Director of Public Prosecutions v Smith

[2022] VCC 1374

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

AT Melbourne

CRIMINAL DIVISION

CR-22-00191

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM SMITH

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 August 2022
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2022] VCC 1374

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HIS HONOUR:

1        William George Smith, you have pleaded guilty to one charge of dangerous driving causing death.  That crime carries a maximum penalty of 10 years imprisonment.  You are now 37 years of age.  You have no prior convictions and, indeed, do not even have any prior matters with the Road Traffic Authority.  You sit in this court apart from this one matter as a man with no criminal history at all.

2        You entered a plea of guilty in the earliest opportunity and, indeed, expressed remorse at the scene itself.  I accept that your remorse is profound and, indeed, has had a very significant psychological effect upon you.  You must also get the utilitarian benefit of that plea of guilty.  In a situation such as yours, you could have chanced your arm as I have said once or twice before and see how you went in front of a jury.  In this situation, you have owned up to what you have done.  You have accepted responsibility and you have saved the family of the victim the extreme unpleasantness and distress of having to give evidence in a trial.  I fully understand that these matters take time to ultimately resolve and members of the public do not necessarily understand that.

3        

You must also get the benefit of that utilitarian aspect in a situation where Worboyes is now prevalent in that the system is over logged and overburdened and pleas such as yours endeavour to assist that in the

Court of Appeal in Worboyes and subsequent decisions as said that should be so.  A summary of the offence is as follows.

4        On the evening of Tuesday, 15 October 2019, a fatal collision occurred at the intersection of the Sale-Toongabbie Road and the Denison Road in Nambrok.  At that time, you were driving your vehicle and came towards that intersection and came to a give way sign.  Both Denison and Sale-Toongabbie Roads are 100 kilometre an hour speed zones and neither of the vehicles involved was exceeding that; indeed, were somewhat under it.  It is a rural area surrounded by large farming properties.  The intersection of Denison Road and Sale‑Toongabbie Road, vehicles travelling east and west on the Sale‑Toongabbie Road have right of way.  Vehicles travelling north and south on Denison Road are required to give way to all vehicles on the Sale‑Toongabbie Road.  You were required to give way to all vehicles.  Those give way signs were seven metres north to the painted white line.  There is no suggestion that they were obscured or anything along those lines. 

5        Essentially, what happened was that you approached the intersection and you have a clear view, I am told, of the vehicles travelling along Sale-Toongabbie Road, for about four seconds.  In that period of time, you failed to notice the vehicle of the now deceased man approaching and you proceeded into the intersection.  In these circumstances, it is important to note from the outset that it is not a situation where you were distracted, you were not talking to anybody else in the vehicle; there were no drugs involved; there was no speed involved; there is no alcohol involved; there is no use of a mobile phone; there is no changing of tapes; there is no recklessness and there is no fatigue.  You were simply a decent hardworking man on your way home from work who lost concentration for a few seconds.

6        The dreadful, dreadful part of all this is that Stephen Schmetzer was travelling from his work in the Royal Australian Air Force base in Sale towards his home in Toongabbie approximately 17 kilometres away from where the collision took place.  At the time of the collision, the road was dry and it was just on dusk.  He entered that intersection without any awareness, obviously, that you were coming the other way and you collided with him.  After the impact, to your great credit - and this is very unusual if I may say so - you endeavoured to assist him.  By the time police arrived, you were performing CPR on Mr Schmetzer.  There were no other people present.  The first ambulance arrived at approximately 7.09 pm and took over CPR from you.  But by that time, as I understand it, he was dead. 

7        You gave a brief account to Senior Constable Bagley and you said - which was recorded:

'I've slowed down.  Slowed down further up and watched the road and then I sped up when I thought it was clear and then I - I fucking missed him.  I don't know.  I don't know why I missed him.  Don't know if it was, you know, had the radio up loud, that was pretty much it'.

8        You then made a phone call to your work manager and told him that you had had a serious vehicle collision and you said: 'I was on my way home and I went through an intersection and I just didn't see the car coming and I smashed into it.  It was my fault'.  You were taken to Sale Hospital, where I have already indicated a sample of blood was taken.  No sign of drugs, no sign of alcohol, no sign of any of the matters that often in these situations aggravate it. 

9        Without going any further at this point to say that bearing in mind decisions such as the recent decision by Her Honour Justice Fox in R v Liu and going back to decisions such as R v Hallet which was some years ago now, situations such as this, where the loss of concentration is momentary.  One of those cases was traffic lights at a pedestrian crossing where a child was killed going through a red light.  Hallet was a situation where a 75-year old man on the Bunyip Road and went through a stop sign and somebody was killed.  Again, the same sort of circumstances and in each of those it was found that the moral culpability itself - and I use that as a legal term - was low.  The consequences, of course, are far from low.

10      I have before me victim impact statements which are from Mr Schmetzer's wife and from his sister which clearly make clear the devastating effects of such a collision and the devastating effects that just a couple of seconds of inattention can cause.  She said - and I will quote in some detail - it is important to understand for everybody the consequences of this and the dreadful loss that has been suffered.  I am paraphrasing some of it.

'Steve was my husband and also my best friend.  We did everything together and talked about absolutely everything.  I could debrief with him after a busy or traumatic shift at work, discuss goals and ambitions for the future and had his full support and encouragement with anything I chose to pursue.  Our daughter was seven weeks old at the time of the accident.  I was still adjusting to life as a mum with a newborn when I suddenly became a widow too.

The lack of emotion and physical support in those first few months from my husband and the trauma of his death resulted in my inability to remember most of my daughter's life from seven weeks to about 12 months.  At a time when most parents are loving watching their first baby's milestones, I was dreading each one as I knew her father would never see them.  I found it incredibly difficult to drive at night following the accident'. 

11      As has been clearly pointed out, his unfortunate wife was driving up the Sale-Toongabbie Road and saw the red and blue lights from the police car.  She was then informed that it was her husband who was deceased at the scene.  It is hard to imagine a more shocking experience for a wife and a young mother.  She stopped at the roadblock and was informed of her husband's death, as I indicated.  She, obviously, clearly has difficulties with night driving and police lights and all that type of thing.

12      Her daughter will miss out on having the experience of a dad.  'She was Steve's proudest achievement and in the short time they spent together definitely a daddy's girl.  She never got a chance to know him, only what I can tell her.  We only have two photos of the three of us as a family'.

13      She said:

'I have trouble sleeping most nights going to be with pillows stacked next to me where my husband should be.  I was prescribed melatonin to feel tired and help get to sleep though I usually wake from 2 am to 4 or 5 am and I have not taken other medication to help sleep through the night'.

14      There is also a victim impact statement from Mr Schmetzer's sister which I have read and take very much into account which says pretty much the same thing.  You, as I have said, were a decent hardworking man who was simply coming home from work and was inattentive for a few seconds.  The man that you effectively killed was also a very decent man; a new father, hardworking and also just on his way home from work.  These circumstances are irreparable in my view and all I can do is sentence according to the law. 

15      The circumstances here are that general deterrence must play a significant part and indeed, a predominant part.  In your situation, with no prior driving convictions, I am satisfied that specific deterrence for you would serve no useful purpose.  Denunciation has to play a part, but in these circumstances is not paramount.  There must also be an appropriate punishment and a punishment which indicates not only the nature of the crime but the severity of the impact on it. 

16      As Justice Fox pointed out in the decision of Lui, it is a very, very difficult set of circumstances for a sentencing judge in matters such as this because the outcome was never intended or even considered.  What is known at law as mens rea.  It is a dreadful, dreadful outcome as I have already said for a couple of seconds or a few seconds of inattention.

17      Frequently, in matters such as this, a gaol sentence is appropriate.  Sometimes it is of very significant duration.  Those occasions are almost always where there has been speed or alcohol or something along those lines.  Something that could have been avoided and which we are continually told in the press and elsewhere cause danger in these situations.  Indeed the charge of dangerous driving causing death is now what is known as a Schedule 2 offence where a custodial sentence must be imposed unless, as was pointed out in R v Ferriah, there are either - there is a number of ways but this one here is that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under division 2 of part 3 there is not a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44.

18      There must be a gaol sentence unless I am satisfied of that exception.  It is important to understand that there is no onus of proof or burden of proof on an accused person to substantiate that section.  It is simply an evaluative matter for the individual judge concerned.  In making that decision, I regard general deterrence and denunciation as having greater importance than the other purposes set out in s5.1 but I have already pointed out the moral culpability aspects of it.  I must give less weight to the personal circumstances of you than to other matters such as the nature and gravity of the offence and I have already dealt with the nature and gravity.

19      I must not have regard to your previous good character, other than an absence of previous convictions.  Here it is my view, very important, that your previous history driving a motor vehicle is absolutely blameless.  You do have a guilty plea and I’m not taking into account it being early.  I do not have any regard to prospects of rehabilitation because I think it is not really a question of rehabilitation.  The only rehabilitation will come from you endeavouring to recover from the extreme damage that you have done not only to the family of Mr Schmetzer but to yourself and to your own family.  There are no other sentences that need to be regarded as coming into parity.

20      In the case of R v Ferriah, it simply says that:

'In many cases, given the type of offences in category 2, a term of imprisonment will be inevitable and that is so with dangerous driving causing death.  However, in some cases, the operation of s5(2)(h) will be harsh.  In other cases, a term of imprisonment or youth detention would be entirely unjustified.  Counterproductive from the viewpoint of rehabilitation and work a serious injustice.  That may be particularly so for young offenders'. 

21      It then goes on.  It then points out - this is in R v Ferriah - that there is no onus on the accused person and it is an evaluative judgement for a judge to make once the relevant underlying facts have been established in accordance with settled principle.  The court said:

'We also consider that the mere fact of some individual circumstances may be commonly encountered by sentencing judges in the County Court, would not, by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare.  Every case will necessarily depend on its particular facts'.

22      In that case, they found that it had been met.  It is my view here that the exception is well and truly in play.  I will now go through the history relating to you in terms of coming to that decision.  One of the unfortunate aspects of these matters when one has to sentence that in reality, the sentencing remarks are about that, literally sentencing the accused person.  I am fully aware, having done this many, many times, that the family of the deceased feel as if it is has got nothing to do with them.  I have tried to make it clear in this instance that I have the greatest sympathy and the greatest concern for Mr Schmetzer's family and bearing in mind the particularly dreadful circumstances of his wife.  But I now have to sentence by law taking into account matters personal to you.

23      Your personal history is outlined in a report of Dr Patrick Newton.  You were the youngest of three children in your family.  You grew up in Melbourne and you described your early years as being all right.  Your father worked as a storeman.  Your parents blued a bit but your mother complained about your father's gambling.  They separated when you were about 13.  After that, your mother formed a relationship with a close friend of your father.  It appears that your father, as a consequence of that, took his own life.  You went to primary school in Fawkner and you basically got through school without any undue difficulty.  You are an average student.  You went to St Joseph's in Pascoe Vale.  You went to Assumption College, Kilmore for your final three years and were able to complete Year 12.  Obviously, a man of reasonable intelligence.

24      You then worked in a variety of roles, including as a storeman, in logistics.  You did a pre-apprenticeship as an electrician, a free course with the view of joining the Victorian Police Force and you have an extremely good work record.  You are currently in a management role with a large rural company and there is references before the court to speak of that work ethic and I have read those and I take them very much into account.  It is also, in this situation, important to understand that as a matter of law I have to disqualify you from having a driver's licence for a period of 18 months.  That is a very different penalty in the country than it is in the city and again, it is one of the dangers of mandatory sentencing that we impose even greater difficulties upon you and your young family.

25      You and your wife, Jodie, have been in a relationship for 12 years.  You have been married for seven of those.  You have four children:  Olivia, six, Amelia, three and twins, George and Charlotte and I will refer back to that in a moment.  I take into account, as I have already indicated, the delay in the matter which has been largely due to COVID if the truth be known.  I then turn to the question of remorse and have already indicated that I find that it is profound.  Your wife said in her reference on your behalf and I will refer to it in a moment:

'Our middle daughter is approximately the same age as that of the man who passed away.  I know William is reminded of the family's daughter every time he looks at her.  I see him pull away from moments of joy and will occasionally comment that he knows that there is a family out there whose daughter will not know her father and why does he have the right to experience joy when they cannot.  If given the choice, I believe in a minute William would have swapped outcomes if it meant saving another family from the pain and the tragedy that collision has caused'.

26      Psychologist, Mr Newton, is very experienced in this area and I usually find his opinions compelling.

'Mr Smith expressed a deep sense of distress and pain at having been involved in the death of another person.  His reflections on the collision are focused on his concern for the family of the deceased man, particularly his children and the loss they have faced.  Mr Smith's own enjoyment of his children's lives is tinged with sadness, grief and self-punitive inner dialogue and Mr Smith is burdened by a strong sense of guilt for the collision'. 

27      Mr Newton went on to say, 'Mr Smith experienced overwhelming distress at the time of the collision.  His response was rendered more intense by the close physical contact of administering first aid in an effort to save the driver's life'.

28      I just pause for a minute, as I already indicated that is not a common thing in these situations that people do make that effort.

'Mr Smith continues to experience a comprehensive range of traumatic symptoms encompassing elevated anxiety, dissociative symptoms re‑experiencing and efforts to avoid triggers that provoke distress.  His symptoms have continued since the collision and have been reinforced by a prior history of distress as in connection with his father's suicide.  The delays in the cases resolution and other stress factors are extend to his family.  The appropriate diagnosis for Mr Smith is post-traumatic stress order that persists at a moderate level of severity'.

29      It is also clear from Dr Newton's report that your level of distress and self-guilt makes it even more difficult to treat you.  That you have difficulty coming to terms with trying to fix yourself when you are so conscious of what you have done to another family.  That is an enormous punishment in itself. 

30      Your counsel has provided very helpful submissions as to the provisions of s5(2)(h)(e).  The first of the matters related - the submission is that the accumulation of these matters includes that the exception is applicable and as I have already said I agree with that.  The first is the nature and gravity of the offence is a mandatory consideration and I have taken that into account and mentioned it already.  It is put that the offence is the very margin of criminality and by reference to those earlier decisions, that clearly is a matter of law of the case.  I have got no doubt that that has very little impact on the family of the deceased man who would probably regard such definitions and legal talk as ridiculous.  I tend to support that.

31      It is very difficult in these matters and in matters and in matters such as sexual offending to have to grade offending.  I find it distressing and should not have to happen.  In any event, the second is Mr Smith's lack of criminality.  The third, the plea of guilty which I give weight to but not as being early.  The utilitarian benefit of it Worboyes v The Queen, I have already referred to that.  I have already referred to the deep and inconsolable grief that you have in yourself and in your family and I also then deal with service that a custodial sentence would be extremely onerous to your mental health.  I accept that to a certain degree and the separation from your young family which I think would be a very important factor.

32      It is also submitted that based on the R v Markovic, that the circumstances of your family and the burden that would fall upon your wife should you be imprisoned are exceptional.  You have four children, the eldest is six.  You are main income earner for the family and you live a model rural life.  There is an outstanding mortgage over the family home.  Your wife has taken on more work in contemplation of your imprisonment.  That comes with increased child care costs and time away so the family is prepared for you to be incarcerated.

33      Your youngest children, George and Charlotte, are twins.  They turn two years of age in August 2022.  Charlotte suffers from cat eye syndrome, a repeat of Chromosome 22.  There is a lot of material before me which has been tendered and which I have already read through.  But effectively, what it means is this.  The external right ear, that is the external ear is completely missing; hearing in the left ear, that is the good ear, is insufficient for normal speech and development and tests have shown the progressive decline in the hearing in that ear.  She has delayed speech and requires intensive speech pathology.  Has congenital nasolacrimal duct obstruction that is of the right eye which causes excessive tearing and mucoid discharge and she had reduced milestone development.

34      It is clear in this situation, as I will refer to in a moment, that you play a very important and very significant role in the care of that child as well as the other children.  It seems to me that - and I will read it in a moment - that your wife will be in an extraordinarily difficult situation if you were to be incarcerated.  Then, also the other matters, the COVID-19 pandemic, I take that into account.  I find that the circumstances you are, indeed, exceptional.  But I make it very clear that my determination of 5(2)(h)(e) is applicable, is not determined by that alone.  It is the entire combination and I would have taken into account that exception even if there were not exceptional circumstances insofar as Markovic's concerned.

35      There was other matters I was going to refer to but I do not think I need to.  I have already outlined the devastation, grief and total sense of loss that that very brief period of time has caused to the victim of this matter.  I think it is also important to understand for everybody's point of view the sense of loss and the like it has caused your own family.  Your wife said this:

'I will never forget the phone call from William after the collision.  He is a responsive individual and has owned how his actions have contributed to the outcome.  His actions on that night reflected his true self, providing CPR, assisting the police and doing as instructed.  However, in that moment, he became a changed man and has struggled to deal with the remorse, guilty and burden he has carried.  As such we have all struggled.  Straight after the accident, it took several months for him to emotionally engage with myself or the children.

He has broken down to me several times about how the accident and the outcomes go against his own core values and he is yet to be able to forgive himself for his role in the event.  He is extremely remorseful and has self-imposed the feeling of shame and disgrace believing that will carry amongst the community and amongst our family and friends, especially as this event is so out of character for William.  Indeed, he has always prided himself on his good driving record and abilities.

The counselling sessions he has been attending since the collision have provided him a safe outlet free of judgment and are helping him manage his ability to move forward.  But I know that he will never forgive himself.  William is his own worst critic and I don't think I know anyone who is as hard on themselves as William.  He said to me many times that it shouldn't have happened.  In 2020, we welcomed out twins, a surprise pregnancy'.

36      She then describes Charlotte's condition.

'Throughout her life as at 18 months, she will display clear development delays.  While William's emotional hearing continues, he is always there for myself and the kids.  He works full-time but still takes the girls to gymnastics on the weekend.  We are a family unit and our family needs a unit to function based on our remote location, work commitments'.

37      I have already indicated what is going to happen to the driver's licence.

'Four children under six and Charlotte's special needs, which includes speech therapy, physiotherapy, occupational therapy, vision specialist hearing, urologist and the need to learn sign language.  Expecting that our family may be facing financial strain, I took on a position as research manager at Latrobe Regional Hospital in 2020 and have subsequently taken on extra work responsibilities and left in this role.  However, the cost of day care, we currently have three in day care and thereby the appointments needed for Charlotte negate my ability to work full-time.

We are lucky to have strong family support but William's family are located three and a half hours away in Lancefield and my parents live local but are elderly and unable to care independently for the children.  Indeed, my mother has recently undergone surgery on a skin graft to remove a melanoma on her leg after being in remission from two bouts of
Non-Hodgkin's Lymphoma.  As my parents still reside at my family's farm, William often helps my father gather wood or undertake larger tasks he is unable to complete on his own.  Whilst I fully try to understand all that the other family have already lost, I worry about my abilities to manage should William not be here for an extended period to support me physically and emotionally, financially and the impact it would have on my children and family'.

38      She goes on to say how deeply sorry she is for the family of the deceased man.  That is the sentencing basis here.  I am not going to through, as some judges do, a dozen comparative cases.  This is a situation which should have never happened.  A very much loved and very constructive member of the community is deceased.  His daughter will grow up without a father.  Another very much loved and constructive of the community will spend, I have no doubt, the rest of his life in grief and self-remorse.  There is absolutely nothing a sentencing judge in this distressing situation can do to affect either of those two outcomes. 

39      However, in the end, I have taken the view that a custodial sentence is not the only disposition open in these circumstances and accordingly what I have had you assessed for is a Community Corrections Order and you have been accepted as suitable.  It will be a very significant Community Corrections Order to simply bring home to anybody who looks at it that this was in no way, shape or form some sort of trivial accident or something along those lines.   It will be with conviction.  It will be for a period of four years.  It will include supervision.  It will include the condition of mental health.  There will also be a period of 350 hours of community work that will need to be performed over that four-year period. 

40      I am mindful in this situation that as I will be doing in a moment, cancelling your driver's licence and disqualifying you for 18 months, I make it very difficult to complete those work hours and you should understand that if problems arise with that it can be extended.  You will be under supervision; you will be under the threat of breaching that for the next four years.  As you will clearly understand, should you breach it by any sort of offending such as this, even a drink driving or something like that and are brought back before me for a breach, the consequences may be very, very different indeed. 

41      That is the decision if you agree to that.  It is a four-year CCO with conviction, 350 hours, mental health and with supervision.  Just get him to sign that, please.  All right.  You understand the consequences of breaching that?

42      OFFENDER:  Yes, I do.

43      HIS HONOUR:  All right.  That order is made.  Pursuant to s6AAA which is meaningless in a situation like this, I would have given a CCO with greater punitive aspects.  All right.  No other orders I need to make?  Yes.  Thank you.

- - -