Director of Public Prosecutions v Rabbidge

[2023] VCC 918

IN THE COUNTY COURT OF VICTORIA

AT BAIRNSDALE SITTING IN SHEPPARTON

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

CR 21-02032

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE WILLIAM RABBIDGE

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne, Shepparton, Bairnsdale
DATE OF HEARING:	24 April 2023, 2 May 2023
DATE OF SENTENCE:	29 May 2023
CASE MAY BE CITED AS:	DPP v Rabbidge
MEDIUM NEUTRAL CITATION:	[2023] VCC 918

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW SENTENCING

Catchwords:          Sentencing – dangerous driving causing death

Legislation Cited:         6AAA Sentencing Act 1991

Cases Cited:

Sentence:  Imprisonment – 20 months. Non-parole period 8 months. 18-month cancellation and disqualification of drivers’ licence from the date of sentence.     

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Ms. G. Hersch, Office of Public Prosecutions
For the Accused	Ms J. Poole	Mr. D. McNally, McNally & Gleeson Lawyers.

HIS HONOUR:

1Jake William Rabbidge, you have pleaded guilty subsequent to a sentence indication hearing to one charge of dangerous driving causing death.  The facts of your offending are set out in Exhibit A the summary of prosecution opening for sentence indication.  That document represents an agreed settled statement of facts I incorporated into these reasons for sentence and I sentence you on the basis of the facts set out therein.

2Very briefly stated on 6 October 2019, you were fencing on a rural property in the in the Snowy River catchment area.  Your wife and two children, Violet[1] and Oliver[2], were also at the property.  When your wife and daughter left the work area and went to prepare morning tea, you and your three-year-old son, Oliver, got into a 2017 Kanam Commander 4 Wheel Drive side by side vehicle.  The vehicle was an open buggy fitted with seatbelts and rollover protection.  There were various vehicle safety labels affixed to the vehicle warning of the dangers of rollover and the need to wear seatbelts when moving.  Helmets were to be worn and driving methods were recommended.  One warning stated,

'Avoid abrupt manoeuvres, sliding manoeuvres, skidding or fishtailing and never do donuts.'  'Slow down before entering a turn.'

[1] A pseudonym

[2] A pseudonym

3When you and Oliver got in the vehicle you did not fasten his or your own seatbelt, Oliver was therefore unrestrained in the passenger seat.  You drove off towards a shed for morning tea, you made several turns and manoeuvres before reaching an open grassed area leading to an access gate.  As you proceeded across this grassy area you deliberately turned the steering wheel to the right and the vehicle went into a yaw, it rotated to the right and rolled over onto his left-hand side.

4

Oliver was thrown out onto the ground and the vehicle rolled onto him.  You lifted the vehicle off Oliver and carried him to the shed.  Others called Triple 0. 

Oliver was unconscious and bleeding from the head.  Despite CPR and the attendance of MICA ambulance, Oliver died at the scene.  Police breath tested you for alcohol use with a negative result.

5Major collision investigation detectives arrived at the scene and a reconstruction expert examined the vehicle and the rollover scene.  She concluded that you lost control after an intentional steering input.  At the time you did that you were travelling at about 23 kilometres per hour.

6A subsequent post-mortem examination determined that Oliver died as a result of injuries he sustained in the rollover.  Your deliberate performance of a risky manoeuvre in the vehicle whilst Oliver was unrestrained in that vehicle, in the face of clear warnings not to engage in such manoeuvres constitutes driving that was dangerous.  That dangerous driving caused your son's death.

7The offence of dangerous driving causing death is a category 2 offence, the court is required to impose a custodial sentence unless one of the statutory exceptions apply.  The offence carries a maximum penalty of 10 years' imprisonment.

8You have admitted a prior criminal record.  In 2007, you were fined and your licence cancelled for exceeding the prescribed concentration of alcohol whilst driving, that was in New Zealand.  In 2018, you were fined for failing to store a longarm correctly without conviction.  I do not regard these matters as relevant to this sentencing process.

9Your now estranged wife, completed a victim impact statement, Exhibit C which we have just heard her read to the court.  She is clearly devastated by what occurred.  She says that her whole world - he was her whole world, my first born and my only son, he only made it to the age of three and by this time he had grown into the kindest cheekiest loving and well-mannered little boy.  She says that the impact of what occurred has had effects on every part of her life, her whole world has changed, she becomes withdrawn from other relationships in her life and endures sleeplessness nights, anxiety, panic attack and ongoing psychological sessions.  I take the victim impact material into account in sentencing you.

10

Your counsel filed written submissions addressing your offending and detailing your background.  You are now 36 years old being in born in Invercargill,

New Zealand in June 1986.  You have one older sister and your parents now reside in Kyabram, Victoria.  You were educated in New Zealand completing

Year 11.  You then commenced working on farms after leaving school and learnt to be a fencer. 

11You came to Australia in 2009 and worked firstly in New South Wales, then as a fencer in Sale for five years.  You opened your own fencing business in 2017. 

12

You met your wife in New Zealand as a teenager.  She joined you in Australia

in 2010 and you were married in 2015.  You lost a stillborn child in 2016. 

Oliver was born in 2015 and subsequently two daughters Violet in 2017, and Harper[3] in 2019.

[3] A pseudonym

13

The trauma of Oliver's death has led to the breakdown of your marriage.  Up until today you have continued to live and work on the Deddick Valley property. 

I adjourned sentencing until today to allow you to finalise your financial affairs.

 

You are still a New Zealand citizen.  You are at risk of deportation and as a result of the sentence I am about to impose.  The strain of that risk will make your time in custody more onerous for you, as your children and your parents all live here.

14In addition, I also take into account in sentencing you your plea of guilty.  That plea has significant utilitarian benefit, particularly so because of the effect of COVID-19 on our legal system.  Secondly, I take into account your genuine remorse as deposed to by the references tendered.  No sentence this court can impose is likely to punish you as much as you have punished yourself for what occurred.

15Thirdly, I take into account your excellent work history and your prior good character.  Fourthly, your prospects of rehabilitation I regard as excellent.  In that regard I accept that you will represent a low risk of reoffending.

16You have had this matter hanging over your head now for over three years in circumstances where you were experiencing great personal anguish with imprisonment being inevitable.

17Much of the argument at your plea hearing revolved around the classification of your moral culpability for your offending.  Your counsel submitted that I should regard your moral culpability as low.  Yours was not a matter of momentary inattention or inadvertence, you made a conscious decision to turn the vehicle ignoring clear safety warnings.  You failed to follow basic safety steps, like engaging Oliver's seatbelt, that said there is no involvement of drugs, alcohol, or excessive speed. 

18The degree of dangerousness of driving is determined by reference to the extent of the risk that driving creates, turning the wheel as you did, exposed Oliver to great risk, given he wasn't wearing a seatbelt.  Overall, I regard your moral culpability for the offence to be mid-level.

19The Court of Appeal in this State has made it clear that dangerous driving causing death is likely to receive significant terms of imprisonment.  Where moral culpability is low it may be appropriate to depart from the usual disposition of a custodial sentence.  A Community Corrections Order is inappropriate in the vast majority of cases, and it is difficult to see says the Court of Appeal, that sentences other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment and denunciation.

20Non-custodial sentences should be seen as exceptional.  The degree of the offender's moral culpability will be the key factor.  The exception applies when the offender's moral culpability is low, such as where there has been momentary inattention or misjudgement.

21In my view this court has no option but to impose a term of imprisonment with a non-parole period.  I have reduced both the head sentence and the non-parole period to reflect the matters urged upon me in mitigation by your counsel.  The sentence I am about to impose should in no way be seen as a reflection of the value of Oliver's life.  No sentence could ever do that.  And as I said before, no sentence could ever punish you for what you have to live with for the rest of your life.

22Would you stand up please?

23On the one charge of dangerous driving causing death, you are convicted and sentenced to be imprisoned for 20 months.  I order that you serve eight months of that sentence before being eligible for parole.

24I declare pursuant to 6AAA of the Sentencing Act that but for your please of guilty, I would have imposed a term of imprisonment of three years with a non-parole period of two years.  Any licence you hold to drive a motor vehicle is cancelled and you are suspended from obtaining some other licence - or disqualified from obtaining another such licence for 18 months from today's date.

25Are there any other orders required, Mr Hayward?

26MR HAYWARD:  No.

27HIS HONOUR:  All right, thank you.  Would you take Mr Rabbidge into custody please?  Thank you, counsel, I'll terminate the links.

28MS POOLE:  May it please the court.

- - -