Director of Public Prosecutions v Kent
[2018] VCC 1961
•26 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01507
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMA LOUISE KENT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2018 | |
DATE OF SENTENCE: | 26 November 2018 | |
CASE MAY BE CITED AS: | DPP v Kent | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1961 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms R. Harper | Office of Public Prosecutions |
| For the Accused | Mr P.J. Hannebery | Altius Partners Lawyers |
HER HONOUR:
1 Emma Kent, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty applicable is 10 years’ imprisonment.
2 This crime arises out of events which took place on 10 December 2017. The victim of your offending is Gareth Davies.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are serious and concerning.
4 I turn to a summary of your offending.
5 On Sunday, 10 December 2017, a fatal collision occurred on Black Forest Drive, Macedon. The collision occurred when a cyclist, Gareth Davies, travelling in a north-westerly direction along Black Forest Drive was struck from behind by a black Hyundai sedan. Mr Davies suffered fatal injuries as a result of the collision.
6 At the time of the collision Gareth Davies was 57 years of age and the father of two teenage girls.
7 At the time of this offending you were 23 years of age and are 24 at sentence. You had a full Victorian driver’s licence and were the registered owner of the black 2012 Hyundai hatch, registration 1CO 4RQ.
8 The scene of the collision, Black Forest Drive, is a major road with a general north/south alignment, classified as a rural area.
9 At the scene of the collision the road was four lanes wide, with two lanes of traffic in either direction, separated by a double solid white line. The collision occurred on the westernmost side of the two northbound lanes, close to a solid white fog line close to the bitumen road edge. A plan of the scene and photographs were tendered (Exhibits B and C).
10 The scene of the collision was on an uphill section of the road at the start of a right-hand bend. The bitumen surface was in good condition, and the lanes in both directions bordered by a wide shoulder. The posted speed limit was 90km/h. At the time of the collision the road was dry and visibility good.
11 I turn to your offending. You were due to start work at a cafe in Woodend at 9.30am on 10 December. You left your home in Gisborne, driving your usual route to Woodend along Black Forest Drive.
12 When you were driving you attempted to change the radio station in your car, but could not find a station to listen to. You then attempted to connect your radio to your phone via Bluetooth in order to listen to music from your mobile phone. The phone remained on the front passenger seat, and you were attempting to connect the two, using the buttons on your radio.
13 Distracted by your attempt to connect the Bluetooth, your Hyundai veered to the left, partially over the fog line, striking Mr Davies from behind. The centre of the vehicle struck the bicycle as he rode in the left lane just inside the fog line.
14 Another driver, Mark Shiells, who was travelling in the opposite direction to you heard a ‘whack’ and saw Mr Davies being thrown into the air.
15 Another driver, Dylan Crosby, was travelling in front of you. As he passed the cyclist he looked into his mirror and saw damage to the front of your car. He thought you had actually hit a barrier. He turned and saw Mr Davies lying on the road with his bike.
16 You stopped at the scene and parked your car approximately 66 metres from the point of impact.
17 Shiells and Crosby stopped to assist. Crosby took your phone from you, as you were trying to speak to 000 but were too hysterical to do so. Shiells directed traffic around the scene, while an off-duty nurse stopped and administered CPR to Mr Davies until paramedics arrived.
18 Mr Davies was taken by air ambulance to the Royal Melbourne Hospital however died from the injuries he sustained in the collision.
19 You were uninjured. You were arrested and taken to Kyneton Hospital where you provided breath and blood samples. Neither drugs nor alcohol were detected in your system. You were taken to the police station for interview.
20 At the scene, investigators observed a single tyre scuff mark, approximately 30 cm east of the western fog line, consistent with having come from a bicycle. Glass fragments, consistent with having come from a vehicle windscreen, commenced just north of the location, indicating that the scuff mark was most likely the point of impact between the bicycle and the motor vehicle.
21 Detective Senior Leading Constable Michael Hardiman conducted an analysis and reconstruction of the collision at the scene, and opined:
“When the Hyundai i20 was travelling in a north westerly direction on Black Forest Road [it was travelling] between 72km/h and 83km/h. The most likely speed that [it] struck the rider was 77km/h. The Hyundai’s passenger side wheels were approximately 0.4m on the bitumen shoulder at impact. There was no physical evidence at the scene indicating pre-impact emergency braking. The [deceased] was approximately 0.3m into the left-hand lane at the time of impact.”
22 Inspection of your vehicle did not reveal any pre-collision mechanical fault that would have caused or contributed to the collision.
23 At interview you told police you frequently drove down Black Forest Drive. You had a Bluetooth radio and you were changing the music on your radio, and that is what ‘distracted’ you.
24 You told police it was Bluetooth from music from your phone so you can press ‘play’ on the radio. You were pressing play, changing from the radio to music on the radio, and that was what the ‘distraction’ was.
25 After the collision you stopped the vehicle, got out, went back to the car for your phone, and started calling 000.
26 You could not explain how your vehicle came to be outside the fog line, “I guess when I’ve been distracted ... I’ve not been paying full attention and haven’t been able to control I guess.”
27 You did not see the cyclist, but knew that “where we live ... they’re always around ... It’s a road I know that they’re there. I know – it’s something that I’m aware.”
28 I turn to a chronology. You were charged on 27 April 2018. Solicitors representing you advised the prosecution on 12 July 2018 you would be pleading guilty to this charge. There was a committal mention on 23 July 2018, although no witnesses were required to be cross-examined.
29 You do not have any prior convictions or court appearances, nor is there anything subsequent or pending.
30 This is yet another tragic case before the courts involving the death of a road user caused by a young person of otherwise good character. The distress to both families, that is, of Mr Davies and you and your family, is evident.
31 Any sentence I impose will never be sufficient for the family of Mr Davies. Their loss is permanent.
32 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so.
33 I also accept you indicated early your intention to plead guilty to your offending and I note also admitted it at the time of your interview with police. I accept your plea of guilty has utilitarian value. It has saved the court the time and expense of a trial, which has saved in particular the family of Mr Davies being re-traumatised by the trial process.
34 I also accept your plea of guilty indicates remorse by you for your offending and I also accept you have expressed remorse to others.
35 By your plea you have admitted the death of Mr Davies was caused by your failure to maintain proper control of your vehicle as a result of being distracted/inattention.
36 Your counsel, Mr Hannebery, prepared a written outline of submissions and addressed those during the course of your plea hearing.
37 In those written submissions, Mr Hannebery appropriately conceded the offence of dangerous driving causing death is a serious offence, involving loss of life.
38 I must, as he submitted, assess this case on its own circumstances, mindful also of relevant sentencing principles. That is so.
39 Mr Hannebery relied upon a number of matters in mitigation of sentence.
40 That you were a fully licensed driver at the time of your offending, that is, I assume not on the road whilst suspended/disqualified. That you were driving a roadworthy and registered vehicle, and at a speed below the limit of the road. I am aware of all those matters.
41 That you were driving on the correct side of the road, and not driving with drugs or alcohol in your system. That is so.
42 That the collision was not preceded by reckless or dangerous driving, I assume erratic driving by you, and that the collision occurred within the bounds of the lane in which you were travelling and I am also conscious of those matters.
43 The conduct comprising this charge amounted, Mr Hannebery urged, to ‘relatively short inattention’. Mr Hannebery clarified he was not submitting yours was momentary inattention, rather relatively short inattention.
44 You remained at the scene and made efforts to call emergency services.
45 He urged those matters, in combination, placed the gravity of your offending at the lower end of the scale. Categorisation of your offending was discussed at length during your plea.
46 Mr Hannebery referred to your early plea of guilty, with no challenge to any of the factual allegations comprising the charge. You had not pursued a ‘conceivable prospect of acquittal’.
47 You had, by your plea of guilty he urged, spared the time and cost of a trial, and spared the grieving family elongated proceedings. Further, that your plea of guilty was indicative of your remorse. Again, matters of which I am aware.
48 Mr Hannebery referred to your lack of prior convictions and that there was nothing subsequent or outstanding. I am also aware of those.
49 Mr Hannebery urged your rehabilitation prospects were excellent, given your previous and subsequent good character, your plea of guilty and remorse, your offending involving inattention, not substance-use or bad earlier driving or attitudinal problems. You had solid employment, educational history and family support.
50 Mr Hannebery referred to your background. You are 24 years of age at sentence and you live at home with your parents.
51 You currently have two casual jobs, one as a receptionist with Complete Healthcare, and another at a reception centre, Cammeray Waters Conference Centre in the Macedon Ranges.
52 You are currently completing a Bachelor of Commerce at the Australian Catholic University in your third year, expecting to complete that in mid-2019.
53 You have an older brother and a younger sister.
54 Mr Hannebery directed me to his written submissions (paragraph 4a–i). A significant proportion of your plea hearing was directed to the duration of your distraction/inattention, him urging a ‘relatively short inattention’.
55 In that regard, I discussed some of your answers in the record of interview, in particular commencing at Question 76 when describing what you were doing as you drove past the service station and towards the collision scene:
“Q78 Do you remember what lane you were in, roughly what speed you were doing?
AWell, I really can’t – it just happened so quickly. Like, I don’t even know that, like I braked. ... I have a bluetooth radio and I was changing thing – like, music on that on my radio and that’s what I was doing that distracted me.
...
Q80 ...
A– – – and I was pressing play, changing from the radio to music on my radio.
Q81 O.K.
AAnd that’s what the distraction was.
Q82 O.K. When you do that – just describe to me how long you think that would normally take. ...
AMaybe, like, 20 seconds – oh, it seems like a long time but it – maybe, 15, 20, I’m not – – –
Q83 O.K.
A’Cause I like flicking through the channels, like, for a song and then there was nothing on and then that’s when I – – –
Q84 ...
ASo I was, like, changing the radio stations.
Q85 Yeah.
ANothing on, like, the five and then so it’s, like, you press a button and then it just moves the dial and it puts it through the radio.
Q86 ...
AOn my phone.
...
Q95 ... So when you’re doing that, do you need to divert your eyes away from the road?
ALike, I know where they were but I can normally – I couldn’t tell you now what buttons pressed but I obviously wasn’t looking on the road when I was doing it this time.
Q96 O.K. And why do you say that? So you just said, “Obviously I wasn’t looking.”
AWell, I mean, if I – if I was looking then I wouldn’t have – – –
Q97 Yeah.
AWell, not of – like, do you get what I mean? If I was looking then – well, like, looked – looking for longer or more frequently – – –
...
Q130 ... You were trying to get the bluetooth or the – you checked the radio stations, there was nothing to listen to so you’re trying to access the bluetooth on your phone to get the music from your phone. In doing that you may have accidentally called a number or dialled someone, you weren’t sure who and then you – you – well, you ended that call very quickly. Is that about right?
AYeah.
Q131 ... With regards to that phone call, how far from the actual collision was that phone call?
AI think the phone call I hadn’t left – I don’t even know that I was even out of the – like, my driveway.
...
Q141 O.K. So just run me through again – so at the time of the collision what were you doing?
AChanging the radio – like, doing the music on the radio.
...
Q266 O.K. Is there anything other than the radio, what you were doing with the radio, is there any other reason, anything else that’s going on, anything you’re concerned about that might have distracted you?
ANot really. Like, I feel like I’m always, like, thinking but I guess nothing that’s really – – –
...
Q268 Yeah, You said before you probably thought it was about 15 to 20 seconds that you were trying to get the radio to work.
AMmm.
Q269 If you sit there and count - - -.
AThat’s – it’s a long time, isn’t it?
Q270 I’m just trying to clarify with you, like if you were to close your eyes and – – –
AYeah, it wouldn’t have been that long.
Q271 – count to 20 – – –
AMaybe 10.
Q272 Yeah.
ABut then if I – just so I really don’t know.”
56 I discussed with Mr Hannebery your description of a 10‑second distraction, or ‘inattention’. In my opinion, in your answers in your interview you acknowledge you were ‘distracted’ or not paying attention for a considerable period. Again I note Mr Hannebery did not submit momentary inattention. Some assistance in this regard can be found in Gurovski v The Queen[1] and in Bell v The Queen[2]
[1] [2018] VSCA 3 at [65]
[2] [2018] VSCA 281 at [14] and [39]
57 Material was placed before me, including a report from Jeff Berger, Consultant Psychologist, dated 6 September 2018 (Exhibit 2). You had been a client of his since 12 February 2018, and as at the date of that correspondence had seen him twelve times. You were referred with symptoms of severe anxiety and trauma as a direct result of being the driver of the car which fatally injured Mr Davies.
58 You were traumatised by this event, and were currently suffering symptoms of PTSD as a result. He described you as remorseful, feeling very guilty about what had happened. You had not driven since the collision.
59 In his opinion, your chances of psychological and emotional recovery over time were good. There had been a noticeable improvement in your psychological and emotional wellbeing.
60 Initially your PTSD was severe, but it had improved over time. You had attempted to rebuild your life following the collision. Your emotional and psychological condition would likely improve with ongoing trauma-based psychotherapy.
61 You continued to experience intense levels of remorse and guilt for your part in the collision which caused Mr Davies’ death. You experienced guilt and regret for the harm you have caused to the victim’s family, that you had caused the loss of a partner, father, son and friend.
62 He opined that to some extent that would impact on you, in some way or other, for the rest of your life, despite treatment.
63 You totally accepted responsibility for causing the collision, and had never tried to deny it or attribute blame to any other person.
64 A number of references were tendered on your behalf. From Janice Crebbin, dated 16 September 2018. It was while she was working at Hesket Primary School that she met and worked alongside your mother, Debra Kent, then met you.
65 She described you as always having excellent work ethics, working shifts at the local supermarket after school and on weekends, also waitressing at restaurants. You saved your money and worked hard.
66 She described that during your late teenage years you went to work at the school as a volunteer and then between university commitments worked as a paid aide. She described you as having vibrant, caring and responsible character traits. Your work and attitude were exemplary. You were able to win the trust and build a positive relationship with special needs children which led to you gaining paid employment.
67 Despite working with such children often being very challenging, you always had a smile and encouraging word for them.
68 She employed you to maintain their home and garden whilst on overseas vacations a number of times. You have told her that you are extremely remorseful for your actions and felt the deepest sympathy for the family and friends of the victim.
69 A reference from Angela Narayan-Butler, dated 19 September 2018. She has known you since you were 4 years old and a friend of one of her daughters. You have been a family friend for nearly 20 years.
70 She described you as extremely remorseful for your offending. You had punished yourself for your actions that day. You had lost confidence in participating in life, had been sad and disengaged from people.
71 You had had your licence for six years and during that time you had always tried to obey the road rules.
72 She regarded you as a person of high integrity and honesty, kind, thoughtful and unselfish.
73 You cared for your grandparents weekly over the last four years, providing love and support to them.
74 You demonstrated great regret and total remorse about your offending. You understood the consequences of your actions, not only to the victim but also to his family and friends. This would be with you for the rest of your life.
75 She described you as deeply traumatised by your offending. That you would never intentionally hurt anyone.
76 You have expressed how you truly regretted not concentrating that day.
77 A reference from Deirdre McMenamin dated 18 September 2018, the manager of Cammeray Waters Conference Centre in Woodend, where you were currently employed in a front-of-house role on a casual basis.
78 She had known you over the past year as your employer. She described you as kind, considerate, a caring personality and that you were devastated about this incident.
79 She said your main concern from the outset had not been for yourself but for the victim and his family and how it would affect them for the rest of their lives.
80 She said you fully understood the consequences of your actions.
81 A reference from Carol Gillespie dated 21 September 2018, a senior receptionist at Complete Health Care, Sunbury. She has known you for most of your life. She knew you, not only through her employment at the osteopathy practice but as a family friend. She had seen you and spoken to you about your offending. You were extremely remorseful for your actions and the tragic consequences of them on that day.
82 She described you as an extremely caring, sensitive and kind young lady.
83 You had expressed your sincere regret and total remorse about committing the offence before the court. She believed the collision would continue to affect you for the rest of your life.
84 As an employee, you were reliable and responsible and that was why you were offered the position at the medical practice.
85 You displayed professionalism with the patients.
86 She knew you have not driven since this incident.
87 A reference from Mirjana Taflaga dated 24 September 2018. She described you as a family friend and also having been an after school carer for her three daughters from February 2016 to early December 2017.
88 You had described being extremely remorseful for your offending. You understood the consequences of your actions, not only to the victim but his family and friends.
89 In the two and a half years she had known you, she had entrusted you to collect her daughters from school and take her daughters to the movies on weekends and school holidays.
90 She trusted you as a dear friend. You were a person of great responsibility, sensitivity, compassion, integrity and honesty.
91 A reference from Stephanie Richards dated 22 September 2018.
92 She is a team support officer at Sunbury Community Health Centre. She met you in 2007 when you both started high school together at Gisborne Secondary College.
93 She was aware that you are facing serious charges. You had sincerely expressed your regret and remorse for your offending that resulted in the death of Mr Davies. You were aware of the consequences and had taken accountability for your offending.
94 She described you more as family than a friend and were one of the most trustworthy and selfless people she knew. During the six years you had been driving, you had always maintained a good driving record. Following this offending, you had been greatly affected not only mentally and emotionally but your professional life and studies had also been impacted. You understood the loss and pain inflicted on the family and friends of Mr Davies and would be forever sorry.
95 There were also a number of victim impact statements before me, many of these were read out to the court. There is no doubt the lives of Mr Davies’ family members and friends have been severely adversely affected by his death and the circumstances in which it occurred.
96 It is difficult to do justice to those statements in those brief sentencing remarks. They are eloquent and I have read them.
97 There was a victim impact statement from Amanda Johnson, mother of Rhia and Ffion (the deceased’s children) and ex-partner of Mr Davies. The past 11 months since Gareth was killed had been the most traumatic and terrible time in her life. The sadness, missing him and the grief were always there, as well as anger that someone so completely innocent has been lost to so many people. There was no time to say goodbye, and that was a terrible thing for her to live with. Her life had been torn apart. Not having Gareth there was terrible. The person she would discuss concerns or issues with regarding the girls was no longer there. Knowing he would not be able to share the girls’ milestones hurt unbearably.
98 She had been consumed with worry, fear and concern for the girls’ wellbeing and ability to get through this. She had watched them suffer and saw their pain and distress. Navigating the emotional struggle at home of everyone, all with their own grief in different ways, was very difficult.
99 She did not sleep well most nights, which made her anxiety and stress more difficult to cope with. She often woke with nightmares, reliving being told by police of Gareth’s death and having to tell the girls their father had been killed. Advising his family had been also traumatic. She kept seeing images of Gareth in the actual collision, which was traumatic. It continually replayed through her mind.
100 She tried to keep her own stress and anxiety away from the girls, not wanting to burden them with her worries. It was taking a toll on her, draining and exhausting her.
101 As Gareth provided the main income to the family through his business, which ceased with his death, there had been a huge financial impact on the family. She had tried to pick up work but found it very difficult, and was not covering living costs. She anticipated this financial problem would continue for some time.
102 She did not see family or friends as much as she did in the past as a result of the collision, and rarely went out. She lacked energy for many of the activities she used to engage in. She was previously an avid cyclist, but had not been on either of her bikes since Gareth was killed. It is devastating that Gareth was no longer with them.
103 There was a victim impact statement from Rhia Davies, daughter of Gareth Davies.
104 When she found out about her father’s death she felt her life was ending, collapsing. She was in a deep state of shock from that moment, and in the days and weeks after could not leave her bed or her room. She found viewing her father’s body extremely difficult. Her last memory of her father was him coming into her room the night before the collision, excited, and telling her there was only two weeks to go until they left overseas to spend Christmas with his family in Wales. She was in so much pain, not only emotional but physically.
105 In the days after the collision she felt suicidal, thinking there was nothing for her. It was not only her father taken from her, but her best friend. The funeral was a complete blur. She suffered panic attacks since the collision. She felt incredibly anxious and wound up. She felt tired all the time and hardly slept. She still experienced strong nightmares relating to the collision that stops her from sleeping. Prior to the collision she had never suffered from any form of anxiety.
106 Driving has become a trigger for her memory and she had suffered multiple panic attacks while driving, especially when she saw cyclists on the road.
107 Every aspect of her daily life had been impacted by your offending. She could not do or complete things she once never thought about, such as driving. Her attendance at university had been adversely affected as a result of the collision. She became overwhelmed, anxious and depressed.
108 Her life had been completely dictated by this crime. She could not physically go near the site of the collision or Macedon.
109 She used to bike-ride with her father nearly every weekend, and enjoyed that. She was not sure she would ever ride again. Prior to the collision she had a really clear path regarding what her future would look like. She now had huge doubts about her career, and doubted every aspect of her life. Her concentration was terrible. She found studying very difficult.
110 She required ongoing counselling and medication for her depression and anxiety as a result of the death of her father. Her father was the main provider to the family and household. His death made it very difficult for the family to cope financially. She saw the stress on her mother due to the lack of income, which in turn distressed and traumatised Rhia.
111 She could not be close to anyone and completely shuts herself off emotionally. She felt distant from friends and family and often felt completely isolated. She found it difficult even talking about her father.
112 There was also a victim impact statement from Ffion Davies, daughter of Gareth Davies.
113 On the day of the collision her mother came to the door with tears streaming down her face. She could not begin to describe the emotions that went through her at that time. She had memories of having to tell her father’s mother about his death. Her nana’s tears caused her great pain. They spent December organising his funeral.
114 After her father was killed her whole world fell apart. She had difficulty sleeping, which continued. She had nightmares which included her walking up and down empty roads, chasing after her father, never reaching him.
115 Since the day of the collision she had suffered with severe PTSD, having formally been diagnosed by psychiatrists and doctors when she was admitted to a psychiatric ward. She had not been able to ride a bike since her father died. She had stopped driving, as she worried about the things she would miss and the families she could tear apart.
116 On multiple occasions she had broken down in tears in public. She suffers panic attacks, and has been prescribed Ventolin and Valium to calm her down.
117 Since her father’s death she has been seeing a psychologist and psychiatrist more frequently and has been diagnosed with PTSD.
118 She felt isolated and alone.
119 Her father was the main contributor to the family finances, and since his death finances had been a struggle. Her school had provided food vouchers to them in times of need.
120 Socially, she was unable to attend parties or gatherings without taking Valium beforehand due to her increased anxiety in social situations.
121 She found it difficult describing the pain she felt since her father was taken from her. He was a pure man, and did not deserve to be taken the way he was. She mourned the special occasions her father would not be able to attend.
122 There was a victim impact statement from Colita Scott, who had been with Gareth for the past two years of his life. She felt spoilt by his generous attention in the two years that they were together. She described her life with Gareth as a love affair people dream about but rarely experience.
123 Gareth worked six days a week in his own business, exercising every day, be it cycling, gym, yoga or a mixture of all three.
124 She had regularly been in contact with him during the days by text message. The silence now was excruciating. She felt lucky to have found somehow who totally matched her in so many ways. She described Gareth as always loving and respectful. They were each other’s support and solace.
125 Prior to the collision she was working in her own business. On the weekend Gareth was killed they had a workshop on, catering for eighteen people. When she was told about Gareth’s death she fell into a heap and could not do anything but cry. After Gareth’s death she could not eat or drink for weeks, dealing with the loss of him and of the future they had planned. She lost her mate, someone she planned to spend her life with. She lost their child. She has never felt so broken in her life.
126 For the first eight months she cried every day, and at times it was hard to stay alive. Her children had to take over running everything in the business. She still had panic attacks going into the local town. She has had professional help, which had been stabilising. She had lost the love of her life. She felt angry that someone with so much life force and love was gone. She was angry at you, and wanted to know what song was more important than you looking at the road.
127 There was a victim impact statement from Madelaine Scott. She had many memories of him, including him reading bedtime stories. She described Mr Davies as being generous towards her mother when they started dating nearly three years prior to the collision. He would often give her mother flowers and send her messages of endearment.
128 Madelaine watched her mother stop eating and spend days in bed after his death. There were rosters to make her tea and food, which she hardly touched. She saw her mother miscarry.
129 It had been a year since the death and her mother still could not go shopping in a supermarket without having a panic attack or bursting into tears.
130 There was also correspondence from Kathleen Jones, the mother of Gareth Davies, dated 23 October 2018.
131 She described the disastrous effect the death of her son had on her. She missed him and the regular contact they would have. She described her son as a “health freak” who was excited about coming home to spend time in Wales for Christmas with his family.
132 She described her grief as impossible to bear at times. That no mother expects her son to die before her. His ashes were now with his late father in the mountains of the Welsh hills.
133 Mr Hannebery conceded general deterrence was relevant when sentencing for this offence, and referred to Kingv The Queen[3].
[3] [2012] HCA 24 at [17]
134 I was also referred to sentencing statistics, although I discussed the lack of relative recency of those statistics. I accept, however, that in the past and currently, a proportion of offenders who have pleaded guilty to this offence have not been required to serve an immediate term of imprisonment. Ultimately I must determine what is appropriate in the circumstances of your offending, also taking into account the matters in mitigation and personal to you.
135 Mr Hannebery referred me to three recent decisions of DPP v Sodhi[4], DPP v Perera[5] and DPP v Williams[6], which I have read. Those cases involved momentary inattention at the lowest level of culpability, in my opinion, distinguishable from yours.
[4] [2018] VCC 1554
[5] [2018] VCC 1639
[6] [2018] VCC 1343
136 Ultimately determining the appropriate sentence in your case involves careful consideration by me of the circumstances of your offending and as I have said all matters personal to you in mitigation of sentence. I note in your case your offending does not include speed, bad driving or drug/alcohol. Presence of such aggravating features would elevate the seriousness of your offending (Gurovski v The Queen[7]).
[7] [2018] VSCA 3
137 Mr Hannebery relied heavily upon what he described as powerful matters in mitigation of your sentence.
138 Mr Hannebery urged that on the material before me there would be no reason to think that your rehabilitation prospects were anything other than excellent and I accept your prospects are very good.
139 Mr Hannebery referred to the decision of DPP v Neethling[8] (in particular paragraphs 25-32, which I have read).
[8](2009) 22 VR 466
140 That court also observed, as do I, the moral culpability of an offender is a critical component of the objective circumstances of the offence (paragraph 33).
141 Mr Hannebery’s ultimate submission was, when assessing your moral culpability for this offending, it fell at the lower end of culpability. The answers provided by you in the record of interview to which I have previously referred, he submitted, did not prove beyond reasonable doubt any further culpability than the description of falling at the lower end. I disagree. Your offending, he urged, could be appropriately dealt with by the imposition of a community correction order.
142 I am mindful of the decision in Boulton & Ors v The Queen[9] and the subsequent pronouncements of the Court of Appeal relevant to those principles. A community correction order has both a punitive and rehabilitative aspect to it, and in Boulton the court was urged to “rethink the conventional wisdom about whether prison is really the only option”.
[9] [2014] VSCA 342
143 Community correction orders have been referred to and addressed in a number of cases since then, including DPP v Maxfield[10], Alam v The Queen[11], Marocchini v The Queen[12], Hutchinson v The Queen[13] and also Gul v The Queen[14]. That list is by no means exhaustive.
[10][2015] VSCA 95
[11][2015] VSCA 48
[12] [2015] VSCA 29
[13][2015] VSCA 115
[14][2016] VSCA 82
144 I did not, however, understand Boulton to remove the requirement that the sentencing judge must take into account all of s5 Sentencing Act 1991. Nor did I understand Boulton to mean that sentencing principles as stated by the Court of Appeal and other courts relevant to this type of offending, to which I have previously referred, now amounted to naught. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
145 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to the charge. Further, I note that Court of Appeal Priest JA observed in Hutchinson that:
“... it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.”
146 Ms Harper, who appeared on behalf of the prosecution, submitted your offending did not fall at the lower end, and referred to the ‘positive’ action taken by you in manipulating the radio, which caused your inattention. This was not a case in which you just did not see Mr Davies in the seconds before hitting him. I agree.
147 Ms Harper submitted the factual circumstances in your case were different from those in Perera and Sodhi. Those cases, she urged, were less culpable than your offending. Yours was, she urged, more than momentary inattention, and was not ‘relatively short inattention’ urged by Mr Hannebery. I agree.
148 Distinguishing Williams, Ms Harper submitted that did not involve any positive action such as changing the radio station. In Williams the driver did not see the person with a split second before the collision occurred.
149 The prosecution urged your level of culpability fell, by your inattention/distraction by manipulating the car radio for the time you did, at the lower end of mid‑range and I referred to Woldesilassie v The Queen[15]. I agree.
[15] [2018] VSCA 285
150 Ms Harper submitted that a custodial sentence should be imposed for this offending.
151 The prosecution conceded none of the aggravating features sometimes seen in these cases were present as submitted by Mr Hannebery, however, urged absence of aggravating features was not the ‘be all and end all’. Each case must be assessed on its own merits and facts.
152 Ms Harper submitted general deterrence was an important sentencing consideration. It is.
153 The prosecution conceded your plea of guilty was entered at the earliest opportunity, was indicative of your remorse, and that the evidence indicated you were a person of good character. Further, your admissions to police in the record of interview facilitated the charge being laid in the first instance and I am also conscious of that.
154 Ms Harper submitted the only appropriate disposition was a custodial one.
155 Given the submission by Mr Hannebery that you be sentenced to a community correction order, I asked whether the prosecution considered a combination disposition to be within the range of appropriate dispositions. Such would not be outside the range should I determine same, although the prosecution’s primary submission was custodial, which could therefore encompass a head sentence and a non-parole period.
156 A number of authorities have referred to sentencing on charges of dangerous driving causing death. In a recent decision of Court of Appeal Santamaria JA in Sharma v The Queen[16], his Honour referred to a number of relevant sentencing principles that apply when sentencing for this offence, I note the different factual/personal circumstances in that case from yours.
[16] [2017] VSCA 63
157 His Honour referred to Neethling,King v The Queen[17] and R v Musumeci[18], approved in R v Jurisic[19]. His Honour also referred to the sentencing statistics relied upon by Mr Hannebery.
[17] (2012) 245 CLR 588
[18] [1997] (Unreported, New South Wales Court of Criminal Appeal, 30 October 1997)
[19](1998) 45 NSWLR 209
158 Attached to His Honour’s decision in Sharma (Appendix A), were a number of cases between 2015 and 2016 involving the offence of dangerous driving causing death.
159 His Honour also referred to the guideline judgment of Jurisic having been reviewed and revised in R v Whyte & Ors[20], and subsequently followed by the Court of Appeal in Victoria in DPP v Oates[21], citing a number of principles therein stated by Neave JA (with whom Warren CJ agreed).
[20] (2002) 55 NSWLR 252
[21] [2007] VSCA 59
160 I regard your inattention/distraction as being for a significant period of time, as stated in your interview. You also knew the road well and were aware it was used by cyclists. You travelled a significant distance over that time of your inattention/distraction given your speed (paragraph 16, Exhibit A). I am aware you were travelling within the speed limit however. Mr Hannebery also conceded yours was not momentary inattention.
161 In relation to the victim impact statements, the effects upon the victim are a relevant sentencing consideration (s5 Sentencing Act 1991), but I am conscious that I must not allow the effects upon a victim to swamp the sentencing process.
162 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
163 Regarding specific deterrence, you do not have any prior criminal or driving history, nor is there anything subsequent or pending. There is a reduced need for specific deterrence, although ultimately you will no doubt be re-licensed.
164 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re‑offending.
165 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct, and generally to impose a just punishment.
166 I am mindful that you have not previously served a sentence of imprisonment.
167 After carefully considering the submissions made by Mr Hannebery and rereading the authorities referred to during the course of this hearing, to accede to his submission that a community correction order was the appropriate disposition in your case would in my opinion result in a manifestly inadequate sentence.
168 I nevertheless had you assessed for your suitability or otherwise for a community correction order. As I made clear at the time of making that order, the obtaining of such a report did not necessarily mean that such a disposition would be imposed, but rather, given the submission made by Mr Hannebery that you be considered for a community correction order, I considered it appropriate to have all relevant material before me.
169 Ultimately, I have determined that the appropriate disposition involves a term of imprisonment together with a community correction order.
170 Regarding the community correction order, I received a report from Corrections Officer Monica Dankoff. You have been assessed as suitable for a community correction order and you have consented to such an order being made if I determined such to be appropriate.
171 Before I impose such an order however, I must tell you about the proposed order so you understand your obligations and responsibilities on such an order.
172 The order will be with a conviction recorded and for 2 years following you serving a term of imprisonment of 9 months.
173 The following core conditions apply to all community correction orders and these apply to you:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
·You must report to the community correction centre at Bendigo within 2 clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
174 There will be a number of other conditions that apply to you and these are extra conditions:
· You must perform 100 hours of unpaid community work over the period of two years as directed by the Regional Manager (s48C).
· You will be under the supervision of a community corrections officer for a period of 2 years.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment as directed by the Regional Manager (s48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, such as driver awareness courses (s48D).
175 I note Ms Dankoff’s reference to s48CA Sentencing Act 1991 referable to ss48C and 48D.
176 I can only impose a community correction order if you agree to such an order being imposed. So I have to tell you even more about it so you have just got to keep listening, I am afraid.
177 Did you have a chance to explain what a CCO was?
178 MR HANNEBERY: I have previously, not this morning, Your Honour, no.
179 HER HONOUR: No, I understand that but obviously it's a distressing time and I'm not expecting her to take it in completely.
180 MR HANNEBERY: Yes. Yes, that is what I understand Your Honour's order is effectively the same as that which has been explained to her earlier, so - - -
181 HER HONOUR: That's right. Yes, that's right, and it's the work component can be traded off with treatment programs and so on. So anyway, we'll come back to that. Now I have to tell you this about a correction order as well. I can only impose a correction order - you have to listen to this one - if you agree to such an order being imposed, in other words if you agree to be on the CCO. So I have got to tell you a bit more about it.
182 I should advise you that if you contravene or breach a CCO by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
183 You can also be re-sentenced on the offence that is currently before me. One of the options available includes a term of imprisonment (s83A(s)).
184 So you have got to be extra careful for 2 years after you are released from prison. That means no committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be re-sentenced on this same charge that is before me.
185 I have to also tell you that if you fail to comply with any direction of the Secretary to the Department of Justice or a community corrections worker if you like as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
186 Did you understand what all those conditions are? I know it's a bit much at the moment, I understand that.
187 OFFENDER: Yes.
188 HER HONOUR: Did you want to have a quick chat to Mr Hannebery about the conditions or - he's spoken to you, I understand, about the - - -
189 MR HANNEBERY: Yes, perhaps if I could be excused from the Bar table - - -
190 HER HONOUR: Well, if you not make it - don't take too long please.
191 HER HONOUR: All right, thanks, all right. Now listen carefully please, madam. All right, so do you consent to being on such an order? That is, the community correction order?
192 OFFENDER: Yes, Your Honour.
193 HER HONOUR: All right, good, now just keep listening. So I sentence you as follows.
194 On Charge 1 you are convicted and sentenced to 9 months’ imprisonment, and I direct that after that you be placed on a community correction order for a period of 2 years after your release.
195 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 12 days in custody by way of pre-sentence detention (up to and including yesterday, 25 November 2018), and I direct that that be entered into the records of the court.
196 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this charge but had been found guilty of it I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years and 6 months.
197 The prosecution made application for a forensic sample pursuant to s464ZF(2) Crimes Act 1958. Mr Hannebery submitted that that was ultimately a matter for me. In my opinion, it is appropriate the order be made and it will be for a saliva sample, and I do so on the basis of the seriousness of your offending. I must advise you that the authorities may use reasonable force in order to obtain that sample.
198 Pursuant to the Sentencing Act 1991, I must cancel and disqualify your licence for a period of at least 18 months. I cancel any licences you have and I disqualify you from obtaining any further licence for a period of 2 years and 6 months from today’s date. In setting that period I am mindful of the decision of The Queen v Lefebure[22] referable to rehabilitation.
[22][2000] VSCA 79
199 Are there any other orders?
200 MS HARPER: No, Your Honour.
201 MR HANNEBERY: No, Your Honour.
202 HER HONOUR: Yes, what about PSD?
203 MS HARPER: The PSD is correct at 12 days, Your Honour.
204 HER HONOUR: All right, yes, do you want to go back? Ms Jackson, go down the back and make sure that it's been signed properly.
205 (Community corrections order acknowledged and signed.)
206 All right, thank you. Anything further?
207 MS HARPER: No, Your Honour.
208 MR HANNEBERY: No, Your Honour.
209 HER HONOUR: All right, thanks. Ms Kent, she'll need to go now, thank you.
210 MS HARPER: May it please the court.
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