Director of Public Prosecutions v Rain
[2024] VCC 2004
•9 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00033
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENN RAIN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 May 2024, 30 July 2024, 15 October 2024 | |
DATE OF SENTENCE: | 9 December 2024 | |
CASE MAY BE CITED AS: | DPP v Rain | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2004 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – dangerous driving causing death – contested plea – victim not having helmet securely fastened was not materially significant contributor to cause of death – driving against red light – light red for 26 seconds – accused vehicle collided with motorcyclist – traumatic brain injury - significant level of inattention – genuine remorse – subsequent diagnosis of PTSD – whether an exception applies under s5(2H) Sentencing Act1991.
Legislation Cited: Sentencing Act1991, ss 5(2H), 89(1), 89(2)(a), 5(1), 3(1)(eb).
Cases Cited:Stephens v The Queen (2016) 50 VR 740; DPP v Janson [2011] VSCA 19; Pan v The Queen [2020] VSCA 42; George v The Queen [2017] VSCA 152; Guseli v The Queen [2019] VSCA 29; Spanjol v The Queen [2016] VSCA 317; R v Verdins (2009) 16 VR 269; Camin v The King [2024] VSCA 124; Georgiou v The Queen [2022] VSCA 176; DPP v Lombardo [2022] VSCA 204.
Sentence: 18 months’ imprisonment, with non-parole period of 9 months. Licence disqualified for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata Ms B. Goding | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Benn Rain, you have pleaded guilty to a charge that on 4 August 2023 you drove your motor vehicle in a manner that was dangerous to the public and caused the death of Jesse Heath. This is an offence that carries a maximum penalty of 10 years’ imprisonment. It is also a Category 2 offence meaning that I must impose a custodial order unless an exception applies under s5(2H) of the Sentencing Act 1991.
Circumstances of offending
2The circumstances of your offending are set out in the summary of prosecution opening for plea dated 9 May 2024. Save for one matter, which I will address shortly, you do not otherwise dispute the matters in that summary.
3On Friday 4 August 2023 you were driving to a worksite at Mount Duneed. You were driving your Isuzu D-MAX and had with you two of your employees, Cameron Humpage and Jaxyn Murray.
4At approximately 6.35am, Jesse Heath, the victim, was travelling east on Bellarine Highway, Leopold. As he approached the intersection with Melaleuca Road, there was a green light allowing him to enter the intersection. He entered the intersection on the green light.
5You were travelling north on Melaleuca Road. As you approached the intersection with the Bellarine Highway there was a red traffic light that required you to stop at the intersection. However, you did not stop, nor did you make any attempt to stop. As a result of you entering the intersection against the red light there was a collision between your vehicle and Mr Heath’s motorcycle. The force of the collision caused Mr Heath to come off his motorbike, smash onto your front windscreen and end up on the road next to the front passenger side of your vehicle.
6You and your passengers got out of your car. Emergency services were called. You spoke to the D-24 operator and stated 'I went through the red light'. Police attended the scene and you were cautioned. You spoke to Acting Sergeant Wisewould and said that you were driving down Melaleuca Road approaching the lights. You thought the light was green and you just kept driving through. Midway through the intersection your passenger exclaimed 'Oh Benny' which caused you to look across to him. It was then that you saw what was about to occur. You said you tried to brake but that was when the victim hit your car. You again said you thought the light was green and you had just kept driving through the intersection. You did not accelerate or apply the brakes of your vehicle. You accept that the light facing you was not green but red.
7You were tested for the presence of alcohol and drugs, neither of which were present in your blood.
8As a result of the collision Mr Heath was airlifted to the Alfred Hospital in a life-threatening condition. He died on 1 September 2023 as a result of the traumatic head injuries sustained in the collision.
9Detective Sergeant Dr Janelle Hardiman from the Major Collision Investigation Unit attended the scene of the collision with other police. She stated:
'For an unknown reason, the Isuzu continued into the intersection through a red light. The Suzuki impacted the side of the Isuzu and the front wheel, fender and door. When the Isuzu entered the intersection against the red light, the red light had been continuously displayed for approximately 131 seconds. The Suzuki had a green light applicable.'
10Witnesses to the collision confirmed that you travelled through a red light.
11Factual issues arose at the time of the plea hearing, which your counsel, Mr Newton, set out as follows:
A. Whether Mr Heath’s motorcycle helmet remained on his head when Mr Heath came to final rest position on the bitumen road surface.
B. If the helmet did in fact leave Mr Heath’s head, when and how that event occurred.
C. If the helmet did in fact leave Mr Heath’s head, what the severity of head and neck injury consequences which are likely attributable to him no longer wearing a helmet property fastened to his head or no longer wearing a helmet at all.
12Following hearing from a number of witnesses on 31 May 2024, and hearing from Dr Hardiman and Dr Richardson on 30 July, and following receipt of further written submissions, on the 18 September 2024 in respect of the first question I ruled that I was satisfied on the balance of probabilities that the helmet was not properly fastened and was forced from Mr Heath’s head at a point in time near to or when he came into contact with the windscreen of your vehicle. Exactly where it was on his head at the point of contact with the windscreen, I was unable to say, however, the evidence of Dr Richardson left open the possibility that it was in the approximate position shown in Figure 20 of his report dated 10 July 2024.
13I was not prepared to make any other of the findings sought by Mr Newton until such time as the pathologist called at the plea hearing, Dr Chong Zhou, or some other pathologist was provided the opportunity to give further evidence.[1]
[1]Dr Richardson did not prepare his report until after Dr Zhou had given her evidence at the plea hearing. Accordingly, matters in his report were not put to her for comment.
14On 15 October 2024 I heard from Dr Matthew Lynch, a pathologist called by the prosecution, and heard further submissions from both parties as to the factual issue in dispute.
15The cause of death was not disputed and appears in the report of Dr Zhou dated 5 September 2023, Exhibit P12. Dr Zhou examined Mr Heath after he died on 1 September 2023, and reviewed his medical records. She concluded that the cause of death was:
(a) TRAUMATIC HEAD INJURIES SUSTAINED IN A MOTORBIKE INCIDENT (PALLIATED)
COMMENTS
1. The post-mortem CT scan showed right-sided skull and facial fractures, fractures of the right C6 posterior tubercle and right C7 transverse process and fractures about the bilateral wrists. There were also changes suggestive of pneumonia within the lungs.
2. The deceased was eventually palliated for Grade 3 diffuse axonal injury which was demonstrated on an ante-mortem MRI scan of the brain.
16In her evidence before me on 31 May 2024, Dr Zhou confirmed that the contents of her report dated 5 September 2023 were true and correct. Dr Zhou gave general evidence of her examination of Mr Heath and her findings. In response to a question from Mr Hardjadibrata, who then appeared on behalf of the Director of Public Prosecutions, Dr Zhou stated that if we were to assume that the deceased’s head had direct impact with the ground, so there was no intermediate helmet to take impact, then she would expect a far greater degree of damage on the skin of the deceased. Although there was neurosurgical intervention the degree of injuries on the skin is far less than she would expect if there was not an intermediate object like a helmet. Although Dr Zhou was examined and cross-examined about the various fractures, no questions were directed to the Grade 3 diffuse axonal injury.
17Dr Zhou was unavailable to give evidence when the plea hearing resumed on 15 October. Dr Lynch was called in her place to respond to matters arising from Dr Richardson’s report. I will set out in some detail the evidence of Dr Lynch as it is relevant to the factual issues that remained outstanding between the prosecution and defence.
18Dr Lynch agreed with the opinion of Dr Zhou as to the cause of death. He stated that a diffuse axonal injury, Grade 3, is an injury to the brain that is caused usually by a combination of acceleration and deceleration forces. In the context of a motorcycle collision, for example, the rider’s head moving at velocity and then coming into contact with an immovable or unforgiving resisting force resulting in deceleration. Those forces then result in the brain within the cranial cavity moving around backwards and forwards and twisting and that results in damage to small blood vessels. Grade 3 is the highest grade. In this case the corpus callosum, the tissue that joins the two cerebral hemispheres, was damaged, and also, critically, there was damage in the brain stem, which is part of the brain that joins it to the spinal cord. That is an invariably un-survivable injury.
19Dr Lynch considered that the head injury to Mr Heath was contributed to by two impacts, the rider with the car and the rider with the road. He stated it is not possible to set out and apportion the precise quantum of contribution of those two impacts, stating that he would need to know exactly in what condition Mr Heath was in at the point immediately after impact with the windscreen, and that was not obviously possible to discern.
20Dr Lynch stated he has seen diffuse axonal injuries in cases where the rider was wearing a helmet for the duration of the collision. He stated that the helmet does not offer absolute protection in cases of axonal-type injury. He said the helmet will absorb some of the transmitted forces but the brain is moving within the skull at the point of impact and 'it’s that particular movement that results in the damage that we observed here in Mr Heath'.[2]
[2]Transcript 15 October 2024, T8, L1.
21Dr Lynch was not able to express a view on Dr Richardson’s assessment of the position of the helmet at the point of impact of the windscreen of the vehicle.
22During Dr Lynch’s evidence-in-chief, Ms Goding, who then appeared to prosecute, put to him Dr Richardson’s opinion that if Mr Heath had been wearing an effectively secured helmet he would not have sustained fractures to his right frontal bone, right zygomatic arch and right lateral orbital wall and therefore would not have sustained as extensive traumatic head injuries. Dr Lynch said he agreed to parts of that opinion. He agreed that Mr Heath may not have sustained fractures. He said, however, he has also seen people with fractures to that part of the head when they have been wearing a helmet. However, with regard to the diffuse axonal injury he disagreed stating that that kind of injury is the result of acceleration and deceleration with some degree of protection conferred by appropriately worn helmets, but not absolute protection.[3]
[3]Transcript 15 October 2024, T11, L15.
23Under cross-examination Dr Lynch agreed that a helmet, even when it does not maintain its integrity, acts to buffer and dampen the magnitude of forces and decrease the rate at which the energy is transferred and thereby significantly reducing the severity and extent of injury and frequently making a difference between fatality and non-fatality. He reiterated, however, that it does not absolutely protect. Dr Lynch further stated that the helmet conveys a significant degree of protection to the bony component of the head but in terms of rotational forces, much less so. The helmet will dissipate linear forces, but, he added, 'our brain twisting within a helmeted skull is still vulnerable to the tearing kinds of injuries that were observed in Mr Heath'.[4]
[4]Transcript 15 October 2024, T15, L16.
24In answer to a question from me in relation to the diffuse axonal injury seen on Mr Heath’s MRI scan, Dr Lynch stated that the scan explains why Mr Heath’s head injury was un-survivable, but it does not allow the drawing of a conclusion as to whether a helmet was properly worn or improperly worn.
25In questioning relating to Mr Heath’s fractured wrists, Dr Lynch was not able to say whether they were more likely to have been caused directly as a result of the motorbike hitting the vehicle or Mr Heath, after collision, putting his hands out to protect his fall onto the road.
26Mr Newton showed Dr Lynch a photograph of Mr Heath in what was submitted to be his final rest position, depicting his head, right eye and right side of the skull in contact with the bitumen and asked, in effect, whether the fall onto the road materially contributed to the traumatic brain injury. Dr Lynch stated that if it is accepted that Mr Heath’s head has suffered the two impacts suggested then they both contributed and he cannot determine the quantum. He went on to state, however, that if there was other evidence that showed, for example, that he landed on the windscreen and just gently slid off onto the road then it would appear to be the impact with the windscreen that was much more significant than the second impact.
27Finally, Mr Newton put to Dr Lynch that Mr Heath’s motorcycle helmet, not being fastened securely to his head, is a significant material contributor to Mr Heath’s traumatic brain injury. Dr Lynch responded that it was a factor but that in terms of its significance that implied he could apportion a quantum, but he could not. He accepted that a properly secured helmet that remains on the head throughout the dynamics of the impact is the preferable scenario for a person involved in a collision.
28A question arose during the plea hearing whether Dr Richardson had in fact commented on the diffuse axonal injury. I have reviewed his report and evidence and note the following:
(a) at p20 of his report, Dr Richardson referred to Dr Zhou detailing that Mr Heath sustained '[f]ractures to the right frontal bone, right zygomatic arch and right lateral orbital wall'. He produced images of those bony structures;
(b) Dr Richardson then referred to Dr Zhou’s findings that Mr Heath suffered '[f]ractures of the right C6 posterior tubercle and right C7 transverse process … back of the neck';
(c) Dr Richardson then referred to Dr Zhou’s evidence that Mr Heath’s cause of death was 'traumatic head injury sustained in a motorbike incident';
(d) Dr Richardson then commented that:
'Dr Zhou appears to attribute Mr Heath’s head injuries adjacent to the right side of Mr Heath’s right eye as the cause of the traumatic head injury which subsequently caused Mr Heath’s death';
(e) at p23 of his report, Dr Richardson stated:
'It is unclear to the author how Mr Heath could sustain impact injuries which caused fractures adjacent to Mr Heath’s right eye if Mr Heath was correctly wearing a helmet.';
(f) at p30, Dr Richardson opined that for:
'a.Mr Heath to sustain traumatic head injuries adjacent to his right eye …
The helmet would have been sliding off Mr Heath’s head (when Mr Heath’s head impacted into the windscreen)';
(g) at p30, Dr Richardson opined that:
'… if Mr Heath had been wearing an effectively secured helmet, he would not have sustained fractures to his right frontal bone, right zygomatic arch and right lateral orbital wall and therefore would not have sustained as extensive traumatic head injuries.'.
He repeated that opinion at p31.
29Although Dr Richardson refers to the decoupling of the helmet creating the mechanism of the traumatic head injury, at all times he expresses the opinion that had Mr Heath been wearing an effectively secured helmet he would not have sustained the relevant fractures and therefore would not have sustained as extensive traumatic head injuries. At no point did he comment on the diffuse axonal injury or make any reference to the acceleration, deceleration and rotational forces that cause diffuse axonal injuries.
30Similarly, in his evidence before me on 30 July, the focus of his attention was on the fractures to Mr Heath’s head. Thus, for example, Dr Richardson, in referring to the impact loading and the injuries sustained, stated:
'… there’s got to have been some mechanism that’s caused the injuries to the deceased across his right eye and around his skull in that area. Something’s got to have been loaded so that those injuries occur.'[5]
[5] T30 July 2024, T181, L19.
31Dr Richardson was not asked to comment on Mr Heath’s head coming into contact with the road surface following collision, nor did he give any evidence regarding that particular issue.
32Under cross-examination by Mr Hardjadibrata it was put to Dr Richardson that Dr Zhou also gave evidence that there were fractures at the back of the neck area at the C6 and C7 spine but that Dr Richardson only focused on the injuries over the eye. Rather tellingly, Dr Richardson stated that was '[b]ecause that’s where she attributed the cause of death to'.[6]
[6] T30 July 2024, T218, L15.
33Dr Richardson stated that although he is not a medical doctor, he has skills, training and qualifications in looking at injuries, especially relating to fractures.
34In my opinion Dr Richardson has failed to take into account the diffuse axonal injury and the fractures at the back of the neck area in his consideration of the effectiveness of the helmet. Rather, his opinion was directed to the right-side fractures to Mr Heath’s head.
Victim Impact Statements
35I turn now to the impact statements tendered during the plea hearing.
36It is clear that Jesse Heath was a much-loved partner, son, brother and friend, whose death has had a profound impact upon those close to him. A number of the victim impact statements were tendered and read in open court. I have had full regard to each of them.
37Anna Mort, Jesse’s partner of 11 years, states that she wakes each day expecting Jesse to be there before realising that he is gone. She is still shocked by what happened stating: 'It doesn’t get any easier and it is eight months since he died.' Ms Mort describes Jesse as a special person having no vanity and being totally non-judgmental. Her life partner, she states, was a special person and her grief is dreadful, overwhelming. The joy has gone out of her life. Her sleep is disrupted and she is in a state of exhaustion throughout the day. Ms Mort states that it is a shock that life can change in a heartbeat. What occurred, she said, is so sad and no one could possibly know or understand what she has lost. Jesse’s death has changed everything for her.
38Jesse Heath was initially a foster child to Colleen and Ian Heath some 45 years ago. He was later adopted by them. He is the only foster child that Mr and Mrs Heath adopted. This is to be viewed in the context of them having fostered some 150 or so foster children. It is clear that he was very special to them from the time he was a foster child.
39Ian Heath describes Jesse as a delightful, gentle and kind person with whom he had a very close relationship. They spoke to one another nearly every day and shared in common an interest in bike riding, having ridden almost all trails in Victoria and completing nine seven-day great Victorian bike rides together since 2005. ‘Although Jesse maintained contact with his birth mother and her family, he always considered himself a Heath’. Ian Heath states that they are devastated by his death and in his case the loss of a best mate.
40Colleen Heath describes Jesse as a kind and gentle soul and for his life to end in the way it did is difficult to bear. She states that words cannot describe how missed Jesse is and how saddened the family has become as a result of his death. Her mental health has suffered and she takes medication to 'escape the awful visions and details surrounding his death.'
41St John Heath, Jesse’s brother, states that Jesse was a vulnerable and beautiful person, touching everyone’s lives in his own sweet and caring way. He states that Jesse was gentle, loyal and funny, truly taken before his time. He is missed.
Personal circumstances and background
42I turn now to your background and personal circumstances. At the time of the collision you were 35 years of age. You are now 36.
43The only relationship you have ever been in is with your wife, with whom you formed a relationship when you were 15 years of age. You married when you were 26 years of age. Together you have two young children aged six and three.
44You were raised in Geelong, the youngest of three children.
45Yours was a very difficult upbringing marked by significant domestic violence. Your father, it is reported, was a very strict disciplinarian, extremely controlling and physically and verbally abusive towards your family.
46Your parents separated when you were approximately seven years of age because of your father’s violence. You went to live with your mother with whom you have a very positive relationship. You maintained weekly contact with your father who remained physically and verbally abusive. At the age of 14, and following a physical fight with your father, you stopped having any contact with him until you were 18 years of age, when you reached out to him. From that time, you maintained, with difficulty, a relationship with your father. You report that the relationship has improved in recent years after you gave him an ultimatum to improve his behaviour if he was to have any form of relationship with your children. You report that your father’s behaviour is considerably more stable now and he is an active grandfather.
47You have an amicable relationship with your brothers and report that all members of your family are aware of this charge and remain supportive of you. I have seen that your partner, mother and other members of your family and friends have attended court to support you during each day this matter was before the court.
48You left school at the beginning of Year 10. You undertook and completed a three-year apprenticeship in bricklaying. You have worked in that trade since leaving school and you currently operate your own bricklaying company. You employ several full-time employees and report regularly working seven days a week.
49You have only one prior appearance before the courts for offences of behaving in a riotous manner and remaining in the vicinity of licensed premises. That was in 2013. You received a monetary penalty without conviction. It was not a serious offence, and I do not consider it relevant to the sentence to be imposed.
Psychological reports
50Tendered on your behalf was a psychological report of Dr Mathew Barth dated 25 April 2024.
51Dr Barth stated your personality and behavioural adjustment is positive and normal. You presented as a sensitive and pro-social man who has clear views about moral and ethical matters and who aspires to high personal standards of conduct.
52You described to Dr Barth periods of depressed moods, anxiety and low self-esteem dating back to your childhood years. This was primarily due to the violence and verbal abuse to which you were subjected. During your adult years you resorted to working long hours, alcohol use and gambling to manage your distress.
53You reported a profound emotional response to the collision the subject of this proceeding. It includes a range of symptoms of post-traumatic stress disorder including intrusive re-experiencing, hyperarousal, social withdrawal, sleep disturbance and emotional numbness.
54You repeatedly expressed to Dr Barth your horror, distress and shame regarding the collision. Recollections of the event continue to disturb you, and you maintain a near constant inner dialogue concerning your failings and culpability. You reflect on the effect of the collision on Mr Heath’s family, friends and others in his life. You stated, 'I feel absolutely horrible for his family. I can’t imagine what they are going through. There’ve got every right to hate me.'
55Dr Barth states that you are suffering noteworthy symptoms of anxiety and depression that cause you continued distress. The primary cause of these symptoms is traced to the collision. He is of the opinion that you meet the diagnostic criteria for post-traumatic stress disorder that developed in the aftermath of the collision. It is likely, in his opinion, that your long-term emotional vulnerability has contributed to the intensity of your emotional reaction to the event. You require professional, trauma focused psychological treatment.
56Dr Barth states that your current level of alcohol use is concerning and is sufficient to warrant the diagnosis of an alcohol use disorder at the moderate level.
57You are considered to be of low risk of general recidivism.
58Dr Barth considers that there remains a genuine risk that your condition could continue to deteriorate in the aftermath of sentencing. It is likely that you will require relatively intense professional support during the initial period in custody.
59A psychological report from clinical psychologist, Jacqueline van der Klooster dated that 5 March 2024, was also tendered on your behalf.
60You commenced consulting her in September 2023. Ms Van der Klooster has diagnosed you with post-traumatic stress disorder with dissociative symptoms. She also considers you show symptoms of attention deficit hyperactivity disorder.
61You saw Ms Van der Klooster on 14 occasions up to the date of her first report. She obtained a relatively detailed history of your childhood trauma at the hands of your father. In her opinion it is quite probable that you have been heavily impacted by your childhood trauma before the collision with Mr Heath.
62Ms Van der Klooster states you have displayed high levels of distress in session with regards to the accident, especially around the impact.
63A second report from Ms Van der Klooster dated 10 May 2024 was also tendered on your behalf. In that report she states that in the lead up to the plea hearing your mental health has further deteriorated. You often presented in high states of distress, at times appearing to dissociate. She states you have been overwhelmed with feelings of shame, guilt and remorse relating to the impacts of the incident. You report using alcohol to avoid and numb feelings of distress.
64In her opinion you will find imprisonment more burdensome in light of your mental state. Your mental health has become worse as the possibility of imprisonment and the impact that will have on your family becomes closer. She states you have struggled enormously with facing the impact of the incident on the rider and his family. You can spiral into self-loathing and distress. You also frequently become overwhelmed with feelings of distress and shame that your wife and two young children will be punished over your mistake.
65Your treatment with Ms Van der Klooster has been ongoing. You have also been prescribed Seroquel by your general practitioner.
Character References
66A bundle of 17 character references was tendered on your behalf. I have read and had full regard to each of those references. I do not intend to refer to them in any detail in these sentencing reasons.
67It is clear that you have led an otherwise good life, working hard to support your wife and two children. You are variously described as responsible, kind, devoted to your wife and children, a loyal friend and charitable to those less fortunate than yourself. You are held in high regard by those who know you. Your mother describes in detail your sad and violent upbringing at the hands of your father. Despite the trauma you endured in your formative years your mother states you have worked hard to put your difficult life behind you and live a meaningful life.
68Your referees also speak of the successful business you created and the opportunities of employment you have given to others, particularly taking on a number of apprentices and teaching them more than just the basics of bricklaying.
69A number of your referees also speak of your deep and genuine remorse. Your mother states that while Mr Heath was still in hospital you were deeply distressed and worried about him and his family. You felt terrible that you could not speak to them and apologise. Your wife states that you live every day with the pain and guilt of what you did.
70Whilst all the character references were impressive, I was particularly impressed with the reference from David Winton and the positive impact you have had on his young son’s life. It is clear that you have been a good and positive influence in the lives of your apprentices and employees.
71You will continue to enjoy the support of your family and friends.
Sentencing Considerations
72I now turn to the relevant sentencing considerations.
73In Stephens v The Queen[7] the Court stated:
'Dangerous driving … encompasses a very wide range of conduct, but it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment. That statement of principle was qualified in Director of Public Prosecutions v Oates, by noting that any sentence which is imposed must take account of variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of moral culpability is low.'
[7] (2016) 50 VR 740 [21]
74The Court in Stephens also stated that:
'An assessment of the dangerousness of the driving will be informed by the extent of the risk which is created as well as the extent of potential harm should risk materialise.'[8]
[8] Ibid [20]
Gravity of Offending
75The offence of dangerous driving causing death is a serious offence. Your counsel conceded as much. It involves the loss of life and significant and profound impacts on the family and friends of the deceased. The maximum penalty of 10 years’ imprisonment reflects the seriousness with which the offence is viewed by Parliament.
76In assessing the objective gravity of your offending I have had particular regard to the following matters:
· First, the traffic light applicable to you was red and had been so according to Dr Hardiman for some 131 seconds when you entered the intersection. You had turned onto Melaluka Road, some 217 metres from its intersection with Bellarine Hwy.[9] You were driving behind a car driven by Nigel Benn who estimated his speed as he approached the intersection at approximately 30 kilometres per hour. Assuming you were travelling at that speed, that would mean you were facing the red light for a period of some 26 seconds by the time you entered the intersection.
· Secondly, you are familiar with the road and intersection where the incident occurred. You told police at the scene of the collision that you drive that road every morning.
· Thirdly, the lighting was dark, although streetlights were operating. The weather was fine and the road dry. There were no adverse weather conditions.
· Fourthly, you were not driving at an excessive speed. You were not affected by drugs or alcohol, or fatigue. You were not using your mobile phone. There is no suggestion of erratic driving. Your driving was not attended by any other aggravating feature.
· Fifthly, there is no suggestion that your view of the traffic lights at the intersection was obstructed.
· Sixthly, you did not apply your brakes before the collision.
[9] Defence submissions, dated 12 May 2024, par 1.2.6.
77The circumstances were such that you were not paying proper attention to the road and traffic signals. This was not a momentary lapse in attention. Your level of inattention must have been for a significant period of time. It is this level of inattention that constitutes the most dangerous aspect of your driving. Such inattention while driving in the circumstances you were in was particularly dangerous, involving the risk of serious injury and, as happened here, death.
78As was said in DPP v Janson:[10]
'The respondent’s lapse of attention of some 10 seconds’ duration amounted to a most remarkable failure to keep a proper lookout, and the nature and gravity of the respondent’s offending are to be assessed accordingly.'
[10] [2011] VSCA 19 at [19]; (2011) 31 VR 222 per Nettle JA.
79Your level of inattention, of course, was greater.
80I am not able to accept your counsel’s submission that the objective dangerousness of your conduct falls between the low to mid-range level. In my opinion it falls well within the mid-range level of seriousness. Entering an intersection against a red light when that red light had been red for some 26 seconds as you approached it is, to use the words in Janson, 'a most remarkable failure to keep a proper lookout.' This would be so even if, as it was at one point put by your counsel, you were travelling towards the red light for some 12 seconds. The basis of that 12 second calculation is unclear.
Moral Culpability
81Mr Newton placed significant reliance on the fact that at the time of the collision Mr Heath’s motorcycle helmet was not properly fastened, the submission being that this is a matter that reduces your level of moral culpability.
82In Pan v The Queen,[11] Croucher AJA referred to what was said by Priest JA in George v The Queen,[12] stating that the principles there stated applied equally to a case of dangerous driving causing death.[13] Of particular relevance is that:
'A sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the death … As to the causal link with the death, the offender may be able to establish that there was an additional factor outside the offender’s control which was also a material cause of the death.'
[11] [2020] VSCA 42.
[12] [2017] VSCA 152 at [109].
[13] At [83].
83Notwithstanding the evidence of Dr Richardson and the detailed submissions of Mr Newton,[14] I am not able to find, on the balance of probabilities, that the fact that Mr Heath’s helmet was not properly fastened was a material cause of death.
[14] Submissions dated 19 August 2024 and two sets of submissions dated 13 October 2024.
84I have no difficulty in accepting that a properly fitted motorcycle helmet attenuates the level of force of impact. Asked by Mr Newton whether the helmet absorbs a significant portion of the energy, Dr Richardson said:
'No, it changes the way in which the load is being applied. The same load or force gets applied, you can’t eliminate that, but what it does, it distributes it so rather than a point load you get a larger distributed load.'
85He added that:
'The padding that is in the side of the helmet means that there is some attenuation for the time period that it's supplied over, so the peak of the force that gets applied is reduced.'
86The difficulty I have with Dr Richardson’s evidence is that he did not address the issue of what impact a securely fitted helmet would have in preventing or reducing the types of forces that cause diffuse axonal injury.
87The cause of Mr Heath’s death is traumatic head injuries. They included not just the fractures of the skull and face but also the fractures to the right C6 posterior tubercle, fractures to the right C7 transverse process and the Grade 3 diffuse axonal process.
88As I earlier stated, Dr Lynch said that the diffuse axonal injury is an injury to the brain that is usually caused by a combination of acceleration and deceleration forces. In the setting of a motorcycle collision, the rider’s head moving at velocity and then coming into contact with an immovable or unforgiving resistive force results in deceleration. Those forces then result in the brain within the cranial cavity moving around backwards and forwards and twisting, and that results in damage to the small blood vessels. Dr Richardson did not comment upon this.
89Dr Lynch also considered it critical that there was damage in the brain stem which is the part of the brain that sits at the base of the brain and joins the brain to the spinal cord. As he stated, it is invariably an un-survivable injury. These injuries are separate to the skull and facial fractures described in comment one of Dr Zhou’s report.
90Dr Lynch was not persuaded by Mr Newton’s suggestion that securely fitted helmets reduce the rotational magnitude of force. Based on his seeing diffuse axonal injuries in persons that were helmeted, Dr Lynch stated that the forces still have the opportunity to impact on the soft brain tissue. He stated that when a person’s helmeted head is brought to a sudden stop, those forces are still transmitted to the brain.
91At its highest, Dr Lynch accepted that a properly secured helmet that remains on the head throughout the dynamics of the impact is the preferable scenario. However, he refused to be drawn on the question of degree.
92Another difficulty with the submissions of Mr Newton is the lack of evidence concerning just how Mr Heath landed on the road surface and with what degree of force. This is in contrast to the evidence that suggested Mr Heath’s head impacted with the windscreen of the car with such force that the windscreen was shattered.
93It is clear from the authorities that to be a factor in mitigation, any additional factor outside of the offender’s control must also be a material cause of death.[15] This is to be established on the balance of probabilities. I am not satisfied that it has been so established here. While it may have contributed to the skull fractures, there is no evidence to suggest it was a material cause of the diffuse axonal injury or the brain stem damage.
[15] See for example, Guseli v The Queen [2019] VSCA 29; Spanjol v The Queen [2016] VSCA 317; George v The Queen [2017] VSCA 152.
94The traffic light applicable to you was red for a considerable period of time, a fact that highlights your level of inattention and thus elevates your level of culpability.
95In its written submissions dated 13 May 2024, the prosecution submitted that your moral culpability was high based on the fact that the red light had been displayed for 131 seconds. However, that is not the period of time that is relevant to you. As I earlier stated, Mr Newton submitted you turned onto Melaleuca Road, some 217 metres south of the intersection, and that you were then following Mr Benn’s vehicle remaining some two car lengths behind as you approached the intersection. On that basis you had been approaching the red light for some 26 seconds and not 131 seconds. Ms Goding agreed with that calculation. Nevertheless, 26 seconds is a significant period of time for you to have seen that the light was red. The fact that you did not see the red light is inexplicable other than to say you were highly inattentive. This was not momentary inattention but a significant level of inattention. I therefore reject your counsel’s submission that your moral culpability falls in the low range.[16] I would place it, having regard to all the circumstances, at the mid-level. In coming to this conclusion I have had regard to the fact there was an absence of many of the aggravating factors that are often associated with such collisions.
[16] Written submissions dated 12 May 2024, paragraph 1.3.3.
Plea of Guilty
96Your plea of guilty was entered on 16 January 2024, the earliest possible time at which it could be entered.
97Your plea of guilty has spared many witnesses from the ordeal of having to give evidence at trial and has spared the court and the community the time and cost of a trial. Your early plea of guilty is indicative of your remorse and marks an acceptance by you of responsibility for your conduct. I say this notwithstanding the contested factual issue.
98I accept Mr Newton’s submission that your plea of guilty entitles you to a significant reduction in sentence.
Remorse
99I have no doubt that you are deeply troubled by and remorseful for what occurred. This is well borne out in the materials which Mr Newton tendered on your behalf. It is borne out in the reports of Dr Barth and Ms van der Klooster. It is also borne out in your demeanour immediately following the collision, and as I have observed it to be, throughout the course of these proceedings.
100You told your mother that you felt terrible that you could not speak to Mr Heath’s family and apologise for what happened.
101Your remorse, in my opinion, is a matter to which I give much weight in the sentencing process. It is a matter that also weighs favourably on my assessment of your prospects of rehabilitation, the likelihood of you re-offending, the need for specific deterrence, and the protection of the community.
Rehabilitation
102Based on all the matters put on your behalf, including that you only have one prior matter in 2013, the support you receive from your family and close friends, your excellent work record and the evidence of your remorse, I consider that your prospects of rehabilitation are very good, if not excellent, provided you receive appropriate treatment for your post-traumatic stress disorder. I consider it of significance that notwithstanding your difficult childhood, you overcame those circumstances to lead a very good and productive life. I find that you are a person of otherwise good character.
Mental Health
103I accept that Verdins’[17] Principles 5 and 6 are enlivened in your case. I do so on the basis of the matters contained in the psychological reports tendered. In my opinion your diagnosis of post-traumatic stress disorder will mean that a sentence of imprisonment will weigh more heavily on you than on a person in normal health. I also consider that there is a serious risk of imprisonment having a significant adverse effect on your disorder.
[17] R v Verdins (2009) 16 VR 269
Extra Curial Punishment
104Mr Newton also relied upon extra curial punishment as a matter in mitigation. He pointed to the impact of your incarceration on your bricklaying business, the consequent financial ramifications for your wife and children and your likely inability to commence work as a TAFE teacher. I accept these submissions. In my opinion you are entitled to some consideration for this additional punishment.
Deterrence, just punishment, denunciation, protection of the community
105In Camin v The King[18] the court stated:
'It is also undoubtedly true that characteristics such as a guilty plea, youth, vulnerability, excellent character evidence and genuine remorse, which are present in this case. are all matters properly to be taken into account. However, they are also characteristics which offenders often possess in relation to this type of offending. Youth is also given less weight in this context where general deterrence is of primary importance.'[19]
[18] [2024] VSCA 124.
[19] Ibid [52].
106Through your plea of guilty you acknowledge 'a serious breach of the proper conduct of a motor vehicle upon the road that is 'so serious as to be in reality and not speculatively, potentially dangerous to others'.'[20]
[20] Georgiou v The Queen [2022] VSCA 176 [14].
107As was stated in Camin, I must regard general deterrence as being of primary importance. That is, other drivers must understand that they will face stern punishment should they commit a similar offence.
108Weight must also be given to the sentencing considerations of denunciation and just punishment. I consider that less weight, if any, should attach to the need to deter you from further offending and the protection of the community from you. Having regard to your otherwise near excellent history in the community, your excellent work history and the support you will have from your family and many friends, the risk of you re-offending in my opinion, and also that of Dr Barth, is low. In any event, I consider that a sentence that I must impose will meet the needs of specific deterrence and protection of the community.
109The offence of dangerous driving causing death is a Category 2 offence.[21] Accordingly s5(2H) applies. Mr Newton, notwithstanding his written submissions of 12 May 2024, submitted that pursuant to sub-paragraph (e) of that section there are substantial and compelling circumstances that are exceptional and rare and that justify not sentencing you to an immediate term of imprisonment. Mr Newton submitted that the appropriate penalty in all the circumstances is a community correction order.
[21] Section 3(1)(eb) Sentencing Act 1991.
110In his written submissions dated 13 October 2024, Mr Newton relied on a number of matters, which I summarise as follows:
a.the circumstances of your offending including your cooperation with police at the scene of the collision;
b.your level of inattention was approximately 14 seconds[22] (although I should say I am not able to understand the basis on which that calculation is made);
[22] Defence counsel variously submitted 12 and 14 seconds.
c.significant circumstances, independent of your conduct, which are material factors causing Mr Heath’s fatal traumatic head injuries, this being that the helmet was not properly secured;
d.Mr Heath’s head was entirely unprotected as he fell onto the hard bitumen surface;
e.your limited criminal history and no prior VicRoads history;
f.you have no subsequent or pending criminal charges or road offences;
g.you have complied fully with your conditions of bail including not to drive a motor vehicle;
h.you have never before been in custody;
i.the extra curial punishment you have suffered and will suffer;
j.your considerable shame, anguish, self-hatred and decline in your mental state of health;
k.that you have since the collision resorted to consumption of alcohol to numb the intrusive thoughts and feelings arising from that collision, amounting to alcohol misuse disorder at a moderate level;
l.you are being treated by a clinical psychologist on a continuing and regular basis;
m.your profound and genuine remorse; and
n.the lengthy delays occasioned by the necessity of a disputed facts hearing not attributable to you.
111In response, Ms Goding submitted, in essence, that it may be open to conclude that the helmet issue, assuming I was to find in your favour, might be considered exceptional and rare, but even in that event it would not meet the threshold of substantial and compelling. As for the other factors relied on by Mr Newton as informing my evaluative judgment, Ms Goding submitted that they are factors all too commonly present in offending of this kind.
112Mr Newton’s submissions are based on the exception under s5(2H)(e) of the Sentencing Act. In DPP v Lombardo[23] the Court stated that s5(2H)(e) has two key steps. First, the court must identify whether there are 'substantial and compelling reasons.' The second, a critical step, if the circumstances are substantial and compelling, asks whether they are also 'exceptional and rare'.
[23] [2022] VSCA 204.
113The Court stated that 'substantial and compelling' means that the circumstances are weighty and forceful or powerful.”[24] Further, that 'exceptional and rare' is to be regarded as a composite phrase, where 'exceptional' means 'out of the ordinary course, unusual, special' and includes that which is 'rare'.[25] The court went on to state that the phrase refers to 'circumstances that are wholly outside the ordinary factors typical of the relevant offence', in this case dangerous driving causing death.[26] It was accepted that a combination of circumstances may engage the exception 'even where the constituent circumstances are mainly, or even wholly, relatively common'.”[27]
[24] Ibid [66].
[25] Ibid [67].
[26] Ibid [71].
[27] Ibid [72].
114 Section 5(2HC) states:
' In determining whether there are substantial and compelling circumstances under sub-s(2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1) ; and
(b) must give less weight to the personal circumstances of the offender than to the other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
115Section (2I) states:
116 ' In determining whether there are substantial and compelling circumstances under sub-s(2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a Category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'
117Having carefully considered the submissions of Mr Newton and notwithstanding the powerful consideration of your personal circumstances, I am not persuaded on the balance of probabilities that there are substantial and compelling circumstances given that I am required to regard general deterrence and denunciation as more important than other sentencing purposes in s5(1) of the Sentencing Act. I am also required to give less weight to your personal circumstances than to the nature and gravity of the offence. The objective gravity of your conduct is reflected in your failure to keep a proper lookout as you approached the intersection, an intersection with which you were well familiar, in circumstances where there were no obstructions to you seeing the red light and in circumstances where you had significant opportunity to do so. In entering the intersection against the red light, you created a significant risk to other road users, a risk that resulted in the death of Mr Heath. This is not a case where the objective gravity of your offending or your moral culpability may be considered low.
118I am also of the opinion that it could not be said that the circumstances are exceptional and rare. Regrettably, the many matters relied upon by Mr Newton that I have found in your favour are not wholly outside the ordinary factors typical in many cases of dangerous driving causing death.
119I am also required to have regard to Parliament’s intention that an order for a custodial sentence should ordinarily be made.
120Your counsel in his written submissions dated 12 May 2024 stated that this is a case where it was appropriate to apply the principle of mercy. There was no elaboration upon that stark submission and why it was appropriate to do so. Nevertheless, it is a matter the application of which I should consider. In my opinion your personal circumstances, as compelling as they are, do not rise to the level that would warrant the exercise of mercy so as to avoid imposing a term of imprisonment. I have had regard to what was put to me generally concerning the impact a sentence will have on you, your business and potential financial consequences to your family. However, there was no evidence as to the extent of that impact upon your family, its impact upon others or indeed any other impact that may warrant the application of the principle. The application of the mercy principle was not advanced in support of the s5(2H) considerations.
121In determining the appropriate sentence, I have had regard to each of the sentencing decisions to which I was referred, as well as others, in my consideration of current sentencing practice. It is clear from a reading of those cases that the circumstances in which this offence may be committed vary widely, as do the sentences imposed. Current sentencing practice is one of a number of considerations to which I am to have regard. Sentences passed in other cases are not precedents that must be followed but they may play a part in informing the instinctive synthesis.
Sentence
122In all of the circumstances of this tragic case and doing the best that I can to weigh the competing sentencing objectives, on the charge of dangerous driving causing death you are convicted and sentenced to 18 months’ imprisonment. I set a non-parole period of nine months’ imprisonment as the period justice requires to be served. I have set a relatively low non-parole period given the significant matters in mitigation that were advanced on your behalf, particularly having regard to the Verdins’ considerations and my assessment of your prospects of rehabilitation.
123Pursuant to s89(1) and (2)(a) of the Sentencing Act, I must disqualify you from driving for a minimum period of 18 months. I do not intend to disqualify you for longer than that noting that you have not been driving since this incident as I was told it was a condition of your bail.
124Pursuant to s6AAA, had it not been for your plea of guilty the sentence I would otherwise have imposed is one of three years’ imprisonment with a non-parole period of two years.
125You may be seated, thank you.
126To the Heath family and friends of Mr Heath, I know that these proceedings, which started in May of this year, have been difficult for you. Most of you have attended on each day and it cannot have been easy. I cannot profess to know how you feel but with the end of these proceedings I hope that there will be some easing in your grief.
127I will now address some remarks to the families and friends of both Mr Heath and Mr Rain, and that is to acknowledge the exemplary manner in which you have each conducted yourselves in court throughout the course of these difficult proceedings.
128May I also extend my thanks to all members of counsel for the exemplary way in which you have dealt with this matter.
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