Director of Public Prosecutions v Stafford-Duffy
[2013] VCC 815
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
CR-13-00202.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY STAFFORD-DUFFY |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 9 May 2013 | |
DATE OF SENTENCE: | 24 May 2013 | |
CASE MAY BE CITED AS: | DPP v Stafford-Duffy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 815 | |
REASONS FOR SENTENCE
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Subject: Culpable Driving; Youthful Offender.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 6 Years' Imprisonment + Minimum.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Hoare | |
| For the Accused | Mr C. F. Morgan |
HIS HONOUR:
1 Zachary Stafford-Duffy on 9 May 2013 in this court you pleaded guilty to one charge of culpable driving causing the death of Jessica Hearn. The offence occurred on 14 June 2012.
2 The maximum penalty for the offence of culpable driving causing death is now level three imprisonment equating to 20 years imprisonment. The penalty has steadily increased over the years. In 1967, when the offence was first introduced, the maximum penalty was 7 years imprisonment. A series of amendments saw the maximum term of imprisonment creep from seven years to 10 years and then to 15 years. In 1997 the maximum penalty in terms of imprisonment increased to the existing 20 years. That gives you some indication of the seriousness with which the Parliament of this State regards a conviction for this offence. The penalty has increased as Parliament strives to send a message to drivers of motor vehicles that they must drive within the speed limit and drive carefully.
3 The reason of course why a conviction for this offence is regarded as being so serious is because it involves the loss of that most precious of all things, namely a human life. This has been well recognised by sentencing courts and at an appellate level throughout this country.
4 In the case of R v. O’Connor [1999] VSCA 55, in this State’s highest court, President Winneke said, inter alia:
“If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is “a tragedy for all concerned”….then in my view the time has come for such views to be dispelled. Offences of culpable driving are committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such.”
5 The circumstances of your offending are contained in a written prosecution opening which was tended as Exhibit A on the plea. That summary was read to the Court by the prosecutor Mr Hoare and was accepted by your counsel Mr Morgan as being accurate and as forming a proper factual basis upon which I can proceed to pass sentence upon you for your crime. It is not necessary that I again set out in full what is contained in the summary. I will only here refer to the most salient parts of it but these sentencing remarks must necessarily be read in conjunction with what is there set out.
6 On the night of offending you did not hold a licence to drive a motor vehicle. You held only a learner’s permit. This restricted you to driving only with an experienced driver present and you could not have anything whatsoever to drink. You ignored each of those conditions. After drinking alcohol you and Ms Hearn and others were in a Holden Commodore V6. You were the driver, Ms Hearn was a passenger seated behind you. The vehicle belonged to the parents of one of your passengers. After driving to Shepparton to McDonalds you were driving the vehicle along the Shepparton-Barmah Road, Bunbartha when you lost control of it causing it to leave the highway and strike a pole then a tree before eventually coming to rest. At the point where the vehicle struck the tree Ms Hearn was thrown from the vehicle and suffered major unsurvivable injuries to the chest and abdomen from which the evidence shows she was probably killed more or less instantly.
7 Your culpability arises from the fact you drove the motor vehicle with gross negligence. In particular you were driving the vehicle at a very high speed and on the wrong side of the road leading up to the time you lost control. Also, part of the circumstances to be taken into account in assessing your level of negligence is the fact you had been drinking. Analysis of a blood sample taken from you nearly two hours after the accident showed you had a blood alcohol concentration of between 0.04% and 0.06%.
8 In the lead up to the accident whilst driving along the Shepparton- Barmah Road one witness, Ian Buchner, thought your vehicle was travelling as fast as it could go, which he estimated at 200 kilometres per hour. He also saw your vehicle travelling mostly on the wrong side of the road. Another witness driving along the same road estimated you passed her vehicle at a speed she estimated at between 150-180 kilometres per hour.
9 Todd Stringer who was the front seat passenger in your vehicle said the speed would have got to 205 KPH. He said “I know he was doing this speed because we took photos of the speedo.”
10 He went on to say, “I took two photos of the speedo on my car as Zac was driving. The reading on the speedo was 205 kilometres per hour. I then handed Zac’s phone back to him and he took a fair few photos of the dashboard and speedo. The reading on the speedo was still 205 kilometres per hour”.
11 The photographic evidence shows that you were still travelling in excess of 200 kilometres per hour as you were approaching the intersection of Tallygaroopna Rd where there is a slight left kerb. This was the point where you oversteered the vehicle to the right, applying the brakes and locking the wheels. The car went out of your control and skidded along a grass reservation for 145 metres before the front passenger side impacted a power pole and then a tree before coming to rest.
12 Sgt Bellion, a reconstruction expert, tried to reconstruct the circumstances of the collision from the evidence at the scene. Based on the observed skid marks and the 155 metres of tyre makes on the roadway he estimated the vehicle was travelling at a minimum speed before impact of 137 kilometres per hour. This is a very conservative estimate. The best evidence as to what speed you were driving the vehicle at comes from the photos you and Stringer took showing you were driving the car at a speed in excess of 200 kilometres per hour. That you would do drive at such a high speed whilst taking photos is, to most people, unthinkable but it remains the fact.
13 The speed speaks for itself. But it highlights that it is equally unbelievable that you and Stringer were not also killed or badly injured as a result of your driving. It is a miracle that other users of the road on that night did not cross the path of your car being driven as it was.
14 As an example of culpable driving by gross negligence where one person has been killed and where the speed at which the car was driven is the most important particular of offending, your offending represents an extremely bad example of this kind of offence. In my judgment about as bad as it can get.
15 Section 5(2)(e) of the Sentencing Act 1991 (“the Act”) requires me to take into account when sentencing you the fact that you have pleaded guilty to this offence and the time at which you indicated your intention to do so. In your case you pleaded guilty at committal mention. In passing sentence I treat you as having indicated an intention to plead guilty at the earliest opportunity. In my judgement you are entitled to a less severe penalty than you would otherwise receive were you to be sentenced following a finding of guilt by a jury after a contested trial. By pleading guilty you have saved the court and the community the time and costs of a lengthy trial. Importantly you have saved the family, friends and loved ones of Jessica Hearn the trauma of having to relive the events of 14 June 2012.
16 Importantly I think your plea of guilty can be treated by me as an expression by you of true remorse. Although you appear to lack full insight into your offending and its consequences I have formed the opinion that you are truly sorry for what you have done but have lacked the ability and experience of life to properly express your regret. You have written to the family of Jessica Hearn expressing your regret and whilst that letter has been criticised by the family, with some justification, I think you genuinely did try to express your regret and remorse for your conduct. You also expressed your genuine regret to Dr Cidoni, a psychiatrist, who provided an assessment of you after conferring with you on 6 March 2013 (Exhibit 2.)
17 You have not reoffended since charged with this offence. However, significant in this case is the fact that the day before this offending you were dealt with in the Shepparton Magistrates’ Court on charges of careless driving, being the holder of a learner’s permit driving without an experienced driver in the vehicle, driving without “P” or “L” plates displayed and failing to carry your learner’s permit. The circumstances of that offending are summarised in Exhibit K. The prior offending occurred at 4.38 am on the morning of 10 March 2012 about three months before this offending. On that day you behaved like a hoon. You were observed by police in Nathalia driving a vehicle whilst revving its engine loudly and accelerating heavily, causing the rear tyres to screech and intentionally loose traction with the road surface. The penalty imposed upon you for this offence was modest in the extreme and probably reflects your youth and inability to pay a large fine.
18 Within 24 hours of facing the Court on that prior matter you committed this offence. Both offences occurred in circumstances where you were one of a number of young people in a Victorian country town, Nathalia, late at night with nothing to do. You showed little or no respect whatsoever for the law or the disposition imposed upon you on 13 June 2012. Indeed I think it can safely be said that at the time of this offending you had no regard to the law whatsoever. You certainly had little or no regard to the safety of the passengers in your vehicle and, from the evidence of witnesses who observed the way you drove the vehicle, you had little or no regard for the safety of other users of the highway.
19 I admitted into evidence as Exhibits B to J respectively victim impact statements from the immediate family, close relatives and close lifelong friends of Jessica Hearn. A number of them were read to the Court by the makers and the others were read by the prosecutor.
20 Pursuant to s.5(2)(d)(aa) of the Act in sentencing you I must have regard to the impact which your offending has had on the deceased’s family, relatives and close friends.
21 This accident has had terrible consequences for all concerned as can be seen from the Victim Impact Statements. I have read the Victim Impact Statements twice before passing sentence. What comes through is that Jessica Hearn was a young, good living, vibrant and highly talented young woman who at age 16 had not yet even reached her prime. Her life was taken needlessly from her family, relatives and friends by an act of utter stupidity carried out by you. One can well understand the profound and prolonged sense of grief and loss that her parents, relatives and friends feel at her passing. In passing sentence I have had full regard to the impact which your offending has had on these people.
22 I turn to your personal circumstances. You were born on the 9th January 1995. At the time of offending you were aged 17. You are now aged 18. You were a young offender within the meaning of the Act. You suffer from type 1 diabetes and you are insulin dependent. Because of that you must be careful with maintaining correct diet or there is difficulty in controlling your sugar levels at the correct level.
23 You have had a difficult childhood and a difficult upbringing. You spent your formative years to age 7 in the custody of both parents. When you were aged 7 you were hospitalised with a broken leg. It was whilst you were in hospital that your parents separated. Since then you have spent most of your life in the care of your paternal grandparents. I was told and accept your mother has significant drug and anger management issues. Your father also has a drug problem. Both your parents and grandparents were in the court to support you during the plea. I was told and accept that both of your parents now realise they need to do more to support you but no evidence was called as to how that might be done.
24 From time to time during your upbringing you have moved back to either your mother or father but you were surrounded by anger issues and drug taking. During the times when you were with either parent your paternal grandparents remained the most stable influence in your life.
25 I was told and accept that at high school you were the subject of systemic and organised bullying. You reacted inappropriately and with aggression, in the result that instead of being helped and assisted through this by the school you were in fact the one asked to leave.
26 At age 14 you were diagnosed as a type 1 diabetic.
27 After you left Numurkah High School you enrolled in a TAFE course designed to achieve accreditation to Year 10 school equivalent. I was told and accept you approached this course with the right attitude but the teacher who was responsible for running the course left and was not replaced in the result that you could not complete the course. I can understand that this must have been frustrating for you.
28 You commenced an apprenticeship as a plumber in 2011, a career choice which you must have approached with enthusiasm. You were named 1st year apprentice of the year, an award of which you were understandably proud. But this career was taken from you when your employer fell on financial hard times and was declared bankrupt and his business closed. As your counsel Mr Morgan put it, your optimism quickly turned to pessimism. That was six months before this offending that I must now sentence you for. Sadly, you became like so many young people in country Australia: unemployed, with nothing to do and with limited education and social and communication skills.
29 You began drinking and taking amphetamines. You were spending your idle time with your mates who were doubtless in similar circumstances to yourself.
30 Other than the careless driving offence that I have referred to above you have no other relevant prior convictions. You were dealt with for criminal damage in 2008 but that was a minor matter involving setting fire to fish and chip wrappers in a toilet. I place no weight on that.
31 You met Jessica Hearn 3 or 4 months before the accident and from all accounts you both got alone well and were reasonably close. I accept you have been devastated by her passing and I accept you will be reminded of her death and your responsibility for it for the rest of your life.
32 Since the accident at times you have ignored your health and the need for fitness in order to control your diabetes. For a time you engaged with counselling but gave it up. That was confirmed by a letter from Numurkah District Health (Exhibit 1). That letter also shows that as far back as 2008 you were showing symptoms of an attachment disorder such as impulsiveness, irresponsible behaviour, negative self beliefs, unstable peer relationships and of being victimised.
33 I was told by Mr Morgan and accept you reacted to the accident and its consequences in a self-destructive way. At your grandparents you retreated to live in a shed at their house, rarely, if ever, going to the bedroom where you had spent time with Jessica Hearn. You have turned to drink which you do until you fall asleep. You have engaged in self harm and I was told you had done so in the days leading up to your plea. When the plea was first fixed for hearing you could not attend, being hospitalised because your blood sugar levels were out of control. You were stabilised and the plea was able to be held the following day. Your diabetes should be able to be controlled in gaol and you can be properly monitored and administered insulin.
34 Since the accident, apart from drinking to excess, you have also turned to drugs and have become addicted to the amphetamine Ice. I admitted into evidence as Exhibit 3 a short letter from your local general practitioner relating to your diabetes and Ice addiction. Both are manageable in custody but you will require close monitoring.
35 Dr Cidoni opined that whilst there is no underlying psychological issue you have nonetheless suffered from an adjustment disorder with depressed mood and anxiety including post-traumatic symptoms, in the context of the accident. He also thought you suffer from conduct disorder characterised by a pattern of defiant and impulsive behaviour, which can sometimes lead to antisocial personality in adulthood. He thought you may benefit from antidepressant treatment and ongoing psychological support. He also thought you will experience imprisonment as more difficult because of your symptoms of depression and anxiety.
36 Mr Morgan stressed a number of mitigating factors which he submitted need to be taken into account. He stressed your plea of guilty at an early time. As I said above I have taken this into account. He submitted you are remorseful for your actions. I accept that submission and I have taken it into account.
37 Mr Morgan submitted your offending occurred when you were very young and you never weighed up whether or not you should have engaged in that behaviour. I do not accept this. You were in court on driving charges less than 24 hours before the accident. Mr Cidoni opined that demonstrates a disregard for the sanctions imposed by the court. I agree and I do not accept that you did not appreciate the significance of the court appearance the day before on driving charges. Those charges arose because you were driving a motor vehicle like a hoon. The only thing that could have misled you as to the significance of being dealt with for those charges was the lenient, if not positively benevolent, disposition imposed by the Magistrate.
38 I do take into account your offending occurred as a 17 year old and that you showed lack of judgment and immaturity and this in part accounts for what you did. Mr Morgan argued that because you are young I must place great weight on the principle of rehabilitation and impose a sentence that gives you every opportunity of rehabilitation. Of course that submission is correct and completely in accordance with the law. But there are cases where the offending is so bad that the principle of giving most weight to rehabilitation of a young offender must give way to the greater need for the application of the principle of general deterrence. In my judgment this is such a case.
39 The Court of Appeal of this State recently examined the principles involved in sentencing a young offender in the context of a double culpable driving case in DPP v. Hill [2012] VSCA 144 especially at paragraphs 40 to 55. At paragraph 50 the Court said, inter alia:
“While rehabilitation of a young offender is a very important consideration in sentencing, the authorities discussed above demonstrate that it must sometimes give way to other sentencing considerations, particularly general deterrence and denunciation.”
40 Mr Morgan submitted your prospects for rehabilitation are “great”. Whilst I accept life has not been easy or kind to you for reasons not of your own making, I cannot be as optimistic as to your chances of rehabilitation. Since this offending you have not re-offended and that is to your credit but you have embarked on a dangerous path of drinking to excess and taking drugs. It is the experience of the courts that both drugs and alcohol invariably lead to further offending, not rehabilitation. I sincerely hope that whilst in prison you receive some help with overcoming both of these problems. I doubt you can embark on any steps to rehabilitation until you rid yourself of the need for both drugs and alcohol.
41 Mr Morgan submitted your insulin dependence because of diabetes, your restricted diet and your Ice dependency and the fact you are very young and of slight build will make your time in prison harder to endure. I think your health and dependency issues are treatable in prison. I am concerned about your youth and the fact you are physically slight and will be vulnerable in an adult prison. Under s.32 of the Act I have the power to have you assessed for a Youth Justice Centre and for any sentence to be served in such a place. But such a disposition would be limited to a term of custody of three years or less. A custodial sentence of that length in my view would be inappropriate having regard to the seriousness of your offending. In my sentence I have followed what the Court of Appeal did in Hill and have recommended to the Adult Parole Board that an order be made pursuant to s.471 of the Children, Youth and Families Act 2005 directing that you be transferred to serve part or all of the sentence passed by me this day in a Youth Justice Centre. I sincerely hope that recommendation is picked up and followed.
42 Mr Hoare submitted that an appropriate range of sentence having regard to all the circumstances of your offending was a term of imprisonment with a head sentence of 6 to 8 years with a non-parole period of 4 to 6 years. That submission generally accords with my analysis of current sentencing practices which I have examined in Sentencing Snapshot 142 published by the Sentencing Advisory Council for culpable driving sentences in the higher courts between 2007 and 2012.
43 Mr Hoare pointed to the features of this case which make it a very bad example of this offence:
· The fact you had no license, only a learner’s permit;
· The fact you had no experienced driver alongside you;
· The fact you had been drinking;
· Your grossly excessive speed which was more than twice the legal limit of 100 kilometres per hour;
· That you were taking photos in the seconds leading up to the point where you lost control of the car;
· The fact you offended after having been dealt with the day before for careless driving which was in fact hoon driving.
44 For these reasons Mr Hoare submitted a Youth Justice Centre disposition was well outside the appropriate range of sentence. I accept those submissions.
45 In passing sentence there are number of principles that must be addressed.
General Deterrence:
Appellate courts in all jurisdictions in this country have repeatedly said that the crime of culpable driving is very serious and that the sentencing court must be guided by principles of general deterrence. Put shortly, the sentence I impose must send a clear message to those who may offend as you have that if convicted there will be a stern sentence imposed. See for example R v. Withers [2003] VSCA 173 per Vincent JA at [15]:
“Time and time again the Court has emphasised the importance of general deterrence as a sentencing consideration in cases of this type. Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred, there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that resulted in the death of the victim in this case, that it will simply not be tolerated by the community and will be likely to result in the imposition of very substantial terms of imprisonment. General deterrence is a powerful sentencing consideration in relation to this type of behaviour. This was recognised by His Honour. Nevertheless it is also apparent that he was also concerned to give appropriate weight to all matters that could operate in mitigation of penalty and he adverted directly to each of those relied upon by counsel before us.”
46 Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend as you have that if they do so and they are detected the punishment from the court will be condign. In cases such as this, application of the principle of general deterrence will be a very important factor in sentencing. Offending of the type that you have engaged in will not be tolerated in this society.
Specific Deterrence
Specific deterrence is also an important objective in the sentencing disposition for you. You reoffended within 24 hours of having been dealt with for careless driving in circumstances best described as hoon behaviour in a motor vehicle. I think your prospects for full rehabilitation must remain guarded. Any sentence I pass must reflect application of specific deterrence, that is the sentence imposed must as best it can try to ensure you do not reoffend in this way.
47 Thirdly: The sentence must reflect the community’s denunciation of your crime.
48 Fourthly, section 5(2)(b) of the Act requires me in sentencing you to have regard to current sentencing practices for this type of offending. As I indicated above I have taken current sentencing practices into account.
49 Finally, I must impose a sentence which is, in all of the circumstances, just.
50 Having regard to all of the circumstances of this case I am of the view that there is no sentence other than a term of immediate imprisonment that is appropriate.
51 On the count of culpable driving causing the death of Jessica Hearn you are convicted and sentenced to a term of imprisonment of six (6) years.
52 Pursuant to section 11(1) of the Sentencing Act 1991, I fix a minimum of 4 years during which you are not eligible to be released on parole.
53 I note that you have served 16 days in custody. Accordingly, pursuant to sub-s.18(4) of the Act I declare that the period of 16 days be reckoned as time already served under the sentence passed today and be noted in the Court records and deducted administratively.
54 Pursuant to the requirement contained in s.6AAA of the Act I state that but for your plea of guilty to this offence I would have imposed a total effective sentence of 8 years imprisonment and I would have fixed a minimum term of 5 years and 4 months during which you would not be eligible to be released on parole.
55 Pursuant to s.89 of the Sentencing Act I cancel any drivers licence which you may currently hold and you are disqualified from obtaining such a licence for a period of 5 years from this date.
56 Because of your young age I recommend to the Adult Parole Board that an order be made pursuant to s.471 of the Children, Youth and Families Act 2005 directing that you be transferred to serve part or all of the sentence passed by me this day in a Youth Justice Centre. I make a comment similar to that recently expressed by the Court of Appeal in DPP v. Hill [2012] VSCA 144 at paragraph [57] that such a recommendation is not binding on the Adult Parole Board.
57 Are there any matters arising out of that, Mr Hoare?
58 MR HOARE: No, Your Honour.
59 HIS HONOUR: Mr Morgan, any matters arising out of that?
60 MR MORGAN: No, Your Honour.
61 HIS HONOUR: Thank you. Would you remove Mr Stafford-Duffy, please?
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