Director of Public Prosecutions v Raeburn
[2023] VCC 2127
•20 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00642
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON RAEBURN |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Horsham & Melbourne | |
DATE OF HEARING: | 29 June and 1 November 2023 | |
DATE OF SENTENCE: | 20 November 2023 | |
CASE MAY BE CITED AS: | DPP v Raeburn | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2127 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Culpable driving causing death – conduct endangering persons – seizure – medical advice – standard sentencing – plea of guilty – mental health – reduced non-parole period
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Brown v R [2019] 59 VR 462; Buckley v The Queen [2022] VSCA 152.
Sentence: Charge 1 – 5 years 9 months, Charge 2 – 15 months with 3 months cumulative on Charge 1 – 3 years 3 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Mr J. Irwin | Cinque Oakley Bryant Lawyers |
HER HONOUR:
1Tragically on 22 November 2022, Annabel 'Annie' Joan Anderson, died as a result of injuries she sustained in a car crash. Brandon Raeburn, the vehicle you were driving, collided with the vehicle driven by Ms Anderson. At the time of the collision, you lost control of your vehicle as you suffered a seizure whilst driving. As a result, you were charged with culpable driving causing death and one rolled up charge of conduct endangering serious injury. Ms Lauren McKinnon and your passenger Rolanda Fawcett, are named as the victims you endangered.
2On 29 June 2023, you were arraigned on indictment N12538645 and pleaded guilty to one charge of culpable driving causing death and one rolled up charge of conduct endangering persons.
3At the outset, I acknowledge that the death of Annie Anderson has caused deep and profound grief to her family and all those who knew and loved her. It is my duty to sentence you in accordance with the criminal law. The sentence I impose is not a measure of the worth of Annie Anderson’s life nor could it ever be.
Circumstances of offending
4
The agreed factual basis upon which you are to be sentenced is detailed in the summary of prosecution opening dated 16 June 2023. In summary, on
22 November 2022, at approximately 11.30 am, you picked up a friend after work. You collected a package and were on your way to St Andrews Church to vote in the state election. At the time of the collision, you were driving north on
McPherson Street in Horsham. Rolanda Fawcett was the front passenger in your vehicle.
5At the same time, the deceased, 'Annie' Anderson and Ms Lauren McKinnon were driving their respective vehicles south on McPherson Street.
6Ms Fawcett noticed the vehicle drifting onto the wrong side of the road, so she looked at you and observed what she believed was a seizure. She saw your body shaking and noticed you had stiffened. Ms Fawcett attempted to correct the steering wheel, but could not as your hand remained on the wheel.
7Ms Fawcett also noticed your foot was on the accelerator and the vehicle was speeding up. Ms Fawcett yelled at you, but you did not respond. A witness travelling north on McPherson Street observed your vehicle veer left towards parked cars, before sharply turning right. The witness saw your car weave back and forth between the left- and right-hand lanes, before it moved over the solid centre line for about 10-15 metres.
8The witness then observed your car to accelerate heavily into the south bound traffic, sideswiping Ms McKinnon’s vehicle, before colliding head on with
Ms Anderson’s vehicle. Ms McKinnon was travelling south, when she observed your car drift further into her lane as it approached her. She attempted to move into the left lane, but your car collided with her vehicle and sent it into a violent spin.9Ms McKinnon observed the collision between your vehicle and Ms Anderson’s. Another witness also observed the collision and Triple 0, then stopped to render assistance. This witness observed you in your vehicle appearing to have some sort of seizure.
10At the time of the collision with Ms McKinnon, her vehicle was entirely in the correct lane, whilst your vehicle was at least 0.6 metres on the wrong side of the road and heading into the oncoming traffic. Ms McKinnon’s vehicle was heavily damaged and has since been replaced.
11Following the collision with Ms McKinnon’s vehicle, your vehicle continued in the south bound lane, colliding head on with Ms Anderson’s vehicle. Ms Anderson was declared deceased at the scene of the incident.
12You and Ms Fawcett were transported to Wimmera Base Hospital and treated for minor injuries. Ms McKinnon suffered injuries that resulted in her taking seven weeks off work.
13Detectives from the Major Collision Investigation Unit attended the scene at around 5.00 pm to conduct an investigation. Dr Hardiman, a collision reconstruction expert, examined the scene and formed the following opinion:
(a) 'the Mitsubishi was travelling north on McPherson Street, Horsham when the vehicle crossed onto the incorrect side of the road. The driver side of the Mitsubishi was a minimum of 0.6 metres into the south bound lane when it impacted the Ford that was travelling south. At impact, the Ford was wholly in the south bound lane and travelling at around 60 kilometres an hour. Assuming the Holden was travelling at 60 kilometres an hour, at impact with the Holden, the Mitsubishi was travelling 78-88 kilometres an hour and was wholly in the south bound lanes whilst travelling north. I am unable to determine why the Mitsubishi crossed onto the incorrect side of the road. There is no evidence that the vehicle was out of control prior to impact'.
14An examination of your vehicle was also conducted. No mechanical faults were found that could have contributed to the collision.
15During their investigation, police obtained evidence in relation to your history of seizures and what you were told about your ability to drive. That evidence is as follows:
(a) On 2 March 2021, you were taken by ambulance to Wimmera Base Hospital, following a severe migraine and you were biting your tongue;
(b) On 26 May 2021, you were taken by ambulance to Wimmera Base Hospital, following a seizure witnessed by your partner. You told the Emergency Department Registrar that this was not the first time you had had a seizure. You were advised to abstain from driving.
(c) On 30 September 2021, you attended the Read Street Medical Centre reporting a seizure.
(d) On 11 November 2021, you attended an in-person appointment with a neurologist, Dr Islam. Dr Islam stated, via letter, that she told you not to drive for six months, unless there were further seizure events, which would mean further driving restrictions. In this letter, Dr Islam stated that you were aware a driving restriction would last until March 2022.
(e) On 31 January 2022, you attended Wimmera Base Hospital reporting two seizures that day. You told doctors you had had five episodes of seizures over the last two years. Notes provided by Wimmera Base Hospital from this admission, indicate you were not to drive for six months and were to have a six-month seizure free driving restriction until reviewed by a neurologist.
(f) On 2 August 2022, during an appointment with neurologist Dr Kraemer, discussions were had between you and Dr Kraemer about the importance of abstaining from driving and the VicRoads rule of a minimum six-month nondriving period. Dr Kraemer recommended the same period to avoid any situation where a loss of consciousness could cause harm to you or others.
(g) On 23 August 2022, you attended an in-person appointment at the Read Street Clinic. At this appointment, you told the doctor you were not driving, and a friend was driving you when needed. The doctor informed you not to drive.
(h) On 10 November 2022, you missed a telehealth with Dr Kraemer. Dr Kraemer wrote a letter to Read Street Medical in which he stated that in his view of your condition, you are not allowed to drive a vehicle until six months after starting anti-epileptic medication.
(i) Medical records from the day of the collision indicate that your seizure medication was below the therapeutic range in your blood sample.
16Information obtained from VicRoads shows that you failed to notify VicRoads of your seizures, despite the advice of your medical practitioners. Further, data extracted from your mobile phone shows several texts which indicate you knew you were not to drive due to your seizures.
17On 23 November 2022, you were transported from Wimmera Base Hospital to Horsham police station for an interview. During this interview, you told police that you had been having unpredictable seizures for the past few years.
18Further, you also stated that you were aware, by virtue of being told by a medical professional, you were not meant to be driving at the time of the incident and that you had not taken your seizure medication on the morning of the collision. You admitted your most recent seizure occurring roughly seven to eight weeks prior to the incident. You denied receiving letters from specialists telling you not to drive.
Victim impact
19
In this case, I received two victim impact statements. One from Shane Isbel,
Ms Anderson’s partner and the other from Lauren McKinnon.
20Mr Isbel’s statement was read to the court by the prosecution counsel at your plea. Mr Isbel detailed the continued anguish that he suffers as a result of the death of Ms Anderson. Mr Isbel continues to struggle with the drastic changes to his life, and the empty home. As a result of Ms Anderson’s death, Mr Isbel had to close her business and has ongoing difficulties with attending his medical appointments alone.
21Mr Isbel also described the impact that Ms Anderson’s death had on the Victorian hockey community. Ms Anderson was a well-respected coach for under 13 and under 15 Victorian hockey teams. A memorial was held in Dimboola for
Ms Anderson by the hockey community, which Mr Isbel could not attend due to the sadness he felt upon seeing Ms Anderson’s photo.22Ms McKinnon’s statement was also read to the court by the prosecutor.
Ms McKinnon suffers from severe anxiety as a result of the incident particularly when driving. Your offending has also impacted Ms McKinnon’s ability to care for her son, who requires specialist appointments in Melbourne for his medical condition. Ms McKinnon experiences ongoing pain, requiring physical therapy. She cannot support one of her sons in his physical therapy, and has difficulty keeping up with her other son and completing required tasks around the home.23I have taken into account the significant impact your offending has had on both
Mr Isbel and Ms McKinnon in the sentence I will impose.
Personal circumstances
24I turn now to your personal circumstances. You were born in Horsham and you were 30 years old at the time of your offending, you are now 31. Your parents separated when you were around 18 months old, and your father played little role in your life. In contrast, you have a close bond with your mother. You also have a close relationship with your older brother and your stepsister.
25You attributed your parents’ separation to your father’s heavy alcohol abuse. Your mother re-partnered with a man named Mark, with whom you got along well. The relationship between Mark and your mother ended when you were aged 13. You were very disappointed at the time and remained in contact with Mark.
26Your mother then began a relationship with a man named Anthony. Unfortunately, the relationship was volatile and marred by Anthony’s drinking. The two separated when you were 16.
27Around this time, your relationship with your mother became turbulent, and you were kicked out aged 16. This resulted in you couch-surfing for a period, before eventually settling to live with your grandparents for about a year. Your relationship improved with your mother in your early twenties, and more recently, your relationship with your father has also improved.
28In terms of your schooling, you suffered considerable bullying and were socially ostracised. The bullying began in primary school and continued into secondary school. In Year 5, you were admitted to hospital after a particularly vicious assault you suffered at school.
29Your social issues and bullying resulted in significant behavioural issues for you at school, including being disruptive in class and aggressive toward teachers. Not surprisingly, your academic performance declined over this period. You transitioned out of mainstream education during secondary school and attended the 'McKenzie Creek' campus of Horsham College and later, the 'Connect Ed Program'. Your behaviour did not improve, and you ultimately left school at the end of Year 9. During your time at school, you worked doing part-time maintenance at a local caravan park.
30Upon leaving school, you worked with your father in construction for a short period. This employment ceased due to ongoing conflict between you and your father. Not long after this, your substance abuse problems caused you to stop an electrician apprenticeship you had begun.
31Your older brother helped you find work at a tyre store, which is where you met your former partner, Michael Taylor. Mr Taylor employed you at his farm, where your work involved repairing farm equipment, servicing cars, and breeding livestock. You were not paid a wage by Mr Taylor, instead you resided with him and to use your words, 'He paid for everything'.
32You became aware of your sexuality from around age 12 and your only intimate relationship has been with Mr Taylor. Mr Taylor is 33 years your senior. The relationship started positively and you married Mr Taylor in April 2018. In the last few years of your relationship, Mr Taylor became emotionally abusive and isolated you from others. You and Mr Taylor separated in 2022, consequently the employment on his farm ceased.
33You are eager to develop a career as a mechanic in the future. Whilst in custody, you initially worked in maintenance doing metal work. Now you have a position that is categorised as essential employment. You fix all the grounds equipment and mowers. When there is no work in this area, you work with two external tradesmen, one of whom is a locksmith. You assist them to fix anything that is broken including locks. You enjoy your position and are hopeful that you will stay at Port Phillip so that you can continue in this employment.
34In terms of substance abuse, you began drinking alcohol at around 16 years old and also used cannabis around this time. Your use of both these substances escalated to daily cannabis use, and regular binge drinking. Your substance use ceased when your relationship with Mr Taylor began, however, you relapsed into alcohol abuse in the months before the separation.
35At your plea hearing, you advised me that you attended AA for the first three months of your time in custody. In addition, you have engaged in constant counselling once per fortnight and have undertaken every available course from first aid to bread making and courses to deal with cannabis abuse. As a result, I understand that you are motivated to remain abstinent from alcohol and drug use in the future.
36You have a long history of mental health issues, which began during your traumatic school years. You suffered from emotional distress, which was compounded by both behavioural issues and difficulties surrounding your sexuality in your teenage years. You described the especially difficult period when you were residing with your grandparents. During this time, you were using drugs heavily, socially isolated, depressed, anxious, and experiencing intense suicidal ideation.
37You continue to suffer from poor mental health, including suicidal ideation. You have had several admissions to hospital emergency departments due to mental health issues, drug abuse, suicidal ideation and also seizures. At times, you have been prescribed anti-depressants, but have not continually taken these. It is your belief that Mr Taylor tampered with your medication and controlled you during your relationship.
38A very thorough and helpful psychological report from Dr Matthew Barth dated
28 August 2023, was tendered on your plea. Dr Barth conducted an assessment whilst you were in custody and detailed the following opinions:(a) That you suffer from major depressive disorder with anxious distress of moderate severity.
(b) You present as an unsophisticated young man with limited social reasoning skills and you are estimated to be below average intelligence.
(c) You are immature for your age and have not yet made the transition to adult maturity.
(d) You require intervention in the form of mental health treatment, neuropsychological assessment, medical intervention for your seizures and educational and vocational training.
39Finally, Dr Barth was of the view that you would likely be an especially vulnerable prisoner throughout your time in custody, particularly given the significant impacts of your major depressive disorder, seizures, social deficits and simplistic coping skills. Further, Dr Barth considered that you were at risk of experiencing more severe mood disturbances than a prisoner of normal health and are likely to continue to experience custody as particularly arduous.
40A neuropsychological report from Dr Berberovic and Yu Ching Nicole Li was also tendered on your plea. In essence, Dr Berberovic was of the opinion that there was little evidence that you had suffered a brain injury prior to 2022. However, there was some evidence to suggest that as a result of the collision, subject of your offending, that you may have sustained a mild traumatic brain injury. There was a significant deficit to your cognition in your processing speed.
Matters in mitigation
41You entered a plea of guilty in relation to the current charges at a committal mention on 28 March 2023. In the circumstances, I accept that your plea of guilty was entered at the earliest possible stage and is evidence of your desire to facilitate the course of justice. Further, I accept that your plea has considerable utilitarian value, as it has spared the court the time and cost of a trial. More importantly, you have spared the victims and the loved ones of the deceased
Ms Anderson, the uncertainty and trauma that a trial would have inflicted. Accordingly, I have applied a sentencing discount in your favour.42I also take into account the benefits of these pleas in the context of the court backlog, which though now easing, was still a relevant issue when your charges entered the court process. Therefore, your plea of guilty will result in a perceptible amelioration of sentence.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
43Another very important aspect of your plea of guilty is that it is demonstrative of your remorse. Mr Irwin on your behalf, submitted that you are remorseful for your actions and you expressed the same, shame and remorse to Dr Barth. However, the most powerful evidence of your remorse was captured by the body worn camera footage from the hospital, when you were told that Ms Anderson had died. Further, through your remand, you have endured the immediate consequences of your behaviour and have had to process your feelings of guilt, shame and remorse alone and in very difficult circumstances of custody. I accept your remorse is genuine.
44I take into account in a general way, the difficulties you have had growing up and the mental health issues that you experienced around the time of your offending and the opinions of Dr Barth. In particular, I consider that gaol will likely be more difficult for you, given your mental health issues and the fact that you continue to suffer from unexplained seizures.
45A further factor I consider in your favour is that at the age of 31, despite the significant difficulties you have had in your life, you come before the court with only one relevant, but dated prior conviction, for careless driving.
46You have significant family support, you have undertaken numerous courses in custody and you have trusted and valued essential employment within the prison system. Each of these factors, together with your very limited prior history, give me confidence that you have the ability to foster rehabilitation in the future. I find your prospects of rehabilitation to be very good.
Nature and gravity of offending
47Culpable driving causing death is an inherently serious offence. This is because it involves the loss of human life. It is punishable by a maximum penalty of 20 years imprisonment, which is a clear indication of the seriousness with which Parliament and the community views this type of offending.
48
The offence of conduct endangering persons is also a serious offence. In your case, this is a rolled up charge covering the danger of serious injury to both
Ms McKinnon and your passenger Ms Fawcett. The maximum penalty for this offence is five years imprisonment.
49In your case, your moral culpability arises because you were driving with the knowledge that you had been suffering random seizures. You were driving in breach of instructions given to you by medical practitioners, that you not drive and further, on the day of the collision you had not taken your medication.
50Mr Nibbs, on behalf of the prosecution submitted that this was a clear case where you had been told not to drive. Further, he submitted you had failed to notify VicRoads of your medical condition, which was your obligation as a licenced driver. You had been told not to drive and chose to do so, in addition, you failed to take your medication on the morning of the collision. In these circumstances, Mr Nibbs submitted this was a serious example of culpable driving.
51Mr Irwin on your behalf, submitted that your offending should be looked at through a different lens to the typical culpable driving cases that come before this court. To this end, your counsel highlighted the lack of any alcohol or illicit drugs in your system, or deliberate speed at the time of the collision. These factors, he submitted, would have increased your culpability. Further, your counsel submitted that your culpability was lower because you thought, albeit wrongly, that you had the right to drive; as contrasted to cases involving drugs, alcohol and speed, where the offender would have clear knowledge of the danger in their choice to drive.
Mr Irwin also submitted that your decision to drive was the wrong one and resulted in tragic consequences.52In the circumstances, I must proceed on the basis advanced by the prosecution. That is, you had been told not to drive as a result of the potential danger that would follow, if you were to have a seizure. I accept your counsel’s submission that this is a different case to those normally seen by this court involving alcohol, drugs and speed. I do, however, consider this to be a serious example of culpable driving.
Standard Sentencing
53The charge of culpable driving causing death is a standard sentence offence. The standard sentence is eight years' imprisonment. Standard sentences are to be taken into account as legislative guideposts in the sentencing process.
54In considering the impact of standard sentencing in your case, I have considered the decision of Brown v R [2019] 59 VR 462.[2] In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. The standard sentence is not to be viewed as a starting point and it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence of eight years into account as one of the factors to consider in my instinctive synthesis of all relevant factors and will reflect this in the sentence I impose.
[2] Brown v R [2019] 59 VR 462.
55Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b) of the Sentencing Act requires a court,[3] when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme. Neither the prosecutor or your counsel referred the court to any comparable cases.
[3] Sentencing Act 1991 (Vic) s 5B(2)(b).
56In sentencing you, I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.[4] I have had regard to the current sentencing practices for standard sentence offending, particularly in relation to the charge of culpable driving. I have considered the standard sentencing statistics for culpable driving. I note the limitations with statistics in general, however, I have considered them to have some utility in arriving at my ultimate disposition. Further, I have considered several recent decisions of this court and the Court of Appeal dealing with culpable driving.
[4] Ibid s 5.
57In particular, I have considered the case of Buckley v The Queen.[5] In relation to that case, there are obvious differences, the accused ran an unsuccessful trial and in addition to the charge of culpable driving, had four charges of negligently cause serious injury. However, the factual scenario was somewhat similar, in that the accused in that case had suffered seizures, was driving when he should not have been, having failed to alert the authorities and had also failed to take his medication. This case has assisted me in regard to determining the gravity of your offending and issues surrounding the appropriate non-parole period.
[5] [2022] VSCA 152.
Sentencing principles
58I consider the relevant sentencing principles that must be applied in your case are general deterrence, denunciation, just punishment and rehabilitation. It is my view that given the very direct consequences of your remand, your experience in custody and your lack of prior history, specific deterrence should be given little weight in the sentencing exercise. I also take into account the principles of proportionality and parsimony.
59Mr Raeburn, I have carefully weighed all relevant matters in your case, including the nature and gravity of your offending, the tragic outcome of your driving, the victim impact, your lack of recent/relevant prior history, your general background circumstances, your mental health struggles, the opinions of psychologist Dr Barth, your family support, other matters in mitigation, including your genuine and sincere remorse and your efforts towards rehabilitation whilst in custody. Weighing these matters as best I can, I intend to sentence you as follows.
60On Charge 1 of culpable driving, you are convicted and sentenced to five years and nine months, this is the base sentence. On charge 2 of conduct endangering serious injury, you are convicted and sentenced to 15 months imprisonment. Three months of the sentence imposed on Charge 2 will be cumulative on the sentence imposed on Charge 1. So therefore, the total effective sentence is one of six years. I order that you serve three years and three months before being eligible for parole.
61This period is lower than the 60 per cent prescribed by s.11A of the Sentencing Act.[6] In my view, it is in the interests of justice in your case for there to be a greater period of supervision on parole, to make provision for your continued rehabilitation in light of your lack of relevant and recent prior history, your background and mental health difficulties, your efforts towards rehabilitation and the other factors I have mentioned above.
[6] Sentencing Act 1991 s 11A.
62I reckon pre-sentence detention of 363 days as time already served.
63Pursuant to s.6AAA of the Sentencing Act,[7] had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of eight years and six months with a non-parole period of five years.
[7] Ibid s 6AAA.
64The offence of culpable driving is a serious motor vehicle offence and accordingly, I am required to cancel and disqualify you from driving for a period of not less than two years. In the circumstances of your case, I will cancel and disqualify you from driving for a period of three years from today. Is there anything further gentlemen?
65MR NIBBS: No, Your Honour.
66MR IRWIN: No, Your Honour.
67HER HONOUR: Very well. So Mr Raeburn, I think the bottom line is that you have got two years and three months to serve before being eligible for parole.
68HER HONOUR: So just in relation to the victims, if any are present, I have taken into account the tragic events and as I said at the start, this is not a measure of the worth of the life of Annie Anderson, it is just not possible to reflect that in a sentence. So I just thank counsel for their assistance and I will adjourn the court.
69MR IRWIN: Your Honour pleases.
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