Director of Public Prosecutions v Purcell
[2021] VCC 1807
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-01209
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD GLENN PURCELL |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2021 | |
DATE OF SENTENCE: | 18 November 2021 | |
CASE MAY BE CITED AS: | DPP v Purcell | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1807 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Dangerous driving causing serious injury – conduct endangering persons – head on collision between B-double vehicle towing two trailers and car carrying two families – driver of B-double vehicle distracted momentarily by motorbike – mistook motorbike for police – cut corner at intersection – drove onto wrong side of road colliding with car – relevant criminal history of driving offences – early guilty plea – first time in custody – burden of custody due to COVID-19 pandemic –Verdins limb 5 – general and specific deterrence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Lee v The Queen [2021] VSCA 156; DPP v Neethling [2009] VSCA 116; Stephens v The Queen (2016) 50 VR 740; R v Oates (2007) 47 MVR 483; R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall (Plea) Mr White (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms T. Bolton (Plea) Mr T. Prytz (Sentence) | Arundell, Murray & Ryan Lawyers |
HIS HONOUR:
1Richard Glenn Purcell, you have pleaded guilty on indictment to one charge of dangerous driving causing serious injury, contrary to s 319(1A) of the Crimes Act1958 and one charge of conduct endangering persons, contrary to s 23 of the Crimes Act 1958. The maximum penalty in respect of each charge is five years' imprisonment.
2An agreed summary of prosecution opening was tendered and read out during the plea hearing.[1] Your counsel acknowledged the accuracy of the opening.
[1] Exhibit A.
3On the afternoon of 4 January 2020, the occupants of a grey Toyota Kluger were enjoying a day trip, travelling towards the Otways, having had lunch in Lorne. The Kluger was being driven by Emily I'Anson and her friend, Frank Burmudez, was seated in the front passenger seat. The young children of Emily I'Anson and Frank Burmudez were seated in the middle and back rows. This included the 12‑year‑old victim in respect of Charge 1, Madeleine I'Anson, and her younger brother, William I'Anson, who was aged nine at the time. Mr Burmudez's two children, Mia and Ava, were also seated in the middle and back rows. They were aged 11 and six respectively at the time of the offending. All of the occupants of the Kluger were wearing seat belts.
4Mr Purcell, you were driving a B-double vehicle, a Kenworth prime mover, that was towing two trailers. You were delivering loads of silage and had begun carting the silage at about 8 am. You had already delivered two loads and was returning with both of your trailers empty to collect the last load. You proceeded down Barrys Road, turning left onto Colac-Lavers Hill Road. You then travelled north towards the T-intersection with Barongarook Road. As you proceeded towards Barongarook Road, you saw a ute and a motorbike rider travelling towards you. The motorbike rider, Mr Dzwonczyk, pulled over on the left-hand side of Colac‑Lavers Hill Road, near the south side of the intersection. Mr Dzwonczyk saw you drive past him travelling at approximately 40 to 50 kilometres per hour.
5The Kluger was travelling along Barongarook Road, descending a slight hill towards the T-intersection. Ms I'Anson reduced her speed and was intending to turn left at the intersection. Ms I'Anson saw your vehicle as it approached the intersection. Without stopping at the intersection, you turned right. Your vehicle cut the corner on entering the intersection and turned onto the wrong side of the road, the right-hand side. As a result, you drove directly in the path of the Kluger, hitting it head on and pushing it backwards. All of the airbags in the Kluger were activated. Mr Dzwonczyk witnessed your vehicle shunting the Kluger up Barongarook Road until the Kluger was no longer on the road but in a paddock. The Kluger came to rest with its back end up against a barbed wire fence. The cabin of your prime mover stopped on the right-hand side of Barongarook Road whilst the trailer was still in the Colac-Lavers Hill Road, from where you had turned.
6Mr Dzwonczyk immediately went to assist the occupants of the Kluger. Other road users also witnessed the incident and stopped to render assistance.
7All the occupants of the Kluger were injured. Madeleine I'Anson was unresponsive. You used a pair of bolt cutters to disconnect the Kluger's battery.
8At the scene, Mr Dzwonczyk had the following conversation with you.
He said: 'Mate, what the fuck were you doing?'
You said: 'I was looking at you. I thought you were a copper.'
Mr Dzwonczyk said: 'I've just stopped on the side of the road to take a piss. What are you doing? You're on the wrong side of the road. What the fuck.'
And you said: 'I was focused on you and I've cut the corner a bit.'
9Mr Jensen and Ms Gamble were travelling behind you along Colac-Lavers Hill Road. They had been following you for some 10 to 15 minutes, travelling at the speed limit. Ms Gamble states prior to the collision whilst they were travelling behind you, you were not driving erratically, but in a normal manner.
10Ambulance, the Country Fire Authority and State Emergency Services attended the scene. A number of police units also attended.
11Madeleine I'Anson was placed in an induced coma and airlifted to the Royal Children's Hospital to an intensive care unit. CT imaging disclosed a subarachnoid haemorrhage over the right cerebral hemisphere and a right scalp contusion. There was no skull fracture. An intercranial pressure monitor was inserted into her brain by a neurosurgeon under general anaesthetic. As the monitor was faulty, the procedure had to be repeated a few hours later, again under general anaesthetic. Due to intercranial pressure rises, which raised concerns about brain swelling, a further CT brain scan was performed on 6 January 2020. This revealed that the subarachnoid haemorrhage was resolving, and the scalp contusion had resolved. The intercranial pressure monitor was removed on 9 January 2020.
12Madeleine I'Anson's injuries identified on MRI brain imaging were consistent with a traumatic brain injury due to direct blunt force trauma.
13She was transferred to the neurosurgery ward on 11 January 2020 and began rehabilitation on 17 January 2020. She was unable to eat normally until 14 January 2020 and her nasogastric tube was removed on 15 January 2020. She required reviews by a dietician regarding her feeding. She also required a review by a speech pathologist due to the loss of her voice. Whilst her speech recovered, it was affected by fatigue and speech therapy was recommended. She also needed physiotherapy to help with mobility, and occupational therapy to assist with daily living and self-care. Madeleine I'Anson was discharged from hospital on 7 February 2020. In addition to follow-ups in the neurosurgery and rehabilitation clinic, she required ongoing support involving speech therapy, physiotherapy, occupational therapy, psychology, and neuropsychology. Her transition back to school was gradual.
14Emily I'Anson was transported to the Barwon Health Emergency Department. She had sustained a comminuted fracture to her sternum and a displaced fracture to her right collarbone, as well as post-traumatic amnesia and bruising to her right leg and chest. Her recovery from the fractured collarbone was complicated by non-union of the fracture with a drop of the right shoulder. An X-ray was taken on 15 May 2020, showed that the healing process was incomplete. On 23 June 2020, surgery was performed under general anaesthetic to realign her collarbone and fix it with a plate and screws, with a bone graft to assist healing. She was required to wear a sling for four weeks and take analgesia when necessary. She was considered unfit for physical duties or employment from 16 June 2020 until 17 December 2020.
15Frank Burmudez was also transported to the Barwon Health Emergency Department. His injuries were: tenderness to the thorax, sternum and both wrists; a small haematoma to his right chest wall; and a superficial scrape to his right wrist.
16William I'Anson was able to remove himself from the vehicle and was mobile when the ambulance arrived. He sustained seatbelt abrasions including bruising on the right side of his neck and chest and pain to his right chest around the area of the bruising. He was taken to Geelong Hospital where he stayed in the Paediatric Short Stay Unit for observation before being discharged on 6 January 2020.
17Ava Burmudez and Mia Burmudez were also transported to Geelong Hospital. Ava complained of pain in her left thumb, and there was bruising to her left collarbone from the seatbelt. She experienced traumatic flashbacks of the accident and was seen by the hospital social worker for support. She was discharged on 6 January 2020.
18Mia complained of severe pain around her left pelvis and thigh, and tenderness to her abdomen. She was unable to bear weight on her left leg. Intravenous opioid analgesia was administered to her at the scene. She complained of ongoing leg pain with restricted movement. She was assisted with physiotherapy and occupational therapy. When she was discharged on 7 January 2020, she required crutches to help with her movement and needed some ongoing physiotherapy.
19A blood sample taken from you at the Colac Hospital confirmed that you had not taken any drugs or alcohol.
Victim impact statement
20The prosecutor read aloud a victim impact statement prepared by Ms Emily I'Anson and declared on 21 September 2021.[2] Your offending, Mr Purcell, has had a profound impact upon the lives of a mother and her young daughter.
[2] Exhibit C.
21She states, 'The impact of this careless and avoidable accident has changed the very fabric of our reality. Our world will never be the same, we have in many ways had our futures as we knew them taken from us. Involuntarily and re-written, one might say, and there is not one aspect of lives that has not been altered from this event. The emotional trauma, constant stress, and ongoing physical challenges, as well as the unknown future, bear a heavy weight on me as a mother and my children. The accident has forced them to have to understand and live through pain, stress, and challenges that they should have never had to endure at their age, or maybe ever.'
22Emily I'Anson is no longer able to work in the profession which she had enjoyed and was her passion for past 19 years. She has had to sell her home, her most important asset, which she had been working hard as a single mother to obtain for her children. Daily duties are now a challenge because of the injuries she sustained. A day does not go by without her being in pain or unable to carry out simple tasks. Her life and her daughter Madeleine's life are now filled with ongoing and constant therapy and doctors' appointments, including physiotherapy, neuropsychology, and appointments with pain specialists.
23Her daughter Madeleine sustained the most serious injuries. She is now unable to pursue gymnastics, which was her passion. She suffers from brain fatigue and is unable to endure extended periods of concentration or high demand activities. She fixates on things and is highly repetitive in her behaviour. She now faces social challenges - making new friends. She has spent the last 18 months relearning how to talk, walk, read, and sing. Due to the high level of care and management she requires, Madeleine is only able to attend school on a part-time basis with limited leisure activities.
24Mr Purcell, your offending has inflicted heartache and trauma upon the lives of a young family.
Criminal History
25You have a history of driving offences. Between 14 May 1994 and 19 February 2016, you have had seven traffic infringement notices for driving at an excessive speed. On 13 May 1996, at Colac Magistrates' Court, you were sentenced to a six-month community-based order for driving whilst suspended and driving an unsafe motor vehicle.
26On 20 November 2000, you received a traffic infringement notice for driving an unregistered trailer, fraudulent use of a number plate and fixing a number plate other than one that was issued.
27Between 1989 and 2015, you appeared on five occasions before a Magistrates' Court for offences including, theft from a motor vehicle, attempted theft of a motor vehicle, indecent assault, possessing a regulated weapon, possessing a dangerous article, using a carriage service to harass, criminal damage and entering a private place without authority. You received a good behaviour bond and various financial penalties in relation to these appearances. It is your driving history that has some relevance to the sentencing task.
Personal circumstances
28Mr Purcell you were born in August 1968 and are now aged 53. You grew up in Camperdown living with your parents and two younger siblings, a sister and a brother. Your father passed away last year, and your mother now lives alone in Camperdown. Your mother has provided a short reference[3] in which she sets out her health issues and the fact she relies upon you for help around the house. She also relies upon you for much needed company. I note you have always enjoyed a good relationship with your mother, and you are attached to her.
[3] Exhibit 4.
29You attended a local school in Camperdown and as a result of obtaining employment, you left before completing Year 10. You have held a large number of unskilled and semi-skilled jobs mainly in Colac and Camperdown. These jobs have included work in a bakery, a milk processing factory, a supermarket, fence building, and metal work duties in an engineering foundry. In your late 30s, you moved to Western Australia where you worked as a furniture removalist.
30You obtained a heavy combination licence in 2007 and your B-double licence in 2015. Between April 2018 and March 2019, you worked for a haulage company transporting general items including groceries and timber. At the time of this offending, you had been working for your then current employer since May 2019. This involved carting hay locally and interstate.
31Following this offending, you lost your employment. You remained unemployed for several months before gaining your current employment with a transport company in Colac in July 2020. You have been driving a heavy vehicle since July 2020 without further incident.
32It is plain that you have a strong work ethic which has continued following your offending.
33Whilst you have been in a number of short-term relationships, your most significant relationship lasted some five years. At the time the relationship commenced, your partner was already the mother of two children and was expecting her third. Although, you are not his biological father, your name is recorded on your son's birth certificate. As a result of her meeting someone else, your relationship broke down in 2015. You were not allowed access to your son and have not seen him since. You have no expectation of seeing him again.
34You struggled with the breakdown of this relationship and required counselling. A psychological treatment report dated 11 May 2021, prepared by Mr Allan Woodward was tendered on your plea.[4] Following a referral from your GP, Mr Woodward saw you first in April 2015. Since then, you have undertaken 34 counselling sessions with Mr Woodward over two periods between 2015 and 2017, and again between April 2019 and January 2020. The second referral in 2019 was made after you had taken an overdose following your mother experiencing a cardiac event and in the context of your continued denial of access to your son.
[4] Exhibit 2.
35Mr Woodward diagnosed you with an Adjustment Disorder, with a depressed mood.
36Recently, you were assessed by Dr Leon Turnbull. Dr Turnbull has prepared a psychiatric report dated 23 September 2021.[5] Dr Turnbull noted no obvious learning difficulties in respect of you and your recall was unimpaired. Although your mood states vary, you have not fallen into a sustained pathological depression. Your sleep and energy levels are adequate, and you enjoy keeping yourself busy. Dr Turnbull found no association between your mental state and the offending conduct. He adds, you have a tendency to psychologically react to difficult circumstances, and there is a risk of self-harm or suicide attempts if you were incarcerated.
[5] Exhibit 3.
37You have no issues with alcohol or drug use currently. You began using cannabis at the age of 30, but your use of it was short lived. You haven't used cannabis for over 20 years. You have never touched any other illicit substances. You were diagnosed with Klinefelter's syndrome in your mid-30s. This has meant you have been unable to realise your dream of having a big family.
38Around the time of your second referral to Mr Woodward, you had formed a new relationship. Your new partner, Laura Magill, provided a reference dated 6 October 2021.[6] I have had regard to the contents of her reference. You met in 2018 while you were working as an interstate transport driver for a Victorian company. You would drive to New South Wales. You first met each other in person when you delivered hay to her house in New South Wales. She is a single mother. In April 2019, she moved to Swan Marsh in Victoria where you reside. However, due to custody issues involving her children and her former partner, she had to move back to New South Wales. You remain friends and are hopeful of a meaningful relationship in the future.
[6] Exhibit 5.
39As set out in Mr Woodward's report, you have been vulnerable to emotional setbacks, resulting in attempts to take your life.
Objective Gravity
40The objective gravity of an offence of dangerous driving causing since injury depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.
41In Lee v The Queen [2021] VSCA 156, the Court of Appeal said at paragraph 20:
'The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road. Compliance with that obligation is essential to community safety.'
42Of course, speed is not a factor in your case, however, the importance of paying full attention and remaining in control of a vehicle at all times is self-evident. Attention and control of a vehicle of the weight and size of a Kenworth prime mover with two attached trailers was particularly important when undertaking a manoeuvre at an intersection. You allowed yourself to be distracted by Mr Dzwonczyk, thinking he was a police officer, at a particularly crucial time when you should have been giving the road ahead your undivided attention. Your failure to maintain attention impacted your control of the prime mover. You turned and veered into the wrong side of the road colliding head-on with a vehicle being driven in an entirely safe manner. Not only was your driving at the intersection dangerous, but it also caused serious injury to a young 12-year-old girl. As I have already stated, the serious injury caused by your driving has significantly impacted her life in a profoundly detrimental way.
43I accept that your case is not one which is aggravated by factors such as alcohol, drugs, high speed, aggressive driving, sleep deprivation or failing to stop.[7] Your driving leading towards the intersection raised no concerns.
[7] See DPP v Neethling [2009] VSCA 116 at [31] (Neethling).
44However, as the Court of Appeal said in Stephens v The Queen,[8] the factors adopted in Neethling do not constitute some mere checklist and are not intended to be exhaustive.
[8] (2016) 50 VR 740 at [25].
45The serious consequences to innocent members of the public of a head on collision between a large truck and another vehicle are obvious. You were an experienced truck driver, and you should have been well aware of those consequences. Your inattention may have been for a matter of seconds, but it came at a crucial point, leading you to make an unlawful manoeuvre by crossing solid white lines and driving directly into oncoming traffic. This was not only extremely dangerous but caused serious injury to a young girl. Intersections are dangerous in the absence of complete and undivided focus.
46As was conceded on your behalf, despite the absence of many of the aggravating features, this is not a case where your moral culpability is at the lowest end that may justify a non-custodial disposition. I do however, regard your culpability as being towards the lower end.
47In respect of Charge 2, whilst injury is not an element of the offence, I am entitled to take into account the impact of the offending upon the remaining passengers in the Kluger.
48I bear in mind that both charges arise out of the same driving at the intersection against occupants of the same vehicle.
49It is clear that general deterrence is an important sentencing objective in this matter.[9] Bearing in mind your prior history, specific deterrence has some role to play as well.
[9]R v Oates (2007) 47 MVR 483.
Matters in mitigation
50This matter resolved two days prior to the committal hearing. Therefore, no evidence was called. The resolution was at a relatively early stage. Your pleas of guilty have saved the community the time and expense of a trial and, importantly, spared the victims from further trauma by having to relive the incident in court. You have facilitated the course of justice and taken responsibility for your actions.
51Your pleas of guilty at a time when this court is facing significant delays due to the pandemic entitles you to an additional and palpable discount.[10]
[10] Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35] – [39]. See also Rossi v The Queen [2021] VSCA 296 [13].
52I further accept your pleas of guilty are demonstrative of remorse. You admitted your unlawful manoeuvre at the scene of the incident when speaking to Mr Dzwonczyk. Immediately after the incident, in a state of shock, you said to a witness on the scene, 'I feel really bad. I hope everyone is okay.' You assisted by disconnecting the Kluger's battery.
53You expressed your concerns for the young victim subject to Charge 1 when speaking to Dr Turnbull. You told Dr Turnbull that you were particularly troubled by the well-being of the 'little girl' and that you are worried about her recovery or lack thereof.
54Having said that, there appears to be a degree of blame cast upon the driving of the Kluger. That is evident in your police interview, in Laura Magill's reference and in Mr Woodward's report.[11]
[11] Page 3 of report, first paragraph.
55It may not be overwhelming, but I accept you are remorseful for your regrettable and entirely avoidable conduct.
56As conceded by your counsel, a sentence of imprisonment must follow. I accept that the burden of imprisonment will be greater upon you due to the following matters:
· This will be your first experience of incarceration.
· You will be serving the sentence at a time when conditions are onerous due to the COVID-19 pandemic. There are restrictions as far as personal visits are concerned and there is a lack of rehabilitative and educational programs available. There will be anxiety over contracting the virus in an environment where you have little control. Further, you are likely to endure not only an initial period of quarantine but periods of lockdown.
· You are susceptible to difficult circumstances and your Adjustment Disorder may mean that imprisonment will be more burdensome for you.[12]
· You enjoy a close relationship with your elderly mother who is reliant upon you for help around the house as well as much-needed company. I have had regard to Ms Purcell's reference.[13] Not being in a position to care for her will cause you anguish while you serve your term of imprisonment.
[12] Limb 5 of Verdins. See Dr Turnbull's report page 4, third paragraph; page 5, penultimate paragraph.
[13] Exhibit 4.
57While you have some relevant prior matters showing your disregard of traffic laws, they are now of some age and mainly involve infringement notices for speeding. I accept otherwise, you are a hardworking member of the community and have qualities demonstrating your care and affection for others. I have had regard to all the references and reports tendered on your behalf.[14]
[14] Exhibits 2-7.
58The offending occurred in January 2020. You are now 53 years of age and have been in no further trouble, maintaining consistent employment as a truck driver. I accept that your prospects of rehabilitation are good.
59I have had regard to Dr Turnbull's psychiatric report tendered on your plea.[15] Dr Turnbull states that you have a tendency to psychologically react to difficult circumstances. You have made attempts to self-harm and attempt suicide when faced with challenges. There is a risk of that occurring in the future when you are removed from the community and placed in a custodial setting.
[15] Exhibit 2.
60Otherwise, Dr Turnbull does not diagnose you with any psychiatric condition. Understandably, no submissions regarding the application of Verdins[16] beyond limb 5 were made on your behalf.
[16]R v Verdins (2007) 16 VR 269 (Verdins).
61I have had regard to the cases referred to me by both the prosecution and defence.[17] No two cases are truly comparable. However, they provide some guidance as to the application of relevant sentencing principles and can also be used as yardsticks that may illustrate the range of sentences available.
[17] DPP v Lee [2021] VSCA 156; DPP v Wale [2015] VCC 119; DPP v Peoples [2017] VCC 1503; DPP v Maranis [2018] VCC 188; DPP v Ng [2016] VCC 1565; Tokay v The Queen [2014] VSCA 172 and Woldersilassie v The Queen [2018] VSCA 285. They were not referred to during the plea but were sent by email.
Sentencing
62On behalf of Mr Purcell, a term of imprisonment comprising a head sentence and a non-parole period was conceded. It was submitted that your good prospects of rehabilitation allowed the court to impose a shorter non-parole period. The prosecution conceded that the offending resulted from a short lapse of concentration and many of the aggravating features commonly observed were absent.
63I have carefully considered all the matters raised in this matter and weighed the various sentencing considerations including the principle of parsimony.[18]
[18]Sentencing Act1991 s 5(3).
64Can you now please stand, Mr Purcell.
65I sentence you, Mr Purcell as follows:
66On Charge 1, dangerous driving causing serious injury, Mr Purcell, you will be convicted and sentenced to a term of 15 months' imprisonment.
67On Charge 2, conduct endangering persons, you will be convicted and sentenced to a term of nine months' imprisonment.
68Charge 1 will be the base sentence. Two months of the sentence on Charge 2 will be served cumulatively upon Charge 1.
69That makes a total effective sentence of one year and five months' imprisonment.
70I set a non-parole period of eight months' imprisonment.
71I note that there is no pre-sentence detention to declare.
72Pursuant to s 89(2) of the Sentencing Act 1991, your licence will be cancelled, and you will be disqualified for a period of 18 months from today's date.
Section 6AAA declaration
73Pursuant to s 6AAA of the Sentencing Act, I indicate that had Mr Purcell pleaded not guilty, he would have been sentenced to a term of two years and three months' imprisonment with a non-parole period of 14 months.
74Thank you. Mr White, anything arising?
75MR WHITE: No, Your Honour.
76HIS HONOUR: Thank you. Mr Prytz?
77MR PRYTZ: No, Your Honour.
78HIS HONOUR: Thank you. The matters alluded to in the reports as to his emotional state will be noted in the records of the court, Mr Prytz.
79MR PRYTZ: Thank you, Your Honour.
80HIS HONOUR: And those reports will be provided to the authorities.
81MR PRYTZ: Please the court.
82HIS HONOUR: Yes. Thank you. We will adjourn the court please.
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