Director of Public Prosecutions v McGarrigle
[2022] VCC 1426
•26 August 2022
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS MCGARRIGLE |
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JUDGE: | HIS HONOUR JUDGE BAYLES | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF SENTENCE: | 26 August 2022 | |
CASE MAY BE CITED AS: | DPP v McGarrigle | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1426 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Dangerous Driving Causing Death – Plea of Guilty - Evidence of remorse - No criminal history – COVID-19 - Impaired Mental Functioning.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308; R v Kilic [2016] HCA 48.
Sentence: 3 year community corrections order and licence cancelled and disqualified for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Dunn | Solicitor for the Director of Public Prosecution |
| For the Accused | Mr J. Williams | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Marcus McGarrigle, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty for this offence is 10 years' imprisonment. Your plea of guilty in this matter follows a sentence indication hearing.
2A summary of prosecution opening was filed at your plea hearing and read to the court by Mr Gray, who appeared on behalf of the prosecution at both the sentence indication hearing and the plea hearing. I adopt that summary as part of my reasons for sentence. The main features of the incident the subject of this charge are as follows.
3The charge arises out of a single vehicle collision that occurred on 27 July 2020 on the Forrest-Apollo Bay Road, Tanybryn. The collision caused the death of Conor Chan. Mr Chan was 35 years of age at the time of the collision and lived in Geelong.
4You were 21 years of age and also lived in Geelong. You were the holder of a Victorian probationary P2 medium rigid driver licence. You were driving a 2013 Mitsubishi FM600 Cab Chassis flatbed truck. The truck was registered to your employer, Geelong Plaster Cartage.
5The Forrest-Apollo Bay Road is a winding two-way road with a single lane in each direction. The road runs approximately south-east to north-west. The lanes are divided by painted double white lines which prohibit overtaking in both directions.
6At the point of the collision the south-east bound lane curves to the right. The outer edges of the lanes are denoted by single white fog lines. Outside the fog lines are narrow bitumen shoulders to the road, leading to wider gravel shoulders on the outside of the curve. Towards the outside of the curve, the gravel shoulder falls away. The road is of bitumen construction and in good condition. The speed limit on that part of the road is 80 kilometres per hour. At the time of the collision, it had been raining and the road was damp. It was daylight.
7You and Conor Chan were both employed by Geelong Plaster Cartage, your duties were to deliver plaster sheets to building sites in the Greater Geelong area and surrounding towns.
8On 27 July 2020 you and Mr Chan commenced work at 6am. Your third delivery was of 102 plaster sheets to an address in Apollo Bay. You and Mr Chan loaded the truck and left the Geelong Plaster Cartage yard at approximately 11:30am. The two of you drove in the vehicle towards Apollo Bay.
9
At approximately 1:40pm, you were driving south on the
Forrest–Apollo Bay Road when you lost control of the truck around a right turning bend. The truck left the road and collided with a tree. Motorists in the vicinity at the time of the collision stopped and assisted at the scene.
10One such driver, Carl Seeberg, was the first to arrive at the scene. He stopped his truck beside your truck and activated his hazard lights to alert other drivers. He got out of his vehicle and observed that you were seated in the driver's side of the truck with the door slightly open. You were waving and appeared very distressed. Mr Seeberg asked if you were alone, you said you are not alone and your passenger was 'bad'. Mr Seeberg was unable to see Mr Chan at that time. You screamed out 'I fucking fell asleep'. You told Mr Seeberg to 'call the cops, call the ambos.' Mr Seeberg tried to call Triple 0 but did not have any mobile reception due to the location.
11
Other witnesses stopped at the scene. One witness, Jacob Nicholson, arrived at the scene after Mr Seeberg. Mr Nicholson was able to call Triple 0 at
1.44 pm. A Mr Craig Roosje and Mr Nicholson helped you out of the truck.
Mr Roosje observed that you were very distressed.
12Another witness, Kristen Venn, who is a nurse, stopped at the scene. Ms Venn approached and asked if you were hurt and you said you were not. She also observed that you were extremely distressed, you were sobbing uncontrollably and in shock. She took you to her vehicle and sat you in the front passenger seat. She had a conversation with you during which she asked you what had happened. You told her that, all you remembered was looking up into the mirror and seeing the rear wheels off the bitumen and tried to correct it, lost control and hit the tree.
13Mr Seeberg and Mr Roosje both assisted Mr Chan. He was trapped in the passenger side of the cabin and was unconscious. They each attempted to detect a pulse but were unsuccessful. Local police, ambulance paramedics and CFA members arrived at the scene. Mr Chan suffered multiple injuries and died at the scene.
14
Leading Senior Constable Peter Shelton arrived at the scene and conducted a preliminary breath test on you, that test returned a negative result.
Leading Senior Constable Matthew Roberts who also attended the scene, approached you and had a conversation with you in order to try to determine what had occurred. The conversation was recorded on body worn camera footage and was conducted in the presence of Ms Venn.
15During that conversation, you told Leading Senior Constable Roberts the following:
·You were coming around the corner, you are not sure if you fell asleep or not.
·You remembered looking down and seeing the left wheel going off the road. You tried to correct it but the wheel had come off the asphalt.
·You went into the tree.
·You had been working and had started at 6am in Geelong.
·You informed Leading Senior Constable Roberts of the locations of your deliveries that day.
·You said you were tired, it had been a long drive. You were thinking about pulling over to have a sleep but did not believe there was anywhere to do that along the road.
·You told Leading Senior Constable Roberts that you had slept all right recently.
16At around 3pm, you were arrested and taken to Colac Hospital by ambulance, accompanied by police. Whilst enroute, you underwent a preliminary oral fluid test for the presence of a drug, which returned a negative result.
17At 4:04pm a blood sample was taken from you at the Colac Hospital.
18
You suffered minor injuries as a result of the collision. At 4:20pm
Sergeant Damien Bould took a number of photographs of the collision scene.
19You gave a 'no comment' record of interview on 4 August 2020 and were later charged.
20The blood sample taken from you at the Colac Hospital was analysed and found to contain 0.08 milligrams per litre of Doxylamine. Dr Angela Sungaila provided a report in relation to the presence of Doxylamine in the blood at the time of the collision. Dr Sungaila stated that Doxylamine is a sedating antihistamine which is used as a sleeping medication. It is commonly sold as Restavit. The leaflet provided with Doxylamine, states that (a) it should only be taken at night and (b) drowsiness may persist into the following day. Dr Sungaila stated that the presence of Doxylamine at a therapeutic level in the blood of a driver is likely to cause sedation to the extent that a driver would fall asleep more easily than they otherwise would.
Victim Impact
21
I turn to the victim impact in this matter. Two victim impact statements were filed with the court, on behalf of Conor Chan's sister Ms Olivia Chan, and mother
Ms Fatima Chan. Both victim impact statements were read to the court at the plea hearing by Mr Gray.
22Both of those victim impact statements describe the lasting sadness and loss that this incident has had on their lives.
23Ms Olivia Chan says that losing her brother has changed her as a person. She reports heightened fear for the future, road accidents and concern for her mother. She does not enjoy life as freely and has found it has had a detrimental impact on her career progression. Ms Olivia Chan foresees the need for long-term support and assistance dealing with how it has affected herself and her family.
24Ms Olivia Chan describes the strain on her relationship with her parents, their growing distance, not being able to grapple with their sadness.
25Ms Fatima Chan described the emptiness after losing a child. Before the death of her son, Ms Fatima Chan says she was relatively independent. She outlined the profound impact on her daily life the loss of her son has caused, it has put a significant strain on her relationships, how she feels perceived, and motivation to engage in things that previously brought her joy.
26Ms Fatima Chan says she has been grappling with her grief in various ways, she described the physical toll on her body and her ability to engage with everyday life. The loss of her son has been profound.
27I have read the victim impact statements closely and I take them both into account.
Submissions of the parties
28
I turn to the submissions of the parties. Given that the argument in this matter occurred across two hearings, the sentence indication hearing on
19 and 20 May 2022, and the plea hearing on 14 June 2022, I will deal with the submissions made at both hearings as a whole.
29I received separate written submissions from both parties at both hearings all of which were marked for identification.
30The prosecution case was that you drove in a manner that was dangerous to the public having regard to all the circumstances of the case in that you drove whilst fatigued, you drove a loaded, heavy vehicle on a single lane, winding country road.
31The prosecution drew my attention to the following matters:
·
Immediately after the collision, you said to the witness Carl Seeberg
'I fucking fell asleep'.
·You told Leading Constable Matthew Roberts at the collision scene that you did not know if you had fallen asleep or not. You also said that you were tired whilst driving prior to the collision.
·
The blood sample taken from you at the Colac Hospital showed the presence of 0.08 milligrams per litre of the drug Doxylamine and in your blood at the time of the collision and I was referred to the opinion of
Dr Angela Sungaila about the effects of that medication to which I have referred to above.
·The collision reconstruction evidence suggests that there was no steering or braking input from you until 24 metres prior to the collision. This supports the inference that your failure to negotiate the bend in the road was due to falling asleep.
32Mr Gray submitted that a term of imprisonment was the only appropriate sentence. Mr Gray drew my attention to the maximum penalty being 10 years' imprisonment. Mr Gray submitted that in assessing the objective gravity of the offending the following features must be noted:
·You had recently taken the sedative medication containing Doxylamine, which was at a therapeutic level in your blood at the time of the collision.
·You became aware you were fatigued at some point prior to the collision, in that you considered pulling over.
·You were driving a loaded, heavy vehicle.
·You were driving on a single lane, winding country road.
·You had a passenger in your vehicle.
33Dangerous driving causing death is a category 2 offence. Pursuant to s5(2H) of the Sentencing Act, the court must impose a term of imprisonment unless certain exceptions apply.
Defence submissions
34I turn to the defence submissions. Mr Williams, who appeared on your behalf at both the sentence indication and plea hearings, submitted that the dangerousness was properly characterised as being that you 'failed to pay proper attention for a brief period of time as a result of being fatigued, causing the truck to leave the road and rollover.' Mr Williams submitted that the incident occurred as a result of 'momentary or transitory inattention, arising from tiredness.'
35Mr Williams drew my attention to your comments to Leading Senior Constable Roberts at the scene being, 'I was just coming around the corner, like I said, I'm not sure if I fell asleep for a bit or not. I looked down and I saw my left wheel going off the road and went to try to correct myself and by then my left wheel had just come off the asphalt'. Mr Williams submitted that these comments are consistent with momentary inattention.
36
Mr Williams submitted that the medication Restavit is able to be purchased as over-the-counter medication. You took a therapeutic dose of that drug the night before this incident. Mr Williams informed me that you had had a full and normal night's sleep before commencing your shift at 6am. I note that you told your assessing psychologist, Mr Patrick Newton, that you had sometimes found it difficult to 'wind down' from work and that you had experienced some delay in the onset of sleep, which you treated with Restavit as a sleeping aid. You told
Mr Newton that you estimated you might have taken this medication about once per month in the period preceding the collision. You said that you always follow the directions and never abused this (or any other) medication. You told
Mr Newton that you had not taken Restavit since the collision.
37Mr Williams drew my attention to the following matters:
·You were driving on a wet, dangerous road with a very narrow shoulder.
·There is no evidence that your truck was travelling at excessive speed.
·There is no evidence of any impairment from alcohol or illicit drugs.
·There is no evidence that you had knowingly driven while fatigued.
·There is no evidence that you were distracted or that you were otherwise driving with any disregard toward the interests of other road users.
·There is no evidence that you were not otherwise focused on your driving.
38
At the sentence indication hearing, in both written and oral submissions,
Mr Williams addressed the requirements of s5(2H) of the Sentencing Act and its possible exceptions, and also made general plea submissions in mitigation.
39I will commence with reference to your background and personal circumstances. You were born and raised in Geelong, the third of four children in your family. Your early years were positive, your parents worked hard to support you and your siblings, you were raised in a supporting and loving family. You were an average to good student at school, although you lost motivation and underperformed in your later years.
40You completed Year 12 successfully although you did not sit final exams. You have had some difficulty establishing a stable career direction, having worked as an apprentice chef, but unable to complete your training. You have worked various other jobs but I was told that the incident the subject of this charge and your experience through the criminal justice system has left you uncertain about your career direction, which has been a source of some anxiety for you.
41You have been in a stable relationship with Jasmine for the past two and a half years. You have been cohabitating with Jasmine at your parents' house in recent months. This relationship is a source of support for you.
42In two assessments with forensic psychologist, Mr Patrick Newton, he reported that prior to the collision of July 2020 you had experienced only minor mood variation in response to life stressors. You told Mr Newton that you had sometimes found it difficult to 'wind down' from work and that you had experienced some delay in the onset of sleep, which you treated with the over-the-counter medication Restavit.43Mr Williams submitted that I should find that two exceptions under s5(2H) of the Sentencing Act are made out. The first exception relied upon was under s5(2H)(c)(ii), that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. In support of that submission Mr Williams relied upon a forensic psychological report from Mr Patrick Newton dated 5 May 2022. In that report Mr Newton offered the following opinions:
·You presented for two consultations with Mr Newton troubled by severe symptoms of anxiety. Mr Newton stated that even gentle enquiries about matters connected to the collision were apt to evoke an intense anxiety response. Your anxiety has developed in the aftermath of the collision. Your symptoms continue to cause you severe distress and, even assuming ongoing treatment, the indications are that you are likely to continue to suffer such anxiety for some time yet.
·You described overwhelming emotions at the time of the collision, including feelings of horror, powerlessness and fear. Mr Newton notes that you were described by witnesses as having been 'extremely distressed, sobbing uncontrollably and in shock'. Mr Newton states that the intensity of your experience imprinted a series of intense memories, marked not only by distressing images and heightened emotions, but also by the visceral sense of distress which your proximity to the deceased man evoked. When you learnt that your friend and work colleague had died, you again felt powerless and overwhelmed, experiencing deeply distressing and overwhelming horror mingled with sadness and fear, as well as suffering transient bouts of disassociation which points to the severity of your reaction. Beyond such factors, your own role in the collision severely complicated your emotional response.
·
Mr Newton stated that you clearly developed post-traumatic stress disorder in the wake of the collision. You have subsequently received some counselling under the auspices of the TAC, that is
Transport Accident Commission, however you continue to experience the full spectrum of traumatic symptoms. These include intrusive recollections of aspects of the collision, including most notably the image of your deceased friend, distress at reminders of the collision, a generalised state of heightened anxiety, and repeated attempts on your part to avoid situations or stimuli which might evoke thoughts of the collision.
·You have also been troubled by intrusive memories which have no discernible trigger. These evoke considerable anxiety on account of their unpredictable nature and their impact upon your ability to maintain your composure. As a result of this, you have become isolated socially and reticent to leave your 'home base'. You reported to Mr Newton that you experienced resurgent symptoms at each stage of the legal proceedings and in connection with various meetings required to manage them. The anxiety you experience when discussing the collision directly has also seen you reluctant to participate in more regular treatment, which necessarily involves some grappling with these matters, in turn this has made recovery from your trauma a slow process.
·You experience a sense of regret and sorrow which has interacted with your anxiety to challenge your sense of self. You are assailed by an intensely self punitive inner dialogue that stresses failings. Your self-confidence has been shaken and your self-esteem has been left in a fragile state.
·In short, Mr Newton stated that you continue to experience noteworthy anxiety in response to the collision. Your post-traumatic stress disorder remains active and is far from resolved. Mr Newton noted for completeness that post-traumatic stress disorder is a mental illness under s4.1 of the Mental Health Act, and that your post-traumatic stress disorder results in significant impairment of your mental state in the areas noted under that Act.
·Mr Newton noted that given the level of distress that you continue to experience it would clearly be premature for treatment to be stopped. Without treatment or under circumstances of severely increased stress, there would be a marked and severe risk that your mental health could deteriorate. Such risk would be particularly intense were you to receive a custodial sentence and be separated from your supports.
·Mr Newton also noted, of added concern, you reporting ongoing experience of suicidal ideation, noting that you continue to be troubled by such thoughts on a regular basis. On psychological testing your risk for suicidal and self harming behaviour was assessed to fall in the extreme range. Mr Newton noted that whilst you are adamant that you have no immediate intent to act upon those thoughts and feelings, in light of your higher level of emotional distress and the intrusive nature of this ideation, it is nevertheless considered that you are at a heightened risk for self-harm at times of elevated stress. It is therefore imperative that appropriate precautions are in place to protect you from impulsive acts of self-harm. This would be especially important at the time of sentencing, and particularly if you were to face a custodial disposition.
·In concluding comments, Mr Newton stated
'In a custodial environment, the availability of treatment would be considerably reduced and it is considered unlikely that you would have access to the trauma specific treatment you most required. Further, given the combination of reduced treatment and support together with the increased stress you would be expected to experience, it is almost inevitable that you would experience a marked and pronounced deterioration in your mental state. In light of the sensitive stage of development at which you currently stand it is possible that this could result in long-term impacts on your personality and broader adjustment which would be difficult subsequently to remediate.'
·Mr Newton further states,
'Beyond such considerations, Mr McGarrigle’s youth, his unfamiliarity with the custodial environment and his divergence from most prisoners in terms of demographics would all render him a relatively vulnerable prisoner. I would anticipate that he would experience a difficult time adjusting to the custodial environment and that during any time in custody he would be likely to experience profoundly more severe anxiety than is common for other prisoners and more regular bouts of severe emotional upheaval than is the norm. In light of such considerations it would appear reasonable to conclude that Mr McGarrigle’s experience of imprisonment would be likely to be considerably more onerous than that of a prisoner who was not afflicted by his pre-existing PTSD or who did not suffer his other vulnerabilities.'
·Mr Newton noted that the recovery from trauma is almost always a slow and incremental process that takes place only in the longer term. The provision of specialist trauma focused counselling is the most effective way of facilitating this recovery and for this reason it is strongly recommended that you engage with this as soon as possible. Assuming that you are able to do so, Mr Newton is of the view that there is a foundation for optimism regarding your prospects of recovery.
Prosecution submissions
44
I turn to the prosecution submissions. At the sentence indication hearing, in both written and oral submissions, Mr Gray submitted that you have not established on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burdens or risks of imprisonment. Mr Gray noted that the report of Patrick Newton states that, the treatment to date for your
post-traumatic stress disorder has included a four-week prescription of Seroquel immediately after the collision, and 'relatively infrequent' appointments for trauma focused counselling with a psychologist funded by the
Transport Accident Commission (TAC).
45Mr Gray submitted that there is no evidence to support the assertion that you would be unable to access psychological treatment in custody, in the form of counselling, and/or medication.
46Mr Gray submitted that post-traumatic stress disorder is not an uncommon condition in the general population and indeed in the prison population. It is also a treatable condition. Mr Gray submitted that if the court accepts that post-traumatic stress disorder and suicidal ideation and the symptoms of those conditions amount to 'impaired mental functioning', it is the prosecution’s submission that those conditions do not necessarily result in you being subject to 'substantially and materially greater than the ordinary burdens or risks of imprisonment', particularly where psychological treatment is available, and in circumstances where, on Mr Gray's submission, you have not in fact accessed adequate psychological treatment in the community.
47
At the sentence indication hearing, the prosecution filed a document from the Department of Justice and Community Safety, Justice Health. The document was dated 19 May 2022. It was signed by Mr Scott Swanwick, Director,
Health Service and Clinical Governance, Department of Justice and
Community Safety. The document has a sub-heading: 'Enquiry – Availability of Mental Health Services'. I was not provided with any further information about what enquiry was made to initiate the preparation of that document, and thus what precise question it was addressing or seeking to answer.
48The document provided information to the court about the availability of mental health services in the Victorian prison system, and the management of prisoners 'at rick' of suicide or self-harm. I have read that document and take its contents into account. In particular, under the heading 'health care and treatment - relating to mental health', the document provides the following information:
·On entry into the prison, a person will undergo medical, nursing and mental health specialist assessments. A treatment plan and integrated health care plan will be developed to manage physical health care needs, including the prescription of medications as clinically indicated. This may also include specialist referrals to St Vincent's Hospital for general health matters.
·Likewise, the initial mental health assessment will establish the required treatment plan and mental health recovery plan to manage mental health care needs, including the prescription of medications as clinically indicated. This may also include referrals to a psychiatrist or other specialist mental health clinicians. This mental health recovery plan is an individual plan, developed in consultation with the patient that focuses on recovery and provides direction for treatment and care in the immediate to longer term.
·Whilst in prison the person will have access to a multidisciplinary team of clinicians.
·The health staff will seek and review any collateral community health information that will inform the ongoing treatment plan.
·Further, the documents states that suicide and/or self harm prevention in prison is a key priority. The document describes the processes in place to maximise the safety of 'at risk' prisoners in the prison system.
Analysis
49
I turn to the analysis of the matters submitted in relation to the exception under s5(2H)(c)(ii) of the Sentencing Act. I note that no viva voce evidence was called by either party at either the sentence indication hearing or the plea hearing. There was no viva voce evidence and cross-examination of the author of the Justice Health document. Likewise there was no viva voce evidence called from
Mr Patrick Newton, psychologist, and consequently no cross-examination of
Mr Newton on the opinions that he stated in his report of 5 May 2022.
50The document provided by the prosecution from Justice Health provided me with some information about the availability of mental health services in the Victorian prison system, and the processes of Corrections Victoria in managing prisoners who are at risk of suicide or self-harm. On close analysis, I found the information in that document to be somewhat vague and general in relation to the assessment that I must make under s5(2H)(c)(ii) of the Sentencing Act. It did not provide me with information to be informed, with any clarity, about what treatment you, in particular, would receive for your particular condition, if you were sentenced to a term of imprisonment to be served within the Victorian prison system. There is no information about the specific kind of treatment you would be likely to receive, or the nature, the frequency or the duration of such treatment.
51Of course, that is not a criticism of that document or its author, or indeed of Corrections Victoria in its management of the Victorian prison system. It is simply an observation that the information contained in that document is a limited assistance to me in the exercise that I must engage in, in determining whether the exception is made out under s5(2H)(c)(ii) of the Sentencing Act.
52I am also of the view that the assessment I must make in relation to that exception is not only about what mental health treatments may be available within the prison system, or what precautions are taken by Corrections Victoria to manage prisoners who are at risk of suicide or self-harm, but also a wider assessment of the circumstances of being in custody and the conditions of a custodial setting.
53
The provision in the Sentencing Act directs me to have regard to the burden or risks of imprisonment, to make an assessment of whether you have impaired mental functioning, and if so, whether that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Whilst the nature of treatment available in prison, and the processes of Corrections Victoria to manage the needs of particular prisoners is relevant to that assessment, it is by no means the end of the enquiry, or a complete answer to the enquiry that must be made. In my view, the impact that imprisonment would have on a person with your mental health condition, requires having regard to a far wider range of factors than just the availability of mental health care and treatments in prison or the processes of
Corrections Victoria in managing at risk prisoners.
54
Those factors include: the fact of being removed from the general community and living within the confines of a custodial setting and a prison regime; being removed from your family, your friends, your social environment and network of supports; it includes removing the opportunities for engagement in employment in the community, and meaningful participation in society; it includes living
full-time amongst a prison population, with limited interaction with the outside world.
55I also note that Mr Patrick Newton is a registered psychologist holding endorsed status in the areas of forensic, clinical and counselling psychology. He is a highly experienced forensic and clinical psychologist who has worked extensively within the criminal justice system and has provided expert opinion evidence in a large number of cases in all Victorian courts over a significant number of years.
56I note in particular the following matters from Mr Newton's report:
·Mr Newton states that it is clear that you developed post-traumatic stress disorder in the aftermath of the collision of July 2020. Despite participating in some treatment to address your symptoms, you continue to suffer the core features of this condition.
·Your personality is still in the process of developing. You are ordinarily an extroverted, compassionate and socially orientated individual who places a strong value on maintaining harmony in close relationships and contributing to the community.
·Mr Newton stated that you present as a young man in the grip of significant psychological upheaval. You are clearly grappling with the ongoing effects of PTSD and suffering prominent suicidal ideations and that these conditions require urgent and ongoing treatment.
·
Mr Newton noted that you were prescribed the major tranquilizer Seroquel (quetiapine) which you took for about four weeks and which assisted you to ameliorate the most intense of your acute symptoms you reported not taking any medication at the time of your two consultations with
Mr Newton.
·Mr Newton noted that you participated in some trauma focused counselling with a psychologist funded by the TAC. You told Mr Newton that you meet with your counsellor about once every month and that your counselling focuses on strategies to assist you to manage your anxiety. You told Mr Newton that this counselling has been moderately helpful and that you intend to continue with it for some time. On this point, Mr Newton noted that the anxiety you experience when discussing the collision directly has also seen you reluctant to participate in more regular treatment, which necessarily involves some grappling with these matters. This has made your recovery from this trauma a slow process.
·I note that participation in counselling as part of your recovery is a matter of considerable importance, and to be encouraged. However, I also accept that these difficulties are a function of the anxiety that you experience when engaging in the treatment process.
·
At paragraph 41 of the psychological report, in discussing your treatment needs in the community, Mr Newton makes certain recommendations about those needs, including an increase in the frequency of counselling.
Mr Newton stated, by contrast, in a custodial environment, the availability of treatment would be considerably reduced, and it is considered unlikely that you would have access to the trauma specific treatment you most require.
·Further, given the combination of reduced treatment and support together with the increased stress you would be expected to experience, it is almost inevitable that you would experience a marked and pronounced deterioration in your mental state. In light of the sensitive stage of development at which you currently stand, it is possible that this could result in long-term impacts on your personality and broader adjustment which would be difficult to subsequently remediate.
·Mr Newton also noted your youth, your unfamiliarity with the custodial environment, your divergence from most prisoners in terms of demographics, and states that these matters would render you a relatively vulnerable prisoner. Mr Newton anticipates that you would experience a difficult time adjusting to the custodial environment, and that during any time in custody you would be likely to experience profoundly more severe anxiety than is common for other prisoners and more regular bouts of severe emotional upheaval than is the norm. In light of such considerations it would appear reasonable to conclude that your experience of imprisonment would be likely to be considerably more onerous than that of a prisoner who was not afflicted by your pre-existing post-traumatic stress disorder, or who did not suffer your other vulnerabilities.
57In all the circumstances, and having regard to the diagnosis of post-traumatic stress disorder, and the comments and opinions stated by Mr Newton, I am of a view that you have discharged the onus to satisfy the court on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Accordingly I am satisfied that an exception is made out pursuant to s5(2H)(c)(ii) of the Sentencing Act that overcomes the requirement that in sentencing an offender for a category 2 offence a court must make an order for imprisonment unless certain exceptions are satisfied.
General matters in mitigation
58I turn now to general matters in mitigation. I must make an assessment of the objective gravity of your offending. In written submissions filed at the sentence indication hearing, Mr Williams drew my attention to the fact that the offence of dangerous drive causing death is one that can be committed in a broad range of circumstances, and can involve a range in moral culpability.
59It is difficult for me to make an assessment, with any degree of certainty, about whether you did in fact fall asleep for any period of time whilst driving. It seems clear that the collision occurred as a result of inattention, and that inattention was the result of tiredness.
60It is not clear, the precise extent of the tiredness, or the period of time over which the inattention existed. It is also somewhat speculative, whether your taking of the medication Restavit played a role in this incident, although it is certainly a plausible explanation that is capable of accounting for a level of tiredness.
61I am prepared to accept that the particular circumstances that led to this collision can be described as momentary inattention, or insufficient attention for a short period of time. That inattention was likely due to tiredness, which may be related to the taking of the medication the previous night. However, I also note that the medication is available for purchase over the counter, it is available for use without formal medical supervision by a general practitioner or a written prescription. There is no evidence or suggestion that you took the medication otherwise than in accordance with directions. I was told that you had a full and normal night's sleep and you commenced your shift at 6am that morning.
62This is not a case that involves any other form of dangerousness with respect to your driving. There was no excessive speed, there was no intoxication, there was no erratic or aggressive driving, there was nothing deliberate that you did in the manner of driving or controlling your motor vehicle that created risk or danger.
63In all the circumstances, I am prepared to accept that your moral culpability for this offending is towards the lower end of the range. That, of course, must be seen in juxtaposition with the consequences of the offending, which were catastrophic and tragic. It is for these reasons that sentencing for offences of this kind is so often a complex and difficult exercise. I must take into account a number of matters that are incommensurable. I must impose a sentence that serves a number of competing sentencing objectives.
64
At the plea hearing, Mr Williams also tendered and relied upon a bundle of personal references, written by Anthony Burke, Stephen and
Donna McGarrigle, Michael McGarrigle, Daryl Moorfoot, Stan Hughes, and Michael Robertson. Those references speak of you as a kind, respectful and caring person. You are deeply affected by the incident that brings you before this court. You come from an honest and hardworking family who are all highly distressed by this incident and its traumatic consequences. You are grief stricken and remorseful for your role in this incident. This brief recitation of those personal references does not do justice to their contents and what they say about you, but suffice to say, I accept that you are a person of excellent character, and that you and your family have also suffered greatly as a result of this incident.
65You have no criminal history. You do not present as a risk to the community. Notwithstanding your treatment needs as discussed by Mr Newton, I regard your prospects of rehabilitation as being excellent.
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You pleaded guilty to the charge, you did so during the period of the COVID-19 pandemic. Your plea of guilty saves the court and the community the time and expense of a criminal trial. Your plea of guilty spares the family of Mr Chan the ordeal of a protracted criminal trial. Your plea of guilty has significant utilitarian value. I have regard to the principles stated by the Court of Appeal in
Worboyes v The Queen, and the need for sentencing courts to ensure that a plea of guilty entered during the period of the COVID-19 pandemic results in a perceptible amelioration of sentence. Put another way, I must impose an additional reduction in your sentence due to the utilitarian value of the plea during the period of the COVID-19 pandemic.
67I also have regard to the decision of the Court of Appeal in Boulton v The Queen. I, of course do not consider the principles in Boulton with respect to the application of S5(2H) of the Sentencing Act, or in consideration of the exception. However, following the finding that I have made under s5(2H)(c)(ii) of the Sentencing Act, I do consider it appropriate to have regard to the principles stated in Boulton about the purposes for which a Community Corrections Order may be imposed, and the sentencing objectives that are able to be achieved through the imposition of a properly structured Community Corrections Order.
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In the end, I must impose a sentence that is just in all the circumstances. I must impose a sentence that takes into account the maximum penalty of 10 years; that takes into account the nature and gravity of the offending; and your culpability and degree of responsibility it. I must have regard to current sentencing practices. In that regard, I have reviewed a number of sentences of this court including sentences that consider exceptions under s52H of the Sentencing Act. Noting of course the principles stated by the High Court in
The Queen v Kilic, and the limitations on the use to which comparable cases can be put, I have read and had regard to a number of comparable sentences as providing some assistance to me in having regard to current sentencing practices.
69I must consider that this is an incident where a young man lost his life. I must have regard to the impact of the offence on the victims including the primary victim, Mr Chan, and also Mr Chan’s mother, his sister, who provided victim impact statements to this court. I also have regard to the fact that I am sure victim impact in a manner such as this is something that extends far beyond those who have provided victim impact statements to this court.
70I must have regard to the need for denunciation and general deterrence. I have regard to your plea of guilty, your lack of prior convictions and prior good character, and your excellent prospects for rehabilitation. As I have previously stated, this is a complex sentencing exercise that requires balancing a number of competing factors.
71The sentence that a court imposes for an offence of this kind can never adequately reflect the loss of human life. It can never reflect the grief and trauma and suffering of those who are affected by that loss. I do hope that the conclusion of these legal proceedings is able to bring a measure of closure for all who are affected by this incident.
72Given the finding that I have made under s5(2H)(c)(ii) of the Sentencing Act, and my assessment of the broader matters in mitigation, I will decline to consider the exception under s 5(2H)(e) of the Sentencing Act.
73At the conclusion of the plea hearing I ordered that you be assessed for a Community Corrections Order, I have received and have regard to the assessment outcome report.
74In all the circumstances of this case Mr McGarrigle, you will be sentenced to a Community Corrections Order for a period of three years. The conditions of that order will be as follows:
·You will be required to perform 200 hours of unpaid community work.
·You will be required to attend as directed for assessment and treatment for mental health condition.
·I will order that pursuant to s48CA all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
·I will now read to you Mr McGarrigle the mandatory conditions that are attached to all Community Corrections Orders.
·You must not commit whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary for practical purposes, that being a supervising officer from Community Corrections.
·You must report to the Community Corrections Order specified in the order within two clear working days after the order comes into force. In this case that is the Geelong Office of Community Corrections.
·You must notify the Secretary of any change of address or employment within two clear working days after any change.
·You must not leave the State of Victoria, except with the permission either generally or in relation to a particular case of the Secretary.
·And you must comply with any direction given by the Secretary that is necessary to give effect to the purposes of this order.
·Those are the mandatory conditions in addition to the specific conditions that I have imposed in relation to this order.
75Mr McGarrigle I can only impose a Community Corrections Order upon you, if you consent to being placed on this order. Could I ask you to take yourself off mute now, and I will ask you do you consent to being placed on this Community Corrections Order?
76OFFENDER: Yes, I do, Your Honour.
77HIS HONOUR: Thank you Mr McGarrigle.
78I am required to cancel your licence and disqualify you from obtaining another for a minimum period of 18 months. I accept Mr Williams's submissions in relation to this matter, that you are not a general risk to the community. You have no prior convictions, you are otherwise of good character. I will make an order for the minimum cancellation of your licence for the period of 18 months.
79Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge, but all other matters in mitigation were still present, I would have sentenced you to a period of two years' imprisonment with a non-parole period of 12 months. All right, are there any other matters?
80MR WILLIAMS: No, Your Honour.
81HIS HONOUR: Thank you Mr Williams.
82MR WILLIAMS: As Your Honour pleases.
83HIS HONOUR: Thank you. Thank you Mr Williams for your assistance in this mater and thank you also to Mr Gray who I understand is not present but of course who appeared at the earlier hearings in this matter. Thank you, we'll adjourn the court.
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