Director of Public Prosecutions v Stubbs

[2017] VCC 1000

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00491

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID STUBBS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2017
CASE MAY BE CITED AS:	DPP v Stubbs
MEDIUM NEUTRAL CITATION:	[2017] VCC 1000

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten
For the Accused	Mr I. Crisp

HIS HONOUR:

1David Allen Stubbs, you have pleaded guilty to one charge of dangerous driving causing death.

2You have admitted your criminal history.  For sentencing purposes, it reveals a criminal history relating to drugs and some violence that ceases in and around the year 2009.

3You have a number of road traffic convictions which include from 2003, two matters for speeding.  Your criminal history does not play a significant role in my sentencing, but it does have some role.

4Nine victim impact statements were read to the court.  Two were read in person, one by the husband of the deceased and another by a friend.  They movingly detailed the effect of the loss of Kathryn Curlis has had upon her family and friends and I have taken them into account.

5The facts of the matter are set on in Exhibit 1, the summary of prosecution opening on plea.  I will recount some of the facts, but to place the sentence in its full factual purpose, any reader of these reasons should refer to Exhibit 1.  The facts were not disputed by your counsel.

6On 18 July 2016, you were working as a delivery truck driver for Swan Plumbing.  You were driving a light commercial Mitsubishi Fuso Canter 3 Tonne Tray Truck.  Kathryn Curlis was walking in Wantirna at the time.

7Shortly before 1.40 pm on that day, she was standing on a traffic island at the intersection of Boronia Road and Mountain Highway in Wantirna.  The pedestrian crossing was marked by yellow signs.  The crossing and warning signs were clearly visible from Boronia Road.

8A Toyota Corolla Hatchback entered the slip lane from Boronia Road and approached the pedestrian crossing.  The driver slowed to give way to Mrs Curlis who began crossing.  It was either stationary or moving very slowly when she began to walk safely across the crossing.

9You were travelling behind the Corolla in your truck.  You failed to slow in sufficient time to stop behind the Toyota.  You swerved to the right, attempting to avoid a collision, but the front left of your truck collided with the rear right end of the Corolla, causing substantial damage to the rear.  The driver and passenger were pushed back in their seats as the Corolla was propelled upward and forward into Mrs Curlis, who was struck and lifted over the Corolla.  She suffered significant injuries which caused her death.

10You were tested for alcohol and drugs and those tests were negative.

11The truck was tested and was found to be in good condition with no mechanical faults.

12The speed zone at the time in that location was 80 kilometres per hour.

13You were interviewed by police.  You said you were driving east on Boronia Road and slowed as you went in the slip lane to turn into Mountain Highway.  You saw a car in front and believed it was continuing onto Mountain Highway.  You said you looked to the right to check for traffic, looked back and saw the car in front had stopped.  You tried to take evasive action, but hit the car.

14A collision reconstruction expert looked at the scene and that analysis revealed that the Toyota was about 7 metres from the pedestrian crossing and it stopped or was travelling at less than 20 kilometres per hour when it was stuck from behind by your truck.  There was no evidence of braking by you prior to the impact with the Corolla.

15Your truck was travelling at a minimum of 68 kilometres per hour at the point of impact with the Corolla.

16The prosecutor submitted that in an assessment of the range of culpability for this offending, it was in the mid-range and that was not disputed by your counsel, and that is also my assessment.  It is in the mid-range because of the fact that you were driving a heavily laden 3 tonne truck, the pedestrian crossing was well signed and visible, you were required to give way, you failed to observe the signs and slowing of the Corolla and in the circumstances, you were driving at a speed that was excessive in those circumstances.

17I was referred to the case of Stevens [2016] VSCA 121 in which the Court of Appeal said that sentences for this type of offending should be increased.

18In mitigation, your counsel, Mr Crisp filed written submissions and supplemented them orally.  He submitted in mitigation that I should take in account:

19(1), Your early plea, and I accept that it was an early plea in the circumstances.

20(2), You have shown remorse as expressed to a number of the character witnesses who were called, to the psychologist and also, by way of your letter of apology. I accept that.

21(3), He pointed to your personal background, which include the praiseworthy change of life from 2009 from a drug user to a person who had a good working record and a responsible member of society.

22(4), He acknowledged it was a tragic case and a serious matter.

23(5), He pointed to the support you have in court from your family and friends, including two children.

24(6), He took me to the psychological report from psychologist, Harvey Abbott.  I will not refer to that in any detail.  It set out your personal history, your educational and occupational history.  You have had a good work history.  You commenced as a driver with your current employer in 2014.  It set out your relationship history and your drug history.

25Of particular relevance to this hearing, it set out the psychological problems you have had since the accident and the effect that it has had upon you.

26He conducted a number of tests and concluded that it was apparent you were having significant difficulties adjusting to this traumatic life event.  He said the results indicate the presence of post-traumatic stress disorder.  He said you told him that the events have had a devastating impact upon your life.

27(7), Mr Crisp tendered a number of written references.  As I said, called three witnesses also as to your character, and I have taken those matters into account.

28(8), He pointed to your cooperation with the police.

29He submitted that I could consider, when weighing up all those factors, a custodial term and a community corrections order.

30I have carefully considered that submission and have come to the view that in this case, the seriousness of the offending dictates that the head sentence to be imposed is well outside the sentence that I could impose with a combined sentence of imprisonment and a community corrections order. 

31In sentencing you, I am required to assess the range of offending.  I have said, in my view, it falls in the mid-range of this type of offending and taking to account what occurred, it is my view that your culpability is also in the mid-range.

32This was a serious breach of the proper management and control of your vehicle.  Your lapse of attention and failure to keep a proper lookout in combination with the speed leads me to the conclusions that I have just expressed.  By your actions, you not only placed the victim in a position of serious injury or death, you collided with another car in which there were two occupants.

33There are significant mitigating factors pointed out by your counsel, which include your early plea, your genuine response, what I assess to be based on your work record and your family support, good prospects of rehabilitation and your personal background.

34However, in sentencing you, the overriding sentencing consideration is what is called general deterrence.  A premium is placed upon the loss of human life and thus, general deterrence is an important sentencing factor.  General deterrence means I am required to consider the effect of a sentence upon other members of the community and hope to deter them from this type of behaviour.  It is a very small sample, but this is the second truck driver dangerous driving causing death case I have considered in the last three weeks.

35I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community seeking to ensure as far as possible, offenders are rehabilitated into society.  I express my denunciation of your behaviour.

36The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, denunciation and protection of the community.

37In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.  Your plea of guilty in this case has saved the court the time and cost of a jury trial, which means that witnesses have not had to give evidence in court.  It is also an indication of an acceptance of responsibility by you for your behaviour.

38Taking all those matters into account and on the consideration of current sentencing practices, I have arrived at the following sentence.

39On the charge you are facing, I sentence you to a term of imprisonment of 42 months and set a non-parole period of 22 months.

40I declare that the day that you have served already to be part of the sentence of imprisonment that I have just imposed.

41Pursuant to s.6AAA of the Sentencing Act, I declare that if you had proceeded to trial and you were convicted by a jury, you would have received a sentence in the range of six years with a non-parole period of four years.

42Are there any other matters I need to consider?  License?

43Your licensing is cancelled and you are disqualified from obtaining a license for a period of three years.  I have made a 464 order.

44Anything else, Mr Batten?

45MR BATTEN:  So, the license with effect from today, Your Honour?

46HIS HONOUR:  Yes, from today.

47MR BATTEN:  Yes.  Nothing else, Your Honour.

48MR CRISP:  No, Your Honour.

49HIS HONOUR:  All right.  Thank you.  You may take him out, thank you.  Adjourn the court until 10.30, thank you.

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