Director of Public Prosecutions v Quinlan
[2022] VCC 29
•21 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 21-01981
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY BRYAN QUINLAN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | |
DATE OF SENTENCE: | 21 January 2022 |
CASE MAY BE CITED AS: | DPP v Quinlan |
MEDIUM NEUTRAL CITATION: | [2022] VCC 29 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P D'Arcy | Office of Public Prosecutions |
For the Accused | Mr I. Hill QC with | Oakleys Law |
HIS HONOUR:
1Anthony Bryan Quinlan, you have pleaded guilty to one charge of dangerous driving causing death. That crime carries a maximum penalty of 10 years' imprisonment. It also carries a mandatory minimum loss of licence of 16 months and, accordingly ‑ ‑ ‑
2MR D'ARCY: Eighteen.
3HIS HONOUR: Eighteen months. Sorry.
4MR D'ARCY: Eighteen.
5HIS HONOUR: Yes. And, accordingly, any licence you hold to drive a motor vehicle is hereby cancelled and you are disqualified from obtaining a licence for a period of 18 months.
6I will be going through a summary of the offending in a moment but the situation is that you are now 59 years of age. You were 58 years of age at the time. You pleaded guilty at the earliest reasonable opportunity and, in this particular situation, accepted responsibility for what occurred within seconds.
7I accept in these circumstances that that plea of guilty is accompanied by remorse, and I will have more to say about that in a moment, and a massive utilitarian benefit. I accept that you have deep and profound remorse, shame and guilt over what occurred. That those feelings came into place immediately after what occurred, they have remained throughout and they will probably be with you for the rest of your life.
8When your counsel alerted me to the Triple 0 call which I had not read the transcript of, I was unaware of the contents of that, it is a situation where at the scene you, within seconds, had rung Triple 0, and in what could only be described as dreadful circumstances for all concerned, did everything that you possibly could to assist Mr Burney. You followed the instructions of the
Triple 0 operator, which must have been very difficult, and indeed, as Mr Hill pointed out, at the end of it the operator said to you - bearing in mind that you told the operator it was your fault - that you had done a good job in the circumstances.9As I say, I read the transcript of that Triple 0 call – it is astonishing. Often in these circumstances we have people who deny they were the driver or blame somebody else, or come up with some excuse and do not accept the responsibility. In your situation what I have read, in my experience - I am sure it has happened in others - is unique.
10In the record of interview you made full admissions and there has been no attempt to conceal or deny anything. It is a circumstance where, on the material, you could have - as Mr Hill quoted back at me - 'chanced your arm' and endeavoured to run a trial and you may well have had a chance of being acquitted, particularly by a country jury. You did not do that. You, throughout, have maintained your acceptance of responsibility and it is very much to your credit that you have gone through with this; have pleaded in the face of what could have been a custodial sentence and - I do not know what the proper expression is but, as I have already indicated, accepted the circumstances of it.
11The utilitarian benefit of this plea of guilty is, in my view, massive. It has saved the family of the deceased man a great deal of anxiety and a great deal of trauma if it had proceeded as a trial. It is my experience that in these types of circumstances the acknowledgement by the accused at an early time of their responsibility is a far different prospect to watching somebody get convicted by a jury, if that was what was going to happen, and you have to get the benefit of that.
12These are times when we are operating under COVID restrictions. I am well aware of the decision of Worboyes, and other decisions as well, that say in these circumstances where there is a plea then there has to be shown to be a 'demonstrable' - that is the word used in one of them - reduction in the penalty that is imposed.
13You have no prior convictions of any description including traffic matters. You have been driving a motor vehicle for 41 years. On the material before me - bearing in mind the distances that you were travelling to go to work - in your driving career you had probably travelled millions of kilometres with not one single prior finding of guilt. All those matters go very much in your favour and I will be going through some more later on.
14The circumstances are these; that it is a dreadful situation and I will summarise it as briefly and as succinctly as I can.
15At the time that it occurred you were 58 years of age and lived in Cape Paterson. You had a full Victorian licence and, as I have said, no priors. You were working as a prison guard at Fulham Correctional facility and you had a prisoner in the car which you were taking to Sale to have his knee, X-rayed.
16Mr Burney was 62 years of age at the time. He was travelling west on the Princes Highway on his motorbike from his home address in Bairnsdale to visit family. His wife had travelled ahead of him in a motor vehicle. The vehicle driven by you was a Mitsubishi Outlander and there was no fault or failure or anything wrong with the vehicle. The motorcycle driven by Mr Burney was a 2008 Kawasaki and, again, there is no suggestion that there was any mechanical or other problems with that. It is clear on the material that the motorcycle was fitted with a hardwired headlight which was operating at the time of the collision.
17The collision scene is near Fulham Correctional Centre in Sale, where Hopkins Road intersects with the Princes Highway, as it is at the point in time. Basically the road is two lanes going each way. The intersection is controlled by give way signs and you were in a situation where you were obliged to give way to Mr Burney as you approached the intersection. I do not need to go through the full details of the actual description of the intersection itself. I am sure that virtually everybody who is listening to me is aware of that particular intersection.
18The Crown opening says that there was a clear view approaching - a clear view of what is on the Princes Highway from at least 120 metres from the intersection - and it is not suggested that it is anything other than the case. If it has to be observed here that when you spoke to the operator at Triple 0 you said that there were some poles, or a pole, that must have obscured your view. Having seen the photographs and being aware of the intersection, it seems to me that that may well have been a distinct possibility. In terms of what happens next I accept that you did indeed look to your right but unfortunately, for whatever that reason it may have been - and you have pleaded guilty, there is no question about that - you did not observe Mr Burney's vehicle. It was clearly a momentary inadvertence with dreadful consequences.
19In any event, at around about 10.30 you entered that intersection coming from Hopkins Road at about 31 kilometres an hour and did not give way to
Mr Burney. His motorcycle collided into the rear driver's side of your vehicle. Members of the public stopped and assisted at the scene and you told people at the scene that you just simply did not see Mr Burney.20You called emergency services shortly after the collision and the call was recorded. The Crown opening says that you stated that you were 'the driver who struck the motorcycle and that you'd not seen him'. As I have indicated, it is in that conversation, within seconds of the incident, that you say that you believe that you may have been obscured by the pole and I have already made a comment about that. You then gave whatever assistance you could in these circumstances to Mr Burney. A doctor, as I understand it, was passing. Eventually an ambulance arrived and Mr Burney was taken to hospital, where he died shortly thereafter.
21It would appear from the materials that as you approached the intersection you applied braking and slowed down. Your vehicle slowed down to approximately 31 kilometres - I note that it is an 80 kilometre zone in that road. The brakes were released and you travelled through the give way sign and entered the Princes Highway. Your vehicle travelled approximately 6 meters into the intersection when Mr Burney's motorbike collided with the back of it. Mr Burney was apparently travelling between 69 and 80 kilometres an hour as - again, well within the speed limit, as were you. Apparently it was not possible to determine whether the motorbike was under braking at the time. At impact your vehicle was travelling somewhere around 25 to 33 kilometres per hour.
22You were arrested and interviewed and, made very full, open admissions. You expressed appropriate remorse throughout that interview and genuine concern, in my view, for Mr Burney. You told the police that your other vehicles had blind spots but you did not know whether the Mitsubishi did, as you were not familiar with it. I have not been advised as to whether that is the case or it is not the case. You were taken through with the police how you rang Triple 0 and you again expressed your concern. You could just not think how, you know, basically you had not seen Mr Burney coming. As I have indicated, I have no difficulty accepting that you did, being a person who has been driving for a long time and been a very careful driver. You looked. It is just so desperately unfortunate that you did not see him or it did not register.
23There are before me a number of victim impact statements and the victim impact statement of Mr Burney's wife and his daughter were read out in open court. I do not think that any summary that I could give would convey the anguish and grievous sense of loss that all the people - particularly Mr Burney's wife and children - have suffered. As I said during the course of the matter, those victim impact statements indicate the quality of the people who have written them, the quality of the people who read them out and - by necessary inference, I suppose - obviously the quality of the father of that family,
Mr Burney. It was noticeable to me that when listening to the way they were very courageously read out and when reading them both before, and again afterwards, that when it became clear that Mr Burney was deceased his wife's first thoughts were for the children and the children's first thoughts were for their mother and that is a pretty simple example of, as I say - I am using the word again - quality of his family. All human lives are sacred, if you can put it that way, but I think that those statements amplify the sheer horrendousness of what occurs just from - or what can occur just from a moment's inadvertence. I am not going to read from them in detail, I just do not think it would do justice to the circumstances of it, but I think I should just very briefly mention a couple of matters.24Mrs Burney says that 'at that point' - this is on the way to the hospital - 'I had a glimmer of hope that maybe he would be okay. That hope was completely shattered when she', that is her daughter, 'rang again sometime later. She was crying and told us to pull over. Deep inside I knew what she was going to say; the words I didn't want to hear, that Rod had died. It was the most agonising, awful moment. The deep sorrowing sound left my gut and travelled up to my mouth. I burst into tears, I was overcome with grief. I didn't want to believe that it was true. I was distraught that I wasn't there with him. I felt guilty for not being there for him to hold his hand and tell him that I loved him. The hardest thing for me to come to terms with is not being able to say goodbye to the love of my life before he died. My heart was broken'.
25She then described that she could not hold her daughter and she was distraught at the thought of having to tell their son in a few minutes time what had occurred. She describes the situation at the hospital and I do not pretend to be able to comprehend the grief and the anguish that would have caused. She describes her concern for everybody. She - as does Sarah, her daughter - describes the dreadful effects of the COVID restrictions on a funeral. I sometimes wonder whether people who come up with these restrictions - so people who put them into place - really understand the effect it is going to have on members of the community. She goes on to describe being unable to work. She said:
'My grief, isolation and loneliness intensified when I was diagnosed with cancer at the beginning of March. Not having Rod beside me to reassure me, hold me and take care of me during the time of my biopsy, through major surgery two weeks later and the six weeks recovery period afterwards was almost more than I could bear'.
26She said later on:
'The loneliness is hardest, especially at night. There is no one to sit with and chat to, to laugh with or cuddle up to. No one to enjoy a movie with, no spontaneous conversations, no one to sing along to the hits of the 70s and 80s with me in the car on the way home from a day out, no one to go to out to dinner with; only an empty house to come home to and I do not go out with friends and family. No one to make me a coffee or a toastie, no one to go to holidays with. We had a big holiday planned for this year; three months away using up some of my long service leave. We had been looking forward to that holiday for a long time, and to many more on our bucket list in the years to come. I no longer have that to look forward to. I don't want to go on holidays on my own, I want someone to share those times with. I don't have that now. The plans and dreams we had for the future have gone. My enjoyment of life has diminished. I find it hard to think about what my future life looks like without Rod'.
27I do not think there is anything I can say that could add to that. We then have the other victim statement - which I make clear I have read and do clearly take into account - of his daughter, who describes that phone call to her mother and says:
'The hardest thing was that I had to call my mum to give her the news, which was difficult and painful to hear her scream down the phone in despair'.
28She talks again about - that is her mother did - about the funeral and how difficult and unfair - I accept that expression - that the situation was because of the COVID restrictions. She said later on - and obviously there is much more than this:
'My mum is now alone and it hurts me every time I think about how she must be feeling and coping with this massive loss to her way of life and the love of her life gone forever. My life is missing a huge part of it now. I can't call Dad whenever I want to chat or need his help with anything and he will always be missing from our family events, but the real thing that hurts me is every time I think of Mum'.
29She goes on to say:
'So my stress levels over the last year have definitely been higher than normal and I've felt all kinds of emotions on and off; frustration, sadness, desperation and anger, agony and loss. I will never have Dad back. This has changed my life and my family's lives forever and I would never wish this pain on anyone'.
30Again, nothing I can say is going to add to that. That simply confirms what I said before insofar as the nature of those victim impact statements are concerned; that sometimes in these circumstances, understandably, they are calls for revenge and all sorts of things. These are just thoroughly decent people who have lost a thoroughly decent man and have suffered dreadfully because of it.
31Dangerous driving causing death is a serious offence. It calls for application of general deterrence and often specific deterrence. In your situation,
Mr Quinlan, I think specific deterrence plays no part. You have been driving for a long time with an immaculate driving record. Calls for denunciation - however in these circumstances, again, we have a situation where it was just a momentary aberrational inadvertence. There must be an appropriate punishment, that is clearly understood. That ties in with general deterrence. There is now public protection involved in all this and I think everybody understands that the law requires people to drive as carefully as they can, but I think it is going to be a long, long time before we have a world where everybody drives perfectly.32Insofar as the objective seriousness of the offence is concerned - and I hope Mr Burney's family understand I am talking in an objective sense. Subjectively the seriousness of it is just catastrophic but objectively - which, as a judge, I have to be - I look at the circumstances of it. I here am easily persuaded that the objective seriousness is at the lowest end. That is really done by looking at what is not in this situation. One, as a judge - and I have seen literally scores of these over the years - sees a numbers of factors which often play a part. None of them are in this situation. Obviously the nature of the injuries is serious, the man is deceased. These matters that I am referring to are also not exhaustive.
33Secondly, there is the number of people put at risk. It was going into an intersection so the risk that was created was of a few seconds duration. There was no excessive speed, no intoxication, no substance abuse, no erratic driving. No, as I said before - euphemistic terms, I suppose - no hoon driving. There was no showing off. The length of the journey, which I was also exposed to in this, was 6 meters, if one looks at it like that. There was not an - in my view, an ignoring of the warnings, they just simply did not work. There is no suggestion of a police pursuit, there is no suggestion of sleep deprivation, there is no suggestion of failing to stop afterwards and, in fact, it is the total opposite in this particular situation. You were not in a hurry and you did not have any distractions such as a phone, or anything like that. You did have a prisoner in the car but there is no suggestion that you were otherwise engaged in talking to him when you should have been paying attention.
34When I take into account the absence of virtually every single aggravating feature in an objective sense you can get for one of these charges, as I say, I am easily persuaded that it is at the lowest end insofar as objective seriousness is concerned. I then look at what has to be the appropriate disposition. In terms of moral culpability I also find that this is at the lowest end. There is nothing deliberate about it. As I say, nothing outlandish. Nothing can be denunciated, really, other than just simply got to do everything you possibly can in these circumstances, but I then look at the sentence that needs to - or has to be imposed.
35Section 5 of the Sentencing Act provides, inter alia, that for a sentence for this crime the offender must be gaoled. The exception to that that applies here is sub-section (e) of s5(2H), which says unless 'there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order' - that is of gaol - or justify not making such an order.
36I have been helpfully given the case of Farmer, which I have had the opportunity of reading a couple of times. When I look at the matters that I can take into account in determining whether there are circumstances that fit that definition I am aware that I have to look at general deterrence and denunciation as having greater importance and I have already said what I had to say about denunciation. I give less weight to the personal circumstances of you other than to such matters as the nature and gravity of the offence and I am simply saying, as I already have, that it is my view it is at the lowest end of, objectively, this sort of offending. I must not have regard to your previous good character though, importantly, it then says 'other than an absence of previous convictions or finding of guilt'. That is clearly the situation here.
37I must not have regard to an early plea of guilty, however the early plea of guilty here is just simply a continuation of what you had been doing since within seconds of this collision occurring.
38Your prospects of rehabilitation - well, there is no requirement for rehabilitation or parity of other sentences, and there are not any, and it is then a situation where in determining whether there are substantial and compelling circumstances I must look at Parliament's intention, which I do, and sub-s(b) of s5(2I); 'whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence'. In my view the overall circumstances in this case not just justify but demand a departure from such a sentence and I will be going through them in some detail.
39I am aware and, very properly, matters have been put to me by the learned prosecutor, however often these matters do demand a gaol sentence. I think it is important that when a judge is not doing that that full detailed reasons be given so that when this sentence is looked at by others they will see in its true context that one as being, in my view, unique in a very significant number of ways.
40The matters that I take into account in determining - and, as I say, I have already said this - I have read the decision of Farmer, I know what needs to be found. The matters are these, and I can indicate that there is any number of combinations that could be taken from these matters which would give rise to, in my view, a very, very strong argument that the sub-section applies. In their - I think I have already said this as well. In their total context, even though some may disagree with some of the matters I am looking at, the argument is, in my view, overwhelming.
41The first one is in 41 years of driving there are no prior convictions or finding of guilt for any offending.
42The second matter - and this has got nothing to do with an early plea, as the section says - is the current situation of a Worboyes discount. You could have dragged this out for an extended period of time had you so chosen. You did not do that, and I would not have expected you to, but that is another factor; that almost all of the other matters that have been put before me did not have that Worboyes discount available and I am sure that this legislation was not drafted with a pandemic in mind.
43It is also a situation where you are a prison officer, or have been a prison officer, and your partner is a serving police officer. For me to incarcerate you would be an absolute nightmare. I have no doubt that were you to be incarcerated you would have to virtually get solitary confinement in those circumstances. You would need to be kept in a gaol that was clearly nowhere near Fulham, which would make it almost impossible for your partner and family to visit you, and you would spend a sentence under continual threat.
44Where, in Farmer, there was evidence called about bullying and the like, most Magistrates' Court orders seem to say youthful offenders need to be carefully looked after, but I will not buy into all that. What I am simply saying is that I think that gaol for you would be an extraordinarily dangerous and frightening punishment far in extent of what would normally occur and, added to that, in terms of the occupation of both yourself and your partner, is that some little time ago a prisoner, who I am assuming had knowledge of you - I might be wrong about that - targeted you at 4 o'clock in the morning in your motor vehicle and harassed you; seriously harassed you. As I understand it that person received 12 months for that harassment of you and whilst most properly have not been told that person's name I accept Mr Hill's statement from the Bar table that that person is undergoing a sentence I do not know where. That would put you at risk not only because of the occupations but a real chance of others seeing you in the light of an informer.
45The fourth matter that I am referring to - and I will be going again through this in a little bit of detail in a moment - is your incarceration and the dramatic loss that it would cause to your community. I was brought up in the country, as counsel know, and still live in the country. I am fully aware of the importance to a country community of people such as yourselves. Communities cannot exist without them. I will be detailing all that again - as to what that has been in a moment - but the loss to the community has to be taken into account here.
46I have already indicated the remorse and I do not think I need to go through that again. That includes the assistance at the scene, the Triple 0 call and the apology that was sent - which is, again, very unusual in my view; ultimately, at least, with the assistance of Sergeant Hill, as I understand it, to the family of the deceased person - the benefits of not having run a trial for all concerned. We also take into account the extra-curial punishment, which I will be referring to again in a moment, and clearly the low objective seriousness of the offending.
47It is my view that low objective seriousness combined with pretty much any one or two of those other factors would give rise to a non-custodial sentence but I am simply going through them all for completeness. There may well be other matters there that I have missed but I think that amplifies the factors that I have taken into account in exercising my discretion as to whether that sub-section has been - or the requirements of that sub-section have been fulfilled. I find that the circumstances are such that they are substantial, they are compelling, that they are exceptional and rare and I do not think I need - and justify such an order. I do not think I need to take it any further than that, it should be self-explanatory from what I have said.
48I then turn to the matters personal to you, upon which a lot of that discussion is based, and Mr Hill, in his usual manner, provided extremely succinct and extremely helpful submissions which went to the heart of the matter and did not attempt at sympathy, just simply an outlining of your particular life. He describes how you say you were continually looking to your right and I accept that is the case. He describes how Mr Burney - and this is no criticism involved in this - was dressed in black clothing, black motorcycle and would have - in a sense have been difficult to hear. I understand about that the headlight was on, it was 10.30 in the morning, and where the sun would have been at that particular time, but whatever the circumstances are, in any event you failed to see. That there may have been extenuating circumstances to that. I have, again, already mentioned the Triple 0 call and the assistance that was given.
49I do not need to go through the matters regarding the plea and - as they are outlined there. I have already done that. Again, so far as remorse is concerned the only things I would add to that are that the prosecution have known since July 2021 about the letter of apology and that it was going to be a guilty plea.
50You have offered to participate in the RMIT Centre for Innovative Justice, which is known as the 'Open Circle' restorative justice program. I am aware of that program; it is a very, very difficult one for people to participate in. It takes a lot of courage from everybody if they do that. This is a situation where, as I understand it from the Crown position, the family of Mr Burney are willing to do that but just simply, at the present time, do not feel able to. That is totally understandable, in my view, and even if it never takes place you have at least had respect for them; the courage to offer that.
51I have read all of the references that have been tendered on your behalf including ones which I will refer to in a moment. You, as I say, have an impeccable driving record. That includes having driven in the Army, in the Army Reserve and driven millions of kilometres, having driven for work, and they are clearly of significance.
52In terms of extra-curial punishment - that means punishment otherwise than what the court is going to impose - you have lost your career. You resigned from your position as a Corrections Officer at Fulham Correctional Centre prior to entering a plea of guilty. You had been working there for seven years and the references that have been tendered from the people in charge at Fulham indicate that you are an outstanding employee who was a role model for other employees. You have lost your career in that sense and you are still 59, so I am assuming there were years of it left that have now been taken from you.
53You will suffer from the loss of licence that has been imposed and that makes it difficult for you to find alternative work. Given your age and that loss of licence it will be harder for you to obtain employment. I think also on top of that is that the loss of licence is going to make it more difficult for you to perform community functions - I will come back to that again in a moment - which is indeed a punishment, if you like, for your community.
54I do not need to go through your background. You are 59 years of age. You have lived most of your adult life in South Gippsland. You completed Year 11.
55You have always worked and it is a very, very impressive work record. You have worked in real estate for years in Inverloch and Wonthaggi, you operated a trekking company which organised tours to the Kokoda track. You have organised those for charity, you have been in the Army Reserve for eight years. Whilst you were in the Army Reserve you received a commendation for outstanding service in October of 1988. You, during that period of time, took up - a lot of your time was spent with that organisation.
56You have now been in a stable relationship for 35 years with your partner, your partner, and you have resided at Cate Paterson for that period of time. As I have indicated, she is a serving member of the Victorian Police Force and fully aware of all the implications of this matter and remains unreservedly supportive of you. Her reference on your behalf is very measured, very clear and very persuasive. Without in any way seeking sympathy, as such, it explains clearly what the effects of this have been upon you and what the effects are clearly going to be upon you in the future.
57You have been involved in the South Gippsland community for 30 odd years. You have been involved in many organisations. You have been involved in the State Emergency Service in terms of the marine section of that, trying to find people who decided to get themselves lost in Bass Strait. Being from down that way I completely understand the importance of that organisation, the responsibility and duties that it includes, and you are clearly a very senior and very experienced member of that. As I understand it, at the moment you have either stood down, or been stood down from it because of this pending matter, and I hope that that is - once the sentence is imposed that that can be changed and the community can once again benefit from your input.
58You were the booking secretary of the Cape Paterson Hall Committee for some 20 years. You organised the Easter Royal Children's Hospital fundraising event for five or six years, where Cape Paterson people raise money for the Children's Hospital.
59You are the chairperson - in sections at least - at the Wonthaggi Bowls Club for nearly 20 years. You have been Associate Greens Inspector of the South Gippsland Bowls Association for seven years. You have been with Bass Coast Health - which is, again, a very important local organisation - for about 10 years and you have overseen a number of - or the governance of a number of places in the health service including the Wonthaggi Hospital and three aged care facilities. Again, that would take up meetings about once a week.
60You have been a tribunal chairperson at the Alberton Football League as I understood one of the references. In fact, you were a vice president of the Alberton Football League which, unfortunately, as we all know - well, not we all know, but which no longer exists.
61You are a committee member of the Wonthaggi State Coal Mine; you bring much volunteer work to that. I have described the Kokoda trail fundraising expeditions. In 2006 that expedition in fact raised $35,000. You are a member and board chairperson of the Bass Coast Economic Development Board. You have been club president for six years and South Gippsland District Governor for another four years of the Apex Club of Australia in Inverloch and you have been involved in many other Cape Paterson local groups; the fun run, the Coast Action Group and the aquathon. It is hard to imagine a person who has not put more into his local community over such an extended period of time. They are indeed, as I have said, extremely laudable.
62Again, there has been a number of references tendered on your behalf and I only propose to refer very briefly to a couple of them. I have read each of them carefully and I have taken into account all the matters.
63Your partner's - if I have been calling her your wife I apologise for that, if need to. Your partner's reference on your behalf goes through all the community matters that I have mentioned. She describes you as a diligent and careful driver. She says that she would trust you with her life. She said:
'I now bring you to the present day Tony. I can only comment on how this event has affected him and, in turn, me. This has had a ripple effect on us as well as family and friends. This does not seek to balance or disrespect the effects of the death of Mr Burney on his family or friends. There is no comparison'.
64And I interpolate there that is the quality of Mr Burney's family as well that of yours comes to the fore. In any event, she said that when she went to the Sale police station to pick you up you immediately apologised. She said how you had to step down as unit controller in the SES, which you found a devastating blow. SES then had to find a new leader whilst this matter proceeds. Since the matter has occurred you have been speaking to psychologists through work, been speaking to psychologists through the SES. You have been getting treatment for all this. You have real difficulty in sleeping and you have found the whole mental process very difficult. She said:
'I do not want to express the effect that this action has had on Tony, as it's too painful and personal. Tony keeps to himself, keeps busy doing jobs around our home and helping out close neighbours and a few friends. He is quieter and more reserved than before. He is reluctant to go out; even to doing local shopping or visiting friends. He is socially withdrawn and isolates himself. I believe he is clinically depressed.
'We often speak of the loss of life of someone we didn't know and the crushing effect that his death would have had on his family and friends. Tony cannot fathom the depth of the grief and sorrow that they would be feeling and is remorseful for this. He would not wish this upon anyone'.
65She then describes how he looks after her and she, at the end, says:
'He doesn't sleep much, although, anymore. He keeps going through what happened and knowing that he can't change things. He often stops what he is doing and I can see the angst on his face. Tony has not even been in the surf, the thing he loves most, to catch a wave and forget the world around him. We sleep in different rooms and are no longer intimate. Tony expressed responsibility for his role in the collision and is remorseful for the death of Rodney Burney. He will carry that burden forever'.
66I have no doubt that that is true.
67The written apology that was sent said - this is from you to Mrs Burney:
'It is with sadness that I write to you in relation to the death of Rodney Burney, your husband, and I am sure a much loved and adored family member, because of a motor vehicle collision in which I was the driver. I can't express in words what this has put you through and I needn't pretend to imagine the loss of Rodney has caused moving forward.
'I am really sorry for what happened and for what I caused. As you might understand, there is not a day I do not think about this incident and my thoughts and prayers for your family have and will continue. Whilst this has come sometime after the incident' - and there is legal reasons why that is, obviously - 'and the death of Rodney too, I continually struggle with this incident and the significant effects it's had not just on your family but those that were on the scene and assisted to the best of their abilities. Please tell me if there's anything I can do to assist you and your family'.
68I do not think that there is anymore that you could have done, Mr Quinlan, than to be so open and remorseful and to plead guilty.
69I have mentioned the references from Fulham Prison. They are outstanding and all the local references are the same. I think the reference of Mr Kuch, if I am pronouncing it correctly - K-u-c-h - which Mr Hill also referred to, is a very, very powerful document. In that he says that he is an airline captain. He works for Qantas, is a volunteer member of the Country Fire Authority and a member of the Victoria State Emergency Service in Inverloch. As he has served there for a decade he has come to know you well as a fellow volunteer. He said:
'I first met Tony Quinlan in February 2015, when he joined the unit' - I am paraphrasing this - 'of the SES. I was instantly impressed by his demeanour and professionalism and, over the years, have developed the highest regard for him as a dedicated, passionate and highly competent member of our volunteer unit. Due to my career in the aviation industry I instantly recognised the attributes Tony displays of leadership, team work and a high standard of safety that Tony brought to the unit from his many years in the Australian Army, where he obtained the rank of sergeant.
'Tony and I worked very closely to take a small regional marine rescue unit and completely transform it into a highly skilled professional offshore rescue service that is tasked by Victoria Police to assist disabled vessels and people in distress in the often treacherous waters of Bass Strait. It's Tony's very highly accomplished skill set and attitude towards safety and operational standards that has taken a small regional town rescue service and made it a truly organised and professional operation that it is today.
'In the many hundreds of hours that I observed Tony working - some of the most extreme of conditions at times - but I can attest to his unwavering "safety first" attitude and insistence on self-discipline and team work to assist people in their time in need'.
70He goes on to say:
'I was truly shocked and saddened to hear of the motor vehicle incident involving Tony; the very last person I would expect to find themselves facing this situation due to the way he conducted himself in day to day life. The incident has taken a very resilient, proud and professional safety conscious man and caused him great distress knowing the outcome to the deceased person.
'Tony is clearly distraught and suffering emotionally with remorse for his actions. I have never had reason to question Tony's character or integrity and, in fact, our community as a whole would do well to have more people like him, who are so community minded and conduct themselves so well and their dedication to the safety of others'.
71In essence, they are the materials that were provided on your behalf. It is my view that a - having read a number of authorities and sentences handed down in this court - that a community corrections order is the appropriate disposition. Because it does involve the death of a totally innocent man it must be with conviction. In these circumstances I do not think there is any need for other conditions. It will simply be with conviction, it will be for three years - which indicates it is a fairly long one - and in these circumstances - so I do not have to go through the process and the anxiety of having you assessed. I will direct that the only condition will be that you perform 250 hours of community work - which you probably would have done, in any event. As I say, the only condition is you must not commit a criminal offence during this period of time. You understand that. If, by some chance, you are to be brought back before me the consequences would not be good. I think I can say that fairly comfortably.
72I am not going to go through authorities such as Boulton and the like, which say community corrections orders are a punishment. They cover general deterrence. All those matters are well known both to myself and to the members of counsel and the lawyers hearing this.
73That sentence obviously will never take away the grief and the anguish that is being suffered and hopefully, one day, may not be as intense. For the family of Mr Burney it will never give him his life back but there are times in these courts where a person's previous conduct and previous assistance to their community can be called in aid when they - in a situation such as this, for a momentary inadvertence that caused the death of another man. It is a dreadful situation that no court can ever resolve.
74In these circumstances because of the length of time of the community corrections order I am required by s6AAA to indicate what I would have done had Mr Quinlan pleaded not guilty and been convicted by a jury. I think this is a perfect example of how artificial s6AAA is. Totally artificial. This man, in these circumstances, would have never pleaded not guilty. Had I been sentencing him after a jury verdict I would not have been sentencing this man, I would have been sentencing somebody totally different, therefore it is a total artifice. However, even though I know it does not invalidate a sentence I am bound to give one. I can simply say this; that had this man been a very different man and taken this matter to trial and put Mr Burney's family through the ordeal of a trial - the dreadful ordeal of a trial - you would have been imprisoned for a period of six months with a community corrections order to follow.
75I have already made the order as to loss of licence. I know that these are fairly long - for me at least - sentencing remarks. I am sure that Sergeant Hill can explain to the family that when it has been sent back and revised, in case I have not been speaking English, copies of that will be made available so if they want that they - if they do want that, obviously they do not have to - they can have that so that they can understand exactly what has been said.
76I also want to say this in this particular circumstance. I am well aware of the difficulties that community organisations face now with police checks and all those sorts of things. It is a matter for Mr Quinlan but I would like to simply put on transcript, and within these sentencing remarks, that he has been sentenced for a crime which had dreadful, dreadful consequences but, in my view, what occurred does not - in any way, shape or form - affect the integrity, honesty and devotion to the community and family of this man. I will just leave it at that. There's no other orders I need to make, gentlemen?
77COUNSEL: No, Your Honour.
78HIS HONOUR: No? All right. Thanks, Mr D'Arcy. Thanks, Mr Trood. And again I thank counsel and all those concerned for their very sensitive way in which they've handled a very, very - sorry. Yes, I need to do that as well. I just assumed, yes. Mr Quinlan, you agree to enter into such a community corrections order?
79OFFENDER: Yes, Your Honour.
80HIS HONOUR: Yes, okay. Thanks. Yes, all right. That order's made because the pandemic regulations allow me to take that consent orally now. So nothing else I need to do, gents?
81COUNSEL: No, Your Honour.
82HIS HONOUR: Yes, thanks for that. All right. Well, I'll just simply adjourn. Monday morning I think? Yes, I'll just adjourn.
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