Director of Public Prosecutions v Mackenzie

[2022] VCC 614

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02289

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY MACKENZIE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 May 2022
CASE MAY BE CITED AS:	DPP v Mackenzie
MEDIUM NEUTRAL CITATION:	[2022] VCC 614

REASONS FOR SENTENCE

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Subject:   Criminal Law

Catchwords:

Legislation Cited:   Crimes Act 1958 (Vic)

Cases Cited:R v Smith (1982) 7 A Crim R 437; R v Okutgen (1982) 8 A         Crim R 262

Sentence:Adjourned undertaking with conviction for a two year period with a condition of a $25,000 payment to the Salvation Army; Licence disqualification and cancellation for a 30 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric
For the Accused	Ms M. O'Brien

HIS HONOUR:

1Rodney Mackenzie, you have pleaded guilty to one charge of dangerous driving causing serious injury pursuant to s319(1A) of the Crimes Act 1958.[1]  The maximum penalty for this offence is five years' imprisonment and/or a fine of 600 penalty units, which if we calculate makes the actual maximum fine available $99,132, based on the value of a penalty unit at the time of your offending.

[1] (Vic).

2You have no prior convictions.  You have some road safety matters.  Ms O'Brien said that you have received fines for speeding and the like over the 56 years you have held a licence but you have never lost your licence.

3I turn now to the circumstances of the offending.  The Crown tendered a summary of prosecution opening which I marked as Exhibit A.  A brief summary of your offending is as follows.  As your wives socialised on 25 May 2020, you and your friend of 30 years, Ernest Wardell, went for a drive in your Porsche 911 sportscar.  You were driving east along the Kangaroo Ground-Wattle Glen Road, Kangaroo Ground when you were approaching a left turning curve.  At the same time, coming the other way, was a green crane truck.  You were travelling at a fast rate of speed.  The accident reconstruction expert has calculated that you were travelling at approximately but not less than 114 kph at the time that your car began to yaw.  Put in simple terms, you lost control of the car.  You overcorrected on a couple of occasions, the truck clipped and hit the passenger side of the vehicle you were driving and you ended up in a paddock.  The car split into three pieces.

4You were relatively unharmed but your friend, Ernest Wardell, suffered
life-threatening injuries.  Indeed, doctors say that but for the medical intervention that he received, he would have died.  His injuries included a central artery rupture, his rib cage detached from his chest wall, he suffered multiple displaced rib fractures and he had air collecting in the space between the membranes covering the lungs as a result of lung collapse.  Mr Wardell was placed in an induced coma for 10 days; he remained a patient in the ICU at the Royal Melbourne Hospital for a total of 24 days and he was transferred to the Donvale Rehabilitation Hospital where he remained for approximately two weeks.  He suffered multiple bone fractures that would in a person of his age take weeks to months to heal and would ordinarily cause ongoing chest pain and breathing difficulties.

5Your car was examined and it was found that there were no mechanical faults or failures that would have caused or contributed to the accident.  Although you told police that or there is some suggestion that there had been some road resurfacing taking place at the time, I do not consider that to be an issue that contributed to the accident.  Put simply, the accident was caused by the fact that you were driving a very high-powered car at a very high rate of speed which I calculate to be something in the order of not less than 49 kph above the advisory speed and some 14 kph in excess of the speed limit.

6It is clear that you cooperated with the police and you were proactive in your cooperation in the course of investigation and it is apparent that you made full and frank admissions when you were interviewed by the police and continued to cooperate with them past the point of the record of interview.

7I turn then to the objective circumstances of the offending and your moral culpability for it.  As I have made clear, the offence was caused plainly by your speeding.  You were driving at a very fast rate of speed and, as I say, above the advisory speed limit and above the actual speed limit.  You were driving a very high-powered car.  It was a Porsche 911 sportscar; one can imagine even as a standard car, with a horsepower rating usually something in the order of two, sometimes three, times above an ordinary suburban vehicle.  You were a relatively inexperienced driver.  You had driven that car for about eight months and you were driven on that road about four times.  Also contributing to the objective circumstances of the offending is the fact that your friend, Ern Wardell, suffered very serious injuries.  They were, as I have outlined, life-threatening and took a long time to overcome.

8Having said that, there are no other aggravating features.  I accept that there was no internal or external distractions; you were not on your phone, you were not affected by drugs or alcohol, your attention was not distracted by anything external to the car.  Nevertheless, as Mr Petric submitted and Ms O'Brien on your behalf conceded, this is a serious example of the offence of dangerous driving causing serious injury.  Mr Petric submitted that general deterrence in the circumstances is elevated by the objective seriousness of your offending.

9You admitted to police that the accident was probably caused by speed, you admitted that your speed was probably around 114 although you did not take any note of the speed but you accepted the calculation and reconstruction undertaken by the police and you said that it was perhaps that you had relaxed into your driving and you were a bit lax in your concentration and your caution.  Nevertheless, your moral culpability for your offending is high.

10I take into account, however, that the maximum penalty for the offence is five years' imprisonment.  There are other far more serious driving offences that come before the court and far more serious examples,  but the fact that Mr Wardell, first of all, is able to participate in this hearing and, secondly, has recovered to a state of, shall I say, relatively good health and, thirdly, remains a friend of yours and implores from me a degree of lenience on your behalf is nothing short of a miracle.  Nevertheless, they are factors that I will take into account.

11Ordinarily, offences involving such serious lapses and resulting in such serious injuries as occurred in this case can lead to periods of imprisonment even for those that have no prior convictions; but as I have said in this case, I do not intend to impose a period of imprisonment.

12I turn then to consider your personal circumstances.  As I say, you are 74 years of age being born in November 1947.  You were raised in the eastern suburbs of Melbourne and you report that your childhood was relatively uneventful.  Your father suffered from alcoholism but notwithstanding that, you rose above your family circumstances and you have been married to your wife, Maurine Mackenzie, for 51 years.  You have two children who work in the family business and you are a grandparent.  You have lived in Wattle Glen area since about 1980 and you cared for your mother during her lifetime in a granny flat at the back of your property.

13You have been a self-employed businessman since the age of 21 and your first business was a supermarket and then in 1989, you established an industrial cleaning company called Graffiti Eaters.  This business has been successfully franchised and is very profitable.  It has provided careers for your wife and two children, their spouses and, I am told, one or two of your grandchildren.

14I have received and read the eight character references filed on your behalf.  The speak of your long time and tremendously positive contribution to your local community where you volunteer work and you engage with Rotary.  Your work at Graffiti Eaters has received awards.  As I remarked during the course of the plea, it provides more than a usual social benefit but your work in charity with Rotary has been, in my reading of the references, absolutely exemplary.  As I quote from your friend, Ern Wardell, he says this:

Rod is the most positive person I've ever known.  He was a terrific Rotarian and to me he was a visionary.  Rod served in all portfolios and, for example, when chairman he saw an opportunity for our Rotary club to revitalise the Diamond Creek Town Fair.  Under his chairmanship, the first-year attendance was increased to 20,000 and over a 15-year-period, crowds increased to around 35,000 each year.  Mainly due to Rod's vision and members' input approximately $600,000 has been put back into communities both here and overseas.

15He points out that you are a five-time recipient of the Paul Harris Fellow Award for service to Rotary for your work in the community.

16Then in addition to the work you have put into the community, there is the work that you have done in helping your own family.  The reference from your wife, from your sister-in-law, Wilma Spark, and from her son, David, speak of the fact that you have helped your sister-in-law tremendously after her family difficulties.  You have cared to a high level for your nephew, David Spark, who has a cognitive disability and vision impairment and that you have taken on the education at least of children overseas through different funds.

17David Palermo, the president of the Diamond Creek Rotary, speaks also of the work that you have done contributing to many successful projects including work at the local schools, children's foundations, raising money for the Bone Marrow Foundation and working on public works in your local Diamond Creek area.

18Your son, Mark Mackenzie, speaks not only of what you did for Graffiti Eaters and the provision of jobs for your family and your wider family but what Graffiti Eaters has done in the community that speaks also of the fact that you have been a mentor to both of your children.  I note particularly Mark says this of you:

'Rod has always engrained in me the double jeopardy situations in life are the ones we must be conscious of.  Often if one thing goes wrong, you can recover without harm but it's when two things go wrong simultaneously that that's when disaster can strike and a motor vehicle accident can occur in the blink of an eye.'

19He says that:

'In true form, Rod is taking ownership for his actions, a quality he has always instilled in me.  We have been through a lot together with highs and lows in the business but this accident has affected my father like I've not seen before.  We're talking about a couple of split-second decisions that have been made that have resulted in injury to his best friend.'

20Mr Mackenzie, I accept that you have taken full responsibility for your actions on 25 May 2020.  I see that through the fact that you pleaded guilty at the first available opportunity and I consider that you have, in addition to the plea of guilty, made full admissions from the outset and that you were proactive, as I say, in your cooperation with the police.  Through those factors and through the matters contained in the character references, I found that you have exhibited remorse for your offending and I am prepared to find that your plea of guilty facilitates the course of justice.

21I can say that you have no prior convictions but of course that must be seen against the fact that you not only have no prior convictions and you have done a lot of good for your family and in the community and through your business.

22There are two cases going back to the 1980s.  The first is a case of Smith[2] and then there is a case of Okutgen.[3] These are cases that basically say the following; when you get to a certain age in life and when you have done a lot of good over the course of those years and then something, as your son, Mark, describes, occurs, (that is your offending that is the subject of these proceedings), the law recognises that you are able to draw on your long years of good deeds and in some instances that it will lead to mitigation of the sentences imposed on you and it can lead to an element of mercy.

[2]R v Smith (1982) 7 A Crim R 437.

[3]R v Okutgen (1982) 8 A Crim R 262.

23I take into account the fact that you, after the accident, about 11 months after the accident, suffered your own ill health of prostate cancer and you had to undergo radical prostate surgery.  I recognise the fact that the surgery was cancelled halfway through due to haemorrhaging.  Then on the second go, the surgeon perforated the bowel. That has led to sustained incontinence and that you have had to wear a colostomy bag which will only be removed next week.  I note that you are now in remission.

24In addition to your age, your good character, your illness, I note the attitude of Mr Wardell.  Now, as Mr Petric rightly said, there are a lot of instances, particularly in cases like this, where the victims, those who have suffered the most through the consequences of the accident and as a consequence of the criminal offending, call for leniency and moderation.  This cannot be used to overwhelm the objective sentencing principles. The reason for that is that general deterrence must remain the dominant principle in the sentencing process, because others must be deterred from the same or similar criminal offending: that is getting behind the wheel of a car and driving at excessive speed.  There must be consequences for your actions.

25Nevertheless, in this case, I take into account Mr Wardell's plea for leniency.  It is certainly written after what must have been a very difficult two years for him as he has recovered. He writes very generously in his assessment of his own injuries that he has largely recovered; he has been able to make his driving trips to Queensland on a couple of occasions and he now enjoys, relative to his age and the injuries suffered, good health.  So I will take that into account.

26I also take into account the fact that your prospects for your rehabilitation, which is an important factor in all assessment of criminal offending, are excellent.  I would venture to say, Mr Mackenzie, that you are unlikely to commit any further criminal offence ever again.  I venture to say that you are unlikely to get behind the wheel of a Porsche ever again and I am sure that the practices that you have maintained over the years of putting your mobile phone in a bag in the back of the car will once you get back on the road be maintained and vigilantly maintained for the rest of your driving days.

27So when I take into account those factors, your plea of guilty, your remorse, your lack of prior convictions and your good character, your age, your illness, the attitude of Mr Wardell and the prospects for your rehabilitation - I will add to that the fact that the plea was made as Ms O'Brien points out during the period of COVID, perhaps near the end of COVID but what the courts have said is that those who have the resolve to press on with pleas of guilty at a time when the court system is under tremendous pressure ought to be recognised for the fact that they do so to press on rather than to prevaricate, to have their matter resolved particularly when a person of advancing age and good character does face at least some prospect of imprisonment takes a firm (indistinct) mind and he will be recognised for that.

28Initially Ms O'Brien on your behalf submitted that a community corrections order with a stiff work component was the appropriate disposition in this case.  After further pressing Ms O'Brien, it appeared it was apparent that that submission was made because a community corrections order was seen as a far more palatable alternative to imprisonment.  Mr Petric on behalf of the Crown submitted likewise that a CCO with a stiff work component was appropriate.  When I pressed both counsel and made it clear that I was not thinking of a term of imprisonment, it seems to me that the following factors came to light and these are the reasons that I am not going to impose a community corrections order.

29You are 74 years of age, you have no prior convictions and you have no need for supervision.  There is nothing that an overworked corrections officer can do in terms of supervision that is going to put you on a different path of life.  You have led a good and blameless life, you have made a positive contribution; and supervision will do nothing for you.

30A stiff work component would indeed be a punitive element to the order but you are a man who has shown the community and the law that you have already done good work in the community; you know what unpaid work is.  You did it not as a penalty but out of pleasure and out of a good sense of community spirit and, in my view, when it comes to sentencing in this matter, the law should not forget your many years of good charitable work.   The law should not forget that notwithstanding your commercial enterprise was profitable, it was of social utility and the law should not forget the good work that you have done with your family members.  You have done your community work, Mr Mackenzie.  I am not going to impose more on you.

31In the end, I have decided that an adjourned undertaking for a period of two years is a better outcome.  Now, an adjourned undertaking, with a conviction, means that you must undertake to be of good behaviour for a period of two years from today's date and not commit any further criminal offence.  Any further criminal offence that is committed would result in the breaching of the undertaking and it would be brought back before me for resentencing on this offence as well as sentencing on the criminal offence that you committed.

32Mr Mackenzie, do you understand the nature of an adjourned undertaking from what I have explained to you?

33OFFENDER:  Yes.  Yes, Your Honour.

34HIS HONOUR:  Are you prepared to enter into an undertaking, that is you are prepared to take the risk that you will not commit any further criminal offence in the period of two years from now?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  Thank you.  I make as a condition of the bond that you pay within a period of time that I will discuss with your counsel the sum of $25,000 to the Salvation Army.  Are you prepared to make such a payment to the Salvation Army, Mr Mackenzie?

37OFFENDER:  Yes, I am, Your Honour.

…

38All right.  The order of the court will be that you are to be placed on an adjourned undertaking with conviction for a period of two years from today.  You are to make a payment of $25,000 to the Salvation Army.  Ms O'Brien, what period of time is sought to make that payment?  Is it going to be made in a month?  You are on mute.

39MS O'BRIEN:  Sorry, Your Honour.  Perhaps if we could go with eight weeks.  I am just conscious of what Mr Mackenzie has coming up next week in terms of surgery and just organising that sum of money and the paperwork.  If there could be an eight-week period please and ‑ ‑ ‑

40HIS HONOUR:  Payment should be made by 5 July 2022.

41MS O'BRIEN:  As Your Honour pleases.

42HIS HONOUR:  In addition to the adjourned undertaking, Mr Mackenzie, you are disqualified from driving and your licence is cancelled for a period of 30 months, that is three zero months, from today.

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