Director of Public Prosecutions v Rodda

[2019] VCC 1930

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00374

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLIE RODDA

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	15, 18 October 2019
DATE OF SENTENCE:	21 November 2019
CASE MAY BE CITED AS:	DPP v Rodda
MEDIUM NEUTRAL CITATION:	[2019] VCC 1930

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to one charge of dangerous driving causing death – summary charge  - using a mobile phone whilst driving whilst holding a probationary licence – use of mobile phone not connected to collision – cyclist country road – momentary loss of concentration - general deterrence  -  young offender – 20 years –  now 22 - excellent prospects of rehabilitation  - animosity  from  the public -
Sentence: With conviction 3 years Community Correction Order 200 hours unpaid community work - summary charge  with conviction $1000 fine – Licence disqualified for 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward (For Plea) Ms L. Treasure	OPP
(For Sentence)
For the Accused	Mr R. J. de Kretser	Stary Law

HER HONOUR:

1Billie Rodda, you have pleaded guilty to one charge of dangerous driving causing death for which the maximum penalty is 10 years' imprisonment.  You have also pleaded guilty to a summary charge of using a mobile phone whilst driving and whilst being the holder of a probationary licence.  The maximum penalty is a fine of 10 penalty units.

2On 22 December 2016, soon after 10 am, you were driving north along Sedgwick Road, Mandurang, returning home to Bendigo from your work at Sutton Grange where you trained horses.  Jason Lowndes was riding his road bike north along Sedgwick Road.  As you drove around a left inclined bend, you collided with the rear of his bike, throwing him forward and onto the road.  He sustained significant injuries and died later that day in hospital.

3A description of the location is essential to an understanding of how this tragedy occurred.  Sedgwick Road is a two-way road with one lane in each direction.  The road has sealed bitumen in good condition with a double solid white line dividing the lanes.  It is a thoroughfare for traffic travelling between Bendigo, Mandurang and Sutton Grange.  It is a widely known cycle route used by cyclists to ride between two training loops in Spring Gully and Emu Creek.  The speed limit is 100 kilometres per hour.

4At the section of the road where the collision occurred, there is a four degree gradient and left bend for vehicles travelling to Bendigo in the northwest bound lane, as you were.  There is a solid white fog line on the left side marking the edge of the road.  On the left side of this fog line, the bitumen falls away for eight to 10 centimetres to an area of gravel reserve which falls further away into bushland.  Hence, there is no provision for cyclists to ride outside the lane.

5That morning you had finished work at 9.44 am and sent a text message to your boyfriend, Hamish, and you then began driving home.  As you drove, you continued to send text messages to him.  Meanwhile, Jason Lowndes left his home at 9.59 am with a Garmin Edge 520 GPS fixed to his bike and activated.

6At 10.14 am, you sent a text message to Hamish.  You entered the left hand bend and the collision occurred at 10.15 am.  This was one minute and nine seconds after you sent the text message.  It was not part of the prosecution case against you that you were distracted by this use of your phone immediately before the collision.  You had had time to adjust your speed on the approach to the bend.  Indeed, as you approached the bend, you braked and then accelerated and looked down at your speedometer.

7When the collision occurred, you pulled over immediately, got out of your car and called 000.  As you went to check on Mr Lowndes another driver, Amilia Fisher, pulled over to assist.  Owing to shock and distress, you were unable to provide the location to the call taker and you handed the phone to Ms Fisher.

8Other drivers stopped and assisted Mr Lowndes, including two doctors and a nurse who performed CPR until paramedics arrived.  They continued resuscitation until a pulse was achieved and Mr Lowndes was then airlifted to the Royal Melbourne Hospital where he was taken to theatre for emergency surgery but he died before this took place.

9You were treated at the scene for shock and taken to hospital where your blood was tested and found to contain no alcohol or prohibited drugs.

10Detectives from the Major Collision Investigation Unit attended the scene that day and a report was later provided by Detective Leading Senior Constable Hardiman.  A report was also provided by Dr Shane Richardson, a reconstruction expert engaged by the defence.  Data was available from the Garmin Edge unit which had been affixed to Mr Lowndes' bike and from all the evidence available, it was concluded and agreed by each party that you were travelling between 80 and 100 kilometres per hour before the impact and that you had between approximately 2.2 and 4 seconds in which to see Mr Lowndes before the impact.  Those are the circumstances which constitute your dangerous driving, in that you failed to observe him and react to avoid the collision.

11When interviewed by the police, you explained that you know the road quite well and you almost always saw cyclists using it.  You said that you had glanced down at your speedo, during which time you would have travelled 30 to 40 metres and when you looked up, the cyclist was right in front of the passenger side of the car.  You said you had no time to react and, indeed, you did not brake or steer away before the collision but braked immediately afterwards.

12It was ascertained from the physical evidence that Mr Lowndes had been riding in the centre of the lane when he was struck.  While Mr Hardiman concluded that there were no problems with visibility at the collision location, the bicycle was black in colour and it appears from the statement of a member of the public, Andrea Francis, who may have passed him earlier, that Mr Lowndes was wearing black and white clothing.  Ms Francis said she was familiar with the road and was accustomed to seeing cyclists on it.

13She passed that cyclist who was  likely to have been Mr Lowndes, on the left hand bend and observed that he appeared very focused on his riding and seemed unperturbed by a car passing him and did not move further to the left as cyclists generally did.  She slowed and drove behind him at his speed until it was safe to overtake him and he did not acknowledge her presence with a hand signal nor did he look at her as cyclists usually did.  It also seems that he was wearing headphones at the time.

14There is other evidence that there were shadows on the road from the dense bushland at the edge including at the point of impact, which was not taken into account in the reconstruction carried out by Mr Hardiman.  That factor may have had an impact on visibility, particularly given that there was no evidence of any operating light on the rear of Mr Lowndes' bicycle.  There were no warning signs as to the likely presence of cyclists and there was no dedicated bike lane nor any opportunity for either Mr Lowndes or you to veer left of the fog line in circumstances of an emergency.

15While these circumstances do not diminish the significance of your inattention, the position of Mr Lowndes on the road, 1.48 metres from the fog line, and the apparent focused manner of his cycling may have contributed to a degree of contribution by him.  Dr Richardson concluded in his report that if Mr Lowndes had been riding further to the left, which he had room to do, the collision would not have occurred.

16Mr Hardiman responded to Dr Richardson's simulation video with his opinion that,

'The passenger side rear vision mirror and right elbow of the rider may have contacted as the vehicle passed the rider to the right.'

17These matters have the effect of reducing your moral culpability somewhat placing it towards the lower end of the range of seriousness.  That assessment is not in dispute as between the prosecution and the defence, except to say that the prosecution does not place your moral culpability at the lowest end of the range of seriousness.

18Mr de Kretser on your behalf submitted that your moral culpability is at the lower end of seriousness for offences of this kind despite, as he put it, the devastating outcome.  He submitted that your driving should be regarded as a tragic error through a momentary period of inattention.

19There are many cases in which aggravating factors were present at the time of the offending which augment the seriousness of the particular case, such as speed, intoxication with alcohol or drugs, sleep deprivation or aggressive driving, to name but a few.  No such features were present in this case.

20My conclusion is that your momentary inattention together with the other surrounding circumstances does place your culpability at the lowest end of the range of seriousness and I shall sentence you on that basis.

21In reaching this conclusion, I have had regard to a number of cases involving the same offence.  Cases where momentary inattention has been the cause of death through dangerous driving have sometimes resulted in the imposition of a Community Correction Order without imprisonment depending on the degree of moral culpability and the need for community protection.

22Because general deterrence and denunciation by the court are very important aspects of such sentencing, those principles usually take priority subject to the particular circumstances of the case.  The cases provide authority for the proposition that a Community Correction Order is accepted as a punitive sentence and can convey the principle of general deterrence without the need for imprisonment.

23In a case such as this, the need for general deterrence is of very great importance and denunciation by the court should endeavour to convey the message to other drivers that even momentary inattention can have tragic results leading in turn to serious punishment.

24In some cases, momentary inattention has resulted in short prison sentences combined with a Community Correction Order and in other cases, a Community Correction Order without imprisonment has been criticised as inadequate.  Occasionally, a Community Correction Order alone has been imposed either by a trial judge or by the Court of Appeal.  In other words, there are varying sentences where the offending was at the lower or lowest end of the range depending on the circumstances.

25I turn now to your personal circumstances and background.  At the time, you were aged 20 and you are now 22.  You were a P plate driver at the time.  You grew up in an intact family close to your parents and siblings.  You have no criminal history nor any driving infringements and following the collision you enrolled in and completed a defensive driving course.  You have no history of any antisocial behaviour and no drug or alcohol problems.  Of course, you committed an offence by using your phone while driving and you are facing punishment for that now.

26You are a person of excellent character who is well regarded by the community and has achieved much in sport and in your work.  All that is clear from the references written by friends, family members and your employer.  You completed Year 11 at school and you were an award-winning diver during those years.  You began working in horse stables as a 14-year old starting your day at 4.30 am and you now work as a track rider with the same early morning start.

27Since the collision until recently, you have been employed in two jobs to contribute to your legal expenses.  You had planned a career change by studying social work at TAFE but have deferred that because of the animosity you have experienced from members of the public following the tragedy.  That has also caused you to become quite isolated due to fear of recognition and further abuse. That experience has caused you to be cautious about public exposure and your employer has had to adjust your work accordingly. 

28When the forensic psychologist, Dr Aaron Cunningham assessed you last year, your mother told him that you often showed signs of distress, nervousness and sadness with trouble sleeping and nightmares relating to the collision.

29You have attended counselling with a clinical psychologist, Ms Sandilands, who considers you suffer from an adjustment disorder with mixed anxiety and depressed mood, with the depressive symptoms worsening at times during the period of therapy.

30Ms Sandilands also reported on the regret and profound sadness you feel for the loss of life of Mr Lowndes, something which has been emphasised in the letter of apology you have written to his family.

31Dr Cunningham provided a report to the court and his opinion was that your close connections with your family and friends and your work pursuits have assisted you in dealing with your distress at the pain you have caused others.  He did not detect any indications of pre-existing mental illness but his opinion was that since the tragedy, you have suffered clinically significant symptoms of depression and anxiety.

32Those observations and opinions both professional and otherwise are relevant to your remorse and ultimately to the appropriate disposition.  In particular, they are relevant to your rehabilitation which is of importance to the community as well as personally.

33Because at 22, you are described as a youthful person, your rehabilitation has greater importance, even though when a very serious offence such as this is involved youth carries less importance as a sentencing factor.

34I am satisfied that your prospects for rehabilitation are excellent and that if and when you once again become a licensed driver, you will be a responsible and a careful driver.

35An important mitigating factor is your plea of guilty.  A trial would have involved expert witnesses whose evidence is not straightforward and the jury may have had to grapple with difficult concepts.  A trial may have been prolonged by this with considerable expense and inconvenience to the parties.  There are inherent difficulties with the evidence of speed and reaction times with considerable uncertainty as to proof of the requisite standard. Accordingly, your plea has significant utilitarian value in having avoided the need for a trial and you are entitled to a meaningful discount on your sentence.

36A further mitigating factor is the long delay which has occurred.  Both you and Mr Lowndes' family and friends have had to wait almost two years for the resolution of the case.  I must consider and take into account the effects of any delay upon you as you have awaited the outcome given that imprisonment was undoubtedly a possible result and was hanging over your head for this period.

37Your distress as described by your mother to Dr Cunningham, the depression and anxiety you have suffered and the pressure of attitudes of members of the public have all resulted from the tragedy and have endured for the period of the delay.  The effects of the delay have also been keenly felt by Mr Lowndes' family and those who were close to him and I shall turn to that matter shortly.

38The sentencing of an offender must focus on several factors.  These include the circumstances of the offence, its objective gravity, the available sentencing options, general and specific deterrence, current sentencing practice and the circumstances of the offender and prospects for rehabilitation.  The impact of the offence on the victim and the victim's family stands in a special category of its own because the loss or harm to any victim regardless of their subjective value to their family or in the community is to be regarded equally.

39Mr Lowndes was indeed a treasured member of his family and a highly regarded member of the cycling and the wider community.  I heard the statements of his mother, Trudi, his father, Graeme, his sister, Rebecca, and his partner, Kelly Younger, read to the court.

40They are very proud of his achievements as a champion cyclist who had been ranked sixth in the world championships in the under 23 category and more importantly as a cherished son, brother and partner.  Their grief has been profound and each of their lives changed forever.

41Trudi Lowndes described herself as a very proud mother of her son, but the family is heartbroken with their lives being consumed with grief and at the same time having to deal with the demands of their work and the disruption caused by the court case.

42Graeme Lowndes feels he has been robbed of his son and that he thinks about Jason all the time.  He has become an advocate for safe cycling in the hope that another family will be spared the devastation he and his family have suffered.

43Rebecca Lowndes had a close relationship with her brother and she described how her life has changed, unable to continue working for a considerable period and isolating herself in order to cope.  She also referred to the difficulties caused by the long wait for the resolution of the court case.

44Kelly Younger described the plans she and Jason had made for their future together.  They had been living in Spain at the time of his death and after coming to Australia at that time, she had to return to Spain and pack up their belongings before going home to the UK.  She described her intense sadness and heartbreak and she found it very difficult to continue with her life.  For her as for all his family, the impact of his death has been enormous.

45Ms Rodda, would you stand now please?

46The sentence I now impose for the charge of dangerous driving causing death is a Community Correction Order with conviction which will begin today and will last for three years.  You will be under supervision and must perform 200 hours of unpaid community work.  Your mental health is to be monitored as part of your rehabilitation and any hours spent in such treatment are to be credited against the hours of community work.

47Were it not for the fact that you have already completed a driver education course, I would have required this as a condition.

48You must attend the Corrections Office in Bendigo by 4 pm on Monday, 25 November allowing you two working days after today to report there.

49Turning now to the summary offence of using a mobile phone while driving, it was, as submitted by the prosecution, a serious example of the offence as you sent 11 messages and received seven and you also sent a video message.  For that offence, you are convicted and fined *$1,000[1].

[1] *At sentence the fine imposed was $2000 which exceeded the maximum. After sentence the amount was reduced to $1000.

50I am required to cancel any driving licence or permit you hold and therefore you are disqualified from obtaining another such permit or licence for at least 18 months.  In the circumstances, the period of disqualification which you will face will be three years, commencing this day.

51When imposing a Community Correction Order, I am not required to state the sentence I would have imposed if you had pleaded not guilty save to say that I have taken your plea into account as I indicated earlier.

52Mr de Kretser, do you seek a stay for the payment of the fine or can that be left in the hands of the authority responsible for collection?

53MR de KRETSER:  Yes.  Maybe that is the best way to deal with that.

54HER HONOUR:  I will leave it there.  Thank you.

55MR de KRETSER:  Thank you, Your Honour.

56HER HONOUR:  Ms Treasure, is there anything I have omitted or neglected?

57MS TREASURE:  No, Your Honour.

58HER HONOUR:  All right.  The order is ready for signature now, Mr de Kretser.

59MR de KRETSER:  May I approach my client with Your Honour's associate?

60HER HONOUR:  Yes, certainly.

61MR de KRETSER:  Thank you.  Thank you, Your Honour.

62HER HONOUR:  I think that completes everything.  May I just take this opportunity to thank you, Ms Treasure, and of course Mr Haywood as well, and you, Mr de Kretser, for your assistance during the case.

63COUNSEL: :  Thank you, Your Honour.

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