Director of Public Prosecutions v Lack
[2017] VCC 897
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-16-01259
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT STERLING LACK |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2017 | |
DATE OF SENTENCE: | 30 June 2017 | |
CASE MAY BE CITED AS: | DPP v Lack | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 897 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Sentencing – Dangerous driving causing death – Fail to give way at an intersection – Low moral culpability
Legislation Cited: Crimes Act 1914 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:DPP v Neethling [2009] VSCA 116; R v Whyte and Ors (2002) 55 NSWLR 252; DPP v Oates (2007) 47 MVR 483; R v Jurisic (1998) 45 NSWLR 209, Stephens v The Queen [2016] VSCA 121, Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
Sentence:Combination sentence of 12 months imprisonment to be followed by a 3 year Community Correction Order with 200 hours of unpaid community work and various conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Coombes | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms K Argiropoulos | Lethbridges Solicitors |
HER HONOUR:
1 Brett Lack, you have pleaded guilty in respect to one charge of dangerous driving causing death. The charge is serious, and that is reflected in the maximum penalty prescribed by Parliament, namely 10 years’ imprisonment.
2 In addition you have admitted your prior criminal history. There are two entries, one on 30 November 1987 when you were aged 18 and that was dealt with in the Broadmeadows Magistrates’ Court in chambers. That involved you being fined $320.00 in relation to failure to display P‑plates and failure to keep to the left of double lines and failing to produce a licence to police on request.
3 The second entry relates to 4 May 2009 when you were aged 40 and that was at Dandenong Magistrates’ Court where you were fined an aggregate fine of $600.00 for careless driving, failure to give name and address of registered owner after an accident, failing to report an accident, having or exceeding the prescribed concentration of alcohol in your blood within three hours after driving or being in charge of a motor vehicle. Your reading was 0.75 per cent. Your licence was cancelled and you were disqualified from driving for a period of 6 months.
4 The latter charge arose following a rear end collision with another vehicle. At the time of the collision you did not stop and exchange your details.
5 Both Court appearances are of some antiquity and are of little relevance in today’s sentencing exercise.
The circumstances of the collision
6 Just after 12 noon on Wednesday, 17 June 2015, a Ford Courier utility that was being driven by you collided with a young cyclist, Joel Hawkins, on Nepean Highway at its intersection with Ponderosa Place, Dromana.
7 Tragically Joel Hawkins suffered severe head injuries and later died in hospital after the withdrawal of life support.
8 Joel was aged seventeen and had been out cycling that morning as part of his training regime. He was a keen cyclist who had the very real potential to achieve at an elite level. His death has had far-reaching and tragic consequences for his parents, Liza and Leslie, his younger brother, Kane and extended family members, as well as the cycling community at Mornington Cycle Club including his coach, Chris Savage, fellow riders, close school friends, and it has also impacted on all the other people who knew him over his short life.
9 You approached the intersection travelling in a northerly direction along Ponderosa Place intending to turn right into the Nepean Highway. Prior to the collision you did not see the cyclist and failed to give way at the intersection.
10 The intersection is a four-way intersection where the Nepean Highway is intersected with Ponderosa Place and Country Club Drive. At the intersection of Ponderosa Place and Nepean Highway, for vehicles that were travelling north on Ponderosa Place, there is a ‘Give Way’ sign erected and a painted broken ‘Give Way’ line in situ.
11 There is a duty on every driver if you are facing a 'Give Way' sign that you must give way to any vehicle already in, entering or approaching the intersection.
12 At the time of the collision you were 46 and an experienced driver. You were the holder of a current full Victorian driver’s licence. It is accepted that at the time of impact your utility was travelling at a speed of no more than 40km/hour and the relevant speed limit applicable to your vehicle was 80 km/hour.
13 Your utility was tested and found to be in a roadworthy condition. There is no evidence of involvement of drugs or alcohol. The weather conditions were fine, the traffic was light and nothing obstructed your view.
14 You were familiar with the intersection. When interviewed by the police regarding the circumstances of the collision you confirmed that you had been using it a fair bit in the last six months. You could not explain why you did not see the cyclist.
Gravity of the offending
15 Dangerous driving causing death is an offence contrary to s.319(1) of the Crimes Act1958. That section provides:
“A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).”
16 In King v The Queen[1] (“King”), the majority[2] of the High Court said of s.319:
“There is no doubt that s.319 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, may attract considerably less condemnation than others. The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s.319. That variety must be reflected in the sentences which are imposed.”[3]
[1](2012) 245 CLR 588.
[2]French CJ, Crennan and Kiefel JJ.
[3]King at 609 [47].
17 Driving will be dangerous where there is:
“some serious breach of the proper conduct of a vehicle... so serious as to be in reality and not speculatively, potentially dangerous to others.”[4]
[4]McBride v The Queen (1966) 115 CLR 44, 72 (Barwick CJ); King ibid, 607–8 [46].
18 A court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[5]
[5]Board v The Queen [2013] VSCA 190 [34] (Maxwell ACJ, with whom Buchanan JA agreed).
19 The Court of Appeal in Stephens v The Queen (“Stephens”) [2016] VSCA 121 at paragraph [21], says:
“Dangerous driving encompasses a very wide range of conduct, but it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment.”[6]
[6]R v Jurisic (1998) 45 NSWLR 209; DPP v Neethling (2009) 22 VR 466, 472 [29] (“Neethling”); DPP v Oates (2007) 47 MVR 483.
20 That statement of principle has been qualified in DPP v Oates[7] by noting that: any sentence which is imposed must take account of variations in the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of moral culpability is low.[8]
[7](2007) 47 MVR 483.
[8]Ibid, 486 [22] (Neave JA, with whom Warren CJ and Nettle JA agreed).
21 The Court of Appeal in Stephens also drew attention to s.5(2)(d) of the Sentencing Act1991, which requires a sentencing judge to consider “the offender’s culpability and degree of responsibility for the offence”.
22 The prosecution submitted that your driving was dangerous in all of the circumstances, due to the speed and manner in which you drove through the intersection of Ponderosa Place and Nepean Highway, failing to give way to traffic on the Nepean Highway and failing to keep a proper lookout.
23 It is not in contention that you drove your utility into the intersection of Nepean Highway and Ponderosa Place without stopping or giving way to the cyclist. After the collision you stopped your vehicle on the northern side of the Nepean Highway and attended on the cyclist. You told witnesses who were present that you just did not see the cyclist.
24 Ms Argiropoulos submitted on your behalf, that your conduct was at the lower end of seriousness for the offence, having regard to the fact that the dangerousness of your driving was constituted by your failure to give way and failure to keep a proper lookout as you drove through the intersection. She noted that your speed was well within the applicable limit, and there was an absence of aggravating factors that are often found in cases of dangerous driving, including alcohol or drug intoxication, erratic driving, sleep deprivation, and ignoring of warnings or failure to stop, and further she said the dangerous driving lasted only a very short period of time.
25 I accept that many of the aggravating features that are sometimes found in these types of cases were not present here.[9] However, as pointed out in Stephens, both the dangerousness and the moral culpability in any particular matter falls to be assessed by reference to the actual conduct and circumstances of the specific case, including the circumstances of the offender.
[9]See R v Whyte (2002) 55 NSWLR 252 and the list of aggravating features listed.
26 Ms Coombes, on behalf of the prosecution, accepted that your moral culpability was at the lower end. She submitted however that the court ought to find that objectively this matter is serious and ought to be considered at a higher level than those cases involving momentary inattention. The Crown submits that it is mid-range offending, or low mid-range offending.
27 Ms Coombes pointed out the fact that you were an experienced driver who had familiarity with the intersection and its complexity. There are multiple lanes of traffic, including a cyclists’ lane at the intersection. It was daylight and other traffic was present on the roadway. You admitted that you entered the intersection without stopping or seeing the cyclist. You failed to give way to the traffic on Nepean Highway and therefore she submitted your driving was a wilful disregard of the road rules as a consequence of which was that the safety of those using the roadway was compromised and your actions ultimately led to the death of Joel Hawkins.
28 This offence is one where the court is dealing with admitted dangerous driving and so for the prosecutor to so describe your conduct as being a wilful disregard of the road rules was not helpful.
29 The real gravamen of your offending is that you failed to exercise your duty as a driver when facing a Give Way sign to give way to any vehicle already in, entering or approaching the intersection. By entering the intersection in breach of that duty, at the speed at which you were travelling was dangerous.
30 Your familiarity with this complex intersection, coupled with the conditions that were present at the time, are relevant. I infer from your answers in the record of interview that you did look to your right but you were focused on entering the intersection before the vehicle that was turning right into Country Club Lane from Nepean Highway and I refer specifically to question and answer 98.
31 This was not a case of momentary inattention. You should have observed the cyclist and had regard to the Give Way sign. You failed to keep a proper lookout thereby subjecting the cyclist to grave risk of injury and death. The materialisation of that risk has been catastrophic.
32 In the great range of moral culpability that the offence of dangerous driving causing death covers, I have assessed your moral culpability in the low range[10] and find that the offending is at the higher end of the low scale for this type of offence.
[10]See DPP v Neethling [2009] VSCA 116; R v Whyte (2002) 55 NSWLR 252; DPP v Oates (2007) 47 MVR 483; R v Jurisic (1998) 45 NSWLR 209.
33 In making that finding I in no way seek to diminish the tragic loss of Joel’s life.
Impact of the offending
34 The tragic failure to see Joel Hawkins led to his death the result of which has been devastating and that was clearly articulated in the 14 victim impact statements that have been tendered, most of which were read out during the course of the plea hearing. He was by all accounts a remarkable young man who was well-loved and cherished.
35 No words can properly describe the impact of the loss of this young man’s life. His parents suffer intense grief. They both spoke movingly of the anguish they suffered as a consequence of removing life support and their beloved son Joel’s agonising death. They are traumatised and devastated by their loss and suffer greatly. Grief marks their every day and has dramatically impacted on their own relationship. They both suffer symptoms of PTSD and major depression. They both continue to have regular psychological counselling and treatment. The death has effectively stopped them having any proper social or recreational activities and I note that Mr Hawkins has been unable to return to his work. They both suffer greatly.
36 Kane, his brother, has lost his great role model and the big brother whom he loved dearly. He described how home life is difficult. He says his brother’s absence is keenly felt every day and he too suffers symptoms of PTSD. He left school because of his difficulties in coping.
37 The effects on others close to Joel and his family were reflected in the statements from his maternal grandfather, Patrick Pipicelli; his aunts Tracey Pipicelli, Tara Bressan and Loreen Saunders; his cousins Tianni Given and Tess Young; his friend and neighbour John Williamson; his friends Zac Adie and Riley Morgan; his cycling coach, Chris Savage; and Bruce Trew, the president of the Mornington Cycle Club.
Personal history and mitigating circumstances
38 You are aged 48. You were raised by your parents on a 20‑acre property in Lysterfield. You had a happy and unremarkable childhood. You are the eldest of four children.
39 You left school at age 14 having completed Year 9 and thereafter worked.
40 Your work history is one of great industry. You commenced full-time employment within a week of leaving school. Initially working as a cabinetmaker for about a year and then working as a mechanical/diesel fitter in your father’s business for over 30 years. The business involved maintenance and repair of trucks and other heavy vehicles.
41 You have held a driver’s licence since you were eighteen, and since the early 1990s you have also held a heavy vehicle licence.
42 In late 2008 or early 2009 your father suffered a number of strokes and was unable to continue his work, and as a consequence of that his business closed. You then spent nine months travelling around Australia, working in concreting and mechanical fitting jobs and on your return to Melbourne worked in various short-term jobs. Your last role involved fabricating concrete mixers. That job stopped at the end of 2011.
43 Your father with whom you enjoyed a close personal relationship was diagnosed with bowel cancer in 2010. In 2011 you moved back into the family home in Rosebud to care for him until his death in February 2015.
44 His death has greatly impacted upon you. You were grief-stricken and found it difficult to cope but you were on all accounts beginning to improve prior to this tragic incident.
45 Since Joel's death, you have struggled to comprehend what has occurred and I am satisfied that you have suffered significantly.
46 Both your brother, Paul Benjamin Lack, and sister, Katie Lack, gave evidence during the plea hearing and I am satisfied that you are a person who is deeply affected and remorseful. Katie Lack's evidence gave real insight into the enormous impact the incident has had upon you. You are now very socially withdrawn. In the past you expressed to her your real distress at the loss of such a young life. You told her how you would have preferred to trade your own life with that of the deceased’s because he was only seventeen and you at least have lived a life.
47 Ms Lack confirmed, given the proximity to your father’s death, that the loss of the young cyclist’s life has had a significant and deep impact upon your mental health. She has grave concerns for your ability to move forward. She confirmed that you were having counselling.
48 Tina Volk, in her letter addressed to the court dated 16 May 2017, says she has known you for about 26 years. She describes you as being a happy and generous person. Her observation is that you were slowly coming to terms with the loss of your own father and you were beginning to look positively towards life when you were tragically involved in this incident resulting in the loss of a young man’s life. She describes you as now being a different person, one who is quiet, reserved and emotional. She states that you have talked with her about the accident and says that you are absolutely devastated, filled with sorrow and remorse.
49 I have had regard to the reports of Dr Wagdi Nagib, general practitioner, together with the enclosures. He confirms that you have longstanding fluctuating lymphadenopathy for which there has been extensive investigations but no cause identified. There is no cause to explain your recurrent painful lymph nodes. You have persistent anterior neck pain associated with lymph node enlargement. You have also been treated and recently recovered from Hep C. Dr Nagib further confirms that you have had treatment under a mental health plan for depression and stress and that you have regular colonoscopies with removal of a polyp.
50 You have been seeing Peter Brosnan, a psychologist, since 2015 on a fortnightly basis pursuant to a mental health care plan.
51 Mr Simon Candlish, forensic psychologist, met with you and assessed you and provided a report dated 12 May 2017. He observes that you appear to be consumed with guilt and shame, and anxious about the strong community hostility directed towards you as a result of this accident. You revealed some suicidal ideation, but have not considered any plans for any attempt.
52 He says that you are experiencing a discomfiting level of anxiety and tension. He considers that you meet the criteria of Major Depressive Disorder and that you also have symptoms of PTSD.
53 He considers that you display a strong sense of regret and remorse and you appear to have been highly deterred as a consequence of what has happened.
54 He recommends ongoing counselling with the psychologist and he considers that you do display strong signs of stress and symptoms of depression (including stress and anxiety concerning these court proceedings).
Mitigatory factors
55 I have taken into account the following matters in mitigation of penalty.
56 When you were arrested you were co-operative with the police.
57 I accept that you entered an early plea of guilty following a contested committal hearing once the charge was agreed. There is real utility in your plea. Your plea has saved the community the cost and the witnesses and in particular Mr Hawkins' family, the further trauma and stress of a trial. By your plea you have acknowledged your wrongdoing. You have thereby facilitated justice. You are entitled to have these matters taken into account in mitigation of penalty, and I do so.
58 I accept that you are genuinely remorseful and that is evidenced by your plea and also the evidence which I have accepted from your sister Katie and your friend, Tina Volk, and your brother Paul.
59 I accept that you have suffered psychologically since the incident and you have features of PTSD in that you ruminate daily about the circumstances and the young cyclist’s death, experience trouble sleeping and have nightmares. You are teary, anxious and depressed. You experience mood swings and those symptoms are continuing.
60 You have had treatment from Mr Brosnan and you are willing to continue to have psychological counselling. You have derived a strong sense of support from him, attempting to address mood issues and stress.
61 Whilst there are those two court appearances from the past, having regard to the age and the nature of the charges and the dispositions imposed, I consider you to be a person who is otherwise of good character.
62 I have taken into account your background history and personal circumstances. I am satisfied having regard to that material you have otherwise led an industrious and blameless life. I consider that it is unlikely that you will reoffend and your prospects for rehabilitation are good.
Sentencing Principles
63 In sentencing you I must emphasise general and specific deterrence. The cases that deal with this sort of offending show that general deterrence is to be given significant weight. Having regard to your post-offence conduct which I have described, specific deterrence has a limited role to play.
64 The maximum sentence imposed by Parliament for this offence reflects the offence of dangerous driving causing death as a “serious motor vehicle offence”[11] for which a term of imprisonment to be immediately served will usually be imposed.
[11]Sentencing Act 1991 (Vic), s 87P(d).
65 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and otherwise to impose just punishment.
66 Ms Argiropoulos submitted in all the circumstances that a Community Correction Order with appropriate conditions ought be imposed.
67 Ms Coombes sought an immediate custodial sentence.
68 As the Court of Appeal makes plain in the guideline judgment of Boulton,[12] I must consider whether the purpose for which the sentence here is to be imposed cannot be achieved by a sentence that does not involve your immediate confinement[13] and whether those purposes cannot be achieved by a CCO.[14]
[12]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
[13]Sentencing Act 1991 (Vic), s 5(4).
[14]Sentencing Act 1991 (Vic), s 5(4) and 5(4C).
69 You have been assessed as being suitable for such an order.
70 I have had regard to the sentences referred to in the schedule attached to the leave application in Sharma v The Queen [2017] VSCA 63. I have read those decisions and note that they are ultimately of limited assistance only, but they do provide some guidance.
71 I must sentence you on the basis of general and specific deterrence, denunciation and just punishment together with my own assessment of the objective gravity of the offending together with your subjective circumstances.
72 I must also heed the comments made by the Court of Appeal in Stephens[15] as to the adequacy of current sentencing practices concerning dangerous driving causing death referred to, and in particular, at paragraphs [36]-[41]. In that decision the court endorsed the applicability of the principles set out in the earlier decision of Harrisonv The Queen [2015] VSCA 349 which concerned the offence of negligently causing serious injury by driving. There, the court spelt out the need for courts to uplift sentence at the upper end of seriousness and that such change would have a flow on effect on sentencing for the mid-range to low range instances of offending.[16] In Stephens, the Court of Appeal said that applied equally to the charge of dangerous driving causing death.
[15] [2016] VSCA 121.
[16] Ibid [36] and [41].
73 Having regard to the circumstances of the offending, your culpability and the matters raised in mitigation, I do not consider that the purposes for which the sentence here is to be imposed can be met by the imposition of a CCO alone. As the Court of Appeal stated in Boulton, the introduction of the CCO as a sentencing option has dramatically changed the sentencing landscape in the state. It is an option that is available also in combination with the imposition of a gaol term. In this case, I consider that the imposition of a gaol term in combination with a CCO does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way. Such an order is intrinsically punitive because of the mandatory conditions which must be complied with together with the further conditions spelled out as special conditions.
74 Having carefully considered all the factors, I consider the objective gravity of the offending is simply too great to allow for a CCO alone without any punitive incarceration. The combined sentence that I am about to impose provides for just punishment to reflect the gravity of your offending and the other sentencing principles that I have enunciated, and allows for your eventual release subject to strict supervision with conditions that will enable you to continue your rehabilitation in the community whilst addressing underlying issues such as your mental health.
75 I accept that because of your current fragile psychological state, imprisonment will be more burdensome for you than otherwise and that there is a real risk, absent treatment from your psychologist with whom you have a strong therapeutic relationship that has extended over two years, that your condition may deteriorate whilst in custody and therefore the principles of Verdins 5 & 6 are enlivened. I have adjusted your sentence accordingly.
Sentence
76 Mr Lack, could you please stand.
77 On the charge of dangerous driving causing death, you are convicted and sentenced to 12 months’ imprisonment to be followed by a Community Correction Order for three years.
78 The order is subject to the usual mandatory conditions and in addition, there are a number of additional special conditions that apply, that is that you must perform 200 hours of unpaid community work over a period of two years as directed by the regional manager. You must be under the supervision of a community corrections officer for the duration of the order and you must undergo assessment and treatment for mental health.
79 If you contravene the order by further offending, you can be charged and sentenced to a term of imprisonment for the contravention itself and you fall to be resentenced by me in respect to this charge.
80 I can only impose a Community Correction Order if you agree to such an order being imposed. I will sign the order as I have proposed and what I will ask is for my associate and Ms Argiropoulos to confer with your client and if he is consenting, could he sign it.
81 MS ARGIROPOULOS: Yes, thank you, Your Honour.
82 HER HONOUR: All right. Those conditions are acceptable and he is consenting?
83 MS ARGIROPOULOS: That's correct, Your Honour.
84 HER HONOUR: Yes, thank you. All right. Pursuant to s.89(1) of the Sentencing Act 1991, all licences you hold to drive are cancelled and you are disqualified from obtaining a licence for a period of 18 months.
85 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to a term of imprisonment of three years and six months with a non-parole period of 18 months.
86 I don't think there were any other ancillary orders sought?
87 MS PIPER: There aren't any other ancillary orders, Your Honour – I believe there may have been one day pre-sentence detention that needs to be declared.
88 HER HONOUR: There is one day pre-sentence detention, isn't there? I will declare one day pre-sentence detention and direct that that be entered into the records of the court.
89 MS PIPER: As Your Honour pleases.
90 HER HONOUR: Now Ms Argiropoulos, has your client got any medications or anything with him?
91 MS ARGIROPOULOS: Your Honour, we've already had discussions about that this morning just in case, he does have a number of Ventolin puffers with him which hopefully he can take with him but other medication has been taken off him. I wonder if I could just request that those documents from the GP be - - -
92 HER HONOUR: I was going – I was going to suggest that - - -
93 MS ARGIROPOULOS: - - - be communicated downstairs.
94 HER HONOUR: - - - all the medical material be provided to Correctional authorities - - -
95 MS ARGIROPOULOS: Yes.
96 HER HONOUR: - - - and I'll just make a notation on the return of prisoners record that in the past he has expressed suicidal ideation and that needs to be monitored.
97 MS ARGIROPOULOS: Yes. Well, there's – obviously these are psychological issues but also given that recent surgery, he has been taking painkillers - - -
98 HER HONOUR: And painkillers.
99 MS ARGIROPOULOS: - - - he's been taking Endone which wouldn't be appropriate - - -
100 HER HONOUR: All right, and Tramadol.
101 MS ARGIROPOULOS: - - - but he does really need some assessment sooner rather than later - - -
102 HER HONOUR: All right, so I'll just ask that he be assessed - - -
103 MS ARGIROPOULOS: - - - in order that those matters can be dealt with.
104 HER HONOUR: - - - when he's recepted into prison because he has had operative treatment recently and in the most recent past he was prescribed both Tramadol and Endone for pain relief.
105 MS ARGIROPOULOS: Yes, yes.
106 HER HONOUR: Yes, all right.
107 MS ARGIROPOULOS: Yes, thank you, Your Honour.
108 HER HONOUR: I'll get my associate to copy the order for you, the Community Correction Order and then you'll be free to go.
109 MS ARGIROPOULOS: Thank you, Your Honour.
110 HER HONOUR: We can adjourn.
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