Director of Public Prosecutions v Parsons
[2023] VCC 1662
•13 September 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00491
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH PARSONS |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 30 August 2023 | |
DATE OF SENTENCE: | 13 September 2023 | |
CASE MAY BE CITED AS: | DPP v Parsons | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1662 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Guilty plea - dangerous driving causing death - collision - substantial and compelling rare and exceptional circumstances - momentary inattention – low moral culpability - older offender – poor physical and mental health.
Legislation Cited: Sentencing Act 1991; Mental Health Act 2014.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Neethling 2009 VSCA 119; R v Iles 2009 VSCA 197; DPP v Lombardo [2022] VSCA 204; R v Verdins [2007] VSCA 102
Sentence: 3-year CCO with 280 hours of unpaid community work and 3 years supervision.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr T. Shocker | Stary Norton Halphen |
HIS HONOUR:
1This is a tragic case involving the death of a blameless motorcyclist, Godefridus 'Fred' Van Den Broek, who was riding his motorcycle home from work, as he had done countless times before without incident. He was riding safely as he always did. He was an experienced and prudent motorcyclist. You, Mr Parsons, were travelling in the opposite direction and you slowed to turn right into a business premises. Inexplicably, you did not see Mr Van Den Broek approaching and you moved into his path of travel. He had no chance at all to avoid the collision which resulted in his death.
2Mr Van Den Broek was married with three children and lived locally. He was 65 years old. Since 1996 he had worked as a supervisor at Saputo cheese and butter factory in Allansford. Every day he would make the 1.4-kilometre trip to and from work along Ziegler Parade on his motorcycle.
3You were 75 years old when the collision occurred. You are now 78 years old. You are a retired farmer. You live in Warrnambool, but you still travel to the farm in Nirranda South, now run by your youngest son. You were taken to hospital after the collision with minor injuries to your right arm. A blood test was taken at the Warrnambool Hospital. No alcohol and drugs were detected in your blood, nor were drugs and alcohol present in Mr Van Den Broek’s blood at the time of the collision.
4The road on which the collision took place, Ziegler Parade, is a long straight road which runs between the Great Ocean Road and the Princes Highway through the township of Allansford. The road runs east–west and is mainly flat. There is one lane in either direction, separated by a white broken line down the centre of the road. The area in which the collision occurred is mostly surrounded by open paddocks to the north and industrial businesses to the south. The speed limit is 100 kilometres per hour in both directions. The roadway is open and there are no impairments obscuring vehicles on the road.
5On the day of the collision the weather was clear but overcast. The temperature was about 15 degrees and there had been intermittent showers. At the time of the collision, it was dry, and visibility and light conditions were good.
6On that day you, Mr Parsons, left home at about 5.15 am with your wife Pamela. You drove approximately four-and-a-half hours to Burge Engineering in Yarra Junction on the eastern fringe of Melbourne to collect a large caravan. The distance to Yarra Junction is 334 kilometres. You arrived at Burge Engineering at around 10.00 am. On the way back to Warrnambool you stopped at a BP Service Station on the Geelong Ring Road in Corio. CCTV footage shows that you arrived at 1.17 pm and left at 1.23 pm.
7You then drove home to Warrnambool and dropped your wife off to collect her car. Your wife rang the owner of T & B Alignments and told him that you were on your way with the van.
8Mr Van Den Broek was riding home along Ziegler Parade. He was captured on CCTV footage passing Thermosmart Windows a few hundred metres east of the collision scene. At around that time you arrived at T & B Alignments at 256 Ziegler Parade and slowed down to prepare to make a righthand turn into that business. Of course, you were required to give way to all oncoming vehicles travelling west. You started your turn and crossed into the westbound lane into the path of Mr Van Den Broek's motor bike. A collision between his motor bike and your vehicle occurred. He was thrown from his bike. He died from injuries sustained in the collision.
9Constable Stephen Malikoff was one of the first police to attend the collision scene. He spoke to you and you said, 'I was just bringing the caravan in here to get a wheel alignment for tomorrow morning and I just pulled across in front of him'. That is in fact exactly what happened.
10A collision reconstruction expert attended the scene and made an examination. His conclusions were that:
·The Chevrolet came to rest almost immediately after impact.
·The point of impact between the two vehicles was approximately one metre from the southern bitumen edge and one metre back from the driver's side corner of the Chevrolet (at rest). The impact point is shown in photographs which were tendered on the plea identified by a yellow marker, No.1.
·The Chevrolet's brakes were activated three seconds prior to impact.
·The Chevrolet was travelling between 15−23 kilometres per hour, half a second prior to impact.
11The collision was captured on CCTV footage which was played at the plea hearing. It was tendered as an exhibit; I have watched it a number of times over the last few days.
12Your vehicle was examined by police and there were no mechanical faults or failures detected which could have caused or contributed to the collision. The motorcycle Mr Van Den Broek was riding was examined and assessed to have been in excellent working order. The examination revealed that the front headlight was on at the time of the collision.
13You were interviewed at the Warrnambool police station on 26 May 2021. You said to police that you never saw the man on the motorbike. You said there was no traffic coming the other way. You described the visibility as 'fairly open' and said that you checked the road was clear 20 metres back before starting to turn. You said you did not know where the motorbike came from because you did not see him. You did not tell the police the full extent of your driving that day. You said you had been carting gravel to your farm throughout the day and that you did about five trips. You said you were looking for vehicles and you did not see anybody and that you had a decent look before you turned.
Procedural History and Guilty Plea
14On the first day of the circuit when this matter was listed for trial you pleaded guilty to the charge of dangerous driving causing death arising from this collision. You had previously made two applications for a sentence indication. The first of those took place before his Honour Judge Lyon on 1 February this year. Judge Lyon declined to provide an indication at that time but gave detailed reasons for not providing an indication. He did not indicate whether he would impose a custodial sentence, or he would not. On 14 August 2023 Her Honour Judge Marich provided a sentence indication, which was that she would not exceed a sentence of 18 months' imprisonment for this offending. I have no idea what Judge Marich's reasoning was, although I have been provided with the reasons given by Judge Lyon. On the day you pleaded there were discussions taking place between your counsel and the prosecutor. It seems to me there was a softening of the Crown position to an extent on the plea that proceeded before me compared to the position taken in the sentence indication before Judge Lyon.
15Your guilty plea, although late, indicates your willingness to facilitate the course of justice. You have spared the prosecution and the court the time and resources involved in running a trial. Most importantly, you have spared the family and friends of Mr Van Den Broek the ordeal of having to relive the events in detail during a jury trial with an uncertain outcome.
16The lateness of the plea limits the utilitarian benefit in that the Court's timetable for the first part of this circuit was allocated to your case which resolved very late. Still, the principles in Worboyes have some application.[1]
[1] Worboyes v The Queen [2021] VSCA 169
17I accept your guilty plea indicates a level of remorse for your driving which caused the death of Mr Van Den Broek. Of course, an early plea would have provided earlier closure to Mr Van Den Broek's friends and family, however, the question of whether a particular piece of driving meets the legal test for dangerous driving is often finely balanced in cases such as this, and presumably you have been acting on legal advice throughout these proceedings. The essential facts of this case were never really in dispute.
18In assessing remorse, I have also had regard to the letter you wrote, the psychological reports tendered and the letters of support. I will refer to that material and the question of remorse again later in these remarks.
19The maximum penalty for dangerous driving causing death is 10 years' imprisonment. There is no pre-sentence detention in this matter. You have no criminal history.
20Dangerous driving causing death is a Category 2 offence. This means that unless I find that one or more of the exceptions contained in s5(2H) of the Sentencing Act 1991 exists, the penalty must be a term of imprisonment, excluding a culmination sentence of a community correction order and imprisonment.
Victim Impact Statements
21I have been provided with five Victim Impact Statements in this matter from Mr Van Den Broek's wife, son, brothers, and best friend. The impact on them has been devastating. The grief of his family and friends is still raw today more than three years after his death.
22The gap in their lives from his death cannot be filled.
23It is apparent from those statements that Mr Van Den Broek was a very decent man. He was a warm, kind, and caring husband, father, brother, and friend. He was much loved.
Mrs Toni-Anne Van Den Broek
24Mr Van Den Broek's wife, Toni, read her Victim Impact Statement to the court. She says she has lost her soulmate, husband, and best friend of over 30 years. She says she has not been able to work much since Mr Van Den Broek died, as she cannot look after herself, let alone the residents that depend on her.
25She sold the property and her home where she had lived with Mr Van Den Broek for 28 years. She was not able to keep up with looking after what needed to be done on the property and to have sold it breaks her heart.
26She says she and her son will not be able to live the lives they had planned. She says her life will never be the same.
Mr Sam Van Den Broek
27Mr Van Den Broek's son, Sam, says that losing his father and his best friend is the hardest thing he has ever had to deal with. They were setting up a metal-cutting and fabrication business, but he has not been able to continue that. He has sold the equipment they purchased. He now looks after his mother and her health. It is apparent from his Victim Impact Statement that he was very close to his father. He refers to all the things they did together and the void his absence has left. He says this, at the end of his Victim Impact Statement, 'He was truly the best father/best friend I could have ever asked for. My hero.'
Mr Leo Van Den Broek
28Mr Leo Van Den Broek also made a Victim Impact Statement. He was Fred Van Den Broek's brother. Again, it is clear from his Victim Impact Statement that he was very close to his brother and that they engaged in many activities together and went on motorcycle holidays together. He refers to the bike trips they would have taken every year. He says he misses his brother deeply.
Mr Robert Van Den Broek
29Mr Robert Van Den Broek says that his grief was overwhelming, and he spent days crying in his shed at the loss of his brother. He still cries when he thinks of his brother, the memories they made together and the memories they will never get to make.
Mr Leigh Dance
30Mr Leigh Dance read his Victim Impact Statement to the Court. He met Mr Van Den Broek back in 1965 at the Timboon Primary School. They remained best mates over the years. They were best men at each other's weddings. They met regularly for coffee and rode together many times in Australia and in the USA without any incident. Mr Dance says he does not ride his motorcycle much anymore because there is little enjoyment left. He says it is not the same without Mr Van Den Broek riding with him. He says there is not a day that goes by where he does not think about Mr Van Den Broek.
31Each Victim Impact Statement was a moving and eloquent testimonial to the life and memory of Mr Van Den Broek. These Victim Impact Statements, Mr Parsons, demonstrate clearly the repercussions of your error of judgment on that day.
32There is nothing that I can say and no sentence that I can impose that will bring Fred Van Den Broek back or heal the grief and pain arising from his death. The sentence I impose can in no way be a measure of the worth of his life. There can be no equivalence between his life and the sentence I impose. Rather, the sentence must reflect the many factors a judge is required by law to consider, only one of which is the impact on the victims. That said, the impact on his family and friends is a significant matter in sentencing in this case.
33My sentence today is the completion of the legal process in the aftermath of Mr Van Den Broek's death, which I acknowledge has been a protracted and painful period for his family and you, Mr Dance, his best friend.
Objective Gravity
34Dangerous driving causing death is an inherently serious offence involving the death of another human being.
35The sentencing principles a court must have regard to in relation to cases of dangerous driving causing death and serious injury have been considered by the Court of Appeal in numerous cases. It was clear from the sentencing authorities before the enactment of s5(2H) of the Sentencing Act that offences of dangerous driving causing death or serious injury would attract a significant term of imprisonment, except in exceptional cases involving momentary inattention where the offender's moral culpability is assessed as low.
36In the case of DPP v Neethling,[2] the Court of Appeal identified a range of considerations relevant to the assessment of the objective seriousness of an offence of dangerous driving causing death, which include:
[2] DPP v Neethling 2009 VSCA 119 at [31]
(i)the extent and nature of injuries inflicted;
(ii)the number of people put at risk;
(iii)the degree of speed;
(iv)the degree of intoxication or substance abuse;
(v)erratic or aggressive driving;
(vi)competitive driving or showing off;
(vii)the length of the journey during which others were exposed to risk;
(viii)ignoring warnings;
(ix)escaping police pursuit;
(x)degree of sleep deprivation; and
(xi)failing to stop.
37It can be immediately seen that most of these aggravating factors do not apply to the circumstances of this case. However, the consequence of your dangerous driving was the death of Mr Van Den Broek.
38In respect of the lengthy period over which you had been driving on that day, Mr Moore submitted that this was not a fatigue case and that those circumstances only provided context to the dangerous driving, perhaps providing an explanation as to why you failed to see Mr Van Den Broek. It was not put by the prosecution that the time over which you had been driving on the day was part of the dangerousness in this case. The prosecution accepted this was a momentary inattention case.
39Therefore, I accept the agreed position of both parties that this is a case of momentary inattention involving low moral culpability. Of course, that does not make the consequences any less tragic. Momentary inattention and low moral culpability are terms used in the law in assessing the gravity of offending such as this. In using these terms, I do not intend to convey any disrespect to the family and friends of Mr Van Den Broek or to minimise the impact of his death.
40It is difficult to understand how you failed to see Mr Van Den Broek coming towards you on his motorbike as he travelled along the road and then turned right. It may well be, as the prosecutor suggested, that at the moment you began to turn your focus was on the driveway rather than the road in front of you. Plainly, over a very short period of time, you did not give the road in front of you the necessary attention.
41Again, without minimising in any way the consequences of your inattention, I accept this offence falls at the lower end of the spectrum of cases of dangerous driving causing death and that it is an offence of momentary inattention where your moral culpability is properly assessed as low. That is the way the case has been put by the prosecution and that was the submission made by the defence.
Personal Circumstances
42Forensic Psychologist, Patrick Newton, provided two reports and gave evidence at the plea hearing. The first report is dated 21 January 2023. A supplementary report was also filed dated 1 August 2023.
43Mr Newton sets out your personal circumstances and they were also described on the plea by your counsel, Mr Norton. Relevant parts of your family life are also referred to in the character reference material tendered and in the evidence of your wife, Pamela.
44You were born in Warrnambool. You were the fourth of your parents' 10 children. You grew up on the family farm near Nirranda. You subsequently took over running the farm. You had a happy family life and good relationships with your brothers and sisters.
45Your parents and two of your siblings died some time ago.
46You went to primary school in Nirranda South. I am told you struggled academically and never attained 'functional literacy skills'. You are not able to read and write to any meaningful level. You always knew that you would eventually work on the farm.
47You went to school in Warrnambool and pursued secondary school briefly before discontinuing.
48You have always worked as a dairy farmer. The farm was generally profitable, although there were fluctuations over the 50 years you ran the farm. You are now retired but you continue to play a significant role in the operation and management of the farm. Your son, Luke, is now running the farm.
49You and your wife, Pamela, have been married for more than 53 years. You met when she was 16 years old and you were 19. You have had no other significant relationships. You describe your wife as your main support and closest ally and that was clear from the evidence she gave.
50You and your wife have five children, including two sets of twins born in 1970 and 1972. You have four grandchildren.
51In 1992 one of your children, Anthony, who was then aged 21, was killed in a serious motor vehicle collision. He was working away from home at an oil rig. He would have eventually worked on the farm had he lived. You and your wife were preparing the property for his return when he died.
52The death of your son was, understandably, a period of significant emotional upheaval in your life and the lives of the other members of your family. As your wife said in evidence, the death of a child is devastating.
53Another son, Stephen, was diagnosed with 'Fragile X syndrome' and suffers from some level of intellectual disability. He later sustained serious injuries in a farm accident where he fell into a front-end loader. He has epilepsy. He lives on a house on the farm which you and your wife had built for him. He requires assistance with reading and writing and some activities such as going to the doctor.
54As I said, your youngest son, Luke, is now operating the farm with your help.
55Your wife and your family have remained supportive of you throughout this prosecution. Most of your family attended court to support you on the plea and are present again here today.
56You told Mr Newton that the death of your son caused you shock, deep sadness, and emptiness. You experienced elevated symptoms of anxiety, including disturbed sleep, rumination, and physical tension. The collision in this case led to significant anxiety, both as a response to the collision itself and because, according to Mr Newton, it rekindled stress from when your son died in 1992. These symptoms continue.
57In his first report Mr Newton diagnosed you as suffering elevated anxiety. In his evidence he said that you had mild depressive symptoms at the time of the first report. He said you ruminate on the collision and you remain baffled that you did not see the approaching motorcyclist, and you can offer no explanation. Your anxiety was sufficiently intense to meet the criteria for an adjustment disorder with anxiety. Mr Newton said in the context of a prison sentence:
“There would be some risk that Mr Parsons could develop more severe psychological problems which would require more intense intervention and support.”
58Mr Newton, in his evidence, defined an adjustment disorder as where a person has problems adjusting to an identifiable stressor beyond the ordinary, leading to symptoms such as anxiety and depression greater than expected in the circumstances. He said an adjustment disorder was a mental illness as defined in the Mental Health Act 2014.
59In your case, the stressors are the collision in which you caused the death of Mr Van Den Broek; the consequent rekindling of grief at the death of your son; and the drawn-out legal process involving the spectre of a prison sentence.
60In the first report, Mr Newton assessed your mental impairment from the adjustment disorder as mild to moderate and said there is no indication that your activities of day-to-day functioning have been adversely affected. He described a risk of deterioration in your mental state.
61Mr Newton said in his evidence it would be difficult for you to access psychological treatment in prison to address your anxiety, although he did describe what may be available and said that you have not been accessing counselling while waiting for this case to be finalised. However, the community correction order assessment report says you have been seeing your general practitioner for anxiety and depression. He said the disruption of supports and increase in stress would likely exacerbate your pre-existing anxiety. He said you would be likely to experience more frequent and more severe bouts of anxiety and depression relative to those prisoners not so afflicted.
62In the supplementary report, Mr Newton reiterated his diagnosis of an adjustment disorder but specified that the adjustment disorder includes mixed anxiety and depressed mood. He described this as a deterioration in your condition in the context of prolonged stress and limited support. Prolonged stress includes the drawn-out legal proceedings. He said your symptoms have had a significant impact.
63In the supplementary report he said there is a strong prospect that your mental health will deteriorate in prison. He said an aspect of your condition was self‑punishment and said your disorder was 'at the more intense end'.
64In evidence, he said that your experience of prison would be 'significantly more difficult than someone without your mental disorder'. Your age, personality and physical health were factors which would interact with your mental health to increase the burden of your imprisonment.
Character Evidence
65Character references or letters of support were tendered from your wife, Pamela, your daughter, Sharyn; and friends Edward White, Charles Dillon, Rosemary Steel, Danny Ewing, Janet Attrill and Roy Howe. Your wife gave evidence, as did Ms Steel and Mr Dillon. The references establish that you have been a good and decent man and a hardworking family man. You have been involved in the community through the football club, the Fire Brigade, the local hall committee and other organisations. It is clear that you have experienced your fair share of tragedy in your life.
66All the people who provided letters of support for you speak of your shame and remorse over this collision and that it has affected you deeply. Mr Newton gave that evidence as well. You have become tense and withdrawn in your personality. The letters of support indicate that you have empathy for the family of Mr Van Den Broek.
67Whilst I accept what is said in the letters of support and in the letter that you wrote, which was tendered, about your shame and remorse since the collision, I cannot conclude that you exhibited full remorse from the outset of this case given that you did not tell the truth in your record of interview about your driving activities on the day. It seems to me that in the interview, given the enormity of the incident and concerned no doubt about the implications for yourself, you showed less courage than you might have.
68From all the material in this case I think it is highly unlikely you will offend in any way again.
Section 5(2H)
69The main issue to which submissions were directed at the plea hearing was whether one of the exceptions in s5(2H) of the Sentencing Act apply, thereby removing the statutory impediment to the imposition of a community correction order as opposed to an immediate prison sentence.
70Section 5(2H) of the Sentencing Act provides that in sentencing for a Category 2 offence, I must make an order for imprisonment unless I am satisfied of one of the statutory exceptions. Mr Norton has argued two of the exceptions.
71First, pursuant to s5(2H)(c)(ii), he submitted the evidence of Mr Newton is sufficient to prove on the balance of probabilities that your impaired mental functioning would result in you being subjected to 'substantially and materially greater' than ordinary burdens or risks of imprisonment.
72Second, pursuant to s5(2H)(e), he submitted there are substantial and compelling circumstances that are exceptional and rare. In determining whether such circumstances exist, I must:
(a)regard general deterrence and denunciation as having greater importance than the other purposes set out in s5 of the Sentencing Act;
(b)give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence;
(c)not have regard to the offender's previous good character other than the absence of previous convictions or findings of guilt, or to an early plea of guilty, or to prospects of rehabilitation, or to parity with other sentences.
73Further, pursuant to s5(2I), in determining whether there are substantial and compelling circumstances, I must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence, only an order for imprisonment, that is, not a combination sentence order, should ordinarily be made, and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
74Mr Norton submitted that a combination of factors amounts to substantial and compelling reasons that are exceptional and rare. The factors Mr Norton relied on were as follows:
(i)Your mental health as set out in the two reports of Mr Newton and his evidence.
(ii)Your physical health. In particular that you have had two knee replacements, one in 2004 and one in 2022; an ankle fusion in 2020; a hip replacement this year; diabetes Type 2 diagnosed in June 2022; interstitial lung disease recently diagnosed as persisting where a previous course of antibiotics was not successful; an enlarged prostate and problems with urinary function and incontinence, and that you are on medication for diabetes, mental health and high cholesterol; your age.
In respect of your advanced age, Mr Norton submitted that this would increase the burden of your imprisonment and is relevant to the weight to be given to general deterrence. He relied on the decision of R v Iles[3] in which Redlich JA said[4]:
[3] R v Iles 2009 VSCA 197
[4] Ibid at [33]
“General deterrence in the context of sentencing an elderly offender must be considered in light of the impact upon the public perception of a gaol sentence upon a man of such advanced years upon whom a sentence will bear more heavily.”
Mr Norton told me that in his research there have been seven offenders over the age of 70 sentenced for dangerous driving causing death since 2016.
(iii)Lack of prior convictions:
The lack of prior convictions, Mr Norton argued this was of significant weight because of your age and because you have held a licence since 1963 without any incident or interference.
(iv)The grief and remorse as set out in the letters of support and in the evidence of Patrick Newton.
(v)Your family support.
(vi)Low moral culpability:
Mr Norton relied on the fact that this offence is a momentary inattention case involving low moral culpability.
75Mr Norton submitted that based on whether the circumstances meet the test in s5(2H)(e) is an evaluative judgment for me to make, and that is true. He submitted that in this case the evidence drives one to the conclusion that the statutory test is met.
76The prosecutor, Mr Moore, submitted that 'his instructions were that the circumstances presented to the prosecution prior to the plea hearing did not meet the test of substantial and compelling, exceptional and rare'. He did, however, submit that this was a momentary inattention case involving low moral culpability, and that was a significant matter to consider in what is a precarious balancing act. He said this was a case involving an older person who had made a 'silly mistake' and had lost concentration against the background of having driven for most of the day. He submitted your focus must have been on the driveway for a moment rather than on the traffic that was approaching.
77Mr Moore submitted that given the lateness of the guilty plea in this case, full remorse is doubtful, and that the family of Mr Van Den Broek has had to wait a long time before the guilty plea was entered in this case. However, he submitted that remorse was not a significant matter in the balancing act under s5(2H)(e) in either direction.
78In DPP v Lombardo,[5] the Court of Appeal considered s5(2H) and s5(2I). As to the meaning of substantial and compelling, the court said at paragraph 63:
“More generally, the introduction of the 'exceptional and rare' requirement made explicit this Court's approach to the existing 'substantial and compelling circumstances' requirement — namely, that the circumstances must not only be powerful, but they must be 'wholly outside' the 'run of the mill' factors seen in offending of the relevant kind.”
[5]DPP v Lombardo [2022] VSCA 204
79The court went on to say that the enquiry under s5(2H)(e) involves two steps. First, I must assess whether there are substantial and compelling circumstances and, if so, whether those circumstances are exceptional and rare. The court said that substantial and compelling means the circumstances are weighty and forceful or powerful and that the phrase 'exceptional and rare' is a composite phrase imposing a single test rather than two discrete tests. The court suggested that exceptional and rare requires circumstances that are 'wholly outside the run of the mill factors typical of the relevant kind of offending'.
80The court in dealing with these provisions also said this:
“Finally, we also do not consider that the requirement to regard general deterrence and denunciation of the offender's conduct as more important than other sentencing purposes points to any different conclusion regarding 'substantial and compelling circumstances'. General deterrence and denunciation are always important in these cases, which is why non-custodial sentences are exceptional. But the strength of those considerations, again, is influenced by the nature and gravity of the offending. They are stronger in cases where the offending is more egregious.”
Conclusions
Section 5 (2H)(c)(i)
81I am not satisfied that your mental health conditions meet the test in the legislation of subjecting you to 'substantially and materially greater' risks or burdens of imprisonment than would ordinarily be the case. This is a high threshold, much higher than what is required under Verdins principles 5 and 6.[6]
[6] R v Verdins [2007] VSCA 102
82In my opinion the language used by Mr Newton in his reports and in his evidence falls short of the statutory test. He said that your experience of imprisonment will be significantly more difficult than someone without your mental disorder because of an increase in stress and an absence of supports such as counselling in prison.
83Second, he spoke of your mental health together with your age and ill health and your personality characteristics, combining to increase the burden of your imprisonment rather than purely because of your mental health. I accept his opinion that it is a combination of those factors which increase the burden of your imprisonment to a significant level rather than your mental health alone. In assessing the statutory test and comparing it to the evidence of Mr Newton, I am not satisfied that exception applies.
84Whilst I do not accept that your mental health meets the test, I do accept based on Mr Newton's evidence that principles 5 and 6 from the decision of Verdins apply. Those principles are: 5) that where a mental health disorder means that imprisonment will weigh more heavily on an offender than it would on a person without such a condition; and 6) where there is serious risk that imprisonment will have a significant adverse impact on an offender's mental health, these will be mitigating factors. The prosecution accepted the application of these principles, and the evidence of Mr Newton establishes the factual basis for their application. Your mental health is a significant matter in this case and one of the factors I must consider in assessing the circumstances under s 5(2H)(e).
S 5(2H)(e)
85I accept that the combination of factors relied upon meet the test of substantial and compelling in the sense that they are weighty and forceful. In coming to that view, I have had regard to all the matters relied upon by Mr Norton and all the matters I am required to consider under the statutory provisions.
86Most significant in my opinion are the following matters. You are on older man who has caused the death of another person through a moment of inattention. Your moral culpability is low. You pleaded guilty. You have previously experienced a road fatality in your own family with the death of your own son when he was 21 years old. Partly because of that you have developed serious mental health conditions since the collision which I accept will be exacerbated by the stress and the absence of support occasioned by a prison sentence. You have an array of health problems more serious than would be expected even for an older person and certainly significantly more so than for the general prison population. These health issues combined with other factors including your age would contribute to significantly increasing the burden of your imprisonment. You have no prior convictions relating to driving in the 60 years you have held a licence. Given your age and because I will order a lengthy period of disqualification of your licence, I regard you as close to no risk of re- offending and therefore community protection is of no real weight in sentencing and nor is specific deterrence.
87The next question is whether the circumstances relied on are exceptional and rare. Are they wholly outside the run of the mill factors for this type of offence? In Lombardo a similar case on the facts to this case but where the accused made a right-hand turn when his window was fogged up thereby taking a calculated risk about the speed and location of the oncoming vehicle, the mitigating factors were similar but, in my opinion, not as strong. The offender in that case was a younger offender 22 years old who had some relatively mild anxiety and an elevation of post-traumatic stress falling short of PTSD. The Court of Appeal found that the circumstances were substantial and compelling.
88Dealing with the exceptional and rare test the Court of Appeal said this at [88]
“But in the context of dangerous driving causing death, at least, it has long been recognised that the offence is often committed by young people of previously impeccable character, who are racked with remorse and grief for what they have done and have the best prospects for rehabilitation. Both in New South Wales and in this State, these features have been described as 'frequently recurring'. Such offenders can often be expected to suffer from symptoms of anxiety and post-traumatic stress, which a term of imprisonment may tend to exacerbate.”
89The difference in this case is that you are a much older offender, right at the top end of the age range for people sentenced for this offence, and on the uncontested evidence of Mr Newton, your mental health difficulties are more significant. Of the factors raised by Mr Norton in my opinion the following are unusual:
Your age– at 75 years old, as I just said, put's you very much at the upper end of the age range for this type of offence. It is unusual for someone who of your age to come before this court for this offence. Of the 30 comparative cases provided by Mr Norton you are the oldest offender by 8 years. None of the offenders in those cases were in their 70s.
Further, I accept your array of health problems is uncommon and that this likely reflects your advanced age
Your mental health – although I have concluded that your mental health concerns do not meet the test for the exception in s5(2H), on the unchallenged evidence of Mr Newton, they are plainly more serious than in most cases of this nature and I accept that this is because of the rekindling of grief you felt at the death of your son in a motor vehicle collision when he was 21 years old.
Having regard to all of these matters in combination with the other matters relied on by Mr Norton I am ultimately satisfied that the circumstances of this case are also exceptional and rare and that the cumulative impact of the circumstances justifies a departure from a period of immediate imprisonment.
Sentencing
90The purposes for which a court may impose a sentence are just punishment, general deterrence, specific deterrence, the need to facilitate your rehabilitation, denunciation and protection of the community. As I have already said community protection and specific deterrence have no real role to play, given your age and my conclusion that you are highly unlikely to ever commit another offence.
91General deterrence is moderated to an extent by your advanced age.
92In sentencing you, I have had regard to the matters referred to in s 5(2) of the Sentencing Act which include the seriousness of the offending, your culpability for it, your personal circumstances, and the impact of your offending on the victims.
93I have taken into account current sentencing practices for the offence to which you have pleaded guilty. I was provided with a folder by the defence containing either 29 or 30 sentencing decisions of this court for offences of dangerous driving causing death all of which resulted in community correction orders, all since the introduction of s 5 (2H). It is apparent that a community corrections order is not an unusual sentence in cases of momentary inattention involving low moral culpability. Of course current sentencing practises are just one of the matters I must have regard to in deciding the appropriate sentence.
94I have had your suitability for a community corrections order assessed, and you have been found suitable. The report recommends Treatment and Rehabilitation Programs to reduce reoffending and community work. This morning Mr Shocker submitted that given your age and your background circumstances, I should not order a road trauma program. You have been assessed as having a low risk of reoffending and therefore supervision is not recommended. Mental health treatment was not recommended because you are seeing a general practitioner two to three times a week for anxiety and depression.
Sentence
95In all the circumstances of this very difficult case I have decided, given my findings, to convict you and place you on a community correction order for a period of 3 years.
96The special conditions of this order are that you are to perform 280 hours of unpaid community work. I will also order supervision for a period of three years. In the end I think Mr Shocker is right about the offending behaviour programs and also, because I intend to make a lengthy order against your license, Mr Parsons, which I will do in a moment.
97Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have imposed a sentence of 15 months imprisonment with a minimum of 6 months non-parole.
98I order that your licence is cancelled, and you are disqualified from obtaining any further licence for a period of 3 years, which is double the minimum period required under s89 of the Sentencing Act.
99I will have that order printed out. Mr Parsons you need to consent to that order for me to make the order. Do you so consent? Do you consent to the making of the order? Do you need to speak to Mr Shocker?
100MR SHOCKER: If I could, Your Honour.
101OFFENDER: Yes, Your Honour.
102HIS HONOUR: Yes, all right, have a seat. We will print the order. Mr Shocker, can you take that to your client? Just before I sign that, Mr Parsons, there are two special conditions of this order: there is supervision; and you have to perform 280 hours of unpaid community work.
103There are mandatory conditions: if you commit any offence punishable by imprisonment over the next three years you would have breached the order. You have to comply with any lawful directions of Corrections; you have to accept visits from Corrections; if you change your address you have to tell Corrections; you cannot leave Victoria without telling Corrections; and you have to obey all of their lawful instructions.
104You are also required to attend at the Community Corrections Centre in Warrnambool within 48 hours of this order. If you do not do that, you would have breached the order.
105If you breach this community corrections order either by failing to comply with it, or by reoffending, the matter would be brought back before me for a breach. I have the power to cancel the order and resentence you for this offence. If that happened, there would be little option but to impose a prison sentence. I am sure you understand that. So I will sign that order.
106Can I thank everyone in Court, but particularly the family and friends of Mr Van Den Broek for the dignity they have demonstrated during what is obviously a very difficult process for them. I understand that and I thank them for that.
107All right, nothing else required, Mr Moore?
108MR MOORE: Not in this case, Your Honour.
109HIS HONOUR: I will stand down.
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