Director of Public Prosecutions v Morrell, Rick
[2013] VCC 341
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICK MORRELL |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 21March 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Morrell, Rick | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 341 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence – plea
Catchwords: dangerous driving causing serious injury – failure to keep a proper lookout – distracted by GPS device – discussion of what constitutes “momentary inattention” – delay – youth – principles of rehabilitation, specific and general deterrence applied
Legislation Cited: s.319(1A) of the Crimes Act 1958 – s.27(1)(a) of the Sentencing Act 1991 – s.89(1) of the Sentencing Act 1991 – s.6AAA of the Sentencing Act 1991
Cases Cited:King v R [2012] HCA 24 – Delzoppo v R [2011] VSCA 141 – DPP v Janson [2011] VSCA 19 – R v Whyte & Ors (2002) 55 NSWLR 252 – DPP v Oates [2007] VSCA 59
Sentence: total effective sentence of 18 months imprisonment wholly suspended with an operational period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Hoare | (Office of Public Prosecutions – Regional Prosecutions) |
| For the Accused | Mr A. Swanwick | Mr R. Oakley (Cinque Oakley Senior Lawyers) |
HIS HONOUR:
1 In this matter, Mr Morrell has pleaded guilty in Indictment No. A13572084.2 to one charge of a breach of the provisions of s.319(1A) of the Crimes Act 1958, being a count of dangerous driving causing serious injury. The seriousness, or the manner, in which the Parliament views such offences can be ascertained from the fact that the maximum penalty prescribed by Parliament for this offence is one of five years.
2 This offence occurred on 22 April 2010 on the Western Highway at Springbank. At the time, Mr Morrell was aged nineteen, he is now aged twenty-two, having been born on 28 April 1990 and is a floor layer by occupation.
3 By agreement between counsel, Mr Swanwick, having appeared for Mr Morrell on the plea, Mr Oakley appearing today, and Mr Hoare, who has appeared on behalf of the Director of Public Prosecutions, the agreed prosecution opening was read out on the plea, and was tendered as Exhibit A. That amounted to a summary of the evidence in this case.
4 In regard to the circumstances of this dangerous driving, I want to read from paragraph 7 which, by agreement, says this.
"The accused took his eyes off the road while looking for and attempting to locate the power cord for the Navman. The accused was observed by the witness, Stephen Thomas, to be driving erratically at this time, drifting from the left lane in which he was travelling into the emergency lane and back again. Thomas took evasive action in order to avoid a potential collision with the accused.:
Paragraph 8:
"The accused again veered into the southern westbound emergency lane. When the accused was only metres from the rear of Zauch's semi-trailer, the accused looked up and observed the stationary semi-trailer. He took evasive action. Unfortunately, he was unable to avoid clipping the rear of the driver's side of the semi-trailer, continued travelling down the side of the truck, scraping it as he did so, then collided with the victim."
5 In paragraph 18 there is reference to the admissions made by Mr Morrell in his record of interview with the police. Somewhat remarkably he states that he had the Navman on his steering wheel for probably about two minutes while he was trying to press the button. In regard to seeing the semi-trailer he said, "I seen him there, so I decided to try - I was going to move over to the next lane and when I did see the truck, then I went over a bit but the car was next to me so I thought, oh shit, 'cause I wasn't really looking." He then went on to say, "I wasn't really paying much attention so I went over again and sort of, I was still distracted by the Navman. There he was, probably maybe two metres when I looked up. The man was right on the white line."
6 The consequences of course of this driving were grave for the victim, Mr Christopher Zauch, in this matter. Mr Zauch suffered numerous and extensive injuries and was required to be treated extensively in hospital. He was initially taken to the Alfred and then moved to the Royal Adelaide where he stayed till 1 June. He was subsequently re-admitted on 4 June with a bilateral pulmonary embolism and finally discharged on 7 June 2010.
7 As I said, Mr Zauch suffered numerous and extensive injuries, grazing the body, a torn aorta, an infarct of his spleen, pulmonary embolies and bursitis in both shoulders. Fortunately, it would appear that he has had a reasonable recovery, although he is still, as the Court was told, unable to go back to interstate driving, that is three years later, but is back driving which is fortunate.
8 All that can be said insofar as you are concerned, Mr Morrell, is you are particularly fortunate that you did not kill Mr Zauch. The options that are available in your case would not have been available had that occurred. It should not be underestimated how close you did come to killing him by your behaviour.
9 By your plea, you accept that your driving accords with the test as detailed by the High Court in King v R [2012] HCA 24, in particular at [33], “… that is a manner of driving which, in a real sense is potentially dangerous to human beings in the vicinity of the driving”, and at [46] in that case it was said, “… It may be that momentary inattention will result in a manner of driving that is dangerous within the section".
10 It was to this concept that Mr Swanwick spoke and put to me that the dangerous driving, in this case by Mr Morrell, was indeed momentary. Of course, to decide that what means in any particular circumstances depends on the particular facts, and it must always be a relative factor. As Mr Thomas says, at the time of this accident, they were travelling at some 112 kilometres per hour. Clearly, despite what Mr Morrell says in his record of interview that he spent about two minutes adjusting his Navman, the period of time particularly when he was observed by Mr Thomas could not have taken that time.
11 However, even on the agreed facts, I do not consider it is momentary, albeit that the truck at all times from Mr Thomas' observation, seemed to be present when he was observing the erratic driving of Mr Morrell. Mr Thomas states that he observed Mr Morrell drive totally into the emergency lane and back to the left lane, then he veered back again into the emergency lane. Then as Mr Morrell said in the record of interview, he some time thereafter must have observed the car swerve to the left, then he clipped the back of the truck and ultimately hit the victim.
12 I accept that word "momentary", once you fully appreciate those facts that I have detailed. The clear impact of Mr Thomas' statement, I find, is that the driving was in a manner dangerous in the sense that he was required to take evasive action himself because of the driving and his fears about the driving and such dangerous driving continued on until Mr Morrell saw the truck and thereafter hit the truck and ultimately the victim.
13 In this regard, it is important to bear in mind Exhibit 2, the photos. This was no small truck, this is a large semi-trailer on a flat piece of the Western Highway.l If one looks at Photographs 3 to 32, they demonstrate the degree of failure of Mr Morrell to observe this truck.
14 We had, during the plea, a considerable amount of discussion, that is Mr Swanwick and I, as to how one classifies dangerous driving in this case. Mr Swanwick said the Court should not conflate the dangerous driving with the cause. It might well be that such discussion was somewhat pedantic.
15 What is clear, is that the dangerousness here is the failure to keep the proper lookout in all the circumstances. While I accept that such could not be classified as deliberate, when compared, for example, to a person who's been intoxicated, drives while intoxicated and deliberately goes through a red light, the failure of Mr Morrell in the circumstances, however, I still find to be quite scary. This is especially so in the context of travelling at 112 kilometres per hour upon a major Victorian highway which has high traffic volumes upon it, which is well known to Mr Morrell given the amount of times that he was up and down. I find that such behaviour would almost certainly lead to the consequence which it did in this case, that is a collision.
16 In submissions, a number of cases were put to me as to comparisons and by which I should be informed as to how I classify the driving in this case. In Delzoppo v R [2011] VSCA 141, for example, the Court found a high degree of culpability.
17 In DPP v Janson [2011] VSCA 19, the majority of the Court of Appeal found a most remarkable failure to keep a proper lookout and, albeit that the learned prosecutor referred me to the minority determination of Neave JA at [50], I must say after consideration that I am firmly of the view taken by the majority.
18 I also considered R v Whyte & Ors (2002) 55 NSWLR 252, and that involved truly a momentary period of inattention when a person fell asleep and veered across the highway. It did not have the background factors or circumstances that I have rehearsed in regard to you, Mr Morrell, and indeed no other factor could be ascertained as a cause for the collision, and a determination was made in Whyte that there was low culpability due to such momentary inattention.
19 Having been informed by a perusal of all of those cases and a number of other cases, I have formed the view that the culpability here is much closer to the Janson level because of it's attendant lead-up and the surrounding circumstances that I have detailed. The precise time in which you have been inattentive is very difficult to ascertain. However, I would think it must be of a similar period to that as detailed in Janson.
20 I have determined that I should classify your culpability in the region of mid to high, not at the lower end as put by your counsel and which applied in DPP v Oates [2007] VSCA 59 nor at the mid level, as put by Mr Hoare.
21 Having objectively classified the criminality in this case, of course, sentencing involves many other factors. Apart from classifying your criminality and taking into account the obvious consequences that you have caused by way of the severe injuries to Mr Zauch, there are mitigating factors that were put to me in your favour.
22 The first of those mitigating factors is the significant delay that this case has been involved with from the time in November 2010 at the committal mention or at a mention at the Magistrates' Court when a plea was offered to this charge. That delay is a consequence of a Government policy which has determined that there should be preference given in circuit hearings to sexual trials. That has the consequence that other cases down the list are subject to a delay. When an appropriate Indictment was finally filed in June 2011, you pleaded at what clearly was the earliest opportunity. You are entitled to an appropriate discount for the delay in this case from whatever cause.
23 The second matter is your youth. You were nineteen at the time. When a person is sentencing a young person, rehabilitation must be of importance. It has to be tempered upon the authorities in these particular cases because it is very much young person who are involved in such cases. As the authorities show, the principles of general deterrence and specific deterrence have more significant weight, such is appropriate and designed to ensure that the younger persons, who seem to be the particular sector of the community that, by its actions, either kills itself or others, has to be forced hopefully by way of sentences which affect general deterrence to understand their obligations. However, that does not take away from the fact that you are still only twenty-two years old and a person with good prospects who, when I come to later talking about your personal background, has shown much pluck, if I use that word, in his life.
24 There is, of course, one matter of concern about you and it's something that you will have to bear in mind when I ask you a question ultimately as to what happens in this case. And it is of concern to the Court. While you have no priors of the degree of seriousness of this matter, you do have some traffic transgressions. There is only one speeding matter, however, there is a prior matter for driving a vehicle while you have been suspended.
25 While there are a number of factors that may play a part in that, in particular, where you were carrying out your business and the economic imperatives therein, it is, of course, concerning that subsequent to this accident, you have had two further offences for driving in circumstances where you did not have an appropriate licence. While the Court may understand it, it is a concerning factor that you have seen fit to disobey the orders of a Court.
26 However, despite those matters, it seems to me that the Court cannot, in your case, disregard the issues of rehabilitation and the need to effect a sentence which encourages rehabilitation. I say that because Exhibit 1 that was tendered on your behalf, setting out your history, demonstrates a very problematic background, a considerable achievement by you.
27 You have shown in your younger life, when there was a separation in the family, an ability to be able to, as a very young man, care for your siblings. You were only sixteen to seventeen at the time and your younger siblings were between fourteen to fifteen and nine to ten when you had essentially responsibility solely for their care. You have also shown from the reference from your partner and her family, significant attention and care for your partner subsequent to difficulties she encountered during a pregnancy.
28 In addition to that, you have, as a result of your abilities and your apprenticeship, been able to, after the completion of your apprenticeship, establish your own business. That business essentially sub-contracted to groups of builders and flooring companies. In operating that business you were living in Clunes, but mostly actually performing your work in Melbourne. That involved very considerable driving which, no doubt, led to the number of infringements which have been imposed upon your licence and I have already referred to. But essentially that involved you in leaving Clunes very early in the morning, about 5 am, and returning from Melbourne at about 7 to 8 pm, with a minimum of two hours driving each way.
29 In addition, in running that business you were, unfortunately through no fault of your own, placed in a position where, as a result of a collapse of a company called City West Constructions, subjected to a very large substantial loss for a young man running a business, leading to a situation where essentially you were bereft of capital, lost earnings of $65,000 and had to sack the staff that you had hired and were required to start again.
30 As was put to me by Mr Swanwick, all of those matters show that you are a person of some pluck and fortitude. Those matters are confirmed in the references, which I perceive to be references of note.
31 I also note that, as I have already said, you have no priors of this degree in the sense of any matters, but for the speeding offence, which show deliberate criminal breaches, subject to my comments about your driving while not appropriately licensed.
32 Mr Swanwick, noting that this particular crime is not a serious or significant crime as detailed under the Sentencing Act 1991, submitted that in all the circumstances it would not be inappropriate for a wholly suspended period of imprisonment to be imposed.
33 In response to that, the prosecution, while not averse to the proposition that a partially suspended sentence would be appropriate, submitted that in all the circumstances, because of the serious nature of this matter and the need for a sentence which reflects general deterrence, that there should be a period of immediate imprisonment.
34 In considering these submissions, I have closely considered the principles set out in s.27(1)(a) of the Sentencing Act 1991, in particular sub-paragraph (a) thereof, and I am satisfied, despite my comments about your driving while unlicensed or driving while suspended, I am satisfied that the circumstances set out in sub-s.27(d) are not applicable, and that you are not likely to be a person who would further commit offences while on a period of suspension.
35 After close consideration of all of the circumstances, I finally determined to accept Mr Swanwick's submission to fully suspend any sentence that I might pass. However, Mr Oakley, before I do that I must obviously have the consent of your client. What I would be contemplating is a period of two years which should not be underestimated. One of the consequences of such a conviction is that his licence must be cancelled and disqualified for a period of eighteen months, that is the minimum period. That means that should he drive a car again in the manner that he has seemed inclined to previously, that would be an offence punishable by imprisonment and that would mean that he would automatically have to serve any sentence imposed herein. Given his background and those particular issues, it seems to me that your client, in consenting, should fully understand that effectively, as I would perceive it, he could not conduct a business in Melbourne and would be restricted to only conducting a business in the environs of his home and/or he would have to shift to Melbourne. But I would imagine that it would be totally unviable to have a driver driving him, and he certainly could not take the risk as the sentence that I would pronounce would be a significant sentence. Before I proceed, it seems to me that you would have to tell me that he is fully understanding of those circumstances.
36 MR OAKLEY: May I have some time with my client, Your Honour?
37 HIS HONOUR: Yes.
38 MR OAKLEY: Thank you.
39 HIS HONOUR: Mr Oakley, the other matter which should be clarified as well is that should he be found driving in this period which I would impose of two years, then unless there are exceptional circumstances, he would almost automatically have to then serve the period of imprisonment. He understands that?
40 MR OAKLEY: Yes, Your Honour. Your Honour, if I can say that Mr Swanwick did explain all of this to my client somewhat in anticipation of the possibility that this might - - -
41 HIS HONOUR: Yes, I understand that but it is very important for me to understand that he - because if he comes back before me, having been caught again, there will not be any second chance.
42 MR OAKLEY: I have reiterated that, Your Honour.
Sentence
43 HIS HONOUR: For this offence of dangerous driving causing serious injury you are be sentenced to a period of imprisonment of eighteen months.
44 Pursuant to the provisions of s.27 of the Sentencing Act 1991, I order that such sentence be suspended and that the operational period of suspension be a period of two years.
45 It was my contemplation that I should also fine you, so that there was further punishment involved. However, on consideration, it seemed to me that the impact of the mandatory provisions of s.89(1) of the Sentencing Act 1991, that is that you licence must be cancelled and you are disqualified from using it for eighteen months, will effect a financial penalty in itself.
46 I want you to understand, you have been cavalier in your driving and your understanding of what a suspension means. That cavalier attitude needs to stop immediately and I assume, given what has happened to you, it has however, it is noted that you have twice breached those offences since this offence. Should you continue with your cavalier attitude and be caught driving again, that will mean automatically that you would serve the eighteen months. Do you understand that?
47 PRISONER: Yes I understand that.
48 HIS HONOUR: I would assume, given your obligations, that we can be assured and I am confident, given your background, that you are the type of person who will understand your obligations and fulfil those obligations over that two year period.
49 To the extent that I am able, as I am required by Parliament, all I can say under s.6AAA of the Sentencing Act 1991, is that had the plea of guilty not been made in this case, I certainly would not have imposed a fully suspended sentence.
50 Are there any other matters that I should attend to?
51 MR HOARE: No other matters, Your Honour.
52 HIS HONOUR: Yes.
53 MR OAKLEY: No other matters.
54 HIS HONOUR: Very well.
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