Director of Public Prosecutions v Porritt

[2022] VCC 1492

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-00530

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOUIS PORRITT

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 AUGUST 2022
DATE OF SENTENCE:	09 SEPTEMBER 2022
CASE MAY BE CITED AS:	DPP v Porritt
MEDIUM NEUTRAL CITATION:	[2022] VCC 1492

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:          Drive in a Manner Causing Death

Legislation Cited:         Sentencing Act 1991 (Vic).

Cases Cited:R vVerdins & Ors (2007) 16 VR 269

Sentence:  Convicted and placed on a Community Corrections Order for 3 years with 220 hours community work and mental health condition

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. P. Pickering	Office of Public Prosecutions
For the Accused	Mr. P. Morrissey with Ms. M. Sargent	Anthony Isaacs Criminal Lawyer

HER HONOUR:

1Louis Porritt, you have pleaded guilty on indictment to a single charge of drive in a manner causing death.

2The charge of dangerous driving causing death is one which carries a maximum penalty of 10 years imprisonment.  This penalty reflects the seriousness with which Parliament regards this offence.

3In addition, dangerous driving causing death is an offence to which the provisions of s 5(2H) of the Sentencing Act 1991 apply. This requires the court to impose a custodial order for this offence unless one or more of the exceptions set out in paragraphs (a) through to (e) of that subsection exist or apply.

Circumstances of offending

4The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening' dated 21 July 2022.  It is a detailed document and represents an acceptance by you of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.  I will only refer to it briefly in my sentencing reasons but I have had recourse to the full document.

5In short compass, on 12 July 2021 you were driving home after you and your wife of some 43 years, Yat Mei Porritt, known as Mei, had been shopping for groceries together at The Glen on the corner of Springvale Road and High Street Road, Glen Waverley.  This location was approximately 1 kilometre from where you had both lived for some 20 or so years.  Your wife was in the front passenger seat. 

6At approximately 8.50 pm you were driving east along High Street Road.

7You approached the corner of High Street Road and Arianne Road with the intention of turning right into Arianne Road, which connects High Street Road and Kincumber Road, where you and your wife resided.

8Another vehicle was approaching that same point driving west in the outside of two westbound lanes.  Anas Bin Tariq was also driving west along High Street Road, behind the other vehicle, but in the right of the two westbound lanes.

9You activated your indicator, slowed and waited for the other vehicle to pass in the outside of the two lanes.

10Inexplicably, you then made a right hand turn in front of Mr Tariq's vehicle, giving him no time to break or to avoid a collision.

11Mr Tariq's vehicle collided with the area around the front passenger side front door of your vehicle, the impact of which caused both vehicles to rotate and then run off the road.

12Your car hit an electricity pole on the nature strip on the south-western side of High Street Road.

13Paramedics arrived.  Both you and Mr Tariq tested negative for drugs or alcohol.

14Tragically, your wife was severely injured.  She was transported to the Alfred Hospital where she died of her injuries the following day.

15Subsequent investigation revealed that, at the time of the collision, it was dark and there had been intermittent rain making the road wet.  There was approximately a one second gap between the other vehicle and that being driven by Mr Tariq.  As referred to earlier, you tested negative for both drugs and alcohol.  There were no faults, failures or aspects of your vehicle that could have caused or contributed to the collision.  Your headlights had been on.

16CCTV footage was obtained by police.  I have viewed this footage.  It makes clear the 'split second' nature of this devastating event.  The Crown case is that you failed to give way to the oncoming vehicle.

17You were interviewed by police on 2 August 2021.  You could not recall the actual collision but were otherwise as frank and as cooperative as you could be, bearing in mind the inability to recall the actual accident. 

Offence gravity

18I have been referred to a number of comparable cases to which I have had recourse.

19The offence of dangerous driving causing death is, axiomatically, a serious offence.

20In DPP v Neethling [2009] 22 VR 466, the Court of Appeal helpfully identified a number of factors which may aggravate the seriousness of a charge of dangerous driving causing death. These include:

(a)   the extent and nature of the injuries inflicted;

(b)   the number of people put at risk;

(c)   the degree of speed;

(d)   the degree of intoxication or of substance abuse;

(e)   whether the driving was erratic (or aggressive);

(f)    whether there were competitive driving or showing off displayed;

(g)   The length of the journey during which others were exposed to risk;

(h)   ignoring of warnings;

(i)    escaping a police pursuit;

(j)    a degree of sleep deprivation; and finally

(k)   failing to stop.

21I have already referenced to a number of a factors which reduce the gravity of your offence.  In addition, I am told you were wearing your glasses, were not speeding, were not fatigued, and were not using a mobile phone.  You did slow to give way to the first oncoming vehicle and then inexplicably missed Mr Tariq's vehicle.

22I accept that this was a very momentary loss of concentration, unfortunately, and obviously, with very tragic consequence.

23I see both the objective gravity of this offence and your level of moral culpability as low.  There is almost a complete lack of aggravating features.

24Whilst speaking in this way, it is not meant in any way to trivialise what has happened.  There is nothing that this court can do or say that offers repair.  The sentence ultimately to be imposed is not a measure of Mei Porritt's life but a reflection of a number of factors I must take into account.  One of those is the impact on victims.

Victim impact

25The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

26Your daughter, Teresa Porritt, read her victim impact statement to the court.  You were obviously present and are aware of its content.  In that statement, Ms Porritt speaks of her profound grief, sense of loss and sheer bewilderment as to how this could have happened and how she will move on with her life.  She has relocated to Perth where her two brothers reside whilst trying to manage a practice in Victoria.  She says in her victim impact statement, 'All I do know is that my heart is broken and nothing will ever fix that.'  

27Your wife's death has left the relationship between you and your children strained at this time.

28I accept that you have been unable to step outside your own grief and need for self-punishment to be a resource for your children.  It has been but one of the ongoing impacts of the events of 12 July 2021.  The punishment you inflict on yourself will no doubt be harsher and far longer reaching than one that this court has the power to inflict.

Plea of guilty

29In terms of your plea of guilty, the Sentencing Act obliges me to take into account the stage at which you entered your plea.  Your matter resolved at Committal Mention in the Magistrates Court on 4 April 2022 without the testing of any evidence.

30It is conceded to be a plea at the earliest opportunity.

31There is clear value in saving the witnesses of the need to give evidence and relive traumatic events and there is extra value in saving the community the time and expense of contested proceedings. 

32Your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted by the pandemic and many trial dates remain as yet unfixed.

33Based on the materials before me I also accept that your plea of guilty is one of very genuine remorse.

34These factors will be taken into account in your favour.

Personal circumstances

35You are now aged 67 years.

36You were born in Sri Lanka with your father working as an accountant for British Petroleum and your mother was a homemaker.

37You were five when your family moved to Australia.  Your family first settled in Sydney, followed by Springvale and then St Kilda.  Your mother's marriage to your father was her second and you had a number of half siblings considerably older than you.  I understand that both of your parents and each of your siblings have now all passed away.

38On completing your Higher School Certificate, you studied surveying and drafting at RMIT and completed an environmental degree at Deakin University.  You worked for a survey company drafting while studying law.

39You met your wife, Mei, some 44 years ago in September 1977 and were married by May the following year.  Mei had been born in Kowloon, Hong Kong.

40Initially, she worked part-time in a Chinese restaurant whilst you worked and studied part-time.  Mei worked evenings and you looked after the children.  As your work and study increased these roles changed

41You do have three children together, Andrew, Teresa and David, all of whom have been successful in their chosen careers.  Both Andrew and David are general practitioners and Teresa works as a barrister.  All three were present for your initial plea hearing and are present for sentencing today.

42You qualified as a solicitor in 1996, graduating from Monash University.  You practise in conveyancing, wills, probate and commercial law.  You obtained articles and continued to work for the solicitor to whom you were articled until he passed away.  From 1999 you continued the law practice on your own, primarily working from home.  For the last 10 years it was just you and your wife in the family home.

43You had hoped to phase into retirement at the time of the charge before this court.

44Your home of some 23 years is still your home and your workplace, and I accept this would be a difficult setting for you to face on a daily basis.  You do use your work as a distraction.  Prior to her death Mei would visit her mother in aged care regularly and you have continued to do so.

45You have minimal health problems, but you do suffer from gout, the occasional migraine and take medications for cholesterol.

46You are fortunate to be well supported and well regarded in your local community  as evidenced by the multiple character references tendered on your behalf to which I have had regard.  Whilst the authors of those documents have known you in different capacities, you are variously described as a careful driver, a good and loving husband and father, kind and gentle, patient and understanding - qualities that should stand you in good stead into the future.  Your friends have observed your remorse, your profound grief and heartbreak at your wife's death.

47You are clearly a man of good character.

Prospects for rehabilitation

48You are at the later stages of your life and have no prior convictions.

49You have led a blameless life and made contribution to the lives of your friends, family and community.

50You have written a letter to the Court.  Your letter speaks of your own devastation, confusion and your constant series of 'what ifs'.  Your offence was at the initial stages of Victoria's second and longest lockdown of some 111 days during the Government’s response to the COVID-19 pandemic, adding to your isolation in the immediate aftermath.  Your remorse is high.

51Your history otherwise, and since your offence indicate, that you have excellent, if not complete prospect for rehabilitation.

Section 5(2H)

52The charge of dangerous driving causing death is a category 2 offence and, in sentencing an offender for a category 2 offence, a court must impose a custodial sentence (other than a sentence of imprisonment imposed in addition to making a community corrections order) unless a legislated exception applies.

53Your counsel relies on the exception contained in s 5 (2H)(e), that is, that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order which would see you imprisoned.

54In determining whether there are substantial and compelling circumstances under sub-s2H(e), the court:

a.must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s 5(1); and

b.must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

c.must not have regard to:

i.the offender's previous good character; or

ii.an early guilty plea; or

iii.prospects of rehabilitation; or

iv.parity with other sentences.

(2I) In determining whether there are substantial and compelling circumstances under sub-s2H(e), the court must have regard to:

a)the Parliament's intention that in sentencing an offender for a category 2 offence an order under division 2 or part 3 should ordinarily be made; and

b)whether the cumulative impact of the circumstances of the case would justify from a departure from such a sentence.

55Section 5(2H) is clearly a high hurdle to overcome and it is an evaluative judgement for the court to make once relevant underlying facts have been established. Obviously, each case does depend on its particular facts.

56In support of the submission that an exception under s 5(2H)(e) can be found, you rely on a combination of circumstances, as you are entitled to do. The first of those does include:

(a)   the circumstances and gravity of the offence itself including your low moral culpability;

(b)   the unusual and high level of extra curial punishment exacted;

(c)   the hardship of imprisonment given your diagnosis of post-traumatic stress disorder; and

(d)   the value of your plea in the context of the need for the courts to respond to the COVID-19 pandemic and reduce trial backlog.

57l accept the submission made on your behalf that the circumstances of your offending involve particularly low moral culpability and particularly low objective gravity.  In my view, this factor alone is almost sufficient in the circumstances of your particular case.

58But it is not the only factor.  Tendered on your behalf was a report authored by
Ms Pamela Matthews, psychologist, dated 24 July 2022.

59Ms Matthews finds that you suffer post-traumatic stress  disorder which falls in the severe range.  This diagnosis is as a result of your offence.  You also, understandably, suffer bereavement, guilt, self-blame and continued distress.

60Ms Matthews expresses concern that your mental health will significantly deteriorate should a prison sentence be imposed.  She opines, 'From a psychological perspective, no one can punish Mr Porritt more than he emotionally punishes himself for his wife Mei's death.  From a rehabilitative perspective, imprisonment would be cruel and unusual punishment likely to leave Mr Porritt psychologically incapacitated for the rest of his life.' 

61It is conceded that limbs 5 and 6 of the decision in R vVerdins & Ors  [2007] 16 VR 269 apply. That is, your diagnosed condition would increase the hardship experienced by you in prison as you do suffer from a mental impairment at the time of sentencing. Your condition justifies a less severe sentence as the evidence indicates that there is a serious risk that imprisonment could have a significant adverse effect on your mental health.

62Ms Matthews' findings are part and parcel of the submission made on your behalf that s 5(2H)(e) applies, rather than reliance being placed on s 5(2H)(c)(ii) which provides for an exception where the offender has impaired mental functioning that would result in that person being subject to substantially and materially greater than the ordinary burden of imprisonment.

63Your counsel submits that the exception has been made out pursuant to s 5(2H)(e). This much has, as I understand it, been conceded by the prosecution.

64I am satisfied that Ms Matthews' unchallenged findings would allow you to overcome the mental functioning exception.  In any event, in combination with the other factors submitted on your behalf, Ms Matthews’ opinion does constitute substantial and compelling circumstances that are exceptional and rare and that justify not making an order that you be imprisoned, in combination with the other factors raised on your behalf.

Other orders

65The offence of dangerous driving causing death is a 'serious motor vehicle offence' pursuant to s 87P of the Sentencing Act 1981.  I am required to cancel and disqualify your license for a minimum of 18 months.

66I do so for a period of two years commencing today.

67I am about to go down to the sentencing pathway, effectively, so I am just checking with you, Mr Pickering that there are no matters arising to date?

68MR PICKERING:  No, Your Honour.

69HER HONOUR:  Mr Morrissey?

70MR MORRISSEY:  None from us, Your Honour.

Sentencing

71Mr Porritt, the basic purposes for which a court may impose a sentence are firstly punishment, also general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters - they do include the seriousness of the offending, your culpability for it, your personal circumstances and importantly, those of your victim.

72I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in ensuring, where possible, that offenders are rehabilitated and safely reintegrated into society. 

73I have taken into account the relevant sentencing guidelines referred to in s 5 of the Sentencing Act 1991.  I have taken into account current sentencing practices for the offence to which you have pleaded guilty, as well as the important principles of totality, proportionality and, in your case, parsimony.

74I have had you assessed as to your suitability for a community corrections order and you have been found suitable.  You have also been assessed by the Mental Health and Advice Response Service who did recommend that you have ongoing assessment and treatment for your mental health and that should be a component of any community corrections order imposed.

75Courts do have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served, but served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed naturally towards retribution and deterrence, factors which I see as having less weight in the overall sentencing mix for you

76On the single charge of dangerous driving causing death, you are convicted and will be placed on a community corrections order for a period of three years.  That order will have the conditions that you complete 220 hours of community work and undergo assessment and treatment for your mental health.  All hours of treatment may be offset against the community work requirement.  

77In addition to the conditions that I have imposed there are standard conditions.  The first and foremost of those is that you must not commit any other offence during the three year period which could be punished by imprisonment.  You must also report within two working days to the nearest community corrections office.  You are also required to advise your corrections office of any change of address of where you are living or working and that you must do so within two clear working days.  It is a term of community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections officer.  You are not able to leave the State of Victoria without the prior permission of your corrections office

78This order can be contravened if you do not comply with it in terms of its conditions or reoffend by an offence punishable by imprisonment whilst it is in place.  If you do, you will have to reappear before me for breaching the order and I may have to resentence you on the original charge and for a separate offence of contravening the corrections order.  I can only place you on this corrections order with your consent, and in a moment I will give your legal representation the opportunity to speak with you about that.

79Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.  If not for your plea of guilty, you would have been sentenced to 12 months imprisonment in combination with a community corrections order, as I am of the view that the exceptions referred to would have still had some application. 

80Mr Morrissey, that order will print out shortly or is available.  I will leave it to either you or your instructor to, firstly, do that, and secondly, approach Mr Porritt.  I will have a copy made available for you too, Mr Pickering. 

81MR MORRISSEY:  Thank you, Your Honour, we will process that now.  Could my instructor just approach, Your Honour?

82HER HONOUR:  Certainly.

83MR PICKERING:  No, Your Honour. 

84MR MORRISSEY:  Thanks, Your Honour.  I can indicate that I am instructed that he consents to that order and he has signed the copy that was provided to us.

85HER HONOUR:  Thank you very much.  I do thank both counsel for their assistance in relation to this matter, and I commend all present for the dignity and respect that they have shown the proceedings. 

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