Director of Public Prosecutions v Ritchie
[2023] VCC 2106
•15 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02099
CR-23-00396
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V MEGGAN RITCHIE |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2023 | |
DATE OF SENTENCE: | 15 November 2023 | |
CASE MAY BE CITED AS: | DPP v Ritchie | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2106 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Dangerous driving causing death, category two offence, mandatory custodial sentence, high moral culpability, plea of guilty, prior traffic offences.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Drugs, Poisons and Controlled Substances Act 1981 (Vic), Bail Act 1977 (Vic).
Cases Cited: DPP v Lombardo [2022] VSCA 204; DPP v Neethling [2009] VSCA 116; Stephens v the Queen [2016] VSCA 121; Spanjol v The Queen [2016] VSCA 317; George vThe Queen [2017] VSCA 152; Arpaci v The Queen [2020] VSCA 81; Pan v The Queen [2020] VSCA 42; Worboyes v The Queen [2021] VSCA 169; Barbaro & Zirilli v The Queen [2012] VSCA 288; R v Verdins & Ors [2007] VSCA 102; Akoka v The Queen [2017] VSCA 214.
Sentence: Total effective sentence of three years and six months with a non-parole period of 26 months. Conviction and fine of $500. Licence cancelled and disqualified for two years and six months. 6AAA: 5 years with a non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Borg | Office of Public Prosecutions |
| For the Offender | Mr M. McGrath | Galbally & O’Brien |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1.Meggan Ritchie, on 30 December 2021 your dangerous driving caused the death of 76-year-old Julie Barnes. Mrs Barnes had been walking near her home on Catherine Street, McCrae at about 11.30 that morning when you crossed onto the wrong side of the road and struck her from behind causing catastrophic injuries. Mrs Barnes was airlifted to hospital and died just after 5.00 pm.
2.Mrs Barnes was a wife, mother, grandmother, friend and much-loved member of her community. Lest there be any doubt about it, Mrs Barnes was fit and healthy and enjoying life. Her sudden and violent death has caused untold grief to all those who loved her.
3.Of course, Mrs Barnes and her friends and family are not the only ones impacted by your driving on that day. Your life and the lives of those who care for you, including your daughter, will also never be the same. At age 29 you will have to serve a term of imprisonment. That sentence will end in due course, but the knowledge of what you did on that day will endure forever.
4.Immediately after the collision you stopped your car and checked on Mrs Barnes. You then returned to your car and waited whilst other people, including ambulance paramedics, attended to her. When police arrived, they spoke to you through your car window in a conversation captured on a body‑worn camera. You appear distraught on that video. Your five-year-old daughter, Isabella, was in the back seat. You said that you had just turned into Catherine Street on your way to an appointment when your daughter asked you for an asthma puffer. You said you were searching for the puffer and not looking at the road when you hit Mrs Barnes.
5.The police took you to Rosebud Hospital where a blood sample was taken at 1.40 pm, approximately two hours and 10 minutes after the collision, and then to Rosebud police station for interview. After being told you would be subjected to a pat down search you produced a syringe and ice pipe from your bra and later a small container of liquid 1,4 butanediol from your underwear. When you were finally interviewed at about 6.00 pm you essentially repeated what you told the police at the scene.
6.You said you were distracted when you turned into Catherine Street because your daughter had been sick with asthma and started coughing. You asked her if she needed her asthma puffer and she said she did. You reached over the passenger seat to your handbag, looked up and then looked in the glovebox and then the centre console for her puffer whilst you were driving. You were looking down in the centre console when you hit Mrs Barnes and did not see her at all. You admitted possession of the glass pipe and the 1,4 butanediol, (although you referred to it as GHB), and to hiding them after the collision. You said you last smoked methylamphetamine a few days ago. You apologised for what you had done, saying: 'Just I'm sorry, sorry for her family, I'd do anything to go back.'
7.After the interview you were charged and released on bail. It appears the only charge at that stage was dangerous driving causing serious injury.
8.On 18 January 2022 the analysis of your blood sample was completed revealing the presence of methylamphetamine at 0.6118 milligrams per litre.
9.On 28 June 2022 you offered to plead guilty to a charge of dangerous driving causing death, but the offer was rejected by the prosecution. On 10 November 2022, following a contested committal in which the informant and forensic physician gave evidence, you were committed for trial to this court on charges of culpable driving causing death, dangerous driving causing death, dangerous driving causing serious injury and possession of butanediol. The main issue at committal was the effect of methylamphetamine on your capacity to drive.
10.The matter resolved just as your trial for culpable driving was due to start when the prosecution agreed to accept your plea offer. This followed consultation between the prosecution and defence experts on the effect of methylamphetamine on your driving and the production of a joint report.
11.On 9 August 2023 you pleaded guilty to a single charge of dangerous driving causing death contrary to s319(1) of the Crimes Act 1958 and a single charge of possession of the butanediol contrary to s73(1) of the Drugs Poisons and Controlled Substances Act 1981. You also pleaded guilty to the related summary offence of contravene a conduct condition of bail contrary to s30A(1) of the Bail Act 1977.
12.The offence of dangerous driving causing death carries a maximum penalty of 10 years and a mandatory loss of licence of at least 18 months.[2] Further, the date of your offending means that a custodial sentence (not being one combined with a corrections order) is mandatory unless certain exceptions exist.[3] The possession charge has a maximum penalty of one year and/or a fine of 30 penalty units.
[2] Section 89 of the Sentencing Act 1991, the charges being ‘serious motor vehicle offences’ as defined by s.87P of that Act.
[3] Since 28 October 2018 Dangerous Driving Causing Death has been a category 2 offence subject to section 5(2H) of the Sentencing Act 1991.
13.The bail offence charge is punishable by a maximum penalty of 30 penalty units or three months.
14.The plea hearing proceeded before me on 9 November 2023, and it now falls to me to sentence you for your conduct. Your counsel, Mr McGrath, quite properly conceded that none of the exceptions to the requirement that I impose a custodial sentence on the dangerous driving causing death charge were made out and that therefore the only available sentence was a term of imprisonment involving a non-parole period.
15.In arriving at an appropriate sentence, which in your case really means the length of the term of imprisonment, I am required by law to have regard to a variety of sometimes conflicting factors.[4] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves in order to arrive at a just sentence.
[4] Section 5(2) of the Sentencing Act 1991.
Circumstances of offending
16.It is necessary to set out the circumstances of the collision in more detail.
17.Catherine Street is a two-way undivided road with no road markings. The gutters adjoin the nature strips and there are no footpaths. It is a relatively narrow street in a residential area with a default speed limit of 50 kilometres per hour.
18.Police Major Collision Unit reconstruction indicated that at the time of impact Mrs Barnes was walking on the road no more than 1.1 metres from the western gutter of Catherine Street between the driveways of numbers two and four. The reason she was walking on the road itself is explained by the fact the nature strip between those two houses was heavily vegetated. She was walking southwest, in the same direction you were travelling and facing oncoming traffic. You struck her with the front right (drivers) side of your car at an estimated speed of between 44 and 50 kilometres per hour. Mrs Barnes was lifted up onto your bonnet and came to land outside number 4. Nothing about the scene, the weather, or the condition of your car explained why you were on the wrong side of the road. You were driving a Hyundai registered to your mother.
19.It is agreed between the parties that what you told the police about being distracted by looking for your daughter’s puffer prior to colliding with Mrs Barnes is what happened and that is the basis upon which I will sentence you. It is noteworthy that you said the same thing to a witness at the scene and that your daughter separately confirmed your account.[5]
[5] Your daughter participated in a VARE with your consent.
20.Whilst none of the police who attended the scene, the doctor who declared you fit to be interviewed, or the nurse who took your blood sample noted that you appeared to be drug affected, it is also agreed between the parties on the basis of the joint prosecution and defence expert report that:
(a) you had used methylamphetamine at some point prior to driving;
(b) your blood concentration of methylamphetamine was high;
(c) at the time of the collision, you would have been experiencing some methylamphetamine-related effects;
(d) ‘from the drug concentration alone it cannot be determined whether [you were] experiencing the stimulatory effects of the drug or the effects more consistent with fatigue and tiredness etc based on available evidence’. [6]
[6] Compiled on 7 August 2023 by Dr Schreiber (forensic physician) and Dr Robertson (pharmacologist and forensic toxicologist), both of whom had previously prepared separate reports.
Background and personal circumstances
21.I turn now to your personal circumstances. These were outlined in defence submissions, and the various reports, character references and letters tendered on your behalf.
22.You are now 29 years old. You were 27 at the time of the offending. You were born in Queensland and moved to Dromana in Victoria when you were three. You are the youngest in a sibship of four. Your parents separated when you were six years old. Initially you alternated between them, which was challenging because of their different approaches to parenting. By the start of secondary school, you and your older sister lived full time with your mother whilst your brothers lived full time with your father who you recall as being strict.
23.Your mother was a heavy user of alcohol, and you recall that there were ‘no rules, no parenting’. Your relationship with your stepfather was poor and you describe him as being psychologically abusive towards you. You were estranged from your father for most of your secondary schooling because of the acrimonious end to your parents’ relationship, but you are now close to him. Indeed, you have been living with him for some time and he is a great support to you and your daughter.
24.You were apparently sexually assaulted when you were 13 years old but told no-one at the time and have only recently told your family. I have no details about this incident.
25.You struggled at school and did not complete Year 12. You found it hard to focus and stay on task and complete schoolwork. You had trouble establishing a friendship group and you were bullied by other students.
26.Between 2011 and 2020 you worked variously in retail, real estate and hospitality. In 2015 you obtained some form of certification from the Real Estate Institute of Victoria and thereafter worked as a receptionist and property stylist. You have not undertaken any paid work since the COVID-19 pandemic, instead receiving parenting payments through Centrelink.
27.You have had two long term relationships. The first from 2012 to late 2016 was with Christopher Breen, the father of Isabella, who was born in 2016 when you were 22. This was an abusive relationship which came to the attention of the Department of Families, Fairness and Housing, presumably Child Protection. Mr Breen was a significant drug user and in 2021 he assaulted you in front of Isabella. He was sentenced in the Magistrates Court to a term of imprisonment for that assault and there is a current intervention order against him and in favour of you and Isabella.
28.The second, from 2017 to 2021, was with Kyle Ottobre and you and Isabella lived with his family for a time. After this relationship ended you and Isabella moved in with your mother but things were not entirely smooth. You were homeless for a time in mid-2021, receiving emergency accommodation and placing Isabella in the care of her paternal grandmother as a temporary measure.
29.In terms of your substance use, you have a history of binge drinking and heavy cannabis use, but no longer do either of those things. You have experimented with amphetamines, ecstasy, and cocaine but the main issue is your methylamphetamine use. You started using that drug in 2019. At first it was only occasionally but after your relationship with Mr Ottobre ended you started to use more. You also started using GHB from late 2021.
30.One would have hoped the experience of causing Mrs Barnes death, being interviewed and charged, would have convinced you to stop using drugs, however, instead you started using methylamphetamine and GHB more heavily. In your words, you were ‘on it all the time’. Even the fact you were bailed on condition that you not possess or consume a drug of dependence did not deter you. On 1 February 2022, less than five weeks after the collision, you tested positive for amphetamine, methamphetamine, MDA, and ecstasy.
31.This positive drug screen led to you being charged with the related summary offence, Charge 7, and also to Child Protection intervention. Isabella was placed in the care of your mother and you had to move out of the home. The separation from Isabella was traumatic but at least seemed to provide the impetus for you to stop using drugs.
32.On 14 February 2022 you voluntarily entered the Hader Clinic, a residential drug rehabilitation program in Geelong and on 15 March 2022 you moved to the secondary care program at the clinic’s Essendon facility, where you completed a two-month program. You went on to enrol in a community services diploma and importantly maintained contact with the Hader clinic, volunteering twice a week at Essendon for approximately seven months between May and December 2022 and also producing clean urine drug screens.
33.On 7 July 2022 you were referred to an organisation called Taskforce by Child Protection to receive further alcohol and drug counselling as part of a reunification plan with Isabella. You had four sessions of counselling. You also attended Narcotics Anonymous meetings.
34.In late 2022 you returned to the Essendon clinic as a resident, not because you had relapsed but because you were finding it difficult to abstain. After five weeks, you moved out and in with your father where you have lived ever since. He funded all your treatment at the Hader clinic, a total of about $45,000. In January 2023 Child Protection allowed you to care for Isabella unsupervised.
35.You maintain that you have abstained from illicit drugs since your entry into the Hader Clinic in February 2022, and there is nothing to suggest otherwise. You told Dr Borg that 'too much will go wrong if [you] use again'.
36.You have not driven since this offence as your bail conditions prohibited you from doing so. This makes you heavily reliant on your father, who drives Isabella to and from school. You do not socialise much and care for Isabella when she is home.
37.You have limited contact with your mother and her partner but hope your relationship will improve especially as they recently bought a home in the same street as your father. You are also working to rebuild your relationships with your siblings which were strained by your drug use and offending. You speak to your sister regularly on the phone and your brothers come to visit you.
38.Your plan is for your daughter to live with your father when you are imprisoned. This will allow her to remain in the same home and stay at the same school, where she is currently in year one. The school is aware of your circumstances. Isabella also now has weekly supervised access visits from her father.
39.As far as your mental health is concerned, after Isabella was born you experienced depression, anxiety, and obsessive-compulsive behaviour. You saw a psychologist, who prescribed Effexor, an antidepressant, however, you stopped taking it after a year, preferring to rely on illicit substances. More recently you commenced psychotherapy and completed four one-hour sessions. You have also attended general practitioner Dr Hammond since January 2023 and have seen her on six occasions for medical and psychological issues. You are currently on Venlafaxine for depression.
40.Clinical neuropsychologist Dr Linda Borg assessed you on 10 October 2023 and provided two reports to the court dated 11 October 2023 and 30 October 2023. Dr Borg had access to an earlier report completed by a psychiatrist, Dr Kahn, on 11 August 2023. Dr Kahn’s report was not tendered, however, according to Dr Borg he diagnosed you with:
'Major depressive episode (moderate), ADHD-inattentive type, PTSD "residual symptoms" and a history of polysubstance abuse "now in remission".'
41.Dr Borg agreed with these diagnoses. She also assessed your IQ as 91. As to whether your psychological profile contributed to the offending, she opined that:
'Ms Ritchie's decision-making skills are not appreciably impaired. Therefore, she can effectively reason, adapt behaviour, plan and problem solve enabling considered, flexible and controlled decision making. She does struggle to consistently maintain her focus and can be behaviourally impulsive, meaning she may have a propensity to be more easily distracted in light of her ADHD diagnosis. However, this has not overtly impeded driving performance prior to the current incident and on balance, it does appear that acute contributors more likely influenced her behaviour, namely being distracted by her daughter's care needs and potentially, methamphetamine use. Ms Ritchie's mood disturbance is not considered a contributing factor.'
Objective Gravity of your offending and moral culpability
42.Two factors of central importance in determining your sentence are the objective gravity of your offending and your moral culpability.
43.Causing the death of another person by driving dangerously is inherently serious. The sentencing mandates applicable to the offence make that perfectly clear as does its maximum penalty of 10 years.
44.The offence covers a wide range of conduct from momentary inattention to intentional risk-taking behaviour, but always involving a serious breach of the proper management or control of a vehicle so as to be in reality – not just speculatively – potentially dangerous to others. The driving must be such as to expose the public to some risk over and above that ordinarily associated with the driving of a vehicle, including by persons who sometimes drive with less than due care and attention.[7]
[7] DPP v Lombardo [2022] VSCA 204 at [35] to [37], citing Georgiou v The Queen [2022] VSCA 172.
45.The essence of the offence is not just the dangerousness of the driving but that dangerousness in association with the taking of human life.[8]
[8] DPP v Neethling [2009] VSCA 116 at [29], adopting an unreported 1997 NSW case of R v Musumeci.
46.In assessing offence gravity and moral culpability the extent of the risk posed by the driving, the potential harm from that risk, the objective dangerousness of the driving and the driver's state of mind are all relevant.[9]
[9] See Stephens v the Queen [2016] VSCA 121 at [20] and DPP v Neethling [2009] VSCA 116.
47.The dangerousness of your driving is agreed to comprise you driving with a high level of methylamphetamine in your blood, namely 0.6118 milligrams per litre, such that you would have been experiencing some effects from the drug and further that on two separate occasions just prior to the collision you took your eyes off the road to look for your daughter’s asthma puffer. The first was when you looked in your handbag and the second was when you looked in the glovebox followed by the centre console.
48.Whilst the precise duration that you were distracted is not known, it is agreed that it was more than momentary. You told the police in your interview that once you turned into Catherine Street you noticed a more than usual number of cars parked on the side of the street and also saw a family out walking. You described pulling out to pass the parked cars on your left. Both the family you saw and the parked cars you described are visible on CCTV footage obtained from the scene. The significance of this is that it indicates you were paying attention at the time you made those observations but also and on the other hand, it indicates that you knew that the situation of cars being parked on a narrow road and the possibility of people wandering about, required your utmost attention.
49.Ms Borg submitted that yours was a serious example of the offence of dangerous driving causing death whereas Mr McGrath submitted that it was mid-range and referred to the absence of a number of aggravating factors in support of his argument. The fact that it is possible to envisage worse case scenarios does not detract from the gravity of what you did.
50.You knew you had consumed methylamphetamine in the days leading up to your driving and even if you did not know that you were still affected by the drug you could not have known that you were not. You were prepared to take the risk of driving whilst possibly affected by methylamphetamine with your young daughter in the car. You then chose to continue driving whilst searching for your daughter’s asthma puffer. It would have been so simple to pull over, if not immediately, then certainly when it became obvious that the puffer was not easily found. That was the safe and obvious thing to do. Instead, you rummaged around first in your handbag, then in the glove box and then in the centre console, only looking up once whilst doing so.
51.This was not simple inattention or misjudgement, it was a deliberate decision by you to do each of those things whilst driving. Not only did each search require you to take one hand off the steering wheel, you actually had to lean over to the passenger seat to search your handbag and the glovebox. In any driving situation this would have been dangerous behaviour, both because of the potential to lose control in a physical sense, but also because of the loss of concentration on the road ahead. It was especially dangerous in a narrow residential street with cars parked on the side and pedestrians in the area. The consequences of your actions were tragic and completely avoidable.
52.When one adds to the equation the fact that you were actually affected in some way by the high level of methylamphetamine that was in your system, the conclusion is inescapable that your offending is above the mid-range on the spectrum of seriousness for the offence. All road users have a duty to drive responsibly and safely. You should have been especially vigilant to do so given your prior driving history of driving whilst disqualified and driving whilst suspended, not to mention the fact that you had your five-year-old daughter in the car with you. It was not submitted that there was anything about your personal circumstances or mental health to reduce your moral culpability and I consider it to be high.
53.Finally, I do not accept Mr McGrath’s submission that the gravity of your offending or your moral culpability is lessened in some way because Mrs Barnes was walking on the road. I consider the line of authority to which he referred to be inapplicable to the circumstances of this case.[10] In particular, I do not consider Mrs Barnes materially contributed to her own death. She was walking on the road in bright daylight just next to the gutter facing oncoming traffic in the quite reasonable expectation that it was safe to do so.
[10] See Spanjol v The Queen [2016] VSCA 317, George v The Queen [2017] VSCA 152 and Arpaci v The Queen [2020] VSCA 81. Although not couching it in terms of offence gravity, those cases establish that the existence of an additional factor outside the control of an offender which was also a material cause of the death should ordinarily result in a reduction of penalty. Whether it is said to lessen the objective gravity of the offence or constitute a separate mitigating factor the effect is the same. See also Pan v The Queen [2020] VSCA 42, where an external factor, being an unsafe intersection, was held to reduce moral culpability.
Current Sentencing Practices
54.In arriving at an appropriate sentence for you I must have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. The rationale for this is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
55.Since the offence of dangerous driving causing death was introduced into the Crimes Act in 2004 its penalty has changed several times reflecting Parliament’s view of its seriousness.
56.First, in March 2008 the maximum penalty was increased from five to 10 years. Then, on 28 October 2018 it became a Category 2 offence meaning that it was subject to a form of mandatory sentencing whereby offenders had to receive custodial sentences, not in combination with corrections orders, unless certain exceptions existed. On the same day the exceptions were tightened in several respects making it even harder to avoid the mandatory dictates.[11]
[11] Since 28 October 2018, any special circumstances relied upon to constitute an exception to mandatory sentencing must not only be ‘substantial and compelling’ so as to justify the imposition of a non-custodial sentence, but also ‘exceptional and rare’. Further, the Sentencing Act says that in determining whether such circumstances exist a court must regard general deterrence and denunciation as having paramount importance, give less weight to an offender’s personal circumstances, disregard certain other mitigating factors (previous good character [except absence of prior criminal history], early plea of guilty, prospects of rehabilitation and parity) and consider Parliament’s intention that the offence should ordinarily attract a custodial term.
57.Even prior to mandatory sentencing our Court of Appeal had made it clear that non-custodial sentences for offences of dangerous driving causing death should be exceptional and that courts were, in essence, sentencing too leniently for the offence.[12] Only cases of low moral culpability such as momentary inattention or misjudgement were regarded as suitable for non-custodial dispositions. Thus, even if one of the exceptions to the mandatory sentencing regime is made out, it may still be appropriate to impose a custodial sentence on ordinary sentencing principles.
[12] Stephens v The Queen [2016] VSCA 12 at [21] referring to DPP v Oates (2007) 47 MVR 483 which noted that except in cases of low moral culpability, such as momentary inattention or misjudgement, custodial sentences will usually be appropriate. Also DPP v Neethling (2009) 22 VR 466, 472 at [29].
58.As I have already indicated, because your offending occurred after 28 October 2018 you are subject to the mandatory sentencing scheme. Whilst it is not being argued that an exception applies in your case, it is still important to understand the chronology of Court of Appeal pronouncements and legislative changes because the timeline is relevant to any consideration of sentencing practices.
59.For example, the most recent Sentencing Advisory Council Statistics for the offence of dangerous driving causing death cover sentences imposed between 1 July 2016 and 30 June 2021 and therefore include offences committed prior to the offence becoming a Category 2 offence. For what it is worth those statistics indicate that approximately 55 per cent of people sentenced over that period received an immediate term of imprisonment ranging in length from several months to 6.25 years with two to three years being the most common term. The next most common sentence, at approximately 40 per cent, was a community corrections order. The statistics would also include sentences imposed during the COVID pandemic with the combined shortening effect of the Worboyes’[13] principle and the increased burden of imprisonment during the pandemic.
[13] Worboyes v The Queen [2021] VSCA 169 at [39].
60.Of more use than statistics are comparable cases. I was referred to a number of sentences by both parties, some County Court and some Court of Appeal decisions. There were some similarities to your case but also many differences. Some cases involved offenders with drugs in their system, some were cases of inattention or fatigue or combinations of those factors. Obviously, every instance of dangerous driving causing death is different as are the circumstances of every offender. Further, many of the cases were pre‑mandatory sentencing. I have had regard to all the cases to which I was referred conscious that my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending and circumstances of your victims
61.I am required to take into account the impact of your offending on your victims and their personal circumstances.[14]
[14] Section 5(2)(daa), (da) and (db).
62.A total of four victim impact statements were tendered and read aloud by the authors at the plea. These were statements from Mrs Barnes’ husband, John Barnes, her children, Mark and Sara Barnes, and her granddaughter, Ava Barnes.
63.John Barnes described his wife as healthy and energetic and much loved. He said 180 people attended her funeral and he received a further 129 commiseration cards and flowers. He said they celebrated their 50th wedding anniversary only a few months before Mrs Barnes' death and he misses her terribly every day, particularly at night.
64.Sara Barnes spoke of her mother’s joy and passion for life. She explained that her mother was the leader and anchor of the family. She described the profound impact that her mother’s death has had on her, not only that she died, but the way that she died. She outlined her worries about her father and her sadness that he has lost his companion of so many years so late in his life. She also feels immense sadness that her two young sons have lost their Oma, whom they adored. She spoke of how her personal relationships have been affected as well as her physical and emotional health. She said she is plagued by memories when she visits her father in McCrae. Sara also included a series of photographs showing just how much her mother enjoyed her family.
65.Mark Barnes likewise described the impact of his mother’s sudden and traumatic death. He described family moments she has missed and said he misses sharing the achievements of his children with her. He now understands the role she played in the care of his father, and it is apparent the enormous sadness that pervades his father’s life. He described sitting with his mother at the Alfred Hospital, holding her hand and hugging her, and the huge sense of anguish and numbness he felt. He feels that his family has been significantly diminished.
66.Ava Barnes, Mark Barnes’ daughter, said that her Oma was an incredibly important person to her, and she detailed the things she will miss and no longer experience after her death. She misses telling her Oma about her day and hearing about her life and noted that her family holidays will always have an empty seat at the table. She will always regret that she never got to say goodbye.
Plea of Guilty, co-operation and remorse
67.You are entitled to a significant discount in your sentence for your plea of guilty which I treat as an early plea given you offered to plead to that charge in June 2022.
68.In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. Moreover, I accept that your plea of guilty is accompanied by genuine remorse and that you get the benefit of the Worboyes principle because of the timing of your offer. Both of those matters entitle you to an even greater discount.[15]
[15] Worboyes v The Queen [2021] VSCA 169 at [39].
69.The courts have made clear that true remorse is not anxiety at the prospect of being punished nor simply regretting one’s conduct. True remorse involves a desire to make amends and a determination to change one’s behaviour.[16] You have never resiled from taking responsibility for the death of Mrs Barnes or accepting punishment for it. You apologised in your record of interview and have continued to express remorse ever since, even writing a letter which was tendered at your plea. Often such letters can be painful for victims who view them as too little and too late and an attempt to garner sympathy. However, in your case I do accept that your letter was genuine. Whilst it is concerning that you continued to use drugs for a time after the offending you have since demonstrated a commitment to change. Whether you will be able to maintain that commitment of course remains to be seen.
[16] Barbaro & Zirilli v The Queen [2012] VSCA 288 at [36].
Your character and risk of reoffending
70.I turn now to your character and risk of reoffending.
71.I received five character references from your family and friends, specifically your father Damian Ritchie, your brother Brent Ritchie, your aunt Maureen Ritchie, your friend Jessica Ballingall and the mother of another friend, Sonja Simmonds. They describe you as caring and kind-hearted, and as a loving and committed mother. They speak of the remorse and devastation you feel, as well as your efforts at rehabilitation since Mrs Barnes’ death. It is clear from these letters that you have ongoing support from your extended family and friends, many of whom attended court for your plea.
72.Mr McGrath submitted that your prospects of rehabilitation were excellent. I am afraid I cannot agree. The support you have from your family and friends, particularly your father, does bode well for your future. Your remorse and your efforts and desire to remain drug free likewise.
73.On the other hand, your prior criminal history and your history of drug use is worrying.
74.In 2020 you were fined for wilfully damaging property during an argument with Christopher Breen’s mother. More significant are your driving offences. Between 2018 and 2019 you drove whilst your authorisation was suspended three times and drove once when you were disqualified. In 2020, you contravened the community corrections order that was imposed in June 2019.
75.I would not go so far as to say that this history demonstrates an attitude of continued disobedience to the law, but it hardly instils confidence. The concern is compounded by your continued, even increased drug use after this offending. You have now been drug free for about 21 months, which is to your credit, but there is still a long way to go.
76.Relevantly Dr Borg said this:
'While she can be behaviourally impulsive, from a cognitive perspective Ms Ritchie is capable of moderating behaviour and responses. Responses to questioning reveal adequate awareness of her current predicament and factors contributing to same. Hence, insight and judgment are preserved.'
77.As best I can determine, taking into account your protective and risk factors I consider your prospects of rehabilitation to be reasonable to good.
Akoka time
78.To the extent the more than four months you spent in the Hader clinic was punitive in nature you are entitled to a reduction in sentence. This is called Akoka time based on a case by that name. It does not operate the same way as pre-sentence detention. The one month at the Geelong clinic was more onerous than the other three months as you were allowed little outside contact and your days were highly structured with psychotherapy, group therapy, and attendance at Narcotics Anonymous and Alcoholics Anonymous. The Essendon program had more of a reintegration focus, but still required you to attend and participate in meetings and random drug screens. Based on the material before me and the fact that your attendance was completely voluntary, I consider that you are entitled to a reduction, but only a small reduction, in sentence as a result of your time at the Hader clinic.
The burden of imprisonment
79.In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. Relying on Dr Borg’s two reports, Mr McGrath submitted that Limbs 5 and 6 of a case called Verdins applied in your case with the consequence that your sentence should be reduced. Limb 5 is concerned with whether a sentence would weigh more heavily on you than a person of normal mental health and Limb 6 is concerned with the serious risk that your mental health will decline in custody. I do not consider that Dr Borg’s opinion goes far enough to enliven either of those limbs. What she said is as follows.
80.In her first report, and I quote:
'Ms Ritchie's ADHD diagnosis is not likely to make imprisonment more onerous or result in deterioration in cognition. Rather, it is anticipated that the inherent structure of this environment would likely alleviate the burden on attentional and memory systems, given it provides a predictable daily routine. Concerningly, Ms Ritchie continues to display a significant degree of mood disturbance, despite pharmacological intervention and psychotherapy - with prominent shame and low self-worth evident, which appear to have intensified as a reaction to the accident and its associated consequences. Hence, the possibility Ms Ritchie may experience further psychiatric decompensation secondary to incarceration cannot be discounted.'
81.In her second report, which was generated in response to a specific question by the solicitors acting on your behalf, Dr Borg said as follows:
'In response to your additional query regarding whether incarceration would be more onerous for Ms Ritchie in light of her major depressive disorder, it is considered that the severity of her mental health disturbance may mean that a custodial term weighs more heavily on her, relative to someone of normal health. Furthermore, as per my original report, there is an elevated risk of imprisonment adversely impacting her mental health and resulting in worsening of her depressive symptoms.'
82.Putting aside the difference between her opinion in the first and second reports, the highest it gets is that there is an elevated risk that your depression will get worse. This is not the same as ‘a serious risk of imprisonment having a significant adverse effect on [your] mental health’ to use the words of Verdins.
83.That said, I accept that facing prison for the first time is hard for anyone and that you will find it especially difficult because of your concern for, and separation from, Isabella, even though there seems no doubt she will be well cared for. I also take into account your depression and the risk it will get worse in a general sense.
84.Finally, I accept that you are being imprisoned in a time of some uncertainty because of Covid, and although it seems increasingly unlikely, it is possible that restrictions may be reimposed by prisons with the consequence that prison would once again be more onerous.
Purposes of Sentencing
85.Under the Sentencing Act 1991 the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
86.Generally, a court must not impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. In the case of the offence of dangerous driving causing death those principles, being the principles of proportionality and parsimony, are qualified by the terms of the mandatory sentencing scheme.
87.The importance of general deterrence and denunciation in sentencing for offences of dangerous driving causing death have been repeatedly emphasised by the courts and are now enshrined in the Sentencing Act by virtue of the provisions prescribing the manner of determining whether there are substantial and compelling circumstances justifying a non-custodial or combination sentence.[17] Members of the community must understand that if they drive dangerously, with consequent loss of life or serious injury, significant punishment will follow.
[17] That is, in making that determination general deterrence and denunciation must be regarded as of paramount importance, less weight given to personal circumstances, other mitigating factors disregarded, and Parliament’s intention be considered.
88.Further, the sentence must manifest the community’s disapproval of dangerous conduct which results in the loss of human life. Such conduct not only harms the innocent victims, it harms the community as a whole.
89.Less significant but still necessary in your case is the need for my sentence to specifically deter you from driving irresponsibly again and to protect the community.
90.Your continued rehabilitation is also important. Indeed, it is the best way to protect the community. I intend to allow for your rehabilitation by setting as low a non-parole period as possible consonant with the seriousness of your crime.
91.Finally, my sentence must be just and take into account the mitigating factors I have outlined in detail.
92.Nothing I say or do can bring back Mrs Barnes or alleviate the pain and suffering of her friends and family. I cannot undo what happened that day. The sentence I impose is not to be taken as a measure of Mrs Barnes’ life, it is not. Her life was precious and no value can be placed on it. Rather, my duty is to impose an appropriate and just sentence at law taking into account all relevant matters and the applicable sentencing practices. That is what I now proceed to do.
93.Ms Ritchie, could you please stand.
Sentence
94.On the single charge of dangerous driving causing death I convict and sentence you to a term of imprisonment of three years and six months – that is 42 months. On the charge of possession of a drug of dependence, I convict and fine you $500. On the contravene conduct condition of bail, I convict and sentence you to one month imprisonment which I make wholly concurrent with the three years and six months.
95.In respect of that sentence, I set a non-parole period of two years and two months – that is 26 months. That non-parole period is the earliest time at which you can be released. It does not necessarily mean you will be released after 26 months; it is up to the Adult Parole Board as to when you will be released.
Mandatory License Disqualification
96.As you have pleaded guilty to a serious motor vehicle offence as defined in the Sentencing Act, I am obliged to cancel your licence and disqualify you from driving for at least 18 months on that offence. Notwithstanding you have not driven since the offending, in all the circumstances, including your prior driving history, I consider it appropriate to exceed that minimum. I cancel and disqualify you from driving for two years and six months effective from today. That means that if you are released after 26 months you will not be able to drive for four months.
Pre-Sentence Detention
97.I declare you have served no time in custody.
Section 6AAA
98.If you had not pleaded guilty to this charge and been found guilty by a jury, I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of three years.
Disposal order
99.The Crown have sought that I make a disposal order in respect of the drugs and drug paraphernalia that was found, and the clothing belonging to Julie Barnes. I will make that disposal order.
100.Ms Ritchie, do you understand the sentence I have imposed?
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