Director of Public Prosecutions v Ritchens
[2012] VCC 2110
•17 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH RITCHENS |
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JUDGE: | HIS HONOUR JUDGE PILGRIM | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 December 2012 | |
CASE MAY BE CITED AS: | DPP v. Ritchens | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2110 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | |
| For the Accused | Mr A. Coote |
HIS HONOUR:
1 Mr Ritchens, you have pleaded guilty to one count of culpable driving and one count of attempting to obtain property by deception. You have heard the learned prosecutor, it was then Mr Moore, tell this court that the maximum sentence that can be imposed on the culpable driving count is that of 20 years imprisonment and that the maximum sentence that can be imposed on the attempt to obtain property by deception is that of five years imprisonment.
2 Those terms of imprisonment, particularly the culpable driving maximum, should indicate to you that this is indeed a very serious offence. For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed. In other words you receive a discounted sentence for having pleaded guilty.
3 Mr Ritchens, it was on 21 June 2008 that you were driving your black Ford Fairmont sedan when a collision occurred on the Oxley Flats Road 167 metres south of Williams Lane in Wangaratta. Your car, whilst then out of control, collided with a roadside tree. As a result of this collision your front seat passenger, Christopher Alan Power, was killed instantly as a result of injuries received.
4 The facts of this case were opened by the prosecutor, Mr Moore, and are contained in the prosecution opening marked Exhibit A in these proceedings. In brief summary you have engaged in a long session of drinking alcohol, at least at three licensed venues on this night and early morning. Further you admit to consuming ecstasy at this time.
5 Mr Ritchens, you commenced drinking at the Town and Country Tavern in Wangaratta. One of your companions of the night, Christian Meloury, says in his police statement and I quote, "Blake, me and a couple of other fellows were drinking and Kenny came to pick us up. Kenny came into the Town and Country and he would have been there for about 20 minutes before we left. The whole table that was sitting together took some ecstasy. This included Kenny. We all took one pill each."
6 Meloury goes on to say that they travelled to the Whorouly Pub. Mr Ritchens, the barmaid at the Whorouly Pub made comment of your behaving as a "dickhead" whilst at the pub. Ms Foster says, "He was trying to make a statement that he was a fuckwit and he succeeded." Ms Foster, the barmaid, says that she closed the bar down at half past twelve and that everyone was gone from the hotel by one o'clock.
7 You then as a group drove in your car with you as the driver to the Albion Hotel back in Wangaratta. Your friend, Christian Meloury, says this in his statement and I quote, "We left the pub in Kenny's car and Kenny was driving. On the way into Wangaratta Kenny's driving was off. By this I mean he hit the gravel a couple of times. We were all pumped with the music up loud and having had some ecstasy we felt like we were having the time of our lives.
8 His driving wasn't the best. I put this down to what he had been drinking at the pub and the ecstasy we had taken. We were all off our faces and pumped on the way back to Wangaratta. We got to the Albion Hotel after going straight from the Whorouly Pub. I'm not sure what time that was."
9 Once at the Albion your intoxicated state was recognised by the licensee of the Albion Hotel. Christian Malourey in his statement made this observation of this night. Malourey says, "I don't really remember much about Kenny's behaviour at the Albion. It was just Kenny being Kenny when he is pissed. He gets very obnoxious and he was on this night. When he gets pissed Kenny thinks he is a gangster.
10 I got told that he had been waving a gun around the Albion and Whorouly Pub but I didn't see him do that. The barmaid out at the Whorouly Pub said it was a toy gun and I'm sure her observation is probably accurate." Malourey goes on to say, "Kenny ended up being not allowed in the Albion. He went outside for a smoke and they wouldn't let him back in because he was pissed and the way he was acting. I got kicked out shortly after that. We decided to leave and Hugo came with us. I have no idea what time it was."
11 The licensee of the Albion viewed the CCTV of this night. The time recorded on that film is 3.28 am. This film is security film taken from outside the premises of the Albion. The licensee says, "Ritchens was wanting to finish his beer and was arguing the point. I would describe his sobriety as being intoxicated and he was argumentative which is a sign. I don't believe he should have been driving a car, however he would have been able to operate one.
12 I believe he was affected by substances other than alcohol. After speaking with Ritchens and the older male, that I think is the deceased man, I told my security staff member not to allow entry to the older male, Ritchens and Malourey. I then went back inside the hotel to perform other duties."
13 Shortly after being banned from re-entering the Albion you drove off from the hotel with at least five other passengers. Adam, the security man outside of the Albion, was so concerned by your driving that he immediately rang 000. This call has been recorded and among other things on that recording this was recorded.
14 Adam Judge, the security man, first words to the communications officer at the end of the 000 line said this. "We have just had a guy drive off. He is absolutely smashed." Passengers in this car have made statements. Louise Einersen, among other things said this, "Ken was driving to my surprise as I thought he was too drunk to drive." In a statement she goes on to say, "I got into the back with Christian and there was another male and female in the rear seat. I do not know what their names are.
15 Ken started to reverse and almost hit the car that was parked behind him. I yelled out to tell him to stop. I remember the female saying to me, "Sit down, bitch." Ken drove off very quickly and I would describe it as terrifying. He went up Murphy Street to Faithful Street and turned left and then he went up to Reid Street. He slowed down at the time he got to Reid Street."
16 The other male in the back seat was Michael Winton-Wheldon. Marouley was the other gentleman, but Michael Winton-Wheldon said in his statement, "The older guy from Whorouly was seated in the front passenger seat." Winton-Wheldon tells of how he got dropped off near his home with his girlfriend. Winton-Wheldon describes the journey in this way, and I am quoting from his statement, "Whilst Ken was driving me home Ken's driving was pretty shit. By that I mean speeding, taking corners too wide and erratic driving.
17 The roundabout near Sydney Hotel, he hit that way too fast and this caused him to drive around the roundabout the wrong way. By this I meant he went round the wrong side of the road of the roundabout. The tyres also screeched when he went around the wrong side. Everyone in the car was yelling at him to take it easy and slow down. His driving was erratic, he was putting his foot down and causing the car to have a bit of speed boost like a rev.
18 A few corners he went into too quick causing the back of the car to jolt just like when you turn the steering wheel of the car too fast. I wasn't looking at the speedo from the back seat so I have no idea if he was doing the speed limit."
19 Mr Ritchens, I have no doubt that you had consumed a considerable quantity of liquor on the night and further that you consumed at least one ecstasy tablet, all of which compromised your capacity to drive a motor car. Another witness to your driving, Kristy Pawlawsky, had also been at the Albion whilst you were there and possibly you know her.
20 Pawlawsky said, "Kenny was swaying all over the place. He was very loud. He was yelling and making comments that were out of character for him. I also believe Kenny was affected by drugs as well as alcohol." In a statement this witness further goes on to say, "Sometime after leaving the hotel I was driving in a south westerly direction along Riley Street, Wangaratta. As I was approaching the intersection of Greta Road the traffic lights applicable to me were green. I would estimate that they had been on green for a couple of seconds when I noticed the lights of another motor car approaching the intersection from Greta Road. I immediately came to a stop at the green lights.
21 I then saw a black Ford sedan approach the intersection from my left and drive straight through the red traffic lights applicable to him. I would estimate this car to be travelling at around 60 kilometres per hour. I would say the lights applicable to him would have been red for a few seconds. There is no way he was going to stop for anyone."
22 Mr Ritchens, after having dropped Mr Malourey off at home a short time later you returned to get money from him so as to purchase fuel. You then later drove to the Apco fuel station located in Riley Street, Wangaratta. Mr Power remained seated in the front passenger area while you placed fuel into your vehicle.
23 Video surveillance from the Apco service station indicates that you were unsteady on your feet and you are depicted spilling fuel onto the ground below your car. Voice recordings further indicate that you were affected by alcohol and/or substances. Comparisons made between video surveillance and records obtained via the Commonwealth Bank of Australia in regards to EFTPOS transactions confirm that you drove from the Apco service station at 4.12 am travelling toward the Oxley-Flats Road.
24 Mrs Sarrin Stibilj was asleep in her home near to where this collision took place. Among other things Mrs Stibilj says in her statement, and I quote, "I woke and found my daughter already awake and she said that she had heard a loud crashing noise." The daughter was spending the night with her mum in her bed as her partner was not home.
25 Stibilj goes on to say, "I woke and presumed it was because of the noise. However I cannot describe the noise. I turned to my daughter, Hayley, who was laying beside me and already awake. Hayley spoke and mentioned that she heard a loud bang noise. It took me about a minute to register and when I looked at the clock it was 4.19 am. The time was 4.20 when I got out of bed to look outside.
26 I believe that the time of the bang noise was 4.18 am and definitely no later than 4.20 because that's when I got out of bed." The lady looked out of her window and could see a light shining in the distance but she did not leave her house.
27 It is apparent then from all of this evidence that within six minutes of refuelling this impact occurred. The expert evidence from Sergeant Bellion indicates that the speed of your vehicle at the time of this event was within the 100 kilometre per hour speed limit. Mr Ritchens, you immediately left the scene of this accident leaving the deceased gentleman lying beside the wrecked vehicle. That is a despicable act to leave the fellow lying there.
28 You arrived at your ex-partner's home at Smith Street, Wangaratta at somewhere between 5.30 am and 6 am. Your ex-partner is Nicole Rhodes. Ms Rhodes says that she heard you knocking on her back door. I quote from Rhodes' statement. This is what she said. "I think he was knocking on the back door. I immediately got up and when I saw Kenny he was hysterical.
29 He was crying and very emotional. The first thing I said was, 'What the fuck has happened?' I could see it in his face that something was very wrong. He then kept saying, 'I've done something really bad. I've done something really bad.'" You then revealed that you had been in a motor vehicle accident. Ms Rhodes then says in the statement, "I was very confused and trying to piece together what he was talking about. I then said, 'Have you crashed?' He said yes.
30 I said, 'Have you been drinking?' He said, 'Yes, I was pretty pissed."' He was balling his eyes out. I knew there was more to it because he doesn't care that much about cars or any of his possessions". Rhodes said, "What happened? Why did you run?" He said, "If I tell you this you will have to promise not to tell anyone ever or my life is over." Rhodes said, "Just tell me."
31 He said, "I've accidentally fucking killed someone, Nicole." Rhodes said, "What the fuck? Who?" You said to her, "I don't know who he was but he is dead in the car." Shortly after Rhodes and yourself then went to your home where you then resided with your parents. Without going into detail you, together with the encouragement of your mother, created the fictional story that your car had been stolen earlier in the night from Merriwa Park.
32 You stuck to this story for nearly three years. You reported the theft of your car to the police in Wangaratta and you then made the false claim to your insurance company seeking recompense for the so called stolen car wreck. You now admit that this is all a lie. These facts constitute the basis of the second count on the indictment, that is attempting to obtain a financial advantage by deception or property by deception.
33 Mr Ritchens, you are now aged 32 having been born on 18 July 1980 in Wangaratta. You were educated at a local primary school before then attending Wangaratta Technical School, leaving school part way through Year 11. You commenced work as an apprentice builder but unfortunately your employer went bust. You then transferred your indentures to a plastering apprenticeship. You are now a plasterer and you have worked in this industry since leaving the building apprenticeship.
34 You are a single man and you live with your mother and father as I have just mentioned in Wangaratta. You have a brother and a sister. Mr Ritchens, you have seen Dr Lester Walton, a consultant psychiatrist. Dr Walton is well known to the courts. Dr Walton in his report dated 28 November 2012 says this, "Mr Ritchens himself was a marijuana smoker in the past, a weekly indulgence for some five years. Occasionally at social gatherings he would use amphetamines and he estimated that he had used ecstasy on around 20 occasions. He insists that he has ceased all illicit drugs.
35 Mr Ritchens, your drinking and drug use on the night or morning of this dreadful event was indicative of a totally irresponsible consumption of liquor and drugs. Your behaviour was atrocious. Dr Walton reports, "Mr Ritchens was introduced to alcohol at the age of 16. He describes a pattern of twice weekly intoxication which is ongoing. He does not regard this as problematic because 'all tradies do it'."
36 You will need to address your drinking habits so as to become a good and useful citizen within society. Dr Walton in his report says this, "Kenneth Ritchens might be described as lacking common sense, especially in relation to his attitude towards alcohol consumption which lacks responsibility, but he is not actually intellectually disabled. Mr Ritchens has a history of poly drug abuse and alcohol abuse. The former now seems to be in abeyance but he continues to drink to excess.
37 He is not actually dependent upon alcohol and his own account is that he substantially merely conforms to social expectations. Apart from this man's driving while adversely affected by alcohol and drugs, which squarely reflects his psychological immaturity in my view, there do not seem to be relevant psychiatric factors immediately pertinent to the offending."
38 Mr Ritchens, in order to rehabilitate yourself you should undertake a course of alcohol and drug abuse counselling as soon as possible. Mr Ritchens, you have two prior court appearances and further you have received two traffic infringement notices, one of which was for drink driving. The other was for exceeding the speed limit in excess of 50 kilometres per hour.
39 Your counsel, Mr Alldis, further reveals that you have to return to the Wangaratta Court on other outstanding criminal matters that are listed in February of next year. Mr Ritchens, you have heard the learned prosecutor, Mr Moore, read into the transcript of this court hearing the victim impact statement of the deceased's father, a Mr Bill Power.
40 It is painfully obvious that the deceased's parents are struggling with their son's death as their son regularly attended upon them and assisted them. Mrs Power, the mother, is now old and frail. Both parents are finding it hard to come to terms with the loss of their son. Your counsel, Mr Alldis, very correctly raises the issue of delay. It is now over four years since the dreadful collision occurred.
41 I assure you that I take into account the delay that has occurred. This offending occurred, as I have said, some time previously and some of it is down to you, that is the length of the delay. Nevertheless there has been delay. Mr Justice Habersberger in the case of R v. Tezer and R v. Davis 2007 VSCA 123 handed down on 13 June 2007 analysed many cases touching upon delay.
42 His Honour quoted many cases as I have just said, one of which was R v. Miceli 1998 4 VR 588. Mr Justice Tadgell said in that case:
"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of the charge should work in the favour of the prisoner being sentenced. Most particularly is the mater of delay between the commission of an offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect. It is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life."
43 Later in the same decision Mr Justice Habersberger quoted the President of the Court of Appeal, Mr Justice Maxwell. Mr Justice Maxwell in the case of R v. Merrett, Piggott and Ferrari said this:
"On a proper analysis the significance of delay as the sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. The relevance of the delay lies rather in the effect which the lapse of time however caused has on the accused. Delay constitutes a powerful mitigatory factor, in particular it focuses attention on issues of rehabilitation and fairness."
44 Merrett, Piggott and Ferrari is to be found at 2007 14 VR 392. Again I assure you I take into account these principles. You have indeed moved on in terms of continually being employed over the last three or four years. As Mr Alldis said you continue to work as a plasterer and you completed your last subcontracting position only days before this plea hearing.
45 Mr Ritchens, in this state, that is the State of Victoria, and I am sure throughout Australia, fatalities occur daily upon our roads. The media in all forms reports every day all too often that tragic consequences of irresponsible driving causing the death of innocent road users. Your behaviour on this night is to be denounced in the strongest of terms.
46 Stand up please. The Sentencing Act provides sentencing guidelines for the assistance of any court in sentencing offenders. I remind you briefly the purpose for which sentences may be imposed, are to punish an offender such as yourself to an extent and in a manner that is just in all the circumstances.
47 Secondly the principles of specific deterrence and general deterrence are to be considered so as to deter you and others from committing offences of the same or similar character. Both specific deterrence and general deterrence are important in these circumstances. In this instance the prosecution submits that you are an appropriate vehicle for both specific deterrence and general deterrence.
48 The court is conscious of the needs for rehabilitation as I have already mentioned and I have quoted from Dr Walton's report who recognised your need to attend to your consumption of alcohol so as to behave responsibly. You must, as I indicated earlier, attend alcohol and drug counselling. This set of circumstances is a particularly bad case of culpable driving.
49 On Count 1 you will be convicted and sentenced to be imprisoned for a period of six years. On Count 2 you will be convicted and sentenced to be imprisoned for a period of 12 months. Three months of this sentence is to be cumulated with the sentence imposed on Count 1.
50 You are to serve a minimum term of four years and six months before being considered as eligible for parole. Pursuant to s.18 of the Sentencing Act you are to be given credit for having served six days of imprisonment. Pursuant to s.89 of the Sentencing Act any licence to drive is cancelled. This is a mandatory order fixed by the government and parliament. You are disqualified from obtaining any licence for a period of three years.
51 Pursuant to s.6AAA had it not been for your plea of guilty I would have imposed a sentence of eight years imprisonment with a minimum term of six years to serve.
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