Director of Public Prosecutions v Nicholson

[2017] VCC 952

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00490

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRENCE NICHOLSON

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 July 2017
CASE MAY BE CITED AS:	DPP v Nicholson
MEDIUM NEUTRAL CITATION:	[2017] VCC 952

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Ms. F Martin
For the Accused	Mr B. Newton	Mr G. Hervera

Pages 1 - 7

 

 

HIS HONOUR:

1Terrence Paul Nicholson, you have pleaded guilty to one charge of dangerous driving causing death and have agreed to a summary charge of being the driver of a vehicle that was moving on a road and using a mobile phone to which you pleaded guilty.

2You have admitted your criminal record, which includes a number of .05 matters from the 80s.  You also have a recklessly cause serious injury in November 2003 and your current demerit points history was also tendered and that includes a number of speeding matters from early 2000 until 2015. 

3Victim impact statements were tendered and read by the deceased's two daughters.  They were moving accounts of the effect that the loss of their mother has had upon them and their families and I take their contents into account.

4The facts of the matter are set out in Exhibit 1, the prosecution opening, and apart from the minor matters mentioned by your counsel during the plea, they are accepted by him.  I will not read the whole summary to the court.  Any reader of these reasons can refer to that summary to place the sentence in its full factual context. 

5Briefly stated, the collision occurred at about 6.08 am on the Western Ring Road at Laverton North in the middle of the three southbound lanes adjacent to the Boundary Road exit.  It occurred when you were driving a heavy vehicle, a Volvo Prime Mover, towing two empty stock trailers, failed to stop in time and collided into the rear of a Toyota vehicle, causing a chain reaction by shunting vehicles into each other.  A total of six vehicles were involved in the accident.  The victim was in the Toyota vehicle and unfortunately she passed away some 12 days later. 

6Whilst not exceeding the speed limit, your speed at the time was too fast for the traffic conditions, especially for the vehicles immediately in front of you, and well in excess of a speed that was safe in the circumstances of the traffic at that time.  Drug and alcohol tests were conducted on you but nothing was detected. 

7You had left Yarra Glen, travelling through Christmas Hills to the Western Freeway.  The victim was on her way to work as she was travelling southbound on the Ring Road, the traffic ahead of her came to a halt and she was in the process of slowing to a complete stop when the collision occurred. 

8An expert reconstruction policeman, Detective Leading Constable Michael Hardman conducted a number of tests and found the following. Prior to impact, the vehicle driven by the deceased was travelling at 82 kph four seconds before impact.  At two seconds before impact, she pressed her brake pedals and at the moment of impact, she was travelling at 36 kph. 

9By reference to the commencement of the skid of your vehicle, you were travelling at a minimum of 99 kph.  At the time of collision, you were travelling at 70 kph.  You were between 38.7 to 60.8 m from the deceased's vehicle when you first perceived the hazard in front of your truck.  There was a minimum of 500 m of sight distance available to you in the lead up to the collision. 

10You were interviewed by police on 16 June 2016.  When asked what had occurred, you said, "I looked up and I seen the traffic just stop, like where the traffic was doing 100 k's, just stopped, and by the time I put my brakes in, I crashed into the cars."  You were asked how often you had driven the prime mover and you said, "I suppose over 12 months, once a week, twice a week, maybe." 

11You said you were just cruising along, you were not going "real fast" - I think that should be, "Didn't have to rush.  Everybody had their lights on."  You were in the middle lane, you said, "There was a fair amount of traffic, it was heavy."  Started to travel uphill, you said, "I looked up and I see the traffic stop, dead stopped straight away.  I hit the brakes and slammed into them all, that's how quick it was." 

12When asked if you recalled any other cars around you at the time, you said, "No, not really.  I was watching, like looking around anyway."  When asked why you did not see the traffic ahead and why you were not able to stop, you said, "I sorta, was sorta looking ahead but then I was looking over them, looking ahead, and then I sort of - I don't know - that was - I came up on them but they just stopped.  Know what I mean?  The traffic stopped all of a sudden."

13When asked why it would appear he was not full attention, you said, "Yeah, probably concentrating on the traffic up the front."  When you were asked if your driving was a momentary inattention by not watching the traffic, you said, "You'd probably say that but not really.  I don't know, I don't really know." 

14You have made admissions to, earlier on, using a mobile phone which, on the analysis, was approximately 6 minutes prior to the collision. 

15In mitigation, Mr Newton, your counsel, relied on the following matters, (1), your plea of guilty.  I accept that it was an early plea.  It has saved the court the cost and expense of a jury trial.  It also is an indication of an acceptance of responsibility by you for your actions and has been given the appropriate discount; (2), you have shown remorse and I accept that; (3), he submitted that your offending was not in the mid-category, either for this type of offending or for your involvement in it; (4), he made a submission which, after discussion with me, he withdrew along the lines of a case of Verdins; (5), he submitted that you have been cooperative with police and; (6), he submitted that you had very good prospects of rehabilitation.

16He tendered a report, from Pamela Matthews, a forensic psychologist, dated 6 July 2017.  I have taken its contents into account and also the other items that have been tendered on your behalf.  In the report of Ms Matthews, you expressed remorse and showed insight into understanding the impact the death of the deceased would have on her family.  It sets out your family history - I will not go through that. 

17You left school at form 3 and then began a working career that involved jobs at sale yards, on farms, carting livestock, going to Alice Springs, and truck driving. 

18You have three children and you reported a close and happy family.  It says you gave up alcohol after you started driving trucks.  You had a mini stroke when you were Alice Springs and again in 2015.  You are on ten medications a day and you also have diabetes. 

19A number of psychometric assessment tests were conducted on you and they placed you within the borderline range of intellectual functioning and suggested that you had a learning disability that has never been addressed appropriately.  You have a low level of cognitive functioning, aggravated by your stroke, particularly regarding verbal comprehension and language skills.  Your intelligence is in the borderline to low-average range of 70 to 89 per cent. 

20Ms Matthews attempted to link the results of that test and your stroke to your culpability for this driving.  As I indicated to your counsel during discussion, in my view, the disabilities that Ms Matthews referred to do not come within the description of a mental impairment and if they did, she does not make the necessary cause or connection between those matters and what has occurred here. 

21She talks about complex traffic events unfolding before you.  In my view, there is nothing complex about driving along the Ring Road at 6 o'clock in the morning in a line of traffic and keeping a proper lookout.  She also said that you are likely to have a more difficult time in custody because of your social, emotional, psychological problems and I have taken that into account. 

22In sentencing you, I am required to assess the range of offending.  I have to confess I am not comfortable with that type of language and if left alone, I would state that my view of the accident is expressed in the sentence that I give.  But as I am required to do so, I will. 

23Given the sight distance available to you in the lead up to the collision, a minimum of 500 m, and that you were 38.7 to 60.8 m  from the deceased's vehicle when you first perceive the hazard in front of your truck, it is my view that this was a serious breach of the proper management and control of your vehicle.  Your lapse of attention and failure to keep a proper lookout in combination with the speed leads me to assess the nature and gravity of your offending to be in the mid-range, both as to the level of your culpability and as to the range in connection with this type of offending. 

24By your actions, you placed a number of other motorists in a position of severe risk of either serious injury or death.  Six other vehicles were affected by your actions.  From your answers in your record of interview, you seem to have little idea as to why your concentration and attention was so poor and thus really no idea why the accident had occurred. 

25There are significant mitigating factors pointed out by your counsel, which include your early plea of guilty, your genuine remorse, what I assess to be your good prospects of rehabilitation, your family support, your age, your health, and your time in custody will be difficult.

26However, in sentencing you, the overriding sentencing consideration is what is called general deterrence, a premium is placed upon the loss of human life and thus general deterrence is an important sentencing factor. I am required, to balance the interests of the community in denouncing criminal conduct with the interest of the community, seeking to ensure, as far as possible, offenders are rehabilitated in society.  I express my denunciation of your behaviour. 

27The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victim, if any. 

28General deterrence may not be a phrase familiar to many in the court but what it means is that the courts have to impose a sentence that somehow tells the community that if drivers indulge in this sort of behaviour, there are serious consequences. 

29Taking all those matters into account and upon a consideration of the cases that were mentioned during the course of the plea and current sentencing practices, I have arrived at the following sentences. 

30In relation to the charge of dangerous driving causing death, I sentence you to a term of imprisonment of four years with a non-parole period of two years and six months. 

31In relation to the mobile phone charge, I fine you in an amount of $500.  I grant you a stay of three months to pay it.  PSD, is it two or three days?

32MR LIVITSANOS:  Two days, Your Honour.

33HIS HONOUR: I declare that the two days you have already served to be reckoned as part of the term of imprisonment that I have just imposed. I declare, pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury - well, it is difficult to estimate but doing the best I can, I would have sentenced you to at least six years with a non-parole period of four and a half years.  Are there any other matters I need to consider?

34MR LIVITSANOS:  There is, Your Honour.  I note if Your Honour looks at the second ‑ ‑ ‑

35HIS HONOUR:  The license?

36MR LIVITSANOS:  Yes, Your Honour.

37HIS HONOUR:  Yes, thank you.  Your driver's license is cancelled and you are disqualified from obtaining a car licences for a period of ten years.  Any other matters?

38MR LIVITSANOS:  No.  As Your Honour pleases. 

39HIS HONOUR:  All right, thank you.  Take Mr Nicholson out, thank you.

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