Director of Public Prosecutions v McKinnon
[2023] VCC 88
•7 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MCKINNON |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 2 February 2023 | |
DATE OF SENTENCE: | 7 February 2023 | |
CASE MAY BE CITED AS: | DPP v McKinnon | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 88 | |
REASONS FOR SENTENCE
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Subject:Dangerous driving causing death and serious injury.
Catchwords: Guilty plea – below mid-range offending – category two offence – mental impairment exception proved – first offender – excellent prospects of rehabilitation – CCO can meet all sentencing purposes
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).
Cases Cited:Crimes Act 1958 (Vic); R v Verdins [2007] VSCA 102; Director of Public Prosecutions v Lombardo [2022] VSCA 204; Peers v the Queen [2021] VSCA 264; Boulton v The Queen (2014) 46 VR 308.
Sentence: three-year CCO with 300 hours community work, and mental health treatment and judicial monitoring conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr M. White | Bert & Hanke Legal |
HIS HONOUR:
1Jason McKinnon, you have pleaded guilty to:
(a) one charge of dangerous driving causing death,[1] and
(b) one charge of dangerous driving causing serious injury.[2]
[1] Crimes Act 1958 (Vic), s 319(1).
[2] Ibid, s 319(1A).
Circumstances of your offending
2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea.[3] They are agreed facts.
[3] Exhibit A, Prosecution opening for plea dated 25 July 2022.
3On 16 January 2022, around 11:30 am, you were driving a silver 2018 Ford Ranger along the Kiewa Valley Highway, near Dederang.
4As you entered a left-hand sweeping bend you crossed the double white lines, onto the incorrect side of the road. You swerved to try to avoid colliding with an oncoming vehicle, a grey 2012 Ford Ranger. The other vehicle also swerved but, tragically, the vehicles collided head on.
5A front seat passenger in the grey Ranger car, Cherylyn Casey, suffered fatal injuries. (Charge 1 – Dangerous Driving Causing Death).
6A rear seat passenger, Colleen Cooke, suffered serious injuries, including spinal fractures, a herniated abdominal wall and a toe fracture (Charge 2 – Dangerous Driving Causing Serious Injury).
7She was airlifted to Royal Melbourne Hospital for treatment of her injuries. She was an inpatient there for a week before she was transferred to Albury Base Hospital and then Wodonga Hospital for three weeks rehabilitation. In May 2022, the hernia was repaired. She has been left with a frozen shoulder which requires ongoing physical therapy.
8The driver of the grey Ford Ranger, Alan Casey, suffered chest pain from the seatbelt and superficial injuries to his legs and face.
9Your son, who was a rear seat passenger in your car, and you, both suffered minor injuries.
Motor accident investigation
10Detective Sergeant Robert Hay, from the major collision investigation unit, investigated the collision.
11He concluded:
“The collision occurred as the north west bound Ranger (your vehicle) was exiting a gentle left-hand curve.
(Your vehicle) was travelling north-west and had crossed onto the incorrect side of the road prior to the collision. (Mr Casey’s vehicle) was travelling south-east. Both vehicles have made an evasive manoeuvre prior to the impact and the impact has occurred in the south-east bound lane. Neither vehicle appears to have been speeding at impact.
It is my opinion that the driver of the silver Ford Ranger (you) could not have been asleep based on the evidence that the driver made an evasive manoeuvre and had steered through the majority of the curve.”[4]
[4] Exhibit A, at [27].
12Police examined your car. It had no faults, failures or conditions that could have caused or contributed to the collision.[5]
[5] Ibid, at [28].
13Police interviewed you on 17 January 2022.
14You told them you had driven from your home at Dedarang to take your two year old son to the Wodonga swimming pool.
15You said,
“I don’t know what happened leading up to the collision. I remember the collision and then the aftermath… the last thing I remember is being on the wrong side of the road and then the collision happened. I don’t know – if I was distracted – I don’t know what caused that to happen.”[6]
[6] Record of Interview, Q&A 11, 16.
16You said you saw Mr Casey’s vehicle only seconds before the collision.[7] You said you believed you had swerved to try to avoid the collision.[8]
[7] Ibid, Q&A 22 – 24.
[8] Ibid, Q&A 32.
17You said you were familiar with the road, you drove on it daily, you had not consumed any alcohol that day and were not tired. You said you were not using your phone while you were driving. A police check of the phone confirmed it.
Charge and guilty plea
18You were charged with dangerous driving causing death and dangerous driving causing serious injury and bailed to appear in court at a later date.
19You indicated your intention to plead guilty at the first opportunity.[9]
[9] At committal mention.
Victim Impact Statements
20Alan Casey and his wife were married for 51 years. They raised three children on an apple orchard.
21By the time of the accident, they had downsized and were living at a Lavington retirement village where they became friends with Mrs Cooke.
22On the morning of Sunday 16 January 2022, the three of them left the village for a day trip to Mount Beauty.
23In his Victim Impact Statement, Mr Casey wrote;
“I’ll never forget the crunch of the vehicle hitting us. I knew Cheryl was gone straight away… We worked hard all our life, and this was meant to be our time! Now, I’m alone…… It’s hard to be around other people… I’m… unhappy, hurt and lost. I try to keep myself occupied, but it’s hard, I’ve lost my best friend.”[10]
[10] Exhibit B, Victim Impact Statement of Alan Casey dated 11 August 2022.
24In her Victim Impact Statement, Mrs Cooke wrote;
“I saw the car coming straight for us on the wrong side of the road. I heard the cars hit. I saw the glass fly everywhere. I ended up on the floor. But worst of all, I remember seeing Cheryl slumped over the console, and hearing Alan call her name. I wish I had been knocked out and not have this memory constantly with me.”[11]
[11] Exhibit C, Victim Impact Statement of Colleen Cooke dated 11 August 2022.
25She continued:
“I feel the loss of Cheryl, the trauma, flashbacks and the physical pain from the incident from the minute I wake up. I’ve become incredibly emotional. I start crying, and at times this can last all day…”
26With considerable compassion, she concluded:
While I am so impacted by this incident, I do not see the point in sending this young man to jail. He is a young father and husband, and I believe that taking him from his family will only cause more pain for innocent people. It will not bring Cheryl back. It will not change the pain we have all experienced because of this tragedy, including for this young man and his family.
Criminal Record
27You have no criminal record.
Personal circumstances
28You were born on 12 February 1987.
29Your personal circumstances are set out in the report of Dr Roger Blake, forensic psychologist.[12]
[12] Exhibit 4, Supplementary psychological report from Dr Roger Blake dated 20 July 2022.
30You are one of five children. Your family is close and you had a stable and nurturing childhood. After high school, you completed a Bachelor of Applied Science.
31You married in 2011. With your wife, who is a clinical nurse specialist, you have two sons, now aged three and one.
32You are a well-known and respected member of your community. You played AFL and cricket for local clubs. With your brother-in-law, you run a small-scale cattle farm in the district.[13]
[13] Exhibit 11.
33You also work full-time.
34When you left university you worked for a Melbourne based asbestos removal company. Two of your university friends followed the same path.[14] They describe you as a very responsible, kind and caring person. You have spoken with both of them about the fatal motor car accident. They describe you as devastated by the harm you have caused and remorse for it.[15] Two other work colleagues expressed similar sentiments.[16]
[14] Exhibit 13.
[15] Ibid.
[16] Exhibit 16.
35Your own family has suffered tragic deaths. In 2009, your three-year-old godchild died from cancer and, in September 2012, your sister’s husband died. They had a two-year-old child and your sister was then heavily pregnant with their second child. You have done fundraising work to preserve your godchild’s legacy and been a father figure to your sister’s two children.[17]
[17] Exhibit 9.
36You have also helped a friend deal with the loss of his family owned business due to the public health pandemic. He describes you as an outstanding member of your local community. You have spoken to him about your offending. He wrote you are remorseful and live every day in regret.[18]
[18] Exhibit 12.
37You have been working for your current employer since May 2016.[19] You manage an asbestos removal company for him in north-east Victoria and the southern Riverina. He wrote,
“He is so important to our business and a wonderful manager/mentors to some 20 employees”. In recognition of your dedication and commitment he has offered you a partnership in the business.[20]
[19] Exhibit 15.
[20] Ibid.
38Your wife has stuck by you. As she wrote, when she collected you from hospital on the day after the accident “we quickly had to face the reality of the situation as we drove straight to the police station for (you) to be interviewed and charged.”[21]
[21] Exhibit 9.
39She describes you as loving and loyal to your sons and her. She described your pain, deep sorrow and grief. And your consequent mood and cognition swings.
Psychological Opinions
40Shortly after the accident, your General Practitioner referred you to a psychologist for treatment for your emotional difficulties.
41You saw Kristina Gocky on 2 February 2022. You were visibly distressed by the death and injuries you had caused. You presented with great guilt and shame. Your symptoms met the diagnostic criteria for Post-Traumatic Stress Disorder attributable to your involvement in the fatal motor car accident.
42In your counselling sessions, you have taken full responsibility for your actions. Your treatment focuses on processing the grief and addressing the trauma of the accident.[22]
[22] Exhibit 6, Psychological report from Kristina Gocky dated 27 July 2022.
43While Ms Gocky is not a forensic psychologist, when asked to comment, she opined a prison sentence would likely exacerbate your symptoms because of consequent disruption to your therapy and your removal from a pro social environment.[23]
[23] Exhibit 7, Psychological report from Kristina Gocky dated 10 August 2022.
44Richard Brown, from the same practice, took over your treatment in October 2022 when Ms Gocky went on parental leave.[24] He described your current symptoms as moderately severe. In his opinion, you will require treatment for the foreseeable future.
[24] Exhibit 3 Psychological report from Richard Brown dated 24 December 2022.
45On 15 July 2022, Dr Roger Blake, a forensic psychologist, assessed you in a three hour session.[25]
[25] Exhibit 4.
46You presented as a “mentally fragile man in chronic grief and guilt.”
47In his opinion, then, you were suffering depression and anxiety and, given your symptoms, Post-Traumatic Stress Disorder was likely.
48He summarised his assessment of you as follows:
Mr McKinnon has obviously suffered a great deal in terms of chronic grief and he is traumatised. His sense of guilt and responsibility at times seems to be emotionally overwhelming. He struggles to find meaning in his life and it is fortunate that his wife is emotionally supportive of him. This is indeed a tragic situation. I find Mr McKinnon to be a genuinely remorseful person.[26]
[26] Ibid, p 4.
49Dr Blake assessed you again on 17 December 2022.[27] You were often sobbing and struggling to stay composed. To Dr Blake, you appeared to be “a somewhat defeated individual.”[28]
[27] Exhibit 5, Supplementary psychological report from Dr Roger Blake dated 21 December 2022.
[28] Ibid, p 2.
50You completed a comprehensive Personality Assessment Inventory which confirmed a major depressive disorder and Post-Traumatic Stress Disorder, directly attributable to your involvement in the fatal motor car accident
51In Dr Blake’s opinion, a prison term,
“is going to have a negative impact on Mr McKinnon’s precarious mental state and would impair his chances of rehabilitation… He would be an extremely vulnerable person in a prison setting, who would not receive the level of psychological care necessary to treat his fragile mental state.”[29]
[29] Ibid, p 4.
52I accept all psychologists’ opinions which were not challenged.
Defence Submissions
53In comprehensive written[30] and oral submissions, your counsel, Mr White, contended I should not impose a custodial sentence on you.
[30] Exhibit 1, Supplementary defence submissions on a plea of guilty dated 9 January 2023.
54He characterised the dangerousness of your driving as driving on the wrong side of a two-way road causing a head-on collision. He submitted it was momentary inattention or distraction and should be assessed as low-range seriousness for offences of the type.
55In mitigation of penalty, he relied only following circumstances;
(a) you have no criminal history,
(b) you took immediate responsibility for your conduct and its terrible consequences,
(c) you made an early guilty plea which is evidence of acceptance of responsibility for your actions and your remorse,
(d) you have strong family, social and employment supports, and
(e) you have diagnoses of depression and Post-Traumatic Stress Disorder which, in his submission, are likely to be exacerbated if you are imprisoned and would make prison more difficult for you than someone without those conditions.[31]
[31] R v Verdins [2007] VSCA 102 (‘Verdins’), Principles 5 and 6.
56He argued it was open for the Court to depart from the legislative norm of a prison sentence of dangerous driving causing death on two grounds:
(a) firstly, relying on you diagnoses of Depression and Post-Traumatic Stress Disorder and the opinions of Dr Blake and Ms Gorky as to the detrimental impact of prison on you, he submitted I should be satisfied you likely have impaired mental functioning that would make prison substantially and materially greater for you;[32] and
(b) secondly, considering your low end offending and powerful personal circumstances, in combination, he submitted there are substantial and compelling reasons that are exceptional and rare that justify a non-custodial sentence.[33]
[32] Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).
[33] Ibid, s 5(2H)(e).
57He submitted, assuming one of the statutory exceptions is made out, in proper exercise of discretion, I should impose a community correction order upon you.
Prosecution Submissions
58Mr Moore, who appeared for the Director of Public Prosecutions, submitted a prison term with a non-parole period fixed is the appropriate sentence in this case.
59He submitted your offending was serious and, considering you not only failed to keep left of centre, but your car also moved entirely onto to the incorrect side of the road before, too late, you attempted to take evasive action, your offending is not at the lowest end of seriousness.[34]
[34] Mr Moore accepted the offending falls below mid-range.
60He submitted the psychological opinions fall short of proving the mental impairment exception and that the “exceptional and rare” circumstances requirement is not met.
61And, in his submission, there is no scope to depart from the mandated imposition of a prison term.
Consideration
62The law places a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is a serious crime.
63Parliament has prescribed the offence of dangerous driving causing death as a Category 2 offence. A term of imprisonment must be imposed unless a statutory exception is established.[35]
[35] Sentencing Act 1991 (Vic), s 5(2H).
64You drove onto the incorrect side of a country highway. Your vehicle was completely across the midline before, too late, you tried to take evasive action.
65It appears inattention or distraction prevented you from steering a true course on the sweeping bend and for that reason your driving was dangerous.
66However, the whole episode took only seconds. Your inattention was not protracted.
67Your car was in good order. You were not speeding. You were not drug or alcohol affected. You were not fatigued. You were not using your mobile phone.
68While your offending is objectively serious, I assess your driving to fall below the mid-range of dangerous driving.
69When you presented yourself to police, after you were discharged from hospital, you took immediate responsibility for the accident.
70Your early guilty plea is evidence of you taking responsibility and evidence of your remorse.
71You wrote a letter of apology to the victims of crimes.[36] I accept your remorse is genuine and profound.
[36] Exhibit 8, Letter from Jason McKinnon dated 25 July 2022.
72You have no criminal past.
73You have strong family, social and employment supports.
74You also have symptoms of depression and Post-Traumatic Stress Disorder which are likely to be exacerbated if you are imprisoned and to make prison more difficult than it would otherwise be.
75I consider the circumstances of this case as substantial and compelling so as to justify a non-custodial sentence.
76However, it is not possible to conclude that the circumstances are exceptional and rare.
77As the Victorian Court of Appeal recently explained in Director of Public Prosecutions v Lombardo,[37] the mitigating features in your case, in the context of dangerous driving causing death, are “frequently recurring”[38] in our courts.
[37] Director of Public Prosecutions v Lombardo [2022] VSCA 204.
[38] Ibid, [88].
78You have a mental illness. You have been diagnosed with PTSD and Major Depressive Disorder. The immense grief and guilt you suffer in consequence of causing Mrs Casey’s death and Mrs Cook’s injuries intensifies them. Your mental state is fragile and you would be extremely vulnerable in prison.[39]
[39] Exhibit 5, Supplementary psychological report from Dr Roger Blake dated 21 December 2022.
79I am satisfied, on the balance of probabilities, you have a mental illness which would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
80Accordingly, I am satisfied the “impaired mental functioning” exception has been proved.[40]
[40] Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).
81However, that is not the end of the matter.[41]
[41] Peers v the Queen [2021] VSCA 264.
82I have to decide the appropriate sentence taking into account the circumstances of your offending and your personal circumstances.
83There is no statutory requirement that I must, in a case where an exception applies, lean towards a term of imprisonment.[42]
[42] Director of Public Prosecutions v Lombardo [2022] VSCA 204, [97].
84Parsimony and proportionality are fundamental sentencing principle. I must impose the least severe sentence necessary to achieve the purposes of sentencing.
85Also, I must not impose a prison sentence unless I consider a community Correction Order cannot achieve all sentencing objectives.[43]
[43] Sentencing Act 1991 (Vic), s 5(4C).
86As I have said, your offending is objectively serious. The harm that you have caused has been profound. However, there are powerful mitigating circumstances in your favour and I consider it is likely you will never reoffend.
87Overall, I am satisfied a Community Correction Order can meet the objectives of sentencing, in your case.
88A Community Correction Order is a punitive sanction. There is a burden to complying with its conditions and the person serving the order is under threat of imprisonment for its contravention, together with resentencing for the original offending.[44]
[44] Boulton v The Queen (2014) 46 VR 308, [91] and Director of Public Prosecutions v Lombardo [2022] VSCA 204, [99].
89I have had you assessed for a Community Correction Order and you have been found suitable.
90Considering they arose out of a single episode, I will impose an aggregate sentence for the two crimes you have committed.
91Please stand, Mr McKinnon
92By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
93Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of;
· dangerous driving causing death, and
· dangerous driving causing serious injury,
you are convicted and sentenced to a Community Correction Order which will commence today.
94The duration of the order is three years.
95In addition to the mandatory conditions, I order, as a punitive component, that you complete 300 hours of unpaid community work.
96I also include a special condition that you undergo rehabilitation and treatment for your mental health.
97I direct up to 100 hours of your mental health treatment can be credited towards your community work.
98I will also include a judicial monitoring condition. You are to appear in this court on 8 May 2023 at 9:30 am.
99Under the Sentencing Act, dangerous driving causing death is a serious motor vehicle offence.[45]
[45] Sentencing Act 1991 (Vic), s 87P.
100As paragraph 89(2)(a) of the Act requires me to do, I order all licenses and permits held by you under the Road Safety Act 1986 (Vic) be cancelled and you are disqualified from obtaining any further license or permit for the statutory minimum period of 18 months from today.
101While there is some artificiality in the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to 2 years’ and 6 months’ imprisonment and imposed a minimum non-parole release period of one year and three months’.
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