Director of Public Prosecutions v Sandy

[2023] VCC 566

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01146

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW SANDY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 April 2023
CASE MAY BE CITED AS:	DPP v Sandy
MEDIUM NEUTRAL CITATION:	[2023] VCC 566

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti
For the Accused	Ms K. McKay

HIS HONOUR:

1Andrew Sandy, you have pleaded guilty to one charge of drive in a manner dangerous causing death and one charge of failing to render assistance after a motor vehicle collision.  Each of those crimes carries a maximum penalty of
10 years' imprisonment.

2You are now 26 years of age.  You were 25 years of age at the time of the offending and are still a relatively young person.  You pleaded guilty at the earliest opportunity and, indeed, you confessed to police about your conduct when they came to arrest you.  Those admissions are of real importance in
the Crown case, especially that of dangerous driving causing death.  Without those admissions nobody would have known really what did happen.  They are important.

3Insofar as the charge of leaving the scene is concerned it may not have been so important in respect of that but as indicated yesterday, it seems to me that you leaving the scene adds to the objective seriousness of the offending, and whilst I am going to impose a sentence for that it will be totally concurrent for reasons of avoiding double punishment.

4In this particular situation I accept that your plea of guilty is associated by remorse.  The material all supports that and, indeed, some of the material takes it as far as a sense of shame.  I am sure that you have remorse for the family and friends and associates of the deceased man, Mr Burley, and I am sure you are also very ashamed of what you have done to a highly respected, in your own situation, highly respected and well-known local family.

5You also must get the utilitarian benefit of that plea of guilty.  The decision of Worboyes still stands in this State and a discount must be given which is observable.  Also having given the matter reflection overnight, it seems to me that the utilitarian benefit of your plea of guilty, has a very serious consequence here.  Had you chanced your arm and fought this out on the basis that it was momentary or whatever, all of those people who witnessed this dreadful accident would have had to give evidence.  It would have been an absolute nightmare for them, it would have been a nightmare for your family and it would have been a nightmare for the family of the deceased man.  In those circumstances where you have avoided that by your plea and by in fact your confession to police, I think there has to be a noticeable discount given.

6You have no prior convictions, as I understand it, and you have no matters pending.  There has been now a delay in the hearing of the matter.  There are all sorts of reasons for that.  I understand also that the October circuit was cancelled.  That was hardly your fault and you must get some recognition for that.

7A summary of the offending is that you were, as I said, 25 years of age at the time of the offending.  You were a hardworking and community minded young man, who had been in no trouble previously and have been in no trouble since.  You were going about your business and you were going to look at some excavations which had been carried out.  There was nothing untoward about what you were doing and up until that moment in time your general conduct in the community with the football club and everything else could be regarded as blameless.  I say at this stage I have read all the - a couple of times now - all the references and the like that were presented on your behalf and I have no doubt accepting, as I have said, the remorse and that you are a very worthwhile member of your local community.

8At that time, you were employed with your father's contracting business and civil contracting business in Swifts Creek.  You were the holder of a full licence, a current Victorian driver's licence, and at the time this occurred you were not affected by alcohol, you were not under the influence of drugs and you were not in any way, shape or form, on the material before me at least, engaged in any hoon driving.

9The victim in the matter was a Mr Greg Burley.  He was a resident of
Kangaroo Point in Queensland who was a software manager.  He is survived by his partner and three children.  He was a member of the Cams Cycling Collective, which was a cycling club owned and operated by Mr Hughes.  That club had come to Victoria on 4 February to take part in a training camp until
13 February 2022.  That training camp involved numerous bike rides through the Victorian high country with most members training for the three-piece challenge ride, which was scheduled for March.

10Mr Burley was a highly respected and very much loved man.  He was a very much loved and needed father. The references on his behalf display clearly the quality of the man and the quality of the people who provided those references.  As I have indicated, I am not going to go into quoting from the victim impact statements in this matter but it will be clear to anybody that the loss of this man was catastrophic in many ways, not only for his immediate family but for his associates and probably for business associates and certainly other members of the cycling club.  It is also important to understand that five of his best friends, if I can put it that way, watched him die.  That is a dreadful situation and one which has to be factored into all this sentencing.  That is why the penalties for this crime are regarded so seriously.

11In any event, in brief form, because it has been tendered on the court record, the victim was riding along the Great Omeo Road.  Six other members of the club were riding in front of him and they had stopped to await his arrival.  He was riding up an incline and had reached the top of that and it must have been within a very short distance, as I understand the material, from the other six riders.  They were sitting or standing beside their bikes on the edge of the road.

12When last seen riding Mr Burley was doing nothing wrong.  He was wearing the proper clothing, was riding very much on the left-hand side of the road.  There were various reports about when your car was seen and I do not need to go into the detail of that but, in any event, at 4 o'clock that morning you had found yourself woken up and unable to get back to sleep.  I note that you told one of the psychologists that you had been tossing and turning for some time.  In any event, you decided to drive off and view, as I said, an excavation as well as take, apparently, photographs of the dawn.  There was no suggestion at that point in time that you were fatigued or anything along those lines and I am very careful, as I have indicated during the course of the plea, not to sentence you for culpable driving.  I simply leave that at that.

13But in any event, you went about your business and on the way home back to Swifts Creek you began to feel tired and I will quote what you said to the police about that.  In any event, on any basis, you fell asleep just as you were about to pass the victim on his pushbike.  You ran off the road or effectively ran off the road.  He was propelled some distance, obviously struck by a vehicle travelling within the speed limit but still in excess of 80 kilometres an hour, and ultimately died.  I am not going to go through the circumstances of that.  Again, that is in the material and that Madam Prosecutor was very careful in how she summarised that.  It is not my position to be upsetting people but it must have been a dreadful, dreadful experience for those who were endeavouring to assist him over the next hour or so.   Being in a remote area, of course, medical assistance in the form or paramedics took some time to get there, though as I understand it, one of his friends was an anaesthetist who was able to endeavour to make some sort or attempts to save his life, all of which proved unsuccessful.

14You continued driving.  People were unable to get your registration but were able to say what sort of vehicle it was.  Up in that area a vehicle like that would be well known to everybody and police had worked out who it must have been within a relatively short period of time.  I accept that you had been in a situation where you had been asleep, where you had woken up and you realised that you must have struck a cyclist and you kept going.  It is put that that was a situation of panic.  The criminal law does not recognise that as a defence.  What I do point out clearly is that I accept in this situation that that not stopping was in circumstances where you were aware that there were other people there and I do not believe that it was for the purposes of avoiding apprehension.  You endeavoured as soon as you could to ring police to advise them as to what had occurred and you waited for them.  When they finally arrived at your house in Swifts Creek you were visibly upset and distressed and immediately began to tell them what had happened.  So whilst leaving the scene in those circumstances is often a very serious offence, to me it seems that in this situation it is reprehensible though understandable but forms part of the seriousness of the crime that you committed.

15Clearly I do not need to go into the detail of this.  The injuries were extremely severe and ultimately proved fatal.

16When police arrived at your house you told a Senior Constable Newton that you had fallen asleep.  You were immediately arrested.  You detailed on multiple occasions that you fell asleep just before the collision.  You said that you had woken up a bit before 4 am and could not sleep so you had driven to
Mount Hotham to watch the sun rise and look at some excavations, as I have said.  You explained that on the way back from Mount Hotham you were tired and thought about stopping but thought that you would be all right.  You said,
'I - I didn't - I just - I was - I was drowsy and I was tired.  I know I was thinking of just pulling over.  I went, nah, I'll make it home, I'll make it home, I'll make it home, and then I fell to fucking sleep'.  You further said, 'I just - I dunno, I just fell asleep.  I just - I was drowsy and I was coming back and I fell asleep and it happened'.  You said that you were not doing anything silly, that you just fell asleep.  'I just - I was going to stop but I went, no, I'll make it, I'll make it home', to quote.

17There was discussion between myself and your counsel yesterday in regard to that.  It is my view that in that situation what you have done is made a decision to keep going in circumstances where you must have known there was a significant risk - your thoughts that you were going to stop but you went, 'No, I'll make it home, I'll make it home', clearly indicate that.  It seems to me on the material that those thoughts must have been going on for some time and obviously I make no findings as to the duration of it.  It is hard to believe, and I do not believe, that these feelings of tiredness came on immediately prior to the actual collision itself.  They must have been there for longer than that.

18The decision of Lombardo was handed to me by your counsel in terms of decision making and it was said that indication shows a decision, that was a matter where Mr Lombardo was coming out of the farm in fog, looked to his right and saw an oncoming light to his right through a fogged-up window.  He thought about winding down the driver's side window to see the oncoming vehicle better but he did not do so because he thought, incorrectly, that it was far enough away that he could safely turn right.  That clearly came from a decision but it also came from an appreciation of a situation that was extremely quick.  He was in the circumstances if he had wound the window down the motorbike that was coming probably would have gone past him.  That was a very quick and catastrophic decision that he made.

19Your decision was to keep going when you knew that you were tired.  We have all had the experience of seeing the micro-sleeps kill.  The only thing that cures fatigue is sleep and it is unfortunate that when people are tired in those circumstances they do not think straight.  That is why those signs are there.  To hammer home to people that you just cannot do it.  To drive in a situation where there is a risk, and a significant risk, because of tiredness and you indicate that because you said you had thought about pulling up and sleeping for 10 minutes.  It just cannot be allowed to occur.  It is a very difficult situation for any sentencing judge in these circumstances.  There would not be many people in this room who have not driven a vehicle when they should not have because of tiredness but that does not excuse it and it just has to be driven home to everybody that you simply cannot do it.

20The offending is of a serious nature.  As I say, it is certainly not momentary, in my view, and in my view, as I have indicated yesterday, a custodial sentence with a head sentence is the only option that is sensibly open here.  I think a community corrections order despite what is said in Boulton and the like would not satisfy the sentencing principles involved here, in particular, general deterrence.  Insofar as general deterrence is concerned that plays a massive part.  It must be driven home to people that you cannot do this.  So far as specific deterrence is concerned, I think that nothing - what you have done will deter you for the rest of your life.  I have no trouble with that at all.  So far as denunciation is concerned that is a difficult one.  An appropriate punishment becomes the question that has to be answered at the end of the day, together with general deterrence.

21The victim impact statements I am not going to quote from.  They go into a lot of detail about the devastation that your driving has caused.  The sense of loss, the sense of anger in some parts, the sense of ongoing loss.  No sentence that I impose or any other judge imposes can bring a person back after they have been killed in such a way.  I say no more about it.  I very much understand how everybody feels.  Of course, I then have to sentence according to law.

22The victim impact statement of Mr Burley's partner, I think, sums up how - in a balanced way I have to work all this out.  She said, 'I trust that the law
will' - directed at you - 'I trust that the law will judge you and you'll be sentenced accordingly.  What I really want to happen is that I want you to be a good man and a good citizen just like Greg was.  If that was not going to happen no matter what punishment you receive by the law, I feel hopeless.  I trust that you repent for what you've done and in future you'll be able to contribute to society by engaging the people around you in a meaningful way'.  It is a situation, I can assure her, that on the material before me during the bushfire period you spent hundreds of hours volunteering with the CFA, you have done very important and massive work in terms of fire control.  You have been a very active member of your local football and netball team - sorry, not the netball team, the local football and netball club, and in fact from your community point of view a model citizen.  You do have a prior matter for when you were in the Children's Court but I am taking no notice of that.

23So that is the conundrum that a sentencing judge faces in a situation like this.  The charge of dangerous driving causing death is essentially best summed up in a Court of Appeal decision that has been around now for some time, the
DPP v Neethling.  I am well aware of other matters.  I have read the comparable cases given to me by counsel for both parties and it seems to me that it is often a matter of the eye of the beholder how these things fall.  It is my view that in these circumstances a community corrections order would be appealable error and I have made that clear, but what is contained there, and these are the principles I have to follow:

'General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.  A person who kills or injures another person while driving dangerously is likely to receive a significant term of imprisonment.  The sentence which is imposed must take account of variations in the culpability of the person responsible.  A custodial sentence will usually be appropriate for this offence unless the offender's level of moral culpability is low'.

24It then lists the matters that a judge should, inter alia, take into account when assessing the seriousness of the offending.  The extent and nature of the injuries inflicted is death.  Number of people put at risk:  six.  Had you fallen asleep probably just a couple of seconds later you may well have killed
six people.  The degree of speed:  you were in the speed limit.  There is no intoxication and no substance abuse.  There is no erratic or aggressive driving.  There is no competitive driving or showing off.  In terms of the length of the journey or during which others were exposed to risk I am unable to make a finding other than my finding as a fact it was not momentary.  In terms of ignoring of warnings that is just a generalised thing about driving tired.  No question of escaping police pursuit.  Degree of sleep deprivation is difficult to work out.  It is a situation where you yourself said you were tired and thought of stopping and I am not going to take it any further than that, and also, which I have already taken into account as I have indicated, the failing to stop afterwards.

25The circumstances in this situation despite your youth and good character are such that a custodial sentence, in my view, is the only option open.  It was put to me, and there have been a number of matters tendered on your behalf, I make it very clear I have read and take into account all of the references that were tendered.  There are two psychological reports.  One from Patrick Newton who is, of course, well known to me, and also from a forensic - no, sorry, from a clinical, I think, psychologist, a Mr McHugh.  There is no point in me really going through all of those.  What they do say is that as a consequence of this collision and death you suffer from a post-traumatic stress disorder.  I have no doubt that that is the case.  He is not the only one who has suffered from a
post-traumatic stress disorder because of all this.  Very clearly, one of the eyewitnesses in particular is suffering very severely from it, but I do take that into account in the sentence of Verdins.  It does not reduce moral culpability obviously, because you did not have it at the time but it would certainly make it more difficult for you in prison.  It is certainly a condition which will not improve in prison and one can only hope that it can be adequately treated upon your ultimate release from prison.

26The reports other than expressing remorse and the like simply confirm what I have already said about you.  Again, at school you went to about Year 10.  You commenced an apprenticeship in civil construction with your father's business.  You spent some time at a logging company.  You have spent the last 10 years learning the family business and skills required to safely operate, and I accept this as a substantial amount of heavy machinery, often in dangerous circumstances.  I am fully aware and I take into account that an incarceration of you will cause considerable difficulty for the family company.  There has been a succession plan put in place and I am aware of the nature of the work that you have done.

27I am aware of the loss of you to a community in terms of the volunteer work that you have done and I have to take all those matters into account.  I have to be very careful to still sentence you for what you did, not what the consequences will be necessarily for others.  I am concerned that a sentence of undue duration would make it more difficult for you to complete what I consider to have been a serious attempt at rehabilitation.  Your PTSD obviously has not been properly addressed yet and there are reasons for that which are beyond your control.  I do not think I need to go into the background any more.  You are a young man who has been brought up in a small country town, who has always done the right thing up until that night.  It is always a dreadful someone when one has to impose sentences on one so young, but it is also a very, very dreadful situation when loved one, and a highly respected and loved person, has been killed by the actions of another.

28Risk of you reoffending.  I have already said I think is low.  Your rehabilitation is well underway and I think will ultimately be successful.  It is to be hoped that upon your ultimate release you fulfil the hopes of Ms Hosono, the partner of the deceased man, and continue to be what you were before this, basically a good man and a good citizen, just like he was.

29So taking all those matters into account as best I can in these very, very difficult situations, I also - sorry, I am not looking at five to eight as I would have gaoled in any event, so do not - it is not ignoring it.  It is just not relevant.  In the charge of dangerous driving causing death, two years.  On the charge of leaving the scene, 12 months to be served totally concurrently with the sentence of two years.  I direct that a minimum term of nine months be served before becoming eligible for parole.  There is no pre-sentence detention.

30I say this, with 6AAA is where I indicate what I would have given had you pleaded not guilty, as a bit of a nonsense in these situations, but what I want to make clear is this, because of your conduct since in terms of owning up, of pleading guilty by, of continuing to work, of doing your best to remain a good citizen, and because of your earlier very worthwhile community behaviour, I am prepared to give you a significant, very significant, discount.  I say this.  But for your plea of guilty, taking account of all I have just said, which the statistic does not, if you had pleaded not guilty of this and been convicted by a jury, I would have given you a maximum sentence of three and a half years with a minimum term of two years.  So your pleading guilty and general conduct afterwards has saved you a lot of time in gaol.

31No other orders I need to make?

32MS McKAY:  (Indistinct words) licence (indistinct words).

33HIS HONOUR:  Sorry, yes, thanks for that.  Reluctantly, I have no other course than to cancel any driver's licence that you hold and direct that you not be entitled - not be able to apply for a driver's licence for a period of four years.  I am assuming that s51 does not apply here.  He has not been - - -

34COUNSEL:  No.

35HIS HONOUR:  No, all right.  That will have to commence today then.  All right, thank you.  You can take him now, thanks, fellows.

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