Director of Public Prosecutions v McKenzie-Smith

[2020] VCC 239

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02590

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MCKENZIE-SMITH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	11 March 2020
DATE OF SENTENCE:	11 March 2020
CASE MAY BE CITED AS:	DPP v McKenzie-Smith
MEDIUM NEUTRAL CITATION:	[2020] VCC 239

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Mr I. Hill QC with Ms T. Kucinda	Galbally & O’Bryan

HIS HONOUR: 

1Andrew McKenzie-Smith, you have pleaded guilty to one charge of dangerous driving causing death.  That crime carries a maximum penalty of 10 years' imprisonment. 

2You are now 53 years of age.  You pleaded guilty in the ultimate, in circumstances where you could have chanced your arm on a trial.  I accept that remorse accompanies that plea of guilty and that that remorse is indeed profound.  You must also get the utilitarian benefit of that plea of guilty.  Trials of this nature are very distressing for everybody, including the jury and there must be an acknowledgement that a plea such as yours relieves the community of that distress and responsibility. 

3You have no prior convictions of any description and you have no matters pending of any description. 

4There was a delay of some nine months before you were charged and I take that into account.  There has obviously been a delay subsequent to that.  That delay is important in your situation, because it has simply added to the length of time of the anxiety which you have clearly suffered, not knowing what the ultimate outcome was going to be. 

5A summary of the offending is that - and this can be done in short compass, bearing in mind that the Crown opening has been tendered.  On the afternoon of 3 September 2017, shortly after 2 pm, a motor vehicle collision occurred on the South Gippsland Highway at Lang Lang.  Your white Mercedes Benz driving northwest failed to follow a sweeping left-hand bend, crossed over to the opposite side of the road and struck a blue Toyota Echo two-door sedan. 

6The sole occupant of that vehicle was fatally injured.  She was Rosemary Hope, who was, at that time, aged 69.  She had no immediate family and in those circumstances, there is no victim impact statement before me.  That does not detract from the seriousness of what occurred, in some respects, adds a bit of sadness to it. 

7The Crown opening has photographs which indicate how all this occurred and I will do in as shorter compass as I can.  At the time of the collision, you were 50 years of age. 

8The vehicle of Ms Hope was heading southeast.  You, as it has been described, were heading in the opposite direction, towards Melbourne.  Where you were there are two lanes and a situation where an arrow directs you into the second lane, as it then narrows into one lane.  As you approached a driveway to a house, there were turn lanes.  You became confused, I accept, and somehow or other, managed to go into that turn lane and thought that those arrows were directing you into the oncoming lane.  You did that and the collision occurred.  That is describing it in fairly brutal terms, I suppose. 

9There were a number of eyewitnesses to it.  You, it would appear, to have swerved or turned quite quickly and the expert opinion is that it may have been just very soon prior to the accident.  Sometime before, some five seconds before, you were travelling at 88 and at the time of the impact, it is estimated that you were travelling at 77 kilometres per hour.

10Conversations took place between you and other people at the scene of the crime.  It is quite evident and obvious that you were in distress at the scene and in all probability, suffering from shock.  After a short period of time, you called your wife from the scene and you became emotional and started crying.

11You were subsequently tested for alcohol and drugs and poisons and came back with a negative result.  There was no sign of braking from either of the vehicles and it would appear that your vehicle had gone in the vicinity of
1.7 metres into the oncoming lane.  I accept that in these circumstances, that the collision was caused by momentary inadvertence on your part, exacerbated by the road surface being wet and there being an element of glare.  I can accept, because of the photos shown to me by your counsel, that the direction in which you were driving in a darkened situation with the road wet, could understandably put someone in a position where they were not quite sure of their whereabouts.

12When you were spoken to by police, you said, 'I was in the left-hand lane going on the way home and the road veers, there's two lanes that veer as you veer to the right.  I was just veering into the second lane and then just a thud.  I didn't even see the lady in the other car.  I don't know where she came from.  Just like I said, I was in the very left lane, so the' ‑ ‑ ‑

13That confirms what I have just said, that you at least were of the understanding that you were following a sign painted onto the roadway.  I do not think I need to go through the other discussions.  I do not need to go through each and every witness. 

14Whenever there is a loss of life in situations such as this, it must be regarded as serious.  However, in your particular set of circumstances, you were licensed, there is no suggestion of alcohol or drugs, there was no speed involved, there was no, what is euphemistically described as 'hoon driving' involved, there was no fatigue, you were not in a hurry, there is no suggestion you were on the phone, there is no suggestion of there being any distractions, such as a dog in the car or a child or anything like that, your car was in good condition and there is nothing to suggest that you were driving otherwise than diligently.  It is in that situation that this has all come about.

15I am aware of many authorities insofar as these matters are concerned and it is my view that this is one which can be genuinely described as a momentary loss of concentration. 

16In these areas, general deterrence play a significant part.  In your circumstances, personal deterrence, I think much less.  You have not driven since the accident and you clearly have great remorse and it has caused you severe psychological difficulties.  In those circumstances, I think personal and specific deterrence, as I say, play little part.  Denunciation, again in your situation, plays little part.  It is not as if you were drunk or speeding or doing anything of the acts which often accompany this sort of offending.  There must be an appropriate punishment, essentially, for the purposes of general deterrence.

17In these set of circumstances, your counsel has submitted that a community corrections order is within range and the Crown agree with that proposition. 

18I will be referring to the matters personal to yourself in a moment, to indicate that this is, in my view, a truly exceptional set of circumstances and I need to outline those in case others endeavour to use it as some sort of precedent.

19It is often the situation that people in these circumstances have no priors, but you are now 53 years of age and it is your one error on the road.  It is often the situation that people have good work records and it is often the situation that they have dependants.  You, in your circumstances, do not have dependants, but you do have a good work record.  It is a lower moral culpability that is involved and the matters that I will be quoting in a moment that give rise to those truly exceptional circumstances. 

20In this situation, your prospects of rehabilitation  are excellent, though whether you rehabilitate psychologically is entirely another matter.  The risk of you
re-offending, in my view, is nil.  It is a situation where clearly you have
self-punished to an extreme degree and Mr Cummins, who examined you and is obviously well-known to me, is of the view that that self-punishment and those psychological difficulties that would flow from it, they will be irreparable. 

21I think the simplest way of going about this, is to go through the references that were tendered on your behalf.  Your counsel put in very succinct and persuasive submissions and describes what has occurred to you since.  I have already outlined a number of those matters that he has put.

22In these circumstances, people such as yourself are entitled to call upon previous good character and yours is a situation where I think that the references that have been tendered are concise, they are not gushing, they are just simply a description of the person that you have been and unfortunately now are. 

23Mr Andrew Gray, a solicitor, said, 'I, since September 2017, have provided support and limited guidance to Mr McKenzie-Smith' - and I interpolate, he has known you for 20 years, 'who has shared with me the profound impact that this matter has had on both is professional and personal life.  I've become deeply concerned about his personal welfare, to the extent that I ensure that I meet personally with him at least twice weekly and rarely does a day go by during which I would not speak to him by telephone on one or more occasions, during which he would express distress and remorse as a consequence of the incident.  The matter, and in particular, the loss of life of another has had a dramatic effect which haunts him on a daily basis. 

24'Mr McKenzie-Smith commenced a meat wholesaling business some 22 years ago, which had been quite successful, but his business has suffered markedly giving his personal circumstances experienced since the incident in September of 2017.  I'm aware the incident's also impacted upon his personal life and his relationship with his wife of 19 years.  His health has declined markedly since the incident.  I know other members of the McKenzie-Smith family have described Mr McKenzie-Smith's childhood as dysfunctional and despite which he successfully gained an apprenticeship as a butcher, worked his way through the meat trade, to the point of establishing his own wholesale meat business.  Since the events of September 2017, due to his inability to cope on a day-to-day basis, he's been forced to relinquish equity in that business to a trusted employee with whom he now shares ownership of that business. 

25'Mr McKenzie-Smith has been a generous man who has made and continues to make many contributions to his community, including but not limited to,
(a) his untiring support of a charity golf day that' - I am quoting, of course, 'that I've conducted annually for the past 25 years for the benefit of Make-A-Wish Foundation, both in terms of his personal time and financial contribution.  His devotion to an improvement of the Beaconsfield tennis club and in particular, his encouragement of the younger members of that club and his constant struggle to gain funding to improve facilities generally for its members is significant, that he's been the president of the Beaconsfield tennis club for some nine years, (c) his professional guidance and mentoring the support to younger members of the meat and allied trades, and (d) his unselfish (and very private) contributions, both financially and kind to a number of individual and charitable causes in and around the Berwick and Beaconsfield districts, many of which I am acutely aware of. 

26'From my perspective, it is extremely frustrating to witness the diminution and the quality of Mr McKenzie's life, which has been manifested in different ways since the incident in September 2017 that brings him before the court.  I'm aware that he reflects on it and needs to cope on a daily basis of being involved in a collision which involved the death of another individual, something which has had and continues to have a devastating impact on him. 

27'It may sound trite, but I believe it's an accurate observation that no sentence imposed by the court could adequately reflect the sentence that
Mr McKenzie-Smith has imposed upon himself.  Self-imposed sanctions such as cessation of driving for over two years, serve to reinforce the gravity of the incident upon him.'

28A further reference from Mr Clarpogi, who has known you for 11 years, describes how you have been involved in local community events, the same matters that have been referred to by Mr Gray.  'He was one of those people who got things done when others couldn't be bothered.  He never complained or asked for recognition for his efforts.  Andrew never shied away from helping others and always did the right thing by others. 

29'Since the very unfortunate accident, Andrew has refused to drive and has become a very sad and depressed person.  He has withdrawn from a lot of social activities and now struggles with day-to-day life.  To keep Andrew in touch with his support group, I would pick Andrew up from his home early on Saturday/Sunday mornings to drive to National Golf Club, where he's a member, so that he could play a round of golf with other friends and members to give him something else to focus on.

30'A couple of our mutual friends and I have been keeping a close eye on Andrew, in fear of him taking his own life.  We made sure that he would be getting regular support calls from us to make sure he knew we were there for him.  On some occasions, we would chat for over an hour about the accident, how he just couldn't understand how it all happened.  He would talk about how he tried to     replay everything over and over in his head to try and work it out, to no avail.  Every day we speak he says how remorseful he is for taking a life and wish it had been of him instead.  His phone calls now indicate he struggles with sleeping.  The insomnia also seems to be affecting his self-esteem.  Andrew's been forced to sell half of his business and maintaining his farm,' which I will refer to again in a moment, 'has to supplement his income.  It's become extremely hard, as he relies on others to drive him.'

31He points out that there has been a strain on the marriage relationship and I will go into that again in a moment. 

32'He's not the same person I met 11 years ago.  I can only describe him now as a "shattered man".  I'm saddened to think I'll never know the same kind, selfless and sensitive, positive person I first met, he was before the incident.'

33There is a reference from your wife, which says, 'I find it now very difficult to remain with Andrew.'  You have been married for nearly 20 years.  'And he constantly worries about the accident.  Andrew was a happy person with a lot to live for, always busy with his meat trade business, on his farm feeding the cattle and getting the farm ready to live on.  He's now sold half his business that he successfully ran on his own for over 20 years, due to stress. 

34'Andrew will visit the farm once a week now, as he will not drive and he'll get family or friends to take him, if they can.  He now pays a farmhand to feed the cows every second day.  We used to go out for dinners a lot and spend time with families and friends.  We do not go out at all now as a couple and do very little together.  If we do, Andrew will only talk about the accident.  He just can't seem to get over it.  He's sorry for what's happened, but it's taken over him. 

35'The accident has had a massive impact on Andrew's life and he's changed a lot.  There is no communication between us.  I've stayed with Andrew to help him through this, as I can see the impact the accident has had on his life and I worry for him.'

36There was a report - sorry, another reference from an auntie, which is very poignant, in my view.  She describes a background which I do not think I need to go into in detail.  She says, 'I'm basically an auntie to Andrew
McKenzie-Smith.  My late husband, Hugh, was his uncle.  I've known Andrew for a period of 42 years.  In this time I became close friends with Andrew when he was 15 years old.  Andrew comes from a broken home.  His mother remarried and there was a disagreement that occurred.  He was then asked to leave his mother's home.  Andrew then moved to his father's and step-mother's property.  There were no provisions made to accommodate Andrew in the family home at this time.  He was given a bed with the dog in the old dairy. 

37'I was distressed at the time to learn of this and even more so appalled to witness first-hand the conditions in which Andrew was now forced to living in.  Unfortunately due to the circumstances at the time, we were unable to take Andrew in, as we were living in a three bedroom home with five children.  Andrew was treated very poorly by his step-mother.  It was made very clear that his step-mother didn't want him on the property.  I was a witness to this on several occasions throughout Andrew's stay.  Andrew was a quiet, loving young man without a proper home to live in.'

38I interpolate that backgrounds such as that and that sort of upbringing, when come before this court, are usually the property of a man with a long criminal history.  It is very much to your credit that that is in fact not the case.  You do not have an alcohol history and you do not have a drug history. 

39She then goes on to say, as I have indicated, I think, very poignantly that, 'The charges that Andrew is facing now for the day of the accident has been discussed at great length for a period of two years and three months.  These discussions have been face-to-face for the most part, or four times a day on the phone.  I watched Andrew disappear into a world of his own, with sadness and remorse for these charges he is faced with and the loss of the person's life. 

40'I fear greatly for my nephew's life and I've had him on suicide watch since the accident', as indeed have a number of others, that is me interpolating, 'and up to the present time.  Andrew has not been aware that that's been put in place.  I doubt that he knows about his friends doing it either. 

41'There are numerous occasions I've dropped him off at this home and I've been too scared to drive away, in case he takes his own life.  Andrew's Uncle Hugh is buried in the Berwick cemetery within walking distance from Andrew's home.  He looked up to his Uncle Hugh as a father-figure and was very close to him.  He visits the grave on an average of five days a week.  He rings me from the cemetery, but he doesn't disclose where he is.  I know where he is, as I can hear the cars and wind coming through his phone.

42'I've asked him why he goes there and his words are, "I was hoping Uncle Hughie would help me."  She then describes how she has watched you actually breakdown and cry.  Not for yourself, but for the other person's loss of life.  She confirms the damage done to the business. 

43These matters are very much confirmed, in my view, in the report of Mr Jeffrey Cummins and, yet again, that is - we have actually got to tender those.

44EXHIBIT 1 -     Report of Mr Jeffrey Cummins.

45EXHIBIT 2 -     References.

46HIS HONOUR:  He goes through the history, which I do not think I need to go through now.  He talks about your very good work record, how you were able to - in one sense, a self-made man, the buying of property at Inverloch, which is now, I think, almost certainly in jeopardy.  He talks about you having been placed on anti-depressants in the time post the collision.  He says that since the collision, you have seen a number of psychologists and you are finding it very difficult to utilise them. 

47He confirms, as is, I would have thought, fairly clear from all this other material, that you are currently suffering from a post-traumatic stress disorder, which has been triggered by that collision on that day.  And he points out you suffer from the sequala to that. 

48On testing, you test as severely depressed, and severely anxious and his view was, that were you to be incarcerated, you inevitably would become suicidal.

49It is Mr Cummins' view and I accept it, that since this has occurred, your mental health and overall view of life has significantly deteriorated since the collision.  He says, at the end of his report, 'in my opinion, Mr McKenzie-Smith presented as a client/patient, almost probably never make a satisfactory psychological recovery from being the driver of the vehicle which cause another road user's death.  Mr McKenzie-Smith's impressed as an interviewee who was riddled with remorse, somewhat confused about his legal predicament and still struggling to accept that he could have momentarily lost concentration, albeit whilst in his mind, most probably confused at what he regards as confusing road signage.'

50He pointed out that you find it difficult to accept that, for that moment in time, you are to be effectively criminalised. 

51I think that adequately describes all the background to this.  It is a situation where, as a judge, you have many, many circumstances where remorse is put from the Bar table, but it would be my view that the level of remorse that has been shown to everybody, is genuine and to such an extent that I think one sees it very, very rarely, certainly in this jurisdiction. 

52The circumstances are, as I have said, truly exceptional.  Bearing in mind the submissions of the counsel, bearing in mind all those other matters, I think it is perhaps a situation where it would be best if one could make an end of all of this, but that cannot be done.  General deterrence demands that there be a punishment, which does affect other people who can see that even for such a momentary aberration, there will be significant punishment.

53In the circumstances, you will be placed - if you agree, placed on a community corrections order.  It will be with a conviction, which I have no doubt in your personal circumstances, will be a genuine punishment in itself.  The only condition of it will be that you perform 300 hours of community work and it may well be that you will be welcome in that regard.  The corrections order will last for three years.

54I do not think there is anything else I need to say.  Just get him to sign that.  If you wouldn't mind going down with my associate, Mr Hill, if that is all right, or ‑ ‑ ‑

55MISS MacDOUGALL:  Your Honour, there's the issue the licence.

56HIS HONOUR:  Yes.  Well he has not signed this yet, so - yes.  I think he is going to, but ‑ ‑ ‑

57All right, well that CCO's now been entered into.

58In these circumstances, I disqualify - sorry, any licence to hold a - drive a motor vehicle is cancelled, disqualified from obtaining a licence for a period of
18 months. 

59I understand in these circumstances, I have to give a 6AAA direction.  Had this proceeded as a trial, I am not sure what would have occurred, in terms of Crown concessions, but for the purposes of the record, I simply say that, but for your plea of guilty, I would have placed you on a community corrections order, with this extraordinary plea material, for a period of four years, with 500 work hours.

60Nothing else I need to do?  There is no other orders?

61MR HILL:  No, Your Honour.

62HIS HONOUR:  All right.  Yes, thanks for that.  Thanks, Mr Hill.  Thanks,
Miss MacDougall.

63MR HILL:  Thank you, Your Honour.

64MISS MacDOUGALL:  If it pleases the court.

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