Director of Public Prosecutions v Knowler
[2021] VCC 2141
•15 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01367
Indictment No: K13328692
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KNOWLER |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 22 February 2021 & | |
DATE OF SENTENCE: | 15 December 2021 | |
CASE MAY BE CITED AS: | DPP v Knowler | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2141 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Drive in a manner dangerous causing death – drive in a manner dangerous causing serious injury – collision caused by offender’s inattention to road and failure to give way – offender distracted by GPS on telephone – driving resulted in death of two persons and serious injury to third – no alcohol, drugs, fatigue or high speed involved – offender an experienced truck driver – mid range offending – some reduction in moral culpability by reason of intersection’s poor design – co-operation with police – admissions – very good prospects of rehabilitation – plea of guilty of significant utilitarian benefit – delay – current sentencing practice.
Legislation Cited: 319(1), 319(1A) Crimes Act 1958
Cases Cited: Stevens v The Queen [2016] VSCA 121; Pan v The Queen [2020] VSCA 42; Worboyes v R [2021] VSCA 169; DPP v Zhuang [2015] VSCA 96
Sentence: Total effective sentence of 31 months’ imprisonment with a non-parole period of 14 months. Licence cancellation and disqualification from driving for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Michael Knowler, you have pleaded guilty to two charges of driving in a manner dangerous causing death and one charge of driving in a manner dangerous causing serious injury.
Circumstances
2 The three charges arise from a collision that occurred at the intersection of Allandale-Kingston Road and Church Parade, Kingston, on 29 December 2019.
3 At about 11.00 am that day, the West family left their home in Epsom. They were travelling to Ballarat to visit Jessica West’s parents. Anthony West was driving their white Toyota RAV4 wagon. Jessica West was in the front passenger seat. Their children, Deighton and Oakley, were seated in the rear in booster seats.
4 You, Mr Knowler, left the Sunshine Motor Inn at approximately 7.00am and were travelling towards Daylesford to visit a friend. You were driving a prime mover. You were unfamiliar with the area around Kingston and were using your telephone’s global positioning system (GPS) to navigate the trip. As you approached the intersection of Allandale-Kingston Road and Church Parade, you saw a sign indicating there was an intersection ahead. Despite that, you took your eyes off the road to check your phone’s GPS. Your phone was lying flat on the dashboard of the prime mover. You saw that you needed to continue straight through the intersection. When you looked back to the road, you saw that the intersection was controlled by a 'give way' sign facing you. You told police, when later interviewed, that when you first saw the 'give way' sign you were 'probably travelling too fast' and did not realise until that point that you had to stop.
5 The West family were approaching the intersection at the same time you approached it. Mr West stated that he was within 100 metres of the intersection when he saw your truck to his left. He stated he had no time to think and commenced to veer his car to the right, which he felt was his only option. He did not brake. He next heard the sound of the impact between your prime mover and his car. His car began to roll and completed what to him felt like three to five full revolutions before the car eventually came to a stop, resting on its roof.
6 Mr West called out to members of his family but did not receive any response. He was trapped in the car. He was eventually removed with the help of a person who stopped to assist. That person tried to shield Mr West from moving to the passenger side of the car but was unable to prevent him from doing so. It soon became apparent to Mr West that his wife and son, Deighton, had not survived the accident and that his other son, Oakley, who could be heard crying, had sustained serious injuries. Oakley West remained in the car until emergency services arrived. He was treated at the scene by ambulance staff and then taken by air ambulance to the Royal Children’s Hospital. Anthony West sustained minor injuries and was taken to the Ballarat Base Hospital.
7 You remained at the scene and spoke to police. You were arrested and taken to the Ballarat Base Hospital where a blood sample was taken from you. The sample was negative to the presence of drugs or alcohol.
8 You were then taken to the Ballarat Police Station and interviewed. During the interview, you told police that you were travelling to a friend’s house and were not familiar with the area. You were using your telephone’s GPS function to navigate the trip. You told police you saw the ‘intersection ahead’ sign and then checked the GPS, noting you needed to continue straight through the intersection. You said you did not know there was a 'give way' sign ahead. You were on the prime mover’s 'Jake brake' when you saw the give way sign. You then 'jumped on the brakes'. You also told police that the view to your right was blocked by trees, and when you finally could see to your right you saw the victim’s car approaching.
9 You stated:
'So I’m - I’m thinking – I probably was going too fast at that point – well, obviously I was 'cause I should’ve been able to stop. But I didn’t realise until about halfway or more down there I had to stop'.
10 Both Jessica West and Deighton West died of multiple injuries sustained in the collision. Oakley West was admitted to the Royal Children’s Hospital and was under the care of the general trauma surgical team. On 3 January 2020, he was transferred to the rehabilitation team. As a result of the collision, he sustained severe traumatic brain injury; occipito-cervical ligamentous injury; a minimally displaced fracture of the right anterior iliac; and dental injury. Oakley was in post-traumatic amnesia for some eight days. He made good physical and cognitive recovery and was discharged on 14 January 2020. Neurocognitive follow up was recommended but I have not been informed of any further health issues.
11 The case against you is put on the basis that your driving was dangerous due to:
(i) paying insufficient attention to the road, becoming distracted and looking to the GPS for assistance, and
(ii) in those circumstances, driving in an inappropriate manner and/or speed given your unfamiliarity and uncertainty with the road and local area, in the type of vehicle you were driving.
12 It is also clear that your driving was dangerous because you did not stop at the give way sign when there was a car approaching from your right.
13 Church Parade, Kingston is a two-way rural road that has provision for one lane in each direction. The road runs approximately east to west. It intersects with the Allendale-Kingston Road. The Allandale-Kingston Road is the priority road. It is a two-way, two lane road.
14 The speed limit in Church Parade is 80 kilometres per hour, as it is on the Allendale-Kingston Road.
15 On 29 December 2019, Detective Leading Senior Constable Michael Hardiman, from the Major Collision Investigation Unit, attended at the scene of the collision and conducted an 'at scene' investigation.
16 He concluded the following:
(i) At around 12.18pm on 29 December 2019, a white Toyota RAV4 station wagon was travelling in a general south-easterly direction towards Kingston on the Kingston Road. (I take this to be a reference to the Allendale-Kingston Road);
(ii) At this time, a Kenworth prime mover was travelling in a general westerly direction on Church Parade;
(iii) The prime mover has failed to give way to the Toyota and a collision has occurred within the intersection;
(iv) If the truck’s front axle was operating at the minimum required braking efficiency, the prime mover would have been able to stop in 57.5 metres, avoiding the collision with the RAV4;
(v) At the commencement of the tyre skid marks located on Church Parade, the prime mover was travelling at a minimum of 68 kilometres per hour, while the RAV4 was travelling at approximately 88 kilometres per hour around 4.3 seconds prior to impact; and
(vi) At the time of the collision, the prime mover was travelling at a minimum of 30 kilometres per hour and the RAV4 was travelling at approximately 86 kilometres per hour.
17 The skid marks from the prime mover commenced approximately 58 metres to the east of the area of impact, and approximately 49.5 metres before the give way line applicable to you.
18 Erected 203 metres east of the intersection is a 'cross intersection ahead' advisory sign. There is a 'give way' sign and painted give way line markings on Church Parade that were applicable to you. At the time of the collision, it was a clear, sunny day. The road surface was dry.
19 On 22 January 2020, Matthew Crane from the Mechanical Investigation Unit, and Andrew Stroud from the National Heavy Vehicle Regulator, attended at Mt Rowan Towing and conducted a series of braking efficiency tests on your prime mover. The brakes on the steer axle were found to fail the test. The second and third axles were found to pass. However, the overall result was a ‘fail’ due to the steer axle failure. Mr Crane concluded that with the exception of the brake failure, there were no mechanical faults located that would have contributed to the collision. He said that braking would not perform at optimum levels and most likely would increase the stopping distance in a braking situation. The prosecution does not rely on the steer axle’s failure in its case against you.
Record of Interview
20 As I have already mentioned, you were interviewed by police on 29 December 2019. You were co-operative, saying you understood the police needed to investigate what had happened and you needed to help with their investigation.
21 You told police you were on a break from work and decided to visit a friend living in Daylesford. You contacted your friend and he gave you his address, which you entered into your telephone’s GPS. You did not know the area of Daylesford and had not been that way before.
22 You described the details of the collision to police from your perspective. You estimated your speed when you saw the 'give way' sign at approximately 60 kilometres per hour. You said trees obstructed your view and at question 121 you said that it was not, 'until I’m sorta right on it that I kinda think, ‘I’ve gotta give way’.
23 At question 233, you said -
'… I come over the rise, and going down the rise and then I see there’s a give way sign there. So then I’ve got my foot on the brake okay. I haven’t gone into a skid or anything I’ve just - trying to get the thing to slow down and then I see the line … and it’s then that I’m looking - starting to look – ‘cause I realise it’s a give way - starting to look. It’s not that I wouldn’t look, it’s just that I wouldn’t be quite so concerned if I didn’t have a give way sign …'
24 At question 242 you said you did not see the 'give way' sign but you saw the line and knew there was a 'give way' there. You told police you were then looking to the right at the trees. As you got closer to the intersection, past the trees obscuring your vision, you saw the car and jumped on your brakes.
Victim Impact Statements
25 Your offending has had serious and tragic consequences. It has impacted on the lives of many. Tendered at the plea hearing were seven victim impact statements. They speak eloquently of the tragic, profound and lasting impact of your offending.
26 A number of the victims read their statements in open court. I will not repeat all that was said but will refer briefly to some of that evidence.
27 Anthony West stated '[t]rying to explain how this horrific collision has impacted on my life is near on impossible. It has impacted my everyday life in so many ways. Whatever I say today can never fully do justice to the impact. There is not a day that goes by that I don’t think about what happened. The last memories I have of them, I can never change those last memories. My beautiful family of four was tragically cut in half. The sound of my wife screaming moments before impact is the last thing I heard her say. That scream lives with me every day.' Mr West went on to describe witnessing the horrific images at the scene of the collision. He also had to contend with the hospitalisation of Oakley and having to tell him that his mother and brother died in the collision. To try and better cope with the tragedy, he and Oakley moved out of the house in which they all had lived. Mr West stated that whatever the outcome of the hearing, it does not change the fact that his family has been destroyed and life turned upside down.
28 Oakley West stated that he has missed his mother’s bubbly self and his brother’s devilish smile. He said it is a bit sad with only a dad.
29 Ms Christine Shearer is the mother of Jessica West and grandmother of Deighton and Oakley. She states that on 29 December her life was changed forever. She is still going through a range of emotions from shock and numbness, to anger and grief. She misses seeing her daughter and grandson and all the many activities they enjoyed together. She also speaks of having spent two weeks by Oakley’s side as he recovered from his injuries at the Royal Children’s Hospital.
30 Ken Shearer spoke of being at the crash scene, waiting, and finally being told by a police officer that his daughter and grandson had died, and that Oakley was severely injured and had to be flown to the Royal Children’s Hospital. I will not recite the moving detail of all that occurred following the collision set out in his statement, save to say that Mr Shearer speaks of his anger, emotional fragility, sadness and pain over the losses of his daughter, grandson and the injuries caused to Oakley.
31 Ms Camm, a close friend of Jessica and Deighton, states she feels a variety of emotions as a result of the offending. She feels both sad and angry that her friendship with Jess and Deighton has been cut short. She struggles to put into words how deep the emotional impact of the loss of Jess and Deighton has been for her.
32 Alicia West, Jessica’s sister-in-law and Deighton and Oakley’s aunty, provided a victim impact statement but did not wish for it to be read aloud. Accordingly, I will not refer to its detail other than to say that she expresses that no words can do justice to the grief and loss she feels on a daily basis.
33 Julie Bentley, sister-in-law to Jessica and aunty to Oakley and Deighton, states that she is only just beginning to navigate her own grief as it took a back seat whilst she tried to navigate the grief of her four children. She states this has had confronting, painful consequences and that the grief does not go away – ‘it is just so familiar that you do not even realise you carry it each day.’
34 My summary of the victim impact statements is just that, a summary, and does not do full justice to the expressions of the profound impact that the death of Jessica West and Deighton West and the injuries to Oakley West has had upon each of the victims.
Personal circumstances
35 I turn now to your personal circumstances. You are 60 years of age and were born on the South Island of New Zealand. You have been a resident of Australia since 2008 and living in Western Australia since 2010. You told psychologist, Jeffrey Cummins, that you were raised in a loving and caring family. His report dated 27 January 2021 was tendered on your behalf at the plea hearing.
36 Your father operated a cabinet-making business and later worked at an abattoir. He died in his early 50s as a result of cystic fibrosis. Your mother is aged 80 and continues to live in New Zealand. You have three sisters, all of whom reside in New Zealand.
37 You were educated to the age of 15 or 16 and completed the equivalent of Year 11. You are not sure whether you passed that year. You have worked in various occupations including as a diesel mechanic for approximately three years before first coming to Australia in 1978. You then stayed in Australia for some two years, working in various occupations.
38 Upon your return to New Zealand you drove trucks for some six or seven years. You have also worked in the insurance industry and also with a Computer Land franchise. You have operated an export company and in 1995 you began importing trucks into New Zealand.
39 You have been married twice. Your first marriage lasted approximately
10 years and you have two sons from that relationship. They reside in New Zealand. You continue to have contact with your former wife and one of your sons.
40 You were with your second wife for some nine and a half years and became a stepfather to your wife’s son. You and your wife also had twins, a boy and a girl. Tragically, your son was killed in a car accident when he was eight and a half months old.
41 You and your second wife separated in approximately May 2007.
42 Since moving to Australia in January 2008, you worked as a truck-driver up to the date of the collision. For some three years you worked as an interstate truck driver, driving approximately 800 kilometres each day.
43 In 2011 you met your current partner. Although you are in a relationship with her, she lives in Thailand and has only visited you in Australia on approximately four occasions. You were not able to travel to Thailand or, indeed, New Zealand, by reason of a departure prohibition order issued by the federal government for unpaid child support to your second wife.
44 You have worked hard throughout your life at some cost to your personal relationships. You have not been able to work following your release on bail on 17 January 2020 as you have not been able to come to terms with the collision and the resulting deaths and injuries.
45 You told Mr Cummins that since the incident you have ruminated, typically daily, about being imprisoned. You said you never intended to do the wrong thing, had not been drinking and had never used drugs. You stated you hate the fact that two people have lost their lives and another person was seriously injured in the incident. You have written a letter of apology dated 2 November 2020 to Mr West, but you are not sure whether it has been passed on to him.
46 Mr Cummins stated that you were very emotional and frequently in tears throughout the assessment interview. You reported frequent negative ruminative thinking regarding the incident and your prospects. You reported some flashbacks, nightmares, disturbed sleep and fluctuating appetite because of your legal situation.
47 Mr Cummins diagnosed you as suffering from post-traumatic stress disorder triggered by and reactive to the incident, the charges you are facing, the prospect of a gaol sentence and the fact you feel guilty and responsible for the death of the two persons and serious injury to a third. You have not received any mental health treatment to date. Mr Cummins considers you remain in a state of shock. He is also of the opinion that your difficulties have been compounded by the fact of your son’s death in a car accident some 21 years ago.
48 Mr Cummins considers that your mental health would be very likely to deteriorate the longer the duration of the sentence.
Further Evidence
49 Following the plea hearing on 17 March 2021, your case was adjourned to
30 July for the provision of expert reports. In due course a report was tendered on your behalf from Dr Shane Richardson, mechanical engineer, with expertise in crash reconstruction and incident analysis. The prosecution filed a further submission following receipt of Dr Richardson’s report.
Submissions
50 I turn now to the submissions of counsel.
51 Mr Pearson submitted that at the time you committed the offences you were not affected by drugs or alcohol, nor were you fatigued or speeding. You cooperated with the police and confirmed you were unfamiliar with the road configuration, that you saw the advisory sign as you approached the intersection, that you then checked your GPS for directions and you 'momentarily overlooked the fact that you were approaching an intersection'. Mr Pearson stated you had slowed to about 60 kilometres per hour and that because of a line of trees to your right, you did not see the road to the right, nor the 'give way' sign, until you were actually at the intersection.
52 He further submitted the intersection is poorly designed and has a 'level of notoriety within the local community'.
53 Mr Pearson also relied upon your lengthy history of truck driving, the fact that you have not previously been involved in any road related incidents and that you have no relevant criminal record.
54 Mr Pearson also submitted that your pleas of guilty, entered at the first available opportunity, are of significant utilitarian benefit and reflect an acceptance of responsibility for your offending and your remorse. He also relied on your letter of apology written to Mr West, as well as the expressions of remorse noted in the report of Mr Cummins.
55 I was also informed that you face the threat of deportation in circumstances where you have built a good life for yourself in Australia since 2008. The threat of deportation and the uncertainty of your fate, I was told, is a matter which adds to the emotional burden of your incarceration.
56 As to your prospects of rehabilitation, Mr Pearson submitted that with the exception of one dated matter, you have always behaved impeccably.
57 Following receipt of subpoenaed documents, Mr Pearson referred to another incident at the same intersection on 21 November 2014, and a meeting of concerned residents in the immediate aftermath of your collision.
58 In his written submissions dated 20 July 2021, Mr Pearson referred to the matters in Dr Richardson’s report which he submitted are relevant to your moral culpability. In summary, they are:
i) the brakes on the truck you were driving were not properly adjusted;
ii) the speed of the car being driven by Anthony West; and
iii) the intersection itself.
59 Further written submissions were received from Mr Pearson dated 10 September 2021. Again, Mr Pearson referred to the fact you were unfamiliar with the intersection and distracted intermittently by looking at the GPS on your phone. He again referred to the nature of the intersection and Dr Richardson’s comments regarding that intersection. In particular, the view through the intersection and the proximity of trees, it was submitted, are features that contributed to the collision. Dr Richardson stated that, 'the trees near the intersection should have resulted in the speed zone approaching the intersection being reduced, most likely to 60 kilometres per hour'. Mr Pearson also referred to notes made by Adam Sewell in a report dated 19 November 2020 to which reference was made by Dr Richardson. Mr Pearson submitted that I should find that the 'intersection was seriously defective in terms of its construction, configuration and maintenance'. Nevertheless, Mr Pearson conceded:
'Because he was distracted, the accused failed to observe the 'give way' sign that was visible at the south eastern corner of the intersection.'
60 Reliance was placed on the report of Adam Sewell, exhibit D7. Mr Sewell considered that driving west on Church Parade can leave unfamiliar motorists unaware of the presence of the through road. He reported the visibility to Kingston Road is restricted and gives the impression that Church Parade is the through road and continues further west. Mr Sewell noted there are existing ‘give way’ ahead signs on approach to the intersection. He reported there has been one other accident at that intersection in the last six years. Mr Pearson also noted that since your collision, ‘black spot’ funding has been approved for the redesign of the intersection.
61 Mr Pearson acknowledged that the substantial cause of the collision was you being distracted by looking at your GPS on an unfamiliar road. However, he submitted there were additional factors outside of your control which were also material; they being the fact of the defective construction, configuration and maintenance of the intersection; the fact of the sub-optimal braking system of the truck, of which you were unaware; and the speed limit on Church Road, which Dr Richardson considered should have been reduced to 60 kilometres per hour.
62 Mr Pearson relied on those matters not to suggest that the collision would have been avoided, but as resulting in a significant reduction in your moral culpability. He submitted that your moral culpability was 'at the lowest possible level'.
63 It should be noted that Mr Pearson disavowed reliance on that part of
Dr Kennedy’s report which stated that the collision would have been avoided had the truck brakes been in proper working condition. Mr Pearson submitted that the inefficient braking system played a part in the happening of the collision but that the substantial cause of the collision was your being distracted by your telephone’s GPS.
64 Mr Pearson also submitted there should be some moderation in penalty arising from the delay caused by the prosecutor’s initial resistance to the tender of Mr Sewell’s report at the plea hearing on 17 March 2021.
65 Ms Coombes, who appeared on behalf of the Director of Public Prosecutions, submitted that the maximum penalties reflect the seriousness with which parliament views this type of offending. She submitted that the gravity of the offending is influenced by the objective dangerousness of your driving, your moral culpability, and the loss of two lives and serious injury to Oakley West.
66 Ms Coombes further submitted that given your 40 years’ experience as a professional driver, you should have been alert to the potential dangers in driving the prime mover in an unfamiliar area, at the speed you were travelling, whilst looking at your navigational aid. These considerations, she submitted, are relevant to your level of culpability. Ms Coombes argued that driving the way you did created a high risk and likelihood that something would go wrong, and it did.
67 Ms Coombes relied on the victim impact statements as reflecting the extent of the harm your offending has had on each of those persons. I am required to have regard to the impact of your offending upon victims under s5(2)(daa) Sentencing Act.
68 In Ms Coombes’ submission, the objective seriousness of your offending is in the mid to high range and your moral culpability falls in the mid-range.
69 Ms Coombes noted that a single driving accident often results in more than one fatality or injury and that I must be careful to avoid double punishment, while ensuring that each individual victim is adequately recognised in the sentence to be imposed.
70 Ms Coombes referred to the sentencing principles of general and specific deterrence, denunciation, just punishment and protection of the community as relevant considerations in your case.
71 With regard to Mr Pearson’s submission concerning delay, Ms Coombes submitted that it was not until after the conclusion of the first day of plea that that your solicitor sought to subpoena materials concerning traffic accidents at the intersection of Church Road and the Allendale-Kingston Road. A large number of materials were released under the subpoena, including Mr Sewell’s report. The prosecution had sought to test his evidence but could not do so as Mr Sewell refused to co-operate with your lawyers. It was in those circumstances that the defence sought an expert report from Dr Kennedy, which resulted in the delay. Ms Coombes nevertheless accepted that there should be some amelioration as a result of the delay but refuted it was caused by the prosecution.
72 Ms Coombes also accepted that some reduction in the level of your moral culpability is appropriate given the poor design of the intersection. However, she disagreed with the defence, insofar as it was submitted, that the poor design was a substantial operating cause. Ms Coombes pointed to the fact there have only been two collisions reported in the last six years, one of which was yours.
73 With regard to Mr Pearson’s submissions concerning the defective brakes, Ms Coombes submitted that the sub-optimal brakes were not a substantial cause of the collision.
Sentencing Considerations
74 You have pleaded guilty to three offences arising out of a single instance of driving in a manner dangerous. As a result of your driving, you caused the death of two persons and serious injury to a third. The consequences of your conduct are nothing short of dire.
75 The maximum penalties that may be imposed of 10 years in the case of dangerous driving causing death, and five years in the case of dangerous driving causing serious injury, reflect the seriousness of the offending to which you have pleaded guilty. The offence of dangerous driving causing death is also a category 2 offence under the Sentencing Act but it was not suggested that I should not impose a term of imprisonment or that I should impose a combination sentence.
76 In Stevens v The Queen,[1] the Court of Appeal noted that dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.
[1] [2016] VSCA 121 at [25]
77 In determining the seriousness of your offending and the level of your moral culpability, I have regard to the circumstances of the collision outlined in the prosecution opening, including the following matters:
(i) The offences occurred because of your inattention to the road, and your failure to give way;
(ii) You were aware of the intersection ahead as you had seen the cross intersection advisory sign which was 203 metres east of the intersection;
(iii) Despite that advisory sign warning of an intersection ahead, you chose to look at the GPS on your telephone which was lying flat on the dashboard of the prime mover, rather than to look to the approaching intersection;
(iv) You were an experienced driver and thus should have better understood the risks associated with taking your eyes off the road in circumstances where you were on an unfamiliar road, approaching an unfamiliar intersection;
(v) The fact you were on an unfamiliar road called for greater care;
(vi) Sixthly, there was no alcohol, drugs, fatigue or high speed involved; and
(vii) The extent and nature of the harm caused by your dangerous driving.
78 I also have regard to the fact that you were driving well within the speed limit of 80 kilometres per hour. Whilst the time period during which you were inattentive is not clear, I do not consider this to have been an instance where you were only momentarily inattentive. As earlier stated, the advisory sign, which you saw, was some 203 metres east of the intersection.
79 I also have had regard to the fact that the intersection was of poor design. In view of what was said by the Court of Appeal in Pan v The Queen,[2] I may have regard to that consideration in assessing your moral culpability. I am prepared to accept that there should be some reduction in your moral culpability by reason of the intersection’s poor design. However, I do not consider the reduction should be significant. The fact remains that you were aware there was an intersection ahead. Rather than stop the prime mover to obtain directions from your GPS, you instead took your eyes off the road to look at your phone which was in a position where its screen was not in easy view, while continuing to travel at a speed of some 60 kilometres per hour, in a prime mover, on an unfamiliar road, in the knowledge there was an intersection ahead. Furthermore, the evidence suggests only one other collision at the intersection relevant to your case in the preceding six years, whereas in Pan there were five recorded serious collisions including Pan’s over a 20 month period.
[2] [2020] VSCA 42
80 I turn now to the issue of the sub-optimal efficiency of the prime-mover’s braking system. I accept that you were unaware of the problem with the brakes, that this was the first occasion in which you had to apply them in an emergency and that there was some contribution to the collision as a result of the inefficient brakes. However, as earlier stated, Mr Pearson did not rely on this consideration to suggest that but for the inefficient braking system the collision would have been avoided.
81 While the poor design of the intersection and the inefficient braking system may have contributed to the collision, I have little doubt that the single most important factor was the fact that you became distracted by looking at your phone to search for directions. Driving in that manner involved a serious breach of the proper management and control of your vehicle. It was behaviour that ‘subjected the public to some risk over and above that ordinarily associated with the driving of a motor vehicle'[3] and was the substantial cause of the death of two persons and serious injury to a third.
[3]Stephens v The Queen [2016] VSCA 121 [20]
82 Given your driving experience, I have no difficulty in finding you knew the inherent risk of driving in that manner. This is not to hold you to a higher standard than other road users, as I was cautioned not to do by your counsel. It is simply a reflection of your level of knowledge of the risks involved and, against that knowledge, your decision to conduct yourself in the manner you did. As was stated in Stephens:
'Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.'[4]
[4] Ibid [27]
83 I do not accept that your moral culpability falls at the lowest possible level as was suggested by your counsel. In my opinion, your moral culpability falls towards the lower end of the scale of seriousness. I find that the seriousness of your offending falls in the mid-range level.
84 You pleaded guilty on the morning your case was listed for committal hearing. Whilst not entered at the earliest opportunity, your pleas of guilty are nevertheless of significant utilitarian benefit. You have spared the need for witnesses to give evidence at trial and there has been a saving to the court and the community of the time and cost of a trial. This is particularly significant in this time of pandemic. In Worboyes v R [5] the Court stated:
'… we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’[6]
[5] [2021] VSCA 169
[6] Ibid [39]
85 I also accept that you are genuinely remorseful and have accepted full responsibility for your conduct. It is a factor that weighs heavily in your favour that you were co-operative with police and made full admissions. In your letter of apology you say you are truly sorry for the grief Mr West and his family endure every day and that you accept full responsibility.
86 You are a person of otherwise good character with a good and lengthy driving record. I have had regard to the character reference from your friend, Sam Wood. I have no difficulty in accepting that gaol will be particularly onerous experience by reason of this being your first experience of prison, your age, your hitherto good character and your isolation from friends and family.
87 Added to this burden is the anxiety caused in the knowledge that at the conclusion of your time in gaol you may be deported from Australia, which has been your home since 2008.
88 In my opinion, your prospects of rehabilitation are very good, if not excellent. In reaching this conclusion, I have had regard to your good character, the lack of relevant prior convictions and your age. Accordingly, little weight needs to be attached to considerations of specific deterrence and protection of the community from you.
89 I accept that there should be some moderation in penalty by reason of the delay caused in obtaining an expert report. I do not consider this delay to have been caused by the prosecution, rather, it was the failure to subpoena materials before the first plea hearing that caused the delay. However, you personally did not contribute to that delay and I have little doubt you have experienced anxiety awaiting sentence.
90 General deterrence and denunciation of your conduct, in my opinion, are significant sentencing considerations. Others in the community need to understand that the use of phones which result in dangerous driving causing death or serious injury will be met by stern punishment. Such conduct must be denounced by the courts.
91 Current sentencing practise is one of a number of matters I am required to take into account. I have had regard to the decision in Pan as well as a number of other sentencing decisions involving offending of a similar nature.[7]
[7] DPP v Janson [2011] VSCA 119; Board v The Queen [2013] VSCA 9; DPP v Ng [2016] VCC 1565; DPP v Bell [2018] VSCA 281; Peers v The Queen [2021] VSCA 264; Koukoulis v The Queen [2020] VSCA 19; Singh v The Queen [2021] VSCA 161; Sharma v The Queen [2017] VSCA 63.
92 In DPP v Zhuang,[8]the Court described the proper role of comparable cases in sentencing as follows:
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis, particularly insofar such an overview may provide a general guide to current sentencing practices.
[8][2015] VSCA 96 at [30]
93 In formulating an appropriate sentence I appreciate that whatever sentence is passed on you will not make up for the loss of two lives, and the injuries suffered by Oakley, and the profound emotional impact of your offending on Mr West and many others.
Sentence
94 Having regard to the respective submissions of counsel, and the sentencing factors I am required to take into account, including the principles of totality and just punishment, I sentence you as follows:
95 On charge 1, you are convicted and sentenced two 24 months' imprisonment.
96 On charge 2, you are convicted and sentenced to 24 months' imprisonment.
97 On charge 3, you are convicted and sentenced to 12 months' imprisonment.
98 Six months of the sentence on charge 2 and one month of the sentence imposed on charge 3 are to be served cumulatively on charge one and on each other. This makes a total effective sentence of 31 months’ imprisonment.
99 I set a non-parole period of 14 months. Having regard to your driving record up to the time of this offending, your otherwise good character and my finding as to your prospects of rehabilitation, I consider a non-parole period of 14 months to be the minimum period that justice requires be served.
100 Had it not been for your pleas of guilty, Mr Knowler, I would otherwise have sentenced you to a term of imprisonment of three years and eight months with a non-parole period of 26 months.
101 You have been in custody on remand now for 316 days, not including today. Pursuant to s18 of the Sentencing Act, I reckon the period of 316 days, not including today, as the period of imprisonment that has already been served under the sentence.
102 I also cancel any licences held by you and disqualify you from driving for a period of 18 months from 22 February 2021.
103 HIS HONOUR: Ms Coombes, are there any matters?
104 MS COOMBES: Your Honour, just in relation to the licence disqualification, under s89B of the Sentencing Act, Your Honour can only start or commence that disqualification from today or a date into the future. It can't be backdated.
105 HIS HONOUR: Yes.
106 HIS HONOUR: Thank you. In respect of each of the three charges to which you have pleaded guilty, all licences held by you are cancelled and you are disqualified from driving for a period of 18 months from today's date.
107 MS COOMBES: May it please the court.
108 MR PEARSON: As Your Honour pleases.
109 HIS HONOUR: All right. Are there any other matters?
110 MS COOMBES: No, Your Honour, may it please the court.
111 MR PEARSON: No, Your Honour, not from (indistinct words).
112 HIS HONOUR: Well, thank you both for your assistance in this difficult matter. Please adjourn the court.
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