Director of Public Prosecutions v Slater
[2024] VCC 1399
•2 September 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00318
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRUCE SLATER |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2024 and 7 August 2024 |
| DATE OF SENTENCE: | 2 September 2024 |
| CASE MAY BE CITED AS: | DPP v Slater |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1399 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Charges of dangerous driving causing death and dangerous driving causing serious injury – driving a minibus which overturned – plea of guilty after acceptance of sentence indication – no exception under s 5(2H) Sentencing Act 1991 established – mid range of dangerous driving – suffering serious medical conditions – medical treatment in prison – delay.
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Georghiou [2019] VCC 589; DPP v Woo [2016] VCC 244; Director of Public Prosecutions v Yu [2019] VCC 1805; DPP v Lombardo [2022] VSCA 205; DPP v Borg [2016] VCSA 53; Al-Anwiya v The Queen [2022] VSCA 181; DPP v Westerman [2020] VCC 24; DPP v Rodda [2019] VCC 1930; DPP v Cowburn [2019] VCC 1918; DPP v Yu [2019] VCC 1805; DDP v Hobson [2020] VCC 1702; DPP v Nasser [2020] VCC 1660; DPP v Wilson [2020] VCC 1177; DPP v Curram [2020] VCC 873; DPP v O’Neill [2020] VCC 648; DPP v Flintrop [2019] VCC 1930; Tomes v The Queen [2017] VSCA 118; Merryfull and Bloomfield [2023] VSCA 244.
Sentence: 12 months’ imprisonment and a 24-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Office of the Public Prosecutions |
| For the Accused | Mr W. Blake | Kate Freshwater Lawyers |
HIS HONOUR:
Introduction
1Bruce Slater, you are now 77. On 20 May 2021, you drove a minibus which overturned and killed a passenger and seriously injured three other passengers. The original indictment against you contained 13 charges. However, you sought a sentence indication on the charge of dangerous driving causing death, and three charges of dangerous driving causing serious injury. On 15 February 2024, I gave indication of 12 months' imprisonment on the charge of dangerous driving causing death and a Community Correction Order of 24 months' duration on the charges of dangerous driving causing serious injury. You accepted my indication. For the plea hearing, the circumstances of your offending appear in the document entitled ‘Summary of prosecution opening for plea’.
Circumstances
2On 20 May 2021, you drove a hired minibus. It was the first time you had driven a minibus. Apart from you, there were eight passengers. This was an outing of the Gunbower Senior Citizens Club. The club arranged a trip to visit silos on which were painted murals. It took more than one meeting to arrange the outing. At one meeting, you volunteered to drive because the usual driver did not want to do so.
3The minibus was hired and you collected it on 19 May. The trip was started at about 8.30 am on 20 May in Gunbower. The prosecution's opening traces the trip, stopping for lunch at Benalla. After Benalla, the minibus was heading for Colbinabbin, which is the last silo to be visited.
4The accident occurred on the Murchison-Violet Town Road, Arcadia South. There are farming properties on both sides of the road. It is 6.55 metres wide and runs in generally an east-west direction. The road surface is bitumen. It is level and in good condition. Traffic travelling east or west find the road divided by broken white lines and solid white lines. The edges of the bitumen surface are marked by solid white lines or fog lines. There are gravel shoulders beyond the fog lines. On the northern side of the road, it was 2.65 metres wide and on the southern side,
2.9 metres. In the area where the accident occurred, there was a slight curve in the road. At the time of the accident, it was sunny and the road was dry. The applicable speed limit was 100 kilometres per hour.5At about 2.29 am the minibus entered the gravel shoulder on the southern side of the road and remained there for about a hundred metres. You did not correct the vehicle's course or slow down. Several people yelled at you but you did not respond to what they said. It was only after colliding with a second object did you steer hard to your right but did not brake. The steering caused the minibus to cross the road at an angle and enter the ditch on northern side of the road. Despite steering to the left, the minibus entered a paddock. It rolled and eventually came to rest on its wheels in the paddock.
6Before entering the gravel shoulder, there were disturbing signs of the quality of your driving. Shirley Spark estimated you drove into the gravel shoulders at least 10 times before correcting course. Roger Spark thought you drove at high speeds. He remembered other members of the group being concerned about the speed you drove at and your attitude to driving. Glenn Miller noted in the morning you drove into the gravel shoulder, before correcting course.
7
In the lead up to the accident, Roger Spark noticed the minibus enter the gravel shoulder twice. He became worried after the second occasion. He told you to slow down. With Shirley Spark the minibus entered the gravel shoulder about
two or three times between Benalla and the accident site. About 10 minutes before the accident, Valerie Bastra felt the minibus enter the gravel shoulder two or three times. After Glenn Miller saw the minibus enter the gravel shoulder, 'quite a few times' and for 'quite some time', he asked you if you were ‘alright’ to drive. You replied that you were. Several people yelled at you, but you did not reply. You did not respond after striking a small white post on the side of the road. Only after striking a small sapling did you alter course.
8
Most of the occupants of the minibus remained in their seats. However,
Casey Spark was in the middle aisle and Shirley Spark was ejected from the minibus. Despite passing motorists performing CPR on Casey Spark, she died at the scene of the accident.
9After you were spoken to by a policeman, you were taken by ambulance to the Shepparton Hospital and then flown to the Alfred Hospital in Melbourne. Tests revealed neither the present of alcohol, nor illicit drugs in your blood.
10Each of the charges of dangerous driving causing serious injury concerns a particular passenger.
Ursula Sutcliffe
11Charge 2 concerns Ursula Sutcliffe. The injuries she sustained included;
(a) posterior dislocation of the right shoulder;
(b) fracture of the right leg, just proximal to the ankle;
(c) open fracture dislocation of the fibula and ankle of the right leg;
(d) a closed fracture of the right bicondylar tibial plateau;
(e) a small chip fracture of the talus of the left ankle;
(f) a deep laceration of the left knee;
(g) open posterior lateral dislocation of the left knee.
12Ms Sutcliffe underwent transfusions, incubation, sedation and surgery. Nevertheless, her right leg was amputated below the knee. She will require long-term antibiotics, plastic surgery and rehabilitation.
Dawn Miller
13Charge 3 concerns Dawn Miller. She was flown to The Royal Melbourne Hospital and suffered injuries including;
(a) multiple fractures to the second to ninth ribs on the left side with flail chest and a fracture of the first right rib;
(b) a right C7 transverse process fracture;
(c) a fracture to the posterior part of the right clavicle.
14Under surgery, her fractures of the clavicle and ribs were repaired and pins and plates inserted. The movements of her right arm are still limited.
Shirley Spark
15Charge 4 concerns Shirley Spark. She was flown to the Alfred Hospital in Melbourne. Her injuries included;
(a) damage to the optic nerve of her right eye;
(b) deep facial cuts;
(c) fractures of five ribs on the left side; and
(d) fracture of the left scapula and injuries to her lumbar spine.
16She required various transfusions and different forms of surgery. She still receives medical treatment.
Collision Reconstructionist
17On 20 May 2021, a collision reconstructionist inspected the accident scene. He followed the path taken by the minibus and found:
(a) 66.9 metres of tyre print on the gravel indicating the passenger side wheels were off the bitumen;
(b) 37.1 metres of tyre prints on the gravel indicating over the distance the driver's side wheel or wheels were off the bitumen;
(c) tyre marks changing to scuff marks suggesting the minibus travelled sideways;
(d) 77.8 metres of tyre marks on the gravel before the minibus returned to the bitumen;
(e) 20 metres of passenger side tyre scuff marks and scuff marks from the driver's side;
(f) 10 metres of tyre marks from the northern edge of the bitumen to flattened grass;
(g) 24 metres of flattened grass;
(h) four scuff marks after the paddock fence line;
(i) six gouge marks in the paddock suggesting the minibus completed at least two full rolls.
18When the minibus entered the gravel shoulder on the southern side, the reconstructionist estimated its speed at between 104 and 120 kilometres
per hour. While the estimated speed when the minibus began to yaw while on the gravel shoulder was 82 kilometres per hour.19The police obtained your past and present medical records. They sought the opinion from Professor Matthew Naughton, a sleep expert. He saw photographs of your CPAP machine and details of the use of the machine between
25 November 2020 and 8 October 2021. He considered the usefulness of the machine for you was ineffective owing to the excessive leakage of oxygen. He considered the machine had been poorly maintained and made it more likely you would experience excessive sleepiness.20On 19 August 2021, you were interviewed by police members. Although you answered their questions, little emerged from the interview.
Maximum penalty
21The maximum penalty for dangerous driving causing death is 10 years' imprisonment and for dangerous driving causing serious injury, five years' imprisonment.
22Under s 89 of the Road Safety Act 1986, on finding you guilty of these charges, I must cancel your driver licence and disqualify you from obtaining a licence or permit to drive a motor vehicle for at least 18 months.
Category 2
23The offence of dangerous driving causing death, is a category 2 offence under the Sentencing Act 1991. What that means is I must impose a sentence of imprisonment for that offence unless you establish an exception under s 5(2H) of the act. You did not establish such an exception.
Criminal history
24You have had one appearance in a criminal court in 2012. You received sentences of imprisonment for sexual offending against children. The effect of these sentences is you are not a person of good character. Persons of good character are entitled to a discount on their sentence for that reason, You are not.
Victim impact statements
Shirley and Roger Spark
25On 4 April 2024, Shirley and Roger Spark wrote individual victim impact statements. They are parents of Casey Spark. Shirley and Roger Spark were passengers on the minibus and Shirley Spark suffered serious injuries.
26Shirley Spark's impact statement discusses both the grief she has suffered from losing her daughter and also the injuries she has suffered as a result of the offending. She describes her grief as horrid. She misses her daughter every day and is engaged in counselling over the loss.
27She was in a coma for a number of weeks due to her injuries. The injuries she has suffered have affected her whole body. She experiences tingling in her legs and struggles to see out of one eye. She has suffered significant injuries to her face and has attended many doctor and specialist appointments. She often stays home not going out as much as she used to. Emotionally this has been very difficult for her and her husband, Roger. She is very concerned about Roger's mental health.
28Roger Spark is Casey Sparks' father. He usually drove the minibus for members of the Gunbower Senior Citizens Club. Due to his age and licence status, he was unable to drive the minibus on the day of the accident. As a result of the offending, he has been unable to return to the club and see his friends.
29Reliving this event causes him a great amount of grief and he is distressed talking about it. After the crash, Roger tried to help his daughter and his wife. He attended upon them both when the offending occurred.
30Mr Spark was in hospital himself with minor injuries. He was very concerned about how he would tell his wife their daughter had passed away. He discussed this approach with a minister and when Shirley was out of her coma, he broke the news to her.
31Due to Shirley's extended stay in hospital, she was unable to attend her daughter's funeral. It was held during the restrictions caused by the pandemic, so the number of people attending was limited. Financially it was difficult for them to afford the funeral. Further expenses were incurred by Roger who travelled long distances from regional Victoria to visit Shirley in hospital.
32Roger looks after Shirley now she is home. However, the injuries still make it difficult for both of them. When driving Shirley becomes anxious.
Glenn and Dawn Miller
33On 19 March 2024, Glenn and Dawn Miller each wrote victim impact statements. Glenn is the husband of Dawn Miller, who was seriously injured in the crash, and he was also a passenger on the minibus.
34Prior to the accident, Glenn enjoyed playing sport, gardening and house maintenance. Now. he finds these activities difficult and is unable to do them. He suffers from flashbacks of the crash and headaches when he travels in a vehicle for longer than an hour.
35Dawn is nervous when she travels in a car. She is triggered emotionally whenever a car drives over rubble strips on the road. As a result of her injuries, the left side of her body is uncomfortable, despite strengthening exercises. Her breathing has deteriorated. She finds it difficult being in confined spaces.
36Overall, Glenn and Dawn both describe their quality of life as depleted since the accident.
Personal
37You are now 77. Until earlier this year, you lived with your younger brother, Ian, in Gunbower. You grew up in the inner-western suburbs of Sydney. You had a stable and happy childhood. Your mother died in 2000 and your father in 2010. In 2012, you then moved to Victoria and have lived in Gunbower ever since.
38When you were 25, you met your wife. You have four children. Your wife died of cancer in 2005. All your children now live in New South Wales and you have a good relationship with them. You speak to them often and visit them each year at Christmas time.
39You have limited memories of your schooling years. You went to Yeo Park Primary School in New South Wales until moving to Summer Hill Primary School. You had no learning difficulties and made friends easily. You completed high school at Newington College in 1965. From 1964 until 1984, you were engaged with the Army Reserves.
40After school, you gained employment at Westpac and the
Commonwealth Bank in administrative and customer service roles. You worked in the banking sector for three to four years before leaving to work for Dunlop. At 23, you began working for the Peninsula and Oriental Steam Navigation Company, known as P&O, and remained working there for 30 years. You worked in a number of roles including logistics, freighting, administration and finance. You were ultimately made redundant.41In 1998, following your redundancy, you commenced tertiary education and studied accounting. After your study, you completed supervised work and received your registration as a tax agent. Since then, you have been self-employed and continue to work in a reduced capacity. Until recently, your working schedule was light and you worked from home.
42You have an extensive range of medical issues, including chronic obstructive pulmonary disease (COPD) for which you use the CPAP machine, ischaemic heart disease, kidney disease, emphysema, unstable angina, type 2 diabetes, hypercholesterolaemia and ulnar neuropathy (nerve condition). You are prescribed a substantial amount of medication for these conditions.
43You also suffered injuries as a result of the offending. Soon after you were admitted to hospital for these injuries, you suffered a cardiac arrest and a massive pulmonary embolism. You were admitted to the intensive care unit and remained there until 7 June 2021. You were readmitted a week later due to worsening respiratory failure. You were discharged on 25 June 2021 and transferred to a rehabilitation unit until 18 August of 2021. You use a four-wheeled walking frame to walk about.
44In May 2021, you suffered a ST-elevated myocardial infarction or STEMI. In October 2023 you suffered a non-ST-elevated myocardial infarction or NSTEMI. The latter involves a partial blockage of a coronary artery. It is usually seen as a lesser form of myocardial infarction, while the STEMI is a full blockage.
45On 8 January 2024, you were admitted to the Echuca Hospital after feeling chest pains. It was an overnight admission. Your complaint was diagnosed as a NSTEMI.
46Since June 2024, you reside in an aged care home attached to the Cohuna Hospital. In February 2024, you were eligible to receive a subsidy from the Australian Government for personal residential care.[1] You need a walking frame to move about the nursing home.
[1]Letter from Myagedcare, dated 8 February 2024.
Discussion
Sentencing purposes
47All of the purposes of sentencing apply. General deterrence is the most important. By itself, age alone does not mitigate a sentence. For someone with your conditions, imprisonment may not be more burdensome than for others. It may prove your sentence will be spent in facilities which replicate those you presently enjoy in aged care. However, imprisonment is the curtailment of a person's liberty. Where you are imprisoned may be a long way from Gunbower or Cohuna.
48I do not see the purposes of specific deterrence and protecting the community from you as important sentencing purposes. You have no history of driving offences. Your ability to drive appears severely impaired from a physical perspective. At present, you use a walking frame to move about. Even apart from any period of disqualification, one supposes your driving days are over.
Gravity
49As a former magistrate, I dealt with many cases of the summary charges of driving in a manner dangerous or at a speed dangerous. Many involved driving far worse than your driving on this occasion. Obviously, and sometimes almost miraculously, none involved the serious consequences of your driving. Your driving was an extensive lapse for a vehicle travelling at speed greater than a hundred kilometres per hour. You had been warned by some of your passengers but took no notice. I do not know why you took no notice. One might have thought one warning would have been enough. The degree of dangerousness of your driving is in the mid-range.
S 5(2H)(e)
50In giving my sentence indication, I said there was insufficient material to make a finding under s 5(2H)(e) of the Sentencing Act 1991. Since then, further evidence has been presented. In particular, I heard from your general practitioner and from a Director with Justice Health.
51Your general practitioner is Clare Bottcher. Her report, dated 29 April 2024, sets out the history of your conditions and your current medications. Both are extensive, especially the latter.
52On 9 January 2024, you underwent an angiogram with the insertion of a stent. Dr Bottcher described the reason as an NSTEMI. There is a discharge summary from the Bendigo Hospital. The significance of its findings require expert explanation and none was given.
53There is also a report dated 21 March 2024 from a cardiologist registrar, Kimberly Chan, which seems to link your shortness of breath, light-headedness and dizziness following discharge from hospital, to excessive medication.
54There is another entry for 9 April 2024, which reads;
'CCF admitted as inpatient for CCF management. Chronic kidney disease CKD 4. Obesity.'
55Another document is a discharge summary from Echuca Regional Health. It records an inpatient admission between 13 and 14 February 2024, following two episodes of unconsciousness.
Bottcher
56You have been a patient of Dr Botcher since 30 June 2023 but a patient of her clinic for much longer. Her oral evidence added to the contents of the documents.
57In October 2023, you were admitted to hospital with cardiac failure.
58In January 2024, you were admitted to hospital following a non-STEMI heart attack. A stent or stents was or were inserted.
59On 9 April 2024, you were admitted as an inpatient to hospital with rapid atrial fibrillation and cardiac failure. During this admission, it was discovered your kidney disease had worsened, reaching stage 4. Stage 5 is the next stage where a patient requires dialysis.
60On 12 June 2024, you were readmitted into hospital suffering from significant hypoglycaemia, was treated with insulin and you are now on QID insulin injections.
61You were cared for by your brother. However, he cannot care for you owing to undergoing serious surgery. Living alone, you were not taking your medicines when you should.
62Since your discharge from hospital in June, you have resided at an aged care facility attached to the Cohuna Hospital. Dr Bottcher has known this facility for years. The staff ensure you are taking your medicines. For example, you need to test your insulin levels four times a day to determine the amount of insulin you should take. Although you are there for respite care, you are eligible for a Commonwealth subsidy to remain in an aged care facility permanently.
63You suffer from silent ischemia with the usual symptom being shortness of breath rather than chest pain. During 2023, you suffered from episodes of shortness of breath. Although for a diabetic patient, shortness of breath can be diagnosed as being unfit, Dr Bottcher saw this as evidence of cardiac failure. You have not been readmitted to hospital since residing in the aged care facility.
64Your compliance with the taking of medicines is essential due to the escalation of your symptoms. Your conditions are inter-related. Whether in the aged care facility or in prison, you require close supervision. Dr Bottcher believes there have been no issues in the aged care facility because of your constant care and the improvement in your diet.
65Having read the letter of Jackie Ashmore, there was little Dr Bottcher could say about what a prison could offer for you in particular. She worried about your diabetes, kidney disease and heart including congestive heart failure.
66You were injured in the accident, the subject of these charges. You suffered from cardiac arrest and a massive pulmonary embolism. The former required defibrillation. You also suffered an ulnar nerve injury.
Ashmore
67Jackie Ashmore is the Director of Adult Health Services in the
Department of Justice and Community Safety. She wrote a letter[2] and gave evidence of the health services available to prisoners.[2]Dated 27 May 2024.
68Within her department is a unit called ‘Justice Health’. It oversees the delivery of all healthcare services to Victorian prisoners, whether public or private. These services are provided by persons who are not part of the prison system.
69Ms Ashmore described the three levels of healthcare given to prisoners: primary, secondary and tertiary. Primary comprises of general and mental health services. Secondary deals with prisoners who require more complex, specialised skills and facilities. Tertiary is reserved for the most complex and specialist type of clinical care. This type of care can only be given in major hospitals. On the other hand, secondary care involves general, non-specialist, acute and sub-acute in-patient care; specialist outpatient services; and mental health voluntary acute and sub-acute inpatient care.
70For Victorian prisons, the principle of community equivalence applies, namely, prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health service.
71When a person, like you, enters prison, he is assessed, and plans are devised to ascertain your health needs and monitor your progress. How these plans are implemented requires consultation between the prison health services and prison management.
72In prison, the medical officers used by the prison prescribe medicines. If specialist assessment and treatment are required then that is given by specialists at St Vincent's Hospital. However, Justice Health cannot control the timing of specialist appointments or the public waiting lists at St Vincent's Hospital.
73Concerning you specifically, in relation to your diabetes, both its treatment, through medicines, will be given by health staff. Your frequent testing and taking of medicines can be accommodated. Ms Ashmore is not the medical officer who would assess you in prison. She cannot say what the assessment would be and the level of monitoring required. She considered it would be highly unusual for a prison doctor to contradict the doctor from the community about the nature of your treatment.
74Similarly, your heart condition will receive the same attention, including referral to the cardiology section of St Vincent's Hospital.
75Understandably, little has been made of your ulnar nerve condition but it will be reviewed in prison and, if necessary, there will be a referral to the neurosurgery section of St Vincent's Hospital.
76You can bring your CPAP machine with you to prison. But it will be tested before you use it. Whatever consumable items you need for it will be supplied.
77Subject to you paying and with appropriate approvals, you may consult your own doctors, dentists, physiotherapists and chiropractors. Generally, this is reserved for any service not offered by the public health system.
78In prison, the Department assumes responsibility for your health, starting with the initial assessment to treatment. Ms Ashmore noted in her letter:[3]
‘There are a significant number of prisoners in Victoria with complex and chronic health conditions. Health service providers are required to comply with the Justice Health Quality Framework which stipulates that Chronic Health Care Plans are developed and implemented for all prisoners with chronic health conditions.'
[3]At page 3.
79Ms Ashmore cannot say where you would be placed if sentenced to imprisonment. Following assessments of your physical and mental health, it would be a decision of Corrections Victoria.
80For your heart, appointments are made with St Vincent's Hospital. If it is an emergency, the closest tertiary institution would be used. With fluid monitoring, every prison has nursing staff available daily but not every prison has such staff available 24 hours a day.
81As to ischemic changes, they would be identified in the same way as in the aged care facility if the difficulty is breathing.
82Again, your kidney function would be managed in the same way as in the community, including medical practitioners who are in the prison. In her experience, it is mainly used for chiropractic and dental treatment.
83There are two aged care facilities within prisons: at Langi Kal Kal and Hopkins. There is a sub-acute unit at Hopkins. This contains secondary beds and nursing daily between 7 am and 7 pm. Doctors attend six days a week between 9 am and 5 pm. Langi Kal Kal contains an aged care facility. There is daily nursing between 7 am and 7 pm. If medical attention is needed after 7 pm, then the prisoner is taken by ambulance to Ballarat. Where you are placed depends on your initial and subsequent assessments.
84There are sub-acute units in Hopkins, Port Phillip and Ravenhall prisons. Obviously, these offer a higher level of care than that offered in an aged care facility. It is possible that you could be placed in such a unit and for the purposes of any initial assessment and remain there for the entirety of the sentence of imprisonment.
85On the basis of the evidence, I consider the health services offered in prison equals that provided in the community through the public health system. You should receive the care you require in custody.
86Returning to s 5(2H)(e), it provides,
'In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3, (other than a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s 44), unless -
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3…’
87Dangerous driving causing death is a category 2 offence. Dangerous driving causing serious injury is not. Here, the operation of paragraph (e) is further restricted by ss (5)(2HC) and (5)(2I).
88In your case, there are no substantial and compelling circumstances that are exceptional and rare and they justify not making the prohibited type of order. Although elderly and suffering from several serious medical conditions, these will be treated as well in prison as they are in the community. You do face the possibility of dying in gaol, which is the same possibility you would have faced in the community. The difference being you are in custody.
Guilty pleas
89As the chronology of court events shows, there are belated guilty pleas, they are not evidence of remorse. By avoiding a jury trial, they have the practical effect on the administration of justice in terms of time and cost and allowing other cases requiring a trial to move forward. Even now, there remains an element of Worboyes[4] because of the ability of the virus to disrupt trials.
[4]Worboyes v The Queen [2021] VSCA 169.
Current sentencing practices
90Your counsel provided brief summaries of 16 cases[5], where largely a Community Correction Order were imposed for the offence of dangerous driving causing death.
[5]DPP v Georghiou [2019] VCC 589; DPP v Woo [2016] VCC 244; Director of Public Prosecutions v Yu [2019] VCC 1805; DPP v Lombardo [2022] VSCA 205; DPP v Borg [2016] VCSA 53; Al-Anwiya v The Queen [2022] VSCA 181; DPP v Westerman [2020] VCC 24; DPP v Rodda [2019] VCC 1930; DPP v Cowburn [2019] VCC 1918; DPP v Yu [2019] VCC 1805; DDP v Hobson [2020] VCC 1702; DPP v Nasser [2020] VCC 1660; DPP v Wilson [2020] VCC 1177; DPP v Curram [2020] VCC 873; DPP v O’Neill [2020] VCC 648; DPP v Flintrop [2019] VCC 1930.
Delay
91The progress of your case through the courts has been very slow. Although the actions occurred on 20 May 2021, you were not charged until August 2021 with the filing hearing delayed until May of 2022. There were three committal mention hearings before a committal hearing between 22 and 24 February 2023, with a committal for trial on 3 March 2023. There have been several events in this court including a case conference on 20 July 2023 and three listings for a sentence indication.
92For offences committed in May of 2021, it has been a long time reaching a plea hearing and subsequent sentences. I cannot see any blame attaching to you for the delay.
93Your counsel referred to Tomes v The Queen[6]. In another case, of
DPP v Merryfull and Bloomfield[7], the court said of delay:[8]‘It is beyond doubt that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor. There are two limbs to the consideration of such delay: unfairness and rehabilitation. In the absence of a prosecution concession as to their applicability, an offender seeking to rely on either or both limbs will be expected to adduce some evidence to support them. A sentencing judge is not obliged to make separate reference to each limb, but reference to only one may give rise to a question as to whether the other received any weight in the sentencing synthesis.
The unfairness limb concerns the anxiety caused by a charge hanging over an accused’s head. A report by a psychologist may satisfy the evidentiary requirement but ‘[t]here will also be cases where, depending on the duration, cause and other circumstances of the delay, a court may readily accept the delay caused anxiety to the offender without the need for supporting evidence.’
The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community. Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. ‘Less than full weight will be accorded where reliance is placed merely on abstinence from further offending.'
[6][2017] VSCA 118.
[7][2023] VSCA 244.
[8]At [44]-[46].
94There is no direct evidence of you experiencing anxiety waiting for a resolution of these charges but given the nature of the charges, and the potential consequences for you, I have no doubt you have suffered considerable anxiety.
95The rehabilitation aspect is more difficult. You have not reoffended while waiting the determination of these charges, but I would not have expected you to reoffend. You have been on bail. This is conditional freedom with the central aspect of bail is not reoffending. Nevertheless, you have remained offence free and that is to your credit. On the other hand, there is no evidence of remorse, although your pleas of guilty clearly acknowledge your wrongdoing both to yourself and to the world. Overall, the delay is a significant mitigating factor.
Community Correction Order assessment
96On 27 August 2024, you were assessed for the purposes of a
Community Correction Order. Using an assessment tool, the assessor found you were a low risk of reoffending. She noted your earlier completion of a parole order in 2013. After interviewing you, she concluded there was nothing that Community Corrections service could offer and said you were unsuitable for the order.97I have no doubt you would successfully a Community Correction Order with a supervision condition unlike many of the offenders who are placed on Community Correction Orders. The point is that supervision would serve little purpose for you. You are unlikely to reoffend whether supervised or not. Despite the non-recommendation I will place you on a Community Correction Order for two years with a supervision condition, that is subject to your consent.
98Your case reveals the gap in the sentencing powers of courts created by the abolition of the suspended sentence of imprisonment. In the hierarchy of sentences, the Community Correction Order is placed higher than most other sentencing orders. The fact of such an order reflects the seriousness of the offending, even though the therapeutic aspects of the order are unwarranted.
Sentence
99On Charge 1, the charge of dangerous driving, causing death, I sentence you to 12 months' imprisonment.
100On Charges 2, 3 and 4, with convictions and subject to your consent, I will make a Community Correction Order of 24 months duration with a supervision condition.
101On each of the charges, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for a period of five years.
102In deciding on the period of disqualification, I have taken three matters into consideration. The extent to which disqualification is necessary to punish you, the need for protection of the public and the effect of disqualification on you including but not limited to its effect on your prospects of rehabilitation.
6AAA Declaration
103If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a total of three years' imprisonment, with a
non-parole period of 18 months' imprisonment.
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