Director of Public Prosecutions v Longley

[2018] VCC 2239

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00219

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES LESLIE LONGLEY

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2018
DATE OF SENTENCE:	21 December 2018
CASE MAY BE CITED AS:	DPP v Longley
MEDIUM NEUTRAL CITATION:	[2018] VCC 2239

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW SENTENCE
Catchwords:  Culpable driving – Negligence – Combination of circumstances –

methylamphetamine use – poor eyesight – dangerous manoeuvre – 7 years’ imprisonment – 5 years’ non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	OPP
For the Accused	Mr J. Hannebery SC	Emma Turnbull Lawyers

HIS HONOUR

1James Longley, on 7 November this year, after an eight-day trial, you were found guilty by a jury on the charge of culpable driving by gross negligence. You have admitted prior convictions. The maximum penalty for culpable driving is 20 years’ imprisonment.

2On 2 July 2017 at about 7:15 p.m., Gordana Vlatkovic, aged 79, was probably on her way home as she crossed Murphy Street at the intersection with Burnley Street in Richmond. She crossed at the lights, in the pedestrian zone. It is unclear whether the pedestrian light was green, but there is no doubt she was walking in accordance with a green traffic light when she was struck by your vehicle. Ms Vlatkovic had been playing the Pokies at the Royal Oak Hotel and was less than 500 metres from home.

3Ms Vlatkovic lived alone.  During your trial there did not appear to be anyone present who had known the deceased, in support of her, as there often is in cases of this nature. There was little in the depositional material that shed light on her life and her loved ones. Her story has emerged, however, via the victim impact material.

4Ms Vlatkovic had come to Australia from Serbia decades ago in order to work and send money home to her family. She left a 7-year-old son behind. That son, Gordon Micic - now a man, I assume, in his 50s - wrote lovingly in his victim impact statement of his mother who, "Came to Australia for a better life," and sent money home for her son. Mr Micic had regular telephone contact with his mother throughout his life, as well as receiving cards and letters for birthdays, Christmas and other religious celebrations. During the decades away,
Ms Vlatkovic returned several times to Serbia and stayed with her family for more than two to three months each time.

5Her grandson, Stefan, also wrote of his love for his grandmother and the special relationship he had with her. Ms Vlatkovic was planning to return to Serbia. When son and grandson arrived in Melbourne in the wake of her death, they discovered the preparations she had made for her return to Serbia. They also saw the array of photographs which adorned her wall - a touching testament to her bond and connection with her son and grandson.

6Plans for her return were destroyed by your gross negligence. Their reunion can never take place, the circle will not be closed, and Gordon and Stefan Micic have lost forever someone so dear to them.

7The crime of culpable driving by gross negligence is a very serious crime as demonstrated by the maximum penalty. It involves the destruction of life in this case, as a result of your gross negligence – and as such, must attract significant punishment in order to meet the sentencing requirements of general deterrence, specific deterrence, denunciation and just punishment.

8Your gross negligence consisted of a combination of factors. In brief, these could be summarised as:

(i)  Whilst driving along Burnley St, you merged into the right hand turning lane abruptly and turned at Murphy St in a hurried fashion, probably to beat oncoming traffic.

(ii) You had consumed methylamphetamine earlier in the day and had approximately 1mg/litre in your bloodstream. The expert evidence of Dr Odell was that this was a high level. In combination with Alprazolam, which was also in your system, it was Dr Odell’s opinion that there was no way a person could be unaffected with this combination of drugs at the levels detected, and you would be much less capable of driving than if you were at zero level.

(iii)  You were aware you had poor eyesight, particularly at night. Objective evidence of the standard of your sight was the subject of expert evidence.

Background and Circumstances of Driving

9There was evidence that you were agitated and in a hurry to check on your daughter in the lead-up to the collision. You turned sharply, although within the speed limit, and struck the deceased as she crossed the road. The point of impact was 6.85 m from the southern kerb and 4 m from the northern kerb. Your car came to a stop approximately 30 m from the point of impact. The deceased was projected a number of metres through the air before coming to rest 14.5 m from the point of impact.

10It was estimated that your speed at point of impact was most likely around 42 km/h but the possible range was between 34 km/h and up to 49 km/h.

11You remained within the vicinity of the collision, although you were preoccupied with contacting your daughter in the immediate aftermath and wandered some metres away from your car.

12When interviewed by police, you stated:

·that you were driving fast prior to the collision, but you were not speeding

·that the collision occurred as you were returning from South Yarra to Richmond and you were hurrying back as there had been a bit of trouble with your daughter

·you were anxious to get back to make sure your daughter was okay

·you acknowledged you were impatient to overtake vehicles if they were travelling slower than the speed limit and you said you would have been  "Up behind them, you know"

·as you turned into Murphy Street, the only thing you recalled seeing was the top of the deceased’s head

·the deceased was in the walking zone when you struck her

·you did not have time to put on the brakes before striking the deceased

·you said you were driving fast but you were not speeding

·you said you really did not recall seeing her. You said you did not know whether there was a car coming toward you as you were going around the corner, or whether you put your foot down to go around faster, "All I see was the top of the lady’s head"

·you said that when it happened, "I didn’t even get to the brakes in time to –to – to – I don’t know, you know, to stop the car."

·you said that after getting out of your car you wanted to go up to your daughter’s place, which was close by, to tell her what happened

·you said you had been drinking during the day and that you had also taken some ice

·you said you took ice at 8 AM

·you said that you have a problem with ice addiction

·you said that the consumption of ice makes you feel more relaxed

·you said that you had got your eyes tested because it was getting harder to see at night. You said, "Things are just blurry."

13In a telephone call between you and your daughter when you were on remand,  you referred to the occasion you had your eyes tested only weeks prior to the collision. You said, “You know how I went and had a night test too, you know that.” You went on to say that, "They said my eyes were fucked.”

14The prosecution called evidence from Ms Maniotis who tested your eyesight at the Meadownick laser clinic in June 2017. Ms Maniotis confirmed that there had been a deterioration in your vision since you were previously tested in 2015. She said that when you attended on 14 June 2017, you complained of reduced vision, especially at night. Dr Odell also gave evidence in relation to your vision based on the notes of Ms Maniotis. He concluded that you could drive but it would be advisable for you to have glasses.

15There was evidence that the visibility into Murphy St from Burnley St was poor, as Murphy St was not well lit in the same way that Burnley St was. This fact cut both ways. On the one hand it was relied upon by your Counsel at trial as one of the circumstances which supported a hypothesis that your driving was otherwise sound, and that there were reasons for the collision that fell short of gross negligence. On the other hand, given your admitted shortcomings regarding your eyesight, it might be thought that you would take more care turning into a dark street than you did on this occasion.

16Ultimately it is impossible, nor is it necessary, to identify the weight the jury gave to each of the factors relied upon in combination in arriving at their finding of culpable driving by gross negligence. There was cogent evidence from Dr Odell as to the level of methylamphetamine in your system and its potential effects. There was consistent evidence from witnesses as to their observations of your driving immediately prior to impact. Your admissions as to your driving mirror those observations. The circumstances of your eyesight was established by your admissions in the interview as well as in the Arunta call and it was supported by the expert evidence.

17Whether you were distracted at the time by oncoming traffic, or whether you simply did not see the deceased until it was too late, is not a matter that could be determined on the evidence. What has been established is that you were driving in circumstances of gross negligence due to the combination of factors relied upon, and it was that gross negligence which was a substantial cause of the collision and hence the death of the deceased.

18Given the verdict, the jury must have considered, based on the evidence of
Dr Odell, that the level of methylamphetamine in your system, in combination with Alprazolam, contributed in an adverse way to your decision-making and handling of the vehicle, as well as your level of attention. In combination with, or alternatively causative of, your haste in turning the corner and considering your admitted vision difficulties at night these factors amounted to gross negligence, which in turn was causative of death. I sentence you on this basis.

Personal Circumstances

19I turn to your personal circumstances. You are 55 years of age and you were born in Melbourne. Your father, who passed away 19 years ago, was a truck driver. You were one of five children. You have two brothers and two sisters. Your mother is alive and well and living in Ferntree Gully. You attended Ashwood Primary School and then Jordanville Tech. School was difficult for you due to learning difficulties and dyslexia.

20Of greater difficulty for you were your experiences at the hands of your violent father. Due to this circumstance largely, you spent time in Baltara Boys Home. You were placed into the care of the State at eight years of age. This was an extremely traumatic time for you. You experienced abuse and you are consulting the Royal Commission in relation to that abuse. Things were not much better at home, however, and when you did come home from Baltara, you would often run away.

21At age 18 you met your wife to be, Kath. You were married at 25 and have two children Jess and Elly, both of whom were supportive of you throughout your trial. You have a stepdaughter Teresa, also supportive. You separated from your wife approximately 10 years ago. You are in receipt of ongoing support from a number of family and friends.

22I received seven testimonials as to your character and it is clear that you are much loved and well regarded. You have always worked. You started off as a builder’s labourer, but have also worked in the car wrecking industry dealing with car parts, as a mechanic for a number of years specialising in engine refitting. You started your own mechanic business at one stage, CK Mechanics, which you ran for around 12 months.

23You started working with Mr Dickins in the building industry - I refer to Exhibit 2 - and you have also worked as a labourer for a plumber. Your involvement in plumbing work and labouring commenced some 20 years ago when you were working for yourself doing that type of work. You have worked in maintenance for a number of years. Your counsel Mr Hannebery SC submitted that the one stable thing in your life has been your capacity for gainful employment. I accept this. It is in your favour that I consider you will have ample opportunity and capacity to engage in gainful employment when released on parole.

Submissions on Plea

24There was conjecture between the parties on the plea as to where your offending falls in the range of culpable driving by negligence. Mr Hannebery SC set out six matters under the heading ‘Gravity of Offence’ in his ‘Outline of Argument’ which was Exhibit 1 on the Plea. He submitted that in assessing the relative gravity of the offence, the following matters remain relevant:

(i)  you were driving on the correct side of the road;

(ii)  you went around the corner at a speed of 45 kph or lower, within the handling capacity of the vehicle;

(iii)  you went into Murphy Street on a green light; you were travelling below the speed limit at the time of the collision somewhere between 34 kph and 49 kph;

(iv)  the conditions meant that the objective capacity for any driver to see a pedestrian going over the Murphy Street crossing was diminished; and

(v)  you were fully licensed and your car was in roadworthy condition.

25Mr Hannebery SC submitted that objectively speaking, your driving reflects a low to mid-range example of the offence of culpable driving. The prosecution argued that your driving falls in the higher end of the range. They rely upon Dr Odell’s evidence as to your high concentration of methylamphetamine together with the Alprazolam and Citalopram in your system. The prosecution rely upon Dr Odell’s evidence that one overseas study found that a person at 0.56 mg/L would be "as bad as they are ever going to be", referring to the effects of the drug. At .97 mg/L of methamphetamine, you were approaching twice that amount.

26In their ‘Summary of Prosecution Plea’, which was Exhibit A, the Prosecution set out six dot points under paragraph 7 in further support of the contention that your offending falls within the upper end of the range. I note that dot point three does not have a lot of support in the evidence led at trial. Dot point six, relating to emergency braking, in my view is not a matter which has a clear effect in this case on assessing where the offending falls in the range.

27I have been assisted by having regard to current sentencing practices. Allowing for the observation that a number of sentences imposed for like offending attract a discount for a plea of guilty, which is not available to you, I was also referred to reasons for sentence in a number of matters which involved not guilty pleas. The circumstances of all of these cases that I have had regard to also assist me in identifying where the objective gravity of your offending falls within the range.

28Having considered the objective circumstances of the offence, I consider that your offending is appropriately described as mid-range.

Previous criminal history

29You have relevant prior convictions and a relevant criminal history. You have a significant history related to driving matters. The most relevant of these matters were committed in the late 1980s and the early 1990s. The passage of time has not extinguished the relevance of these matters, although they do not create the level of concern as they would if they were more proximate in time to the commission of this offence.

30In February 1984, you were fined at Melbourne Magistrates' Court in relation to having a blood alcohol content in excess of .05% and driving whilst disqualified.  In June 1987, you were fined at Prahran Magistrates' Court in relation to unlicensed driving and having a blood alcohol content in excess of .05%.  On 7 August 1987, you were fined at Prahran Magistrates' Court in relation to unlicensed driving and refusing a preliminary breath test. 

31In March 1988, at Ringwood Magistrates' Court, you were placed on a community-based order and received three months' imprisonment for exceeding the prescribed concentration of alcohol – being .16%, driving in a   dangerous manner, driving whilst disqualified, and stating a false name or address.  In 1992, at Moonee Ponds Magistrates' Court, you were dealt with for exceeding the prescribed concentration of alcohol – 0.190%, and driving whilst disqualified.  You received one month imprisonment for exceeding the prescribed concentration of alcohol, six months' imprisonment for driving whilst disqualified.  On appeal to this Court in February 1992, the sentence was reduced to three months' imprisonment.   In 1994, you were fined for unlawful assault. In 2000, you were fined in relation to assault with a weapon and possessing a regulated weapon.

32From that point forward, you remained free from criminal matters until 28 June 2017, only four days before the commission of this offence. You were dealt with at the Neighbourhood Justice Centre, Collingwood, in relation to possessing cartridge ammunition without license, possessing methylamphetamine, commit an indictable offence whilst on bail, possessing on court premises an offensive weapon, possessing a general category handgun without license, and possessing a drug of dependence.  You were given an aggregate sentence of four months' imprisonment and placed on a community corrections order for 12 months.

33The picture emerges from your criminal history of an individual who had little regard for the law, or self-discipline when it came to the operation of a motor vehicle, in your 20s and 30s. Sadly, the entire record, when one looks at the recent June 2017 matter, also reflects a self-centred and self-indulgent individual, who despite being on bail with a jail sentence hanging over your head for drug and firearm offences, drove after using several substances, most notably ice, whilst agitated and impatient to get home after a dispute with a male associate of your daughter. You wheeled around the corner in the manner described by the witnesses, and by yourself in your record of interview, with little thought or concern, it would seem, for the safety of any potential pedestrians.

34There are a number of indicators in the materials of your self-centredness above and beyond your indulgence of a variety of substances and preparedness to drive whilst under the influence of those substances:

·    Words uttered by you after the collision at the scene as heard by witnesses, such as "I’ve had a few and I think I’m over", "I'm done."

·    Also your efforts to contact your daughter rather than trying to attend to the deceased, even though I accept, as you said in your record of interview, to quote: "She was already dead." I find the sentiments you expressed on this topic in your interview to be consistent with what emerges from the witness accounts. Your primary concerns were whether you were over the limit of alcohol and potentially other substances, and to speak to your daughter.

·    Perhaps most importantly, the exchanges with your daughter captured in the Arunta calls which were referred to in Exhibit A, the prosecution opening for plea, also lead me to this conclusion.

35Against this proposition is the fact you made substantial admissions in the record of interview as to the objective facts; but even a consideration of your substantial admissions cuts both ways, because you resisted any suggestion that your driving, your eyesight, or the effects of drugs contributed to the collision.

36You declined to perform a drug impairment test during the interview.

37You made significant admissions, particularly with regard to your eyesight. It was conceded by the prosecution that this limb of their case first emerged from you in your ROI and was then able to be investigated.

38You admitted most of the facts alleged by the prosecution insofar as your handling of the vehicle was concerned. However, as I have stated, you resisted any suggestion that your driving, drug use or your eyesight contributed to the death of the deceased.

39Based on all the material before me, I am unable to find that you have satisfactory insight into your offending. I find I am unable to detect any real remorse or even acceptance of wrongdoing and responsibility. True it is that an offer to plead guilty to dangerous driving causing death was made by you prior to trial. However, it has not been submitted with any force that this was due to a genuine acceptance of wrongdoing and responsibility. It may well simply have been a choice made on advice and an assessment of the evidence.

40I do accept that the trial was run efficiently and on a fairly narrow issue. As
Mr Hannebery SC set out in his address - a large part of the jury’s task involved making a judgment on undisputed facts as to gross negligence.

41I have read the testimonials relied upon on your behalf. I accept the portrayal of you as a hard-working, reliable individual.

42I heard and watched your interview. In the face of the utterances exchanged with your daughter referred to in Exhibit A and discussed on the Plea - those captured on the Arunta calls, I am referring to - the evidence of your conduct at the scene, your rejection of responsibility from interview to trial, and my observance of you during the trial and plea process, I am simply unable to make a finding you are remorseful for your offending.

43It is significant, in my view, that whilst on bail, with a suspended sentence hanging over your head, you were driving in the combination of circumstances that were present on 2 July 2017. You were sentenced to 4 months imprisonment on 28 June. You were bailed pending appeal. Four days later, you drove in circumstances amounting to gross negligence, a significant part of which was your consumption of illicit substances. At your home on that occasion, you had a number of drugs of dependence.  The fact you were on bail in these circumstances is a relevant matter for me to take into account in imposing sentence upon you.

44I was urged by the prosecutor to be guarded as to your prospects of rehabilitation. I have concluded that I must be. Having said that, the non-parole period I will impose will provide a length of time away from drugs, and more importantly for you to reflect on your lifestyle and the circumstances that led to the death of Ms Vlatkovic. The support you have and your work opportunities lead me to the guarded view that you have reasonable prospects of rehabilitation, if you reflect during the non-parole period in this way and embrace parole with the same mindset.

45I sentence you as follows.  You can stand up, Mr Longley.

46On the charge of culpable driving causing death you are sentenced to be imprisoned for 7 years.

47I set the period before you are eligible for parole at 5 years.

48I declare that you have already served 389 days as pre-sentence detention.

49Pursuant to s.89 of Sentencing Act 1991, I cancel your licence and disqualify you from obtaining another for six years from today's date.

50I make the order pursuant to s.464ZF of the Crimes Act that was sought. Are there any other matters?

51MR HANNEBERRY:  No, Your Honour. Just in relation to the summary matters, those matters need to be referred back to the Magistrates' Court.

52HIS HONOUR:  I'll make an order remitting any summary matters that have travelled along with this matter. Anything else?

53MR HANNEBERRY:  Nothing, thank you.

54HIS HONOUR:  Yes, we'll have Mr Longley removed.  Thank you.  Adjourn the court.

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