Director of Public Prosecutions v Mason (a pseudonym) (Ruling No. 1)
[2020] VCC 1792
•30 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01069
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXIA MASON (A PSEUDONYM) |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2020 | |
DATE OF RULING: | 30 September 2020 | |
CASE MAY BE CITED AS: | DPP v Mason (a pseudonym) (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1792 | |
RULING
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death; Application pursuant to s 168 of the Criminal Procedure Act to remit charge to the Magistrates’ Court for summary hearing; Accused was discharged following committal and subsequently directly indicted; Tension between discharge and the matter being returned to the Magistrates’ Court for determination; Trial and sentencing procedure of superior courts more appropriate where offending is alleged to have caused death; Delay significant factor but does not outweigh other relevant considerations; Application refused.
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Sentencing Act 1991.
Cases Cited:DPP v Farmer [2010] VSC 343; DPP v Neethling [2009] VSCA 116; R v Musumeci [1997] NSWCCA (Unreported, 30 October 1997).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Gibson SC with Mr D. Glynn | Office of Public Prosecutions |
| For the Accused | Mr D. Gurvich QC with Ms J. McGarvie | Lamplugh Mcintosh Lawyers |
HIS HONOUR:
Introduction
1 The accused, Alexia Mason[1], was directly indicted in this Court on Indictment No. L10176899 on a single charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958.
[1] A pseudonym.
2 Ms Mason now makes application pursuant to s 168 of the Criminal Procedure Act 2009 (‘the Act’) to transfer that charge to the Magistrates' Court to be heard and determined summarily. The application is opposed by the Crown.
3 Before dealing with the substance of the application, I should say something about the circumstances associated with the allegation and its procedural history.
Circumstances of alleged offending
4 The collision the subject of this charge occurred on Hawthorn Road, Caulfield South, near the intersection of Sycamore Street, on Saturday 24 August 2019 at about 12.04pm. The accused was driving a white Peugeot 4008 wagon, travelling south on Hawthorn Road. Mr Cooper[2], the deceased, was a pedestrian crossing Hawthorn Road from east to west.
[2] A pseudonym.
5 The accused's vehicle collided with Mr Cooper between the tramline and centre white dividing line of the southbound lane of Hawthorn Road which caused him to be thrown to the air, to land on the road and sustain extensive injuries. On the following day, he passed away.
Procedural history
6 As to the procedural history, this charge came before the Magistrates' Court at Melbourne on 26 June 2020 for committal. No evidence was called, however, submissions were put on behalf of the accused that the evidence was not of sufficient weight to support a conviction on the charge of dangerous driving causing death. That submission appears to have been accepted, and on 8 July 2020, the accused was discharged from that charge.
7 An alternative summary offence of careless driving was adjourned for mention on 19 October 2020.
8 On 2 September 2020, the Victorian Director of Public Prosecutions filed a direct Indictment in this Court for the offence of dangerous driving causing death.
Section 168 of the Criminal Procedure Act
9 Ms Mason makes application pursuant to s 168 of the Act which is set out as follows:
(1) At any time except during trial, the Supreme Court or the County Court may order that a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates' Court or the Children's Court (as the case requires) if —
(a) the accused consents to the transfer; and
(b) the court considers that the charge is appropriate to be determined summarily, having regard to—
(i) in the case of the Magistrates' Court, the matters in section 29(2); or
(ii) in the case of the Children's Court, whether the Children's Court is required to hear and determine the charge summarily by section 356(3) of the Children, Youth and Families Act 2005.
10 Relevantly, the matters set out in s 29(2) are as follows:
(a) the seriousness of the offence including—
(i) the nature of the offence; and
(ii) the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii) whether the offence forms part of a series of offences being alleged against the accused; and
(iv) the complexity of the proceeding for determining the charge; and
(b) the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c) whether a co-accused is charged with the same offence; and
(d) any other matter that the court considers relevant.
11 Section 168 of the Act sets out three pre-requisites:
1. that the charge concerned is an indictable offence that may be heard and determined summarily;
2. that the accused consents to the transfer; and,
3. that the court must consider that the charge is appropriate to be determined summarily, having regard to the matters set out in s 29(2) of the Act.
12 As to the first pre-requisite, s 28(1)(b)(iii) defines any indictable offence punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 1200 penalty units or both, as capable of being determined summarily.
13 Section 319(1) of the Crimes Act 1958 is punishable by a maximum term of 10 years' imprisonment and is therefore, as the parties accept, capable of being heard and determined summarily.
14 As to the second pre-requisite, this is the accused's application and accordingly there can be no difficulty with consent.
15 The third pre-requisite has been the focus of the parties submissions – that is, the appropriateness of having this charge heard summarily, having regard to the matters that are set out in s 29(2) of the Act.
(a) The seriousness of the offence
16 The first is the seriousness of the offence, including the matters set out in (i) to (iv) of s 29(2).
17 Mr Gurvich QC, who appears with Ms McGarvie, acknowledged at the outset that this is an inherently serious offence, but submitted that this offending falls at the lower end of the range of gravity and moral culpability for offending of this type. The fact in issue at trial would be whether the accused's driving that caused the victim’s death was dangerous within the meaning of the provision.
18 Mr Gurvich contended that Magistrates customarily deal with cases involving dangerous driving. He further submitted, by reference to s 29(2)(a)(iv), that this is not a particularly complex case. It is, for example, not a case where there are features of the offending, such as alcohol or drug use, excessive speed, or other matters that might potentially make the matter more complicated.
19 In response on this point, Mr Gibson SC, who appears with Mr Glynn, submitted that this offence is concerned with the taking of human life, and the significance of that fact alone tells very much against summary disposition of this case, and he referred me to a comment made by Chief Justice at Common Law Hunt in a New South Wales decision of R v Musumeci[3], which is extracted in the Victorian decision of DPP vNeethling[4]:
This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving [causing death]:
1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
…
[3] [1997] NSWCCA (Unreported, 30 October 1997).
[4] [2009] VSCA 116 at [28].
20 The Crown will submit this is a case of prolonged inattention. It will be contended that the accused had at least 13 seconds to observe the slow-walking deceased moving across the road immediately before the collision. The allegation is in effect that there was a distance in the order of 200 metres over which the accused had the opportunity to observe the deceased.
21 I note that the evidence, which is to be gleaned from the skid marks identified by investigators at the scene, is that the accused did not react to the presence of the deceased on the roadway by activating the brakes until a fraction of a second before striking the deceased.
22 It followed, it was submitted, that the failure to keep a proper lookout was protracted and according to Mr Gibson and Mr Glynn's written submissions it amounted to ‘driving blind’ It was therefore, according to the Crown, a relatively serious example of the offence and, in any event, not so unusual or exceptional as to make it suitable or appropriate to be determined summarily.
23 It was also put that this was potentially a matter of some complexity in that the determination of the fact in issue will not necessarily be straightforward in the sense that it would involve value judgments invoking community standards in assessing the accused's driving.
(b) The adequacy of sentences available to the court, having regard to the criminal record of the accused
24 The next consideration set out in s 29(2) is the adequacy of sentences available to the Magistrates’ Court having regard to the criminal record of the accused, and here Mr Gurvich contends that the two year jurisdictional limit on the severity of a term of imprisonment is more than adequate in the circumstances of this case. Whilst it is acknowledged it is a Category 2 offence as defined in s 3 of the Sentencing Act 1991, and that s 5(2H) of that Act applies, it was submitted that there may well be exceptions which might relieve the accused of the effect of that provision.
25 Moreover, sentencing statistics compiled by the Sentencing Advisory Council suggest that 15 percent of cases dealing with the charge of dangerous driving causing death in the period between 2013 and 2018 resulted in sentences of imprisonment of less than two years, and that in cases of momentary inattention non-custodial sentences are well open having regard to general current sentencing practices.
26 In addition, the accused has no prior convictions and is otherwise of excellent character and, indeed, has an exemplary driving record. It would follow that in those circumstances the Magistrates' Court would have more than adequate sentencing discretion.
27 I do not take the prosecution to submit that there is not adequate sentencing discretion in the Magistrates' Court to deal with this matter. Rather, the submission appears to be that consideration should not be of substantial weight. The fact is that the overwhelming majority of dangerous driving causing death cases are heard in this Court notwithstanding some of them will attract penalties under the jurisdictional limit of the Magistrates' Court, and that state of affairs exists despite the existence of the power to transfer matters to the Magistrates' Court under s 168 of the Act.
28 It was also suggested that this Court would more regularly apply the considerations relevant to s 5(2H) of the Sentencing Act 1991, having regard to the guidance provided by the Court of Appeal in DPP v Farmer[5], albeit that the Magistrates' Court would still have occasion to deal with s 5(2H).
[5] [2010] VSC 343.
(d) any other matter that the court considers relevant.
29 Section 29(2)(d) of the Act refers to any other matter that the court considers relevant, and in this context the accused pointed to the likely delay in the resolution of her trial. It has already been 13 months since the collision occurred and her trial will not take place before term 4 of 2022 or perhaps, on a best-case scenario, term 2 of 2022. By contrast, this matter would likely be determined in 2021 if it were transferred to the Magistrates' Court.
30 The Crown, I understand, accept that there will be a delay and that is a matter that weighs in favour of the transfer of this matter to the Magistrates' Court. However, it was put that the accused is on bail and retains her licence so that the delay is not oppressive, nor should it be, according to the prosecution, determinative.
31 A further consideration is that the Magistrate has already discharged the accused on this particular charge and it would be incongruous to transfer the matter to be heard by another Magistrate to determine the issue of guilt in circumstances where a finding has been made that the evidence is not of sufficient weight to support the conviction. It was submitted that it was open to the defence at committal to apply for summary jurisdiction and that opportunity was not taken up.
Consideration
32 In considering these submissions it seems to me that the ‘seriousness of the offence including the nature of the offence’, directs the Court's attention to both the general nature of the offence in question and the level of criminality specifically alleged against the accused in this instance.
33 As to the general nature of the offence, I accept the prosecution categorisation of this offence as one that requires the criminal courts to mark the significance of the taking of human life. It seems to me that the processes, procedures and formalities required by the County and Supreme Court are better suited to deal with cases where the criminal act alleged has caused death. That is not for a moment to denigrate or criticise the Magistrates' Court where, through necessity, there is a need to deal with matters as speedily and as efficiently as possible. That approach is clearly appropriate for summary matters and some less serious indictable matters. I do not think, however, it is particularly appropriate for dealing with criminal conduct causing death.
34 The fact is this Court is much more experienced in dealing with this offence and better equipped to do so. At trial, its proceedings will be transcribed. Any rulings are published and rulings that either substantially weaken the prosecution case or are of, in themselves of sufficient importance, are amenable to interlocutory appellate supervision. The final decision on guilt will be for a jury, not a judicial officer, assuming no application is successfully made for a judge alone trial.
35 If found guilty, the sentencing judge would publish reasons for sentence and would take into account, among many other factors, current sentencing practice, which is informed largely by other decisions of this Court or the Court of Appeal on appeal from this Court. In short, in my view, the trial and the sentencing procedure of this court better lends itself to offending which is alleged to have caused death, and that is a matter of some weight on the question of appropriateness.
36 As to the specific criminality alleged in this instance, it seems to me there are very live issues as to the dangerousness of the conduct alleged. Whatever view might ultimately be taken of that conduct, I do not think that this case falls into a category of case that is necessarily so lacking in culpability or complexity as to take it outside the range of cases that would normally be heard in this Court. As the prosecution points out, many less serious examples of this offence are in fact heard in this Court.
37 As to the issue of complexity, I should indicate that I am not persuaded that this is necessarily an especially simple case. Certainly, it seems less complex than some, but I perceive that a proper analysis of the driving the prosecution will allege was dangerous, could well become at least exacting, if not complex.
38 Turning to the issue of the fact of the previous discharge in the Magistrates’ Court. It seems to me that matter is of some weight, as was identified in discussion. There is a disconnect, for want of a better expression, between, on one hand, a finding that there is insufficient evidence to support a conviction, and, the other hand, a finding which would be sought by the prosecution that the Court is satisfied beyond reasonable doubt that the charge is proven.
39 That disconnect or tension, however it is characterised, would, in my view, be anomalous, if not potentially undermining of a verdict of guilty if one were to be given in the Magistrates' Court. In my view, that outcome would not be desirable. I accept that it was open to the accused to pursue an application under s 30(3) of the Act prior to, or indeed during, committal. The accused should not be estopped from making this application but the existence of an opportunity to have done so before the conclusion of committal proceedings is of some relevance.
40 In any event, the fact of discharge does not, in my view, sit comfortably, with this matter being returned to the Magistrates' Court for determination. It follows that this is a factor that tells against the appropriateness of this matter being returned to the Magistrates' Court.
41 As to the issue of sentencing, or the adequacy of sentencing discretion, I accept that it is likely that the Magistrates' Court would have sufficient sentencing power to deal with this matter, albeit that s 5(2H) of the Sentencing Act 1991 introduces an added layer of complexity to the sentencing calculus. Even so, I do not think that sentencing capacity is of great moment in weighing the competing considerations. The fact that the possible sentence in this matter is within a Magistrate's power does not say very much about whether it is appropriate for the Magistrates' Court, as opposed to this court, to exercise that power.
42 More persuasive, however, is the accused's submissions as to delay. That factor does trouble me. Delay is recognised as being punitive and, for that reason alone, can powerfully mitigate sentence. There is a worrying prospect here that it may be two years or so until this Court can deal with a jury trial of this matter. Indeed, that delay needs to be seen in the context of a delay of 13 months that has already elapsed, and I accept it would be a good deal less than that in the Magistrates' Court.
43 Regrettable as that delay is, it does not persuade me to grant the application. The accused is on bail and has her licence. This pandemic has thrown up enormous challenges for everyone and the delay envisaged here is unfortunately but another. I must balance that delay against the other factors I have identified as favouring determination in this Court, and in my view, delay does not outweigh them.
Conclusion
44 In conclusion, I consider that the charge is not appropriate to be heard and determined summarily, having regard to the matters set out in s 29(2) of the Act, and it follows that the accused's application under s 168 to transfer the charge to the Magistrates' Court is refused.
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