Director of Public Prosecutions v Moloney
[2022] VSC 393
•14 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0121
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOSHUA MOLONEY | Accused |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 July 2022 |
DATE OF SENTENCE: | 14 July 2022 |
CASE MAY BE CITED AS: | DPP v Moloney |
MEDIUM NEUTRAL CITATION: | [2022] VSC 393 |
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CRIMINAL LAW — Sentence — Drive in a manner dangerous causing death — Plea of guilty of significant utilitarian benefit — Collision caused by driver’s inattention to cyclist on highway— No alcohol, drugs, fatigue or high speed involved — Vulnerability in custody —Evidence of remorse — Category 2 offence — Court required to impose custodial sentence unless an exception under s 5(2H) of the Sentencing Act 1991 (Vic) exists — Absence of exceptional and rare circumstances — Primacy of general deterrence in sentencing offences of this kind where offender is otherwise of good character — Very good prospects of rehabilitation — s 319(1) Crimes Act 1958 (Vic); ss 3, 5(2H), 5(2H)(e), 5(2HC), 5(2I), 89(1) and 89(2)(a) Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Stephanie Clancy | Office of Public Prosecutions |
| For the Accused | Jason Gullaci | Tony Hannebery Lawyers |
HIS HONOUR:
Introduction
Joshua Moloney, on 10 January 2022 in this Court, you pleaded guilty to one count of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958 (Vic). This concerned an incident in which you were the driver of a motor vehicle which struck and killed Michelle Lisa Ruitenbeek on Nepean Highway, Chelsea in the early hours of 28 March 2019.
The maximum penalty for the offence you committed is 10 years imprisonment.[1] It was originally 5 years imprisonment but was increased to ten years for offences committed after March 2008.
[1]Crimes Act 1958 (Vic) s 319(1) (‘Crimes Act’).
Under the Sentencing Act 1991 (Vic), the offence is a category 2 offence which means that a custodial sentence must be imposed unless certain circumstances apply. I am also required to disqualify you from holding a driver’s licence for a period of at least 18 months.[2]
[2]Sentencing Act 1991 (Vic) ss 89(1) and 89(2)(a) (‘Sentencing Act’).
On 6 July 2022 I heard a prosecution opening, received victim impact statements and heard submissions from your counsel on sentence and responses from the prosecutor. It is now my responsibility to sentence you for your offending.
Circumstances of offending
On the morning of 28 March 2019, you were driving south along the Nepean Highway, Chelsea in your Mitsubishi Triton vehicle, heading to work in Seaford. You were not speeding. As to be expected at that time of the morning it was not fully light but neither was it completely dark. There was artificial light along the roadway.
Ms Ruitenbeek was on her bike and training for triathlons. She was also riding south along the same route, ahead of you and riding to the left of the left hand lane.
The collision occurred on the Nepean Highway next to Chelsea Railway Station between the intersections of Chelsea Road and Argyle Road and opposite a strip of shops. The bitumen road comprised two lanes of traffic in each direction. North and south bound traffic were separated by a solid white line in the middle of the road. A broken white lane separated the other lanes. There was no parking on the road’s eastern side adjacent to the station. The speed limit varied between 40km/hr and 60km/hr along the highway, but was 60km/hr at the point of the collision. There were streetlights illuminating the area.
CCTV cameras recorded Ms Ruitenbeek cycling along the Nepean Highway, followed by you, including just prior to the collision and, in the reflection of a window, events immediately after impact.
About 5.38am, CCTV footage recorded Ms Ruitenbeek cycling south past Radio Release at 387 Nepean Highway. She was in the left lane heading towards the intersection of Chelsea Road. The high intensity flashing red light attached to the rear of her bicycle and a high intensity front white light on the handlebars were both operating and visible to the camera.
Ms Ruitenbeek was riding close to the side of the road. About 40 seconds later you were recorded driving your vehicle past the same spot, also in the left lane. At this point, there were no other cars driving along your side of the road though there was traffic in the opposite direction.
Ms Ruitenbeek would have stopped at traffic lights at the Chelsea Road intersection, reducing the distance between her and your vehicle.
At about 5.39am CCTV footage recorded Ms Ruitenbeek cycling past the Salvation Army at 407 Nepean Highway. She was still in the left lane. Her lights were on. You were driving immediately behind her in the same lane.
A Subaru Liberty station wagon driven by Braeden McNee passed on the other side of the road. Mr McNee saw Ms Ruitenbeek and your car before the collision. He noticed, amongst other things, that Ms Ruitenbeek was in a solid position, moving at pace on her bicycle. He saw your vehicle driving in the southbound left-hand lane. He estimated it was driving at the 60km/hr speed limit, or slightly faster.
The collision occurred just as Ms Ruitenbeek and your car passed out of frame of the CCTV camera. However, the reflection of a window of a shopfront opposite captured some of what happened after your vehicle struck Ms Ruitenbeek. It shows sparks behind your vehicle, the flashing lights of Ms Ruitenbeek’s bike underneath and your ute bouncing over Ms Ruitenbeek and her bicycle and continuing out of the camera’s reach, with Ms Ruitenbeek and her bicycle remaining behind.
Ms Ruitenbeek’s bike was destroyed and she was critically injured.
The Crown case is that, having regard to the circumstances, you were was not paying proper attention when you hit Ms Ruitenbeek, such that you were driving in a dangerous manner. Ms Ruitenbeek was riding, clearly visible, immediately in front of you in the left lane in an open stretch of road for a prolonged period. The area was lit by streetlights and the headlights from your vehicle and Mr McNee’s car.
The deceased woman was dragged along the road and under your car for a considerable distance and time with no attempt by you to promptly brake or stop, presumably because you had no understanding at all of what had just happened. You thought you had some kind of a small pole.
Mr McNee heard the collision just after he passed your vehicle. He looked back in his side-view mirror and saw sparks coming from the middle of the rear of your vehicle, which kept driving. Peter Pierson heard the collision from inside a toilet block next to the train station, where Mr Pierson was working as a cleaner. The noise was so loud he feared that a vehicle might crash into the toilet block.
As a result of the collision, Ms Ruitenbeek sustained extensive injuries, including a fractured skull and brain trauma, which ultimately led to her death.
You stopped your vehicle opposite 426 Nepean Highway because you had some sense that you had hit something. You got out and walked to the front passenger’s side and looked at the front of the vehicle and then returned to the driver’s side. Exhibit B on the plea was photographs of the damage to the front of your vehicle, which I accept looked relatively minor.
When Mr Pierson immediately left the toilet block to see what had happened, he saw Ms Ruitenbeek lying in the gutter, with bruising and a shoe missing. He saw bicycle parts nearby. He looked south and saw your vehicle and called out saying, ‘Come back, come back’. Clearly, you did not hear him because you did not respond. There was nothing urgent about your departure from the scene.
Mr McNee did a U-turn, driving his Subaru back towards Ms Ruitenbeek. He also saw your vehicle stop and pulled up about 50 metres behind you. The engine of your vehicle was still running and its lights remained on. Mr McNee could see the remains of the bicycle between him and your vehicle. The red taillight of the bicycle was still flashing. Mr McNee walked towards Mr Pierson and Ms Ruitenbeek. He saw Ms Ruitenbeek lying in the gutter in a foetal position with obvious injuries. He started walking back to his car to get his phone, which he had left in his car, to call “000”. As he did so, Mr Pierson yelled out to him, alerting him to the fact that you were driving off. Mr McNee pursued you and about 800 metres along the Nepean Highway, at the Frankston end of the Chelsea shops, he caught up and saw and recorded your registration number. He entered this into his phone about 5.42am. He then returned to try to assist Ms Ruitenbeek. Mr Pierson was still with Ms Ruitenbeek. Others had stopped to assist and call “000” for assistance.
At about 5.45am, police officers attended, assisted and obtained details from those present, including your registration number. Police conducted observations and took photos. An ambulance attended. Paramedics provided immediate assistance to Ms Ruitenbeek, before transporting her to hospital about 6.15am. Ms Ruitenbeek received emergency treatment at the Alfred Hospital, including surgery. There was a worsening of her intracranial injuries. Following a family discussion, Ms Ruitenbeek was palliated. She later died.
At about 5.53am you arrived at work at CSA Specialised Services in Seaford. You briefly engaged in general chitchat with manager, Wesley Millar.
At about 6.16am you called work colleague Shaun Scott, with whom you were rostered to work. You asked if you could leave work early that day to fix your car. You said you thought that overnight some kids had caused damage to your car. You acknowledge that was a lie as a result of your embarrassment at having hit a pole.
At 8.20am your father called you and asked if you had been in an accident involving someone being hurt. You told him something along the lines of that you thought you had hit a pole. You said police were behind you now and you were ‘shitting [your] self’. In other conversations that day you repeated that you thought you had hit a pole with your vehicle.
Later that day, police officers intercepted you in your work truck. You identified yourself and police conducted a preliminary breath test which returned a negative result. You told police you had a call from your father. You said, ‘I thought I hit a pole this morning’. You said your father said you had apparently hit a cyclist. A blood test, also with a negative result, was taken for alcohol and drugs.
You became extremely upset after realising what had happened, and I accept that you were genuinely surprised on being told what had actually happened. You were assessed by medical staff for anxiety attacks and hyperventilating. After you were medically cleared you were arrested. You said, ‘As I say, I thought I done a pole’. At 11.20am you repeated this to a police officer from the Major Collision Investigation Unit, indicating you had jumped out afterwards and thought ‘fuck’.
From 1.00pm you were interviewed and exercised your right to make no comment. You did admit to driving the Mitsubishi Triton ute and having done so for the past five years. You also admitted to working at CSA. No fault was found with that vehicle. I am told by your counsel that the vehicle has been modified to make it suitable for use in rough terrain.
Ms Ruitenbeek was taken by ambulance to the Alfred Hospital where emergency surgery occurred. However her condition worsened and she later died of her injuries.
Victim impact statements
Four victim impact statements were presented to the Court. They were from:
(a) Kaye Ruitenbeek – mother of Michelle Ruitenbeek;
(b) Kerryn Burch – cousin of Michelle Ruitenbeek;
(c) Melinda Matthews – friend of Michelle Ruitenbeek;
(d) Julia Hebb – friend of Michelle Ruitenbeek.
Many victim impact statements are difficult to listen to because they contain such anguish, as these do. The pain these people feel will diminish to some degree with time but, particularly for Michelle Ruitenbeek’s parents, it will last indefinitely. The fact is that your inattention has caused not only a tragic death, but the effect has spread to a number of people, particularly these four. Their world has been inverted and their distress is painful to observe. All the Court can is offer sympathy and indicate that these statements will be taken into account in the sentence that I will impose on you. I would add that if, at some time in the future, they could find some forgiveness for you, everybody may benefit from that.
Plea of guilty
As I said at the outset, you pleaded guilty to the charge of dangerous driving causing death. You had also been charged with leaving the scene of an accident, having failed to render assistance to Ms Ruitenbeek. Proof of that charge would have required the prosecution to establish that you knew you had hit Ms Ruitenbeek and nonetheless failed to render assistance to her. The prosecution now accepts that you did not have that knowledge.
The result was that you pleaded guilty to the charge of dangerous driving causing death just before the third listing of this matter for a trial. So, whilst the plea was not an early plea, there was good reason why that was so.
In addition, of course your plea has the utilitarian value that is so often referred to in this time of pandemic. A difficult trial has been avoided and the family of the deceased have been spared the stress of that. I am also satisfied that your plea reflects your remorse for what had occurred.
Personal circumstances
As very often occurs in fatal motor car cases, your personal circumstances are exemplary. There is nothing criminal or anti-social about your background or your conduct as an adult.
You are now aged 31 years and, importantly, you are without prior convictions for any offences, including driving offences. You come from a close and settled family with parents both alive and a sister. Among a number of other friends and supporters, your family members were present at Court for your plea hearing. I acknowledge this is difficult for them.
As a child, you had difficulties with attention and hyperactivity. You completed secondary education and then commenced a pre-apprenticeship as a bricklayer and then worked as a concreter. You have been with your current employer for four years. You still reside with your parents. You do not drink or use drugs.
You have a partner and that relationship has lasted for about twelve months. I accept that this incident has also caused you substantial difficulty. I also accept that you are genuinely remorseful. In addition, you have suffered because of the fact that the media published reports that you had deliberately fled the scene of the accident knowing you had hit and injured a cyclist. Not only do you say that is not so, but the prosecutor also agrees that this is not what happened. The charge of failing to render assistance was not proceeded with once the actual circumstances were explained.
Rushes to judgement by members of the media is not unusual. It is not just that juries can be influenced by this practice but, independently of that consideration, people in situations like yours can suffer significantly if the story is inaccurate or incomplete. That appears to have occurred in this case.
Forensic psychologist Carla Ferrari prepared a report in March 2022. In her report she referred to a diagnosis of Attention Deficit Hyperactivity Disorder when you were a child, which was not medicated. One of the consequences of this incident for you is that you now suffer from Post-Traumatic Stress Disorder and Generalised Anxiety Disorder. Overall, according to Carla Ferrari, your mental health has significantly deteriorated since the incident. She also corroborated the assertion that you have significant remorse for what has occurred.
In addition, and since this incident, you have suffered a significant workplace injury. In April of this year, you suffered a severe neck injury requiring neurosurgery where a cervical disc prolapse was affecting your spinal cord. You still have substantial pain and will require ongoing physiotherapy and pain medication for some time to come.
You are very well supported by your family and friends. I have been provided with several written references which, not surprisingly, speak very well of you and your family and are a testament to your future prospects.
The applicable sentencing regime
The offence to which you have pleaded guilty is, as I have said, a breach of s 319(1) of the Crimes Act 1958. The prosecutor, Ms Clancy, pointed out that s 3 of the Sentencing Act 1991 defines a number of offences as “category 2” offences, including this one. That classification has particular consequences.
Section 5(2H) of the Sentencing Act was inserted in 2016 and provides that:
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 [for a custodial sentence] (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
Subsections (a)–(e) set out the exceptions to the requirement to impose a custodial sentence for a category 2 offence. The only one that could apply to you is subsection (e):
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
Thus, there must be substantial and compelling circumstances that are exceptional and rare. In Gul v The Queen[3] the Court of Appeal said in a different context:
Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive.[4]
In Fariah v The Queen, the Court of Appeal held that when determining whether the ‘very high hurdle’ in s 5(2H)(e) has been surmounted, a sentencing judge should undertake an ‘evaluative judgment’ of the relevant underlying factors. The Court noted:
… the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e).
[3][2017] VSCA 153.
[4]Ibid, 48.
Section 5 (2HC) of the Sentencing Act was inserted in 2018. It provides:
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a)must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
The matters listed in subsection (2HC) are generally relevant to the sentence to be imposed, but are precluded from being relied upon for the purpose of imposing a non-custodial sentence. Further, s 5(2I) was inserted in 2016 and provides:
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a)the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
The effect of these sections is to significantly limit the weight to be given to some matters ordinarily relied upon as mitigatory sentencing factors, and also preclude consideration of others for the purpose of a non-custodial sentence.
With that in mind, I turn to the particular circumstances in combination relied on by Mr Gullaci on your behalf, as set out in the written submissions. He pointed out that you have no prior convictions and since being charged, have no subsequent charges. It is argued that you are genuinely remorseful for what occurred and it can be said that is not in dispute.
Mr Gullaci also relied on the delay in this matter being finalised. It has taken three years. I accept that the delay is unsatisfactory and has meant that the lack of resolution has been hanging over you for some time whilst you continued to deal with the effects on you, your rehabilitation and continued to work and try to pursue your life as best you could.
Mr Gullaci also relied on the effect of the media reporting of this matter, it being described as a “hit–run” in circumstances where that does not appear to be at all accurate. That has caused you significant discomfort and you have lost friendships as a result. In addition, there is the matter of your present injury to which I have already referred and what Mr Gullaci describes as your likely vulnerability in custody.
Also among those matters relied upon by Mr Gullaci was the submission that your conduct was a ‘low level example of the offence with low moral culpability’. Regrettably, as will be seen, I am not able to accept that as being accurate.
Putting that last matter aside, the argument that these matters are substantial and compelling has merit but, in my view, in combination, they are not exceptional and rare. These circumstances underline the fact that significant errors in driving a motor vehicle can have very significant consequences.
Conclusion
This case no doubt has alarmed cyclists. The risks for riders who choose to share the road with motor vehicles are plentiful. You should not have been part of that risk. Ordinarily, you are a lawful driver. Your licence and your vehicle are important to you. To borrow the language from Woldesilassie,[5] your driving ‘…was not attended by any aggravating features of the type described by Spigelman CJ in Whyte’. You were driving at the speed limit or perhaps slightly above. You were not affected by alcohol or drugs or, for that matter, fatigue. Apart from your failure to observe Ms Ruitenbeek, you were not otherwise engaged in conduct that involved ‘undue risk to other users’.[6]
[5]Woldesilassie v The Queen [2018] VSC 285, 33.
[6]Ibid.
However, as your counsel properly conceded, your conduct was not an example of momentary inattention and, as a result of that, you were not in proper control of your vehicle. I have watched the CCTV record of what occurred. That corroborates that there was plenty of time for you to avoid the deceased and the manoeuvre to do so was a simple one. The road was straight and Ms Ruitenbeek was clearly visible and should have been easily seen by you. She had been riding in the left lane ahead of you for at least a minute. Traffic was light.
The fact that you did not brake and did not realise you had hit a cyclist are, in themselves, indicators of the inattention that attended your driving. I frankly find it difficult to understand how this happened. You were not driving at an excessive speed, but for a significant distance you failed to see things you should have seen. The rear light on the bike was flashing red and should have attracted your attention. Then, after you failed to see Michelle Ruitenbeek in your path, you actually failed to realise you had hit her, dragging her a substantial distance before driving away still, it appears, oblivious to what had happened. The rear light on her bike continued to flash.
Your total lack of attention is the kind of conduct that concerns all cyclists who ride on the road, as many do. Cyclists are almost completely dependent on following cars seeing them and driving responsibly to get past them. Ms Ruitenbeek was a serious, competitive and capable cyclist who had done everything correctly to make herself visible, particularly given that she was riding alone rather than in a peloton.
All of this means that I cannot accept your counsel’s submission that your moral culpability is low. It is above that level. Whilst your culpability was not elevated by factors such as drugs, alcohol, speeding or other deliberate risk-taking behaviour, as the Court of Appeal said in Stephens,[7] moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present. Dangerousness and moral culpability are to be assessed by reference to all of the conduct and circumstances of the particular case. In this case, it is important to note that there were no features of this incident such as, for example, traffic, topography or weather which interfered with your ability to see Ms Ruitenbeek. The light was not full daylight, but the CCTV demonstrates that Ms Ruitenbeek’s lights and clothing should have made it easy for her to be seen by you. The objective gravity of your conduct in the way I have described it is very significant.
[7]Stephens v The Queen [2016] VSCA 121.
The Parliament has made its intentions very clear in relation to this offence. In 2008 the legislature doubled the maximum penalty for this offence to 10 years. The maximum penalty is a ‘yard-stick’.[8] In 2016 the Sentencing Act was again amended to provide that to avoid a custodial sentence for this offence, one needed to demonstrate compelling and substantial reasons that were exceptional and rare. In 2018, the Parliament placed further restrictions on the manner in which a Court would act on matters of mitigation in the case of offences that fell within this category.
[8]DPP v Aydin [2005] VSCA 222.
The death of Ms Ruitenbeek is a tragedy but you are also part of a tragedy, though your life is intact. You have lived a good and law-abiding life and will almost certainly do so in the future. I accept that the anguish you feel for what has happened is genuine remorse, and not only borne of the fear of the consequences for you. Those consequences will have to be overcome. As your counsel submitted, since this incident your life has not just continued normally as though nothing had occurred, but rather has been swallowed up by anxiety and post-traumatic stress disorder. These are difficult cases because there is so often an absence of any form of malicious criminality on anybody’s part.
Your future prospects are very good, notwithstanding the difficulties you have faced following this tragic incident. You are supported by your family and others around you. You have pleaded guilty in a way that was appropriate given the resolution of the factual issues and also spares Ms Ruitenbeek’s family the trauma of a trial. Your plea avoids the need for a trial in circumstances where the Court’s resources are under pressure due to the pandemic. There are a number of factors of mitigation that have caused me to moderate the sentence I will impose on you.
In my view, and for good reason, general deterrence is a significant sentencing factor. It is almost trite to say that the responsibility of drivers of motor vehicles is to pay careful attention to what is occurring around them and to other road users, including cyclists. So far as you are concerned, I doubt that you will need any more convincing of the need for careful attention when driving a motor vehicle, and so specific deterrence has less importance.
In my opinion, the circumstances are such that the only sentence I can impose is a period of immediate imprisonment. A Community Correction Order either on its own or in combination with a period of less than 12 months imprisonment is not able to address all of the competing considerations in this case.
You will be sentenced to be imprisoned for a period of 2 years and 6 months. I direct that you serve a period of 18 months before you become eligible for release on parole.
I strongly request that the authorities place you in such an institution and in such circumstances where the rehabilitation of your back and neck injury can be progressed and resolved.
Pursuant to s 6AAA of the Sentencing Act I declare that had you not pleaded guilty to this charge but stood your trial and been found guilty by a jury, I would have sentenced you to five years’ imprisonment with a minimum term of three years.
I order that your licence to drive be cancelled and that you be disqualified from obtaining that licence again for a period of 18 months.[9]
[9]Sentencing Act ss 89(1) and 89(2)(a).
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