Director of Public Prosecutions v Miller
[2024] VCC 1069
•15 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01866
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON MILLER |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 July 2024 |
DATE OF SENTENCE: | 15 July 2024 |
CASE MAY BE CITED AS: | DPP v Miller |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1069 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Dangerous Driving Causing Death; Drive Whilst Exceeding P.C.A; Drive in a Manner Dangerous; Carless Driving; Drive with Passenger in part of Motor Vehicle not designed for Passengers; Exceptional Circumstances.
Legislation Cited: The Crimes Act 1958 (Vic); The Sentencing Act 1991 (Vic)
Cases Cited:DPP v Pan [2019] VCC 360; Daniels and DPP v Currie [2021] VSCA 272; Spanjol v The Queen [2015] VCC 1907; DPP v Lombardo [2022] VSCA 204; Boulton v The Queen [2014] VSCA 342
Sentence:Three year Community Corrections order with conviction & $400.00 fine with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Ms D. Shivakumar |
For the Accused | Mr C. Morgan | Mr G. Clancy |
HIS HONOUR:
1 On 24 April 2024 I indicated what sentence I would impose if you pleaded guilty to a charge of dangerous driving causing death.[1] The sentence I indicated was a community corrections order. You accepted that indication and pleaded guilty to that charge on arraignment the same day. And in giving that indication I provided detailed reasons. I will refer to and repeat a good deal of what I said in those reasons.
[1]Crimes Act 1958 (Vic) s 319(1)
2 The first thing to note is that our Parliament has significantly restricted the sentencing discretion for this offence of dangerous driving causing death. The offence is one of those designated as a category 2 offence.[2] It is, it seems to me, the only category 2 offence that doesn't require a specific intention to commit serious criminal conduct in the charge. Dangerous driving causing death is in essence, falling short of an objective standard required of reasonable drivers. Notwithstanding the vastly different way this crime can be committed compared to other category 2 offences. The result is that a sentencing judge is restricted to imposing a term of imprisonment alone unless one of the strict exempting criteria has been established.[3]
[2]Sentencing Act 1991 (Vic) s. 3(1).
[3]Sentencing Act 1991 (Vic) s. 5(2H) and s. 5(2H)(a) – (e).
3 This can be discerned from the community corrections order sentence that I indicated. I did find that one of the excepting criteria was established. Before setting out again the relevant law with respect to the exempting criteria and why one of the criteria has been established. I will outline the tragic circumstances that brought about the death of the much loved, Lachlan, or Lachie Clulow.
4 As at the 11 September 2021 both you and Mr Clulow were members of the Australian Army. You were only 18 years old and had very recently joined the army. Lauchlan Clulow was 19. You were both based at the army barracks at Bonegilla in north-east Victoria. On 11 September 2021 a group of eight young soldiers from the barracks decided to enjoy camping overnight on a Saturday with four-wheel driving. That was to occur in the bush in the
Chiltern-Mt Pilot National Park also in north-east Victoria. The nearest town to that remote area was El Dorado which itself is a small town outside Wangaratta in north-east Victoria.
5 A group of six men and two women travelled to the campsite in four vehicles. Mr Clulow travelled to the campsite in his VW four-wheel drive Amarok. The vehicle had a step on the outside of the driver's door and a Ute-like tray in the rear. There were other four-wheel drives belonging to others in the group. The group engaged in four-wheel driving in the afternoon before setting up camp. Alcohol was consumed by everyone as the camp was set up.
6 Around 9.30 to 10 o'clock the group decided to explore some of the nearby tracks. Mr Clulow's Amarok was the most convenient vehicle to take. Six of the group, including you Mr Miller piled into the vehicle in the seats and in the rear tray, you were in the rear tray. Everyone including Mr Clulow who drove, was affected to some degree by alcohol. More alcohol was drunk it seems in the vehicle as it was being driven around in the bush.
7 After driving for some time, Mr Clulow turned to head back to the campsite. Some of those in the car changed positions. One of those who moved into the rear tray was wearing a cap, unfortunately the cap blew off as the vehicle was driven along. The vehicle at the behest of those in the vehicle, the vehicle was stopped and a number of the passengers got out to search for the hat.
Lachlan Clulow got out of his car and moved a short distance away.
You Mr Miller then got out of the tray and into the driver's seat and started to drive off.
8 Your decision to jump into the driver's seat and drive was a poor one. As it turned out Mr Clulow, realising his car was being driven off, ran over and jumped onto the driver's door, side step. He was hanging onto the door and perhaps the steering wheel. He was telling you to stop and or, slow down. A female passenger still in the rear was banging on the roof to get you to stop. You drove for about 20 seconds with Mr Clulow hanging onto the side of the car as it were.
9 The track became difficult with a very steep descent and a right-hand curve. You lost control and your left-hand wheels travelled up the embankment which caused the vehicle to roll onto the driver's side. Mr Clulow still on the side step was crushed and died. The female in the rear was fortunately uninjured, you were fortunately uninjured too. As mentioned, everyone had been drinking. Your blood alcohol content was measured at .038. You were a probationary driver and should have been at .00. However, the blood alcohol test was done in the Wangaratta Hospital some significant time later. The expert opinion relied on by the Crown was that, at the time of your driving your blood alcohol was likely between .091 and .143. Mr Clulow was affected by alcohol with a blood alcohol level of 0.14.
10 You told the police that Mr Clulow was intoxicated and you thought when he got out of the car you were less intoxicated and should drive. However, when that's examined you drove off without the accused getting back in the car and discussing that. More relevantly you continued to drive while he was on the side step at night, on rough unfamiliar tracks for 20 seconds. And you lost control causing the car to roll. You were intoxicated far above the .00 required for you.
11 The prosecution contends all this was inherently dangerous and by not braking or stopping when the deceased got onto the side step it was then, and for that reason, dangerous driving. There was a risk to Mr Clulow that he would be seriously injured or die. That risk, tragically materialised. So, to be clear, your dangerous driving was, to continue to drive when Mr Clulow was on the side step of the vehicle. You should have stopped, you did not. Again, this was a poor decision.
12 As to the gravity of this example of the always serious crime of dangerous driving causing death. The prosecution submitted that taking into account the risks, this was an offence not at the lowest end of the spectrum. Your counsel contended that the proper analysis was that this was a unique case where
Mr Clulow unexpectedly jumped onto the car, held on and grabbed the steering wheel, or possibly did. The failure of you to brake in those circumstances, which would have, or could have ameliorated or probably eliminated the risk, was a failure with catastrophic consequences. But given what the deceased did himself, it was not a failure that elevates the gravity above the lowest level.
13 Counsel called in aid the principles in other cases, Court of Appeal cases of DPP v Pan [2019] VCC 360, Daniels and DPP v Currie [2021] VSCA 272 and Spanjol v The Queen [2015] VCC 1907 and contended that the principles in those cases played a significant role. Those principles traversed the tension which needs to be understood. No victim is blamed for the death but what needs to be taken into account in assessing the gravity and the moral culpability of a driver is, it may be at a lower level by reason of significant factors out of an accused control which have an operative impact on the circumstances that lead to and cause the death.
14 In my view these unusual circumstances and the nature of the dangerous driving, that is, to not stop when Mr Clulow jumped onto the side of the car leads to the conclusion that the gravity of this example of dangerous driving causing death is low. Your moral culpability is properly to be seen as low. This is a factor combined with others that is highly relevant to establish the exempting criteria. Your counsel relied on the exempting criteria set out in the Act at s5(2H)(e).[4] I will elaborate on this legal aspect shortly.
[4]Sentencing Act 1991 (Vic).
15 But first I need to return the focus back to the enduring human dimension of this tragedy. The technical legal matters set out in the statute need to be discussed. But as the compelling victim impact statements made clear, Lachan Clulow's death has left his family heartbroken. His father said; to understand, and I take that as addressed to me as much as anyone else;
'To understand the impact on myself and our family you need to understand Lachie. Lachie was a go-getter from when he was little, he wanted to succeed. He wanted the best and the most out of life and had the drive to get it. He loved his family unconditionally and wanted nothing more than to have his own. Lachie was a kid that would stick up for others and look out for those he could see needed a hand. He was the life the party, a joker and generally top bloke. He was always the one that would help with the chores. Since losing Lachie we have been riding waves of grief. Some days are better than others. And sometimes we cry for seemingly no reason. Significant family times and have changed with a constant feeling that something is missing. Celebrations, they're never the same. And we feel guilty if we're having fun. We have pushed on in life as we have no other choice with our children who need us.'
16 He describes;
'The trajectory that is after the accident we felt pain, anger and hurt through to acceptance of this is life for us now with a hole in our hearts that is always there and cannot be filled.'
17 He said importantly I think, and I'll refer to this in Mrs Clulow's victim impact statement. It says, and I think with a degree of generosity and nobility rarely seen in these courts;
'Lachie would want his life to mean something and try to make a positive out of this tragedy and prevent others from a similar fate and the far reaching impacts to families and friends because that was important to him and who he was. We are so proud of Lachie for who he was, what he achieved and what he wanted to achieve but will never be able to.'
18 I return back to a point he made that they;
'all miss Lachie's energy and vibrant personality at family events knowing that we will never see his children is one of the hardest things to take. He so wanted to be a dad and would have been a great father.'
19 Mrs Clulow wrote;
'That they are a tight knit family of seven, husband, wife and five children.'
20 She says;
'Living out of town on acreage with husband Jeff working in the mines in Western Australia through a large part of his childhood Lachie was her right-hand man. He was doer, a fixer, jack of all trades, a master of everything. He was funny, engaging, social butterfly with a zest for life. He was kind, honest and a devoted son, brother and friend to many. Family and friends meant the world to him as he did to them. He was growing up to be a fine young man. Joining the army in 2020 as an apprentice fitter, he had a career and life ambitions that I have no doubt given the chance he would have achieved with merit.'
21 She says;
'The death of Lachie our son on 11 September has been the single most devastating life event that we have been forced to navigate.'
22 She writes;
'I've been through all the emotions as you would expect, months of endless tears and despair and anger, frustration and emptiness. No parent should bury their child yet here we were.'
23 She said;
'Two and a half years later life continues with our new normal, the intense emotions have softened but always there in the background. Significant dates and holidays are celebrated together though tainted with an underlying sadness that Lachie is no long physically with us. Lachie is missed beyond any words that I can adequately articulate. And the ripple effect of his loss is something we will carry through life as we know it.'
24 She says;
'It pains me that we don't get to share life with Lachie and cheer him through his milestones in the world any more. We have all, including Lachie, lost an incredible young man and the endless possibilities of what could have been. No prospect of exploring the world together, partners, marriage or future grandchildren all lost in the blink of an eye which is heartbreaking.'
25 And I referred in what Mr Clulow said and what Mrs Clulow said as well. And she says;
'Despite this I wish, no matter the outcome is that Lachie's life be honoured and meaningful. In his 19 years Lachie made a great impact on how he lived his life and the people he met along the way. We have always brought our children up to find the positive out of a negative. And this is no different. Knowing Lachie as I did, I truly believe he would want us to have the opportunity, including you Mr Miller to live our lives in a positive and productive way. To be the best version or ourselves and use this tragedy as a platform to bring awareness of the fragility of life. To look after one another and potentially prevent other families going through a similar fate.'
26 It is in this court that we see and hear the impact and the utter devastation of the death of a loved one on the road. All range of emotions are expressed. Occasionally there is true nobility of the kind expressed, in particular the last paragraphs of the victim impact statement of Mr and Mrs Clulow but also throughout their victim impact statements. These same sentiments, as I say were seen in Mrs Clulow's victim impact statement and Mr Clulow's. Dealing with the loss of such a vibrant young son can hardly be imagined. To endeavour to honour him by hoping that the other children and they as parents, and even you Mr Miller as the accused can learn and live positively, despite the sadness shows real character.
27 You Mr Miller should not forget what Lachie Clulow's parents said. I have, as I must take into account the impact on them and their whole family of this crime. The questions that I resolved in your favour Mr Miller were firstly, whether the exempting criteria in s 5(2H)(e) of the Sentencing Act is established. And if so, whether nonetheless a sentence other than imprisonment remained a just and appropriate one. Section 5(2H)(e) of the Sentencing Act reads as follows; And I'll paraphrase some of the technical aspects;
'The court is required to impose a sentence of imprisonment unless, there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.'
28 The statue goes on to say;
'In determining whether there are substantial and compelling circumstances, I must have regard to the following; I must regard general deterrence and denunciation of the offenders conduct as having greater important than other sentencing purposes that are set out in s5(1) of the Sentencing Act such as rehabilitation. I must give less weight to personal circumstances of an offender than to other matters such as the nature and gravity of the offence. I must not have regard to your previous good character, an early plea of guilty, or the prospects of rehabilitation or parity with other sentences.' [5]
[5]Sentencing Act 1991 (Vic) s.5(2HC)
29 In determining whether there are substantial and compelling circumstances, I have regard to the following;
'Parliament's intention in sentencing an offender for a category 2 offence, be an imprisonment order should ordinarily be made. And, whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'
30 It goes on to say that;
'Subject to s2H, a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is to be imposed. And, a court must not impose a sentence that involves the confinement of an offender unless it considers a purpose for which the sentence is to be imposed cannot be achieved by a sentence that does not involve confinement of the offender.'
31 So, it is clear those last two sub-sections are part of s 5.3 of the Sentencing Act which are generally applied. But they are subject to s 2H, they are the general purposes. As I said the only exempting criteria relied on by your counsel was s 52H(e).
32 The Court of Appeal in DPP v Lombardo [2022] VSCA 204 another dangerous driving causing death, has identified that the words of the section require a two stage analysis and then an evaluative judgment of the particular factors in a particular case. With respect to the first stage relating to whether there are circumstances that are substantial and compelling, the court stated that the words in the section establish a high hurdle. However, to suggest that the standard required is, 'Almost impossible to satisfy' is an observation that must not be treated as a substitute for the statutory language. Those sorts of observations or glosses on those words of the statute At best describe the apparent operation of the provision but without supplying a guide as to its meaning
33 The Court of Appeal in Lombardo went on to note;
'That is especially so, given the sub-section applies to multiple offences and the degree of difficulty in satisfying the exemption may vary according to which offence is under consideration’.[6]
[6] DPP v Lombardo [2022] VSCA 204 [64].
34 In Lombardo the Court of Appeal went on to say;
'That in considering the language of the statute s52H(e) has two key steps. First, the court must identify whether there are substantial and compelling circumstances. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful. The issues whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criteria by which the substance and compulsive force of the circumstances are to be assessed’.[7]
[7] DPP v Lombardo [2022] VSCA 204 [66].
35 The court went on;
'A second critical step if the circumstances are substantial and compelling in the sense described above, the court asks whether they are also ‘exceptional and rare’. In our view this is to be regarded as a composite phrase imposing a single test rather than two discrete tests’.[8]
[8] Ibid [67].
36 Further on the court said;
'In construing the phase ‘exception and rare’ it is relevant that in the context of deciding whether the circumstances are substantial and compelling. Parliament has stated its intention that imprisonment should ordinarily be imposed for a category 2 offence. The statement of intent should be expressed in moderate terms suggesting that the exceptional and rare requirement has a meaning closer to out of the ordinary.
On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression, ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are however, consistent with earlier case laws such as Hodgson which described provision such as the present, as requiring circumstances of a kind ‘wholly outside’ run of the mill factors typical of the relevant kind of offending.
Accordingly in our view the language properly captures the meaning of the phrase ‘exceptional and rare’ in this context. It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence in this case, dangerous driving causing death.
Applying the two step with a mandated analysis, calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof. It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly relatively common’.[9]
[9] Ibid [69]-[72].
37 The Court of Appeal also made clear those aspects of the statute that I have referred to regarding general deterrence and denunciation being more prominent than any other matter and less weight to be given to personal circumstances. And to an early plea of guilty, although a plea of guilty is to be taken into account not when it was made. And it indicates the cumulative impact of circumstances could be a pathway to justify the departure from a custodial sentence.
38 As I referred to briefly, the principles articulated in Pan, Daniels, Currie and Spanjol regarding aspects of the case which establish circumstances outside an accused control. They played the role in the death here these factors must also be considered with respect to the resolution of the s 52H(e) questions in my view.[10] The point being that there must be, even within this statutory regime consideration and weight given to factors outside the control of an accused. And that is an important matter in this case, given the unusual features of the case regarding what Mr Clulow did and how the prosecution puts the case, or the particulars of dangerousness.
[10]Sentencing Act 1991 (Vic)
39 But in considering the questions and task as outlined by the Court of Appeal in Lombardo and other cases that have followed it, I have within the limits of the statute, that is, that I'm not to consider personal or prior good character. I still note in the combination of matters, the very impressive testimonials from family and the army. In view, what is established is that you have very impressive aspects of your personal circumstances.
40 You are now 20, you are an Indigenous man born in southern
New South Wales. At a young age you moved with your family to Alice Springs. You moved again to Rockhampton in Queensland at the age of nine. You did well at school and socially in Rockhampton. You reached year 10 and decided and applied for an apprenticeship with the Australian Defence Force. You had relatives important to you who had had careers or were still having careers in the Australian Defence Force.
41 Once you were notified that you were accepted into the
Australian Defence Force you decided to go back to Alice Springs to work with your uncle and others in the hard but important work in assisting remote communities as you waited for your apprenticeship in the army to commence. Your uncle wrote a reference to the court in the following terms, he said;
'I'm writing to provide a character reference for my nephew
Aaron James Miller.
42 He's known you your entire life and he attests to your character work ethic and overall conduct. He says that;
'At the age of now 20 you have consistently conducted yourself with maturity, respect and responsibility.
43 As your uncle he's been actively involved in your life serving as a family member and a mentor. He has seen your personal character and assesses you as being well behaved and respectful and considerate. From a young age you exhibited a strong sense of empathy and compassion, always willing to help a hand with family and friends and community. He sees your commitment to your Aboriginal heritage and that's even in the way you embrace the value of cultural traditions and practices.
44 He says that;
'As a member of the Aboriginal community, you take pride in your heritage and actively engage in activities that promote cultural awareness and preservation.'
45 An employer in a fencing job, Mr Bruno of Hardy Fencing Australia wrote that He sees you as an exceptional individual who's consistently demonstrated a strong work ethic, dedication and genuine commitment to your responsibilities. During the time that you worked with his company you exceeded expectations in the various aspects of your role. You had a high level of professionalism and you were proactive in problem solving.
46 He said;
'A notable strength is your ability to work in a team environment. You are not only respected by colleagues but also actively contributed to fostering a positive, collaborative atmosphere within the workplace.'
47 He said that;
'As to your character he sees you as a genuinely good person. You conduct yourself with integrity and honesty and a genuine concern for the wellbeing of your colleagues. You have cultural awareness with respect to Indigenous values and traditions of our company which were evident in your interactions and contributions.'
48 Those who have come to know you in the army also wrote of your many fine and impressive qualities. Mr Aaron Stevens wrote that;
'He's known you for two years and he's seen you develop as a soldier, tradesman and as a person. He sees your work ethic and soldierly qualities as a great example of his family and the Indigenous community in the way you have applied yourself. He sees you as someone of good character, integrity and reliability. You demonstrate a dedication to honesty, hard work and compassion. He's seen you commit to your trade and you have developed as a fit, intelligent, adaptive soldier. Your progress through your trade and military training has put you well above your peers.'
49 He says;
'Since the accident you have worked hard to continue to move forward with your career training whilst balancing the phenomenal emotional toll the event has taken on you.'
50 He notes that;
At the time you made your decision that night that has changed yours and other lives forever.'
51 He speaks about;
'From day one you have shown remorse for the accident and have worked hard to learn from it and move forward.'
52 Christopher Mayer also in the army notes that;
'He's known you for two years he describes you as a person of exceptional perseverance and unrelenting work ethic. He has been impressed with your exceptional qualities as a young man.'
53 He says;
You are hardworking, even in the face of adversity you have shown an un-waiving determination to succeed and you won't give up until you have completed a task to the best of your ability. He has confidence, absolute confidence that you are a person of good character and work ethic.'
54 He concludes;
'You have shown remorse that this event took place and you will live with it for the rest of your life. From his actions, Aaron has shown that he is continuing to make every effort to better himself and work to serve his country.'
55 Your commanding officer, Lieutenant Colonel Wilson wrote of your progress in an important letter of support. He indicated that He had known you in a supervisory capacity as the commanding officer of the Army School of Electrical and Mechanical Engineering over January 2021 to December 2022.
56 He says that of course, as the commanding officer he was intimately aware of the incident that occurred on 11 September into 12 September 2021, and he's observed your behaviour since that time.
57 He notes that 'You started in the army in the electrical and mechanical engineering part of the army in September 2021. As a new trainee you had not come to his attention for any sort of disciplinary or behavioural issues. You struck him as a quiet unassuming young man still finding your way. After 11 September 2021 his awareness of you became more acute. As a leadership team he and his colleagues provided psychological support and closely managed your interaction with the police and court hearings. You received support from those in the army and continue to do so.;
58 He said;
'During these interactions I could see clearly how much the incident had affected him. He was genuinely remorseful, scared and remained in various states of shock as the investigation progressed. I assessed that his reaction to the incident was consistent with a person who has a genuine and deep level of empathy towards those affected. And a keen understanding of the dire circumstances the incident placed him in.'
59 He wrote that;
'I was aware that you had demonstrated immense concentration and commitment to learning post September 2021 through to
December 2022.
60 He says;
'Only you know the source of motivation for that but assume you sought ways to keep yourself busy and fully capitalise on the opportunities that you had. Where others in your position they may have lost motivation and become distracted, however you demonstrated immense character in maintaining good conduct and commitment.'
61 He concludes;
'Mr Miller, Aaron Miller is a good solider and has demonstrated significant potential as a military technician. Given the chance I would see him experiencing a long and successful career in the
Australian Defence Force, harnessing the opportunity to share his experience with others. And contribute to the
Australian Defence Force strategies in minimising harm through poor behaviour.'
62 Your counsel submitted that via combination of factors, criteria of substantial and compelling, exceptional and rare, was made out, justifying the sentence other than imprisonment. In essence, what was put is that there are a number of facts and circumstances quite out of the ordinary. It was far from a run of the mill case. That is, the case by reason of the very unusual, almost unique way, the dangerousness causing the death of Lachlan Clulow occurred as I have endeavoured to outline. But what your counsel said, what needed to be added to, or combined with the other circumstances is that you being in the army, and the army investing in you, to make a contribution as a solider and as a role model. This was a factor that needed to be taken into account in establishing that there were substantial and compelling, exceptional and rare circumstances.
63 That is, these factors were far from the run of the mill in these cases. The point here is that, if incarcerated there is an inevitability that your army career would end. While it remains for the army to assess on a case by case basis that is as to your future. If you are not incarcerated it would give you a far greater chance of remaining in the army. Your counsel submitted that this was not just a beneficial factor for you, but also for the wider community. It would be a significant loss to all if you have your army career terminated.
64 It seems to me you have many fine qualities that are recognised by the army. They remain very supportive as evidenced by their attendance at court and in particular letters from your commanding officer and the welfare support in your workplace. Your counsel argued this investment is significant and a very unusual set of circumstances. That a loss of career and all that has been done by the community to get you to the point of being a well-trained, well regarded soldier. In your case your attributes as an Indigenous man and your unfortunate circumstances of this one colossal mistake which led to the tragedy. Means that you are a useful role model to other young soldiers who may be behaving in risky ways without thinking through the consequences.
65 The prosecution contend that these factors do not get to the very high levels required of being substantial and compelling. And then separately, rare and exceptional. The intent of Parliament was the dangerous driving causing death would see custodial sentences. The common law expressed the view that custodial sentences are to be expected for these crimes. The prosecution in essence said that this was a sad case of yet again an impressive young person causing the death of another impressive young person. But it was not a case where the high hurdles as set out in the Act to allow a non-custodial sentence had been overcome.[11]
[11]Sentencing Act 1991 (Vic) s 5(2H) and s 5(2H)(a) – (e).
66 I have considered the words of the statute. I have read and re-read the important authorities on how sentencing judges are to approach this exemption criteria. I have looked at all the circumstances that are said in combination to establish that exception. I have given the matter the most anxious consideration, including the sad and enduring impact on Mr Clulow's mother and father and wider family.
67 I have considered whether, if the exempting criteria is established whether nonetheless the appropriate sentence is one involving incarceration. Apart from the key Court of Appeal authorities I have looked at sentences with dangerous driving causing death imposed under this statutory regime, including sentences of my colleagues in this court. My own sentences and those of sentencing judges in the Supreme Court in particular, that of the very experienced criminal judges, Justices Fox, Hannan and Champion.
68 In my view what is critical to a finding that the circumstances are substantial and compelling is in combination one, the low moral culpability involved here. Two, which connected all that arises, notwithstanding that you had a blood alcohol content. Because the context was that you did not set out to drive and thus endanger other road users. Rather, when the deceased left the driver's seat for something, you then for some foolish and immature reason, you got in the driver's seat and drove. This is a different environment than what is normally the case. Your environment was rough, unfamiliar tracks at night. But it's not like most of, if not all other cases, someone who has alcohol and should not be driving. That behaviour endangers all other road users or others on the road. That is, until Mr Clulow got onto the car which then moved and grabbed the steering wheel or possibly grabbed the steering wheel. The circumstances certainly are significantly different to what is normally the case of someone getting into their car affected by alcohol after going out drinking with others and endangering anyone in the car and anyone else on the road.
69 Your personal circumstances is another factor. Investment in you as a soldier and what you are and will contribute, they are all factors that I have considered. Not going to the usual understanding of personal circumstances and good character. But going to a more nuanced consideration as articulated by your counsel, that is the investment of the community, and your capacity to be a role model if you remain in the army. These are substantial and compelling matters. In particular as to the likely consequences of a term of incarceration, that is with respect to the loss to the army and the community of a valuable asset. That is you, who could be used as a deterrent to others, a lesson to others in the army. These are factors that could have some positive impact that flows from this tragedy.
70 I am not able to consider the timing of your plea. But the fact of the plea here is very weighty as you had a very viable defence given the actions of the deceased. To not take the family of the deceased and the witnesses, especially from that night through all that occurred, must be acknowledged. So that is also a factor making the circumstances substantial and compelling. As to whether there is established, in my evaluative judgment, circumstances that are rare and exceptional, and not run of the mill, I am comfortably satisfied that this is well established in this case. In comparison to other sentencing decisions and appeal judgments, these circumstances here are most certainly more exceptional, and rare than many that have led to the exempting criteria being satisfied. Again, this relates to the unique facts that led to this tragedy and the path forward for you and the army support for that.
71 My conclusion is, that the combination of all relevant matters in this case makes it clear, or I am comfortably satisfied that the exempting criteria in s5(2H)(e) is established.[12] There are an array of matters taking this outside the run of the mill, or factors raised here that are by no means the run of the mill factors seen in these cases. I am further of the view that with the criteria established, there is no reason to nonetheless impose gaol or a Youth Justice detention sentence. I am of the latter view by a considerable margin. In other words, without limitation on my sentencing discretion, this is a case where a non-custodial sentence would be plainly in my view, just and appropriate. In other words, a community corrections order sentence with no period of gaol is a sentence that sufficiently expresses denunciation and general deterrence. While at the same time facilitating an aspect of rehabilitation.
[12]Sentencing Act 1991 (Vic).
72 The Court of Appeal in the important decision of Boulton v The Queen [2014] VSCA 342 made clear that a community corrections order alone or in combination is a sentencing option that may be appropriate for serious crimes. That in the past attracted significant gaol terms. A community corrections order does punish and it does operate as a deterrent. I was of the view that the community corrections order did not require programs. But the assessment done by the community corrections staff indicate that an assessment and treatment for alcohol use would be appropriate. I'm persuaded that is a program condition that should apply.
73 The assessment said there should be some supervision, I do not consider that is necessary in the circumstances of your past good character. No prior criminal history, none since and what is said about you and the oversight of the army. There does need to be proper punishment by unpaid work. How this is to be achieved while you are potentially based in other states of Australia is a matter that needs to be worked out. I am told that there is going to be, if you remain in the army, you will be transferred or re-allocated to a base in Victoria, allowing for this work to be done. I will defer the immediate starting date of this corrections order for a couple of months so that all of that can be sorted out. If there is a need for there to be a transfer of the corrections order from Victoria to another state, that can occur.
74 As I made clear, the fact of your plea is a weighty matter and thus in indicating what sentence I would have imposed, I made clear to you, that had you pleaded not guilty but been found guilty by a jury. A gaol term would have been inevitable. I am of the view that your remorse is genuine and your attitude since this dreadful night in September 2021 means that there is a solid foundation for you to be law abiding into the future. You are yourself well deterred and your prospects are solid.
75 For committing the crime of dangerous driving causing death, with conviction I place you on a community corrections order for three years. The unpaid work component will be 200 hours of unpaid work. You will also be assessed and treated for alcohol programs. There will be no need for supervision.
76 For the summary offences, that is the summary offence of having alcohol in your system when you drive. The only punishment available is a fine. And you are convicted and fined $400.
77 For having a person in the tray when you drove, again it is a monetary penalty only and you are convicted and fined $400.
78 Your licence needs to be impacted. So I cancel any licences that you have and disqualify you from driving for 18 months.
79 Had you pleaded not guilty to these offences that I have outlined there would have been a gaol term of two years and six months, with a non-parole period of 18 months.
80 Further I make the declaration, pursuant to s89C,[13] that the crime is committed under the influence of alcohol. And that declaration be entered into the records of the court.
[13]Sentencing Act 1991 (Vic)
81 Mr Miller there is a document we've got to produce and you'll sign it if you consent to the order. I am going to summarise it before it gets to you. Everyone on a corrections order has the following base conditions that apply, so as I say everyone.
82 The first is the most important; you must not commit any offence that is punishable by imprisonment in the three years that this order is in place. Should you do that, it doesn't matter what the magistrate does if you steal a can of drink from the service station or commit some other offence, drive when you don't have a licence. It doesn't matter what the magistrate might do you'll come back here before me for breaching the order. And this merciful sentence won't be repeated.
83 The rest of the conditions that apply to everyone are about cooperation. You have got to let the Officer of Corrections know where you are living.
84 You have got to let them know if you change where you are living or change your job. So, if you do not remain in the army and don't live on the base and so on and so forth.
85 You will have to report to a corrections office. We'll have to work that out. That's required. You need to report to them and get the whole process started. It most likely is that it will be the Melbourne office to commence this but if there is a change by reason of you returning to an army base in Victoria that's in country Victoria, we will make that adjustment.
86 You must let the Office of Corrections know and get permission if you wish to go interstate. They will probably give it to you but you have to let them know. That is every trip, whether it be to go somewhere to visit someone for a brief time or part of your army duties. You have got to let them know.
87 So, they are the matters that surround the cooperation. The special conditions that apply to you is, you have got to 200 hours of unpaid work. That means when you have a day off you have got to go and pay the community back as it were, by working in areas other than your profession.
88 You have also got to be assessed and treated for alcohol abuse. So, they are the conditions.
89The order itself can defer its commencement by two months, is what I have got in mind. So, it will start two months from now. It starts on 16 September, 2024 and runs to 15 September 2027.
90 I thank counsel for their considerable assistance throughout. Most importantly I thank the Clulow family for their dignity shown, it's not easy, you're probably worn out by how long this has taken but that does dwell – it does - it's a concern, a very weighty one for me. This case came to our court in November last year. And we'd sorted it by April and then we move on. We just can't control all the stuff before it, but I know that, because I read so often that part of the pain of the impact of crimes is how long it takes. So we're mindful of that, thank you otherwise.
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