Director of Public Prosecutions v Leatherland
[2018] VCC 1045
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR 17-02206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JAMES LEATHERLAND |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 July 2018 | |
CASE MAY BE CITED AS: | DPP v Leatherland | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1045 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr B. Balmer | Balmer & Associates |
HIS HONOUR:
1 Peter James Leatherland, you have pleaded guilty to one charge of dangerous driving causing death. That crime carries a maximum penalty of ten years' imprisonment. You pleaded guilty at a reasonably early time, bearing in mind that there was forensic material that needed to be tested. The offending occurred back in 2016 and this matter has now been hanging over your head for something in excess of two years. Obviously family of the victim have endured the same time frame though there is not much that can be done about that.
2 Firstly pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you fail to provide such a sample to police, they may use reasonable force to take it from you.
3 You are now 61 years of age. I accept that your plea of guilty is accompanied by profound remorse and you must also of course get the utilitarian benefit of that plea. Trials when they occur with offending such as this are dreadful experiences for all concerned and you have relieved the family and friends of the victim of that experience at least. You made admissions to police when you were interviewed and there has been no attempt to deny what occurred or to in effect talk your way out of it.
4 You have one prior finding of guilty which was a without conviction good behaviour bond for a low level .05 some 20 years ago. I am told you have now been driving for in excess of 40 years and that is your only prior matter.
5 The circumstances of the offending are described in the Crown opening. I have now had the opportunity of reading the statements of the eye witnesses. I think in this situation as I indicated to your counsel the other day, it is very difficult to determine exactly what occurred or how long the light had been red but I simply say from the outset before I commence the summary that you are to be sentenced on the basis that Mr May had been stationary at that red light for an indeterminate period of time, albeit a relatively short one. It seems to me oddly enough that the gravamen of the offending here is not so much you not stopping at a red light but in failing to see Mr May sitting there directly in front of you stationary. However that does not change the offending or your guilt of it.
6 Mr May, the deceased, was 69 years of age at the time of his death. He and friends had been in Victoria riding motorbikes and had been to a road hog rally in Yarra Glen. They left on 14 March 2016 to ride back to New South Wales. They were riding along the Princes Highway between Morwell and Traralgon. You were also on that road. Everybody was heading in the same direction, you were 59 years of age at that stage and you were driving towards Traralgon where you were going to buy pet food and petrol. You had your 16 year old daughter in the car with you. She was in the front passenger seat. The intersection of Airfield Road and the Princes Highway forms a T intersection with the bar of the T being on the southern side of the intersection. There are effectively two lanes going each way with turn lanes on either side. That section of the highway is essentially flat and the speed limit is 80 kilometres per hour. I note that subsequent to this accident that flashing yellow lights have been placed prior to the intersection to alert drivers that there are lights ahead of them. In any event as Mr May and his friends approached the intersection they were riding their motorcycles in the right straight ahead lane. Mr May stopped his motorcycle at the stop line and was facing a red light when you collided with him. You clearly did not realise that the light had either gone amber or red and you clearly had not seen Mr May until very shortly prior to the collision when it was far too late to do anything about it.
7 You impacted him from behind as a result of which he was thrown off his motorcycle and passed away at the scene. You were assessed by an ambulance officer. You said you had no injuries, you had stopped your vehicle and you then provided a blood sample at the Latrobe Valley Hospital. The analysis of your blood did not reveal the presence of any drugs or any alcohol. Your daughter told the police that you were driving past Latrobe Valley Hospital when she pointed out an unusual looking car on a trailer which was being towed by a four-wheel drive road vehicle travelling in the same direction. She said that vehicle was in the right-hand lane. Clearly it could not have been. But in any event you and her were both glancing at the vehicle which she had pointed out to you and which looked like a stunt car. She said that she looked up at the last minute and saw the motorcycle. She yelled out but it was too late.
8 Mr Daniel Wright was driving the vehicle that clearly distracted you and your daughter. It was a Nissan Patrol and he was towing a competition four-wheel drive vehicle which was also a Nissan Patrol in an easterly direction. He was in fact in the left-hand straight ahead lane. As he approached the intersection the lights applicable to him turned amber and he continued through the intersection as he thought he could not stop prior to the intersection without causing his trailer to jack-knife. He said he was travelling at about 80 kilometres an hour. He remembered seeing a motorcycle stationary in the right-hand lane at the intersection. In his statement he says he believes that the lights turned red whilst he was actually passing through the intersection so I do not know what would have happened if Mr May had been in front of him. But in any event a short time after that he saw the debris and the consequences of the accident. He saw you pull up. He had not seen you prior to the collision.
9 A Ms Turner was driving along and was the vehicle immediately behind your car. She observed the lights begin to turn amber and she began to slow down and clearly your vehicle, which I understand from your record of interview was on cruise control did not slow down. She said that she saw your vehicle proceed through the intersection without brake lights operating and then saw things flying through the air. Reading her statement it would appear that she believed that the collision occurred past or through the intersection.
10 A Ms Vella said she was in the left-hand lane, as she approached the lights turned amber. She pulled up to stop. She was behind one other car that was also stopped at the lights. Reading her statement she seems to say there was another car in the right-hand lane beside her. In any event she confirms that Mr May was stationary at the time that it occurred. She says she was stationary at the lights as well.
11 Other witnesses were in Airfield Road and one said that he believed the lights had just turned green for him, the other witness said that she was not sure what colour the lights were. The variations between all of those statements is why it is often a dangerous practice to rely on any one witness in assessing the situation such as this. Each of those people have seen the collision very, very differently it seems to me. As I said in fairness to you, I think all I can do is sentence on the basis that I have already outlined. It would seem to me that there is a very strong possibility and indeed subsequently the psychologist that you have been seeing takes the same view that Mr Wright's vehicle was being watched by you and your daughter. He proceeded through the intersection without braking and a situation where I think you may well have been lured into not realising what the circumstances were because his vehicle continued on. Be that as it may the fact remains that you were not keeping a proper outlook and you have effectively by your actions killed a man.
12 Because of the difficulties in ascertaining what the exact situation was, I do not propose to go into the timing of the lights and the like. It is clear that I sentence on the basis that they had been amber for a period of time and you had not seen that and that they were red for an indeterminate period of time before the impact and you had not seen that either.
13 That is basically the circumstances of the collision. The consequences of that collision are dramatic and dreadful indeed. I have before me a number of victim impact statements which I read on a number of occasions. There were two victim impact statements read out in court and I do not think I need to go through them in any great detail. The victim impact statement of the deceased man's sister describes very eloquently and very bravely if I may say so, the circumstances that have prevailed since her brother's death. She pointed out that having to tell her 88 year old mother of her son's death will haunt her for the rest of her life. A very good friend, motorcycling friend of the deceased pointed out that he had lost basically his best motorcycling mate and that the deceased will be always missed. As I say I do not think I need to go into any detail with those. The consequence of this inadvertence, if I can put it that way on your behalf, is that a clearly very much loved man is now no longer with us and a number of people including children suffer from his absence and regret it very much indeed.
14 That is why offending such as this is always regarded as serious. The submission on your behalf if that a community corrections order is within range. The main authority in this State so far as sentencing for this offending is concerned is the DPP v Neethling. and whilst it is probably trite to do so, it is because of the amount of people that listen to what I say I will go through the principles that are outlined in that decision.
"General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury."
15 That is fairly self evident.
"A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. The sentence which is imposed must take into account variations in the moral culpability of the person responsible."
16 And that is the principle that your counsel very succinctly again if I may say so relies upon.
"A custodial sentence will usually be appropriate for this offence except in the cases where the offender's level of moral culpability is low."
17 The decision of Neethling refers back to the New South Wales decision of Whyte and in terms of looking at aggravating features, which obviously play a part of the moral culpability I look at the following and can indicate in regard to each of those what the situation for you is.
18 The extent and nature of the injuries inflicted. Well it could not be any worse. Number of people put at risk is hard to estimate but it seems fairly clear that if Mr May had not been there, no one else would have been hurt. Speed, you were within the speed limit. Degree of intoxication or substance abuse, none of either. Erratic or aggressive driving, nothing of the sort. Competitive driving or showing off, nothing of the sort. Length of the journey during which others were exposed to risk. A matter of seconds. Ignoring the warnings. It is not so much an ignoring, it is simply not seeing. Escaping police pursuit has no bearing here. Degree of sleep deprivation. Again nothing untoward there. And failing to stop, well you did stop once the impact had taken place. Yours is a dangerous driving involving inattention and diverting what you were looking at from the road. Again it was pointed out to me that your inadvertence was not due to what is often the situation of looking at a mobile phone or playing with a radio, change something on the car radio or looking at a newspaper or some sort of objectively dangerous behaviour that you could be guilty of. Yours was a response to a comment from your 16 year old daughter and in my view in that situation moral culpability here, that is blameworthiness for people who are listening to me, is at the low end. As I said to your counsel, I really do not like using the word low end insofar as this sort of offending is concerned because the consequences obviously are always at the highest possible end. I am simply talking about the blameworthiness in terms of how I then have to proceed to sentence you.
19 It is clear as Mr Justice Vincent pointed out in Neethling that the moral culpability is an essential part of the objective assessment. As I have said in this circumstance it is my view that the moral culpability here is low. That of course is not the end of the matter. Even though moral culpability may be low, if a person has a prior significant history of bad driving or anything along those lines that can be negated.
20 However your circumstances are such that you are now 61 years of age, you have successfully raised three children including a stepchild as I understand the situation. You went into an apprenticeship when you left school. You have worked all your life. You are clearly a valuable member of your local community out at Yinnar. You have been a volunteer at the football club, you have a number of references that have been tendered on your behalf. Other than the 20 year old without conviction adjourned bond, you have it would appear led an exemplary life and you are certainly entitled to bring that into account now.
21 Subsequent to the offending you have consulted a psychologist for treatment for yourself. You first attended him if he has got his dates right in November of 2016. And he says,
"Peter further advised that he 'thought he could handle it' but was more worried about him, that is the motorcyclist and his family than himself. He had insight that his mental health was suffering and that he needed to seek help."
22 You have continued to see that psychologist. Obviously you have had a significant number of counselling sessions with him and your children have remained supportive of you as indeed has your former partner. The psychologist as I said seems to share the view that I have formed as to how this may have all come about.
23 Tendered on your behalf were a significant number of very persuasive and very powerful references. First one, and I am not going to read them all out because a lot of material is the same, is from a Mr Davidson. He has known you for a long time. He said,
"Peter and I have continued all these years as friends. I know he is one of the most honest, trustworthy and reliable person I know. Also in all aspects of life including being a very proud parent, volunteering in the local community and a well respected resident of Yinnar, Peter is always helping out anyone in need whether it would be getting firewood for local residents and friends, or fixing their cars because he is one of the best and trustworthy mechanics in the Latrobe Valley with years of knowledge and experience. He enjoys watching and volunteering at the local football, he is a very responsible person, father and friend."
24 A further reference was from a Acting Sergeant of Police Mr Ludekens. I simply say I am well aware of the reticence of police officers to give references in matters such as this and I therefore treat his reference with a large degree of respect. What he says is that he has been a friend of yours for 30 years. He says,
"Mr Leatherland has informed me that he has been charged with dangerous driving causing death and from our discussions I can see that the matter is weighing deeply on his consciousness [sic], how the accident occurred and he has indicated it is continually on his mind. And although he is at a loss to explain how the accident occurred, he has shown a preparedness to accept the consequences. The remorse that he has shown is not like the self pitying that I have often seen from people in the past, or where one is upset that their wrongdoing has been discovered, but rather a genuine remorseful attitude that the incident actually occurred and for the heartache and pain caused to all involved."
25 He then goes on to say, I think this is also of significance in your situation.
"Mr Leatherland's outgoing and social persona has now changed to a more reclusive type personality and it looks like he is carrying the troubles of the world on his shoulders. His ongoing health and well-being have suffered from his displaying a very nervous and somewhat tired disposition. He has lost a considerable amount of weight."
26 He also confirms your interest in your children's lives, he describes you assisting at the Yinnar Football Club, collecting money, goal umpiring, helping out in any way that you could. He said that you still help out in that situation even though your children have ceased playing at the club due to their work commitments.
27 The other references just simply confirm that you have been working for a long period of time, that you are a very valued employee at Valley Ford. You are considering retirement but have not reached that stage yet. Ms Wendy Mitchell, your partner, says,
"I would like to conclude my reference by stating this accident has undeniably changed Peter and not for the better. One he had a terrific sense of humour but now he sees no joy in anything. His physical and mental health have suffered significantly."
28 The other references which are tendered and therefore available to anyone with a genuine interest in them, say essentially the same thing. The extra curial punishment for you in this situation has been life changing and I clearly take that into account. A number of decisions of other County Court judges were handed up to me. It is clear that we obviously do not have mandatory sentencing in this State and it is clear, and I make it very clear from the outset, it is unusual for this charge and a conviction for this charge not to carry a custodial sentence. However matters put before me were of a Mr Ellett before Judge Misso, a Mr Kusen before Judge Lacava and Mr Tran before Judge Hannan. In all those situations they were given community corrections order and the reasons were outlined and each one of those remained unchallenged as I understand it. In fact in one of them the accused was given a without conviction disposition which I would not entertain but be that as it may.
29 A matter which does seem to me out of those to be pertinent to this. Bearing in mind that red light or stop sign collision usually involve some form of t-boning rather than what has occurred here, is the one of Mr Ellett. Mr Ellett had a collision in Gippsland, he was 75 years of age and he was driving down the Bunyip River Road. He went past signs that were warning him that there was an intersection and that there were stop signs erected. There were stop signs actually erected at the intersection and he went through the warning signs and he went through the stop sign and in effect then had a t-boned collision. Every situation is different and he was 75 years of age with a good history as well. It was conceded by the Crown in that matter that a community corrections order was open as I understand it and I do not, to be perfectly frank, see a lot of difference between that and this situation, albeit here the Crown instructions are that an active custodial sentence is required.
30 So I read those decisions and I obviously take them into account. The risk of you re-offending in my view is remote. Your rehabilitation is well under way. It may be that in terms of your own personal mental health and physical health that could be a long and drawn out process. You have the support of your family, you have somewhere to live, you are going to lose your licence for 18months no matter what happens. So whether you are going to be able to continue to work in Traralgon from Yinnar is another matter altogether. You have had this hanging over your head now for a long period of time as I have already pointed out as indeed have the family and friends of the deceased man.
31 Imprisonment remains the sentence of last resort certainly in this State and in my view taking all those matters into account, this is an unusual circumstance. Normally when dealing with these there is either alcohol or speed or some other contributing factor. Yours was an understandable though inexcusable lapse in concentration with dreadful, dreadful consequences.
32 I have had you assessed for a community corrections order and you have been deemed to be acceptable and taking everything into account that is the disposition which I consider in this circumstance to be appropriate.
33 It will be a community corrections order if you agree, of four years' duration and will incorporate 300 hours of community work as well as mental health conditions. It will be with conviction. Normally in circumstances such as this where a person has a prior history with or without conviction means very little to them. I do believe in your situation Mr Leatherland that having a conviction for having basically killed a man for the rest of your life, will have a very significant impact on you and just will not go away. I think that to actively imprison you now would achieve no useful purpose at all.
34 Accordingly if you agree, that is the order the disposition will be. Any licence to drive a motor vehicle is hereby cancelled and you are disqualified from obtaining a licence for a period of 18 months.
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MR BALMER: As Your Honour pleases.
HIS HONOUR: Thanks Mr Balmer.
MR MOORE: If the court pleases. As Your Honour pleases.
HIS HONOUR: I will make the mental health hours, I know he is getting assistance with that already but I will make those count as work hours. As indicated the other day, I have concerns about community corrections order for someone of his age but the intermediate disposition which would have been available some years ago have now been destroyed so that is my only choice.
MR BALMER: Did Your Honour announce the 464 application?
HIS HONOUR: Yes. All right you understand the consequences of that
Mr Leatherland. If you were to re-offend you would be brought back for resentencing and obviously anything remotely like this would result in a custodial sentence. I make it clear that no one ever wins in these situations, they are dreadful for everybody concerned and just wish they didn't happen. All right thanks for that, I'll just stand down.
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