Director of Public Prosecutions v Munday

[2016] VCC 1244

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR -16-00274

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON MUNDAY

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	24 August 2016
CASE MAY BE CITED AS:	DPP v Munday
MEDIUM NEUTRAL CITATION:	[2016] VCC 1244

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr M. Habib

HER HONOUR: 

1Jason Graham Munday, you have pleaded guilty to one charge of dangerous driving causing death.  The maximum penalty for that offence is ten years' imprisonment. 

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening for Plea, which was tendered as Exhibit A. The circumstances, in brief, are as follows.  On Wednesday 31 December 2014, a number of people gathered for a New Year's Eve party at a rural property on Andrews Road, about six kilometres outside Kyabram.  The deceased lived at the property with his partner and her two children.  You had been friends with the deceased since primary school and you and your partner and two small children went to the party.  You took three trail bikes to the gathering and during the evening various people rode the bikes in the paddocks near the house.

3Andrews Road runs straight in an east/west direction outside the property.  It is a single carriageway with a bitumen surface in good condition.  The bitumen surface is about six metres wide and wide enough for two vehicle to pass without leaving the bitumen surface.  There is no street lighting. 

4At about 12.15 am on New Year's Day, you and the deceased began riding two of the trail bikes up and down Andrews Road outside the property.  The night was described by witnesses being "pitch black".  Neither trail bike was fitted with lights and neither of you were wearing helmets.  Both of you had been drinking alcohol.  A later estimate was that your blood alcohol content at the time was between .049 per cent and .087 per cent, and the blood alcohol of the deceased was between .065 per cent and .110 per cent. 

5At one point the deceased rode back into the driveway of the property and then back out onto Andrews Road.  A witness sitting on a trail bike on the property saw sparks on the road and rode up the road.  He found the deceased lying near the middle of the road with his trail bike one to two metres away.  He was unconscious and clearly suffering from a head injury.  The witness went to get an ambulance.  He heard you groaning and found you about 15 metres away on the southern side of the road, with your bike about two metres away from you.  You were also injured, although not as severely as the deceased. 

6You have very little recollection of what happened.  You told police that you saw the deceased coming towards you in the shadows in the centre of the road.  You swerved to avoid a collision and he swerved in the same direction.  An examination of the bikes showed no damage consistent with a collision.  The charge is brought on the basis that you and the deceased could not see each other and rode directly at each other.  You swerved to avoid each other and both fell onto the road, with the deceased tragically suffering a fatal head injury.

7Victim Impact Statements were tendered from the deceased's mother and two sisters.  They describe their devastating loss.  The deceased was clearly a very much loved son and brother.  He will be very much missed.  Fortunately his family have very precious memories of him.  Their Victim Impact Statements demonstrate the dreadful impact of a death of a loved one in an incident such as this. 

8In sentencing you, I have taken into account your personal circumstances.  You are now 37 years old.  You have an unremarkable background.  You left school and completed an apprenticeship as a mechanic.  Since then you have been in steady employment as a welder and boilermaker.  You have worked for your current employer for three and a half years. 

9You are engaged to your partner, with whom you have been in a relationship for seven years.  She has two children from a previous relationship and you and she have two children together.  It is clear from the evidence of your partner that you are a supportive family man.  It is also clear that you were very close friends with the deceased and that you, like so many others, have continued to suffer as a result of his death. 

10The deceased's former partner gave evidence of the closeness of the relationship between you and the deceased.  She also spoke of the continued contact between you and her family and the offers you had made of assistance to her. 

11You have no prior criminal history. 

12In defence submissions, your counsel submitted that the appropriate sentencing disposition would be a community correction order.  Your counsel particularly relied on your sincere remorse.  He submitted that you had
co-operated and provided assistance to police and that, although your plea of guilty was late, it was a genuine expression of your remorse.  He also submitted that your plea of guilty had considerable utilitarian value.  Your counsel submitted that you would never be likely to be in this situation again and that there would be no likely risk of your re-offending. 

13Your counsel also addressed the absence of certain aggravating features about this offending and submitted that there was nothing erratic or aggressive in your driving.  Your counsel submitted that this offending was at the lower range of this type of offending, compared to other cases. 

14The prosecutor, in the prosecution opening, had submitted that in the whole of the circumstances, your offending was towards the lower end of the scale of seriousness for this particular offence.  He submitted that a community correction order could adequately address all relevant sentencing considerations. 

15Jason Munday, any case involving dangerous driving causing death is clearly serious.  This case is a tragic reminder of the terrible consequences that can occur when people drive cars or road motorbikes dangerously.  Looking back, it seems so obviously dangerous to any other road user to ride bikes up and down a road on a dark night without lights or helmets.  It seems that neither you nor the deceased thought about the potential risks when you decided to ride on the road.  You knew you were not licensed to ride
a motorcycle and the bikes had no lights.  You knew that your friend was also riding on the road and that neither of you were wearing a helmet.  As a mature person, you should not have embarked on this completely unnecessary and foolhardy way of enjoying yourself.

16The Court of Appeal in Stephens v The Queen [2016] VSCA 121 at paragraph 21, says:

"Dangerous driving encompasses a very wide range of conduct, but it has been          said on a number of occasions that dangerous driving causing death or serious   injury is likely to receive a significant term of imprisonment."

17That statement of principle was qualified in Director of Public Prosecutions v Oates, by noting that: 

"Any sentence which is imposed must take account of variations in the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence, except where the offender's level of moral culpability is low."

18The Court of Appeal in Stephens also drew attention to s.5(2)(d) of the Sentencing Act 1991, which requires a sentencing judge to consider:

"The offender's culpability and degree of responsibility for the offence."

19The court in that case went on to consider factors which may be relevant in determining the seriousness of the particular offence.  Here, of course, the worst consequences ensued for your friend and for his family.

20The deceased was, in my view, the only person directly put at risk, other than yourself, given that the witness only rode onto the road after you had both fallen.  There is nothing to suggest that either of you were going unduly fast.  You were intoxicated, but not severely intoxicated.  There is no evidence that you were engaging in otherwise bad driving or showing off or any other sort of blameworthy riding of the bikes.

21I do not consider that your moral culpability is low, given the obvious potential risks in your actions.  I do, however, consider that responsibility for what happened must, to a degree, be shared with the deceased.  One person riding on the road in these circumstances would have been significantly less dangerous than the two of your riding up and down the road.  That consideration is significant in determining whether this offending is towards the lower end of the range of offending for this type of offence, and whether
a custodial sentence is required for sentencing purposes, including just punishment.  I accept the categorisation of your offending as towards the lower end, rather than mid-range for this type of offending.

22Comparison with the circumstances of other cases, including the circumstances in Stephens, suggests that there is an absence of aggravating features in particular circumstances, including that both of you were involved in this riding, which lead me to the conclusion that is it towards the lower end of offending for this type of offence.

23There are a number of matters which operate in mitigation of sentence.  I accept that you are sincerely and genuinely remorseful.  It is clear that you, like so many others, are deeply affected by the loss of the deceased.  You are also deeply affected by, apart from the loss of your friend, by the circumstances of that loss.  The plea of guilty in this case was made late, but I accept that that plea of guilty was an acceptance of responsibility and an expression of genuine remorse.  You have saved the trauma of a trial for all those involved. 

24I consider that you have excellent prospects of rehabilitation.  You have no prior criminal history.  You have a hardworking past.  You have the support of your family and friends.  You, yourself, were injured and have largely recovered.  You now have an opportunity to make a positive contribution to society and to honour your friend's memory. 

25I do not consider that specific deterrence and community protection need be given weight, in terms of sentencing considerations. 

26Just punishment is a sentencing consideration.  On one level you have received the worst type of punishment that could possibly exist, which is in the death of your friend.  Just punishment, nevertheless, remains a sentencing consideration for me in sentencing you today.  Your offending must be denounced and justly punished.  General deterrence remains and important sentencing consideration.  The courts must try to get the message out that cars and motorbikes must be treated with respect and driven and ridden responsibly.  In these circumstances particular to this case, I consider that a community correction order can appropriately meet these relevant sentencing considerations.

27The s.89(2) of the Sentencing Act 1991 provides that any licences that you hold for driving must be cancelled and that you must be disqualified from driving in Victoria for a period of at least 18 months. Because of your work and family circumstances, I do not propose to exceed that period of 18 months.

28Could you please stand, Mr Munday?

29Mr Munday, you have been assessed as suitable for a community correction order.  Your counsel has taken you through the core conditions of a community correction order and the special conditions of that order.  Do you understand what your counsel took you through?

30OFFENDER:  Yes I do.

31HER HONOUR:  There is one important feature that I wish to stress.  If you breach the order by not complying with any of the directions, or by re-offending, you can be brought back before me and re-sentenced.  Do you understand that? 

32OFFENDER:  Yes I do.

33HER HONOUR:  Do you consent to me making the order in the terms that have been outlined to you previously?

34OFFENDER:  Yes I do.

35HER HONOUR:  Thank you. 

36Jason Munday, on one charge of dangerous driving causing death, your are convicted.  You are sentenced to serve a community corrections order for
a period of four years. 

37You must perform 350 hours of community work. 

38You are to be assessed and treated in respect of alcohol, mental health and programs to reduce re-offending.

39Any hours that you successfully complete in respect of those assessment and treatment programs, or rehabilitation programs, will come off the work hours of 350 hours.

40Your licences are cancelled.  You are disqualified from driving in the State of Victoria for a period of 18 months from today.  Driving while disqualified is
a serious offence, Mr Munday, so make sure that you do not contravene that order. 

41Thank you, could you please take your seat. 

42Is there anything that I have not address, Mr Habib, Mr Moore?

43MR MOORE:  Your Honour, I recall that I did seek that the summary charges be struck out or withdrawn.

44HER HONOUR:  Yes.

45MR MOORE:  So if they could be marked "withdrawn", Your Honour.

46HER HONOUR:  Thank you.  The summary charges which have been uplifted or transferred, together with this charge, are marked struck out as withdrawn, thank you. 

47MR MOORE:  Thank you, Your Honour.

48HER HONOUR:  Thank you.  Mr Habib, if you could go with Ms Alquist, I have just signed the CCO, and obtain Mr Munday's signature on that, thank you very much. 

49MR HABIB:  Yes, Your Honour.  May I be excused from the Bar table, Your Honour?

50HER HONOUR:  Yes, yes, please, if you could go with Ms Alquist, thank you.  ­

51Now, thank you to all those who attended court, particularly for maintaining their decorum, if I might put it that way, throughout these proceedings.  I know these types of proceedings are extremely difficult.  The consequences of this incident will be ongoing for a large number of people. 
I hope there is some relief, at least in this part of the consequences now coming to a conclusion.  So thank you all very much.  My commiserations to all family members and friends and I hope that those positive memories will be able to be at the front of your minds.  Thank you.

‑ ‑ ‑