Director of Public Prosecutions v McDonald

[2024] VCC 523

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WANGARATTA
CRIMINAL JURISDICTION

CR 23-00115

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY MCDONALD

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Wangaratta
DATE OF HEARING:	22 April 2024
DATE OF SENTENCE:	24 April 2024
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2024] VCC 523

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Two charges of dangerous driving causing death – plea of guilty – utility driven by offender struck two oncoming motorcycles – methylamphetamine detected in preliminary oral fluid test – category two offence – no exception applies – no criminal history – genuine remorse – middle range gravity of offending – licence cancellation and disqualification for a period of three years.

Legislation Cited:      Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).

Cases Cited:R v Levesley (2001) 33 MVR 495; Worboyes v R [2021] VSCA 169; Stephens v The Queen [2016] VSCA 121; Gray v The Queen [2021] VSCA 322; DPP v Huby [2019] VSCA 106; Singh v The Queen [2021] VSCA 161.

Sentence:                  Total effective sentence of three and a half years imprisonment. Non parole period of two years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr P. Chadwick KC (Plea) Mr G. Clancy (Sentence)	Clancy Solicitors Pty Ltd

HIS HONOUR:

Introduction

1Mr McDonald, I will sentence you to a total effective sentence of three and a half years in prison and will set a non‑parole period of two years' imprisonment. I will declare your four days of pre-sentence detention as time served. I will cancel any licence or permit you hold to drive a motor vehicle and disqualify you from obtaining a licence or permit for three years. I will backdate the start of the period of disqualification to the day you were granted bail, namely, 15 December 2021. 

2You pleaded guilty to two charges of dangerous driving causing death. The driving and the resultant deaths arose on 14 December 2021. The circumstances of your offending are described in the 'Summary of prosecution opening on plea' which is Exhibit A.

3The maximum penalty for this offence is 10 years' imprisonment. The offence is a category 2 offence under the Sentencing Act 1991. As such, a sentence of imprisonment is mandated unless an exception applies. There is no exception in your case.

Circumstances

4At about 12.19 pm on 14 December 2021, you were driving your Hilux utility towards Benalla along the Goorambat-Thoona Road. You were alone. The weather was fine, the visibility excellent and the road was dry.

5Your utility struck two oncoming motorcycles. One was ridden by Hugh Stewart and the other by Barry Holland. Both motorcycles had their headlights on. The point of collision was 1.1 metres from the northern edge of the bitumen road surface and your utility was about 1.9 metres over the imaginary centreline of the bitumen surface. Judging from the observations of Dennis Leseberg who was travelling behind and catching up with you, at the time of the collision, your utility was travelling at less than the speed limit of 100 kilometres per hour, very possibly less than 90 kilometres per hour.

6There is some complexity about the configuration of the road where the collision occurred. Shortly before the collision you were travelling west along the Goorambat‑Thoona Road. Shortly after you cross over a bridge, you face a sweeping left‑hand bend in the road. The bridge is shown in images 4 and 5 of Exhibit B. At about the point of collision, another road, Bungeet Road, intersects the Goorambat-Thoona Road on your right and traffic entering your road face what appears to be a 'give way' sign. The bend is shown in images 6 and 7 while the point of impact in image 8. As you proceeded on the bend to the point of collision your vision of oncoming traffic on the Goorambat-Thoona Road was obscured by trees. This is shown in image 5. Given the narrowness of the Goorambat-Thoona Road in the vicinity of the accident, a prudent driver should hug the edge of the bitumen and not drive with much of his vehicle on the wrong side of the road, as you did.

7Following the collision, you stopped and called Triple 0. Mr Stewart died at the scene of the accident. Mr Holland did not die until 8 January 2022. While at the scene, one of the police officers spoke to you and you told him:

'I just came around the corner and I don't know what it was, the bike was in front of me and bang. I don't even know mate, really.'

8You undertook a preliminary breath test which did not indicate the presence of alcohol. However, a preliminary oral fluid test indicated the presence of methylamphetamine. You were then taken to the Benalla Hospital where a blood sample was taken.

9Subsequent analysis of your blood sample detected 0.15 milligrams of methylamphetamine per litre and 0.04 milligrams of amphetamine per litre. A forensic physician, Jason Schreiber, considered the level of methylamphetamine was biologically significant and affected your driving skills.

10At a police station, you were interviewed by the police but gave no comment answers.

11The condition of your utility did not cause or contribute to the collision. You were not using your mobile phone at the time of the collision.

Criminal history

12You have no criminal history. You were 35 when the collision occurred. You must be given credit for your good character until then. The nature of your character and work ethic is attested to by Graeme Hooper, Emma McCormack, your partner, your parents and your three siblings.

13I appreciate my sentences will cause problems for your partner and your children. They will also cause problems for your parents in the maintenance of their properties. Although your counsel did not raise hardship and for good legal reason, many of the letters do. The law precludes me from considering any hardship caused to others by your sentences unless the circumstances are exceptional, which they are not.

14On the other hand, the issues set out by your partner would be issues of concern to you, in particular, how she will manage without you and how the children will cope with their individual problems. I do take into account the effect upon you.

Victim impact statements

Shirley Holland

15On 18 April 2024, Shirley Holland made an impact statement. She is the widow of Barry Holland. They were together since their teenage years.

16She describes him as her husband, her best friend, her confidant and the love of her life. His death has changed her life forever with each day feeling like an uphill battle filled with grief, loneliness, memories of their life together and the ending of their future plans.

17She takes anti-depressant medicine. Without that medicine she feels like dying because life is not worth living without her husband.

Graham Holland  

18Graham Holland is the younger brother of Barry Holland. He made an impact statement on 18 April 2024. His statement details the events of his brother's time in hospital and the attempts to save his life, including the amputation of a leg. Owing to COVID-19 restrictions, he never saw his brother in person before he died, a matter of great regret to him.

Narelle Barnes

19Narelle Barnes is the only daughter of Barry Holland. Her father was more than a parent, he was her 'rock' and 'guiding light'. His death has left a void in her heart which will never be filled.

20Like her uncle and mother, she had to endure the weeks leading up to her father's death. She could not work and helped her mother. 

21She was never able to speak to her father. She did see him in hospital. His injuries were dreadful. She too takes anti‑depressant medicine in order to cope.

Personal

22You are now 38. You were born in Sydney and are the youngest of four children. At secondary school, you were a fine rugby league player. You captained your school side and played in the NSW combined Independent Schools rugby league team. 

23After completing secondary school, you completed a plumbing apprenticeship and then worked as a plumber for six years.

24You left home at 17 and went to live with your sister in Sydney. Meanwhile, your parents moved to this State. At the age of 22, you followed them and continued working as a plumber.

25Shortly after arriving in Victoria, you met Nicole Ritchie. Your relationship has lasted 15 years and there are two children, 8 and 13.

26At 29, you stopped plumbing work and transferred to the wool industry. You are now working as a shearer.

Discussion

27Section 5(1) of the Sentencing Act 1991 recognises five purposes of sentencing:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or similar character;

(c)   to enable an offender's rehabilitation to be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and

(e)   to protect the community from the offender.

28As is the case with the offences of culpable driving causing death and dangerous driving causing death, the role of general deterrence is significant in sentencing. Speaking about the offence of culpable driving, Winneke ACJ said in R v Levesley[1]:

'… that those who drive motor vehicles on our roads must, by appropriate punishment, be deterred from doing so irresponsibly and without regard for the lives and safety of others.'

[1] (2001) 33 MVR 495 at [13].

29In this case, denunciation goes hand in glove with general deterrence. The driving of a motor vehicle dangerously carries the risk of causing serious injury or death to others. Motor vehicles usually develop considerable momentum when in motion. Their potential to cause injury can be very significant. Before he died, Mr Holland suffered extremely serious injuries resulting in the amputation of a leg. Mr Stewart's injuries were so severe he died at the scene. My sentences must also serve the sentencing purposes of denouncing these offences.

30I agree with your counsel there are other purposes of sentencing to be considered but general deterrence and denunciation assume an importance in this type of offence which may be lacking in other types of offending. One can see that in the effect on the family of one of the deceased. I daresay it had an adverse effect on the family of the other victim. 

31Remaining with general deterrence, your counsel submitted I should impose a shorter than normal non-parole period. Although there is no set formula for the fixing of a non‑parole period, he was submitting I set a shorter period than is usually the case. I will not do that because it would undermine the effect of my sentences from the perspective of general deterrence and denunciation. 

32Both the sentencing purposes of specific deterrence and protecting the community from you have no role to play in your case because your prospects of rehabilitation are excellent. From what I have read you are a decent family man. You are devoted to your family. You have no criminal history. You are genuinely remorseful. You have said as much to family members. You assisted at the scene of the accident. You co-operated with the police. You have very strong family support. Your use of methylamphetamine was due to the unusual employment situation you found yourself in due to the pandemic and not due to an addiction.

Nature and gravity of the offences

33In pleading guilty to the charges shows your acceptance that your driving was dangerous. Through your counsel, you point to certain factors which make that so:

(a)   your car was partially on the wrong side of the road when the collision occurred; and

(b)   the effect of methylamphetamine could have contributed to your driving on the wrong side of the road.

34You had taken methylamphetamine to combat your fatigue because you had been shearing from 7 am to 9.30 pm, seven days a week for several months. You were self-employed as a shearer. The pandemic deprived you of potential employees to help with your work. The taking of methylamphetamine was not an addiction. 

35In criminal cases, the judicial officer must assess the gravity of the offending. Usually, the assessment results in placing the offending in a category. In the case of the offence of dangerous driving causing death the standard direction given to juries on 'dangerousness' includes the following:

'… remember that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes. For this element to be satisfied, the accused must have driven at a speed or in a manner that significantly increased the risk of serious injury or death.'

36For many years I was a magistrate. I heard many cases of dangerous driving, being an offence under the Road Safety Act 1986. In some of those cases, the degree of dangerousness was grotesque and incontestable: the driving was protracted and accompanied by many infringements of the traffic laws to the danger of others. In all of those cases, by remarkable good fortune, no one was injured or killed.

37Your counsel submits the degree of dangerousness was at the lower end of the spectrum while the Director's counsel submits it was at a higher level. Your counsel pointed to several absent factors: no evidence of you drinking alcohol beforehand; or of excessive speed or erratic driving leading up to the accident.

38Your driving significantly increased the risk of serious injury or death by driving into a sweeping bend, partly on the wrong side of the road, where you could not see the oncoming motorcycles. The point of impact was near to the intersection of the road you travelled and another road. Since you were familiar with this intersection, even apart from the warning sign of its presence, this should have warned you of the need for care.

39In Exhibit A, the quoted opinions of Dr Schreiber are taken from his statement. Despite giving evidence at the committal hearing, neither party quoted from his evidence in that hearing. The most definite of the three quotations from his statement says your driving skills would have been adversely affected by the effects of methylamphetamine. One of those skills must be the ability to pay proper attention to your surroundings causing you to drive your utility partly on the wrong side of the road while negotiating what is, in effect, a blind corner.

40The fact of taking methylamphetamine and driving with it in your body is an offence in its own right. The acceptable limit of that drug for driving purposes is zero. You should not have been driving at all at that stage.

41Nonetheless, I would not assess the gravity of these offences at the lower end of the spectrum of seriousness as your counsel submitted. I would assess it above that and slightly below the middle of the range.

Guilty pleas

42There is a chronology in Exhibit A. It sets out the court events in your case in this court and the Magistrates' Court. You were charged on 13 December 2021. There were two committal mention hearings and a two-day committal hearing in the Magistrates' Court. There were many court events in this court before you offered to plead guilty to two charges of dangerous driving causing death on 8 February 2024. In terms of the timing of your indication to plead guilty, they occurred at about two‑thirds of the process starting with the laying of the charges and ending with a verdict of a jury. If the case had not resolved following the case assessment hearing, I would expect several further court events before a jury was empanelled to hear the trial.

43There are benefits of your guilty plea. First, it is an emphatic public acknowledgement of your offending. Pleading guilty puts the issue beyond doubt.

44Second, it relieves the witnesses of the need to give evidence against you in a trial. Most of the potential witnesses would have been experienced in giving evidence and, as such, the process would not be overly difficult for them. On the other hand, the families and friends of the deceased would have had to endure witnessing a trial. That would have been difficult.

45Third, you have assisted the criminal justice process. You have removed your cases from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and a week or more. Avoiding that is a considerable benefit to the criminal justice system.

46Fourth, the crisis addressed in Worboyes v R[2] and other cases has abated. The sense of crisis has disappeared. Neither counsel raised Worboyes and I consider the views expressed in that case are no longer applicable.

[2] [2021] VSCA 169.

47Overall, your guilty pleas entitle you to a sizeable discount on the sentences which would have been imposed if you had pleaded not guilty to the charges but had been found guilty after a trial.

Current sentencing practices

48At the plea hearing, neither counsel drew my attention to any cases in this court or the Court of Appeal dealing with this offence. Since I have recently dealt with persons charged with the same offence, cases have been drawn to my attention. Yesterday, counsel were advised I have had regard to the following judgments of the Court of Appeal in the cases of Stephens v The Queen[3], Gray v The Queen[4], DPP v Huby[5] and Singh v The Queen[6].

[3] [2016] VSCA 121.

[4][2021] VSCA 322.

[5][2019] VSCA 106.

[6][2021] VSCA 161.

49Stephens was decided in 2016 and is important because the court stated the need for an uplift in the then current sentencing practices for the offence of dangerous driving causing death. It noted the sentences imposed for the offence at that stage did not give effect to the decision of Parliament to increase the maximum penalty from five years to 10 years' imprisonment.  

Sentence

50On Charge 1, I sentence you to three years' imprisonment.

51On Charge 2, I sentence you to three years' imprisonment.

52The base sentence is the sentence on Charge 1. Six months of the sentence on Charge 2 will be served cumulatively upon the base sentence. The total effective sentence is three and a half years' imprisonment. I will set a non‑parole period of two years' imprisonment.

53I will declare your four days of pre-sentence detention as time served.

Licence

54A condition of your bail prevented you from driving a motor vehicle. You have obeyed that condition. In relation to both charges, I will cancel any licence or permit you hold to drive a motor vehicle and disqualify you from obtaining a licence or permit for three years. I will backdate the start of the period of disqualification to the day you were granted bail, namely, 15 December 2021.

S6AAA

55If you had pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a total effective sentence of four and a third years' imprisonment with a non-parole period of two and a half years' imprisonment.

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