Director of Public Prosecutions v Leddin
[2013] VCC 2074
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00425
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EAMONN FRANCIS LEDDIN |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 11 December 2013 | |
DATE OF SENTENCE: | 19 December 2013 | |
CASE MAY BE CITED AS: | DPP v Leddin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2074 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Culpable driving causing death – gross negligence – highly visible cyclist hit from behind on straight road – young and vulnerable offender – plea of guilty – no prior convictions
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Shields [2011] VSCA 386 – R v Satalich [2004] VSCA 132
Sentence: Four years and three months’ imprisonment with a non-parole period of two years and three months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Shwartz | Office of Public Prosecutions |
| For the Accused | Ms H. Spowart | Victoria Legal Aid (Warrnambool) |
HIS HONOUR:
1 Eamonn Francis Leddin you have pleaded guilty to one charge of culpable driving causing death. On 7 April 2011, when you were just 19, you were driving on Hopkins Point Road, Warrnambool at around eleven o’clock in the morning, when your car struck and killed Janet Baldam, who was cycling. Janet Baldam was a loved and loving wife and mother of four children. As a result of your grossly negligent driving, one life has been lost, many others irreparably changed and her death will forever haunt you.
2 It is necessary to detail the circumstances in which this shocking and tragic death occurred.
3 On 6 April 2011, you, together with a friend, Jessica Cherrett, left Warrnambool to attend a performance of Riverdance in Melbourne. The two of you drove to Geelong and then caught a train to Melbourne. After the show you returned to your hostel where you slept for between some three and a half and five and a half hours.
4 The following morning, you and Ms Cherrett caught the return train to Geelong. You had a further short sleep on the train and, having arrived in Geelong, commenced the drive back to Warrnambool. You stopped at the general store in Panmure to collect mail and then went to your house at Panmure to collect some belongings. The two of you stayed there for about 10 minutes before driving through Allansford and onto Hopkins Point Road. The day was fine and visibility was good. Janet Baldam was a very experienced cyclist and wore a high visibility pink lycra top.
5 Hopkins Point Road is governed by a 100 kilometres per hour speed limit and consists of one lane in each direction, separated by a single broken white line. Some 484 metres before the point of impact, there is a large reflective sign warning that the road is a cycling training area. You told police that you had seen that sign.
6 The fatality occurred on a long straight stretch of road. Ms Cherrett noticed the cyclist as your car rounded a bend to continue onto that straight stretch of road. She said that the cyclist was “where she should have been” which was about 30 centimetres from the edge of the bitumen. You told police that you “vaguely” saw the bike up ahead about 200 metres distant. You thought, “I have to watch out for the cyclist”. When your car got to within 100 metres of the cyclist, Ms Cherrett warned you about her presence by saying, “Eamonn” in a firm voice. Some 20 metres away from Janet Baldam, Ms Cherrett heard you say, “Oh shit”, and without any attempt to divert around the bike, the front left hand side of your car ploughed into the rear wheel of the bike. Janet Baldam was flung in the air and killed on impact.
7 Both you and Ms Cherrett checked, but could not find a pulse on Ms Baldam. Each of you took turns administering CPR before an ambulance arrived.
8 You had a conversation with police at the scene of the accident. You said that “… I lost my train of thought and wasn’t concentrating on the road.” You stated that you had not taken any evasive action prior to the collision and only applied your brakes after you hit Ms Baldam. You were asked about whether you were distracted prior to the accident. You stated “Just some thoughts that were going through my head, dropping off passenger, getting ready for work and my mind just went blank.” When questioned about whether you were tired or fatigued on your drive from Geelong to Warrnambool, you responded, “No still wide awake.”
9 At the time you hit Ms Baldam you were not affected by alcohol or drugs, you were not distracted by using your mobile phone, you were not travelling at excessive speed and there is no suggestion that your prior driving was erratic or dangerous.
10 Some three hours after the fatality you were formally interviewed by police. You said that you had vaguely seen the bike ahead and then “For some weird reason all these thoughts just popped into my head simultaneously … I just had an absolute blank, and the last thing I hear was the screaming from my passenger, and … I woke up and there’s the cyclist.” You were asked whether you had been asleep and you said that you had not, “I think I was, like, sort of, subconscious.” You then stated “… it was just an absolute blur. I can’t really fully remember all of it. … I think it actually might have been daydreaming. I'm pretty sure it was daydreaming, yeah.” You were asked about whether your conduct was that of a safe and prudent driver. You immediately answered “Definitely not.”
11 Janet Baldam was 47 years old when she was killed. Victim Impact Statements have been tendered written by Dr Alan Baldam, the husband of Janet, and her four children, Philippa (Pippa), James, Rowan and Ben. Ben’s partner, Natalie Anderson, has also provided a statement. Each of those who authored those statements asked that they not be read aloud in court. In deference to their privacy, I will not quote directly from the statements.
12 It is often said that a picture tells a thousand words. A number of photos of Janet Baldam, together with her immediate family, have been attached to those statements. She was clearly a vibrant woman whose life has been cruelly cut short. The photographs attest to her warmth and connection to her family. I have now read each of the Victim Impact Statements several times. They are immeasurably sad. The family speak of their grief and of their anger. No apology that you can make can restore the life of an excellent wife and mother who looked forward to having grandchildren. Janet Baldam had a plan to live to one hundred and she was fit and trim and took her health seriously. She cycled to that end. The justified grief of family members is haunting and I can find no words of comfort.
13 Further Victim Impact Statements have been tendered written by Janet Baldam’s mother and father, Pamela and Gerald Pope. They live in Kent in the United Kingdom. Janet Baldam’s sisters, Nicola Piper and Emma O’Toole also live in England and a third sister Carolyn Wright lives in France. Each of them has provided statements which were read aloud in court. Janet Baldam’s family are close knit and her death has caused great grief, frustration and anger. The life of a good woman has been taken away and the impact of her death has been very great indeed.
14 It has now been in excess of two years and eight months since Janet Baldam died. The delay in concluding this proceeding is unacceptable. Janet Baldam’s family should not have been forced to relive her death on a daily basis under the shadow of an unresolved court case. You too should not have had this matter hanging over you for so long.
15 It is important that the circumstances of the delay be described in some detail. A document has been produced by the prosecution, tendered as Exhibit C, to explain this delay. Although the collision occurred on 7 April 2011, it was not until 30 January 2013 that a charge of culpable driving, to which you ultimately pleaded guilty, was filed. Some 11 months after the fatality, you were charged with dangerous driving causing death and, in the alternative, driving in a dangerous manner. A committal was then delayed because the Office of Public Prosecutions wished to obtain an opinion from a sleep expert. Initially, a memo was received from Dr Morris Odell, head of the Department of Clinical Forensic Medicine at the Victorian Institute of Forensic Medicine. Dr Odell has particular expertise in traffic medicine, including fatigue and driving. Dr Odell considered that while you may possibly have fallen asleep, on the evidence he could not give an unequivocal opinion as to whether sleep deprivation or excessive fatigue caused the collision as distinct from daydreaming, a lapse in concentration or some form of distraction.
16 Following Dr Odell’s opinion, the Office of Public Prosecution sought a further statement from a sleep expert and on 9 October 2012, Professor Drew Dawson psychologist, was commissioned to provide an expert witness statement. For reasons that do not need to be repeated, I had no hesitation in excluding the evidence of Professor Dawson in a ruling delivered on 3 December 2013.
17 On 7 March 2013, being only five weeks after you were charged with culpable driving, a committal was conducted in respect of culpable driving and the alternative charge of dangerous driving causing death. After you were committed on both charges, the matter was listed to commence as a trial, in the circuit commencing 23 September 2013 at Warrnambool. It is apparent from a Summary of Prosecution Opening, that the prosecution substantially relied upon the evidence of Professor Dawson to establish that your negligent driving was a consequence of a fatigue-related error.
18 On 19 November 2013, at a callover of matters listed in the Warrnambool circuit commencing 25 November 2013, I directed that the prosecution provide particulars underpinning both the charge of culpable driving and that of dangerous driving causing death. I found it remarkable that such particulars had neither been provided nor sought previously. In response to that direction the prosecution particularised the species of culpable driving which was alleged as being founded on two separate, but not necessarily mutually exclusive bases. It was alleged that the accused drove a car whilst fatigued and/or that he failed, unjustifiably and to a gross degree, to observe the standard of care in circumstances where he observed a warning sign, observed Janet Baldam riding, was warned of her presence by his passenger, and failed to control or manoeuvre his vehicle so as to avoid Janet Baldam.
19 Those particulars were provided on 26 November 2013.
20 You had earlier offered to plead guilty to the charge of dangerous driving causing death, but it was not until I excluded the evidence of Professor Dawson, that this matter resolved as a plea of guilty, to culpable driving causing death on a basis that was not focused on fatigue.
21 In my view the great delay in finalising this case cannot be attributed to you. You were not charged with culpable driving until nearly 21 months after Mrs Baldam’s death. After you were charged with culpable driving, the prosecution case was focused on a fatigue-related driving error and it was not until that basis was effectively excluded by my ruling, delivered on 3 December 2013, that you then entered a plea of guilty to the alternative basis of culpable driving.
22 This delay should not and need not have occurred. The primary reason for the delay is that the prosecution took a lengthy time to explore fatigue as the basis for culpable driving, despite the considered and balanced opinion earlier proffered by Dr Odell.
23 I turn to your personal circumstances.
24 You are now 21. This is the first occasion in which you have appeared in court charged with criminal offences. I note that you have lost demerit points on two occasions for driving at excessive speed.
25 Most impressive and powerful character evidence was called on your behalf from a number of witnesses and further written references were tendered. Mrs Julie Burch, Chaplain to Brauer College, provided a written reference and gave viva voce evidence. Mrs Burch has been employed at Brauer College for 35 years both as a teacher and as chaplain for the past 19 years. She taught you when you commenced Year 7 in 2005 and has had ongoing contact with you since that time. You were a student at Brauer College between 2005 and 2010 and in your last year you were awarded the Brauer College John King Citizenship Award for your outstanding citizenship both within the College and the wider community. Mrs Burch explained that you won that award because you satisfied four categories of citizenship. You were involved in the wider community through your work as a volunteer and your participation in the Fun for Kids Festival at Warrnambool for four years. You have also been a volunteer caller for St Pious X Parish bingo nights. She noted that not every young man would be prepared to assist in that capacity. Secondly, you won the respect of staff and students at Brauer College and you were selected as a form captain. Thirdly, although you were not the most academic of students, you committed yourself to your studies to the utmost and tried to do your best. Fourthly, you involved yourself in broader school activities including playing volleyball at a high level, coaching volleyball and assisting backstage in musical performances. During your six years at Brauer College, you received numerous scholarships, commendations, achievement and meritorious awards. Teachers stated that you were “a pleasure to teach”, that you always tried your best and that your persistence and enthusiasm were a credit to you.
26 During Year 12 your father died from cancer. He had battled with that illness for some time and Mrs Burch accompanied you while you visited him in hospital. She expressed amazement at your strength and composure at that most difficult time. Mrs Burch considered that you were caring, considerate and compassionate and that you were always concerned for the wellbeing of others above yourself. She counselled you during your father’s illness and after his death. You had been devastated to lose him.
27 Mrs Burch emphasised that you were not a “worldly-wise” person, but rather a naïve and gentle person which would make you particularly vulnerable and at risk within prison. Mrs Burch made those observations from the perspective of a person who has had contact with the prison system through her role as a chaplain. She is also familiar with some underlying mental health and psychological problems that you have faced, including dealing with your sexual orientation and ultimate identification of yourself as gay.
28 Mrs Burch attested to your appreciation of the terrible consequences of your driving and your struggle to cope with the reality that you have caused Janet Baldam’s death. Those consequences have reverberated through the whole Warrnambool community. She stated that you feel overwhelming remorse and have an appreciation of the impact of Janet Baldam’s death on her family.
29 Ms Kelli Garrison, counselling psychologist, provided a report dated 8 December 2013 and supplemented that report with oral evidence. This was, in my view, one of those somewhat infrequent occasions in which psychological evidence was most helpful. Ms Garrison, who has practised as a treating psychologist for 16 years, saw you on four occasions before the fatal collision. You presented in 2010 reporting that you were experiencing distress due to family problems and grappling with your sexuality. You presented with depressive symptoms and a flat mood and were confronted with your father’s illness and subsequent death. You said that you felt isolated as a young gay man in Warrnambool, that you had been challenged by your parents’ earlier divorce and your father’s disapproval of your homosexuality.
30 When you first saw Ms Garrison on 31 May 2010, you reported depressive symptoms including suicidal thinking. Subsequent to the accident, you have seen Ms Garrison on seven further occasions. The first of those was on 9 April 2011, two days after the fatality, and after your mother had organised an appointment. Ms Garrison described you as shut down, flat and not demonstrating much overt emotion. You reported fear and suicidal thoughts. You were very distressed by what had happened and fully accepted that you were responsible. You expressed concerns for the deceased’s family.
31 Ms Garrison described you as psychologically unsophisticated and as a young man who represses his emotions. She emphasised that you have expressed deep remorse for your conduct and that you have sought to understand the depth of the Baldam family’s emotions. Ms Garrison considers that you are a young and naïve man who is vulnerable and that you would very likely cope poorly in prison.
32 Further character evidence was called from Michael Beks who has worked for 25 years as a chartered accountant and employs six people in his business. Mr Beks, whose evidence was most impressive, has known you through your participation in the Warrnambool Volleyball Association where he has previously served as president. He has watched you develop from a junior volleyball player into the senior ranks and has frequently dropped you at home after volleyball and driven you to various locations around the State when you have been selected to represent Victoria in the Country Victorian under-17 team competing in the under-17 national championships. Mr Beks has also watched you play in the domestic volleyball competition in the Warrnambool area and in representative competitions.
33 Significantly, you have been generous in your assistance to junior volleyball players. You have consistently coached junior teams and have refereed middle and higher levels of competition before competing yourself. Mr Beks considers that you are an open, trusting and honest young man who is socially naïve and that you accept complete responsibility for your conduct. He expressed the opinion that you understand the severity of what has happened and that you are remorseful.
34 Mr Beks wrote:
“I've never met anyone like Eamonn. He has a very unique personality, socially naïve, soft nature, very friendly, very kind and helpful, possibly lower than average intelligence. I understand that he has publicly acknowledged being gay. For most people, the soft edges would have been knocked off by now, but Eamonn remains very positive and upbeat, despite the difficulties and hardships he has experienced. The description ‘wouldn’t hurt a fly’ comes to mind. Since the accident, Eamonn has been more subdued.”
35 You turned 19 five days before the fatal accident. You finished Year 12 some four months earlier at the end of 2010. Your father had died on 23 July 2010. Prior to that time, you had variously lived in Yambuk, Port Fairy, Warrnambool and Dennington. You went to primary schools at Port Fairy and at Warrnambool where you were also an altar boy.
36 In 1999 your parents separated. Your father was an accountant and after the separation, your mother became the sole carer to you and your three older siblings. She worked five nights a week as a waitress/dishwasher to support the family and for the last five years has worked as an integration aide for children with disabilities.
37 You have worked at Hungry Jack’s as a kitchen hand and since April 2011 as an assistant labourer. You have also undertaken a Diploma in Tourism and Events.
38 In sentencing you, it is necessary to reiterate that your driving was not associated with many of the aggravating features that all too frequently accompany the crime of culpable driving. You were not affected by drugs or alcohol, you did not drive at excessive speed, you did not become distracted through using your phone or texting and you did not engage in prior erratic driving. Your plea of guilty does have genuine utilitarian value. Sadly, the Baldam family have been forced to live with the loss of their wife and mother for a very long time. However, the entry of a plea does spare them from the additional ordeal of a contested trial. I accept that you are genuinely contrite. In my view, the evidence indicates your immediate preparedness to take responsibility, your attempt to assist Ms Baldam on the day and your continuing remorse.
39 I have previously described the delay in determining this case as unacceptable. The burden of the daily uncertainty of an unresolved outcome has been substantial and must mitigate any sentence. In the intervening period you have demonstrated your capacity to lead a purposeful life.
40 You have contributed to the community in a variety of ways including as a volunteer and in coaching and refereeing junior volley-ballers. You do not have a history of criminal offending. The delay which has accompanied this case has excluded any consideration of a Youth Justice disposition. The impact of the delay upon you has been considerable. I have particular concerns that you will be vulnerable in custody and may be subject to predation. You do not present as a worldly young man.
41 I accept that your prospects for rehabilitation are very good.
42 It is not in dispute that general deterrence must assume importance for the purposes of sentencing. All too often it is young, relatively inexperienced drivers who kill or injure others on the road. Ms Spowart submitted that a partially suspended sentence was appropriate. In my view, such a sentence would not adequately reflect the gravity of your offending or the maximum sentence of twenty years’ imprisonment that Parliament has prescribed for this offence. During the course of the plea in mitigation, two cases were referred to involving consideration by the Court of Appeal of the death of cyclists as a consequence of culpable driving. Those cases were R v Shields [2011] VSCA 386 and R v Satalich [2004] VSCA 132. Your counsel referred to a further case of R v Lenehan, a decision of the County Court, 27 April 2007, where a wholly suspended term was imposed after trial on a charge of culpable driving causing the death of a cyclist. In my view, it is unnecessary to further recite the details of those cases other than to observe that I consider your moral culpability to be more akin to that of Satalich.
43 I well understand that members of the community will have differing views about the appropriate sentence to be imposed upon you. A lost life can never be replaced, and no punishment can compensate for that loss. On the other hand, I accept that you are a young man of otherwise good character who is particularly vulnerable within the prison system. I have anxiously considered the length of your sentence. Regrettably, it is a sad truism that there are no winners in cases such as this.
44 On the charge of culpable driving causing death, you are sentenced to a term of imprisonment of four years and three months. I direct that you not be eligible to be considered for parole before completing two years and three months of that term.
45 Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of eight days that you have been held in custody be reckoned as time already served under the sentence passed today, and I direct that this be entered in the records of the court.
46 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of five years and six months with a non-parole period of three years and six months.
47 I cancel all driver licences held by you and disqualify you from obtaining a licence for five years. Does anything arise from those orders?
48 MR SHWARTZ: No Your Honour.
49 HIS HONOUR: Mr Leddin can be taken from the court. Can I repeat my expression of appreciation for the manner in which every person in this court has conducted themselves. I thank everyone in court who has assisted me during this circuit.
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