Director of Public Prosecutions v Murray
[2024] VCC 925
•24 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER MURRAY |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2024 | |
DATE OF SENTENCE: | 24 June 2024 | |
CASE MAY BE CITED AS: | DPP v Murray | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 925 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: One charge of dangerous driving causing serious injury – One charge of drive whilst exceeding the prescribed concentration of drug –Offender saw motorcycle approaching at high speed before commencing right hand turn leading to collision – Devasting consequences for the victim – Life-long brain injury – Objective gravity towards the lower end – Victim’s speeding contributed to collision – Consistent employment history – Limited and aged criminal history – Delay – Plea of guilty following sentence indication – No subsequent offending since offending some four years ago – Very good prospects of rehabilitation – Genuine remorse.
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Stephens v The Queen [2016] VSCA 121.
Sentence: Community Correction Order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of Public Prosecutions |
| For the Accused | Mr B Johnston with Ms K Ballard | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Peter Murray, following a sentence indication hearing,[1] you have pleaded guilty to one charge of dangerous driving causing serious injury, contrary to s 319(1A) of the Crimes Act 1958. This offence carries a maximum penalty of 5 years’ imprisonment. It is defined as a “serious motor vehicle offence”.[2] Upon a finding of guilt or conviction for this offence, I am required to cancel your licence and disqualify you from obtaining a licence for a period not less than 18 months.[3]
[1]A sentence indication hearing took place on 11 April 2024. An indication given at this hearing was accepted and Mr Murray was arraigned.
[2] Sentencing Act 1991, s 87P(d).
[3] Ibid, s 89(2)(a).
2You also consented to this court hearing, and pleaded guilty to the summary charge of drive whilst exceeding the prescribed concentration of drug, contrary to s 49(1)(bb) of the Road Safety Act 1986. This offence carries a maximum sentence of 12 penalty units[4] and cancellation of licence and disqualification from obtaining a licence for a period of not less than 6 months.[5]
[4] Road Safety Act 1986, s 49(3AAA)(a).
[5] Ibid, s 50(1E).
Circumstances of the offending
3I will sentence you in accordance with the facts set out in an agreed prosecution opening dated 19 June 2024.[6]
[6]Exhibit A dated 19 June 2024.
4On 13 May 2020 at approximately 5:15pm, you were driving your Mitsubishi Triton utility vehicle on Jacksons Road in Mulgrave.
5In the vicinity of the collision site, Jacksons Road, is a bitumen road with two north and two south facing lanes, which pass under the Monash Freeway.
6On the southern side of the freeway overpass, there is an on-ramp for traffic to turn right from Jacksons Road to head city inbound on the Monash Freeway.
7In the vicinity north of the collision site, the road is divided by double white lines, with a break in the dividing line for south-bound traffic to turn right onto the Monash Freeway. After the marked right hand turn position, there is a medium strip dividing the north and south road lanes.
8Police Road intersects Jacksons Road just south of the Monash Freeway/Jacksons Road overpass. Vehicles turning left from Police Road to drive north on Jacksons Road have in excess of 150 metres of visibility of any right-hand turning traffic ahead of them. The front right-hand turning driver across Jacksons Road has the same visibility towards the Police Road intersection.
9The speed limit at the collision point is 70 kilometres per hour.
10At the time of the collision that gives rise to this offending, the road was dry and there were light winds with scattered to overcast clouds. It was daylight approaching dusk.
11You stopped your vehicle in the right-hand lane to turn right across two northbound lanes and go onto the Monash Freeway.
12You proceeded with your right hand turn across the two northbound lanes.
13Just prior to making your right-hand turn, the victim, David Horsfield, riding his motorcycle, turned left off Police Road on to Jacksons Road.
14At the time of his left-hand turn, Mr Horsfield was travelling behind a station wagon being driven by Michael Walker.
15As Mr Horsfield turned onto Jacksons Road to travel north, he changed from the left-hand lane to the right-hand lane, overtaking Mr Walker’s vehicle. As he began overtaking, he “powered up” his motorcycle to a fast speed heading towards the Monash Freeway overpass.
16Mr Walker gave the following evidence in relation to the collision:
(a) “As the motor bike overtook me, the rider powered up and the Triton turned at the same time. There was probably only 70m between the bike and the Triton when both vehicles turned and powered up.”
(b) “I would have been driving at approximately 50km/h to 60km/h and the motor bike, which overtook me and powered up was doing well over the speed limit.”
(c) “Before the Triton turned, I saw the vehicle stop for about 1.5 - 2 seconds and then he turned.”
17As you turned right across the on-coming traffic, your vehicle was occupying parts of both north-bound lanes. Mr Horsfield’s motorcycle collided with the rear passenger side quarter panel of your vehicle. The impact damage commenced 540 millimetres from the rear of your vehicle and extended 440 millimetres to the approximate centre of the wheel arch.
18The area of impact was located on the right-hand northbound lane on Jacksons Road. No pre or post impact brake or scuff marks from either vehicle were visible on the road surface.
19The tachometer from the motorcycle was located after the accident at the entrance to the on-ramp. The tachometer needle appeared frozen and displayed 6900 rpm.[7]
[7] Revolutions per minute.
20Mr Horsfield was ejected forward from his motorcycle and hit the rear tub cover of your vehicle. He continued forward for approximately 13.8 metres onto the bitumen road surface. He remained unconscious at the scene where he was treated by paramedics, before being transported to the Alfred Hospital in a life-threatening condition including severe head injuries.
21Mr Horsfield received significant injuries including a devastating head injury to the brain with multiple bleeds. This resulted in the most severe grade of damage. The injuries were enormously substantial, and the effects will be not only protracted but permanent.
22Detective Sergeant Robert Hay gave evidence about attempts made to assess the actual speed of Mr Horsfield’s motorcycle prior to impact. He states that the assessment cannot be accurately made because the “throw distance” calculations are affected by Mr Horsfield having impacted the side of your vehicle. Based on an analysis of Mr Walker’s statement, his evidence is that the average speed of Mr Horsfield’s motorcycle when it overtook Mr Walker’s vehicle and up to the point of emergency breaking prior to impacting your vehicle, was between 94 to 140 kilometres per hour. As I said earlier, the speed limit at the collision point is 70 kilometres per hour.
23Examination of your vehicle did not reveal any faults, failures or conditions that could have caused or contributed to the collision.
24After the collision, you stopped your vehicle and waited for police and ambulance to arrive.
25You were given a preliminary breath test and provided a blood sample to police. The preliminary breath test confirmed no alcohol in your blood at the time of the collision. The blood test had a reading of between 0.238 and 0.442 milligrams per litre of methylamphetamine in your system.
26Dr Angela Sungaila, a forensic physician at the Victorian Institute of Forensic Medicine, opined that “Mr. Murray’s impairment as the result of methylamphetamine intoxication will have rendered him unable to maintain proper control of his motor vehicle.” However, she states that it is not possible to quantify the extent of lack of control.
27You were interviewed at the scene by Senior Constable Paul Willoughby.
28When asked “what happened” you said, “So I’m just on my way to work and so I’m pulling in here. I feel like I had enough time. I feel like I could hear him throttling to.”
29In a later record of interview, you stated that you turned in front of on-coming traffic because you thought you had enough time to get through. You also stated:
(a) You were aware that the bike “was coming quick”;
(b) You could see down the road and could see the bike;
(c) You could see the bike overtake the black four wheel drive; and
(d) You could see the black four wheel drive and the motor bike “when they make the turn”.
30The prosecution case is that your driving was dangerous by a combination of factors, namely:
(a) After seeing Mr Horsfield’s motorcycle and having a clear view of it, you stopped, but then turned across on-coming traffic after one and a half to two seconds;
(b) You continued your turn, despite seeing Mr Horsfield’s oncoming motorcycle and knowing the bike was going “quick”;
(c) You commenced and continued your right hand turn across on-coming traffic because you thought you had enough time to get through; and
(d) You drove your vehicle with methylamphetamine in your blood.
31The prosecution submit that commencing a right-hand turn and failing to give way to clearly visible oncoming traffic, is dangerous driving and a clear example of “some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.”[8]
[8] Stephens v The Queen [2016] VSCA 121 [12].
32The prosecution acknowledges that Mr Horsfield’s riding of his motorcycle at speed contributed to the collision. However, they also submit that the manner and circumstances of your driving also contributed to the collision in a significant and substantial way, making you liable for the offence of dangerous driving causing serious injury.
Impact of the offending
33I have had regard to the two extremely moving victim impact statements read out in court by David Horsfield’s mother, Heather Horsfield,[9] and his brother, Mark Horsfield.[10] Their statements are understandably full of pain. I have taken into account all the contents of their statements, but I will briefly summarise them in these reasons.
[9] Exhibit B.
[10] Exhibit C.
34Mrs Heather Horsfield states that the severe injuries sustained by her son, have not only impacted David’s life but the lives of all the family. Mrs Horsfield and her husband, who are David’s primary carers, are now faced with the responsibility of providing him with round the clock care. They have had to retire early and now rely upon government pensions. The emotional impact of seeing her son struggle has been devastating. David is unable to involve himself in the lives of his four children. He feels guilty that his family have had to sacrifice their freedom for him.
35Mr Mark Horsfield is struggling with life. He looked up to his brother. His brother had taught him a lot. The days of having meaningful conversations and going out for drives are gone. He struggles with flashbacks when hearing the noise of a motorbike. Riding a bike was a big part of his life. He is unable to ride any longer. He struggles with anger, anxiety, and a lack of motivation.
Criminal history
36I have had regard to your brief interstate prior history between October 2006 and May 2013. Your last appearance on 29 May 2013 for driving whilst suspended has some relevance.
Personal circumstances
37You were born in Kaitaia, New Zealand. Your parents raised you along with your two brothers. Your father was a forestry worker. Growing up, your family lived on your grandparents’ dairy farm. You describe a happy, stable and supportive childhood.
38You were not academically minded and left school at the age of 15. You then worked in the forestry industry until the age of 23, when you moved into the construction industry.
39You moved to Australia in 2004 and have continued living here. You remain a citizen of New Zealand and travel back there to visit your family. However, as a result of bail conditions requiring the surrender of your passport, you have not been back to New Zealand for the last four years. I was told that you were unable to attend the funeral of two uncles and a friend that you would have attended absent the bail prohibition.
40You are currently employed by a company that provides earth and other foundational materials for commercial and residential properties. You work full-time and six days a week. I have had regard to the positive reference from Mr Yacoub, who is the recycling manager at the company you work for.[11]
[11]Exhibit 2.
41You live with your supportive partner of four years and her two sons. You have formed a close relationship with the two boys. Your partner has grappled with her own significant health issues. She also works full time to support the family.
Gravity of the offending
42The objective gravity of an offence of dangerous driving causing serious injury depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.
43As a result of your driving, the consequences for the victim and his close knit family have been life changing. The collision has resulted in catastrophic injuries to Mr David Horsfield. The eloquently expressed victim impact statements highlight the lifelong agony and emotional turmoil that encapsulates their and the remaining family members’ lives. Any sentence that I impose will do nothing to improve Mr Horsfield’s or the family’s plight. I can only hope that your acceptance of responsibility and the finalisation of this matter provides them with some closure.
44As this case sadly demonstrates, impatience and errors in judgement on our roads, no matter how slight, can lead to unspeakable devastation. In order to ensure community safety, driving on the roads demands complete control and awareness at all times.
45While the methylamphetamine you had taken days earlier would have had some effect, it is not possible to quantify the extent of lack of control caused by its presence in your blood.
46I accept that the evidence indicates that just before the impact, the victim significantly accelerated his bike, to somewhere between 94 to 140 km/h in a 70km zone. That contributed to the collision.
Defence submissions
47Mr Johnston, along with Ms Ballard, presented a plea in mitigation. I have had regard to their written submissions dated 10 April 2024.[12]
[12]Exhibit 1.
48Mr Johnston emphasised your consistent employment history since leaving school at the age of 15. He submitted that you had a very limited and aged prior history. There was one relevant matter of driving whilst suspended. This was your last court appearance over 10 years ago.
49Mr Johnston outlined the delay in this matter. The offending occurred on 13 May 2020, and you were interviewed that day. However, no charges were filed until 12 March 2021. The matter proceeded through the committal stream and resolved as a guilty plea to negligently causing serious injury. However, after new lawyers were involved, and recognising a potential defence, certainly to the charge you had pleaded to, it was indicated that you would be pleading not guilty. The matter proceeded in this court through various hearings, including a case conference before me. A trial date of 17 June 2024, with a time estimate of seven days was set. However, you sought a sentence indication on 10 April 2024 before me. Having heard submissions from your counsel, Mr Johnston, and Mr Devlin on behalf of the prosecution, I indicated that I would sentence you to a Community Correction Order (‘CCO’) if you pleaded guilty to the charge of dangerous driving causing serious injury. You accepted that indication and having been arraigned, the matter was adjourned for today’s plea hearing.
50Over four years have elapsed since the offending conduct. You are now 42 years old. I accept that the matter has been weighing heavily upon you, knowing that you faced the prospect of imprisonment and the potential impact on your permanent residency status in Australia. Despite the uncertainty, you have continued your life in a positive vain, working full-time and maintaining a supportive relationship. You have not been in any further trouble of any nature. You have been driving over the last four years without incident. Following the offending, you ceased the recreational use of cocaine, and no longer use any illicit substances.[13]
[13]While methylamphetamine was found in your system, you believed you had taken cocaine.
51Having accepted the sentence indication and pleaded guilty, you have saved valuable court time and expense associated with a trial. As I said earlier, I hope your acknowledgement of your role in the offending provides some small comfort to the parents and family of Mr Horsfield so that they can move on with their lives as best they can.
52I accept that you are deeply remorseful for causing serious injuries to your victim as a result of the collision. Following the collision, you remained at the scene, and were in a state of shock. You were heard uttering ‘I’m worried about him’, referring to the victim. I was told that you donated money to support the victim on a Go Fund Me page.[14]
[14]Donated $5,000.
53I accept that your prospects for rehabilitation are very good.
Prosecution submissions
54On behalf of the prosecution, Mr Devlin outlined the facts of your offending in a fair manner consistent with the evidence, and conceded that a disposition involving a CCO was in range. He took no issue with the matters raised on your behalf by Mr Johnston.
Sentencing
55I have had regard to the pre-sentence assessment report from the Department of Justice dated 12 April 2024.
56Ultimately, having had regard to all the matters and circumstances in this case, I have determined that all sentencing purposes, including general deterrence, can be met by the imposition of a CCO.
57Can you please stand Mr Murray.
58On charge 1 you will be convicted and sentenced to a CCO for a period of 18 months commencing today.
59Every CCO has core conditions that you must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
60In addition to the mandatory core conditions, the CCO will also include special conditions. The special conditions are:
· First, you are required to undertake 250 hours of unpaid community work as directed.
· Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Third, you must engage in programs that address factors relating to your offending behaviour.
· Fourth, you will be subject to supervision as directed for the duration of the CCO.
61Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that any hours of treatment and rehabilitation successfully undertaken be counted as hours of unpaid community work.
62You must report to Sunshine Community Correctional Services within two working days.
63You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.
64The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offence for which you have been placed on the order. You would then face the very real possibility of being sent to prison.
65So, there are serious consequences attached to any breach. Do you understand Mr Murray?
66OFFENDER: Yes, your Honour.
67HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
68OFFENDER: Yes, your Honour.
69HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
70OFFENDER: Yes, your Honour.
71On the summary charge of driving whilst exceeding the prescribed concentration of drug, you will be convicted and fined $500.
Licence cancellation and disqualification
72On the charge of dangerous driving causing serious injury, your licence will be cancelled and you will be disqualified for a period of 18 months commencing today.
73On the summary charge, your licence will be cancelled and you will be disqualified for a period of 6 months commencing today.
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