Director of Public Prosecutions v Nichols
[2022] VCC 1276
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01506
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW JAMES NICHOLS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | DPP v Nichols | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1276 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Offender found guilty of dangerous driving causing death following a trial – impatient driving on relatively narrow road two-lane only highway – context evidence of fast and erratic overtaking by the offender in the minutes leading up to the collision – passenger side of offender’s vehicle left roadway on slight right hand bend – offender sharply over corrected to his right and his vehicle went into a yaw and onto the incorrect side the roadway colliding with an oncoming vehicle whose driver died of injuries incurred in the collision – 32 year old offender with criminal history of drug and driving offences – offender on parole at time of offending
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Director of Public Prosecutions v Weybury [2018] VSCA 120; Stephens v The Queen [2016] VSCA 121
Sentence: 4 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Dickie with Mr J Johnston | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Richter with Ms F Livingstone Clark | Leanne Warren & Associates |
HER HONOUR:
1Andrew James Nichols, following a trial, on 30 March 2022 you were found guilty by a jury of one charge of dangerous driving causing death. The maximum penalty for this offence is 10 years’ imprisonment.
2On the afternoon of 11 March 2019, you were driving your silver-coloured Holden Astra vehicle south on the Sunraysia Highway, having left the township of Donald shortly before 4:30pm. The speed limit was 100 kilometres per hour. Just after the intersection of Sunraysia Highway with Memorial Lane, you drove through a bend which swept gently to the left and, then, up an incline before the road began to curve to your right. After that curve, you drove along a straight stretch of road for approximately 480 metres. Towards the end of the straight as you entered a slight right-hand curve in the road,[1] the passenger-side wheels of your vehicle departed from the roadway and travelled onto the grass and gravel shoulder to your left. You lost control and your vehicle crossed to the incorrect side of the road[2] and collided with an oncoming Commodore vehicle driven by Mr Max Webb. Approaching the point of collision there was an unbroken white centre line applicable to you, which then became double white lines on the roadway almost at the point of collision.[3]
[1]Evidence of Detective Sergeant Robert Mitchell, Trial Transcript (“TT”) 316 – 318 and Google Map, Exhibit “A”
[2]Evidence of Mr Sam Russell, TT90-3
[3]Evidence of Detective Sergeant Robert Mitchell, TT314-320 and Exhibit “G” drive through video taken by Detective Sergeant Robert Mitchell.
3The impact of your vehicle crushed the front driver’s side of Mr Webb’s Commodore, which was pushed backwards and came to rest on a grass reserve about 12 ½ metres southwest of the point of impact.[4] The force of the impact effectively destroyed the front part of your vehicle, which came to rest about 10 metres south of the point of impact, with its rear on the grass and gravel shoulder on Mr Webb’s side of the road and its front on the bitumen, angled towards the centre line of the highway. The engine block had exited your vehicle and had come to rest on the bitumen in the lane in which you had been travelling south.[5] The collision occurred at approximately 4:38pm.[6] As a result of the collision, Mr Webb sustained extensive injuries from which he died shortly after the collision.
[4]Exhibit “C”, photo 4
[5]Exhibit “C”, photographs 1 to 3 and 5
[6]Evidence of Detective Sergeant Mitchell TT298, L23-23
4At the trial, four of the witnesses for the prosecution had been either a driver or a passenger in two separate vehicles,[7] who all gave evidence that, in the minutes leading up to the collision, you had engaged in fast overtaking manoeuvres of their vehicles, exceeding the 100 kilometre speed limit: Mr Adam Laurie and Mrs Bree Laurie in a Mitsubishi Pajero, which was towing a camper trailer, and Mr Samuel Hiatt and Mr James Grant in a white Holden VS Commodore Station Wagon There was another witness, Mr Sam Russell, who was the only eye witness to the collision. He was ahead of you travelling south. He stated that he observed you in his rear vision mirror to be gaining on his vehicle at a fast rate of speed, which caused him to slow down to under the speed limit in order to let you pass. You got to within 100 or 200 metres of his vehicle and, whilst he was observing you in his rear vision mirror, the collision occurred. He described seeing your two left hand tyres leave the road and hit the dirt and then “almost like a knee jerk reaction swerve” to the right, back onto the road, at which point you lost control and went across the road into the other lane. He thought that you had gone off the road by “about maybe half a car width, a metre”, before the sudden movement veering to the right.[8] He stated that he had just driven through the section of road where you had lost control and he had not encountered any problems as he was driving along.[9] He also stated that he had seen Mr Webb’s vehicle drive past him in the other direction and there was nothing unusual about the way his car was being driven.[10]
[7] Mr Adam Laurie and Mrs Bree Laurie in a Mitsubishi Pajero, which was towing a camper trailer, and Mr Samuel Hiatt and Mr James Grant in a white Holden VS Commodore Station Wagon
[8]TT90-92
[9]TT91, L24-26
[10]TT93, L11-19
5Detective Sergeant Hay, an expert in the field of collision reconstruction, gave evidence at the trial on behalf of the prosecution. He had examined tyre markings at the collision scene and concluded that your vehicle was in a yaw at the time it collided with Mr Webb’s vehicle, that is, it was travelling forward but, also, rotating and sideslipping, so that it was no longer tracking down the roadway. He stated that, when the ability of a vehicle to follow the path demanded of the driver steering it is exceeded, that is when a yaw occurs. He had examined the roadway and considered that “probably at least 50 to 70 per cent” of your vehicle may have been off the roadway before the tyre marks became visible.[11] He stated that both passenger tyres were off the road and the driver’s side tyres may have been, as well, but it was difficult to tell. He observed the road surface and the side of the road for some 200 metres back in the direction from which you had driven and could not find anything that would have affected the friction of your vehicle as it negotiated the roadway. In the hours following the collision he did 3 skid tests in a police vehicle, commencing about 100 metres, or slightly more, back from the point of collision in the lane in which you had been travelling. Mr Hay stated that this involved getting the police vehicle up to a speed of 50 to 60 kilometres per hour and slamming on the brakes. The purpose of the skid tests is to see if there is any defect in the bitumen and to obtain a friction co-efficient which is converted to a drag factor to help calculate speed. He did not identify any defects in the bitumen through doing these tests.[12]
[11]TT153, L14-20
[12] TT158-162
6In evidence-in-chief, Mr Hay stated that the first visible yaw mark was 37 metres from the point of collision. Using what he described as the “air bag control module” from the Commodore driven by Mr Webb, and working backwards, he concluded that, at impact, your speed was approximately 97 kilometres per hour and, at the point of the first visible yaw mark, it would have been a minimum of 106.4 kilometres per hour. He stated that your speed would have been faster than that prior to the first visible yaw mark, but he was unable to say how much faster because he was unable to estimate where the yawing had commenced.[13]
[13]TT214, L8-16
7Under cross-examination, Mr Hay agreed that, if an alternative method of calculation, termed “the yaw method”, had been used, then your speed at impact with Mr Webb’s car would have been something like 87 or 88 kilometres per hour, with a minimum of 94 kilometres per hour at the point of the first visible yaw mark.[14] He stated that, when a vehicle is yawing, it is decelerating so its speed will be faster at the commencement of the yaw, but probably not a lot faster.[15]
[14]TT226, 268-269
[15] TT287, L 10-20
8Mr Hay gave evidence that the right hand curve on which you had lost control of your vehicle was “a very gentle curve” and, if a driver was paying attention, it should have been possible to drive around it at a speed of approximately 192 kilometres per hour before losing control. That speed is known as “the critical curve speed”. Mr Hay stated that “this is a theoretical calculation of what speed you can travel around a curve before you become at risk of losing control of the car.”[16]
[16]TT181-182 and 279
9Mr Hay was unable to find any evidence of emergency braking of your vehicle prior to impact. He stated that Mr Webb’s vehicle had an air bag control model which showed that in the 2 ½ seconds prior to the collision it was travelling at a 102 kilometres per hour, with the cruise control on. He was unable to tell if your vehicle had the cruise control on as there was no air bag module in it to give that information. There was no evidence of mechanical fault with your vehicle to explain the collision, he had not detected any significant height difference between the bitumen edge of the roadway and the grass/gravel verge which would have impacted upon your capacity to control the car, and he did not identify any problem with the friction on the bitumen surface leading up to the collision.
10At the trial, the act of dangerous driving relied by the prosecution was the departure of approximately half of your vehicle from the roadway immediately prior to the over-steering manoeuvre which led you onto the wrong side of the road to collide with Mr Webb. The prosecution did not rely upon the evidence of your pre-collision speeding and overtaking of other vehicles as constituting part of your dangerous driving. Rather, the evidence as to your driving in a period of minutes prior to part of your vehicle leaving the roadway was put to the jury as context evidence showing that you were an overconfident driver, in a hurry to get home. It was not put that your speed, by itself, was determinative of the issue of whether you were guilty of dangerous driving. The prosecution case was that, in all the circumstances, the only reasonable explanation for your vehicle coming off the road to the extent that it did prior to the oversteering manoeuvre was that you were not paying sufficient attention and taking sufficient care in the control and management of your vehicle as you took the slight right hand curve in the road. It was put to the jury, that although your speed, itself, was not excessive, given the 100 kilometres per hour limit, travelling at that speed on a relatively narrow highway with one lane either way required you to be careful to remain within your lane and not to be focussed upon overtaking Sam Russell’s car ahead of you. It was put that the combination of these circumstances pointed to you not having exercised proper care and attention which caused at least half of your vehicle to leave the road, and there were no other reasonable explanations for that having occurred.
11Consistent with the jury’s finding of guilt I find the following matters proven beyond reasonable doubt and, hence, they form the factual basis for the charge upon which I must sentence you:
(a) Immediately prior to the collision, at least 50 per cent of your vehicle (on the passenger side) left the lane in which you had been travelling south and moved onto the grass and gravel shoulder of the road;
(b) After part of your vehicle left the roadway, a sudden over-correcting movement to your right by you resulted in your vehicle to going into a yaw, causing you to lose control and to travel back onto the bitumen road surface and cross onto the incorrect side of the road and collide with Mr Webb’s vehicle;
(c) Immediately prior to part of your vehicle leaving the roadway, you had entered a slight right hand curve in the road and were travelling at a speed approaching or somewhat above 100 kilometres per hour;
(d) At the point at which part of your vehicle left the roadway and subsequently collided with Mr Webb’s vehicle, the total width of the road was a little over 6 metres, with one lane for traffic travelling south (as you were) and one lane for traffic travelling north (as Mr Webb was) and no dividing barrier or median strip between the lanes. Each lane was 3.2 metres wide and the width of your Holden Astra vehicle was 1.8 metres;[17]
(e) Immediately prior to part of your vehicle leaving the roadway, there was a solid white centre line applicable to you indicating that it was impermissible for you to travel onto the other side of the road at that point. At the point of the collision, this had become a double solid white centre line;[18]
(f) Immediately prior to part of your vehicle leaving the roadway, your vehicle was gaining fast on a vehicle ahead of it in your lane driven by Mr Sam Russell consistent with a proposed overtaking of Mr Russell’s vehicle by you;
(g) You should have been able to safely navigate the slight right hand curve in the road whilst travelling at the speed at which you entered that curve had you been keeping a proper lookout in relation to the configuration and width of the road and the line markings on it and controlling and managing your vehicle in a reasonable manner according to such factors. Mr Hay had given evidence that the curve was of such a mild nature that no advance signage to drivers was present, nor would be expected and that the “critical curve speed” at which a driver should be able to safely drive around the curve was very much greater than the speed of 100 kilometres per hour. Indeed, Mr Russell’s vehicle, whilst travelling at the speed limit of 100 kilometres per hour, had just safely negotiated that curve only a very short time beforehand;
(h) The collision occurred on the afternoon of a Monday public holiday forming part of a long weekend, when it might reasonably have been expected that there would be traffic travelling in either direction on the Sunraysia Highway. Indeed, in the period of less than 10 minutes during which you had been driving on the Sunraysia Highway prior to the collision, you had already overtaken at speed and erratically on two occasions. The second overtaking manoeuvre by you was only one or two minutes before the collision occurred: Mr Samuel Hiatt’s evidence was that you overtook his vehicle in a fast manoeuvre immediately after an oncoming car had passed. He stated that there had not been very much space between his vehicle and your vehicle and, as you moved onto the incorrect side of the road to overtake, there was not very much room between yourself and the car that had passed.[19] You should have expected oncoming traffic and been mindful of the need to contain your vehicle in your own lane, particularly given that there was a solid white line leading up to the point of collision indicating that you should not move onto the other side of the road;
(i) The cause of at least 50 per cent of your vehicle leaving the road was not due to momentary inattention as had been submitted by your counsel to the jury. It was not because of a minor mistake or a simple error of judgment but, rather, due to the combination of factors to which I have referred;
(j) There is no reasonable explanation for at least 50 per cent of your vehicle having left the road other than you failing to exercise reasonable care in the control and management of your vehicle in all of the circumstances.
[17]Evidence of Detective Sergeant Mitchell TT347
[18]Evidence of Detective Sergeant Robert Mitchell TT314-320 and Exhibit “C”
[19]TT52, L9-20
12Whilst your conduct of dangerous driving causing death lacks a number of aggravating factors often seen in these types of cases, such as being under the influence of drugs or alcohol or travelling at speeds grossly in excess of the speed limit, this was not a case of you simply drifting slightly and momentarily into another lane. The fact that at least 50 per cent of your vehicle left the roadway is a serious departure from what is expected of a driver exercising reasonable care in the control and management of his car.
13Although your overtaking of other vehicles at speed in the minutes preceding your entering the slight curve to your right does not form part of the factual basis of dangerous driving, such conduct places the seriously aberrant act whereby at least 50 per cent of your vehicle left the roadway immediately prior to the collision in a realist context, particularly as those acts of erratic overtaking were very close in time to and only a relatively short distance prior to the collision occurring. Mr and Mrs Laurie, who were driving a Mitsubishi Pajero vehicle towing a campervan, were travelling at a speed slower than the speed limit and described you overtaking them and a blue hatchback vehicle in front of them at a speed in excess of the speed limit in one manoeuvre. Your subsequent overtaking of Mr Hiatt’s white Commodore station wagon was described by Mr Hiatt as being “without any room for error as the approaching vehicle was coming towards him”.[20] His passenger, Mr Grant described you overtaking at speed and then getting back onto the correct side of the road in front of them in “a bit of an aggressive whipping nature, or kind of a swerving nature”. In my view, this was aptly described by Mr Dickie, the prosecutor, in his final address to the jury as being demonstrative of “over confident and impatient driving”[21] by you in the short period leading up to the slight right hand curve. Further, the description by Mr Sam Russell that he had been looking somewhat nervously into his rear vision mirror as he saw you gaining quickly on his vehicle from the rear, which was sufficient to make him reduce his speed to 80 kilometres per hour so that you could pass, was also consistent with that description of your driving by Mr Dickie and also consistent with a significant proportion of your vehicle leaving the road being explicable by driving which Mr Dickie described as “foolhardy and impatient”.[22]
[20]TT50, L1-10
[21]TT65, L25-27
[22]TT444, L19-21
14Your foolhardy and impatient driving caused the death of Mr Webb, a decent, hardworking family man, who was making his way home to his farm where he and his wife had lived and worked together for decades and reared their family. Mr Webb was due to celebrate his sixty-sixth birthday on 18 March 2019, one week after the fatal collision. There are no words appropriate to the magnitude of the loss and suffering of Mr Webb’s family. Nothing that I say or do can restore this much loved man to his wife of over 30 years, his loving daughter, and his three grandsons, aged 13, 10 and seven years, whom the family had hoped would one day take over the family farm. The impact of your dangerous driving upon Mr Webb’s family has been shattering as revealed in the victim impact statement courageously read to the Court by Mr Webb’s widow, Jennifer Webb (Exhibit “A”) and a victim impact statement also read to the Court by their daughter, Mrs Nerida McCurdy, on her own behalf (Exhibit “B”) and on behalf of Mr Webb’s oldest grandson, Anthony McCurdy (Exhibit “C”). The death of Mr Webb has resulted in the total collapse of Mrs Webb’s life as she knew it, with the loving support of her husband. Ultimately, she has been unable to continue the farming life which they had worked at together for so long. Mr and Mrs Webb’s daughter and son-in-law and children were not only deeply attached to Max Webb but to the farming way of life. So many happy attachments and hopes of Mr Webb’s family have been dashed by the serious breach of your duty to control and manage your vehicle in a reasonable and safe way. Your failure to exercise reasonable care and keep a proper lookout and to be mindful of the features of the road upon which you were driving and the obligation you had towards other road users in the vicinity created a real danger to other road users and caused Mr Webb’s sudden and shocking death. I here note that the gravity of your offending is aggravated by the fact that it was committed whilst you were on release from prison on parole, after serving 3 years of a 5 year sentence. You had only been released from custody on 11 December 2018, some three months prior to the collision.
15You are presently aged 36, years, having been born in July 1986. You come before the Court with a criminal history dating back to March 2004. It is of concern that, on a number of occasions, you have appeared before a court for driving offences:
· On 3 October 2006, you were convicted by the Dandenong Magistrates’ Court of 2 charges of driving whilst disqualified, a charge of driving whilst suspended and using an unregistered motor vehicle, together with various drug offences of cultivating, possessing and using cannabis. You were convicted and placed on a 12 month Community-Based Order with a condition to complete 100 hours of unpaid community work.
· On 28 July 2008, you were found to have breached that Community-Based Order by having committed drug and dishonesty offences, and were sentenced to a 3 month term of imprisonment, which was wholly suspended for 12 months.
· On 24 September 2008, you were convicted by the Melbourne County Court of offences of Reckless Conduct Endangering Life and Driving under the influence of a drug. For those offences, you received a term of 18 months’ imprisonment, three months of which was served concurrently with sentences imposed for breaching Community-Based Orders for drug offences. The total effective sentence imposed on that day was 21 months’ imprisonment, with a non-parole period of 9 months.
· On 2 October 2008, you were convicted by the Melbourne Magistrates’ Court of driving whilst disqualified, for which you received a term of imprisonment of 2 months, wholly concurrent with the sentence you were then serving. You were also fined $250.00 for offences of exceeding a speed limit of 50km/h and failing to stop at a stop sign.
· On 27 April 2010, you were convicted by the Dandenong Magistrates’ Court of driving whilst disqualified, for which you were sentenced to a term of 1 month’s imprisonment. On the same day, you were also convicted and fined $1,500.00 for exceeding a signed speed limit of 70km/h, driving with ineffective headlights at night, as well as drug and dishonesty offences.
· On 15 December 2010, you were convicted by the Melbourne Magistrates’ Court of Driving Whilst Disqualified and received a 6 month sentence of imprisonment wholly suspended for an operational period of 18 months. You also received a 1 month sentence of imprisonment wholly suspended for a period of 12 months for shop theft, and an aggregate $750.00 fine for exceeding an 80km/h speed limit and stating a false name and address.
· On 6 December 2011, you were found to have breached those suspended sentences by trafficking and possessing numerous drugs, and each sentence was wholly restored and made cumulative upon the 17 month sentence you received for the new offending. Ultimately, you were sentenced to 2 years’ imprisonment on that day, with a non-parole period of 15 months.
· On 9 September 2014, you were convicted by the Dandenong Magistrates’ Court of a large consolidation of drug, dishonesty and driving offences and sentenced to a total effective sentence of 1 year’s imprisonment, with a non-parole period of 6 months. Included in the total effective sentence was a 1 month term for driving whilst authorisation was suspended. You were also ordered to pay an aggregate fine of $750.00 for exceeding a 60km/h speed limit (by more than 10km/h, but less than 25km/h), not wearing a seatbelt and failing to display ‘P’ plates.
· On 12 February 2015, you came before the Melbourne County Court. You were convicted of trafficking and possessing drugs, negligently dealing with proceeds of crime and unlicensed driving, for which you were sentenced to total of 5 years’ imprisonment with a non-parole period of 3 years. You were also fined $100.00 for an offence of forging a registration label. It was for this offending that you were on parole at the time of the offence of dangerous driving causing death for which I must sentence you.
16As a matter of completeness, I note that on 27 February 2019, only 12 days prior to the offending for which I must impose sentence, you had been issued with a traffic infringement notice for driving at a speed in excess of 40 kilometres per hour (but less than 45 kilometres per hour) above the specified speed limit. Although this ultimately resulted in a licence suspension for a period of 6 months effective from 28 March 2019, such suspension was not in operation at the time of the offending for which I must sentence you. Further, on 14 March 2019, your parole was cancelled and you served the remaining 4 months and 3 days of the head sentence which had been imposed on 12 February 2015.
17On 31 July 2019, you were released from custody after completing your sentence. Only a little over three weeks later, on 24 August 2019, you were charged with careless driving, driving whilst exceeding the prescribed concentration of a drug, breaching an alcohol interlock condition, driving whilst authorisation was suspended, possessing the drug alprazolam, theft of a motor vehicle and fraudulent use of a registration label. On 30 April 2021, you appeared in Melbourne Magistrates’ Court for these offences and, on the charges of theft and driving whilst authorisation was suspended, you were convicted and sentenced to a total effective sentence of 6 months’ imprisonment, and on the other charges you were fined. Further, your licence was cancelled and you were disqualified from driving in the State of Victoria for a period of 24 months.
18Mr Richter, in a plea in mitigation, submitted that the evidence put before the jury amounted “to an example of momentary inattention that resulted in Mr Nichols drifting off the road onto the shoulder, overcorrecting and entering an uncontrolled yaw.”[23] He further submitted that this was an example “that falls towards the lower end of the spectrum of seriousness for this offence” and noted the absence of common aggravating features, such as being under the influence of drugs or alcohol, excessive speed, racing, driving a car which was in an unsafe condition or using your mobile phone whilst driving.
[23]Outline of plea submissions 8 June 2022 “MFI-1” under “The Offending, paragraph 1”
19After carefully considering all of the evidence put before the jury and submissions made at the plea hearing, I do not agree with Mr Richter’s submission that the objective seriousness of your offending falls towards the lower end of the spectrum of seriousness for the offence of dangerous driving causing death. I repeat that the jury, in having found the charge proven, appears to have rejected Mr Richter’s submission that this was an example of momentary inattention resulting in you drifting off the road which could have happened to any driver.
20In the Director of Public Prosecutions v Weybury,[24] the Court of Appeal stated:
“it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending …falls within a particular category such as ‘mid-range’ or ‘bottom of the high-range’ or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.”[25]
[24][2018] VSCA 120
[25](ibid) at paragraph [33]
21In that same case the Court, citing Stephens v The Queen,[26] which upheld a submission by the Director of Public Prosecutions that current sentencing practices for the category of seriousness of mid-range and above in dangerous driving causing death cases should be uplifted, quoted with approval, the following passage in Stephens:
”Moral culpability in respect of conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.
Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.”[27]
[26][2016] VSCA 121
[27]Weybury (op cit) at paragraph [24] citing Stephens (op cit) at paragraphs [26] and [27]. It should be noted that in Weybury, the Court held that the Court in Stevens was in error in stating that the inadequacy of current sentencing practices for the offence of dangerous driving causing death required a “gradual increase” in sentence which fall within or above the mid category of seriousness. Instead, a Court must impose just sentence without the restraint of “gradual increases” at paragraph [20].
22I have already outlined my findings consistent with the jury’s verdict. They include that the jury was entitled to be informed by the context evidence of the earlier erratic speeding overtaking manoeuvres by you in the minutes prior to your vehicle leaving the road as showing an overconfident and impatient driver. In this context I have identified that the serious features of your conduct involve you failing to be sufficiently aware of and to pay heed to both the configuration of the highway, including whether you were entering into a curve on the highway whether slight or otherwise, the relatively narrow width of the highway and the fact that it had only one lane for traffic in either direction with no barrier in between the two, and the fact that, in the immediate leadup to your vehicle departing from the roadway and shooting across onto the opposite side of the road, you had an unbroken white line applicable to you which should have made you acutely conscious of the need to remain safely within your lane. I have referred to the fact that, even though the evidence did not establish that you were travelling at any speed greatly in excess of the speed limit at the time part of your vehicle left the roadway, one has to be mindful that, when travelling at approximately 100 kilometres per hour, even if it is the speed limit, and one anticipates (as you should have done) that there will be other vehicles travelling on the roadway, then the potential for death or serious injury is always higher when travelling at such a high speed, particularly where, as I have found, you were focussed upon overtaking the vehicle ahead of you driven by Mr Russell.
23You, of all people, with your very poor driving record, should have been acutely aware of the risks associated with driving at high speeds on a highway. On 24 September 2008, you were sentenced for reckless conduct that may have endangered persons for most appalling driving behaviour, at times travelling at the speed limit of 100 kilometres per hour or above along the Monash Freeway from Pakenham until your vehicle ultimately came to rest to the east of the Westgate Bridge when it struck a fire hydrant east of the Millers Road exit. During that journey, your vehicle weaved between vehicles, at times reaching speeds of up to 120 kilometres per hour, wandered across multiple lanes of the carriageway, struck various barriers on the side of carriageways or median strips and generally involved in seriously erratic and dangerous driving.[28] It was clear that on that occasion of offending you were seriously adversely affected by illicit drugs and Mr Richter pointed out that that was not the case for the offending for which I must sentence you. That is the absence of an aggravating factor, which I might point out would be of no comfort whatsoever to Mr Webb’s family. Moreover, the absence of any explanation for your impatient driving does not serve as a mitigatory factor. Certainly, you were on parole at the time and had a curfew which required you to be at your residence in Officer in Victoria by 10:00pm. However, you had left the township of Donald shortly before 4:30pm and there was no material put before me that you had other than ample time to get to your home in Officer to comply with your curfew condition.
[28]The Queen v Andrew James Nichols [2008] VCC 1151, Reasons for Sentence of Wodak J, paragraphs [6] to [10]
24I have already outlined countless other offences of poor driving for which you have been found guilty and noted that, two weeks prior to the offence for which I must sentence you, you had incurred an infringement for driving in excess of 40 kilometres per hour above the speed limit. You have repeatedly shown yourself to be someone who is less than careful about the obligations which a driver owes to all other road users. Whilst you are not to be punished again for your prior offending, you are plainly someone who by virtue of an extensive record of multiple driving offences should be adjudged to be a person who should know the risks associated with a particular style of driving. As I have stated, there is no suggestion that you were either drug affected or alcohol affected on the day that you caused Mr Webb’s death. The consequences of overconfident driving where you were not paying sufficient attention to the roadway and other road users resulting in half your vehicle leaving the roadway and thereby putting yourself in a situation where you were unable to control and manage the vehicle safely, to my mind does not spell offending towards the lowest level of moral culpability.
25Various cases involving sentences for dangerous driving causing death were drawn to my attention by the prosecutor and your counsel. It was suggested that the driving in the case of Rowe v The Queen[29] involved somewhat comparable culpability to that of you. However, I note that the offender in that case was 10 years younger than yourself (22 years of age) and still a youthful offender, apparently had a much more limited prior criminal history than yours, consisting of one offence of speeding and one offence of driving without a licence, unlike yourself was not on parole and was regarded as having very good prospects of rehabilitation. However, there is only limited assistance that can be gained from other sentencing authorities in terms of being yardsticks or generally indicating current sentencing practice. They are not precedents to be applied. Having said that, I do not regard the objective circumstances of your offending in this case to attain the level of seriousness of those cases which in Stephens were regarded by the Court of Appeal as appropriately requiring an uplift in current sentencing practices. Nevertheless, the charge of dangerous driving causing death carries a maximum penalty of 10 years’ imprisonment and it is plain that dangerous driving causing the death of another person is of a gravity which will ordinarily attract a sentence of imprisonment by way of a head sentence and a non‑parole period. Indeed, your counsel conceded that that was an appropriate sentence in your case. That was an appropriate concession given the provisions of s.5(2H) of the Sentencing Act, which mandates that the Court must impose such a sentence unless one of the exceptions listed in that section has application, which is not so in your case.
[29][2013] VSCA 140
26On your behalf, Mr Richter stated that, as reflected in your criminal history, you have been a serious drug user for most of your life, a habit which apparently had its genesis in your mother’s normalisation of illicit drug use in the home. Some reliance was placed by Mr Richter upon a report by Ms Carla Ferrari, forensic psychologist, who conducted an assessment of you on 18 May 2022 embodied in her report dated 3 June 2022.[30]
[30]Exhibit “1”
27As outlined in Ms Ferrari’s report, you are the youngest of three children of your parents, who apparently separated when you were aged four years. Your father subsequently re-partnered and you have two half siblings from that relationship. Your mother suffered with mental health and substance use issues and Ms Ferrari noted a turbulent and traumatic childhood, during which prior to adolescence your mother would send you out to purchase cannabis on her behalf. You grew up without guidance and began drinking alcohol at home on weekends from age 11 and were permitted to commence taking cannabis from age thirteen. On a number of occasions your mother attempted suicide by starting a fire or threatening to kill herself with a kitchen knife and you were left alone to deal with your younger siblings. Perhaps unsurprisingly, you had difficulties with focussing your attention, behaviour and learning at school. You had multiple changes of school in primary school, due to moving between the home of your mother and your father, and, in secondary school, you had difficulty paying attention because you were “stoned” and were frequently in trouble for misbehaving and fighting, resulting in you being asked to leave mainstream school at the end of Year 8. Thereafter, for a short time, you attended an alternative school, but, ultimately, left school at the age of 14 and took on various jobs in plastering and then at abattoirs. From age 19 you worked as a scaffolder, but lost that position when you underwent your first immediate custodial sentence (which, according to your criminal history, appears to have been given on 28 July 2008, your twenty-second birthday).
28Ms Ferrari noted that you had suffered depression and anxiety in the past and had some history of substance induced psychotic episodes between 2010 and 2014. She also noted that you are currently medicated on Mirtazapine (Avanza) 30 mg/nocte.
29Ms Ferrari considered that your disadvantaged childhood, parental separation, serious maternal mental health and substance use issues resulting in your exposure to trauma and instability had resulted in you developing Post-traumatic Stress Disorder with associated depression and anxiety. She stated that, in the absence of adaptive coping mechanisms being modelled to you, you had learned to self-medicate with alcohol and substances from a young age. In addition, she considered that your education and employment history suggested an undiagnosed Attention Deficit Hyperactivity Disorder, which had resulted in your premature exit from formal education and increased your criminal activities and substance use. She considered that you had satisfied the criteria for several alcohol and substance (both stimulant and opioid) abuse disorders over the years, but these are presently in sustained remission in a controlled prison environment. She noted that you had been taking Methadone for approximately six years, although in more recent times you had begun to titrate your dose downwards, in order to switch to Buprenorphine. You had also completed alcohol and drug courses in custody, as well as having some counselling whilst you were on parole in the community.
30Despite paragraph 16a of the outline of plea submissions filed on your behalf on 8 June 2022,[31] Mr Richter conceded at the plea hearing that the relevant nexus between any mental health condition and your offending was not established in order to attract limb one of R v Verdins.[32] However, he urged the Court to take into account that your mental health conditions made life in prison more burdensome for you and that there was a risk that those conditions would worsen whilst in custody in accordance with the opinion expressed by Ms Ferrari. The application of limbs five and six in Verdins were conceded by Mr Johnston for the prosecution at the plea hearing. I take these factors into account in arriving at the sentence which I intend to impose.
[31]“MFI-1”
[32](2007) 16 VR 269
31As is self-evident, you ran a trial of some seven days’ duration following which you were found guilty of the charge by the jury. In these circumstances, there is no discount on sentence available to you for pleading guilty. However, I accept Mr Richter’s submission that the course you took in running a trial is not inconsistent with remorse. You had received serious injuries in the collision and had no memory of its circumstances. In the absence of a self-evident explanation for the collision, such as very excessive speed, the presence of alcohol or drugs in your bloodstream or driving a defective vehicle, it was not unreasonable for you to put the prosecution to proof of the charge.
32I note that, when interviewed by police in hospital some three days after the collision, even whilst dazed and in pain from multiple injuries and having had a colostomy bag inserted,[33] you asked police to tell the family that you were really sorry about Mr Webb’s death, which he did not deserve, and stated that you wished it had been you rather than him who had died.[34] Further, your father provided a reference to the Court[35] that you were shattered that you had been responsible for the death of another human being and had struggled to come to terms with it. Ms Ferrari in her report took a similar history from you and noted that you had said that you had “destroyed someone’s life, their family and let my family down” and wished that you had died in the accident instead of the victim. She said that you appeared to be genuinely devastated by your actions and their consequences and you did not attempt to minimise or rationalise your conduct and appeared to be deeply remorseful and struggling to come to terms with what you had done.
[33]Record of Interview, Q and A 204-206
[34]Record of Interview, Q and A 231-231
[35] Exhibit “2”
33In an undated letter which you wrote to the Court tendered as Exhibit “3” at the plea hearing, you reiterated your remorse. In the letter you mentioned that, whilst back in the community on parole you had started working five or six days a week doing concreting work and were getting fit at the gym and reconnecting with your family, as well as seeing a drug and alcohol counsellor. You noted that this was during your second attempt at parole for the 5 year sentence which you had been given for drug trafficking and you were trying hard to use the things that you had learned in drug and alcohol and other offender behaviour courses and for the first time felt like you were part of the community and happy to be spending time with your family and not wasting your life using drugs and selling drugs.
34In your letter, you stated the following, “waking up in hospital and being told that you are under arrest and that you have been involved in a head on motor vehcal (sic) accident and that the other driver has passed away and that it was my fault is by far the hardest thing I have ever had to deal with. Knowing that I have done something thats taken some-bodys (sic) life ripped a whole (sic) in my heart and at the time I did not think it would be something I would ever be able to get past. … I did not think I would ever get over the fact that somebody died because of me. And it took me nearly two years to stop hating myself. … Before I was in the crash I was was (sic) the strongest and fittest both physicaly (sic) and mentaly (sic) version of my self. Things were not perfect but I was in a good position both physicaly (sic) and mentaly (sic) to keep my life going in the right direction. … But when I got released from jail after the crash that took Mr Webb’s life I had not even begun to process what had happened and I found myself in a world of trouble not even 1 month later. … I'm not trying to make excuses for what I did after I was released … I do care and I have never been more sorry for all the pain and suffering I have caused the Webb family. … I have spent the last few year’s (sic) learning how to forgive myself and trying to remain positive in this dark time, slowly trying to rebuild my health both mental & physical.”
35In the light of the material to which I have referred, I am satisfied that you are remorseful for your offending which caused Mr Webb’s death.
36I also accept that you already have suffered some punishment by reason of the serious injuries which you sustained in the collision. You suffered a perforation of the sigmoid and small bowel, a small left apical pneumothorax, a mild left upper lobe contusion, a fracture to the medial right clavicle shaft, a haematoma of the rectus sheath, a fracture of the left superior ilium and a comminuted fracture of the right patella and head of the fibula. You needed to be extracted from your grossly damaged vehicle and air lifted to the Royal Melbourne Hospital, where you remained for approximately six weeks, under guard as your parole had been revoked. You then spent a further four weeks at St Vincent’s Hospital, followed by time in prison, much of which was spent in and out of the hospital wing.
37The damage to your bowel required the insertion of a colostomy bag which was supposed to have been removed some three months later. Due to a combination of circumstances, which seems to have included restrictions relating to the COVID‑19 pandemic, you ended up having the colostomy bag in place for over three years, and only underwent surgery on 1 June 2022 to have it removed. I accept that having a colostomy bag in a custodial setting for over three years has been humiliating and extremely difficult for you, particularly given your anxiety and depression. There apparently have been times when replacement bags have been slow to be supplied and this has resulted in mortifying personal circumstances in which your colostomy bag has overflowed causing soiling. In addition, you have a legacy of a painful and dysfunctional right knee to do with the seriously comminuted and displaced intra-articular patella fracture and problems of ongoing non-union sustained in the collision. This apparently required further surgery, with resultant infections and accompanying very significant weight loss. You suffer ongoing pain and limitation of mobility and it is likely that you will have to retrain in order to be able to find some alternative work to the scaffolding and concreting work of a heavy nature which you have done in the past. In sentencing you, I take into account these extra curial consequences.
38Mr Richter urged the Court to note that by reason of the delay in this matter you had lost the opportunity of concurrency of the sentence to be imposed by myself with the remainder of the parole period (4 months and 3 days) which you were required to serve, as well as with the total effective sentence of 6 months’ imprisonment imposed on 30 April 2021 in the Melbourne Magistrates’ Court for theft of a motor vehicle and driving whilst authorisation was suspended.
39I acknowledge that there has been delay between the date of offending on 11 May 2019 and the matter ultimately coming to conclusion at trial on 30 March 2022 (in some part attributable to the restrictions imposed by the COVID‑19 pandemic which made the running of trials impossible for quite some time in the State of Victoria) and further delay between your conviction and the plea hearing on 14 June 2022 due to the need for counsel to prepare for the plea and further delay until today, 12 August 2022, the date of sentence, due to my being on circuit and then on leave following the filing of further submissions on sentence from the prosecution dated 16 June 2022[36] and supplementary plea submissions filed on your behalf on 23 June 2022.[37]
[36] MFI-“E”
[37] MFI-“2”
40I do take into account the impact of delay in two ways, namely, the fact that, since the commission of the offence, particularly since being re-remanded in custody on 24 August 2019, you have undergone some rehabilitative steps and, also, have had your fate hanging over your head in a protracted way, particularly given your psychological conditions of depression and anxiety. However, I find it difficult to imagine how there could have been concurrency achieved with the period of 4 months and 3 days parole which you were required to serve after your parole was cancelled on 14 March 2019. This was only three days after this very serious collision, which required significant investigation and the interviewing of witnesses. Even had all relevant evidentiary material been amassed at lightning speed, and, even had you pleaded guilty to the offence, it is highly unlikely that you would have been sentenced prior to the expiry of that period of 4 months and 3 days. It is pertinent to note that that related to the County Court sentence of 5 years with a non‑parole period of 3 years imposed on 12 December 2015 and that you had previously struggled with your parole, which had been earlier cancelled on 10 May 2018 prior to you being re‑paroled on 11 December 2018. In any event, that sentence related to seriously bad driving which comprised a charge of reckless conduct endangering persons committed on 10 September 2005, as well as the breach of a suspended sentence imposed on 26 June 2007 for trafficking in a commercial quantity of MDMA, and a further breach of a Community Based Order imposed on that same day, two counts of trafficking simpliciter in other illicit drugs and one count of possession of a drug of dependence. Given these factors to which I have referred, even had the matter been brought on with extraordinary expedition, the discrete nature of the offending to which the unserved parole period related makes it unlikely that any concurrency with the sentence for dangerous driving causing death would have been given.
41Your offending on 24 August 2019, only three weeks after you had been re-released from custody after completing the reclaimed parole period and five months after the serious offending for which I must sentence you, is again discrete offending involving theft of a motor vehicle and driving whilst authorisation had been suspended. Again, I must query whether in those circumstances, concurrency with the sentence for the charge of dangerous driving causing death would have been granted. However, I do take into account that the delay in the offence of dangerous driving causing death ultimately being brought to a conclusion in this Court in the two ways to which I have previously referred. I also take into account in a general way as part of the principle of totality that, since the commission of the offence of dangerous driving causing death three years and five months ago, you have served the cancelled parole period of 4 months and 3 days and the sentence of six months imposed on 30 April 2021 as well as a significant period of time on remand for the offence for which I must sentence you, namely at total period of pre‑sentence detention up until yesterday of 930 days.
42I also take into account that during the period that you have been in custody since March of 2020, the conditions in custody have been extra onerous due to the restrictions occasioned by the COVID‑19 pandemic. This has involved various periods of lockdown and reduced out-of-cell time, reduced availability of rehabilitative and educational programs and suspension of contact visits to prisoners from family and friends. I acknowledge the extra burden that these restrictions have occasioned during this time and acknowledge that you have been very physically isolated during these two years, particularly from your father, who had visited you regularly throughout 2019 and early 2020. You are entitled to a meaningful discount on your sentence by reason of this added burden of your incarceration.[38] I acknowledge that this has been a genuine difficulty for you, coming on top of your psychological ill health, as well as your physical injuries and pain and limitations, both of which have made your time in custody already more difficult than for a prisoner who does not have either your psychological or physical impairments.
[38]Worboyes v R [2021] VSCA 169
43In sentencing you, I have taken into account the maximum penalty of 10 years’ imprisonment which is a reflection of the seriousness of the offence. I have also taken into account current sentencing practices insofar as other sentencing decisions provide yardsticks. In Stephens’ case, the Court of Appeal indicated there should be an uplift in sentences for offences in the mid category and beyond of seriousness. I have already stated that I do not consider that your offending is towards the lower end of the scale but, in my view, taking into account all of the circumstances put before me, it does not quite reach the mid category of seriousness. I have taken into account generally the purposes for which sentences may be imposed as detailed in s5(1) of the Sentencing Act 1991. In particular, I have noted that, in sentencing for this serious offence, which Parliament has classified as a Category 2 offence, a Court must impose a sentence of imprisonment unless certain circumstances set out in s5(2H)(a)-(e) of the Sentencing Act apply, which your counsel has conceded do not apply in this case. In sentencing for an offence of this type, the Court must denounce your conduct and give weight to general deterrence and specific deterrence (although, as I have stated, the weight to be attributable to the latter is now less than it would have been had you not already undergone some punishment and rehabilitation in the years that have elapsed since your offending) and protection of the community.
44Despite decades of hard-hitting Transport Accident Commission advertisements cautioning drivers to mindful of their obligations to other road users, needless deaths occur prevalently on our roads due to drivers, like you, who do not pay reasonable attention to their obligation to appropriately control and manage their vehicles and keep a proper lookout generally. In sentencing you, I have also taken into account the catastrophic impact, physical, emotional and financial, upon Mr Webb’s family as detailed in the victim impact statements, while being conscious, as I have stated, that nothing I do or say can in any way rectify the devastation that your offending has had upon their lives.
45Mr Nichols, there is no need for me to tell you that you have a bad criminal history which, over the years has involved breach of a number of rehabilitative dispositions. These have included failure to comply with an adjourned undertaking, failure to comply with Community Based Orders, failure to comply with sentences of imprisonment which were wholly suspended and also two breaches of parole. It is apparent that much of your criminal offending is associated with a long-term substance abuse problem and I acknowledge the difficulty of rehabilitating yourself from such a problem, particularly given that your use of and dependence upon both alcohol and illicit drugs began at an early age when your brain was still developing and in circumstances where your own mother, who had substance abuse problems and psychological problems, failed to provide any appropriate guidance.
46I also acknowledge that your disadvantaged upbringing has had long term and enduring consequences for you which have meant that maladaptive coping mechanisms have become entrenched and, hence, your cycle of drug use and offending has continued.
47There was no substance abuse involved in the offending for which I must sentence you, however, you had become embroiled in a relationship with a young woman whom you had visited at Donald at your mother’s home, where she was living, shortly prior to the collision occurring. Material from Corrections Victoria relating to your periods on parole reveals that you seemed to be obsessed with “fixing” your partner’s issues, whilst losing focus on your own needs, even though you were supported at that stage by your father, had employment and also were engaging in drug and alcohol counselling.[39] It is an unfortunate irony that, for the first time in many years of offending, you actually seemed to be doing better in the community than previously leading up to the commission of this offence. You were honest with your supervising parole officer about the struggle you were having with remaining free of illicit drugs and were enjoying working hard as a concreter on multiple days per week and living with your father and having his support.
[39]Risk and Compliance Reports dated 15 February 2019, 13 March 2019 and 14 March 2019, part of Exhibit “5”
48Unhappily, despite the absence of drugs or alcohol in your blood at the time of the collision, you still demonstrated a seriously irresponsible attitude towards your obligations as a driver. I have already referred to the fact that only a couple of weeks prior to the collision you had incurred a traffic infringement notice for driving in excess of 40 kilometres per hour in excess of the speed limit and, even after the collision in which Mr Webb was killed and you had served the balance of your reclaimed parole and were released into the community on 31 July 2019, within approximately three weeks, you again reoffended by driving whilst authorisation was suspended, stealing a car, careless driving and other charges, which resulted in you being remanded in custody again.
49Since being returned to custody, you appear to have tried hard to develop some insight into your offending, even though it has been physically and psychologically difficult for you in custody because of your injuries sustained in the collision and your mental health problems generally. Although there has been a relative lack of available rehabilitative programs during the restrictions imposed because of the COVID‑19 pandemic, in 2019 you had undertaken two courses and, more recently, on 20 May 2021, you undertook a Release Related Harm Reduction Program.[40] In addition, there have been some 10 reports of urine screens taken between 12 December 2018 and 19 September 2019, which showed a lack of illicit substances. Unfortunately, it appears that during the COVID‑19 pandemic whilst on remand you have not been screened for further drug tests. However, it does seem that you are endeavouring to reform your ways.
[40]Exhibit “4”
50The letter which you wrote to the Court[41] demonstrates that you are developing some degree of insight into your reasons for offending and an attitude of determination not to give up and to try to use your time in custody wisely. You have apparently increased your reading ability and are a regular borrower of books from the library. This is no mean achievement given your limited and disruptive education which finished when you were approximately 14 years of age. Your father in his reference to the Court[42] notes the difference that he has seen in you and the fact that, apart from reading, you have learnt to play guitar and have taken up drawing. Thus, although your criminal record is appalling, it would be wrong of this Court to ignore your prospects of rehabilitation. You are still relatively young, 36 years, and there is still time to turn your life around. Having said that, it is still fairly early days, given your lengthy history of substance abuse and antisocial offending whilst you have been at liberty in the community. Whilst this Court would like to hope that you can be rehabilitated, at this stage, I am guarded in my view of your prospects of rehabilitation.
[41]Exhibit “3”
[42]Exhibit “2”
51On one charge of dangerous driving causing death, you are convicted and sentenced to be imprisoned for a period of 4 years.
I direct that you serve a period of 3 years before becoming eligible for parole.
I declare a period of pre‑sentence detention of 930 days to be time reckoned as already served under the sentence imposed this day.
52Pursuant to s89 of the Sentencing Act, I order that all licences to drive a motor vehicle are cancelled and that you are disqualified from obtaining a licence for a period of 2 years.
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