Director of Public Prosecutions v McKay

[2021] VCC 1424

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 19-01963

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW JAMES MCKAY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	28 September 2021
CASE MAY BE CITED AS:	DPP v McKay
MEDIUM NEUTRAL CITATION:	[2021] VCC 1424

REASONS FOR SENTENCE

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik
For the Accused	Mr R. Thyssen

HER HONOUR:

1Andrew James McKay, you have pleaded guilty before me to one charge of dangerous driving causing death.  I annexed the amended summary of prosecution opening to my sentencing remarks but in brief compass on the day in question which was 30 March 2017 at about 10 to seven in the morning, you were the driver of a prime mover truck towing two unladen trailers in what is called a B-double combination.  You were at the time driving as an employee as the holder of a Victorian Driver's Licence and I am satisfied that you were a very experienced truck driver at the time, without a blemish on your record. 

2You were driving on the Glenelg Highway in Coleraine which is a two way single carriage way that lay in a general east to west direction with a moderate downhill gradient for vehicles travelling west.  The road was a bitumen and aggregate construction that was in good condition.  There was a maximum speed of 100 kilometres per hour and prior to commencing to travel downhill towards the collision scene, westbound vehicles (which was the direction you were travelling in, Mr McKay) passed a pole mounted right hand curve and steep descent advisory sign which is approximately one kilometre east of the collision scene, with a large pole mounted 'slippery when wet' advisory sign.

3As vehicles continued downhill in a westerly direction they passed a second 'slippery when wet' sign, and a third 'slippery when wet' sign before passing a pole mounted left hand curve and 80 kilometre per hour advisory speed sign, which is about 230 metres from the collision scene as they approached the left hand curve.  A 90 kilometre advisory speed sign was erected and displayed for eastbound vehicles travelling up the hill.  At the time of the collision it was dark and the road surface was damp.

4At about 6.50 am you passed the Coleraine Racecourse.  You began travelling down the hill into Coleraine.  As your combination, that is of the prime mover and the two empty trailers, approached a left hand curve in the road, about 800 metres west of Racecourse Road, you apparently pulled the hand operated trail brake lever which is attached to the steering column of the prime mover, to slow the vehicle down.  That applied only to the trailer brakes and not the brakes of the prime mover.  This action caused the wheels of the unladen B-trailer, that is the second trailer you were pulling, to lock and as the vehicle moved around the left hand curve the B-trailer began rotating in an anti-clockwise direction and the rear of it swung out into the east bound lane.

5At the same time a Commodore utility driven by the victim in this matter, Shane Murrell, was approaching from the opposite direction and negotiating the right-hand turn.  As the trailer swung into the eastbound lane, the utility driven by Mr Murrell impacted the driver chassis side rail of the B-trailer and then impacted the driver's side rear axle assembly.  Basically, the force of the impact caused the chassis rails of the trailer to bend, the jaws of the fifth wheel turntable on the A-fracture, that is on the A-trailer, that is the first trailer to impact and the B-trailer to detach.

6After the impact the B-trailer continued to rotate in a clockwise direction and it pushed the utility backwards and off the road to the north.  You then brought the prime mover with the A-trailer, after negotiating the curve, to a controlled stop on the southern side of the road.  You then flagged down passing vehicles and emergency vehicles and police attended soon after.

7It would seem that Mr Murrell was killed instantly by the impact.  He bore the brunt of the impact with his side of the cabin area and the car he drove (and I have seen photographs of it) suffered massive impact damage.  Mr Murrell suffered fatal injuries and died at the scene.

8Detectives from the Victoria Police Major Collision Investigation Unit attended the collision scene.  Essentially, it was the prosecution case as a result of the evidence gathered, that the fifth wheel jaws did not fail prior to the collision which was apparently your belief at the time.

9It is the prosecution case, based on largely the evidence of collision reconstructionist Detective Leading Senior Constable Michael Harding, that:

(1) the hand operated trailer brake caused the wheels of the B-trailer to lock and that caused that trailer to swing out into the eastbound lane of the Glenelg Highway colliding with Mr Murrell's utility which was travelling in the opposite direction;

(2) the B-trailer was at least 2.5 metres into the lane travelled by Mr Murrell;

(3) that the impact between the B-trailer and the utility broke the jaws on the fifth wheel of the A-trailer which caused the B-trailer to detach.  That then forced the utility backwards and;

(4) calculating from where the skid marks started, the prime mover was travelling at 83 kilometres per hour.

10This is a summary only (I note again that I have annexed the far more detailed prosecution summary to my sentencing remarks). Essentially the dangerousness of your driving lay in the fact that you applied the handbrake lever as the prime mover and the two trailers you were towing were going around a curve.  You were travelling at 83 kilometres per hour according to the investigations of police and there was a speed factor at a part of the road where the advisory speed was 80 kilometres per hour.  The road was slightly damp and this had more than usual provision to a prime mover which was towing trailers at the time.

11You were tested at the scene for drugs and alcohol, both of which proved negative.  You were interviewed by police.  You were very forthcoming in what you said to police.  It would appear that you had made a number of checks, you had taken appropriate breaks in the journey that you had begun that day at about 4 o'clock in the morning.  You had driven about 220 kilometres with no issues before the accident took place.  It was noted that you had held a driver's licence with B-double multiple combination for four to five years and you detailed what was an extensive driving history with road trains and other multicombination heavy vehicles.

12The charges in this matter were not laid for a good 18 months after the offending.  That is, the offending occurred on 30 March 2017, the charges were not laid until 18 November 2018.  The court proceedings began with a filing hearing on 30 November 2018.  There was a contested committal of two days which was essentially, as I understand it, based on the mechanics, if I can put it that way, and the expert evidence of the mechanics surrounding this situation.  That was held on 25 September 2019.  Ultimately a trial date in June 2020 was vacated due to COVID and then this matter was set down for trial at this hearing and the matter was resolved.

13I accept that although the plea came at a late stage, it is of considerable utilitarian value and I am also satisfied that it reflects remorse on your part for the outcome of this collision, that being the death of Mr Murrell.

14The maximum penalty for dangerous driving causing death is 10 years' imprisonment. 

15Victim impact statements were read out during the plea hearing from Mrs Julie-Anne Murrell, the widow of the deceased man, from one of his sons, Ash Murrell and his daughter, Alannah Murrell.  They were extremely well written, comprehensive victim impact statements which clearly painted a picture of Mr Shane Murrell as a dearly loved father and husband and a hardworking man.  His death has caused enormous sorrow and trauma to the members of his family, in particular Mrs Murrell and that distress and trauma continues to this day.

16Each of the victim impact statements spoke about the author of that victim impact statement's desire that you not be removed from your family and understanding of what occurred, and were in that way completely redolent of the fact that the members of the Murrell family not only loved their husband and father but are also generous and understanding, sensitive members of the community and I commend them on the victim impact statements - they were extraordinarily moving.

17You have no prior convictions of any kind.  I now turn to your personal circumstances.

18You are 33 years of age.  You are married.  You have a stepdaughter and a son and your wife is due to give birth within days of this hearing.  You are one of three children born to your parents.  You were brought up in Ballarat.  Your father is a farmer, your mother worked in the school canteen in Daylesford.  You have an older sister who is a nurse and a younger sister who works for Australia Post.  Like the Murrells it would appear that yours is a hardworking family which contributes to the community.  You yourself have been a member of the CFA for 16 years. 

19You went to school at Daylesford Secondary College to Year 11, you then undertook a four year apprenticeship in farming on the family farm and at the School of Mines in Ballarat.  You undertook a driver's course at Journey Management in Ballarat.  You have a multicombination licence which allows you to drive all trucks, including road trains.  You worked in Western Australia for Toll, Nexus and Sadleir's Transports.  You drove three wagon road trains there for more than three years without incident.  It appears you have driven hundreds of thousands of kilometres driving prime movers without incident.  You completed further training at Toll.

20You settled with your wife in Victoria in the Ballarat area.  You worked for Ballarat Refrigeration and Sinclair Meats.  You left there because of concerns about safety at that firm.  Currently you work on the family farm.  You grow potatoes on about 80 acres that you lease and you also drive trucks for G. Diamond and Sons, driving pigs between Young in New South Wales and Melbourne.  You earn about $900 a week.

21A number of references were tendered on your behalf.  They attested to the fact that you are an extremely hardworking and well regarded employee.  I received references from past and present employers, in particular the reference of Andrew Maher, a friend of yours attests to your emotional reaction to this accident.  Mr Maher stated,

'Andrew contacted me immediately after the accident.  He was extremely traumatised, shocked and in disbelief.  We have discussed the accident on numerous occasions.  He is very remorseful for what has happened.'

22Mr Maher wrote about seeing the toll that this had taken on you, that you were 'struggling mentally to keep it together not knowing what the future holds.'

23I note in the report from Community Corrections who assessed you as being suitable for a community correction order that ultimately the mental difficulties you were having with what occurred, led you to seek psychological assistance and that that has helped you to some extent.  I accept that you are a hardworking man who has supported his wife and family and that you have been hit hard by the consequences of what occurred on that day.

24You were assessed by the Community Corrections Officer as being a low risk of re-offending.  You were not found to have any drugs, illicit or otherwise, or alcohol in your system.  It is accepted by the prosecution that the dangerous driving on that day falls at what is said to be lower end of the scale for offending of that kind.

25Now I want to make it very clear, when a judge refers to an offence being at the lower end of the scale, that is not in any way a trivialisation of the incident itself.  It is part of a sentencing judge's duties to assess where a particular piece of offending falls on the scale of seriousness applicable to that particular charge.  When I say that it is accepted by the prosecution that this offending falls at the lower end of the scale of seriousness for the offence of dangerous driving causing death, that simply means that there are many other cases where persons who have been charged with the charge of dangerous driving causing death have exhibited much more serious behaviour in the driving that made up that offending. 

26In this case it is accepted that the actions by you on that day were momentary and they were not reflective of poor driving by you over a period of time, as is often the case with dangerous driving causing death.  It is accepted that you behaved responsibly after the accident, you stopped, you flagged down passing passers-by, police were called.  You have a long and extensive history, as I have said several times, of driving very heavy vehicles, including road trains.  You have no prior convictions at all and in the period of time since this collision in 2017 you have continued to drive without further incident. 

27This is one of those cases where unusually it is  conceded by the prosecution that despite the tragic outcome of the collision, the court need not proceed to a term of imprisonment.

28I am satisfied, firstly, that you are remorseful for your offending, that you are a person of impeccable prior history, that you are supporting a young family, that you are a contributing member of the community as indicated by your involvement in local sporting clubs and membership of the CFA (and I should add that two of the references refer to your extensive involvement in the CFA) that you are assessed a low risk of reoffending and it has taken, because of COVID, a more than ordinarily long time for this matter to reach resolution in the courts.  Delay is always a significant mitigating factor in cases of this kind. 

29In all the circumstances therefore, I am prepared to place you on a community correction order.  Again I note, that the prosecution does not disagree as to this being an appropriate course.  That is, it does not ask that I gaol you, Mr McKay.  Can you stand up please, sir.

30I can only place you on a community correction order with your consent.  I therefore must explain the conditions of this order.  They are;

(1) that you must report to the Community Corrections Office in Ballarat within two working days of the making of this order, that is by Thursday of this week;

(2) you must report any change of address or employment to the Community Corrections Office within 48 hours of the making of this order;

(3) the order will last for 16 months.  In that time you may not leave Victoria without the permission of the Community Corrections Office;

(4) you must report to and receive visits from the Community Corrections Office;

(5) you must obey all lawful directions of the Community Corrections Office.

31It was noted by the Community Corrections Assessment Officer that you have satisfactorily dealt with the emotional distress that you suffered following this collision and it is not recommended that I impose any mental health difficulties condition and I do not propose to do so.  You have no drug or alcohol problems and I do not need to impose a condition in that regard.  The only special condition that I do impose is that you undertake 150 hours of unpaid community work.

32Do you consent to being placed on the order?

33OFFENDER:  Yes.

34HER HONOUR:  Thank you very much.  Just have a seat, sir, we will get that prepared.  There is nothing else?

35MR MALIK:  The licence, Your Honour.

36HER HONOUR:  Your licence is cancelled and you are disqualified from obtaining any further licence for a period of 18 months.  I understand your wife is due to give birth, you live out in the country and therefore I am prepared to accede to your counsel's request, which was not opposed by the prosecution, that the licence disqualification not commence until 9 October 2021.

37MR MALIK:  Your Honour please.

38HER HONOUR:  Thank you.  We have got a problem with the printer in court so my associate is just going out.  Is there anything else that I need to attend to, Mr Malik?

39MR MALIK:  No, thank you, Your Honour.

40HER HONOUR:  Thank you.

41MR MALIK:  Sorry, Your Honour, just I'm not sure whether Your Honour is required because there's no term of imprisonment imposed but whether Your Honour is ‑ ‑ ‑

42HER HONOUR:  I am not required to and it is under two years.

43MR MALIK:  Yes.

44HER HONOUR:  So I am actually not required to make a s6AAA.  I know that piece of legislation very well, Mr Malik.

45MR MALIK:  Better than I, Your Honour.

46HER HONOUR:  It does not affect you as much.  Yes, thank you.  I will just get you to sign that.  Yes, thank you, we will adjourn to 9.30 tomorrow morning.  I thank counsel for their assistance, thank you very much.

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