Director of Public Prosecutions v Marlow

[2021] VCC 956

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01200

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL MARLOW

---

JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2021
DATE OF SENTENCE:	14 July 2021
CASE MAY BE CITED AS:	DPP v MARLOW
MEDIUM NEUTRAL CITATION:	[2021] VCC 956

REASONS FOR SENTENCE
---

Subject:DANGEROUS DRIVING CAUSING DEATH

Catchwords:              Plea of guilty at the first available opportunity after a sentence indication that Court unlikely to impose an immediate term of imprisonment – low objective gravity – low moral culpability – serious motor vehicle offence

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Marlow [2021] VCC 1004

Sentence:                  36-month Community Correction Order with conviction – cancellation of driver licence and disqualification period of 18 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Hannan	Office of Public Prosecutions
For the Accused	Mr G Casement	Buscombe Madden Lawyers

HER HONOUR:

1Daniel Marlow, you have pleaded guilty to one count of dangerous driving causing death, arising out of a collision which occurred on 24 March 2019 between the car you were driving, and a cyclist, Mr Mark Spenceley.

2Your plea of guilty was entered yesterday after you accepted the sentencing indication I gave to the effect that I would not be likely to impose on you a sentence of imprisonment that commenced immediately.[1]

[1]        DPP v Marlow [2021] VCC 1004.

3After your plea of guilty was entered, you indicated your willingness to undertake a Community Correction Order (CCO). Arrangements were made yesterday to have you assessed for suitability to be placed on a CCO. That telephone assessment with Corrections and with Forensicare took place earlier today. The report from Corrections Victoria noted that you are very remorseful, have excellent family supports and full-time employment, as well as no problems with abuse or drugs or alcohol. You were assessed as being at low risk of reoffending and as suitable to be placed on a CCO. The report from Forensicare indicated that you are currently receiving appropriate mental health treatment in the community through your general practitioner and that no mandated treatment is needed. In the light of the Forensicare report, counsel for the parties did not submit that the CCO needs to include a treatment condition.  

4Before pronouncing sentence I heard brief submissions from counsel. You read out in court your letter of apology to the Spenceley family dated 1 April 2021. You stated in that letter that you will always carry with you a great deal of remorse for your offending. The prosecution emphasised the seriousness of the offending.

5In crafting the appropriate CCO, I have taken into account the seriousness of the offending, and the important sentencing principles of denunciation, just punishment and general deterrence. I have also taken into account all  the material provided by your counsel and the submissions made on your behalf concerning  include your plea of guilty, remorse, good character, community service, solid work history, absence of issues with drug or alcohol abuse, excellent prospects of rehabilitation and personal circumstances. I am mindful of the delay to date of some two years, in which you played no role, and of the fact that if the matter went to trial, it would be unlikely to be finalised until nearly four years after your offending. 

6Would you please stand? On Charge 1 on the indictment, dangerous driving causing death, you are convicted and sentenced to a 36-month Community Correction Order, with conditions of 500 hours of unpaid community work.

7In relation to the CCO, in addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all CCOs. These are: that you must not commit any other offences during the period of the CCO - that is, 36 months from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to these offences. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Ballarat within two clear working days of today. You must not leave Victoria without first getting permission from a Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?

8Before you consent to the making of such an order, you must understand that contravening any condition attached to the CCO, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a CCO also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the CCO?

9As I have imposed a CCO of more than 2 years’ duration, I indicate pursuant to s 6AAA of the Sentencing Act 1991 (“the Act”) that, but for your plea of guilty, I would have imposed a sentence of 18 months’ imprisonment with a non-parole period of 12 months.

10Dangerous driving causing death is a “serious motor vehicle offence” within the meaning of s 87P of the Act, so that I must cancel your driver licence and disqualify you from obtaining a further driver licence for no less than 18 months pursuant to s 89 of the Act. Given your circumstances and your lack of criminal priors save for two traffic infringement notices in 2006, I will cancel your driver licence and impose the minimum disqualification period of 18 months.