Director of Public Prosecutions v Marlow

[2021] VCC 1004

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

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2021
DATE OF INDICATION:	13 July 2021
CASE MAY BE CITED AS:	DPP v MARLOW
MEDIUM NEUTRAL CITATION:	[2021] VCC 1004

REASONS FOR SENTENCE INDICATION
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Subject:SENTENCE INDICATION

Catchwords: Dangerous driving causing death – substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 of Part 3 of the Sentencing Act 1991 (Vic) - low objective gravity – low moral culpability – general deterrence and denunciation

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Hudgson [2016] VSCA 254; DPP v Worboyes [2021] VSCA; Farmer v R [2020] VSCA 140

Indication:Term of imprisonment commencing immediately not likely to be imposed 

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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 are awaiting a trial listing in relation to one charge of dangerous driving causing death. The charge arises from a collision between the Jeep wagon you were driving and a cyclist, Mr Mark Spenceley, on the Clunes-Creswick road, in Clunes. At the time of the collision on 24 March 2019, Mr Spenceley was ahead of you on the road, travelling in the same direction as you. As you drove around a right-hand inclined bend, you collided with the rear of his bicycle. You immediately stopped and called 000. Mr Spenceley suffered fatal injuries and died at the scene. I note that you also face mandatory disqualification from driving for 18 months pursuant to s89(3) of the Sentencing Act, as the offence of dangerous driving is also a serious motor vehicle offence within the meaning of s87P of that Act.  

2You now make application for a sentence indication. This process enables a judge to give an accused a general indication of the sentence the judge would be likely to impose if an accused pleads guilty at this stage of the proceedings.

3Section 207 of the Criminal Procedure Act 2009 gives the court a power, at any time after an indictment is filed, to give an indication that if the applicant pleads guilty to the charge on the indictment at that time, the Court would or would not (as the case may be) likely to impose on the applicant a sentence of imprisonment that commences immediately. The prosecution must consent to the giving of a sentence indication, and has done so in this case, but even with its consent, the Court is not required to give a sentence indication.

4If the Court chooses to give a sentence indication, and indicates that it would not be likely to impose a sentence of imprisonment on the applicant which commences immediately, and the applicant then pleads guilty at the first available opportunity,  then, when sentencing the applicant, the Court must not impose a sentence of imprisonment that commences immediately. However, if the applicant does not plead guilty after the sentence indication has been given, then the same Judge who gave the sentence indication would not preside over the trial unless all the parties agree that they should.

5I understand from your counsel that if you do not accept the sentencing indication I give you, that you would continue to trial.

6I indicate that I consider myself adequately informed to give a sentence indication today because the material provided to the Court is fulsome: it comprises the summary of prosecution opening and its addendum, further and better particulars of the offending and four Victim Impact Statements, from Mr Spenceley’s  wife (Kerrie) and three children (Gemma, Erin and Tynan). These heartfelt statements are stark reminders of the permanent distress and anguish caused to family members by the loss of a beloved father, husband and grandfather.

Prosecution submissions

7The prosecution also filed written submissions. The prosecution conceded that the objective gravity of your driving is properly categorised towards the lower end of seriousness for the offence of dangerous driving, and that your moral culpability can be described as toward the lower end of seriousness. It also conceded that you do not have a prior criminal history or unfavourable driving history, and that you are a man of good character with excellent prospects of rehabilitation.

8However, the prosecution contends that the matters you rely upon fail to amount to substantial and compelling reasons which are exceptional and rare.

9In doing, so, it has argued that each of the matters or factors you rely upon is not rare or exceptional. Thus, it says, your offending is a run of the mill example of dangerous driving by inattention which tragically causes death on the road to other road users. Similarly, your grief and remorse for causing the death of a fellow human being is to be expected in a man of your good character. There is little to substantiate your fear that you would not receive sufficient treatment in jail for your back condition. The impact on your family members is not exceptional. Any impact on your father’s business is lessened by the fact that it is a partnership. The fact that you are depressed, taking anti-depressants, and are anxious about going to jail, is not exceptional or rare, especially given your lack of psychiatric history and your self-description to Mr Cummins as a psychologically robust and resilient person.   

10In addition, the prosecution says that the Court should either disregard the potential of a plea, or, if it is found to be a consideration open to the Court, attach little weight to it. Similarly, the Court must ignore your contributions to the local community and your good character. Finally, the prosecution says that a category 2 offence is serious offending.

Defence material

11The defence tendered comprehensive written submissions including references to recent cases, a psychological report of Mr Jeffrey Cummins dated 23 March 2021, a medical certificate concerning your current medical problems, references from your father, from your current partner since 2015, from a friend, and from the mother of your 8 year old son from a previous relationship; as well as some school reports relating to your 8 year old son; and two financial statements concerning your financial position. Today I also received a letter from a Salvation Army officer detailing your contribution for 3 years between 2014 and 2017 as a mentor to 8-16 year old children who have been socially isolated due to their disadvantaged circumstances.

Legal principles

12In considering your application for a sentence indication I have obeyed the statutory requirements which I refer to below, and have put to one side consideration of your prior good character (apart from the fact that you have no prior convictions), your prospects of rehabilitation, and the timing of your plea of guilty. I have otherwise taken into account all the matters relied upon in the written and oral submissions made by your counsel.

13Your offending occurred in March 2019 and is a category 2 offence governed by the principles in s5(2H) of the Sentencing Act 1991 (Vic). That provision requires that a term of imprisonment be imposed (without a CCO) unless there are found to be “substantial and compelling” reasons that are “exceptional and rare” that “justify” not imposing a term of imprisonment, under s5(2H)(e) of the Act. In considering this exemption, the Court is required by the provisions in s5(2HC)(a) and (b) as well as ss5(2I)(a) and (b) to:

·treat general deterrence and denunciation as the most important sentencing considerations;

·treat the nature and gravity of the offence as more important than consideration of the offender’s personal circumstances;

·consider only an absence of prior convictions (and not consider prior character, an early plea, prospects of rehabilitation and parity);

·give consideration to the legislative intention that imprisonment should normally be imposed;

·consider whether the cumulative impact of the circumstances of the case justify departure from the prima facie position. The accumulation of a series of features, themselves common, may suffice.[1]

[1]        Farmer v R [2020] VSCA 140 [55].

14It is clear from these requirements that the exemption relying on substantial and compelling circumstances sets a very high hurdle that will not often be surmounted.[2]

[2] Ibid [51].

15Your counsel has relied on the combined impact of a number of factors which he says are sufficient to make out the exemption.

16I turn to the relevant considerations.

The offending

17Investigation of the circumstances of the collision produced the following conclusions. The weather was fine and the road was dry. The Clunes-Creswick road is a two lane undivided country sealed road divided by a single solid line, often frequented by cyclists. The speed limit is 100 km/h. There are no provisions for a cyclist to ride outside the running line. In the direction you were driving, at the point of the collision, your lane had to its right parallel broken white lines, giving you the right to overtake traffic. You were travelling in your car with your 8 year old son towards Altona Meadows. He was seated behind the front passenger seat. Your car was in good working order. Prior to the collision, you were talking to your son about his school. You had commenced braking prior to the collision, and were travelling at between 77km/h and 88 km/h at the time of impact. Your blood sample taken at the scene did not indicate the presence of alcohol. The Codeine and Paracetamol detected were at low levels, being used by you to manage a back injury, and are not alleged by the prosecution to have contributed to the collision.

Issues

18The parties agree that the collision occurred due to your inattention. The prosecution contends in its particulars that this inattention is prolonged, but does not indicate how it is said this prolonged inattention caused you to failed to see the cyclist. According to the defence, there is no evidence in the prosecution brief to suggest that the inattention was anything other than momentary – you admitted the fact that you were looking over your left shoulder or in the rear-vision mirror at your son while talking to him prior to the collision.

Findings and reasons

19I consider it appropriate to proceed on the basis that your inattention comprised you looking over your left shoulder or in the rear-vision mirror at your son in the moments prior to the collision.

20I turn first to the objective gravity of your offending and your moral culpability for the offending. These are very important factors, because the nature and gravity of an offence is a mandatory consideration, and because an offence of low objective gravity and low moral culpability might go some distance in justifying a sentence not involving imprisonment. Based on the material outlined above, I consider that the objective gravity of your offending is low, and that your moral culpability for the offending is low.

21Second, I note that you have no prior criminal history.[3]

[3]        I note that you had two speeding infringement notices in 2006 but these are not relevant to your

application for a sentencing indication.

22Third, I consider that your willingness to plead guilty must be given appropriate significant weight. There appear to be some evidentiary issues in relation to exactly what dangerousness caused the collision, and in these circumstances there is a significant utilitarian benefit that attaches to your waiving a right to a trial. In addition, you are entitled to a “perceptible amelioration of sentence” for your plea during the COVID-19 pandemic.[4]

[4]        DPP v Worboyes [2021] VSCA 169 [39].

23Fourth, I consider that your grief and remorse are well documented by Mr Cummins and your partner. You had six months of grief counselling but indicated that you would never recover from your involvement in the death of Mr Spenceley.

24Fifth, I accept that serving a custodial sentence, in your particular circumstances, would for a number of reasons make the hardship quite exceptional.

(a)   You have a chronic back injury for which you take daily Panadeine Forte and Paracetamol, and you may not be able to receive these medications in custody.

(b)   You have been central to running your father’s construction business, in which you work, since his heart attack in June 2019.

(c)   You provide care to your partner’s mother when she comes to stay to have her cancer treatments.

(d)   You have an infant child, who would have to be put in full-time care so that your partner could work full time to support the family and pay the mortgages.

(e)   Your 8 year-old son from a previous relationship who has behavioural issues and who stays with you a few nights per week or fortnight and on school holidays, would be deprived of your ongoing support and occasional care.

(f)    I note that you are currently prescribed anti-depressants and Mr Cummins considers that your mental health would deteriorate if you were imprisoned.

25I consider that these factors, combined, are outside what might be described as run of the mill factors, typically present in offending of this kind.[5] I consider therefore that they are substantial and compelling. I also consider that the combination of these factors is rare and exceptional, and that their “cumulative impact justifies a departure from the presumption of a custodial sentence”.[6]

Conclusion

[5]        DPP v Hudgson [2016] VSCA 254 [112].

[6]        Sentencing Act 1991 (Vic) s5(2I)(b).

26For the above reasons, I indicate that I would not be likely to impose on the applicant a sentence of imprisonment that commences immediately.  

27I will adjourn briefly to give you some time to discuss the further progress of this matter with your counsel, and for counsel to have some discussions.