Director of Public Prosecutions v Maher
[2023] VCC 2455
•22 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 23-00457
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN JAMES MAHER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2023 | |
DATE OF SENTENCE: | 22 December 2023 | |
CASE MAY BE CITED AS: | DPP v Maher | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2455 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Dangerous driving causing death – Family hardship – Low moral culpability – Very positive prospects of rehabilitation – Delay – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 319(1); Sentencing Act 1991 s 5(2H), 6AAA, 89(1).
Cases Cited:Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; Director of Public Prosecutions v Lombardo [2022] VSCA 204; Peers v The Queen [2021] VSCA 264; Director of Public Prosecutions v Browne [2023] VSCA 13; Williams v The Queen [2018] VSCA 171.
Sentence: Community Correction Order for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McCarthy | The Office of Public Prosecutions |
| For the Accused | Mr P Smallwood | Gallant Law |
HIS HONOUR:
Introduction
1Brendan John Maher, you have pleaded guilty to one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.
2You have also admitted your prior criminal history.
Circumstances of the offending
3A summary of prosecution opening was tendered on the plea and may be summarised as follows:
4On 26 March 2022, you were driving your car when it collided with the rear of a bicycle on Bendigo-Pyramid Road, Sebastian, causing the death of the cyclist, Kane Carl Dempster.
5You were 53 years old at the time of this offending, and you were driving a 2020 Toyota Landcruiser dual cab utility with Queensland registration number 079 AW2 (‘Landcruiser’).
6The deceased, Kane Dempster, was 44 years old at the time.
Collision scene
7The collision occurred near 1468 Bendigo-Pyramid Road in Victoria.
8The speed limit was 100 km/hr.
9In the area of the collision, Bendigo-Pyramid Road was a two-way, two-lane bitumen road that ran essentially north to south.
10The opposing lanes were divided by solid double painted white lines.
11The road had a total width of 6.1 metres (2.9 metres for the southbound lane and 3.2 metres for the northbound lane).
12Both lanes were bordered by solid white painted fog lines, beyond which there were narrow bitumen shoulders, gravel shoulders, then rural property on the eastern side of the road and treed or grassed reserve on the western side of the road.
13In his report dated 8 April 2022, Collision Reconstructionist Detective Senior Constable Yuxing Zhao opined, ‘The road was in good condition with no apparent faults or defects that could have contribute[d] to the collision.’
Charge 1: Dangerous driving causing death
14Between approximately 10:08 a.m. and 10:11 a.m. on 26 March 2022, you were driving the Landcruiser in a southerly direction in the southbound lane of Bendigo Pyramid Road, Sebastian in Victoria.
15The Landcruiser veered off the road causing its passenger side wheels to run onto the gravel shoulder of the road.
16The Landcruiser collided with Mr Dempster from the rear as he was riding his bicycle along the bitumen edge of the southbound lane of Bendigo-Pyramid Road (he was travelling in the same direction as you, that is to say in a southerly direction).
17The pathway of the Landcruiser as it veered off the Bendigo Pyramid Road was marked with green markers by DSC Zhao, which can be seen in photographs tendered by the prosecution on the plea.
18DSC Zhao determined a single vehicle tyre mark running north to south past the area of impact located on the gravel surface next to the bitumen shoulder of Bendigo-Pyramid Road was created by your Landcruiser. The single vehicle tyre mark started approximately 31.6 metres north of the area of impact at the bitumen edge and was largely straight without separation until it came to the area of impact where the tyre mark curved right to return to the bitumen surface.
19The path of the Landcruiser as it veered off Bendigo-Pyramid Road was marked by green markers by DSC Zhao.
20DSC Zhao determined the area of impact to be between orange markers 2 and 3 in figure 9 of his report because of scrapes, gouges and a thin tyre scuff mark observed by him.
21The area of impact was on the fog line of Bendigo-Pyramid Road.
22Mr Dempster wrapped to the bonnet of the Landcruiser and hit its windscreen, smashing it, before landing to the side of the road (at orange marker 10 placed by DSC Zhao) and tumbling to the ‘rest location’.
23The Landcruiser steered to the right and returned to the bitumen road surface immediately after the collision.
24You applied the brakes of the Landcruiser and moved to the side of the road.
25In his report, DSC Zhao opined, ‘At the impact to the cyclist, the [Landcruiser] was travelling at a minimum speed of 81 km/h.’
26You stopped the Landcruiser without further incident and attempted to assist Mr Dempster (including calling emergency services) and remained at the scene until police arrived.
27The collision caused Mr Dempster’s death. He sustained injuries as particularised by Dr Paul Bedford in his report dated the 31 March 2022.
Dangerousness
28The prosecution particularise your dangerous manner of driving as follows:
(a) driving inattentively (beyond momentary inattention), which caused you to fail to maintain proper control of the Landcruiser and veer off Bendigo-Pyramid Road, causing the passenger side wheels of the Landcruiser to run over the fog line and onto the gravel shoulder of Bendigo-Pyramid Road for 31.6 metres and collided with Mr Dempster’s bicycle; and
(b) driving inattentively (beyond momentary inattention) a result of which you failed to keep a proper lookout for Mr Dempster’s bicycle when you veered off Bendigo-Pyramid Road, causing the passenger side wheels of the Landcruiser to run over the fog line and onto the gravel shoulder of Bendigo – Pyramid Road for 31.6 metres and collided with Mr Dempster’s bicycle.
Investigation
29Victorian police officers attended at the scene and their body worn cameras captured interactions with you. Leading Senior Constable Balazs obtained your phone at the scene after the offending occurred.
30Your phone records show your phone made and received a number of calls from your wife, Deborah Maher, and an employee of yours, Matthew Draper, between 10:08:08 a.m. and 10:11:33 a.m. (shortly before the collision).
31In particular, your phone records show contact between Mr Draper’s phone and your phone at 10:10:38 a.m. and that emergency services were called at 10:11:33 a.m.
32Senior Constable Brett Gardiner (a fully qualified senior motor mechanic) examined the Landcruiser and did not find any mechanical fault or failure that, in his opinion, would have caused or contributed to the collision.
33You undertook alcohol and drug testing, which returned a negative result.
34In the afternoon of 26 March 2022 you participated in a record of interview at the Bendigo Police Station.
Nature and gravity of the offending
35The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by parliament, being 10 years imprisonment, and its classification as a Category 2 offence requiring a term of imprisonment to be served unless a statutory exception can be established.
36In this instance, the charge is particularised as you driving inattentively by failing to maintain proper control of your vehicle and by failing to keep a proper lookout. The prosecution case is also put on the basis that your inattention goes beyond momentary inattention. Mr Smallwood, who appeared on your behalf, submitted that your inattention was momentary.
37The prosecution do not alleged a particular timeframe of inattention measured in seconds. However the evidence from reconstruction is that your vehicle had veered off the bitumen and into the gravel shoulder some 31 metres prior to impact. While you were driving under the speed limit, the evidence is that you were travelling at a minimum of 81 Km/h. Thus, at that speed, the time frame of you veering into the gravel for 31 metres remains relatively short.
38In all the circumstances, in my view your inattention did go beyond what may be described as momentary, however I am also of the view that your inattention was for a very short period of time.
39With reference to Director of Public Prosecutions v Neethling,[1] Mr Smallwood also pointed to the fact that the aggravating features that normally elevate culpability are absent in this case, including that there is no evidence of drugs or alcohol, speeding or sleep deprivation. There was also no evidence of erratic driving before you drifted to the left. Further, you immediately stopped following the collision and attempted to assisted Mr Dempster, including calling triple zero. In summary, Mr Smallwood submitted that in all the circumstances, the gravity of the offending and your moral culpability fall at ‘the lower end’. Mr McCarthy, who appeared on behalf of the Director of Public Prosecutions, while acknowledging that the there is an absence of common aggravating features, submitted that your offending should be categorised as ‘mid range’.
[1] (2009) 22 VR 466, [31].
40As has been noted by the Court of Appeal in Director of Public Prosecutions v Weybury, while terms such as ‘mid range’ or ‘at the low end’ may be problematic when assessing where offending sits within a range.[2] In this instance, given that your conduct lacks many of the common aggravating features present in cases of dangerous driving causing death, and that your inattention was for a short period, in all the circumstances, I accept your offending and your moral culpability do fall towards the lower end. That is not in any way to diminish the inherent seriousness of the charge as noted above. In this instance your lack of attention, if only for a very short time, resulted in tragic consequences.
[2] [2018] VSCA 120, [54].
Victim impact statements
41I turn now to the impact of your offending on Kane Dempster’s family. In total, 13 victim impact statements were tendered on the plea, and they each illustrate in their own eloquent and heartfelt way the tremendous grief they have had to overcome, and are still overcoming, in the wake of Mr Dempster’s death. Kane Dempster was a son, a son-in-law, a brother, father, and friend to many. His mother, Carla Daly, emphasises in her statement that Kane ‘was the glue that held us all together’. Godfrey Daley, Mr Dempster’s stepfather, notes that Mr Dempster himself lost his father at a young age and tragically, his now eight year old son is experiencing the same trauma.
42The psychological consequences of Mr Dempster’s death on his family have been far-reaching. Ms Daly notes the ‘unbreakable bond’ Mr Dempster shared with his younger brother Malcolm, who has ADHD. In his own victim impact statement, Malcolm Dempster says that his brother’s death has deeply impacted his mental health. He describes his brother as ‘[his] number one’, lamenting that ‘[n]othing can fill the hole that has been left behind from Kane’s death’. Kane was also a great source of support to his sister, Rachel Beveridge. She describes how her brother Kane was the only person she trusted when she was battling mental health problems, and that, when she had no income, he provided emotional support and financial support. I also note that the legal proceedings have also taken a deep emotional toll on Mr Dempster’s family members.
43The financial impact of Mr Dempster’s death must also be emphasised. Mr Dempster was the sole financial provider in his family and his death has left his wife, Rose Walsh-Dempster, and young son in a state of insecurity. Ms Walsh-Dempster has bipolar disorder and has had to return to study in order to pursue a career more suited to her condition. She is unable to work full time as she needs to care for their son. Mr Dempster also carried out many of the chores around the 10 acre property he shared with his family, and in his absence Ms Walsh-Dempster has had to step into that role, although she relies on others to complete these tasks at some cost. Ms Walsh-Dempster must now shoulder these financial burdens alongside the emotional demands of raising a young son by herself.
44I wish to direct the following comments to the family of Mr Dempster:
45The sentence that I must impose can in no way be a measure of the worth of the life of Mr Dempster, nor can it ease your significant grief. Rather, it is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.
Personal circumstances
46You are now 55 years old and reside in the regional town of Sebastian with your wife, Deborah, and two of your adult sons, Heath (25 years old) and Declan (21 years old). Through your wife you have a stepson, Lachlan (28 years old). You yourself grew up on a farm in Serpentine in a loving and caring family alongside your three siblings. No one in your immediate family has ever had any involvement in the criminal law. Your criminal history is limited to two traffic offences dating back to the nineties. You have also never had any problems with substances or gambling.
47You started working in the transport business in your early twenties after purchasing a truck and trailer. You now own four trucks with four drivers and also have two subcontractors working for you, one of whom is your stepson Lachlan. The business currently transports grain and fertiliser up and down the eastern seaboard.
48While your upbringing and steady employment history reflect a stable background, your significant role in relation to your family circumstances was emphasised by Mr Smallwood.
49Your son, Heath, was diagnosed with autism from around age five. Tendered on the plea was a report by consultant psychological Peter O’Neil dated 23 April 2009, which sets out the findings of an assessment your son undertook when he was 11 years old. The report was prepared for Bendigo Special Developmental School, where Heath was a student. Mr O’Neil diagnosed Heath with a moderate intellectual disability. The testing revealed Heath to have a Full Scale IQ of 44; his results on the Wechsler Intelligence Scale for Children – 4th Edition were ‘consistent with those expected of a student with a diagnosis of autism’.
50Heath has received the Disability Support Pension since he was 16 years old and is now is registered with the National Disability Insurance Scheme (‘NDIS’). He participates in an NDIS-funded social inclusion program two days a week through WISE Employment, a not-for-profit organisation which aims to assist people with gaining life skills, building connections and enhancing their confidence.
51You are responsible for driving Heath to and from his social inclusion program, medical appointments and other commitments. Mr Smallwood noted that while Heath does undertake some limited work at a horse stable, his cognitive capacity remains akin to that of an eight year old child. You purchased a small unit in Bendigo for Heath where he stays two or three nights a week, at your encouragement and in an attempt to foster his independence. However, you stated to psychologist Jeffrey Cummins that your son does not cope well on his own.
52In addition to caring for Heath, you are also responsible for the care of your wife, Deborah, who suffers from a functional neurological disorder (‘FND’), which causes her significant disability and distress. FND manifests differently in different people; for your wife, it has led to fatigue, cognitive impairment, memory problems, tremors and spasms, gait impairment and facial tics. She often requires the assistance of a walking frame in order to mobilise. Her symptoms can fluctuate in an unpredictable manner. Dr Gangadharan Ganesvaran of Neurology Network Melbourne, in a letter dated 27 October 2023, tendered on the plea, notes these fluctuations and that your wife’s symptoms would be impacted by factors such as mood, stressors and poor sleep. Dr Ganesvaran states:
I feel Deborah would likely depend on Brendan for help with activities of daily living at the moment, although I am unable to comment about the frequency of this. Prognosis with regards to her cognitive difficulty depends on the underlying cause. It is likely, however, that her cognitive trouble as well as her functional movement disorder may worsen with increased stress and anxiety that can be brought on, for example, by Brendan’s incarceration.
53According to her psychologist Shelley McCarron, your wife’s conditions has ‘made it difficult for her to socialise or participate in the community independently’. Ms McCarron, who has provided ongoing psychological treatment to your wife since she was first diagnosed in 2016, notes that she is highly dependent on you for many activities of daily living and that she has only limited alternative supports available. Your wife is not supported by the NDIS, and you are her sole and only carer, driving your wife to appointments, preparing her meals, looking after her domestic needs and ensuring she participates in social activities. Your wife has a current driver licence but Mr Smallwood submitted that your wife generally does not feel safe to drive, relying on you to transport her to all of her commitments. Ms McCarron opines in her report dated 6 September 2023 that ‘the health and wellbeing of both Deborah and Heath would be seriously and negatively impacted’ without your ongoing care and support.
54It is noted that you fulfill these carer responsibilities for your wife and son on an unpaid basis, and they are shouldered in addition to the responsibilities you have in relation to your business and employees. You manage the financial aspects of the transport business, as well as an online store, although you employ a niece who manages the day-to-day operations of the online store.
55Your devotion to the care of your wife and son is noted by Philip Tracy, a business associate and friend of over 20 years, who describes you in a character reference as a ‘modest and humble family man’ who is viewed ‘in the highest calibre’ by your peers. Your friend Craig Niemann characterises you as ‘one of the most caring people that [he knows]’. Others note your remorse and the way in which you have struggled in the aftermath of this offending; Rodeny Monti, another business associate and long-time friend, says you have spoken to him about how you ‘[wake] up thinking about it early most mornings’ and consistently remember giving CPR to the victim. In total, five character references were tendered on the plea, and I have taken them into account.
56In terms of your mental health, Mr Cummins opines in his report dated 21 September 2023 that you are suffering from symptoms of post-traumatic stress disorder arising from the collision. You report experiencing, among other things, negative intrusive thoughts and a sense of uneasiness regarding driving a vehicle and the possibility that you could again be involved in a collision causing the death of another person. Mr Cummins assessed your current state of depression as ‘severe’, noting your depression was connected not just to the possibility of incarceration, but also the potential loss of your business and the fact that you would no longer be able to care for your wife and son, which in turn would worsen their mental health symptoms.
Sentencing considerations
57I take into account your plea of guilty. While you conducted a contested committal hearing, the matter resolved in this court at a sentence indication hearing before me. As such your plea has saved the time and expense of a criminal trial, thereby facilitating the course of justice. Further, while the backlog of cases as a result of the pandemic has now eased, there are still some pandemic related delays and thus a moderate amelioration in sentence is still able to be taken into account.[3]
[3] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].
58In terms of remorse, in addition to what is reflected in the character references, I note that Mr Cummins observed during the course of your assessments with him that you were preoccupied with the fact that you caused the death of a cyclist. You also stated to Mr Cummins that, following the collision, you have become obsessed with reminding your employees how important it is that they look ahead and think ahead in terms of their driving behaviour and that they must take extra care if they do see a cyclist on the road. Ultimately Mr Cummins is of the opinion that your presented as an interviewee expressing genuine guilt and remorse, and states: ‘At interview he spoke in a manner indicating he was very capable of developing victim empathy, as he spoke in an empathetic manner concerning the deceased person’s family and relatives.’ In my view you have expressed genuine remorse.
59I turn now to the issue of family hardship. Mr McCarthy submitted that any family hardship that would be experienced by your son and wife if you were to be imprisoned could or would be reduced by the support offered by the NDIS to your son Heath, and Ms Maher’s ability to live with ‘a reasonable degree of independence’.
60Mr Smallwood submitted that Ms Maher’s condition has both a psychological and physical aspect and that there has been a deterioration in her presentation in recent times. As noted above, Ms McCarron states that your wife’s symptoms of weakness can fluctuate in an unpredictable manner making it very difficult for her to participate in the community independently and as, such she is highly dependent on you for many activities of daily living.
61In respect of your son’s care, Mr Smallwood submitted that there is no one who can readily step into the role you are now performing, noting however that you would be subject to licence disqualification limiting your ability to transport your son. In that regard I note that you conveyed to the Mental Health Advice and Response Service assessor that you will rely on friends, family and work colleagues to ensure your wife and son can participate in their respective therapeutic programs while you continue to run your business, providing for them financially to enable this to occur.
62At the sentence indication hearing a number of submissions were made on your behalf as to whether a s 5(2H) Sentencing Act 1991 (‘Sentencing Act’) exception can be established. Mr Smallwood specifically relied on Section 5(2H)(e): That there are substantial and compelling circumstances that are exceptional and rare that justify not making an order for an immediate term of imprisonment.
63As noted by the court in Director of Public Prosecutions v Lombardo,[4] the phrase ‘substantially compelling circumstances which are exceptional and rare’ refers to circumstances that ‘are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death’.
[4] [2022] VSCA 204, [71]-[72].
64In considering these matters I have also considered the recent authorities of Peers v The Queen[5] and Director of Public Prosecutions v Browne.[6]
[5] [2021] VSCA 264.
[6] [2023] VSCA 13.
65Mr Smallwood relied on a number of cases in this court that have taken into account the assessment of moral culpability as a consideration when determining if the s 5(2H)(e) exception is enlivened. While each case must turn on its own facts, I have read and taken into account those decisions.
66It is clear that s 5(2HC)(b) allows for an assessment of the nature and gravity of the offence as part of the consideration. However, Mr Smallwood placed significant emphasis on the hardship that would be caused to your wife and son should you receive a term of imprisonment. In my view, in all the circumstances, the hardship that would be caused to your wife and son if you were imprisoned, together with your relatively low moral culpability, in my view does make out the exception in s 5(2H)(e).
67I turn now to other sentencing considerations.
68As to your prospects of rehabilitation, you come before the court with only relatively minor traffic infringements from the nineties, which is significant for a person whose career has involved driving for many years. You have the support of your family and are well respected and supported in your local community. In the circumstances your prospects of rehabilitation in my view are very positive.
69Undoubtedly, general deterrence is the primary sentencing consideration in this instance. The court must emphasise that otherwise competent and experienced drivers are obliged to pay due care and attention to the safety of other more vulnerable road users, particularly cyclists, with whom they share the roads. It must be emphasised that people driving cars in the vicinity of cyclists must remain alert at all times and exercise caution when passing a cyclist, especially on narrow roads. Such road conditions, whilst challenging to a degree, are not uncommon.
70It was submitted that in all the circumstances, a Community Correction Order is an appropriate disposition. I had you assessed for such an order and you have been found suitable.
71In my view in all the circumstances, a Community Correction Order is able to meet the relevant sentencing considerations in this instance. In that regard I note the Court of Appeal’s comments in Williams v The Queen,[7] as follows:
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[8]
[7] [2018] VSCA 171.
[8] Ibid, [47], Priest and Hargraves JJA.
Sentence
72Mr Maher, would you please stand.
73Brendan Maher, on Charge 1, dangerous driving causing death, you are convicted and will be placed on a Community Correction Order for a period of 3 years. In addition to the standard conditions that attach to all Community Correction Orders, you will be required to undertake 300 hours of unpaid community work.
74Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 2 years with a non parole period of 15 months.
75Pursuant to s 89(1) of the Sentencing Act, as the charge is a serious motor vehicle offence, any motor vehicle licence you hold is cancelled, and you are disqualified from obtaining a licence for a period of 18 months from today.
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