Director of Public Prosecutions v Patterson

[2020] VCC 111

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-00148

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT PATTERSON

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JUDGE:	CHIEF JUDGE KIDD
WHERE HELD:	Shepparton
DATE OF HEARING:	10 February 2020
DATE OF SENTENCE:	21 February 2020
CASE MAY BE CITED AS:	DPP v Patterson
MEDIUM NEUTRAL CITATION:	[2020] VCC 111

REASONS FOR SENTENCE
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Subject:  Sentence – Criminal Law.

Catchwords:   Dangerous Driving Causing Death – Plea of guilty – Immediate remorse – Objective gravity and moral culpability in the lower range, but not at the lowest or approaching the lowest – Prospects of rehabilitation excellent.

Legislation Cited:                 Crimes Act 1958, s 319; Sentencing Act 1991, s 6AAA, s 45, s 48C, s 89.

Cases Cited:Stephens v The Queen (2016) 50 VR 740; DPP v Neethling (2009) 22 VR 466; Koukoulis v The Queen [2020] VSCA 19; Lefebure v The Queen (2000) 112 A Crim R 41; Novakovic v The Queen (2007) 17 VR 21; DPP v Oates (2007) 47 MVR 483; Woldesilassie v The Queen [2018] VSCA 285; Kalofolias v The Queen [2017] VSCA 308; Boulton v The Queen (2014) 6 VR 208.

Sentence:  12 months’ imprisonment, followed by a 2 year Community Correction Order with 150 hours of unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N Batten	Abbey Hogan, Acting Solicitor for Public Prosecutions
For the Accused	Mr R O’Neill (plea hearing) Mr S Pogue (sentence)	Dawes & Vary Riordan Lawyers

HIS HONOUR:

Preliminary

1       Brett Patterson, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty for this offence is 10 years’ imprisonment.[1]

[1]Contrary to section 319(1) of the Crimes Act 1958.

2       At the time of committing the offence you were 46 years old. You are now 48 years old.

3       Before dealing with the circumstances of the offending, I want to acknowledge that your offending has caused the death of Mr Colin Curtis, a 57 year old man, who was a husband and a father. His death has caused profound grief and distress to his family. The impact of this offending is something which I will return to.

Circumstances of the offending

4       The circumstances of your offending, which occurred on 25 May 2018, are contained in the prosecution opening exhibited on the plea hearing.[2] I act upon the facts as outlined in the opening – which were not disputed by you.

[2]Exhibit A.

5       In brief, on Friday 25 May 2018, at approximately 1.30 pm there was a fatal collision at the intersection of Powerline Road and Chapel Road, Muckatah between a Kenworth prime mover driven by you and a Nissan utility vehicle driven by the victim in this matter, Colin Curtis. As a result of the injuries he sustained from the collision, Colin Curtis died.

6       Chapel Road runs in north-south direction, with single lanes in each direction divided by a broken white line. It is a flat, straight and sealed bitumen road with a speed limit of 100 km/h. There are gravel shoulders extending out to wire fenced paddocks.

7       Powerline Road runs in an east-west direction, with single lanes in each direction and no markings separating the lanes. It is a flat, straight and gravel road with a speed limit of 100 km/h. There are gravel shoulders extending out to wire fenced paddocks.

8       On Powerline Road, give way signs face vehicles travelling in both directions. Vehicles travelling on Chapel Road have right of way.

9       At the time of the collision there were mounds of dirt which were running parallel to Chapel Road, approximately 14 metres south of the intersection with Powerline Road. 

10      On the day, the conditions were dry, sunny and clear, with good visibility.

11      Before the collision, the victim, Mr Curtis, was driving on Chapel Road travelling north towards Muckatah.

12      At approximately 1.30pm, after finishing some excavation work, you drove your Kenworth prime mover truck, which was pulling an unladen drop deck low loader trailer, along Powerline Road towards Chapel Road.  You were travelling in a westerly direction on Powerline Road. When your vehicle entered the intersection in the circumstances which I will describe further below, it collided with the victim’s vehicle. The impact of the collision caused your vehicle to jack-knife, resulting in the victim’s vehicle being crushed between your vehicle and a concrete pole. You had failed to give way.

13      You did not sustain any injuries as a result of the collision. After the collision, you checked on the victim, but realised that he was deceased. You subsequently stopped a passerby and asked him to call 000 on his mobile phone.

14      Neither you nor the victim had any traces of drugs or alcohol in your system.

15      A post-mortem examination was conducted and established that the cause of death was injuries sustained in a motor vehicle collision.

16      A reconstruction expert found that there was no evidence that you had applied your brakes prior to the collision. This opinion is consistent with answers you gave in your record of interview with the police.

17      In relation to how you approached the intersection, you said in your record of interview ‘Just natural slow, no brakes, just backed it off with the accelerator…just rolling up to the corner.’ You said you had looked left and right of the intersection. At the scene, you told people that you looked left before the bank and the victim’s car was not there. You said that you had slowed down, got to the corner and the victim’s car jumped out of nowhere.

18      The reconstruction expert concluded that your prime mover was travelling at no less than 30 km/hr at the time of the collision, and that there was no evidence of a speed in excess of the limit of 100 km/hr. This opinion is also consistent with the account you gave in your record of interview.

19      The reconstruction expert observed that the mounds of dirt prevent a clear view of Chapel Road  until a driver is about 14 metres from the bitumen edge of Chapel Road. She concluded that, at 30 km/hr, it would not have been possible to stop without a collision, if the driver had not commenced braking until he had an unobstructed view of Chapel Road. Without braking, the expert’s opinion was that a driver would have to have been travelling at a speed at or below 9km/hr in order to stop.

20      The essence of the dangerous driving is your failure to give way at the intersection. But this must be assessed against the background of the surrounding circumstances.  I will come to these in detail in a moment, but they include judging the road to be clear, where the dirt mounds partially obstructed your view, followed by your immediate approach to the intersection in a manner which did not allow any realistic possibility of stopping.

Criminal history

21      Your criminal history is relatively confined and now quite dated, with the majority of your previous court appearances occurring more than 20 years ago. However, you have a number of prior driving related matters, albeit much less serious than the charge which you are now pleading guilty to. 

22      Your most recent court appearance was at the Cobram Magistrates’ Court in 2004, where you were fined $500 and your licence was cancelled and you were disqualified from driving for 2 years, for driving while exceeding the prescribed concentration of alcohol. You have another drink driving prior from 1995, where you were also fined and your licence was cancelled and disqualified. In 1994, you were fined by the Cobram Magistrates’ Court for offences of careless driving and failing to report an accident to police.

23      While your counsel accepted that your drink driving convictions were the most relevant, your counsel submitted that for someone who was always on the road you did not have a lengthy driving history. Your counsel also submitted that the drink driving priors had reduced significance for this offending because it did not involve alcohol.

24      I accept your counsel’s submissions that your criminal history has limited relevance to my sentencing exercise.

Victim impact

25      I now turn to the impact that your offending has had on the family of Colin Curtis.

26      The death of Colin Curtis has had a devastating effect on his family. His absence in their lives is an unbearable heartache. They feel broken and are still struggling to comprehend what has occurred. 

27      Mr Curtis’ wife, son and daughter provided moving victim impact statements. The Curtis family all speak about the shock and trauma of losing their much loved husband and father from an incident which need not have happened.

28      They have experienced a range of strong emotions and feelings including anger, frustration, depression, sorrow and loneliness. They have experienced a sense of helplessness, can be hypervigilant and have difficulty trusting others. Sometimes these feelings are overwhelming.

29      Grief is renewed with constant painful reminders of his absence from important milestones and from smaller moments. They think about all the experiences in life they hoped to share with Mr Curtis. These emotional impacts are profound and will be long lasting.

30      The emotional strain has affected their physical wellbeing and also their ability to pursue their careers.

31      A significant financial impact has also been experienced by the Curtis family, as they have lost the main incomer earner, who also ran the family farm. This represents an ongoing challenge and stress.

Legal principles

32      I now turn, briefly, to the relevant legal principles that apply in this case.

33      Parliament has set the maximum penalty for the offence of dangerous driving causing death at 10 years’ imprisonment. This reflects the seriousness with which Parliament views this type of offending. Of course it is only one factor which I take into account and it is not the starting point.

34      In assessing the dangerousness of your driving, I must consider the extent of the risk which your driving created, and the extent of the potential harm of the driving should the risk materialise.[3]

[3]Stephens v The Queen (2016) 50 VR 740, 745 [20].

35      In determining your sentence, I must give consideration to both the objective seriousness of your offending, along with your moral culpability which is of central importance.[4] I am assisted by a non-exhaustive checklist of factors which the authorities[5] have identified as shedding light on these questions, including the degree of speed, the period over which the dangerous driving occurred, whether warnings were ignored, the familiarity of the vehicle driven and the terrain over which the vehicle was driven, the nature of that terrain, and questions of alcohol and drug consumption.

[4]DPP v Neethling (2009) 22 VR 466, 473-474.

[5]Stephens v The Queen (2016) 50 VR 740, 746-747.

36      Broadly speaking the authorities provide that a custodial sentence will usually be required except where the offender’s level of moral culpability is low. [6]

Gravity of offending and moral culpability

[6]Stephens v The Queen (2016) 50 VR 740

37      I now turn to my assessment of the gravity of your offending and your moral culpability.

38      Your driving was characterised by a serious departure from the level of care and attention which the circumstances required.

39      Your counsel maintained that your failure to give way was the result of transient inattention, if it could not be described as a true case of momentary inattention.  In any event, Mr O’Neill submitted that whatever label is attributed to your driving, your moral culpability for this offending is properly characterised as low, even if it is not the lowest imaginable example of dangerous driving. Your counsel emphasised that many of the aggravating features that can attend dangerous driving, including alcohol, drugs, fatigue, use of a mobile phone or driving at an unsafe speed over a period of time are absent in this case.

40      By contrast, counsel for the prosecution submitted that this was not really a case of momentary inattention when one has regard to all the circumstances immediately leading up to the accident. He submitted that your moral culpability was not at the very low end.

41      You, of course, were not responsible for the placement or location of the mounds of dirt which prevented a clear view of approaching traffic.  However, you had driven upon this road on many occasions. You were familiar with this intersection and with the existence of the mounds of dirt and the fact that they had compromised your view of traffic in the past. In your record of interview, you admitted that you had experienced issues before where you had not been able to see past the dirt. You thought the mounds had become smaller over time. It is not suggested that you wilfully assumed the risk that no car was approaching. If that were the case your moral culpability would be significantly higher. Rather, the case against you is that the circumstances in relation to the mound, and your knowledge of its presence, demanded that you should not have unequivocally made a judgment that the road ahead was clear. Tragically you went ahead and made this judgment. Further, the circumstances then required you to exercise great care and caution when you were immediately approaching the intersection so that you could stop urgently if required. This you did not do.

42      This being a country intersection on the open roads, drivers travelling along Chapel Road could be expected to be legitimately at high speeds near to the speed limit of 100 km/hr. You were also driving a large and heavy vehicle.  Its size limited your capacity to stop urgently. Its size increased the risk of terrible consequences should it collide with force with a normal size vehicle - that is so whether you struck the vehicle or whether it collided into you. In short, any collision that might have materialised as a result of your driving such a large vehicle through that intersection was very likely to be disastrous, as indeed this case was. The circumstances called for extra care and attention on your part.

43      In my view, an assessment of the objective gravity of your dangerous driving and of your moral culpability requires a consideration of this full context. The surrounding circumstances explain why you failed to give way to Mr Curtis’ vehicle approaching along Chapel Road.  They demonstrate that your driving was more than ‘blink of the eye’ momentary inattention. Accepting that your dangerous driving occurred over a brief period, it lasted for more than a single moment. Your initial assessment that no cars were approaching was, in all the circumstances, a grave misjudgement. This was then followed by a serious failure on your part, as you closed in on the intersection, not to allow for any possibility that you may have been mistaken about the presence of any approaching vehicles.

44      I accept of course that this case is not marked by some of the aggravating factors which attend driving in some other dangerous driving cases. For example, there was no alcohol, drugs, use of mobile phones, or deliberate or intentional risk taking. Such matters would likely place offending of this kind in the higher range. Yours is not such a case.

45      In all the circumstances, while the gravity of the offending and your moral culpability fall somewhere in the lower range, they are not at the lowest level, and I also do not think they approach the lowest level.

Plea of guilty

46      I now turn to your plea of guilty.

47      Following a contested committal, this matter was set down for trial. You then pleaded guilty at the final directions hearing in August 2019.

48      While your plea could not be described as having been indicated at the earliest point in time, you still receive significant credit for the objective utilitarian benefit through the saving of time and resources associated with a trial. Importantly, you have also saved the victim’s family from the additional trauma of going through a trial. You have facilitated the course of justice.

Remorse

49      I also infer from your plea of guilty, remorse on your part. You expressed immediate remorse for your actions and their impact on Mr Curtis’ family in your record of interview. I would also add to that the evidence of the passers-by of you at the scene. I accept the evidence of your character witness’ Mr Temple, Mr McKay and Ms Rourke that, following this offending, you have withdrawn from social interactions or become more reserved. Mr Temple also gave evidence that he saw that you were visibly distressed and upset about the incident and the impact on Mr Curtis’ family. This is also evidence of your ongoing remorse.  

50      On your behalf, Mr O’Neill also offered a heartfelt apology to the victim’s wife, son and daughter at the plea hearing. You said, through Mr O’Neill, that ‘I know my actions have caused so much pain. I’m so sorry for the loss of your husband and father.’ Mr O’Neill submitted that you had wanted to offer such an apology to the family immediately after the collision, but did not do so on legal advice.

51      I accept that you are truly remorseful for your offending, and the impact it has had on Mr Curtis’ family. You will receive significant credit because of the immediate and genuine remorse you have expressed for your offending. It bodes well for your prospects of rehabilitation, which I will return to shortly.

Personal circumstances and good character

52      I now turn to your personal circumstances and demonstrated good character.

53      As I have already mentioned, you are now 48 years old. You grew up on a dairy farm with your parents and brother and sister, and you currently reside on part of that property with your wife Vicki and your three sons aged 15, 13 and 8 years.

54      Your wife, who you have been married to for 20 years, was in court to support you. Your oldest son has some health issues which have been challenging for you and your wife to support him with. Each of your sons plays sport, including representative soccer and cricket. Your family is involved in the local sporting clubs. There is family travel to tournaments all over Victoria, and weekly training in Albury for soccer.

55      Going back in time, after completing year 11, you worked on the family farm. Your parents have since sold that dairy farm and you have run your own contracting earthworks business. You have also worked as a long-distance truck driver. Sometimes you deliver fruit. You work around 80 hours a week to support your family. Each of your work obligations requires you to drive.

56      Each of the character witnesses called on the plea gave evidence that you had an extremely strong work ethic and were very hard working. Ms Rourke gave evidence that you placed great importance on providing for your family.

57      Mr Temple, who lived on a neighbouring farm and has known you since you were a young person, gave evidence that you had always been a hard-worker and always willing to lend a hand, even in your younger years. Sometimes the Temples might call on you to help out and you would always assist.

58      You are someone who has made a positive contribution to the local community and before this offending you were generally socially engaged.

59      Broadly, these matters go towards demonstrating that you are a person who has been of good character, with the exception of your now aged and limited criminal history. Certainly, since you have been married and had children you have mostly remained out of trouble.

60      In short, you are a good person, a good family and community man, who, tragically, has made a truly catastrophic error.

61      There are also no subsequent criminal matters. While on bail you have continued to work and drive without further incident, although for the first 3 months it was a condition of your bail that you did not drive, which you complied with.   

Prospects of rehabilitation and specific deterrence

62      For all of the above reasons, I assess that your prospects of rehabilitation are excellent. I do not think that you will offend again.

63      As such, there is no need for specific deterrence to be expressed through my sentence. I accept your counsel’s submission that it has already been achieved because of the impact of the death of Mr Curtis on you. 

Just punishment, general deterrence and denunciation

64      In sentencing you today for the offence of dangerous driving causing death, I must give considerable weight to general deterrence.[7] Those in the community must understand that if they fail in their duty to drive with proper care and attention and instead drive in a manner that is dangerous resulting in death, significant criminal sanction will follow.

[7]DPP v Oates (2007) 47 MVR 483, 487 [22]; DPP v Neethling (2009) 22 VR 466, 472 [30]; Woldesilassie v The Queen [2018] VSCA 285 [24].

65      Further, my sentence must manifest the community’s denunciation of your conduct in driving dangerously, which resulted in the loss of Mr Curtis’ life – an affront to the value we place on human life in our society.

66      Ultimately, my sentence must represent a just punishment for your offending, taking into account all the circumstances in this case.

Submissions as to ultimate sentence

67      Your counsel submitted that a non-custodial sentence was appropriate in all the circumstances. Mr O’Neill argued I could achieve the sentencing purposes of general deterrence and denunciation without going so far as to sentence you to immediate imprisonment.

68      Counsel for the prosecution submitted that even taking into account all your mitigating personal circumstances, a just and appropriate sentence in this case required immediate imprisonment. Mr Batten submitted that a head sentence and non-parole period would be the proper sentence, because a Community Correction Order would not serve any rehabilitative purposes, given that you did not present with mental health, drug or alcohol issues requiring treatment.

69      The real contest at the plea hearing was whether I should be sending you to prison.  

70      I directed that you be assessed by Corrections for your suitability for a Community Correction Order. Corrections assessed that you were suitable to undertake a Community Corrections Order with a condition that you perform unpaid community work.

71      As Corrections assessed you as a low risk of reoffending, they did not recommend that you were suitable for a supervision condition. As you did not have a prior history of psychological or psychiatric interventions, Corrections assessed that a treatment and rehabilitation – mental health condition was not suitable. However, the report stated that you would consider talking to a psychologist to address the emotional toll of this offending on you.

72      To the extent that they can provide me with a broad impression of the sentencing pattern for like cases, involving broadly similar conduct – failing to give way or failing to stop at a red light - I have taken into account the comparable cases relied upon by the parties. However, I stress, for the purposes of sentencing no two cases are alike and none of these cases represents a precedent.[8]

[8]Kalofolias v The Queen [2017] VSCA 308 [49].

73      In this end, I accept the prosecution’s submission that a just and appropriate sentence in this case which achieves all of the sentencing objectives must involve a component of immediate imprisonment.

74      I am conscious of the need to give full consideration to the possibility of a straight Community Correction Order, even in cases involving serious offending.  But, the authorities recognise that there will be cases, indeed many cases, where the seriousness of the offending is such that a straight Community Correction Order would not give adequate recognition to the sentencing principles to be applied and would not be sufficiently punitive in nature. In my view, this is one such case.

75      I have, however, determined in this case that all the sentencing considerations can be adequately reflected in a combination sentence of imprisonment, together with a Community Correction Order. It is accepted that a Community Correction Order is intrinsically punitive, and that this punitive effect can operate as a general deterrent.[9] In this way, a Community Correction Order can meaningfully give effect to the sentencing purposes engaged in this case, in combination with a sentence of imprisonment.

Sentence

[9]Boulton v The Queen (2014) 6 VR 208.

76      Mr Patterson, would you please stand.

77      On the charge of dangerous driving causing the death of Colin Curtis, I convict and sentence you to a period of 12 months’ imprisonment.

78      Further, you are required to undertake a 2 year Community Correction Order upon your release from custody. That is, once you have served the 12 months’ imprisonment.[10] You will therefore be under sentence for a total of 3 years.

[10]This offending pre-dates the introduction of mandatory minimum sentences for the offence of dangerous driving causing death, which applies to offending that occurred on or after 28 October 2018.

79      This Community Correction Order contains one condition that you complete 150 hours of unpaid community work over that 2 year period of that order.[11] There are also a number of other standard terms, including that you are not to commit further offences during the period of this Order or to leave the State without prior approval.[12]

[11]Pursuant to section 48C of the Sentencing Act 1991.

[12]See section 45 of the Sentencing Act 1991.

80      You have previously consented to the making of a Community Correction Order. In a moment, I will ask you to sign this Community Correction Order giving your formal consent to this Order.

81      Upon your release from custody, after you have served 12 months imprisonment, you must attend at Shepparton Community Corrections within 2 working days.

82      Finally, I must tell that you that should you breach this Community Correction Order by failing to comply with the terms and conditions of this order or by re-offending, you may be brought back to Court and re-sentenced for this dangerous driving offence and a further sentence may be imposed for the breach.

Disqualification of licence

83      I am also required by law to cancel your licence and disqualify you from obtaining a licence for the minimum period of 18 months.[13] I also conscious that for the first 3 months after the incident it was a condition of your bail that you did not drive, which you complied with.

[13]Section 89(2)(a) of the Sentencing Act 1991.

84      Having considered the authorities on how to approach the determination the length of your disqualification[14], I have decided to accede to your counsel’s submission and not go beyond the minimum period of disqualification, that is 18 months from today. Your licence is important to your employment and ultimately to your rehabilitation.

[14]Koukoulis v The Queen [2020] VSCA 19 [18]; Lefebure v The Queen (2000) 112 A Crim R 41, 44 [7]-[8]; Novakovic v The Queen (2007) 17 VR 21, 40 [45].

85      In determining how to sentence you today, I have proceeded upon the basis that any period of disqualification is part of the sentence that I am imposing upon you and part of your punishment. In my view, I do not need to extend your disqualification beyond the minimum period of 18 months for any further punitive reason.

Section 6AAA

86      But for your plea of guilty, I would have convicted and sentenced you to 2 years and 9 months’ imprisonment, with a non-parole period of 18 months.