
In my view in your case, you clearly assisted police in the investigation of the fatal collision. You provided a detailed explanation as to why the collision occurred and your role in that collision. Indeed, your interview provided investigating police with the evidence that underlies the case against you.
Your interview ruled out medical episode issues or mechanical failure as potential explanations for the collision and provided a complete and truthful account of how the collision occurred. Your explanation, in my view, was clearly of great assistance to the investigating police.
The Court of Appeal considered s5(2H)(a) in Farmer [2020] VSCA 140[1]. At paragraphs 79 and 80 the court said,
'By its specific terms, paragraph (a) of s5(2H) applies where a judge is persuaded that the offender has assisted or has given an undertaking to assist law enforcement authorities in either the investigation or prosecution process. There is no warrant to distinguish further and construe the provision as only applying to assistance of a particular kind, extent, or quality.
Of course, it is necessary for the judge to determine whether the offender has assisted or has given an undertaking to assist. That depends on what the offender has said in the context of the investigation or prosecution. Where assistance to police is relied on, the information imparted has to be capable of assisting police in their investigation of the offence. It will include a consideration of its capacity to achieve a favourable law enforcement outcome'.
[1]Farmer [2020] VSCA 140
The court made it clear that mere admissions to an offence are not enough to engage s5(2H)(a). In that case the court said at paragraphs 83 and 84,
'In our view, his record of interview amounted to no more than admissions, and the identification of his co-offenders occurred at a time when police had already arrested and interviewed them. In the course of his initial denials, the applicant was told by police that the other two offenders had implicated him. When he confessed, the applicant knew that his co-offenders had already made admissions. It could not be inferred that by implicating them in his admissions he thereby intended to, or did, assist the police.
There was no material before the judge which suggested that the information the applicant provided altered the course of the investigation or was not known to the investigators or led them to evidence they would not have otherwise obtained'.
Your case is very different. You clearly intended to assist investigators and you did so, in my view, in a substantial manner. Because these provisions are penal in nature the court must take the interpretation most favourable to an accused. It follows that in my view because of your assistance this court is not bound to impose a term of imprisonment in your case.
But even if I am mistaken in that conclusion, I am also of the view that a combination of factors establish substantial and compelling circumstances that are exceptional and rare and justify not imposing a term of imprisonment.
It is clear that the test required to be satisfied is an extremely onerous one. The Court of Appeal in Buckley [2022] VSCA 138[2] described the requirement as almost impossible to satisfy. At paragraph 14 the court said,
'This blunt oppressive sentencing regime is contrary to public interest and incompatible with modern sentencing jurisprudence. Factors that are common cannot be relied upon even if failure to recognise these factors causes injustice to an individual and disservice to the community'.
[2]Buckley [2022] VSCA 138
The substantial and compelling circumstances in your case are, in my view, exceptional and rare. They justify a non-custodial sentence. There are a number of them.
Firstly, your moral culpability is at the lowest level possible for an offence of dangerous driving causing death. The prosecution effectively conceded as much.
Secondly, you have the responsibility to parent and care for an 11-year-old daughter. In my view it is highly unusual for a father to be in your position. Sending you to prison will clearly disturb, distress, and unduly upset the balance and successful young life she enjoys with you.
Thirdly, your full, frank, and valuable assistance to investigating police is also rare and exceptional. You provided the evidence to bring the charges you face against you.
Fourthly, you have no relevant prior criminal history.
Fifthly, your genuine and sincere remorse as demonstrated during the court proceedings and in your letter, Exhibit 2, as attested to in the references tendered.
Sixthly, your underlying health issues, particularly your coronary artery disease and post-traumatic stress disorder as described by Dr Ramazan in Exhibit 8.
The Court of Appeal has confirmed that a combination of factors can be relied upon to satisfy s5(2H)(e). In my view these six factors outlined in combination justify the court imposing a non-custodial sentence in this case.
I understand that parliament has intended that ordinarily a term of imprisonment should be imposed for the offence of dangerous driving causing death. However, I am satisfied that the cumulative impact of the circumstances in your case justify a departure from such a sentence.
I have come to this conclusion without having regard to the impressive character evidence in your case. I have not factored in your early pleas of guilty, your excellent prospects for rehabilitation, nor parity with any other sentence I was referred to upon your plea.
I have factored in your clear remorse and the compelling authority you made in Exhibit 2, your letter to the court. I watched you closely when the victim impact material was read. Your distress and anguish was obvious to me.
Having come to the conclusion I have as to both s5(2H)(a) and (e) of the Sentencing Act your good character, early pleas of guilty and prospects of rehabilitation are all relevant to the determination of an appropriate sentence in your case.
The consequences of your momentary inattention are horrific. Two well-loved sisters died, and others were injured seriously, and all placed at risk but the consequences alone cannot dictate imprisonment. Lives have been lost and families shattered by the events of 8 October 2022. You too have been significantly affected. No sentence can change what occurred that day.
The Court of Appeal has made it clear that a properly structured community corrections order can satisfy all sentencing considerations and you can be properly punished by such a disposition. I have had you assessed for your suitability for such an order, and you have been found so suitable.
Would you stand up please?

On all five charges you are convicted and on all five charges, on each of them because they are all founded on the same momentary inattention, you are sentenced to undergo a three-year community corrections order. Apart from the core conditions I order that you perform 300 hours of unpaid community work and that you undertake courses to promote your rehabilitation. I order that 50 hours of any of those courses undertaken can count against the unpaid community work.
I am required to cancel all licences held by you under the Road Safety Act on each of Charges 1, 2 and 3. You are disqualified from obtaining any further licence or permit for 18 months from today's date.
Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed a sentence of two years;' imprisonment with a non-parole period of 12 months had you been convicted after a trial.
Do you consent to undergoing such an order?
OFFENDER: Yes, Your Honour. Yes.
HIS HONOUR: All right. Have a seat while that document is prepared.
Madam Associate, can you prepare a - - -
ASSOCIATE: Yes, Your Honour.
HIS HONOUR: All right. Mr Moore, are there any other orders required? Are there any disposal or forfeiture orders or anything of that sort?
MR MOORE: No, that completes the matter, Your Honour.
HIS HONOUR: All right. I will just wait until he has signed his order.
MR MOORE: I wonder if I could raise another matter in relation to the case of White after the conclusion of this matter.
HIS HONOUR: Yes. Yes, certainly. Are you getting there, Madam Associate?
ASSOCIATE: Yes, Your Honour.
HIS HONOUR: Madam Associate, he's to report to Horsham, hasn't he?
ASSOCIATE: Yes, Your Honour. I'll put that in.
HIS HONOUR: Thank you. Mr Kenneison, would you sign this order please?
OFFENDER: Yes, Your Honour. Certainly.
HIS HONOUR: You are to report to the Horsham Community Corrections Centre within two working days. So, you need to be there on Monday or Tuesday. They'll be expecting you.
OFFENDER: Yes, Your Honour. Yep.
HIS HONOUR: You need to understand this. For the next three years you are under this order. If you commit any other offence or you fail to comply with the order, you'll be brought back before me, and I have to resentence you. You understand?
OFFENDER: Yes, I do, sir.
HIS HONOUR: And finally, I understand you've got - because of your heart issues you'll have to get a certificate that you're able to perform community work and they'll find something that's going to be suitable for you with your condition. So, you'll probably need to get that from your doctor.
OFFENDER: Yeah. Okay. Yes sir.
HIS HONOUR: All right. That terminates - you can leave the dock. Yes, and I'll go back to you, Mr Moore. What do you want to tell me about Mr White?
MR MOORE: It might be appropriate if the people from this case leave the court, Your Honour.
HIS HONOUR: Yes. All right.
MR MOORE: It shouldn't take a moment.
HIS HONOUR: All right. I'll just stand down for a moment until you're ready and I'll come back to talk to you about White.
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[2022] VCC 593

14 April 2023