Director of Public Prosecutions v Ross
[2014] VCC 1000
•3 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-12-01335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ROSS |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10-21 March 2014 |
| DATE OF SENTENCE: | 3 July 2014 |
| CASE MAY BE CITED AS: | DPP v Ross |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1000 |
REASONS FOR SENTENCE
---Subject: Dangerous Driving Causing Death
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 2 1/2 years imprisonment.
2 years suspended for 2 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | |
| For the Accused | Mr R. Raggatt |
HIS HONOUR:
1David Ross, you have been convicted after a trial by a jury of one charge of dangerous driving causing death for which the maximum penalty is ten (10) years imprisonment. The charge was an alternative charge to that of culpable driving causing death. The jury acquitted you of that charge. Having heard all of the evidence I agree with the verdicts of the jury.
2I was told and accept that you did not ever offer to plead guilty to the charge of dangerous driving causing death. You did offer to plead guilty to dangerous driving simplicita but that offer was properly rejected by the prosecution.
3You were convicted on 21 March 2014 and remanded in custody for plea and sentence. I adjourned the matter to enable a psychological report to be obtained and heard the plea in late April. Because of circuit commitments I have been in Bendigo for the last 9 weeks and unable to sentence you earlier than today. You have now served 105 days pre-sentence detention.
4The circumstances of your offending which must be taken as having been accepted by the jury may be briefly summarised as follows. On 10 March 2010 at about 3.00pm in the afternoon you were the driver of a large semi trailer heading north along the Hume Freeway near the Donnybrook over pass. Traffic was moderate, the weather was fine and sunny and the visibility was good. The road was straight and flat as depicted in numerous photographs tendered in evidence. You were not driving at an excessive speed but at around the speed limit of 100 kph and in the left hand lane.
5A number of witnesses were called who gave evidence of observing your vehicle in motion travelling along the highway. Dianne Beel, the deceased, was also driving north in a much smaller vehicle, a Mazda 3. She was also in the left hand lane. But shortly after she passed ahead of you under the Donnybrook overpass she slowed her vehicle because traffic ahead had banked up and either come to a complete stop or was moving very slowly. Mrs Beel may have slowed to 40kph or below when you failed to observe that she had slowed and your vehicle continued to travel at about 100kph before breaking suddenly just before it collided with her black Mazda.
6The impact was heavy. Mr Zolinierczyk gave a chilling description of what he observed from his near stationary vehicle, also travelling north, of debris flying through the air. He said the impact sounded like an explosion. Your vehicle collided with the rear of the black Mazda which was forced off the freeway into the service lane and then across a median strip before coming to rest some distance from the point of impact. There was no challenge as to where the deceased’s vehicle ended up as plotted on a re-construction plan tendered in evidence. The heavy impact damage to the Mazda was clearly visible in photographs also tendered. Mrs Beel sadly died of injuries she suffered in the collision.
7After hitting Mrs Beel’s Mazda your semi-trailer initially moved across the freeway into the right hand lane where it collided with a blue ford being driven by Mrs. Fogarty. She also gave a chilling account in her evidence before the jury of having been stopped for traffic ahead and watching your vehicle approach from behind and of the impact of the collision that followed when you first collided with Mrs Beel’s vehicle and then the blue Ford being driven by her. The prosecution relied upon a victim impact statement from Mrs Fogarty who, whilst not a victim named in the charge, suffered injuries as a result of the same driving by you that caused the death of Mrs Beel. In passing sentence I have had regard to the victim impact statement tendered.
8The prosecution case which must be taken to have been accepted by the jury was that in driving a heavy vehicle in moderate traffic on a freeway at 100 kph you failed to keep a proper lookout. You did apply the brakes of the truck shortly or immediately before impact and the skid marks are also depicted in the photographs and reconstruction diagram. A video was also produced which gave the jury a depiction of the view you would have had of the roadway from an elevated position in the driver’s seat of a semi trailer. Had you been keeping a proper look out you would have seen the traffic stopped or built up ahead of you even before the other cars which had stopped or slowed. You probably would have then applied the brakes to your large and heavy vehicle much earlier. Because you only applied the brakes immediately or shortly before impact the jury could have had little trouble inferring you had not been keeping a proper lookout.
9You did not give evidence and there was no record of interview tendered. As a result the jury did not hear your version of events. The defence case was to challenge the expert evidence and attempt to put before the jury a different reconstruction theory as to how the collision occurred. The jury was right to reject that theory. In saying this I do not allow this fact to influence the sentence I shall pass. It is your right to question the prosecution case and to put forward contrary expert opinion. In this case however, that was somewhat of a waste of time given the compelling evidence given by a number of witnesses to the collision including the lead up to it and the aftermath of it.
10Although this is a serious offence it is not in my view a bad example of this kind of offending. In my judgment it falls towards the lower end on the scale of this kind of offending. This collision and the death of Mrs Beel in consequence was entirely your fault either because you failed to keep a proper look out whilst driving a large semi tailer or you were not paying any proper attention to the task of driving your vehicle safely.
11To commit the offence of dangerous driving causing death there does not have to be an element of what the law calls ‘mens rea’ or intention. The offence is aimed at the manner with which people drive cars. Because of that, the main aim or purpose of any sentence imposed is to have proper regard to the principles of general deterrence. In other words, to send a clear message to those that drive heavy vehicles on the roadway to do so properly and carefully and above all safely. In a case such as this, the task for the sentencing Judge is to frame a sentence that will ensure that semi trailer drivers pay attention to the roadway around them and to keep a proper look out. That may seem fundamental but occasionally cases such as this show that the courts may need to restate fundamental principle. Thus any sentence I impose must send a clear message to truck drivers that they can and must prevent this type of accident from occurring. If they do not do so and are convicted offenders will almost always face a jail sentence.
12This type of offence where there is no mens rea or intention to cause death or injury, but rather involves inattention or carelessness by in this instance failing to keep a proper look out has troubled sentencing courts for some time. That is especially so where that most precious of all things, namely life itself, is lost.
13The NSW Court of Appeal in R v. Whyte (2002) 55 NSWLR 252, published an amendment to its earlier guideline judgment in R v. Jurisic (1998) 45 NSWLR 209. Speigelman CJ again repeated what he had said in Jurisic at p284:
“A non custodial sentence for an offence against section 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment”.
14In DPP v. Oates [2007] VSCA 59 the Victorian Court of Appeal adopted and approved of the approach in Whyte.
15Importantly, in arriving at an appropriate sentence in any case on a charge of dangerous driving causing death, the degree of moral culpability is to be assessed by the manner of driving immediately before the collision. You were observed driving in the left hand lane within the speed limit and there is no question that your truck was otherwise under your complete control. After impact, as I say, you collided first with the deceased’s vehicle and then Mrs Fogarty’s vehicle but you managed otherwise to control the large truck and bring it to a complete stop in the land dividing the north and south carriageways. In that way you managed to avoid what might have been even further harm to others. That you were able to manage to do so I think suggests you were a good driver who momentarily either was not paying attention or was failing to keep a proper look out. In that way you failed in your duty as a truck driver.
16There was no evidence lead before this jury that you were affected by drugs or alcohol and the truck was roadworthy and its condition did not contribute to the collision. On this trial there was no evidence lead that you suffered from sleep deprivation or fatigue, although both had featured in evidence in an earlier aborted trial. There was no evidence that you were distracted because of the use of a mobile phone in any way. For these reasons I regard your moral culpability as low.
17Mr Newton who appeared as your counsel at trial and, on the plea, relied upon delay. The offence occurred on 10 March 2010 but you were not charged until nearly one year later on 24 February 2011. There was a three day contested committal in the last week of July 2012. There was then an initial trial date in May 2013 and the matter was not reached through no fault of yours. The trial eventually came on for hearing in February and March of this year. You have thus had this matter hanging over your head for a long time. In passing sentence I have taken the question of delay into account.
18I turn now to your background circumstances. You were born on 9th April 1965. You are now aged 49. At the time of the offence you were approaching your 45th birthday. You have two relevant prior convictions which you have admitted. In October 2007 you were convicted in the Geraldton Magistrates’ Court of driving with a blood alcohol content exceeding .08%. You were convicted and disqualified from driving for a period of 4 months. In December 2006 you were convicted in the Sunshine Magistrates’ Court of driving whilst license suspended. Your licence was again suspended for 1 month. Given that you have spent much of your working life as a professional truck driver, viewed in proper context I regard these prior convictions as being relevant but very limited in nature. My sentence has not been influenced by a need to impose significant specific deterrence in consequence.
19You were born in Dimboola and have one brother. You attended primary school in Dimboola and later Horsham Technical School leaving after year 11. You had part time jobs whilst at school. You worked for the CFA and were engaged fighting the Ash Wednesday fires in 1983. After this you did odd labouring work.
20In November 1983, aged 18, you were badly burned in an accident at home. You thereafter spent many months as a patient at the burns unit of the Royal Melbourne Hospital having suffered burns to your lungs, face, neck, upper torso and your left hand is badly deformed. For the next 2 to 3 years you remained in Melbourne attending rehab. You spent some years in pressure bandages and you underwent many plastic surgery operations.
21Around 1986 to 1987 you commenced to work in the Safeway Warehouse at Mulgrave as a forklift driver. At this time you obtained a heavy vehicle license and continued to be constantly in employment.
22In 1991 you met Karyn Lewis whom you later married. There were two children although it was later revealed you are not the biological father of the second child.
23In 1997 you commenced working for Scott’s Transport in Mt Gambier and thereafter you were away from home a lot driving interstate between Brisbane and Adelaide. In 1998 you and your family moved to Bacchus Marsh and you continued to work as a truck driver with various employers. In 2005 you had a truck accident on the Bolte Bridge. Medical testing of you at that time revealed you suffered from sleep apnoea for which you were treated over a two year period. You continued to work as a truck driver.
24You and your wife eventually separated and you have re-partnered. As a result of the collision the subject of this charge you lost your job and you have been unemployed and on the dole. Your burns and left hand injury from your burns accident when you were young restrict the kind of employment you can seek and so you have found it difficult to get work. This conviction will doubtless make it even more difficult for you to get work. I have taken all of these matters into account.
25I admitted into evidence as Exhibit 7 a reference from your partner Barbara Twomey. She met you after you were charged. She speaks highly of you and of your caring nature and what you have done for her and her children. She was present for every day of your trials to support you. Your mother was also present each day to give support to you. She also provided a reference (exhibit 6) which amongst other things speaks of the effect on your life of the burns you suffered when aged about 17 or 18 in the home accident. I conclude because of the burns you suffered as a 17 year old young man that life since has not been easy for you. Nevertheless you seem to have endured the difficulties as best you can and have worked hard to support yourself and your family without imposing yourself on the purse of the State. I also conclude from what has been said in the testimonials on your behalf and, despite you not having given a record of interview, that you are genuinely remorseful for your offending and you have appropriate empathy and sympathy for the relatives and friends of Mrs Beel because of her death at your hands. Your mother said the accident and death you caused will haunt you for the rest of your life. I have no doubt that is the case. Ms Matthews, whom I will later refer to, also refers to your remorse and expressed apology to the family of Ms Beel.
26I also admitted into evidence a reference from a friend of long standing Leo Bramble who describes you as a person of “impeccable character” and as being “honest and trustworthy”. (Exhibit 8.)
27The evidence before me shows you have good family support and I conclude that will assist with your rehabilitation in respect of which I conclude you have good prospects.
28I admitted into evidence a copy of a letter of referral from your general practitioner Dr Kyparath to psychologist Mr Rouse dated 27 May 2013, Exhibit 3. That referral lists a number of health problems including stress and depression. It also refers to you having overdosed in May 2013. At that time you were medicated with the anti depressant drug Zoloft. A latter letter from Mr Rouse in December 2013 indicates he has been treating you for depression, Exhibit 4. Another letter (Exhibit 5) dated 15 November 2013 from the CATT to Dr Kyparath refers to you suffering PTSD related to the physical and emotional trauma of the Ash Wednesday bushfires. It also refers to an overdose of panadeine forte in early November 2013 and of “fluctuating suicidal ideation”. I think the reference to the Ash Wednesday fires in this context is in error and was probably meant to be a reference to your accident later in 1983 when you suffered severe burns in the accident at home I have earlier referred to.
29I admitted into evidence a psychological assessment from Pamela Matthews dated 18 April 2014. Ms Matthews saw you at the Melbourne Remand Centre for the purposes of assessment. In that report (Exhibit 2) Ms Matthews refers to you having expressed remorse for your offending conduct. She also refers to the difficulties you have been having in prison caused especially by your skin problems occasioned by the burns you suffered as a young man. You have not been getting all of the creams and treatment you should be getting and you have not been able to use a proper shaver to properly shave and stop your skin from becoming infected. Ms Matthews also opines and I accept you suffer from PTSD caused not only by this collision and its aftermath including the trial, but also by the accident which you were involved in as a young man resulting in your being severely burnt. I find you suffer from depression and a PTSD for which you require treatment. You also require ongoing treatment for your burns. Because of these matters I find your time in jail will be more difficult than for most other prisoners. In passing sentence I have taken all of these matters into account. In my judgment there is a need to sensibly moderate any sentence because of these matters.
30On the charge of dangerous driving causing the death of Dianne Beel you are convicted and you are sentenced to a term of imprisonment of two and a half years.
31In the exercise of my discretion under section 27 of the Sentencing Act 1991 I suspend two years of the total effective term of imprisonment imposed for a period of two years.
32Pursuant to section 18 of the Act I declare there has been 105 days pre-sentence detention. I direct that 105 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the Court and deducted administratively.
33Pursuant to section 89(1) of the Sentencing Act 1991, I order that any driver licence that you presently hold be cancelled and you are disqualified from obtaining a driver licence for a period of 18 months from the date of conviction being 21 March 2014.
34Mr Ross, I am required to explain to you the sentence I have just handed down. I have imposed a sentence of imprisonment of two and a half years. In the exercise of my discretion I have decided to partially suspend that sentence. That is I have suspended two years of the two and a half years for a period of two years. The purpose of imposing a sentence of imprisonment is to show how serious the offence is, and the purpose of partially suspending two years of the sentence is to allow you to demonstrate your commitment to a full rehabilitation. You must not, during the period of two years commit another offence punishable by imprisonment – that is in or out of Victoria. If that occurs you will be in breach of the terms of the suspended sentence and should expect to be brought back before me and ordered to serve that part of the sentence that was suspended.
35Do you understand the consequences of committing an offence during the period your prison sentence is suspended? Further, do you understand that I have cancelled any drivers licence that you may presently hold and I have disqualified you from obtaining a drivers licence for a period of 18 months from 21 March 2014. You must not drive a motor vehicle again until you are licensed to drive. Do you understand that? You will not be eligible for a licence to drive until on or after 21 June 2015. Do you understand that? Do you appreciate that if you do drive whilst your license is cancelled and you are disqualified and you are apprehended you could be sent to prison and that such a conviction will itself be a breach of the suspended sentence I have imposed?
36Having regard to the time of 105 days that you have already served you will be released after serving just under another 3 months imprisonment.
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