Director of Public Prosecutions v O'Neill

[2020] VCC 648

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02366

DIRECTOR OF PUBLIC PROSECUTIONS

v

HEIDI O'NEILL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2020
DATE OF SENTENCE:	18 May 2020
CASE MAY BE CITED AS:	DPP v O'Neill
MEDIUM NEUTRAL CITATION:	[2020] VCC 648

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr B. Johnston	Emma Turnbull Lawyers

HER HONOUR:

1Heidi Marie O'Neill, you have pleaded guilty before me to one charge of dangerous driving causing death and one summary charge of driving a motor vehicle with more than the prescribed concentration of drugs present in your blood.

2The facts underlying this offending are as follows.  On 9 May, the victim in this matter, Winton Wells, who was aged 78 at the time, had driven with a friend to Ballarat as he had an appointment with an optometrist.  He parked his car directly opposite Kevin Paisley Fashion Eyewear, where he was undertaking the testing in the centre median strip of Sturt Street, the main street in Ballarat.

3He underwent an examination of his eyes as he had previously had cataract surgery, drops were instilled into both his eyes which dilated his pupil and he stayed at the premises for about an hour, then walked towards his car.  In doing so, Mr Wells crossed Sturt Street from between parked cars.  Unfortunately, he was not using a pedestrian crossing of any kind.  He essentially walked into oncoming traffic.

4He crossed one lane before reaching a second lane, where you,
Ms O'Neill, were driving your vehicle and collided with Mr Wells as he was walking across Sturt Street.  The collision occurred in the right-hand lane. 
A reconstruction of the collision scene found that you had been travelling between 40 to 48 kilometres per hour at the time of the collision.  Sturt Street has a 40 kilometre speed limit at that point.  The traffic was relatively light at the time.

5Ambulance officers arrived at the scene within a few moments, taking Mr Wells to the Ballarat base hospital with life-threatening injuries.  He was taken by air ambulance to the Royal Melbourne Hospital.  He died on 29 May 2018 from injuries that he received.  Therefore, there was a matter of some 20 days between the accident and Mr Wells' death.

6The particular aspect of dangerousness upon which the Crown rely on in this case is a failure by you to keep a safe and proper lookout.  There is no allegation that speed or any other unsafe driving had a part in Mr Wells' death.

7Police spoke to you at the scene, and it was noted that you displayed no signs of impairment, and they conducted a preliminary breath test which did not indicate the presence of alcohol.  You then submitted to a preliminary oral fluid test, which indicated the presence of an illicit substance, later found to be methylamphetamine.  The driving in which you engaged resulting in Mr Wells death underlies the charge on the indictment of dangerous driving causing death.  You are also charged as a result of having methamphetamine in your system of driving while exceeding a prescribed concentration of drugs in your blood stream.

8It is important to emphasise that the prosecution are not able to say that the fact you had these drugs in your system contributed in any way to the death of
Mr Wells.  You were interviewed on 5 September 2018 at which time you told them that at the time you were driving, you were doing banking for work.  You simply did not see Mr Wells; you did not see him crossing the road.  You felt like he simply appeared.  You believed that the A pillar next to the windscreen of the car that you were driving obscured your vision.

9You said that you had taken a small amount of methylamphetamine the night before, which helped you with your lupus, an autoimmune disease, as you had problems with your left leg and that moving around and taking methamphetamine helped cope with the pain.  Methamphetamine also you said, kept you awake because you were so tired from being in pain.  I will outline the various physical conditions you were suffering later in these sentencing remarks.  You also expressed remorse for your actions, saying you were “just so sorry”.

10I received a victim impact statement from Mr Wells' wife, and it made for very sad reading.  Mr and Mr Wells had been married for 59 years.  They had no children, and as Mrs Wells said in her statement, totally relied on each other.  The loss of her husband has impacted Mrs Wells life in many ways.  In particular, she talks about her loneliness, that she has trouble sleeping, stating, 'I just get so lonely at night.  Every sound is amplified, it is so frightening and for the first time in my life, I am by myself in a house'.

11There have been financial impacts.  She has lost her husband's pension.  She says she no longer has the monetary resources available to her that took care of all her basic supplies, such as energy and food costs.  She has trouble balancing income against her expenditure.  Socially, she finds it, she says, excruciating going to social functions and business functions alone.  She stated, 'Most couples attend social functions, and a woman by herself is quite often ostracised.  You are just not included in couples' plans'.

12Overall, Mrs Wells said she no longer felt personally safe, that in driving a car she worries about something going wrong.  She talked about her fear at night and essentially though, not a particularly long victim impact statement, it was a very vivid one, and it is clear that there is very much sadness and loneliness in Mrs Wells life, as a result of the death of her husband.

13I now turn to your personal circumstances.  You are 37 years old; you grew up in Warrnambool, the elder of two daughters born to your parents.  You apparently had a happy and unremarkable childhood.  You completed a good Year 12 at Brauer College and as a talented singer, then took up the performing arts degree at Ballarat University which you completed in 2003.  Whilst at university, you supported yourself waitressing and working at Sovereign Hill. 

14Once you completed your degree, you returned to Warrnambool to live with your parents and undertook a TAFE Certificate IV in childcare.  In those years, you began a relationship with Jobie Lebrouwer and a year later, at age 23, found yourself pregnant with twins.  This was an unplanned pregnancy, it would appear, not particularly supported by the father.  Nevertheless, you had your twins, Ali and Jet who are now aged 14.  The relationship ended after two and a half years, and Mr Lebrouwer returned to his parents' home in Bairnsdale, where he still lives.

15In 2009, you formed a relationship with a new partner, Matthew Riley, and moved with him to Hobart, where you worked as a retail store manager, and then for Bupa Insurance.  A planned pregnancy tragically ended after 26 weeks, requiring surgical intervention.  Eventually, the relationship faltered and ended in 2004.  You then obtained an internal transfer with Bupa to Ballarat, where you have lived ever since with your twins.

16In Ballarat, you have continued to work, moving from work with Bupa to retail work at Myer, then ultimately, working for a hospice organisation in charge of volunteers at their two op shops.  At the time of this accident, you were overseeing 65 volunteers and had worked for that organisation for two and a half years.  It is clear, therefore, that you have a good and responsible employment history.

17In 2015, you began a relationship with a man who was a former nurse who had lost his job due to drug and alcohol problems.  This has been a tumultuous relationship and caused you an amount of distress.  He introduced you to the use of drugs, which you used on an intermittent basis, but never more than that, particularly it would seem, because of the physical difficulties causing you pain which you then developed.

18In 2016, you suffered a prolapsed disc for which you were prescribed anti-pain medication.  Then in 2017, you were prescribed medication for depression and anxiety which may well, it would seem, have arisen from the pain you were experiencing and the difficulties in your relationship.  In 2018, you began suffering symptoms of lupus disease, which included severe headaches and joint soreness.  You were also prescribed medication for this including Lyrica, which is usually prescribed for epilepsy.

19As is already probably been clear in my sentencing remarks so far, you started intermittently using methamphetamine because of the pain you were suffering, and also because of the exhaustion the pain was causing you via your difficulty in sleeping.

20On the day of the offending, you were driving to attend a meeting at one of the hospice shops in Sturt Street, intending to bank the week's taking on the way.  You were not in a hurry, you were not speeding; as I have said, tragically,
Mr Wells stepped out onto Sturt Street onto oncoming traffic.  But as you were travelling in the furthest lane away from him, the charge is laid on the basis of you failing to keep a proper outlook.

21Immediately after the accident, you stopped, you ran to Mr Wells, you screamed for help, for others to call an ambulance.  You attended to bleeding of his head wound, and you stopped others from moving Mr Wells from where he was, as you had had some training in emergency situations and knew that this could cause him further injury.  You were fully cooperative with police, and as I have said, expressed remorse in your record of interview.

22It would seem that since this accident, you have suffered greatly.  I received a report from a psychologist, Jackie White, on whom you have attended regularly, who has diagnosed you as suffering post-traumatic stress disorder.  You were deemed unfit on psychological grounds to work again until August 2019.  Unfortunately, by that stage, the role that you had previously undertaken, had been made redundant.

23You struggled with the psychological response of causing another person's death, and you attempted suicide in early 2019 via overdose.  You remain depressed and anxious.  Immediately, I was informed by your counsel, you undertook to deal with your drug problems.  You have not used for in excess of a year.  Your relationship with your partner ended in September 2019.  This year you finalised custody orders in relation to the twins; you now have sole custody for your children.  They are attending Year 9 at Ballarat High School.  Ultimately, it is your aim, your counsel informs me, to return to Warrnambool to live closer to family and obtain some sort of work there.

24Ordinarily, persons who are engaged in driving causing another person's death can confidently expect a term of imprisonment to be immediately served as a response.  It was acknowledged by the prosecution that your moral culpability in this case is low.  It did not involve many of the aggravating features found in offending of this kind, such as speeding, driving under the influence of drugs or alcohol, involving prolonged periods of unsafe driving, involving showing off, involving a sort of social irresponsibility, that is absent in your case.

25It was the prosecution's submission that I should deal with you by way of a term of imprisonment, combined with a community corrections order, but it was the submission of your counsel, that I should deal with you only by way of a community corrections order.  It is clear, from the authorities, that the primary influential factor in cases of this kind to be determined by a court, relate to the level of seriousness of the offending and the moral culpability involved.  Without in any way detracting from the seriousness of this offending, and the tragic result, that being Mr Wells' death, I am satisfied that your moral culpability is low, and that overall this offending was on the low end of the scale, when compared with other offences of this kind.

26You do have some prior convictions, but they are old, in fact, there is only one, and in my view, has no relevance to the sentencing exercise before me.  There has been some delay in this matter which has not been any fault of yours,  essentially relating to an adjournment of this case because of the COVID-19 crisis, so that I am now looking to sentence you some two years after this offending.

27I am satisfied that it is appropriate that I deal with you by way of placement on a community corrections order only.  In sentencing you, I take it into account your plea of guilty.  I accept that you are entitled to mitigation for this, because you have saved the community the time and expense of a trial, and you have saved witnesses the trauma of giving evidence.  I am also satisfied that your plea of guilty represents remorse on your part.  You were fully cooperative with police and this matter was settled at an early stage.

28I should note that the maximum penalty for dangerous driving causing death is 10 years' imprisonment, and the maximum penalty for exceeding a prescribed concentration of drugs where it is a first offence is a fine not exceeding
12 penalty units.

29Returning to my reasons for deciding not to deal with you by way of any term of imprisonment to be immediately served, it is my view that as I have said, you have remorse for your actions, as demonstrated as I have said, by your cooperation, your immediate attendance to Mr Wells once your car impacted with him, your cooperation with police and in addition, your psychological response to what you did on that day.

30I am satisfied there has been such a response that it comprises what could be said to be extra-curial punishment.  Your psychological suffering in relation to this offending has been extreme.  You are a person who has been pro-social, who has lived a responsible life, you have a good work history, you have raised your children, and you have attended to your drug use which was never it is clear, any sort of addiction.  Again, I repeat, it is not part of the prosecution case that the methamphetamine that was in your system had anything to do with the offending or affected your driving in any way and arose in the context as I have said, of you developing several painful medical conditions.  I am not saying in any way, that your adoption of the intermittent use of this drug was in any way to your credit.  But I am satisfied you have taken responsibility for that drug use and have taken appropriate steps to end it.

31I am satisfied that you have excellent prospects of rehabilitation and do not pose any danger to the community.

32Whilst general deterrence is an important principle in sentencing in cases of this kind, it is my view as I have said, that the low moral culpability and the low level of seriousness in relation, when compared to other possible scenarios for this type of offence, are such that I should proceed to place you wholly on a community corrections order.  You have been found assessed as suitable for a community corrections order.

33You were assessed as being a low risk of general reoffending, to the point that the assessing officer who noted that you had done a great deal of trauma work with your psychologist following this incident as well as dealing with your drug use stated,

'This service is conscious of ensuring that Corrections do not over service her needs'.

34The recommendation for special conditions relating to the community corrections order were simply a mental health condition and community work.  I therefore propose placing you on a community corrections order in relation to the charge on the indictment.

35I do not think I have the capacity to do that; I would be assisted by counsel if they could inform me in relation to the summary charge.  I do not think I can place Ms O'Neill on a community corrections order.  The only disposition I have available is a fine or less; is that correct?

36MR JOHNSTON:  I believe that is the case, Your Honour.  But may I just quickly check that?

37HER HONOUR:  Sure.

38MR JOHNSTON:  Yes, Your Honour.  I think it is going to be a fine only.

39HER HONOUR:  Yes, all right.  Could I just ask, I know that your client is still on benefits.

40MR JOHNSTON:  Yes.

41HER HONOUR:  And has a rental property.

42MR JOHNSTON:  Yes, Your Honour.

43HER HONOUR:  All right.  So, I am required by the legislation to take into account her financial circumstances when fixing a fine.  So I am going to fine her $250 in relation to that summary charge, and I will give her three months to pay.

44MR JOHNSTON:  As Your Honour pleases.

45HER HONOUR:  Thank you very much.  Now, before I can place you on the order, Ms O'Neill, I must gain your consent.  Do you consent to being placed on this order?

46ACCUSED:  Yes, I do, Your Honour.

47HER HONOUR:  Thank you.  All right.  I must first explain to you the conditions of the order.  They are that you must get in contact with the Ballarat Community Corrections office within two working days of the making of this order; that is by Wednesday of this week.  The order will last for two years as I have said.  Whilst on the order, you must not commit any offence punishable by imprisonment.  Whilst on the order, you may not leave Victoria without the permission of the Community Corrections office.  You must report any change of address or employment within 48 hours of the making of that change.

48You must report to and receive visits from the Community Corrections office.  You must obey all lawful directions of the Community Corrections office.  I am going to order that you undertake 200 hours of unpaid community work.  You are to attend for mental health treatment as directed.  The way it was described in the assessment, was that you just simply continue with your support team.  So you will be directed I imagine, to continue attending upon Ms White until further order.

49I am still going to order that any hours that are spent in relation to your mental health condition may be attributed to the community work hours imposed, that is, can be deducted from the 200 hours overall and that was also a recommendation of the Community Corrections office.

50Is there anything else?  I think I need to impose, pursuant to s.6AAA, I think it is where I impose two years or more, I have to make a s.6AAA declaration, and I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six months, and then order you be released on a community corrections order.

51Thank you.  Is there anything further I need to attend to?  No, thank you.  I thank counsel very much ‑ ‑ ‑

52MS MALOBABIC:  Excuse me, Your Honour.  I am sorry.  There is the mandatory license disqualification of 18 months condition ‑ ‑ ‑

53HER HONOUR:  I beg your pardon.  Thank you very much, Madam Prosecutor.  I had forgotten about that.  Yes, it is a mandatory condition in relation to the charge of dangerous driving causing death, that I must cancel your license for a minimum of 18 months, and I do cancel any license that you have, and disqualify you from obtaining another license for a period of 18 months.

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