Director of Public Prosecutions v Stead

[2017] VCC 161

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR -17-00069

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS STEAD

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	14 March 2017
CASE MAY BE CITED AS:	DPP v Stead
MEDIUM NEUTRAL CITATION:	[2017] VCC 161

REASONS FOR SENTENCE
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Subject: reckless conduct endangering life
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr I. Crisp

HER HONOUR:

1Nicholas Stead, you have pleaded guilty before me to one charge of reckless conduct endangering life.  The circumstances surrounding this offence were that on
26 June last year you were the driver of a motorcar travelling along the Carragamungee State Road between the Wangaratta-Eldorado Road and Clear Creek Road in Carragamungee.  This road has a maximum speed limit of 100 km/h which is clearly signposted.

2You were driving a Jeep Grand Cherokee four wheel drive and were accompanied by your wife, your young son, Preston, and two 14 year old relatives.  It was daytime, the road was dry, the weather was fine.  Your own counsel described that road as being unfamiliar to you.  It was undulating with unpredictable dips and rises.  It was also narrow with grass edges.  It was bordered with gum trees on both sides. 

3I have said that the maximum speed limit on this road was 100 km/h.  You were driving down that road at 178 km/h, almost twice the speed limit and a speed far in excess than that permitted on any Victoria road.  It would have been an appalling speed on any four lane freeway.  It was self-evidently a suicidal speed on a narrow country road such as this. 

4Inevitably, Mr Stead, you lost control of your vehicle and it slid sideways at great speed, leaving the road and colliding with a gum tree.  The impact was so great that this gum tree was sheared off at its base.  Your car rolled multiple times narrowly missing other large gum trees and ended up coming to rest approximately 70 metres from where it had left the road, almost completely destroyed.  Neither you, your passengers or the police who investigated the collision are able to offer any explanation for your car leaving the road in this manner apart from it being a consequence of your appalling speed.

5The incident, which I have described so far had all the makings of a terrible tragedy.  However, miraculously, neither yourself nor any of your passengers were physically hurt to any significant degree.  This prosecution has proceeded, therefore, on the basis that the conduct of recklessly endangering life consisted in your driving on that country road at a speed of 178 km/h in the circumstances I have outlined immediately prior to your vehicle leaving the road.

6Mr Stead, you have come to the notice of the authorities seven times before for speeding offences.  I do not have all the details of the circumstances of those offences.  However the first one occurred on 21 June 2008 and the last one occurred on 6 January 2015.  There were four occasions in 2012 where you were fined for offences of exceeding the speed limit.  Two of those offences related to speeds within ten and 20 km/h over the limit and two of them relate to speed limits exceeded by not more than 10 km/h.  Each one of those speeding offences occurred in New South Wales.  You have, so far, no criminal or speeding history in Victoria.

7As I have said, you have pleaded guilty to this charge of reckless conduct endangering life.  This is a serious offence attracting a maximum penalty of ten years' in prison.

8The prosecutor described your driving as being an act of breath-taking stupidity, particularly as you had your wife, your baby and two teenage relatives in the car.  He particularly noted that the teenagers were of the impressionable age of 14 years. In driving as you did, you displayed to them extraordinarily irresponsible driving behaviour.  Overall he suggested to me that your act in driving on that occasion was equivalent to steering a missile.

9Your own counsel provided me with a great deal of information about your background and circumstances.  I was provided with five written character references on the plea and I also heard from three character referees in person. 

10You are a director of your father's company.  A few years ago that company was facing ruin.  By your diligence and leadership you have been able to build it up to a successful enterprise offering employment to 13 employees.

11I heard from some witnesses who have known you through their business dealings with you and from others who are either related to you or close friends who have known you most, if not all, of your life.

12Each of those witnesses and each of the signatories of the character references describe you as a man of good character.  Your father described you as being a model figure within his company with an outstanding desire to succeed and an excellent attitude to your wife, family and career. 

13Mr Ross Jenson, a business owner, also told me that you had now taken an unquestionably serious approach to these offences and you now drive in a law abiding way.  He said that the effect of this incident is now imprinted on your driving, as did your father.  Mr Hocking is also a business associate and I heard from him.  He described the effect on you of this incident as being "very sobering".  As I said, those who gave written references also spoke in the same terms.

14I am told that your wife is pregnant with twins which are to be born in May. 
You and your wife are regular church goers and clearly all of your family are persons of good character.  I accept, from what I have outlined, that you now fully appreciate your driving responsibilities and I was told that the consequences for your business would be enormous if you were gaoled.

15Although you denied driving at an inappropriate speed when first apprehended you made an offer to plead guilty at the first available opportunity once you were charged. Your early plea of guilty must be taken into account, both as indication of remorse and also for the fact that it has saved the community and any witnesses who would have testified, the difficulty of a trial.

16I accept, from all the material I have heard, that other than your speeding offences you have been an outstanding role model in the community. 
Further, I note the medical reports which I have received from your general practitioner, which speak of ongoing symptoms of flashbacks to the accident, poor concentration and catastrophizing thoughts about the accident and what could have happened to your family.

17I also was given on the plea a report from a clinical psychologist by the name of Bernard Healy.  Mr Healy provided a great deal of factual information about you and I have taken all that material into account in sentencing you today. 
He particularly told me that at the time of the 2012 speeding offences you were under particular pressure because your mother had died in the course of that year.  I note, however that your counsel conceded that Mr Healy has not provided any diagnosis of you other than to say that you are above average intelligence and that personality testing, which he undertook, was not indicative of any major psychological or emotional disturbance.

18Your counsel submitted to me that yours was an unusual case because of your good reputation and otherwise good character, as I have so far described it.
 Mr Stead, it is unfortunately not unusual at all for this court to be required to sentence drivers of otherwise impeccable character who have driven in an appalling manner on our roads.  Usually it comes about in circumstances where they have killed or maimed someone as a result of their driving.  That is thankfully not this case but in my view it is a matter of extremely good luck that this is not the case rather than reflecting any credit on you at all.

19Your counsel submitted to me that your behaviour fell into the low end of the scale for offences such as this.  He stressed to me that there was no evidence of any other bad driving.  He suggested that the incident was short and isolated.  He pointed out that it was not accompanied by any other anti-social behaviour or involvement of any other traffic or, indeed, any earlier episode of bad driving.  I accept the strength of those observations. 

20There are very few recorded decisions on the ambit of this offence of reckless conduct endangering life.  It appears to be often charged in situations where there is evidence of other offences of a grave nature often involving the use of knives of guns or involving other serious driving charges such as culpable driving.  There is very little guidance available to me from cases such as those. 
However I note that invariably those cases, admittedly much graver, attracted very significant gaol sentences.

21I accept, as I have said, that the evidence shows that you are a dedicated family man, a key part of your family business and that you have had ample time to reflect on your driving and that that has had a dramatic effect on you.  I accept in particular that the welfare of 13 employees may be affected depending on what happens to you today and that in your driving you regularly drive over 70,000 kilometres per year. 

22I accept that you have excellent prospects for rehabilitation.  The need for specific deterrence falls away, to some extent, because of this evidence. 
In particular you have voluntarily completed a traffic offender rehabilitation course and that is to your credit.  Sadly, however, it is often only when drivers face the prospect of causing harm to their loved ones that they finally understand the need to regulate their speed.  This appears to be the situation in which you now find yourself.

23I do not agree with your counsel that your moral culpability is low.  You made a conscious decision to drive on this road at an extraordinarily fast speed in a situation where you had been apprehended on seven prior occasions for speeding and where you had four innocent passengers in your car. 

24It is my view that the principles of general deterrence and denunciation need to be preeminent in sentencing you today.  High speed, Mr Stead, is a killer. 
There are many roads in the northeast and, in fact, throughout Victoria which are very similar to the one on which  you drove .  Many deaths occur because otherwise responsible members of the community think that whilst driving they are immune to the laws of physics.  They speed because they think they can get away from it.  It is, in fact, extremely difficult for such speed to be detected by police on isolated subsidiary roads.  Clearly, Mr Stead, you have been one of those people.  You have had a predilection for speed and your love of speed almost caused a terrible tragedy. 

25Mr Stead, I have very seriously considered sentencing you to a period of imprisonment.  A stern message must be sent to those who would travel at these senseless speeds as you did on that day.  Such a sentence would send a very clear signal to the community of what they should expect if they are caught as you were.  It is only the fact that you have a very limited criminal history, coupled with the excellent character evidence I have heard which has dissuaded me from doing so. 

26I want to say to you, Mr Stead, that had your driving history contained more serious examples of driving offences I would certainly have sent you to gaol.

27Your counsel has urged me to deal with you by way of a community corrections order.  I have received a report that you are an appropriate person to undertake such an order. 

28The prosecutor conceded that a community corrections order was in the range but he did not concede that it was the only sentencing alternative open to me.  The prosecutor also urged me to exercise the discretion that I have to also disqualify you from driving for a significant period.  He pointed to the fact that the lesser alternatives to your offending, which were withdrawn after your plea of guilty to this charge, each have mandatory disqualification periods of a minimum of 12 months.  It is not mandatory for me to disqualify you from driving for this offence but rather it is a matter completely within my discretion.

29Mr Stead, I propose to address all of the issues which I have outlined in these sentencing remarks so far by sentencing you to undertake a community corrections order but also to address, in particular, the issue of denunciation and general deterrence, by also ordering that you pay a significant fine and cancelling  your license and disqualify you from driving for a substantial period of time.

30The imposition of a community corrections order will fulfil the role of allowing you to put something back into the community as I will order that you complete a significant number of community hours as part of that order.

31The imposition of a substantial fine will signal to the community the court's denunciation of driving at such speed in such dangerous circumstances and that anyone caught doing so will be dealt with harshly by the courts.

32The disqualification from driving will make it clear that those who drive as you did have no right to be driving on our roads, endangering themselves, their passengers and other members of the public.

33Mr Stead, can you stand up please.

34Mr Stead, on the charge of reckless conduct endangering life, you are convicted and sentenced to undertake a community corrections order.  There will be the normal terms of a community corrections order including an order that you undertake 300 hours of community work over the next three years. 
The community corrections order itself will run for three years.

35You are also fined the sum of $5000. 

36I now turn to the issue of license disqualification.  I appreciate that it will be very difficult for you to conduct your business without a license. However the loss of a license is usually every inconvenient to those who come before these courts.  In many cases where such an order is imposed it means the offender is unable to work at all.  In other cases it means very significant disruption to their family's lives.  

37However, as I have already indicated to you, to hold a license to drive a motor vehicle in this community is a privilege, not a right.  By driving as you did you have forfeited that privilege and I will order that you not drive and be disqualified, as I have said, for the period of three years and that period will commence today.

38Now, Mr Stead, I can only make the order for a community corrections order if you agree to it . In order for you to understand what it involves, I need to tell you what the terms of the community corrections order are.

39The only special condition of the community corrections order will be that you complete 300 hours of community work over three years.  Other than that you must attend at the Wodonga community correction services within two clear days of today.  You must not commit any other offence during the time the order is enforced.  You must comply with any obligation or requirement by the Secretary.  You must let a community corrections officer know within two clear working days of your change in your address or job.  You must obey all lawful instructions from the Secretary. 

40Another basic condition of a community corrections order is that you must not leave Victoria without first getting permission to do so from the Secretary.  Because we are here on the border I understand there are special arrangements that are made in relation to that and the community correctional services officer can let you know what those arrangements are.

41So, Mr Stead, as I said, I can only give you such an order if you consent to it.  Do you consent to those conditions?

42OFFENDER:  Yes, Your Honour.

43HER HONOUR:  All right thank you.  If the document can be taken to Mr Stead to sign and Mr Crisp ‑ ‑ ‑ 

44MR CRISP:  Yes thank you, Your Honour.

45HER HONOUR:  ‑ ‑ ‑ you can go with him to explain it.

46MR CRISP:  Yes and there's just one matter.  Would Your Honour grant a stay of four months in relation to the fine in the circumstances?

47HER HONOUR:  Look, I will consider that in a minute.

48MR CRISP:  Yes.

49HER HONOUR:  Perhaps if the document can be ‑ ‑ ‑ 

50MR CRISP:  Thank you.

51HER HONOUR:  Now, Mr Stead, you have signed that document and so have I.  I need to tell you that I have discounted that sentence because you pleaded guilty.  Had you not pleaded guilty I would have ordered that you serve a period of 12 months actual imprisonment and I would have ordered that you serve a period of nine months before being eligible for parole and I direct that that be noted in the record of the court. 

52I will also make an order that you undergo a forensic procedure for the taking of a sample.  I will sign that order and in doing so I need to tell you that if you resist the taking of such a sample then any member of the police may use reasonable force to enable that sample to be taken.  Do you understand that?

53OFFENDER:  Yes.

54HER HONOUR:  Yes, all right.  Now, Mr Crisp, what's the reason for the four months' stay?

55MR CRISP:  Just that it will give him time to make arrangements for everything, Your Honour.  I'm asking for a stay of some time though.  If you think that four months is unreasonable I would still ask for a stay of a reasonable time.

56HER HONOUR:  Well I assume you are telling me that he does not have the money to pay straightaway, is that what you are saying?

57MR CRISP:  Well not immediately.  I would urge Your Honour in the circumstances he has to make certain arrangements for the running of his company but at the very least would Your Honour consider some time?

58HER HONOUR:  All right.  I will stay the fine for two months.

59MR CRISP:  Two months, thank you.

60HER HONOUR:  So that will be  ‑ ‑ ‑ 

61TIPSTAFF  Probably 16 May, Your Honour.

62HER HONOUR:  Yes.  I will stay the payment of the fine to 16 May.

63MR CRISP:  Thank you, Your Honour.

64HER HONOUR:  Are there any other matters?

65MR CRISP:  No.

66MR CORDY:  No, Your Honour.

67HER HONOUR:  All right, thank you.  I will adjourn the court now until ten o'clock tomorrow morning.

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