Director of Public Prosecutions v Robins
[2014] VCC 1003
•18 June 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-11-01745
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN ROBINS |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 16 June 2014 | |
DATE OF SENTENCE: | 18 June 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Robins | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1003 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea – dangerous driving causing death
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Crimes Amendment (Child Homicide) Act 2008
Sentence: Convicted and sentenced to two years’ imprisonment, of which twelve months is suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Connell | Lennon Mazzeo |
HIS HONOUR:
1 Stephen John Robins, you have been convicted by a jury of one charge of dangerous driving causing death, the maximum penalty for which is ten years’ imprisonment.[1]
[1]Section 319(1) of the Crimes Act 1958 was amended by s5 of the Crimes Amendment (Child Homicide) Act 2008 to increase the penalty for this offence from a maximum of five years’ imprisonment to ten years’ imprisonment.
Circumstances of offending
2 On 9 February 2010, you were driving your Holden Commodore along the Barnawartha-Howlong Road at Browns Plains. The day was clear and the natural light good. At some time after 3 pm, at a point where the road bends to the left, your vehicle drifted onto the wrong side of the road, and struck a vehicle coming in the opposite direction, driven by Mr Andrew Powell.
3 There is no eye witness account as to precisely how the collision occurred. There is no suggestion that you were affected by alcohol or drugs, and excessive speed played no part. I accept that you have no memory of the collision because of the trauma involved and the injuries you suffered. Possible explanations include that you drifted into fatigue or sleep, or failed to notice the bend in the road, or that you were distracted in some other way.
4 Whatever the reason, your actions have led to the tragic death of Mr Powell and to the irreparable loss to his parents and family. He was only 24 years of age at the time. Whatever I say here today and whatever sentence I impose, there will be little comfort to those people close to him. Your actions, or inactions, have resulted in the death of a young man, before he had the opportunity make his full impact upon the world in which he lived and worked. Barely a day will pass when his parents, friends, family and workmates will not think of him and of what he had achieved, and of what he was yet to achieve.
5 The jury determined that you were not guilty of the crime of culpable driving causing death and, as a result, were not satisfied that your driving involved gross negligence, which is defined to be driving that fell so far short of the standard expected of a reasonable person in the circumstances that prevailed, that it involved a high risk of death and deserved criminal sanction.
6 Instead, you were found guilty of the alternative charge of dangerous driving causing death, which meant that the jury was satisfied you were driving in a manner which was dangerous to the public, that is you drove in such a way that you created a real risk that those using the road would be killed or seriously injured.
7
In the course of the trial, the prosecution relied upon two parts of evidence to support either the principal offence of culpable driving causing death, or the alternate offence of dangerous driving causing death. The first was that of
Mr Joel Bilney who, in a statement to police, said that he had observed your vehicle crossing the centre line on a number of occasions, within several kilometres before accident. In contrast, however, in the course of his evidence before this court, he made no such allegation and said rather that your vehicle did not traverse the centre line. The evidence from his statement was said to be relevant as it showed a pattern of behaviour which could explain how the collision occurred.
8 Further, the prosecution relied upon the evidence of the police reconstruction expert, Sergeant Peter Bellion, who, considering the physical evidence obtained from the accident site and using his expertise to draw conclusions from that evidence, said Mr Powell took all reasonable steps to avoid the collision, including dramatically reducing his speed and swerving to the left. He further concluded that, in contrast, you took no evasive steps.
9 Mr Moore for the prosecution candidly submitted that, given the difference between what was said in Mr Bilney’s statement and the evidence before the court, I should have reservations about accepting what was said in his statement. I accept that submission and conclude there is no evidence which could persuade me, to the required standard, that your vehicle veered onto the wrong side of the road over the period before the collision and which showed a pattern of behaviour such as to explain what actually happened immediately before the collision.
10 For the purpose of assessing the extent to which your driving was dangerous and the nature of the risk it presented to other road users, I accept from the evidence, in particular the police reconstruction evidence, the following:
·The collision occurred when the vehicle in which you were travelling drifted onto the incorrect side of the road and struck the vehicle driven by Mr Powell, around the area of the fog line.
·The path of the drift of your vehicle onto the wrong side of the road occurred over a distance of about 100 metres, and over about four seconds.
·It is unlikely the collision arose as a result of you falling asleep, or due to fatigue, given the time of day at which it occurred, the relatively short distance that you had travelled that day, and your evidence that you had slept well the night before and were not tired.
·The collision arose as a result of you failing to see or take the relatively innocuous left-hand bend in the road and failing to see the vehicle driven by Mr Powell as it rounded that bend.
·The collision occurred as a result of a relatively short period of inattention or distraction.
11 The prosecution submitted, and I accept, that when regard is had to the degree of departure from the standard of care expected of a reasonable driver in the circumstances, and although the consequences of your actions were tragic, the offending itself should be categorised at the lower end of seriousness for conduct constituting this charge. Put another way, while your driving was dangerous and sufficiently so to create a real risk of death or serious injury, it could not be categorised at the upper level of dangerous driving, such as might be seen in cases involving driving at high speed, drag racing, executing high-risk manoeuvres, or driving when significantly affected by alcohol or drugs.
Prior criminal offending
12 You have been convicted of a range of driving offences going back to 1987. Those offences include unlicensed driving, exceeding the speed limit (seven convictions), dangerous driving, exceeding the prescribed alcohol limit (three convictions), and failing to stop after an accident. The last driving offence was in 2005. All of these offences were dealt with in the Magistrates’ Court, and you suffered fines and licence cancellations.
13 This offending indicates a clear lack of regard for the road rules and regulations. Although the penalties involved were modest, the offending is extensive and occurred over a lengthy period from 1986, when you were seventeen years of age, until 2005. I view this prior offending as of significance and take it into account in the sentence which I am about to impose.
14 Your prior criminal history also involves a range of separate offending, including various assaults, contravention of Domestic Violence Order and a drug offence. While relevant, I do not take these matters as significant in considering the sentence to be imposed.
Impact upon the family of Mr Powell
15
Victim impact statements of Mr Powell’s mother, Ms Cheryl Smith, and his step-sister, Ms Jenelle Williams, were read to the court. Each speak of the tragic loss of a close family member, of the impact of being told by police of his death, and of hopes and dreams not brought to fruition. Ms Smith spoke of the pain and anguish which has affected every facet of her life.
Ms Williams spoke of the torment and grief she has suffered, and missing, in particular, Mr Powell’s sense of humour.
16 Mr Powell’s father, Colin Powell, also provided a victim impact statement reflecting the loss and grief he has suffered. He spoke of the activities he and his son enjoyed together, that he had to resign his position as a supervisor at Uncle Toby’s because of the emotional trauma and distress, and as having been diagnosed with depression requiring medication. He said, “I love him and miss him every day and the things we did together.”
17 A further victim impact statement of Ms Emily Powell, Mr Powell’s sister, was tendered into evidence. She said that as a result of his death, she had suffered a severe grief reaction, overwhelming distress and despair. She spoke of the relationship, not only of herself with her brother, but also of her children. She has suffered depression which has required treatment by a psychologist. It has affected her work and her capacity to concentrate on her studies. Mr Powell was her only sibling.
18 I accept, without reservation, the enormous impact upon all of these persons of the loss of Mr Powell and that it is likely the despair and grief will continue, probably for the rest of their lives.
Factors personal to you
19 You were born in 1969 and are now 45 years of age. You left school partway through Year 9, at 15 years of age and worked in a sawmill. Your father died after a battle with cancer in 2012. Your mother, and various other members of your family were present to support you.
20 I was informed that you have a solid work history, although you suffered a significant back injury in 2002 which required surgery in 2008. You have not been working of recent years because of this injury.
21 You have been in a relationship with your de facto partner, Ms Jackie McCartney, for over 20years. You have three children, now aged 19, 16 and 14.
22 A number of witnesses gave character evidence on your behalf. Mr Robert Blackwell, who has known you for more than 30 described you as a family man, with your wife and children always a priority in your life. He said that you had suffered considerably over the past four years because of the car accident.
23 Ms Yvonne Robins, your mother, gave evidence. She had worked at Uncle Toby’s for about 20 years, but had left to look after her husband during his illness. She described you as a close family member, deeply affected by the consequences of the collision.
24 Ms Denise Ritchens gave evidence on your behalf. She is a family friend and has had a close relationship with you over the years. She described you as always being kind and generous and committed to your family. She said that every time she sees you, you talk about the accident, about the fact that you do not recall what occurred and the huge emotional impact upon you of the death of Mr Powell.
25 I was further provided with a reference from Major Bevis, who spoke of you as understanding the seriousness of your predicament. He said you were remorseful for what occurred and had an overriding concern for Mr Powell’s family.
Sentencing considerations
26 The purposes for which a court may impose a sentence are:
· Punishment, to an extent and in a manner which is just in all the circumstances;
· Deterrence, both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
27 In sentencing you, I must have regard to a range of matters, such as the seriousness of the offence, your responsibility for it, and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
28
Generally, I accept that you have expressed contrition and remorse for the fact that your driving caused the death of Mr Powell. Your remorse is evidenced by your clear distress in the course of the record of interview.
I further accept the evidence of the various witnesses called on your behalf who spoke of the impact upon you, of carrying the burden of Mr Powell’s death.
29 I accept, generally, you are a person committed to your partner and family and have done your best over the years to make proper provision for them. In particular, I was impressed by the evidence of Ms Ritchens, who said that every time she sees you, you talk of the accident, trying to work out what happened and were aware of the impact the death of Mr Powell has had upon his family.
30 Your prior traffic offences are a matter of concern. Although the last offence was in 2005, some five years prior to the collision, they nonetheless reflect scant regard for the rules and regulations which require people in this state to drive in a safe and sensible manner. You have been convicted for speeding on seven occasions and for exceeding the prescribed alcohol limit on three occasions. You have been convicted of dangerous driving, although that conviction is now 24 years old. This offending is significant as a sentencing consideration, as it marks you as a person different from one who caused the death of another motorist, but has an otherwise unsullied driving record.
31
I accept the submission of the prosecution that your offending is at the lower end of the sort of conduct constituting dangerous driving causing death.
I accept that the offending occurred in the course of a lapse of attention over a relatively short period, and although the consequences were drastic, the “dangerousness” of the offending was not brought about by reprehensible conduct, including that involving dangerous manoeuvres on the road, speed or alcohol.
32 Mr Moore submitted that a term of imprisonment was appropriate in the circumstances, although it was a matter for the court to determine how and in what manner such a term should be served. Your counsel did not disagree with the submission, but said that any term of imprisonment to be served should be relatively short.
Sentence to be imposed
33 Taking into account all of the matters to which I have referred, I impose the following sentence.
34 On the charge of dangerous driving causing death, you are convicted and sentenced to a term of imprisonment of two years. 12 months of that sentence will be suspended for a period of 12 months. This means you will be required to serve an immediate term of imprisonment of 12 months.
35 At the end of that period, if you commit any offence for which you could be imprisoned over the next 12 months, you will be brought before me, and unless there are exceptional circumstances, you will be required to serve a further term of 12 months’ imprisonment.
36 Further, pursuant to the provisions of s.89 of the Sentencing Act 1991, any licence you hold to drive a motor vehicle in Victoria is cancelled and you are disqualified from obtaining such a licence for a period of four years from this date.
37 HIS HONOUR: Yes, Mr Morgan, I am not certain whether there has been any suspension of the licence to this point. Do you know?
38 MR MORGAN: No, there hasn't been.
39 HIS HONOUR: Very well, I'll make that order, as from today.
40 MR MORGAN: As the court pleases.
41 HIS HONOUR: Yes, you can sit down. Anything further?
42 MR PICKERING: No, thank you, Your Honour, but I'll spend a little time with my client, if I may, just to - whilst he's taken away.
43 HIS HONOUR: Yes, to the police officers in the back of the court, if you'd allow Mr Robins time to speak to his family and friends before he's taken. Thank you.
44 MR PICKERING: I appreciate that, Your Honour.
45 HIS HONOUR: 10.30 tomorrow. Ladies and gentlemen of the press present, a copy of my sentence reasons are available through my Associate. 10.30 tomorrow.
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