Director of Public Prosecutions v Nelson
[2024] VCC 1626
•18 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00570
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHIKIRA NELSON |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August & 8 October 2024 | |
DATE OF SENTENCE: | 18 October 2024 | |
CASE MAY BE CITED AS: | DPP v Nelson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1626 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Culpable driving causing death – driving under influence of alcohol – excessive speed – general deterrence – just punishment – denunciation – high culpability – mitigating factors – Bugmy – no prior criminal history or road traffic offences – good prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Brown v The King [2019] VSCA 286; DPP v Neethling (2009) 22 VR 466; Stephens v The Queen [2016] VSCA 1; Hennessey v The King [2024] VSCA 2; DPP v Currie [2021] VSCA 272 Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrman [2021] VSCA 160; Hurst v The King [2023] VSCA 286; R v Verdins (2007) 16 VR 269
Sentence: Eight years imprisonment with a non-parole period of four years and 10 months. Drivers license cancelled and disqualified for three years
6AAA: 11 years imprisonment with a non-parole period of eight years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Dickie | Office of Public Prosecutions |
| For the Accused | Ms L Dubroja | Emma Turnbull Lawyers |
HIS HONOUR:
Circumstances of offending[1]
[1] The detailed circumstances of offending are set out in the Prosecution Opening for Plea Hearing (15 July 2024); I have also viewed the CCTV, dashcam, Snapchat, body worn camera, drive through and walk through footage referred to in the opening: Exhibits 2, 3, 7, 8, 9, 10 and 14. I have read and taken into consideration Outline of Prosecution Sentencing Submissions (13 August 2024); Outline of Submissions for Plea Hearing (13 August 2024); Gina Cidoni, Psychological Assessment Report (6 August 2024); Iliz Ghanizadeh, psychologist’s letter (20 September 2024); subpoenaed material produced by the child protection unit of the Department of Families, Fairness and Housing; and Royal Melbourne Hospital, clinical notes (9 March 2023).
Chikira Nelson, on the evening of 9 March 2023 you were driving a ute at high speed, and in a highly dangerous manner, northwards through Ravenhall towards your home in Burnside. You were drunk. Sitting in the passenger seat was your friend, Ainslee Haenga. Several other people on the road that night noticed your driving, and were alarmed by it.
At around 9.20 pm you were driving north along Westwood Drive. The speed limit was 40 kmh. You were travelling at somewhere between 124 and 132 kmh. Ms Haenga was not wearing a seatbelt. As you entered a bend, you lost control of the ute, which flipped and rolled multiple times before coming to rest. Ms Haenga was thrown from the ute and died instantly. The ute was crushed, and you had to be cut free.
A sample of your blood was taken just over an hour after the crash: it showed a blood alcohol content reading of 0.163.
You have pleaded guilty to one charge of culpable driving causing death, contrary to s 318(1) of the Crimes Act 1958. Your driving was culpable in two ways:
a.You were so affected by alcohol that you were incapable of having proper control of your vehicle; [2] and
b.You were driving negligently, in that you were driving at 80-90 kmh over (and more than three times) the speed limit. [3]
[2] Crimes Act 1958, s 318(2)(c).
[3] Crimes Act 1958, s 318(2)(b).
There are a number of statutory features of the offence of culpable driving:
a.It is a “category 2 offence”, which means that I must impose a term of imprisonment (not including a combination sentence), unless one of a number of specified exceptions apply (in your case, none do);[4]
b.The maximum penalty is 20 years imprisonment;[5]
c.There is a standard sentence of 8 years imprisonment;[6]
d.I must fix a non-parole period of not less than 60% of the head sentence (unless it is not in the interests of justice to do so); [7] and
e.Culpable driving is a “serious motor vehicle offence” and I must cancel your licence and disqualify you from obtaining a further licence for a period of not less than two years. [8]
[4] Sentencing Act 1991, s 5(2H).
[5] Crimes Act 1958, s 318(1).
[6] Crimes Act 1958, s 318(1A); Sentencing Act 1991, ss 5A and 5B. See also Brown v The Queen [2019] VSCA 286.
[7] Sentencing Act 1991, s 11A(4)(c) (assuming that is, that I impose a head sentence of less than 20 years).
[8] Sentencing Act 1991, ss 87P(c) and 89(1)(a) and (2)(b).
Objective seriousness and moral culpability
The factors used to determine the objective seriousness of culpable driving are well-established. [9] In your case:
a.You were highly intoxicated, with a blood alcohol content of more than three times the legal limit;
b.At the time you lost control of the ute, you were driving at a very high speed: 80-90 kmh over, and more than three times, the speed limit;
c.You had been driving at high speed and in an erratic manner for at least five kilometres and five minutes prior to losing control; and
d.You passed numerous other vehicles during that time.
[9] See DPP v Neethling (2009) 22 VR 466 at 473 [31]-[32] (Maxwell P, Vincent JA and Hargrave AJA); and Stephens v The Queen [2016] VSCA 121 at [25] (Redlich, Santamaria and Beach JJA).
Through your driving, you took the life of Ms Haenga, a passenger in your care. Her death has had a terrible impact on her family, including her mother, Francine White; her brothers, Kaelym, Cartel and Hireri; and her 9 year old daughter, Kyraleigh. Ms White travelled down from Sydney with two of her sons to tell the court about the impact your offending has had on her and her family.[10] It has been devastating and life-changing for all of them.
[10] See victim impact statement (undated).
General deterrence is a very important sentencing consideration for the offence of culpable driving causing death. Just punishment and denunciation are also important considerations
The Court of Appeal has recently examined current sentencing practice for culpable driving and noted that despite the variations between the different cases (including both objective and subjective factors), the range of sentences is narrow, with the highest being 9 years 6 months and the lowest being 8 years; both the median sentence and most common sentence being 9 years; and the mean sentence being 9 years and 2 months. [11]
[11] Hennessey v The King [2024] VSCA 2 at [62]-[66] (Emerton P and Whelan JA); see also DPP v Currie [2021] VSCA 272 at [213]-[215] (Beach, McLeish and Walker JJA).
Although one can imagine worse examples of culpable driving,[12] I consider your offending to be serious, and to have involved a high degree of culpability. Taking only the objective factors into account, I find that your offending is above the middle range of seriousness for culpable driving.[13]
[12] Such as the offending in Hennessey v The King [2024] VSCA 2.
[13] Cf Sentencing Act 1991, s 5A(1)(b). I also find that it warrants a period of licence disqualification longer than the statutory minimum, albeit I recognise that the period of disqualification is largely symbolic, given that it will expire before the term of imprisonment does.
However, there are several subjective factors that carry very significant mitigatory weight. This means that although the objective factors place your offending above the middle range of seriousness, the subjective mitigating factors bring your offending back to the middle range. [14]
[14] Cf Sentencing Act 1991, s 5B(4)(1).
Personal circumstances and subjective matters
You were born in 1987 and are now 37 years old. Your mother Moira was a drug user and an alcoholic, and was frequently violent towards you and your siblings. You moved frequently throughout your childhood. You do not know your biological father. However, you had close paternal relationships with the fathers of your siblings, Ricky Nelson and Wayne Kettle. At the time of the offending, you were living in a second house on Mr Nelson’s property. It was his ute you were driving.
When your mother’s relationship with Mr Kettle broke down, she became extremely abusive, and you were removed from her care by child protection. After that, your teenage years involved a lot of change and disruption, moving between different foster care homes, your mother, other family members and Mr Nelson. Despite this, when you were 13, a protective worker described you as “an outgoing young person, with an outstanding academic record”.[15]
[15] Case Plan Report (12 September 2000).
However, when you were 14 years old you returned to live with your mother. Her new partner was physically abusive towards both you and your mother. You witnessed extreme violence, and were constantly concerned for your mother’s safety. Your mother was also abusive towards you. You were frequently absent from school, and suffered from poverty, neglect and abuse.
I accept that you had an extremely difficult start to your life, and that this continues to affect you (albeit, it was not submitted that it had causally contributed to your offending).[16] Your difficult upbringing (and subsequent life experiences) have also left you with a number of mental health conditions.[17] These mean that a sentence of imprisonment will weigh more heavily on you. There is also some risk that imprisonment could adversely affect your mental health.[18] I take all of this into account when sentencing you.[19]
[16] Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrman [2021] VSCA 160 at [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); Hurst v The King [2023] VSCA 286 at [65]-[71] (Macaulay and Whelan JJA).
[17] Cidoni report, [65].
[18] Cidoni report, [74]-[75].
[19] R v Verdins (2007) 16 VR 269, limbs 5 and 6.
You started working in your early twenties as a receptionist at a transport company. You have been employed in various office roles since then, but struggled to hold employment due to various serious health problems.
You were in a relationship from when you were 17 years old, until December 2021. The end of the relationship affected you badly and led to you to engage in self-harm.
Your mother introduced you to alcohol and cannabis at an early age. You also started using methamphetamine after your sister Kura (or Monique) died in 2009, possibly from injuries inflicted by her intimate partner.
Since Kura’s death you have been one of the primary carers of her sons Xavier and Deeghan, who have lived with you since they were in primary school and who are now in their late teens. It is to your enormous credit that you provided both of these young men with a safe home and nurtured them towards adulthood. Fortunately, when you were taken into custody, Deeghan’s older sister Deshara Rose was able to give him a home. Nevertheless, I accept that prison will weigh more heavily on you because of your concerns about your nephews, and particularly Deeghan, who has not yet finished high school.
Ms Haenga came to live with you about six months before the night of her death. On that night, you were both drinking. Ms Haenga was grieving the loss of a friend. You drove her to the cemetery where he was buried. When you got there, you both drank more. It was on the way back from the cemetery that you lost control of your vehicle and caused her death. You also suffered significant injuries, which are a form of extra-curial punishment.
From the outset you were extremely distressed by the death of your friend. However, you took some time to accept responsibility for her death. You still struggle to talk about the collision. Nevertheless, I accept that you feel a great deal of remorse about your decision to drive that night, and guilt over the fact that you caused Ms Haenga’s death.
You pleaded guilty during an adjournment of the committal hearing. It is not an early plea. Nevertheless, your plea saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty.
To your credit, you have no prior criminal history, or history of road traffic offences. This means there is little need for specific deterrence; and suggests that you have good prospects of rehabilitation. Further supporting this is your continued family support and employment history.
Your prospects of rehabilitation will be further improved if you engage in therapy, and abstain from drug and alcohol use.[20] I am told that now you are in custody you have started that process, taking up employment and educational opportunities, and committing to join an Alcoholics Anonymous group.
[20] Cidoni report, [70]-[73].
Orders
If you had not pleaded guilty, I would have sentenced you to 11 years imprisonment, with a non-parole period of 8 years. Because you pleaded guilty, I am instead imposing the following sentence:
a.On the charge of culpable driving, I convict you and impose a sentence of 8 years imprisonment.
b.I order that you serve 4 years and 10 months of your sentence before you become eligible for parole.
c.I declare that you have already served 56 days of your term of imprisonment as pre-sentence detention.
d.I cancel your driving licence and disqualify you from obtaining a further licence for a period of 3 years.
e.I find that you committed this offence while under the influence of alcohol, and direct that the particulars of this finding be sent to the Secretary of the Department of Transport.[21]
[21] Sentencing Act 1991, s 89C(2).
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