Director of Public Prosecutions v Mueller

[2023] VCC 1812

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01323

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE MICHAEL MUELLER

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2023
DATE OF SENTENCE:	6 October 2023
CASE MAY BE CITED AS:	DPP v Mueller
MEDIUM NEUTRAL CITATION:	[2023] VCC 1812

REASONS FOR SENTENCE
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Subject: Sentence    

Catchwords:              Guilty plea – culpable driving – incapable of proper control of motor vehicle due to effects of alcohol – serious example of culpable driving – standard sentence - younger offender aged 22 – no prior convictions – good character – excellent prospects of rehabilitation - general deterrence - just punishment – rehabilitation.

Legislation cited:       Sentencing Act 1991

Cases Cited:              Worboyes v R [2021] VSCA 169; R v Verdins [2007] VSCA

Sentence:                  7 years and 2 months imprisonment with non-parole period of 4 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr P. Smallwood	Gallant Law

HIS HONOUR:

1On Friday 18 November 2022, Michael Gill was traveling back home to Portland along the Princes Highway after spending the previous evening at his father's house in Mount Gambier.  You, Mr Mueller, were driving in the opposite direction.  Your vehicle crossed over onto the wrong side of the road causing a collision between Mr Gill's vehicle and yours. Mr Gill died from injuries he sustained in that collision.

2At the time of the incident, you were 22 years old.  You held a probationary licence.  You were working as a grader operator for the local council.

3On that day you had worked from 7.00 am until 4.00 pm.  You went to tennis training from 5.00 pm followed by twilight tennis at the Heywood tennis courts.  After that, there was a barbeque.  You then left the Heywood tennis courts and went to the Heywood Hotel where you met up with friends.  You drank at least eight schooners of Melbourne Bitter and then left the hotel with a six pack of full-strength beer cans which you purchased there.  Soon after you left in your car; you collided with a 'Keep Left' sign near the corner of Fitzroy Street and Scott Street, Heywood.  You then went to Chloe Powell's house.  She was an employee of the Heywood Hotel.  There, you consumed more beer.

4Ms Powell arrived home just after 11.00 pm.  By that time, you had already vomited in the hallway and the bathroom.  You were slurring your words and swaying from side-to-side bumping into things. 

5Ms Powell suggested that you stay the night, but you told her you had to work the next day.  You had a shower. She saw you leaving the house right after you got out of the shower, heading home in your car to Greenwald where you lived, some distance away.

6It was on the trip home that you crossed onto the wrong side of the road and collided with Mr Gill's vehicle.  Mr Gill was driving a Ford Focus. He was 43 years old.  The force of the impact between your vehicle and his propelled the Ford Focus into an embankment.  Your vehicle rolled and came to a rest on its roof in the middle of the road.

7The impact between the two vehicles occurred entirely within the Portland bound lane.

8A truck driver, Mr Stephen Laing-Smith, was the first to arrive at the scene. He called Triple 0.  He saw you crawling out of the overturned Ute.  He saw something in the bushes.  He looked closer and saw the Ford Focus.  He could see Mr Gill hanging in the window. He was already dead.  Mr Laing-Smith and other people who had arrived tried to help Mr Gill before the emergency services got there.

9A paramedic arrived at the scene at 1.38 am.  He saw you sitting on the ground.  You told him you had drunk seven beers at the pub in Heywood.

10You were given a preliminary breath test and returned a positive result.  You were then taken to Mount Gambier Hospital by ambulance.

11There were no mechanical issues with your vehicle that could have caused or contributed to the collision.

12An expert reconstructionist, Detective Leading Senior Constable Hardiman, attended and examined the road surface.  His findings include the following:

(i)the road surface was in good condition and was unlikely to have been a contributing factor;

(ii)the opposing lanes were divided by a broken white line and there was a continuous line of audio tactile strips along the approximate centre of the road and three of the lanes were boarded by single white padded fog lines;

(iii)at the collision location the road was straight with a downhill gradient for vehicles travelling west;

(iv)the collision occurred on the upslope in the eastbound lane;

(v)there was no obvious hindrance to visibility for vehicles travelling in either direction.

13Detective Hardiman says in his statement that based on the locked speedometer in the Ford, and assuming it was therefore travelling at 40 kilometres per hour at impact, the Toyota Hilux was travelling between 61 to 85 kilometres per hour at impact. He said in his statement there was insufficient information for him to give an opinion as to why your vehicle had crossed over to the incorrect side of the road.

14A black mobile phone was found in the driver's footwell of your Ute.

15A post-mortem performed on 21 November 2022 found that Mr Gill died from injuries sustained in the collision.

16A blood sample was taken from you at the hospital.  The sample contained not less than 0.137 per cent of alcohol per 100 millilitres of blood.

17Dr Jason Schreiber of the Victorian Institute of Forensic Medicine said in his report that due to the effects of alcohol you would have been incapable of having proper control of a motor vehicle which is the way the prosecution case is put.  He said that you had a body alcohol content in the range of between 0.163 and 0.188 per cent at the time of the collision, and an alcohol concentration of 0.138 per cent within three hours of the collision.

18In your record of interview, you gave an account of your drinking.  You said you did not remember the collision at all.  You remember climbing out of the car.  You saw the other car in the ditch.  Your next memory was coming to the hospital.  You understood that a probationary driver was required to have double zero blood alcohol content.  You said you drive on that road every day.  You said you knew you were impaired by alcohol when you left Chloe Powell's house.  You said you thought you were okay enough to drive home.  You said, when asked whether you knew you were drunk 'I was getting there'.  You accepted your driving was negligent and stupid and you should not have driven.

19You have no prior criminal history.  You have pleaded guilty to one charge of culpable driving which carries a maximum penalty of 20 years' imprisonment.  Culpable driving is also a standard sentence offence, and the standard sentence is eight years.

20Victim Impact Statements were provided from Mr Gill's mother, Dianne, his sister, Karen, and his father, Andrew.  All of them read their Victim Impact Statements to the court.  All were powerful and eloquent expressions of the grief caused by Mr Gill’s death. He was loved by his family, and he will be profoundly missed by them. The sentence I impose is not a measure of the worth of his life. No sentence I impose can restore him to his family or undo the tragic events that occurred in November 2022.

21The sentence I impose must reflect all the matters a sentencing judge must consider in deciding an appropriate sentence but the devastating impact on Mr Gill’s family is a significant matter to be taken into account.

22Janine Gill says that since the death of her son, her days of well-being or enjoyment are few and far between.  She says she has nightmares with the image of the local police coming to her door in the early hours of the morning.  She cannot sleep properly, and she has been suffering from depression and anxiety.  She says that as long as she lives, she will never be able to come to terms with the circumstances in which Mr Gill died.  It has affected her social activities which she now avoids because the conversation 'inevitably comes back to Michael'.

23Mr Gill’s sister, Karen, says she has been emotionally devasted by her brother’s death, especially due to the horrific nature of how he died.  This has affected her sleep and it haunts her deeply.  She cannot watch 'the sport that Michael loved so much'.  She cannot watch medical shows anymore because the images are too close to home.  She misses the support and advice that her brother used to give her.  She suffers stress now which she is worried about because she is managing a heart condition.  She grieves for the future she has lost without her brother and says she will be left to manage the care of her aging parents.  She sees a psychologist regularly.  She also refers to the financial strain of organising Mr Gill’s memorial, her counselling sessions and transporting her mother to various appointments. She also pays tribute to her brother who was a hard worker and someone she could rely on.  She notes she will be alone when her parents go.

24Andrew Gill, Mr Gill’s father, carries guilt because Mr Gill had been visiting him in Mount Gambier on that night. He says they had been back in contact for a year or so and they had connected again, but the phone call telling him of Mr Gill’s death shattered everything. He is struggling to cope with everyday life closing himself away from society and not going anywhere.  His health has suffered from stress and anxiety causing his blood pressure to fluctuate.  He says that losing Michael makes the future very bleak for him and that he will have diminished support.

Offence seriousness

25The offence of culpable driving causing death, by its nature, is a grave offence, involving the death of another human being. The seriousness of culpable driving is reflected in the maximum penalty fixed by Parliament of 20 years' imprisonment and the standard sentence of eight years’ imprisonment. 

26The seriousness of your driving is underpinned by your decision to drive after heavy consumption of alcohol reflected in your high blood-alcohol content, approximately three times the legal limit at the time of driving, on the evidence of Dr Schreiber.  However it was that you ended up driving on the wrong side of the road, no doubt it happened because of your intoxication.  The signs that you were drunk were very clear. You had already struck a road sign with your vehicle; you had vomited at Ms Powell’s house; and your physical co-ordination was manifestly compromised.  Furthermore, Ms Powell offered that you could stay the night at her place.  No doubt she understood you were not fit to drive.  You ignored her offer. You were nowhere near fit to drive, and you presented a very real danger to anyone you encountered on the road.  Even in your intoxicated state that ought to have been apparent to you. To cross over onto the wrong side of the road causing a head-on collision after deciding to drive when you could not walk straight and had vomited is a serious example of culpable driving.

27I infer from the circumstances that Mr Gill would have little chance of avoiding this collision given it occurred entirely within his lane.

28Your counsel, Mr Smallwood, relied on a number of points in mitigation which included the following:

(a)   your substantial admissions to the police;

(b)   your guilty plea;

(c)   your remorse;

(d)   the steps you have taken to engage in rehabilitation since the offence;

(e)   that you are a youthful offender, which he submitted elevates the importance of rehabilitation as a sentencing consideration;

(f)    your good character as evidenced by the absence of prior or subsequent offences and the material contained in the character references tendered;

(g)   extra curial punishment arising from the injuries you sustained in the collision;

(h)   the application of Verdins’ principles 5 and 6, and

(i)    that there are some ongoing restrictions in prison conditions in response to the pandemic.[1]

[1] R v Verdins [2007] VSCA

29He relied on some other matters which I have incorporated into these remarks.

30You pleaded guilty at a committal mention in this case. You were cooperative from the outset and had already admitted all the essential facts comprising this offence. I regard your guilty plea as a plea at the earliest opportunity.  Given the admissions it was never in question that you would plead guilty, and this case has moved to final resolution quickly.

31I accept your guilty plea indicates your willingness to facilitate the course of justice and remorse for the offending.  You have spared the court and the prosecution the time and resources involved in running a trial.  Importantly, you have spared the witnesses the experience of having to relive these distressing events during evidence at a trial. The utilitarian value of your plea is significant and heightened in the current circumstances, where this Court faces a backlog of trials because of the suspension of its operations during the pandemic.  I apply the principles in the case of Worboyes.[2]

[2] Worboyes v R [2021] VSCA 169

32You cooperation and admissions from the outset are important mitigating matters as well.

33There is further evidence of remorse in what you said to psychologist, Mr Jeffrey Cummins who provided a psychological report, and to the various people who provided character references on your behalf.

Personal circumstances

34You live at 4651 Princes Highway, Greenwald with your mother, your 18-year-old brother, Jye, and your 15-year-old sister, Marnie.  You have lived at that address for 20 years.

35Your mother works at Heywood Primary School.  You are very close to her.  Your father is 65 years old.  He suffers from arthritis and receives a Disability Support Pension.  He used to work in the forestry industry.  You describe your relationship with him as distant. 

36You describe your upbringing as loving and caring. 

37You entered Dartmoor Primary School and then Heywood Primary School, after which you went to the Heywood and District Secondary College to the end of Year 12.  You took VCAL subjects in Years 11 and 12.  You had no learning difficulties.

38Between the ages of 19 and 20 you saw a psychologist in Portland for depression.  You were told that you may have suffered from ADD, but that was never fully diagnosed.  After you left school, you worked for nearly three years as a farm labourer at various places in your home area.  You also worked on a dairy farm in Gippsland for six months.  At the age of 20 you were offered a traineeship in civil construction with the Glenelg Shire, which you completed in a year.  You have since worked for the Glenelg Shire until a few months after this incident.  This was a mutual decision.  It was difficult for you to continue to do the job without a driver’s licence.  Leading up to this court proceeding, you were working as a farm labourer in the local area. 

39You sustained some injuries in the collision.  You fractured your right ankle and sustained some ligament and tendon damage to your right knee.  You have some residual pain from those injuries.  You recently had an arthroscope on your knee.  I have taken these matters into account as extra curial punishment which in this case is a factor of relatively modest weight.

40After the fatal collision you were diagnosed with symptoms of Post-Traumatic Stress Order (PTSD) and prescribed Mirtazapine, which you continue to take.  You have had consultations with doctors in respect of these post-collision issues.  You have also seen an alcohol counsellor at Brophy Family and Youth Services in Portland on multiple occasions.  You describe that counselling as very beneficial.

41You started drinking alcohol recreationally when you were 16 years old.  You told Mr Cummins that in the six months prior to the collision, you were drinking alcohol most evenings.  You said that you were drinking 10 stubbies a night, and sometimes more than that.  Sometimes this would be with friends.  You told Mr Cummins that since the collision you had stopped drinking alcohol, but that you had lapsed on approximately 10 occasions.  You describe drinking more than a slab of stubbies on one of those occasions. 

42Mr Cummins diagnosed you as suffering from PTSD because of the collision.  He also describes you as suffering an alcohol use disorder in the lead-up to the collision.  He says your mental health will likely deteriorate when you are incarcerated, and you may require mental health treatment.  He noted that you had been on an antidepressant, and it is likely you will continue to require that.

43I have taken into account your mental health issues as increasing the burden of your imprisonment and I have taken into account that it is likely there will be a deterioration in your mental health once imprisoned.

44I have also taken into account that there may be some ongoing restrictions in prison relating to COVID-19.

Character

45Character references were tendered from the following people: Mr Andrew Boulton, a close friend of yours; Ms Ann Hawker, who is a teacher at Heywood Consolidated Primary School; Ms Anna Finnerty, who describes herself as your best friend; Don Finnerty, Anna’s Finnerty’s father; Mary Finnerty, her mother; Beverley Martin, who knows you through the tennis club; Dale Cannon, a team leader at the Glenelg Shire Council; Dean Munro, a supervisor at Glenelg Shire Council; Jason Gorman, who works at Glenelg Shire Council; Kerri Colliver, who has known you for 10 years through the primary school and the tennis club; Lois Doeven, who knows you through working at the primary school and the secondary college in Heywood; Merelyn Bunworth, who knows you through the tennis club; Rebecca Leske, who also knows you through the tennis club; Rowan Wallis, who employed you when you were working as a farmhand; and finally Sharyn Burgin, from the Heywood Consolidated School, who has known you since Grade 2 at that school.

46The reference material establishes that you have shown sincere remorse for your involvement in this collision; that you have been involved in your local community; that you have been a motivated and hard worker in your employment; that you are trusted and regarded as a friend by most of those who provided references; and that you are generally regarded as a courteous, respectful and kind young man.

47I accept that you have been a person of good character throughout your life.  Of course, for offending such as this, where good character is not uncommon, it has less weight than it would have in other cases.  Furthermore, you fall within the demographic of young men affected by alcohol who are often involved in serious motor vehicle collisions, and good character cannot overwhelm the need for general deterrence.

48That said, your obvious good character is a not insignificant matter for me to take into account and is an important factor in assessing your prospects of rehabilitation.

Rehabilitation

49You are still a young man, and in my opinion, you have excellent prospects for rehabilitation.  Therefore, your youth and the need to facilitate your rehabilitation remain significant matters in deciding the appropriate sentence in this case and in fixing the non-parole period.

Standard Sentence

50The standard sentence for culpable driving is 8 years. That period applies to an offence in the mid-range of seriousness considering only the objective factors relating to the seriousness of the offence. The standard sentence, like the maximum penalty, is a guidepost for the court to consider. It is not the starting point from which to add or subtract.  It is one of the many factors I am required to consider in the instinctive synthesis of sentencing.

51The sentence which I will impose is just below the standard sentence for culpable driving. I have taken into account all the matters I am required to consider under s5(2) of the Sentencing Act, including the standard sentence.

52In sentencing for a standard sentence offence, in considering current sentencing practices, I may only have regard to sentences previously imposed for the offence as a standard sentence offence.  I have considered current sentencing practices which are one of the many matters I must consider in deciding the sentence in this case.  They are a guide but not a controlling factor in deciding the appropriate sentence.

53In fixing the non-parole period for a standard sentence offence I must fix a non‑parole period of at least 60 per cent of the relevant term in circumstances where the sentence is less than 20 years, which it will be in this case.  No submissions were made that I should impose a non-parole period of less than 60 per cent.  As it happens, the period I will impose is almost exactly 60 per cent.

Sentencing principles

54The sentence I impose upon you must give effect to the principles of general deterrence, denunciation, just punishment and protection of the community.

55General deterrence is the most important of these principles. The message that must be sent is that the community will not tolerate innocent people being killed by those who drink and then drive. It is imperative that this message of deterrence is sent out, particularly to your demographic of young men so often involved in offending of this type.

56Deterring you from drinking and driving is also a relevant sentencing principle but reduced by the fact that this is your first time in prison and I am satisfied it will weigh heavily on you for the reasons I have referred to in these remarks.

57Through the sentence I impose I must denounce your offending.

58Just punishment must also be given weight.  Mr Gill died because of the decision you made to drive whilst drunk, and the impact of his death on his family and friends will be lifelong. The need to recognise the real significance of these factors informs just punishment.

59I must not lose sight though of your rehabilitation. You were just 22 at the time of the collision, and I have a favourable view of your prospects of rehabilitation.  In deciding the length of the sentence and the non-parole period I have had regard to the need to promote your rehabilitation and I will allow for a lengthy period on parole. 

60In fixing the sentence in this case I have also had regard to the parsimony principle. Mr Mueller I will now impose the sentence.

Sentence

61For the offence of culpable driving, I impose a sentence of 7 years and 2 months' imprisonment.  I fix a minimum non-parole period of 4 years and 4 months.

62Your licence is cancelled, and you are disqualified from obtaining another licence for a period of 2 years.

63Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to a period of 10 years and 2 months with a non-parole period of 6 years and 8 months.

64I declare 8 days of pre-sentence detention is to be deducted from the sentence that I have imposed pursuant to s18 of the Sentencing Act.

65No other matters from either counsel?

66COUNSEL:  No, Your Honour.

67HIS HONOUR:  There were no ancillary orders were there, Mr Moore?

68MR MOORE:  No, Your Honour.

69HIS HONOUR:  All right, thanks to both counsel.  I will now adjourn till 10.15.

70MR SMALLWOOD:  As the court pleases.

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