Director of Public Prosecutions v Scott
[2019] VCC 1650
•10 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01554
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TIMOTHY SCOTT |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2019 | |
DATE OF SENTENCE: | 10 October 2019 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1650 | |
REASONS FOR SENTENCE
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Catchwords: Dangerous driving causing death.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr M Gibson | OPP |
| For the Accused | Mr J. Kantor | Kerry Clancy |
HER HONOUR:
Timothy Joel Scott you have pleaded guilty to one count of dangerous driving causing death. The maximum penalty for that offence is 10 years. You were driving on Friday 24 March 2017 for the purposes of your work when you hit a cyclist, James Freeman. By your plea you have admitted that you engaged in driving that was dangerous, and resulted in Mr Freeman’s tragic death. By the nature of this offence, it is not suggested that you deliberately or recklessly set out to cause his death, however your conduct in driving the way you did has meant the loss of a father and a friend.
The circumstances of your driving that day are set out in the Prosecution Opening dated 10 September 2019 (Exhibit A.) You were employed as a delivery driver for “Gippy Gourmet”, a food supply business based in Hallam that supplied to businesses in country Victoria and southern New South Wales. You were the holder of a full Victorian Driver’s Licence.
At about 4.20pm whilst working, you were driving on a straight section of the Yarrawonga-Benalla Road. At that time Mr Freeman and his friend Mr Staples were also riding their bikes south along that road, with Mr Staples riding about 30 to 40 metres in front.
The conditions on the road are best illustrated in the photographs (Exhibit B – photos 1-6 and also in the evidence, depositions p.58-60.) They were riding to the right side of the continuous line marking the side of or shoulder of the road. Both Mr Staples and Mr Freeman were experienced cyclists and were on the last day of a cycling trip of the Alpine region of Victoria. They had, had lunch in Wangaratta and were heading towards Benalla where they planned to take a train back to Melbourne.
You arrived at work in Hallam at approximately 6.00 a.m. You drove to, and delivered food to, various destinations in the north -east area of Victoria and south-west part of New South Wales. You had lunch in Barnawartha, then made your last delivery at Burkes Hotel, Yarrawonga at approximately 3.30 p.m. You left Yarrawonga and drove southbound on the Yarrawonga-Benalla Road. You were familiar with that road.
A number of witnesses were driving along the same part of the road as you, none of them saw your van travelling to the outside of your lane or observed any oncoming traffic. A witness that did not see the actual impact, noticed a cloud of dust and saw you “Hit the brakes pretty hard”. He told investigators that 'He didn’t see the actual impact, so he couldn’t say whether the van made any attempt to pass the cyclist or to slow down'.
Mr Staples when riding ahead heard the car approaching, and checked his mirror. There was nothing that stood out about the van that caused him concern and it appeared the van had been driven normally. It was driving straight in the lane coming up from behind Jim. He then heard an almighty bang, turned and saw Mr Freeman lying face up on the side of the road. Mr Freeman was thrown about 35m and had sustained significant injuries. Mr Staples, you and other drivers attempted to assist Mr Freeman on the side of the road and called 000.
Soon police attended at the collision scene and paramedics were tending to Mr Freeman. He died at the scene.
You were tested by police for alcohol and drugs and then later blood tested, producing negative results.
You were interviewed by police and told them that you saw two bikes riding end to end on the left-hand side of the road.
You described the circumstances of the collision as follows: -
… 'Seeing that the opposite side of the road was clear, as I could see for a while, and so to move over to the right as I approached them in order to give them plenty of room. In doing so, while moving over approximately to my driver’s side wheel on the unbroken line in the middle, I have momentarily lost, lost control of the vehicle. It felt like it was pulling severely to the right and thus was worried about perhaps going too far to the right and hitting trees on the other side of the road. In this I have stopped concentrating on the two bicycles and concentrated instead on correcting my steering enabling me to – not do that. At that point I have collided with the rear bike, approximately on the driver – on the passenger-side headlight in the rear wheel of the bicycle. I was – as I was concentrating on my – correcting my steering, I must have over corrected and run into the – that bike on the side.'
The reconstruction expert police from Major Collision Investigation Unit opined from evidence gathered at the scene that:
(a)At the time of the collision the sun was behind you whilst you were driving;
(b)Your vehicle was travelling in a straight line when it collided with the back of the bike;
(c)If you had remained in the correct lane there would have been sufficient space for you to overtake the cyclists;
(d)The damage to your van was not consistent with your account in the record of interview or steering to the left. There was no angling across damage on the van rather the damage observed was in a straight line relative to the van;
(e)Your van was travelling at a minimum speed 84 kilometres an hour when you struck the deceased.
(f)You did not apply your brakes prior to impact.
(g)Mr Freeman was riding on the road surface approximately 500 mm inside the fog line when he was struck by you. And,
(h) The investigation did not reveal any mechanical fault with your van that contributed to, or caused the collision.
13. Your counsel conceded during the course of the plea that your account in the record of interview was not consistent with the expert evidence.
Victim impact statements
I received a victim impact statement from Mr Freeman’s daughter Claire and Mr Staples. As is often the case in matters of this nature, the impact and shock of the death of their dad and friend has been significant. Ms Freeman describes feeling enormous grief, anxiety and stress especially as she was not there to help her father. The impact has been greater knowing her baby will not know his grandfather. Mr Staples, who read his statement in court, eloquently set out the consequences for him. The loss of his best mate and closest friend, the one responsible for their social activities and who provided great support to him. He included a poem dedicated to Mr Freeman or 'Jim' in his statement reflecting on Jim’s qualities and passion for cycling.
I was provided with a Psychological Assessment Report of Mr Mike Lake, dated 4 September 2019 (Exhibit (2) and also bundles of financial documents (Exhibit 1) and character references (Exhibit (3). I take all of that material into account.
You were 33 at the time of this offence and are currently 34. You married your wife Karen in 2007 and you have no children. I was informed you have a strong relationship and that your wife has a high level of dependence on you as she suffers from Type 1 Diabetes. Your wife works at the Beechworth Bakery in Ballarat.
You were raised by your mother and step-father both of whom reside in Portland. You completed Year 12 at Portland Secondary College in 2002. You then attended South West TAFE, where you completed an advanced diploma in hospitality management in 2004.
You have been consistently employed, you worked at the Beechworth Bakery as a baker’s assistant then as a baker for about 9 years. You then commenced at Gippy Gourmet, based at Hallam, in 2014. You were employed full-time as a delivery driver, working 40 hours between four to five days a week, though you ceased that employment in June 2018. You are currently employed as a night filler at Woolworths, Delacombe, working up to 36 hours a week. You purchased your home in Delacombe, in 2008 and have a significant amount owing on the mortgage.
Both your family and that of your wife remain supportive of you.
You have never experienced any drug or alcohol issues. And you have no psychological or psychiatric history.
I was informed that you are currently seeing clinical psychologist Mike Lake (pursuant to a GP Mental Health Care Plan). He notes in his report:
a.You have suffered consistent sleeplessness, depressive ideation and flashbacks or dreams related anxiety symptoms;
b.You have become more socially reclusive;
c.You are experiencing chronic feelings of guilt and worry, such symptoms becoming more severe in the last nine (9) months;
d.The psychometric tests conducted indicate that you suffer clinically significant high levels of depression, anxiety and frustration;
e.You feel a very high level of guilt and remorse;
f.You are burdened by concerns about your wife’s illness and who will care for her if you are imprisoned.
Mr Lake opined that you are clinically depressed and suffering from PTSD symptoms. Your counsel submitted on the basis of Mr Lake’s opinion that you would be particularly vulnerable in prison given the PTSD symptoms and level of depression that you are experiencing. That as a consequence prison will be more burdensome for you.
The prosecution challenged whether your condition or functioning was such as to make prison more burdensome for you in the Verdins sense, submitting that there was little evidence that the psychiatric impact of imprisonment would be more on you than other prisoners, and that any assessment of your vulnerability was speculative.
Although your current level of functioning is in some ways contributed to by your fears or anxiety in relation to these actions and possible imprisonment, I accept that there are other features including some personal to your family circumstances, that have impacted on your mental health, the consequence being that prison will be more burdensome for you and I take that into account.
Your wife gave evidence about her medical condition and the assistance that you provide to her. Material was also provided by your wife's family members as to her condition and their concerns if you are not available to care for her. It was because of this evidence that I sought further medical information from her treating doctor.
I received a report from Dr Anthony Kemp, endocrinologist dated 30 Sept 2019 regarding her Type 1 Diabetes. He opined that she had developed hypoglycaemic unawareness, which had resulted in her experiencing multiple accidents of a minor nature. Your wife is able manage at work but both her and the other staff need to adhere to strict compliance with her health plan. She is unable to drive alone and relies on you for transport.
You are regarded as instrumental in the successful management of her diabetes in the home environment. You are familiar with her behavioural changes to the extent that you, and not your wife, are able to detect her hypoglycaemia. You have been able to observe the early symptoms whilst your wife is sleeping and your timely assistance ensures that she does not develop a more severe condition.
It was submitted that your wife’s condition was relevant to the sentencing exercise in two ways: First, that custody would be more burdensome for you given your wife’s health, and your concern or worry about her, without you to help. This proposition was not disputed by the prosecution, and I take that into account. Second, it was submitted that your wife’s condition and dependence on you for her management, was such that exceptional circumstances existed and warranted me taking into account in the sentence I impose consideration of hardship to her.
Your counsel submitted that a wide range of circumstances could be considered to be exceptional – that the evidence of your wife was compelling that you were responsible for the management of her condition at home. Other family members were not in such close or geographic proximity as you are to provide optimal care for her. Further it was submitted that a significant financial burden will be placed on her if you are unable to earn the money to service your mortgage. Counsel relied on the financial material and evidence from your wife, family members and Dr Kemp.
Counsel for the prosecution disputed that I should be satisfied that exceptional circumstances had been established. Reference was made to a number of authorities to illustrate the high evidentiary level or bar that is required before hardship to a third party can be a relevant sentencing consideration. It is a question of fact and degree in each case.
One cannot help but be sympathetic to your wife’s health situation, however, the test is high for the reasons set out in the authorities. There was no evidence before me as to the prospect of any alternative arrangements being able to be made. The evidence suggested that you worked shift work in the night, you are not required to monitor your wife all hours of the night. Clearly some alternative plan will need to be implemented to assist her. And I am not satisfied that exceptional circumstances have been made out.
Plea of guilty
I take into account your plea of guilty. I note the chronology provided and it was at a late stage, after the committal. Witnesses, including Mr Staples were required to give evidence. I accept your guilty plea significantly facilitated the course of justice and has a utilitarian benefit. You have saved the cost to the community and the court of a trial. I also accept that your plea is also indicative of remorse.
I was informed that you are well aware of the contents of the victim impact statements and appreciate the significance of your actions and impact on Mr Freeman’s family and friends. Your wife also gave evidence of the changes in you since the collision and her encouragement for you to see a psychologist. I accept that you are genuinely remorseful for your actions on this day.
Rehabilitation,
Your counsel submitted that you had excellent prospects for rehabilitation, having regard to:
i.Continued support of your family;
ii.Excellent work history;
iii.No alcohol or drug issues;
iv.No mental health issues (save for his current diagnoses which are linked to his current predicament);
v.No prior or subsequent offending;
vi.In a long term marital relationship.
Additionally you have had this matter hanging over your head for a period of time not charged until 8 months after the event.
I accept that you have very good rehabilitation prospects.
Objective gravity of the offending
Your offending was not attended with aggravating features as are frequently evident in offending of this kind:
i.No Speed was involved (travelling at a minimum speed of 84 km/h in a 100km/h zone);
ii.No Alcohol or drugs (none present);
iii.No evidence of Use of a mobile phone (or other distraction);
iv.No Fatigue;
v.Condition of the vehicle - no mechanical fault found
vi.You remained at the scene and attempted to help.
Your counsel submitted that in respect of this offending that the circumstances were such that it fell into the category sometimes referred to in cases of this nature as momentary inattention. Such reduced both your moral culpability and the objective gravity of the offending.
The prosecution submitted that you failed to pay appropriate attention, and drove directly (in a straight line) into the rear of the bicycle. This occurred, in circumstances where you admitted that you had seen the cyclists riding along the side of the road in front of you, and where you could have overtaken him safely with sufficient space on the correct side of the road, if you had been paying appropriate attention. You were familiar with the road and conditions were not such that you were otherwise distracted.
This offence does encompasses a wide range of conduct. It is necessary in determining an appropriate sentence to take into account both the objective dangerousness of the driving and your moral culpability, see Woldesilassie [2018] VSCA 285 [23]. Examination of the photos and evidence of the police relating to the topography of the road and your likely sight or vision of the cyclist, who you admitted you saw from a distance, (see Q28 ROI). Reveals an inexplicable failure by you to concentrate or pay enough attention. Such inattention caused you to collide with the cyclist, hitting him from behind whilst you were travelling in a straight line. Your description in the ROI of the position of the cyclist when you saw him was consistent with the other evidence that this remained his position at the time of the collision. Although police or experts could only speculate as to the exact time that you were not paying attention, the evidence was that you would have seen him for between 400m -100 m (T p.53). The dangerousness was your failure to take due care and attention when that was required, aware of the cyclist and his position on the road. I do not accept the categorisation in those circumstances that your driving involved momentary inattention.
General deterrence
General deterrence is a very significant sentencing consideration. Despite widespread public campaigns regarding the safety of cyclists using the road, these kind of accidents are all too frequent because of the inattention of drivers.
Cyclists have a legitimate entitlement to be safe on the roads and drivers of cars, trucks or other modes of transport, must be compelled to pay due attention at all times to them, particularly given the catastrophic consequences that are likely if they fail, even to a limited extent, to do so.
Sentencing submission
Your counsel submitted all sentencing principles could be achieved by the imposition of a Community Corrections Order. I had you assessed by Corrections and you were deemed suitable for that order with community work as a condition. The prosecution submitted that a term of imprisonment was warranted though conceded that a combination sentence was within range.
Sentencing for these kind of offences is very difficult. The consequences of your conduct were grave, as a result of your inattention a man has lost his life through no fault of his own. There are no winners in cases like this. The impact on Mr Freeman’s family and friends but also on your own family has been significant.
There are very positive matters in mitigation, including your plea, remorse, good rehabilitation prospects and the matters that I accept will make prison more burdensome for you. These factors must however be balanced with general deterrence, denunciation and protection of the public which must be accorded particular weight with this kind of offending. Taking into account all relevant sentencing factors I do not consider that a lengthy term of imprisonment is required. I propose to impose a term of imprisonment four (4) months with a CCO of two (2) years. You will be required to do 75 hours community work.
Ancillary orders
In respect of this offence the court must cancel your drivers licence and disqualify you from obtaining a licence for a period not less than 18 months. Pursuant to s.6AAA of the Sentencing Act 1991 if you had not pleaded guilty to this offence I would have imposed a term of imprisonment of 12 months. I do not propose to make a s.464 order, having regard to my findings in respect of your excellent rehabilitation prospects and the unlikelihood of you committing a further offence.
MR GIBSON: If Your Honour pleases.
MR KANTOR: If the court pleases.
HER HONOUR: Is there any other matters?
MR GIBSON: No Your Honour.
MR KANTOR: No Your Honour.
HER HONOUR: Thank you.
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