Director of Public Prosecutions v Smith

[2018] VCC 532

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01517

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL SMITH

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2018
DATE OF SENTENCE:	12 February 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 532

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public	Ms A. Hassan
Prosecutions
For the Accused	Mr M. Dempsey

1HIS HONOUR:  Paul James Smith, you have pleaded guilty to one count of culpable driving. The maximum penalty for this offence is 20 years imprisonment.

2You have no prior criminal history or driving history. You have no matters since of this offending, or any matters outstanding.

3The prosecution tendered a prosecution plea opening. A brief summary of your offending is as follows.

4On Friday 24 March 2017, you commenced drinking at home after work. You told police that you had 4 to 5 Peroni beers at home. You then moved to a couple of hotels in Bacchus Marsh. A friend of yours drove you into Bacchus Marsh. I should say from the outset that you had no intention of driving that night. It is fair to say, though, that you drank a lot. It appears that you would usually consume some 15 to 20 alcoholic drinks on a Friday and Saturday night. Whilst it is not clear how much you had to drink on this night, it is clear that you had had a considerable amount to drink and you were clearly intoxicated.

5Just before 1:30 AM on Saturday, 25 March 2017, you telephoned your flat mate and asked her for a lift home. Her new boyfriend Haydn Kloppers came and picked you up. You had only met Mr Kloppers on a handful of times.

6When he arrived, he was driving your ute. The CCTV footage outside the hotel shows that you moved to the passenger seat, but then you moved to the driver side door. Inexplicably, you were permitted to drive. Within moments of starting off you did a burnout while turning right. This was a portent of things to come. Only a few minutes later just after 1:37 AM, you failed to take a curve on the road. The portion of road on which you were travelling was marked as a 60 K PH zone. Accident reconstruction experts estimate that you were travelling at 186K PH when your car left the road and hit a tree. The critical curve speed (at which the curve could still be taken) was 155K PH.

7Mr Kloppers, your passenger, died at the scene.

8Your blood alcohol content was tested in Melbourne when you arrived at the Melbourne Hospital. It gave you a reading of 0.173 per cent. A medical expert estimated your blood alcohol level at the time of driving was between 0.194 – 0.224 per cent. The expert stated that in his opinion you were intoxicated to the point that you are incapable of having proper control of a car.

9You were unable to tell police who was driving and you were traumatised to see that it was Mr Klopper's who was in the passenger seat. You told police that you did not know who had come to pick you up.

10You were interviewed by police in a tape record of interview on 28 March 2017. You were cooperative with the police and you answered the questions that you could. However, there were large gaps in your memory and you simply could not answer critical questions. Nevertheless, I consider that you were genuine in your efforts to assist the police in this matter.

Analysis of the gravity of your offending

11Little needs to be said about the gravity of your offending. It is sufficient to say that you were driving at over 3 times the legal speed limit. Moreover, you did so when your blood alcohol content was approximately 4 times or more over the legal limit. It is also enough to repeat again the opinion of the medical expert: you were incapable of exercising proper control over the car you were driving. So much is reflected in the indictment which you have pleaded guilty.

12The speed at which you drove and the alcohol in your system at the time you drove are, each separately, very serious breaches of the criminal law. However, when they are combined, they make the objective seriousness of your offending very grave indeed. Furthermore, the consequences of your actions resulted in the death of an innocent young man who was only there to do you a favour. I note that your offending is not aggravated by an intention to drive all along – as I have previously stated, you arranged for a lift to the hotel at first and you had arranged for a lift from the hotel. But the state of your intoxication was such that your good intentions fell by the wayside.

13From the outset, your driving was dangerous and irresponsible when you performed a burnout going around the corner as you took off from outside the hotel. The circumstances of your offending must attract principles of deterrence, denunciation and protection of the community.

14The family of Haydn Kloppers were present in court for the plea hearing. I commend them, as they acted with dignity, and integrity and more than a deal of courage. Their victim impact statements told of the pain they feel at the loss of their son, grandson and their brother. It is readily apparent that his loss, and in these circumstances, will stay with the Kloppers family members for the rest of their lives.

Personal circumstances

15I turn now your personal circumstances.

16You are 26 years of change, and you were born in May 1991. You were 25 years of age at the date of your offending. You were the youngest of 4 children and your childhood and adolescence were free of abuse or neglect. You enjoyed a close and loving relationship with your family. Many of your family members and friends were present to support you in court at the plea hearing.

17You were educated until year 10. You had no particular difficulties at school. Since leaving school, you have been continuously employed. You worked as a kitchen hand, process worker and then for the last number of years as an apprentice roof plumber with Aqua Roofing. Your employer, Justin Steeper, provided a most impressive reference. Both before and since this accident, you have been a diligent and reliable employee. You have overcome the difficulty of working without a driver's licence without complaint, irritation or interruption to your work. In fact, you have taken on extra work so that you could complete your apprenticeship ahead of time in order to provide yourself with the prospect of an avenue of employment on your release from gaol.

18Your partner for the past year or so, Carly Morey, provided a reference. She considers that you are truly remorseful for your actions. I accept that you are remorseful. It appears that since your car was written off, you have had to bear the cost of the balance of the car loan and to meet other expenses. Ms Morey describes the realistic way in which you have faced the consequences of your own actions.

19Your father in his reference also speaks of your remorse.

20In all, your references speak of an otherwise honest, hard-working young man who feels significant guilt for his actions.

21A report was prepared by the forensic psychologist Mr Newton. Mr Newton considers the only significant criminogenic factor in your assessment is your abuse of alcohol. It appears that you have been drinking to binge levels on a Friday and Saturday night since your mid-teens. Nevertheless, it is noteworthy that your high level of drinking has not put you in trouble with the law previously. Mr Newton (and others) report that you have reduced your drinking substantially and although you have not had formal treatment, you demonstrate good insight into drinking related matters. Mr Newton considers that as at 25 March 2017 you would have met the criteria for a moderate alcohol use disorder. He considers that this disorder is now in early remission. He considers that you would benefit from alcohol-related education and counselling to ensure that your progress is consolidated.

22In addition to this, Mr Newton considers that you have symptoms which meet an adjustment disorder with mixed anxiety and depressed mood. Mr Newton is somewhat concerned that your emotional state could deteriorate with imprisonment. Your state should be monitored by the authorities whilst you are in custody.

23In a most able, measured and carefully crafted plea, your counsel Mr Dempsey relied upon the following factors which he submitted should mitigate your sentence:

·plea of guilty;

·exhibition of considerable remorse,

·insight into your offending and into drinking;

·your otherwise good character;

·your very high to excellent prospects for rehabilitation (with considerable family support and good work prospects as protective factors); 

·your relative youth.

24I accept that each of these factors is present and ought to militate the sentence that I impose upon you.

25Mr Dempsey provided to me the sentencing advisory Council sentencing snapshots for the offence of culpable driving causing death  as at April 2017 and the Victorian Supreme Court of Appeal overview of culpable driving as the principal offence (sentences from cases, 2006 to present) I have considered those cases, the sentences handed down and the circumstances surrounding the offending in them. Ultimately, however, no two cases are exactly the same. I must sentence you according to the law set out in the sentencing principles but also, on the circumstances as I have found in this case.

26It was submitted, quite properly by Mr Dempsey, that a term of imprisonment for your offending was inevitable. What Mr Dempsey urged upon me, however, was that I should temper the length of the sentence and structure it such as to give you a longer period of parole to reflect the matters in mitigation. Given that you have no prior convictions, you are still relatively young, and you have excellent prospects of rehabilitation, I have decided that it is appropriate to give you a slightly longer than usual parole period.

27In the end, however, this is a case where the principles of deterrence, denunciation and protection of the community must figure largely. It is imperative that the message of deterrence is sent to others, and particularly to your demographic, the young men who drink and then drive. The message is simple: the punishment for culpable driving is severe. The community will not stand to see innocent people killed by those who drink and then drive with speed.

28To the Kloppers family, I should say this. It is my duty is a Judge of this court to impose a sentence on Mr Smith as an offender under the criminal law. The sentence I impose is not a measure of the value of the life lost. Your son's, your grandson's, your brother's life and loss are immeasurable. The sentence is separate to and is no reflection of that.

29I find under s.89C of the Sentencing Act that this offence occurred when you were under the influence of alcohol. 

30On the charge of culpable driving, you are convicted and sentenced to eight years imprisonment.  I order that you serve a non-parole period of five years. 

31I declare that the period of 13 days, pre-sentence detention is reckoned, as already served.

32You are disqualified from holding a driver's licence for a period of two years.  The period of disqualification commences on 30 January 2022.  In other words, I have taken into account the fact that you have already spent a year off the road and assuming all things being equal if you are granted your non-parole period, you will have another year off the road.  Otherwise it becomes too difficult for you to complete your rehabilitation and to obtain work.

33The 6AAA declaration is that but for the plea of guilty, I would have sentenced you to a period of ten years with eight years to serve. 

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