Director of Public Prosecutions v Machin

[2019] VCC 2088

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00703

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEWIS MACHIN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2019
DATE OF SENTENCE:	11 December 2019
CASE MAY BE CITED AS:	DPP v Machin
MEDIUM NEUTRAL CITATION:	[2019] VCC 2088

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Moran	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Kerry Clancy Solicitors

HIS HONOUR: 

1Lewis Machin, you have pleaded guilty to one charge of dangerous driving causing the death of Kamar Bryant. 

2Mrs Bryant died on 14 September 2018 of cardiac failure following a collision between her car and the vehicle that you were driving.  Mrs Bryant was 77.  Although she had a pre-existing cardiac condition, she at the time, was enjoying a good patch of health, as her daughter described.  She was an enthusiastic gardener.  She drove daily and had just enjoyed a driving holiday with her daughter in the previous weeks. 

3She and her daughter were very close.  They spent time together, especially since Ms Bryant moved closer to her daughter two and a half years ago before her death.  In fact, Mrs Bryant's daughter had dropped by her mother's place around midday on 14 September 2018.  Her daughter noted that Mrs Bryant was in good spirits, planning things for her garden. 

4After her daughter left, Ms Bryant later set off driving along the
Mansfield-Whitfield Road to do ordinary things in her district.  As she drove carefully at the appropriate speed along the Mansfield-Whitfield Road, she came to the intersection with Dead Horse Lane, that road, that is, Dead Horse Lane, is a bitumen two-way country road.  It ran broadly east-west.  Those driving along Dead Horse Lane faced a 'Give Way' sign, as it intersected with the Mansfield-Whitfield Road.

5You, Lewis Machin, are a native of England.  You arrived in Australia as a tourist in April 2018.  You quickly decided to seek a longer working visa so that you could remain in Australia.  One of your brothers has already taken that course and has been in Australia for a number of years.  However, for you stay longer in Australia, you were required to secure rural or regional employment. 

6That task, or that occupation in rural and regional Victoria, certainly suited you and on 1 August 2018, you obtained a job and commenced working in the Mansfield district with the Minto Pastoral Company.  The manager of that company wrote a letter, which was tendered on your plea.  He described you as an enthusiastic, hard-working, respectful employee who impressed everyone from the very outset.  It was that manager who, on 14 September 2018, asked you, Mr Machin, to take a farm vehicle and go to Mansfield to get some other machine repaired.

7You were driving along Dead Man Lane around 1 pm, when you drove across the intersection with Mansfield-Whitfield Road without giving way to
Mrs Bryant's car that was travelling along the Mansfield-Whitfield Road.  She had the right of way.  You were not speeding, quite the opposite, your estimate speed at the collision was 38.6 kilometres per hours.  Mrs Bryant was going around 78 kilometres an hour at the time. 

8I have watched a video of the scene and the intersection is one where a driver unfamiliar with the area may not appreciate that an intersection approached, or that the other road had the priority.  That said, you had a responsibility to be observant and obey the road rules, including of course, the 'Give Way' sign controlling that intersection.  Your failures amounted to dangerous driving.  This was more than a minor mistake drivers make from time to time, this was dangerous driving.  It created a real risk and given the speeds on country roads, the risks once it manifested, was highly likely to cause death or serious injury. 

9As it turned out, Mrs Bryant was not physically seriously injured in the collision.  She needed an ambulance, nonetheless, and one was then called.  She was being treated by the ambulance, but she suffered a catastrophic cardiac reaction and died at the scene. 

10Her daughter had been called and was there at the time her mother died.  This was an unspeakable tragedy.  She wrote, her daughter, Ms Ellis, in her victim impact statement that she struggles now with flashbacks and anxiety about the death.  She has trouble sleeping.  She feels teary most of the time and has isolated herself from social situations.  She has been left devastated by her mother's death, as they had a very close relationship.  She feels robbed of the precious time that they would have had together.  She feels an overwhelming sense of loss and sadness and she feels quite numb to the world and people right now. 

11It has impacted upon her attitude to her work as a self-employed small farmer.  She would have been able to deal with her elderly mother as she grew older and ultimately died, coping with the grief, but to lose her mother in these circumstances in front of her eyes, has made it very difficult for her. 

12The law has forever emphasised the sanctity of life.  To drive in a dangerous manner and take the life of another is always serious offending.  There can be, of course, a wide range of poor driving conduct that leads to a death on the road.  The prosecution, as well as your counsel, contended that yours was an example of truly momentary inattention, and thus at the lower end of moral culpability. 

13In light of that and ultimately on 17 October 2019, I heard and granted your application for a sentence indication.  Thus, I have at that time, made clear that I would not impose a sentence involving immediate imprisonment.  Unusually, the prosecution supported your application for a non-custodial sentence.  Ordinarily, sentences of imprisonment are imposed for this crime, however, when I synthesised the circumstances of your offending, your particularly low moral culpability and the array of important mitigatory factors, a sentence not involving immediate incarceration was just and appropriate. 

14To make clear, those mitigatory factors I turn first to relate to your upbringing and family support.  You were born and raised in Staffordshire in the United Kingdom.  You are part of a close and loving family.  You still are.  You have a brother here in Australia.  Your other siblings and parents remain in the United Kingdom.  Each wrote heartfelt, impressive letters of how you have matured into a fine young man.  I do not need to quote at length from those letters, but many expressed the same sentiments and one or two examples will suffice. 

15Your mother, on behalf of her and your father wrote that you, 'Have always been a popular character amongst your peers and indeed anyone you meet.  You have always been honest and trustworthy and loyal, making friends easily and we believe a good and solid influence on younger members of the family.'  They said when they visited you in recent times, that is, as the sentence indication was previously listed, they came here.  When they visited you, they were upset at the toll that the accident had had on you.  You were trying to put on a brave face, but it was clear you were not dealing with the situation. 

16You are a sensitive young man and your mother and father thought this will impact upon you for the rest of your life.  You are waking at night, they said, flashbacks are there and nightmares.  On more than one occasion you broke down in front of them.  They said that without doubt, you are truly remorseful and would, they thought, do anything to change the outcome. 

17Your younger sister, closest to you in age, said the following:  'He touches the hearts of everyone he meets and I am yet to find anyone that can say a bad word about him.  He has many friends back in the UK, all who truly care for and will do anything for him.  They know that this is always reciprocated when it comes to Lewis.  Even those who have met him briefly can only sing his praises.  He is respectful, thoughtful, conscientious, a truly beautiful person.'

18You have much potential and were commencing to realise an adventure in Australia.  You have, despite the difficult circumstances that have continued, beyond this crime, you have continued to contribute as a worker in your small rural community. 

19Your current employer at Rock and Render spoke of you progressing outstandingly in the new job, proving to be very useful to him and his small stonemasonry business.  He says you have a terrific work ethic, reliable and your attention to detail is a rare find in people of your age.  His partner spoke of you in similar terms, as have others who you have come to meet in your time in and around Mansfield, Merrijig and the like in the north-east of Victoria. 

20You have also worked in a kitchen at the Hunt Club Hotel for a period of time and proved to be an asset to that organisation.  I have already spoken about your work when you were at the Minto Pastoral Company.

21What is most evident and is important as a mitigatory factor, is your deep remorse and grief at causing the death of Mrs Bryant.  Those that know you well have discerned that deep down, you are not the same as you were before.  It is the case that the community places great store on genuine remorse being demonstrated.  If such a response is evident, then the community is more understanding of the punishment being of kind that, in essence, gives a young person a second chance.  This was a terrible error, a mistake that you wish you could reverse.  You will live with the burden and responsibility lifelong.

22You are still young and I must give weight to your rehabilitation and I have.  In truth, you, as a person, have never been in trouble before or since, what will occur is, that you will simply resume your lawful ways, as you have already. 
I am confident you will not be back before the courts again.  You have learnt a hard lesson. 

23The penalty that I, in effect, indicated that I would impose, that is, a community corrections order, will necessarily be lengthy and onerous.  You do not need program conditions to facilitate your reform.  Your community corrections order will require you to do unpaid work as punishment.  Such a sentence can operate as a just and appropriate punishment, expressing proper denunciation and carrying sufficient deterrence to others.  It will be onerous upon you, due to your personal circumstances of living in rural Victoria and you will be without your licence to drive, as that is a mandatory order that I must make.

24Had you pleaded not guilty to these matters, a different sentence entirely would have been imposed if a jury had ultimately found you guilty, as in my view, would have been most likely, given all the circumstances. 

25Your plea of guilty is of considerable value.  It is further evidence of your deep remorse and your acknowledgement of your responsibility in causing the death of Mrs Bryant. 

26Just bear with me. 

27For committing the crime of dangerous driving causing death, I place you on a community corrections order, with conviction.  The community corrections order will be for three years and require you to do unpaid work of 280 hours. 

28It is mandatory that I deal with your licence.  In all the circumstances, I consider that your licence should be cancelled and disqualified for 18 months, that being the minimum mandatory period of time under the Act. 

29Had you pleaded not guilty to these offences and been found guilty of them, the sentence I would have imposed would have been imprisonment, it would have been three years, with a minimum of 20 months. 

30Is there anything else required?

31COUNSEL:  No, Your Honour.

32HIS HONOUR:  Thank you. 

33You need to produce a document, Mr Machin, if you consent to that community corrections order and sign it, it will bring the matter to an end.  Can you come out of the dock so that you can sign that document with your counsel.  We will put it at Wangaratta, Ms Swiney.

34MS SWINEY:  Yes.

35HIS HONOUR:  And see how we go.  I have not included supervision. 

36Mr Machin, thank you, you need to listen into this, which is the conditions that surround a community corrections order, mostly about cooperation and keeping people informed.  But the first of the mandatory conditions that apply to everyone on these community corrections orders, is that:  You are not to commit another offence for which you could be imprisoned during the time the order is in force. 

37All right, so let me, I am reassured you are unlikely to commit any offence, but it is an offence punishable by imprisonment to drive while disqualified.  You just cannot drive.  If you do that, then you breach this order and all the things that
I had emphasised relating to your learning a lesson and so on will be out the window and more than likely, you will have to do some time in prison.  All right.

38The next things are these that:

·You must comply with any obligations under the Sentencing Regulations.  That will mean they will ask for you to cooperate with photographs so they know who you are and so on and put on a file; 

·You must report to and receive visits from the Office of Corrections; 

·You must report to the Community Corrections Centre within two clear working days of this order starting;

·You must let the Community Corrections officers know within two clear working days if you change your address or your job; 

·You must not leave Victoria without getting permission to do so; and

·You must obey all lawful instructions from and directions from the Office of Corrections.  All right, so just keep them informed of all matters relating to work, address and so on. 

39In addition to those mandatory conditions, the following condition applies just to you is, 280 hours of unpaid community work over the three years.  That will be a requirement.  These are not voluntary, just fit it in when you can.  It is when you are required to be there, you be there until you are allowed to go and then you head away. 

40You will come across all sorts on these orders, do not be tempted to follow their pathways when they seek to  skive off or come up with excuses or do things that are not wise.  I am sure you will. 

41Sign that and it will bring the matter to the end.  Just get him to sign it.  It is something to do with your driver's licence.  Print that again. 

42Thank you very much.  Anything further required? 

43MS SWINEY:  No, Your Honour.

44MS MORAN:  If Your Honour pleases. 

45HIS HONOUR:  Thanks very much for your assistance and that to Ms Churchill, of course.  I will adjourn until later - adjourn until 2.15, thank you.

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