Director of Public Prosecutions v Strachan, Frederick
[2012] VCC 1757
•2 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
Case No. CR-11-01342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| FREDERICK STRACHAN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 2 November 2012 | |
DATE OF SENTENCE | 2 November 2012 | |
CASE MAY BE CITED AS: | DPP v Strachan, Frederick | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1757 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence – plea
Catchwords: Careless driving – failure to keep a proper lookout – collision – deceased person – one person seriously injured – principles of general deterrence and punishment
Legislation Cited: s.242 of the Criminal Procedure Act 2009 – s.242 of the Road Safety Act 1986 – s.6AAA of the Sentencing Act 1991
Cases Cited:R v. Boyd [1975] VR 168 – R v. McCormack [1981] VR 104 – Wise v. R [1965] Tas SR 196
Sentence: Convicted and fined ten penalty units ($1,168.20) – licence suspended for a period of 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A.J. Moore | Mr B. Horsburgh (Office of Public Prosecutions) |
| For the Accused | Mr G. Clancy | Kerry Clancy Lawyers |
HIS HONOUR:
1 Mr Strachan, you can remain seated while I pronounce the reasons for the sentence in this matter. I will ask you to stand up at the end.
2 Pursuant to the determination of the learned Director of Public Prosecutions, the Indictment in this matter was dealt with pursuant to s.242 of the Criminal Procedure Act 2009 with an entry of not guilty in regard to both charges, and as a consequence thereto Mr Frederick Strachan pleaded guilty to the summary charge of careless driving. He consented to jurisdiction to have the matter heard here and the matter proceeded as a plea this day.
3 The circumstances surrounding this offence are that on the 16 March 2010 on the Hume Highway at Wangaratta, while Mr Strachan was driving a loaded semi-trailer, he ran into the rear of a Dodge driven by Mr Heinz Offermann, and as a result of that collision Mr Offermann's wife Margrit was killed and Mr Offermann was grievously injured.
4 The particular facts surrounding the collision no doubt led to the decision by the learned prosecutor insofar as the indictment is concerned. I have read all of the material and I am well aware of the totality of such facts, particularly in regard to the lighting, the lack of lighting on the Dodge, the questions as to visibility, and the movement of the Dodge and semi-trailer.
5 As I say, given that the Director of Public Prosecutions is an independent body prescribed by Parliament for this very purpose, I make no comment on such decision, only to say that clearly insofar as sentencing is concerned it is for this Court to concentrate and sentence only in regard to the charge of careless driving.
6 The basis of the charge as explained by the learned prosecutor was the failure of Mr Strachan to keep a proper lookout. There can be no doubt about that failure. Mr Strachan, in his own statement, said he saw the Dodge driven by Mr Offermann when he was some two hundred metres away and thereafter somehow managed to place himself in a position, clearly because of a failure to keep a proper lookout, where he was suddenly on top of the Offermann Dodge, that in trying to swerve, as is amply demonstrated in the photographs, he just clipped the Dodge and, of course, given the vehicle that Mr Strachan was driving, the consequences were as we hear. Unfortunately, they involved the death of Margrit Offermann and multiple injuries caused to Mr Offermann.
7 The learned prosecutor tendered Exhibit A as the prosecution summary and Exhibit B and C were the victim impact statements of Mr Offermann and his son Daniel.
8 Mr Offermann sustained multiple fractures, he was airlifted to Melbourne and spent seven weeks in hospital, seventeen weeks in rehabilitation and underwent ten operations. Not only did he lose his partner of forty-five years, but the injuries are such that it would appear that his lifestyle not only has been dramatically affected, but his capacity to carry out his own farming duties has been gravely limited to the extent that it would appear that he will have to leave that farm. All of that, of course, pales into insignificance when you think of the loss of his wife.
9 I also have read the victim impact statement of Daniel Offermann. I repeat that both statements are, compared to some that I have to deal with unfortunately, most temperate and not in any way exaggerated. To say that they evidence the results of a catastrophe is no understatement.
10 The penalty for a charge of careless driving is set out under the Road Safety Act 1986 as one of twelve penalty units. The value of a penalty unit applicable at the time of this collision was $116.82. The Court also has a discretion in all driving offences, where a person is found guilty, to interfere with a person's licence by way of suspension or cancellation should it see fit.
11 In the plea put forward by Mr Clancy, on behalf of his client, matters stressed were that Mr Strachan, having considerable experience as a driver and a driver of both small trucks, semi-trucks and now a qualified driver with a B double qualification, has reached the age of thirty-two essentially without any priors. He has an on the spot speeding fine which essentially can be disregarded.
12 Mr Strachan comes before the Court and pleads guilty at the earliest possible opportunity, there being over the last two and a half years negotiations leading to the situation whereby the learned prosecutor has taken the action on behalf of the Director of Public Prosecutions which he did today. This matter apparently some two years ago went before a Magistrate who referred the matter for consideration by the Director of Public Prosecutions, and as I have said it seemed to me that was an appropriate step.
13 In the sense that I understand Mr Clancy to use the term "accident", clearly this was not an intended matter by Mr Strachan, and as he said in his record of interview, "I only wish it never happened".
14 Mr Strachan had, prior to this accident, two days off work, he had slept quite well the night before, he had not indulged in drugs or drink, and indeed called on his behalf was Mr Milthorpe, his current employer, who stressed that the prior good driving record, has continued and that Mr Strachan has had no subsequent difficulties, despite driving many, many thousands of kilometres throughout Australia.
15 In all criminal offences, as a matter of law, the consequences of that crime are clearly relevant. Unintended consequences should not overwhelm a sentence, nor should they in particular overwhelm the mitigatory factors that are put to a Court, and full weight needs to be given to them. However, as set out by the Full Court, as it then was, in R v. Boyd [1975] VR 168, 172, and further in R v. McCormack [1981] VR 104, a Court is entitled to take into account all the consequences which could have reasonably been foreseen by Mr Strachan. Equally, however, as has been pointed out in the Tasmanian Supreme Court in Wise v. R [1965] Tas SR 196, 201-202, a Court cannot allow the consequences, albeit foreseeable, to overwhelm the sentencing process.
16 In considering the circumstances of this careless driving I have concluded that there could not be a graver case of careless driving. On this particular morning, despite the difficulties by way of vision and haze, et cetera, that have been referred to, the fundamental fact that stands out is that Mr Strachan observed the Dodge being driven by Mr Offermann some two hundred metres away. We are after all talking about a Highway which runs straight from approximately the point of this collision for some nine kilometres, a divided major Highway of this State. There were no other cars, there were no mechanical problems with the car, there were no difficulties as I pointed out by way of lead-up with Mr Strachan himself. Somehow Mr Strachan manages over that distance and time of approximately eight seconds to cause this accident, by clipping the Dodge, which was travelling at a low speed, estimated by both drivers at sixty kilometres per hour.
17 What must not be lost sight of is that Mr Strachan was driving a Kenworth prime mover, carrying a loaded semi-trailer. He was not breaching the speed limit, he was travelling at some one hundred and two kilometres per hour. As I said, a person in charge of a vehicle of that size, given the potential, must be vigilant. In that regard, as he set out in the materials, he had with his prior employer undergone fatigue management courses. It is clear that the foreseeable consequences of a failure to keep a proper lookout when you are in control of a vehicle of this size are grave injury, death, and catastrophic consequences.
18 All of those foreseeable consequences occurred in this case. We have the death of Mrs Offermann, the grave injury to Mr Offermann, and the catastrophic consequences to Mr Offermann and his family as a result of this offence. It is clear that it is appropriate to take into account as a matter of aggravation the consequences in this matter which I find were clearly foreseeable. In those circumstances, the Court must bear in mind the principles of sentencing, in particular in this type of case, being a regulation which is decreed by Parliament to protect people on the roads and to ensure people drive properly, of general deterrence and appropriate punishment.
19 However, though consequences need to be taken into account, they cannot overwhelm a Court's determination, and I stress nor can a Court, and such would be most inappropriate, take into account what other offences Mr Strachan might have committed. The independent action of the Director in this matter eliminates all such consideration.
20 Also, as a result of the plea, put to me most professionally by Mr Clancy, I have to take into account all of the matters in mitigation. There was no issue from Mr Clancy, essentially as to the appropriateness of the fine as set out. However, the real issue for consideration was the exercise of the licence discretion. It is quite clear from the evidence of Mr Milthorpe that, should I determine to take the licence away from Mr Strachan, he would not be able to continue in his current employment. I take into account that Mr Strachan is the sole breadwinner and has the responsibility for supporting his wife and child. Hence the consequences of any decision I might make in regard to the licence are not insignificant. However, in balancing all of the above, I have concluded that it would be improper not to impose a period of loss of licence in this case.
21 It would be appropriate for you to stand, Mr Strachan.
22 You are convicted, as a result of your plea, of the charge of careless driving. You are fined ten penalty units, each penalty unit is $116.82, making a total of $1,168.20. Your licence will be suspended for a period of six months.
23 While I do not have to make a declaration pursuant to s.6AAA of the Sentencing Act 1991, I will make it because I do not want any misunderstanding. Had you not pleaded guilty the variations given the limited fine are not great. However, had you not pleaded guilty I would have fined you the maximum penalty that is allowable, being twelve penalty units, and I would have suspended your licence for a period of nine months.
24 Is there anything else I need to attend to, Mr Prosecutor?
25 MR CLANCY: There's just one matter, and that is Your Honour has the power - my client has driven to Court today - to make the suspension period start on a certain date. It happens very regularly in the lower jurisdictions, Your Honour.
26 HIS HONOUR: His partner is here, isn't she, or his wife?
27 MR CLANCY: Not driving at the moment, Your Honour. I have discussed this with my learned friend, the suspension period taking effect from possibly two o'clock this afternoon, Your Honour.
28 HIS HONOUR: I think I can do that, Mr Prosecutor, can't I?
29 MR MOORE: It might be easier just to start it from tomorrow, Your Honour. He has driven to Court apparently.
30 HIS HONOUR: Yes. I think Mr Strachan has shown enough responsibility for me to have faith in him and I will make the order of suspension to take effect from tonight at 12 am.
31 MR MOORE: Yes, Your Honour.
32 HIS HONOUR: Any other matters?
33 MR MOORE: No, Your Honour.
34 HIS HONOUR: Thank you, Mr Clancy, your client can come out of the dock. Do you want a stay in regard to the fine?
35 MR CLANCY: Of course, Your Honour.
36 HIS HONOUR: Three months?
37 MR CLANCY: Can I ask that Your Honour consider six months?
38 HIS HONOUR: All right, twelve months.
39 MR CLANCY: Thank you, Your Honour.
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