Director of Public Prosecutions v McCann
[2013] VCC 919
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00203
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD McCANN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April and 27 May 2013 | |
DATE OF SENTENCE: | 12 June 2013 | |
CASE MAY BE CITED AS: | DPP v. McCann | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 919 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Dangerous driving causing death – offence committed whilst under the influence of alcohol – victim was the offender’s brother – prior criminal convictions
Legislation Cited: s.319(1) of the Crimes Act 1958
Cases Cited:DPP v. Janson [2011] VSCA 19
Sentence: 3 years imprisonment with a minimum non-parole period of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Ms K. Kothrakis | Doogue O’Brien George Criminal Defence Lawyers |
HIS HONOUR:
1 In this matter, Mr Ronald McCann, who was twenty-seven at the time of these offences and now is twenty-nine, has pleaded guilty to one charge of dangerous driving causing death, an offence against s.319(1) of the Crimes Act 1958. The maximum penalty prescribed by Parliament is a period of imprisonment of ten years.
2 The tragedy of course, or the double tragedy in this matter is not only was there a death, but it is the death of his half brother, Jay Lonsdale, who was twenty at the time. This accident happened at Melton on 3 December 2011.
3 Exhibit A was tendered, being the prosecution summary prepared by Mr Roper, whom I thank, and the facts in that statement were agreed to by Ms Kothrakis, who appeared on behalf of Mr McCann.
4 Also tendered was Exhibit B, which are photographs of the accident scene, the approach to High Street and of the Caltex garage, where it was last recorded that Mr McCann stopped at 1.09 am prior to this accident occurring, which one would presume, given the distance, must have been shortly thereafter.
5 Of course the unfortunate reality of this crime and the death of Jay is the drinking by Ronald McCann, throughout this afternoon and night. He was drinking at home, he was drinking at his cousin's and drinking at his friend's place. Whether it was the drink or his own driving, he ultimately, as a result of a wheel spin, damaged his car to the extent that it was immovable and needed a change of tyre. Those repairs were ultimately effected relatively late at night and Mr McCann and his brother decided to drive home. As I say the last reported sighting of them both was when he visited the Caltex Service Station relatively close to the scene of the accident at 1.09 am. They were not in fact found, in the position in which they ended up in the accident, until the next morning.
6 Not far on from the Caltex Service Station is a roundabout with a number of streets coming off it. From this intersection one makes the turn into High Street. It is to be noted that Mr McCann on this night drove into High Street, despite the signs present, firstly in the roundabout sign saying "No Through Road" and on the road itself saying, "Road Closed."
7 The circumstances were essentially, tragically simply, that Mr McCann was not speeding, however he travelled along and unfortunately until the very last did not notice the concrete stanchion in the centre of the road, which had been so placed to protect the weighbridge. Having looked at the photographs that were tendered as Exhibit B, and in particular Photograph 57, I expressed concern at the original hearing of this matter as to the circumstances of this concrete stanchion located in the centre of the road, and its relationship to this accident.
8 The matter was adjourned to allow for a further report from Detective Sergeant Bellion, the police forensic expert, and such report was provided and dated 1 May 2013. Also tendered subsequent to that original hearing was the VicRoads fatal crash report.
9 It is clear that for a number of years there had been a determination that this road should have been closed. There were no appropriate hazard markers in regard to this concrete marker in the centre of the road, nor were there appropriate lights. There may well have been lights but they had been damaged. Apparently, at one stage the road was actually fenced off but it was then damaged further and it then continued to be used for the occasional weighbridge circumstances. It is clear that it was the view of VicRoads and the local council that the road should be closed and that was recommended as a result of this post crash analysis.
10 The report of Detective Sergeant Bellion concentrates particularly, insofar as the circumstances, upon the straight length of road, the speed at which it is estimated that Mr McCann was travelling and utilises Photograph 57 to suggest or come to the conclusion that there was plenty of time for Mr McCann, had he not been affected by alcohol, to react appropriately and not be in a position, where it would appear that he did not swerve to the left until about fourteen metres prior. Those are the marks and effects thereon. The report of Detective Sergeant Bellion essentially, tendered to the Court as I said, on 1 May 2013, was along those lines and relied very much upon what is shown in Photograph 57 and suggested that the paint on the concrete side was very clearly visible from some considerable distance away from the sign.
11 I must say, in my view, one gets a very false impression of that concrete stanchion and the paint on it. The photograph used by Mr Bellion seems to me a photograph that is not appropriate in the circumstances of actually what happened in this case. That photograph, as best I can tell, Photograph 57, seems to be taken not long after dusk. It may well be that the concrete and the paint on it was far more visible than it actually was. However, clearly, given the circumstances, I understand that Mr McCann was facing an even more serious charge than is before the Court today, no doubt as a result of legal advice in all the circumstances, given the effect of alcohol, he made a determination to plead.
12 I find, however, that it is beyond doubt that a cause of this collision and the ultimate death of Mr McCann's brother, Jay, was the state of the road, the lighting and the condition of the road. In my view, the culpability in this matter of Mr McCann, which would otherwise be assessed by me as high, is as a result of the contribution of the state of the road reduced to a situation of medium to high. That finding of course does not in any way gainsay the reprehensible actions of Mr McCann on this night.
13 Dr Odell, the relevant expert, on the basis of the testing done the next morning concluded, see p.134 of the depositions, that Mr McCann at the time of driving would have had a reading of not less than 0.12, which is two and half times over the permissible limit. It is also perhaps to be remarked, somewhat unfortunately, because Jay was not the driver, but an indication of the drinking that was taking place with the two of them, that Jay’s reading was 0.2, and that was a reading assessed as at the time of his unfortunate death. It may well be therefore that the estimate, insofar as Mr McCann, is somewhat less than it actually was.
14 As I have said, the other circumstances were that this was a 100 kilometre zone and it is estimated that at the time of the collision Mr McCann was travelling at about 102 kilometres per hour. One of the factors that must be borne in mind is that Mr McCann has a history, of which I will come to in due course, of abuse of alcohol and as a consequence of that has two prior offences for exceeding 0.05, two speeding offences and a drive while disqualified. The 2006 offence recorded a reading that Mr McCann had of 0.113 and he had a subsequent offence in 2007.
15 It is very important to make the point that Mr McCann is not sentenced again for those offences, they have been determined and he has served his sentences. However, when you have a person involved in an offence of this seriousness, brought about by the result of abuse of alcohol, the fact that he has two relatively recent priors for abuse of alcohol insofar as the use of cars, certainly limits the options of this Court as to the appropriate sentences.
16 It is necessary to note that he had particular counselling, ordered as a result of his last offence for his problems with alcohol. It I also important to note that he would not have got a licence back without going through the appropriate courses and here he is, subsequent to those two offences, some four years later involved in this most serious charge which results in the death of his brother.
17 As I said, Mr McCann is entitled to a discount for his plea of guilty in this matter. The plea was made at the earliest time, given the indictment in this particular matter.
18 I have no doubt, upon the material that is tendered in this case, that his remorse is genuine and he feels gravely responsible as a result of his criminality in this matter, that as a result of the abuse of alcohol on this night he has taken the life of his brother.
19 Of course as this community is so well apprised of regularly, associated with this is not only death, but the persons who suffer as a result of it and here we have in Court the mother of both Jay Mr McCann.
20 Mrs Margaret McCann’s victim impact statement again is part of the totality of the tragedy. She talks of the tragedy of the loss of a son, we all understand and accept that. However, Mrs McCann has the additional tragedy in which she is contemplating the gaoling of her other son as a result of this offence. She made a strong plea to the Court for mercy, not only mercy for her son but mercy for herself, as a result of the commission of this crime.
21
It is important to recall that this offence of dangerous driving causing death was introduced into our legislation in 2004. At that time Parliament prescribed a maximum penalty of five years. It was introduced to provide mid range offence between culpable driving, for which the penalty at that time was
twenty years, and dangerous driving under the Road Safety Act 1986 for which the penalty was two years. There was no offence in between and often juries found it difficult to convict a person of culpable driving when they were aware of the severe penalty involved. In those circumstances Parliament felt it appropriate to introduce this half way provision, so to speak.
22 Because of the community's view as to the seriousness of death caused in these circumstances, in 2008 the original penalty prescribed for this crime of dangerous driving causing death of five years, was determined by Parliament to be inadequate and was increased to ten years. As I have said, that is the penalty that applies to Mr McCann. That penalty clearly indicates the seriousness with which Parliament views this crime.
23 There are a number of authorities in so far as these matters are concerned. I will not take the Court to them all, however, it is clear from those authorities that general deterrence and denunciation must be given considerable weight.
24 Members of the public must recognise that a person who kills a person by driving dangerously is likely receive a term of imprisonment. It is not to be forgotten that in all forms of dangerous driving causing death the principle of general deterrence is the important consideration.
25 A custodial sentence will generally be appropriate except where an offender's level of culpability is low. Indeed, a non-custodial sentence, according to the authorities, should be seen in these cases as being exceptional.
26 Indeed, in the more recent decision of DPP v. Janson [2011] VSCA 19, determined by the Court of Appeal since the amendment, that is the increased penalty, Justice Nettle AJ said at [35]:
"…Subject to proportionality and other relevant considerations, general deterrence is an important consideration in all cases of dangerous driving causing death."
27 In so far as the plea conducted on behalf of Mr McCann, it was pointed out by Ms Kothrakis, the obvious tragedy of which I have already remarked that the criminality on this particular day has led to the death of his brother, Jay. She referred to the plea of Mrs McCann, and noted that this plea of guilty is a plea that should be given a discount for its utilitarian benefit to the community in the sense that no trial was required. Ms Kothrakis submitted that I should accept, which I do, that the remorse in this matter of Mr McCann is utterly genuine and that such has had a dramatic effect upon him.
28 Ms Kothrakis also referred to the report of the psychologist Ms Elizabeth Warren of 16 April 2013, which was tendered as Exhibit 2. I refer to page 6 of that report. It notes the period during your late teens and early 20's of periodic heavy drinking associated with the driving charges of which I have spoken about.
29 It is suggested that since that time and the detox program that you went through as a result, no doubt, to get your license back that you have maintained a regime of moderate drinking. Indeed, she goes so far as to suggest that alcohol is no longer a regular problem, although, the reading from this accident she notes suggests intermittent difficulty.
30 Ms Warren suggested the most likely explanation is that on occasions you lose track of how much alcohol you have consumed because even though you have had two prior drink-driving offences and some other offences of some speeding you are not generally a deliberately or recklessly non-law abiding person. Members of the community would perhaps question that now, given the circumstances of this case, and your two priors.
31 Ms Warren noted, of course, that on this particular night, amazingly, the reason why you drove was apparently to protect Jay and as she said, tragically, you did not have the same recognition of the dangers that you thought Jay would have in driving because he was affected for yourself.
32 As she noted the devastating consequences will ensure that you will not drink again after driving. Well, it can only be remarked, Mr McCann, that is a matter for you. I would hope that you never drink again. It is quite obvious that you do not have the capacity to control it, one would hope that the consequences that have come about from this abuse are such as to prove to you that you do not have the capacity to drink.
33 You have, of course, struggled particularly with the grief in this matter and, as I said, I accept that as genuine. I accept the particular problems you have had in accepting your guilt and your grief in this matter and I note the particular crisis that you had gone through at the time of the original hearing of this matter.
34 Elizabeth Warren remarks, on page 8 of her report as follows:
"As with all cases similar to this the consequences act as severe punishment regardless of the legal disposition. This case is no exception. This man will experience life long regret and burden that his closest youngest brother died in an accident where he is found to have been at fault."
35 I do not think this Court can say any more than that. As I say I note the emotional shock that you went through and I further note that subsequent to this accident have been tendered the report of Eltham Counselling Service, and the counselling that you have undertaken to try to deal with the problems of stress, anxiety and depression that you suffer.
36 You are obviously a skilled employee and I take, in particular, into account the references from your employer, in your job, as a diesel technician. I also note the personal references in so far as you are concerned, the close bond that you have in so far as your own partner and the close bond with the four year old child.
37 It was put to me that in this case that a prison term would have an impact upon you in the sense that it may well exacerbate your depression considering your state at the moment. It was also submitted that the impact of a gaol sentence would have a particular effect upon your partner in the sense that you are the sole provider and it was also pointed out the immediate particular difficulties of your partner having problems with her own mother's medical condition.
38 Such unfortunately, are the catastrophic consequences of this type of case. It was not gainsaid by Ms Kothrakis that this Court must primarily look at the principles of general deterrence, denunciation and punishment in crimes such as this. It was submitted, however, that this is offence is not defined as a serious nor significant crime under the Sentencing Act 1991, and that a fully suspended sentence was still a possible sentence in regard to you.
39 Mr Roper's reply to this submission was that given the culpability in this matter, immediate imprisonment was necessary.
40 On the day when we reconvened, following the plea, Ms Kothrakis submitted that moral culpability was reduced by the circumstances that I have referred to and despite the views of Mr Roper I have already determined that there is a reduction in culpability. Although, as Mr Roper said, he did not dispute the matter went generally to the matter of general synthesis in regard to sentencing.
41 However, despite all of those matters, it was still the view expressed by the prosecution that the appropriate sentence in regard to you must include a period of immediate imprisonment.
42 Mr McCann, if for no other reason but the tragedy that your mother is enduring I have given the plea of your counsel marked consideration. However, ultimately I have found, as expressed by the Crown, that given the culpability and the death in this crime there is no alternative but for a period of immediate imprisonment. I find it would be totally inappropriate for a suspended sentence to be passed, especially in regard to your history.
43 There is, I find, no alternative because of the fact that you have relevant and serious priors. You would have gone through appropriate courses in order to be relicensed. You, like every other member of this community, would have been aware of the immense advertising entered into by the Government to try to educate members of our community that they must not drink and drive, and the grave consequences of which I have just recounted that will befall people who do. In this regard, also, I must take into account the intent of Parliament expressed when it increased the penalty in 2008.
Sentence
44 Would you stand please? I should say all of the factors that I have referred to I take into account so that the sentence I intend to impose is as merciful as I can be in the circumstances.
45 Mr McCann, for the offence of dangerous driving causing death, you are sentenced to a period of imprisonment of three years.
46 I order that the minimum period that you must serve before being eligible for parole is a period of twelve months.
47 I cancel and suspend you from obtaining any license with a minimum period prescribed by Parliament as a period of eighteen months, and I note, as required in that section, that this tragedy and offence has been committed while you were under the influence of alcohol.
48 I declare pursuant to the provisions of s.6AAA of the Sentencing Act 1991, as best as I am able considering the totality of the circumstances but had you not pleaded guilty in this matter you would have been sentenced to a period of imprisonment of four years with a minimum of eighteen months.
49 Ms Kothrakis, is there anything I need to clarify?
50 MS KOTHRAKIS: No, Your Honour.
51 MR ROPER: No, Your Honour.
52 HIS HONOUR: Yes. Take the prisoner away. Yes. I will stand down.
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