Director of Public Prosecutions v O'Connor
[2017] VCC 1495
•13 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01040
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW TERRENCE O'CONNOR |
---
JUDGE: | His Honour Judge Wischusen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea 26 September 2017; Mention 6 October 2017 | |
DATE OF SENTENCE: | 13 October 2017 | |
CASE MAY BE CITED AS: | DPP v O’Connor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1495 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death; failing to stop and render assistance after an accident; and summary charges of committing an indictable offence whilst on bail; and driving a motor vehicle whilst authorisation to do so is suspended
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991
Cases Cited:Stephens v The Queen [2016] VSCA 121; Wassef v The Queen [2011] VSCA 30; Veerman v The Queen [2012] VSCA 194.
Sentence: Convicted and sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years. Licences cancelled and offender disqualified from driving for a period of two years. Section 6AAA declaration: total effective sentence of seven years’ imprisonment with a non-parole period of five years’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Office of Public Prosecutions |
| For the Offender | Mr A. Chernok | Haines & Polites |
HIS HONOUR:
1 Mathew Terrence O’Connor, you have pleaded guilty to one charge of dangerous driving causing death, and to one charge of failing to stop and render assistance after an accident.
2 In addition, you have pleaded guilty to the summary offence of committing an indictable offence whilst on bail – Charge 6 – and to one charge of driving a motor vehicle whilst your authorisation to do so was suspended – Charge 7. You have agreed to have those summary matters dealt with by me.
3 The maximum penalty for dangerous driving causing death is ten years' imprisonment. So, too, is the maximum penalty for failing to stop and render assistance. The maximum penalty for driving whilst suspended (in your case, a subsequent offence, there being a large number of prior offences of this sort) is two years' imprisonment, or 240 penalty units, and the maximum penalty for committing an indictable offence whilst on bail is three months' imprisonment, or 30 penalty units.
1Now, before dealing with the circumstances of the offending, I should acknowledge that your offending caused the death of Peter John McGuffie. He was only 54 years of age. His death has caused profound and lasting grief and distress to his partner, Simone Jones, and his sister, Lynda Atkinson, from whom moving and dignified victim impact statements were read on the plea. They show that Mr McGuffie was a kind, caring, gentle and selfless man, who was much loved by those he leaves behind.
2I should say also to those members of Mr McGuffie’s family who are present or hearing this remotely, his partner and his friends, that any sentence imposed here today is not to be understood as in any way placing a value on the life that has been lost, or upon the grief and emotional trauma that his death has caused.
4 Now, the circumstances in which the offending occurred are set out in the summary of prosecution opening for the plea. It became Exhibit 1, and , through your counsel, you accepted the accuracy of it.
5 Shortly stated, on the afternoon of 23 June 2016 you were driving a white Holden Rodeo utility in an easterly direction on Barkly Street, West Footscray. It was daylight, it was dry, the visibility was clear, and the traffic was medium. At that point, Barkly Street is a two-way carriageway, with a single lane for the traffic proceeding in each direction and a clearly marked lane on each side of the road for parked cars.[1] The speed limit was 60 kilometres per hour.
[1]Photo 1, Exhibit 2.
6 Behind your vehicle and proceeding in the same direction was a Toyota Camry, driven by the witness Stephen Morris. Just ahead of your vehicle, within the parking lane on your left, was the deceased, Peter McGuffie. He was riding a bicycle, heading in the same direction as you, and wearing a high visibility jacket and pants.
7 What happened next is described by Steven John Morris[2] in these terms,
"I observed the white ute swerve off to the left, it was an erratic movement. He went over towards where cars are parked on that side of the road. He may have even hit the curb on the other side of the road. That’s how far across he went."
[2]Depositions page 30.
8 Mr Morris noted that as this occurred, that the road ahead of you was clear, and he could see no reason for you to swerve. He then stated, "As he was on the other side of the road I heard a crunching sound and saw a lot of debris coming from the front of his car." In the course of submissions on the plea, I raised with counsel what the meaning of the references to "the other side of the road" should be taken to mean, and I was informed that it was common ground between the parties that although it sounds ambiguous, the swerving referred to was a singular swerve into the left-hand parking lane for the direction in which your car was travelling.
9 Exhibit 1 continues. After swerving to the left, your vehicle collided with the deceased on his bicycle in the parking lane, threw him off his bicycle and onto the side of the road outside number 62 Barkly Street, where he died of the injuries inflicted in the collision (Charge 1, dangerous driving causing death). Next, you collided with the rear of a Toyota Aurion, parked a little further to the east down Barkly Street. You struck it with such force that it was extensively damaged and moved some 57 metres before it came to rest on the eastern side of the intersection of Barkly and Argyle Street.[3]
[3]Photo 12 and 13, Exhibit 2.
10 Despite striking both the deceased and the Aurion, you continued driving and turned left into Argyle Street, followed by Morris, who was concerned that you were going to flee the scene. Your extensively damaged vehicle was observed swerving left and right as it drove about 200 metres up Argyle Street, shedding parts, before you parked it on the left-hand side of the road. Morris, who was still following, pulled up beside your vehicle, with the intention of taking a photograph of you on his phone. You left your vehicle and walked along Broad Street, which turned out to be a dead end. Again you were followed by Morris in his vehicle. On reaching the dead end, you doubled back to your utility, and at this point, Morris yelled out at you, saying "Oi, you! You’re the guy that just hit that cyclist." You began to walk away, and Morris photographed you with his phone.[4] You then abused and threatened Morris, who drove off whilst you ran after him. Morris had to stop when he got back to the intersection of Barkly and Argyle Street, and there, you passed him and ran from the scene. After leaving the scene, you discarded the overalls and long-sleeved top you had been wearing, and proceeded in only shorts and a singlet. These are the circumstances giving rise to Charge 2, failing to stop and render assistance after an accident.[5]
[4]Depositions page 218.
[5]Submissions were later heard as to how this breach of both ss.61(1)(a) and 61(1)(b) of the Roads Safety Act 1986 was to be approached. Both parties agreed that it was, on a plea, appropriate to charge the breach of both obligations as a single charge and, for sentencing purposes, the gravity of each breach was to be assessed separately, and a single sentence imposed.
11 Whilst all this was happening, a number of persons – motorists and local residents – were attending the deceased and rendering what assistance they could, whilst also calling emergency services. Their efforts and those of the emergency services who attended were to no avail, and the deceased died of the multiple injuries you inflicted upon him at the scene.
12 On inspection of the utility you were driving, no mechanical cause was found that might explain the accident. The Major Collision Investigation Unit examined the scene and calculated that the collision with the bicycle occurred in the parking lane, and at the time of the collision with the Aurion, which happened after you had struck the deceased, you were travelling at a speed somewhere between 35 and 73 kilometres an hour.
13 Now, when this happened, only a month or so before, your bail had been extended by the Melbourne Magistrates' Court until 7 July 2016, in relation to a number of charges that were pending in that court. Those charges included four counts of drive whilst authorisation suspended, exceeding the speed limit, and trafficking in amphetamines (Summary charge 6, committing an indictable offence whilst on bail).
14 At the time of this offending, your licence had been suspended, with effect from 16 March 2016 for a period of six months, and so your driving on this day gives rise to Charge 7 – drive whilst authorisation to do so is suspended.
15 The police were unable to locate you until the following day, when you were found at your father’s home in Heidelberg, hiding under a blanket in the lounge room. At the time, it was a condition of your bail that you reside with your grandmother at her house in North Fitzroy. After your arrest, you participated in a record of interview.
16 A great many references to the answers you gave are set out in Exhibit 1, the prosecution opening on the plea. In summary, you disclaimed any accurate memory of the collision with the deceased, and the account you gave included, "[A]ll I remember is someone pulling – jumping out in front of me sorta thing, like – and I've shit myself and hit the brakes and sorta swerved and then, yeah, I've just hit the parked car, and, yeah, I think a bike or something."[6] You denied a memory of your exchange with Morris about the photograph, and you explained your flight because you were "just freaking out."[7] You denied that drugs or alcohol had affected your driving, and stated that you had been feeling tired for the last four or five days, and shouldn't have been driving at that time. You did allow that you had taken your clothes off to get away, so that you could "get everything sorted out,"[8] and repeated that you could not remember whether you saw the deceased before your vehicle hit him.
[6]Question and answer 44, record of interview.
[7]Question and answer 76, record of interview.
[8]Question and answer 300, record of interview.
17 As to why it was that you were travelling east in Barkly Street, the explanation you offered was that you had left a scaffolding job in Moonee Ponds to travel to Reservoir to get more materials. Reservoir is a distance north-east of Moonee Ponds. How it was that you came to be travelling east, a substantial distance south-west of the Moonee Ponds building site, where the collision occurred, is not explained beyond this, "I don’t know. I've taken the wrong turn somewhere."[9]
[9]Question and answer 63, record of interview.
18 Returning to the subject later in the interview, you said you had been to Reservoir, and were heading back to the job. If this was so, how or why you overshot the Moonee Ponds job and ended up in Barkly Street, Footscray is not explained.
19 You have admitted substantial prior offending, and these prior offences have been the subject of sentencing occasions going back to 2008. Your previous traffic convictions showed that your driving record includes a failure to stop after an accident, at least six offences of exceeding the speed limit by substantial margins, a number of offences of driving whilst authorisation suspended, as well as dishonesty offences, criminal damage, recklessly causing injury, and contravening family violence intervention orders. Of relevance also is the subsequent offending, for which you were on bail when these offences occurred, including theft of a motor vehicle, driving whilst authorisation suspended, use and trafficking of methylamphetamine, committing indictable offences whilst on bail, and failure to answer bail.
20 I was informed, without objection, that on the occasion when you failed to stop after an accident back in 2008, the excuse you offered for leaving the scene was, like it was here, that you had panicked.
21 Victim impact statements were read to the court (Exhibits 4 and 5). They show the profound and lasting impact your actions have had upon the deceased’s partner, sister and family.
22 The procedural history of this matter is that you pleaded guilty before committal, which proceeded by way of a straight hand up brief. You have been in custody since your arrest on 24 June 2016, and of that time – I will check this with counsel at the end of the sentence – at least 307 days is to be reckoned as presentence detention in relation to these offences. In the meantime, the offences for which you had been on bail at the time of this offending came before the Magistrates' Court on 4 November last year, and 152 days of presentence detention in relation to those earlier offences was declared.
23 Mr O'Connor, I state to you that I have taken the following matters into account in mitigation of the penalty that I am to impose upon you today.
24 First, your plea of guilty. Entered at the earliest possible stage, I take your plea to be evidence of your remorse for your offending and acknowledgement of criminal responsibility for it. By your plea, you have facilitated the course of justice and saved the community and witnesses the time, stress and cost of a trial. You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.
25 I have taken into account also the expression of remorse you made this morning, when you read the letter (that had not received by the family of the deceased) that you wrote earlier this year.
26 I have taken into account all the matters raised by your counsel in the course of the plea, during which he spoke to detailed written submissions, which became Exhibit 6.
27 The matters your counsel raised include your background and personal circumstances. These are set out in some detail of the report of Mr Jeffrey Cummins, clinical and forensic psychologist – Exhibit 8. I should here mention that no particular psychological factors[10] were identified by Mr Cummins, and so no Verdins[11] matters were raised on your behalf.
[10]Mr Cummins did describe Matthew O’Connor’s presentation “as being mildly anxious and mildly depressed.”
[11]R v Verdins (2007) 16 VR 269.
28 As to your background, shortly stated, you are now 28 years of age, having been born in February 1989. Your parents separated when you were 14, and after that time you lived successively with your mother or your father until completing school, which you did after completing Year 12 VCAL. After leaving school, you worked for a time in construction, before commencing your own business as a scaffolder, and this was the work you were doing at the time of this offending.
29 You left the family home and lived for a time with the mother of your child, a period of relative stability in your life, without offending of any significance. That child is now six years of age and lives with his mother in Brisbane. You have been separated from the mother since about 2014.
30 I have taken into account your family support. Your parents (who have both formed new relationships since their separation) your grandmother, and your brother were in court to support you on the plea.
31 I have noted that Mr Cummins recorded that you had, for a time, been medicated for ADHD during childhood.
32 You have a long history of substance abuse and gambling problems. As Mr Cummins recorded it, you started by trying cannabis at 14, and by 15 and 16, you were experimenting with amphetamines, and by the age of 18 using ecstasy and methamphetamine most weekends, and soon, on the days either side of weekends. Apart from a period of about two years when you were living with the mother of your son, you became a regular user – using daily – until you were remanded last New Year's eve, before being bailed under the CISP system.
33 To Mr Cummins you stated that you had minimal recollection of the accident, telling him that maybe you had "blocked it out."
34 I have taken into account the diligence with which you have approached the education opportunities afforded to you whilst you have been on remand, and certificates and letters concerning the many courses you have undertaken, and concerning your engagement with rehabilitation services since you had been in custody became Exhibits 9 and 10.
35 I have taken into account the content of the character references tendered (Exhibit 7). They include a rather frank one from your grandmother, who accurately describes your driving record as deplorable, and she attests to the great assistance you had been to her during recent difficulties, and to the remorse you had expressed to her for your offending. A further reference from Marcell Pamio describes your strong work ethic and community involvement, and another, from your football club, attests to your commitment to the game and readiness to volunteer. A reference from your mother refers to your ADHD in early childhood, your readiness to assist others in times of difficulty, the problems you had after separating from the mother of your son, and your strong work ethic. You mother sets out in detail her account of your expressions of remorse for causing the death of Mr McGuffie.
36 Despite your extensive history of prior offending, and the fact that you had recently served a period in custody on remand, and were on strict bail conditions when this offending occurred, it does seem that now, nearly 18 months later, you have now quite thoroughly engaged in rehabilitation, and have reasonable prospects of re-employment upon your release. I am persuaded that your prospects of rehabilitation are at least reasonable, with the reservation that people who have been addicted for long periods of time to methylamphetamine are prone to relapse, even after long periods of abstinence.
37 As to the offence gravity, the range of criminality that the charge of dangerous driving causing death covers is wide. It is necessary, as the cases referred to by both parties show, to assess the moral culpability operating here. In my view, this offending falls in the midrange. As Stephens v The Queen [2016] VSCA 121 shows, it is not merely a matter of ticking off a range of aggravating features that are not present in order to arrive at the conclusion (urged by your counsel) that this was at the lower end of the range of objective seriousness. In my view, the sudden swerve from a straight path, in dry conditions and clear visibility, is wholly unexplained and quite inexcusable. Counsel sought to make good the proposition that the answers given in the record of interview should lead me to conclude that because of fatigue, you had “nodded off”. This explanation is only faintly suggested by the answers given in the record of interview, and was not repeated as recently as your interview with Mr Cummins, where you maintained, which was your principal position in the record of interview, that, for unexplained reasons, you could not remember how you came to strike the deceased's bicycle. It is not part of my function to speculate as to why it is that you cannot remember, or why it is that you drove in the manner that you did. What is clear is that you were at least 20 minutes off course from the journey you said you were undertaking, and no explanation for your sudden swerve to the left is before me. In my view, driving in this matter is at least mid-level in the range of moral culpability that this offence covers.
38 Even if I assumed, or found, as your counsel submitted I should, that this driving was the result of fatigue, it must be the case that you were driving in this fatigued state from at least the point at which you overshot your destination, that is, Moonee Ponds. As you are not sure how you had got to the point where your driving killed Mr McGuffie, it must be the case that you had driven a long way across suburban Melbourne in this dangerous and fatigued state. Even if I accepted the submission made, which I do not, it would not change my assessment of the gravity of your offending here.
39 As to the gravity of Charge 2, the reason for the increase in penalty for this offence, which was made by Parliament in June 2005, when Parliament increased the maximum penalty from two years to ten years, was explained in Wassef v The Queen,[12] in a passage more recently cited with approval in Veerman v The Queen.[13]
[12][2011] VSCA 30 [26].
[13][2012] VSCA 194 [30].
40 Although the excuse you offered for your actions after the collision was that you were "just freaking out," I am not persuaded, on the balance of probabilities, that this was so. Having struck the cyclist, you next collided with the Aurion. You pushed it some distance and then drove your damaged car up Argyle Street a further 200 metres. You left your car, walked up and down the dead end, and returned to your car, where you threatened Mr Morris. You ran off, changed your clothes, and you were not discovered until the next day, hiding under a blanket at an address you were not supposed to be living at. In my view, the objective features of your flight from the scene show that it was calculated to avoid apprehension.
41 As the second reading speech explained, one of the reasons for the increased penalty for this offence was,
"[T]o ensure that a person who suspects that he or she might be charged with one or other of these offences (for example because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene."[14]
[14]Wassef v The Queen [2011] VSCA 30 [26], cited in Veerman v The Queen [2012] VSCA 194 [30].
42 In my view, the circumstances surrounding your failure to stop after the accident require general deterrence to be given considerable weight in the sentencing consideration, and I have done so. I should mention that, in the end, counsel for the Director conceded that I must be careful to avoid double punishment by not regarding Charge 2 as an aggravating feature of Charge 1.
43 As to your failure to render assistance, this too is an offence for which the maximum penalty is ten years imprisonment. It, too, covers a wide range of offence gravity. This is not a case in which your failure to render assistance was likely to have made much difference, as first-aid trained people living just where the accident occurred were very soon on the scene, rendering what assistance they could, unfortunately to no avail. Those circumstances stand in contrast to a circumstance where, but for your failure to render assistance, the victim may have survived, or sustained less serious injuries than in the events that happened, than they did.
44 As I have said, the authorities show that general deterrence is to be given weight in the sentencing consideration for both Charges 1 and 2, and, in your case, because of your deplorable driving record, and an earlier relevant conviction for failing to stop after an accident, and the fact that you were suspended from driving and on bail for driving offences at the time, specific deterrence and protection of the community must also be given weight in the sentencing consideration. Further, I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and to otherwise impose just punishment.
45 Matthew O'Connor, on Charge 1, dangerous driving causing death, you are convicted and sentenced to a term of imprisonment of four years. On Charge 2, failing to stop and render assistance, you are convicted and sentenced to a term of imprisonment of three years.
46 On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.
47 On the summary charge of driving whilst authorisation is suspended, you are convicted and sentenced to a term of imprisonment of one month.
48 I direct that one year of the sentence imposed upon Charge 2 be served cumulatively upon the sentence imposed upon Charge 1, and that all other sentences are to be served concurrently, making a total effective sentence of five years' imprisonment.
49 The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist. For that reason, it is not fixed automatically. All relevant factors and sentencing principles are to be taken into account, and I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision. In all the circumstances, I direct that you serve a minimum term of three years before becoming eligible for parole. Have counsel calculated presentence detention?
MS PARKES: 324 days, Your Honour.
HIS HONOUR: Do you agree with that?
MR CHERNOK: Yes, Your Honour.
50 HIS HONOUR: As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 324 days, which is to be reckoned as time already served under this sentence. I direct that this be noted in the records of the court.
51 All licences held are cancelled, and you are disqualified from driving for a period of two years from this date.
52 Pursuant to 6AAA, I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of seven years, with a non-parole period of 5 years. Are there any other matters?
MS PARKES: No, Your Honour.
MR CHERNOK: No, Your Honour.
HIS HONOUR: Would you remove the prisoner, please.
- - -
5
0