Director of Public Prosecutions v Suckling
[2020] VCC 1092
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01939
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SUCKLING |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 July 2020 |
CASE MAY BE CITED AS: | DPP v Suckling |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1092 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Gibson | |
For the Accused | Mr S. Kenny |
HIS HONOUR:
1Michael Garry Suckling, on indictment J10105227.1 you are to be sentenced for one charge of culpable driving causing death, one charge of negligently causing serious injury, one charge of reckless conduct endangering life and one charge of failing to render assistance after an accident, pursuant to s.61(3) of the Road Safety Act. The respective maximum sentences are 20 years' imprisonment for culpable driving and 10 years' imprisonment for the other three indictable offences. You are also to be sentenced for the summary offence of unlicensed driving. The maximum sentence, as I am advised, is six months' imprisonment.
2You pleaded guilty to this indictment on 10 September 2019 and indicated a plea of guilty through counsel to the summary offence before me on 14 July. When interviewed by police, on 6 January 2018, you answered questions, in part seeking to lay responsibility for this fatal accident upon your front seat passenger who was also the victim of Charge 3 on the indictment, the reckless conduct offence. There was a contested committal on 20 July 2018 at which that victim and the victim of Charge 2, negligently causing serious injury, gave evidence. You entered a plea of not guilty. Your solicitor indicated a plea of guilty to the indictment in May 2019. After some further delay you were arraigned and pleaded guilty, as stated, on 10 September.
3You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceedings shows. Your plea has facilitated the interests of justice; for example, a trial at which those witnesses would have been required to give evidence again has been avoided; and it accepts responsibility. I accept that you feel remorse, despite your early denial and defence to the offending.
4At your plea hearing, which ran on 14 July, Mr Ray Gibson QC for the Crown tendered a written summary of prosecution opening, the police statement of emergency physician Dr Mark Putland dated 5 March 2018, a survey plan or sketch and photographs of the scene of fatal collision, the victim impact statements of Damien Barrett, Nathan Mitz and Ruby Backer, the partner of the deceased man, Kenneth Butler. He also tendered police summaries of a number of your prior offences.
5Mr Kenny, for you, tendered the depositional statement of Victoria Police forensic physician, Dr Morris Odell, the forensic psychological report of
Dr Aaron Cunningham, dated 23 March 2020, and the neuropsychological report of Anna McClaren, dated 30 June 2020. He also tendered a number of letters of character reference. Both counsel provided a written outline of plea submissions.6The circumstances of offending are very comprehensively described in the tendered Crown opening, which is Exhibit A. My own summary may be much shorter.
7On 6 January 2018, you were the driver of a Holden Berlina which was involved in a single-vehicle fatal collision in Forest Street, Castlemaine. You were not licensed. The registered owner of the vehicle was Damien Barrett, the front seat passenger. You were living with him in Castlemaine. The backseat passenger on the driver's side was your friend, Kenneth Butler. He was killed in the collision. The other passenger, Nathan Mitz was seriously injured.
8A blood sample taken from you after the collision was analysed to contain various prescription drugs, cannabis and alcohol. Charge 1, culpable driving, alleges gross negligence and it is the nature of your driving that is the main basis of that offence. Just prior to the collision, you were driving west along Forest Street toward the Castlemaine CBD. Forest Street is two-way single-lane in each direction. At the relevant part there is a double white line in the centre prohibiting movement across. It has a 60 kilometre per hour speed limit indicated by signage. The time was about 3.30 pm on Saturday.
9On your approach and at scene of collision there is a sweeping left-hand bend. It straightens just after the point of collision. You were travelling too fast and, overtaking other west-bound traffic, moved to the incorrect side of the road. You caused at least one oncoming vehicle to take evasive action. In the apparent attempt to move back to the correct side, you lost control. The vehicle slid sideways across the west-bound lane and struck an electricity pole at the driver's side, behind the B pillar of the vehicle and therefore where Kenneth Butler was placed. He died at the scene from multiple injuries.
10Expert collision reconstruction evidence states that you applied braking 2 seconds prior to impact when on the wrong side of the road, puts your speed at a minimum of 89 kilometres per hour (that is 29 kilometres per hour above the speed limit) at commencement of the tyre marks associated with that braking and at 55 kilometres per hour when you stuck the pole.
11Paragraph 89 of the Crown opening states as follows, as to the primary nature and circumstances of the offence of culpable driving at Charge 1 and also the other charges.
'It is the Crown case that the accused drove in a grossly negligent manner by passing a line of traffic and crossing double lines on a sweeping left-hand bend. Additionally, he drove at excessive speed. This negligent driving caused the death of Kenneth Butler and serious injuries to Nathan Mitz. It also endangered the life of Damien Barrett. Following the collision, the accused left the scene without rendering assistance'.
12However, that driving in Forest Street cannot be seen as an isolated event. There is evidence of your manic, dangerous behaviour (particularly your driving) over the hours leading to the fatal collision. This gives relevant context and some explanation to the collision. This evidence contains features adverse to you. However, I also bear in mind that you are to be sentenced for the offending as described in paragraph 89 of the Crown summary. There should not be additional punishment for the behaviour and background leading to it.
13In the early hours of 6 January, that is 12 to 14 hours before this offending before me, police went to your home arising out of reports of driving (burnouts) at a Harcourt address. You breath tested at about .09 per cent alcohol content but refused to go with police for further testing. You have been convicted and sentenced for offences arising out of this receiving a total of two months' imprisonment which has been served in the time since being remanded for these offences. At about 11.30 am on 6 January, you were seen to be driving at speed and doing burnouts in the vicinity of Castlemaine Railway Station. At a Castlemaine hotel soon after, you were drinking and behaving irrationally. After leaving the hotel at about 1 pm, you were again driving fast and doing burnouts in Castlemaine Streets. You purchased more alcohol. After that, at the premises of Damien Barrett where you were also living, you are seen to take a number of tablets you identify as Valium. You are irrational and violent, damaging the house and Barrett's car. Ultimately you throw a shovel through a window of the house, causing a heavily bleeding cut to Damien Barrett's leg. You decided to take him to hospital.
14You were with Nathan Mitts and picked up Kenneth Butler soon after. These two had both been with you and Damien Barrett earlier; for example, at the hotel. You again drove fast, erratically and dangerously in streets leading to Forest Street. I have described earlier your driving and the fatal collision in Forest Street.
15That driving and collision not only makes out Charge 1 but also Charge 2, negligently causing serious injury to Nathan Mitz and Charge 3, reckless conduct endangering the life of Damien Barrett.
16Charge 4, failing to render assistance, relates to your conduct after the collision. You are seen to get out of the car and walk along Forest Street. A bystander encourages you to stay. You cross Forest Street, continue from the scene of collision and go to a bottle shop about 200 metres away. That bystander follows you there and advises police. You are located in a laneway beside the bottle shop and arrested. There is a positive PBT, that is preliminary breath test reading of .035. Later, keys to the Berlina are found discarded in the laneway.
17At Castlemaine police station a small quantity of cannabis is found on your person. At about 6.20 pm just less than 3 hours after the collision, a sample of your blood is take at the Castlemaine Hospital. The Crown opening states that to have been analysed at .132 per cent alcohol content. However, well-recognised expert forensic physician, Dr Morris Odell, finds, having considered the evidence, a likely percentage of .037 or less at the time of driving. I should sentence on that basis. Dr Odell's findings on the substances found in your system do not, as he states, reconcile with the broadly observed manic behaviour you displayed in the time leading to the driving making out the offences.
18The serious injury caused to Nathan Mitz includes a fractured left shoulder, abrasions and multiple bruising. Nathan Mitz also describes head trauma in his police statement. That seems to have been an initial concern when he was hospitalised. He was air lifted to hospital in Melbourne from the collision scene.
19The victim impact statement of Nathan Mitz is dated 12 November 2019, now eight months ago. He describes in it the impact which persisted of his recollection of the collision and Kenneth Butler dying before him. He has suffered shock and anger. Physical symptoms such as stomach pain, headaches and weakness in his shoulder were ongoing. Walking was difficult for some months. Nathan Mitz suffers emotionally, including anxiety particularly related to car travel. In November 2019 he had started to work and, to some extent socialize. Ruby Backer made her victim impact statement on 25 November. She was the partner of Kenneth Butler for almost 30 years. She has felt solitary and lonely. Her mental health has declined. This has included suicidal thinking. She sees and is distressed by the impact upon Kenneth Butler's family, particularly their children. A son especially has suffered damaging grief. She felt no longer able to live in their home and in Castlemaine. After a period of homelessness she has relocated to Melbourne. Even well-meaning expressions of grief and support within the community were overwhelming. She feels for Kenneth Butler's 14 grandchildren and their loss. She reflects on the injustice of his death. In his victim impact statement Damien Barrett describes your erratic and threatening behaviour leading to the offences. He describes graphically your anger and driving on the day. Although physical injuries recovered, he has suffered emotionally. This includes fear, loss of confidence, social isolation and a sense of others’ blame. He believes that his poor physical health, epilepsy, and cognitive ability have been affected. He thinks everyday about the collision.
20I am not complete. Your offending has had great and wide-ranging impact. This must be taken into account in my sentence of you.
21You are a 41-year-old man of Aboriginal descent, presently awaiting this sentence in remand custody. You grew up in the Wonthaggi area, raised by your mother and grandmother. You did not meet your father until aged 30 and have little contact. You have a step-brother and sister, much younger than you. You state that you are close to your mother and step-sister. Letters of both have been tendered on your behalf. Forensic psychologist, Aaron Cunningham points to a lack of emotional connection in childhood which has predisposed you to depression. You left school during year 11 to find work. Since, you have been employed in various jobs, building, mining and in an abattoir. In recent years, you worked as a plasterer, running your own business with a number of employees.
22You have been married for almost 20 years and have a son, 17, and daughter, 14. Your marriage ended when you were imprisoned in 2016 and because of your drug use. You remained estranged from your wife and children and were so at the time of offending. There has been some communication since this offending and your remand.
23Your criminal record states a substantial number of court appearances between September 1996, when you were 17, and May 2017. I note, as is common, some duplication in the record document filed; for example, related to breach and variation of community corrections orders and a suspended sentence of imprisonment. There are offences of dishonesty, violence and driving offences. There are some appearances for drug offences. Your prior driving offences become particularly relevant. There are multiple offences, including for dangerous driving, speeding, driving whilst disqualified or suspended and driving in excess of the prescribed alcohol concentration. There are three occasions of that and two occasions of leaving the scene of an accident. It is a poor driving record with a number of particularly relevant offences.
24You began using cannabis in teenage and then heroin in late teenage. You used heavily for a number of years but were then able to recover from that. However, you began to use methylamphetamine and you were abusing that drug at the time or period of this offending. Analysis of your blood did not reveal its presence. You are placed on methadone in custody. You have also abused alcohol.
25Mr Cunningham diagnoses major depressive disorder with vulnerability to that from childhood, the likely primary cause being disconnection from your wife and children but aggravated by your present custodial situation and future. Neuropsychologist Anna McClaren, despite some impairments, your drug use, head trauma and recent drug overdose-caused coma, does not find acquired brain injury. You are broadly described of low-average intellectual ability.
26You have significant physical health problems which play a role in the mix of your difficulties in prison; some back and rib injuries, it seems still symptomatic, caused in the collision; you suffer Bell's palsy which causes headaches, weakness and paralysis-like symptoms. There are also problems with sleep and increased weight. Mr Cunningham describes fragile mental and physical health, risk of suicide and deterioration of your health. You were hospitalised in May 2019, having taken an overdose of drugs in custody. You were in a coma. Despite, as I was told, hospital records of your self-history stating otherwise, I accept that this event was at least partly suicidal or self-harming, that borne of your depressive illness and response to your situation. You have also injured your hand in prison.
27Mr Kenny describes your situation at the time or days leading to the offending as disconnected from your family, distressed, isolated and chaotic. You were drinking heavily. 6 January is your son's birthday.
28I see no application of the Verdins' principles beyond added burden of imprisonment and the stated risk of deterioration in your mental and physical health. Your irrational behaviour in the hours leading to and at time of the driving and collision in Forest Street is not well explained by the evidence, for example, the toxicological evidence as earlier raised, nor is it shown to be in any clear, persuasive way psychologically or psychiatrically caused.
29This was extremely serious offending; it is correct to say, a serious example of these offences. Whatever the cause, your behaviour, and particularly driving, leading to the collision are an adverse context. The consequences have been dire and damaging to a number of people. Your criminal record, particularly your driving offences, is relevant and important. The circumstances make important sentencing considerations and purposes of high moral culpability, general and specific deterrence, condemnation of the offending and proportionate punishment of it. Deterrence of you and others is relevant to protection of the community.
30There needs to be a very substantial period of imprisonment.
31I must also take into account factors which go to moderate that sentence. They include the following.
·(1) Your plea of guilty. I accept that you suffer genuine remorse. That is despite your callous behaviour immediately after the collision and attempting in your position at committal to blame another. The distressing nightmares about the collision described by Mr Cunningham can be seen as consistent with this. However, I also see a significant sense of your own situation in the psychological evidence before me.
·(2) Your personal history and circumstances. This includes your psychological and physical health conditions, and those suffered in the collision. As I have stated, imprisonment will be made more difficult for you. The present COVID-19 health situation adds to this. I bear in mind higher courts' statement about additional risk, stress and anxiety, restrictions on freedom of movement, recreational and rehabilitation programs, family and other support affecting those in custody. These apply to you. Your mental health would likely increase the effect of some.
·(3) As conceded, there is no obvious cause for optimism about your prospects for rehabilitation; however, I should not discount them. You have work skill and formerly a period of work success. You have family support, the hope and motivation of reconnection with your wife or at least your children.
32(4) The principle of totality applies. There should only be partial cumulation between my individual sentences reflecting a number of sentences being part of the same conduct, albeit there must be some cumulation that reflects separate victims and the difference in offending of Charge 4, failing to assist after the collision. The two-month sentence for offences committed on the night prior is also relevant. My aim should be a just total sentence and one that does not unduly crush your hopes for rehabilitation.
33These matters are relevant to your head and also your minimum term. However, the sentence must attempt to reflect the extreme seriousness of your offences.
34After considering what I see to be the relevant matters, I sentence you as follows. On Charge 1, culpable driving, you are sentenced to eight years' imprisonment. On Charge 2, negligently causing serious injury, three years' imprisonment. On Charge 3, reckless conduct endangering life, two years' imprisonment. On Charge 4, failing to render assistance, two years' imprisonment. On the summary offence of unlicensed driving you are sentenced to two months' imprisonment.
35I direct that nine months of the sentence on Charge 2, six months of the sentence on Charge 3 and 12 months of the sentence on Charge 4 be served cumulatively on the sentence for Charge 1 and on each other. That is a total effective sentence of 10 years and three months. I set a minimum term before eligibility for parole of seven years. I declare under s.18, 878 days of pre-sentence detention already served.
36Now, there are other matters, are there not, Mr Gibson? And you referred me to s.89 and s.89C of the Sentencing Act. I will come to that in a moment. Is there anything else by why of other orders. I suppose there is a s.6A - AAA ‑ ‑ ‑
37MR GIBSON: Triple A, Your Honour. Yes. Yes, I was going to remind Your Honour of that, 6AAA.
38HIS HONOUR: ‑ ‑ ‑ indication. I will come to that. Yes.
39MR GIBSON: And then there was the matters that I raised in relation to disqualification ‑ ‑ ‑
40HIS HONOUR: Yes.
41MR GIBSON: ‑ ‑ ‑ and whether Your Honour was prepared to make finding that alcohol and or drugs made a contribution to the offending.
42HIS HONOUR: Yes, now, as I read it, that is discretionary given that he has not been charged and sentenced under the actual alcohol and or drug sections of - subsections of 318, is that - have I got that right?
43MR GIBSON: Well, it is a question, he obviously is not charged with - he could have been charged with exceeding .05 because the blood alcohol reading of .13 was within 3 hours of the collision. So, he could have been charged with that summary offence.
44HIS HONOUR: Well, that is right, yes, but he was not.
45MR GIBSON: Now, there is illicit drugs on him and alcohol and it is just a question of whether or not Your Honour is prepared to finding ‑ ‑ ‑
46HIS HONOUR: It is. That is what I mean. Under sub-s.(1) of 89C it is discretionary, under sub-s.(2), which would have applied had he been charged and sentenced under the other categories of culpable driving I would have been obliged to do so. I am inclined to think that I should make a finding. It would seem to be in the community interest, for example. I returned to Mr Odell's statement in considering this and I raise this for you, Mr Kenny. You would have to say that Mr Odell is puzzled by the toxicological evidence and in fact under discussion he attempts - he would concede, purely speculative explanations for the, what he describes as the disparity. Ultimately, under paragraph 5 of “Opinion”, he restates that disparity and says it is not possible to quantify the nature or extent of any impairment other than to state that it would have been more likely that he was sedated than stimulated. To make the finding, I have got to be satisfied that he was under the influence of alcohol or a drug or both which contributed to the offence. Now, I am not shut out from doing that by the decision to charge him under gross negligence but, yes, I do not think I am shut out from making such a finding.
47MR GIBSON: I agree with that, Your Honour.
48HIS HONOUR: I am inclined to make it but Mr Kenny, do you want to say anything in opposition to that?
49MR KENNY: No, Your Honour.
50HIS HONOUR: All right, well I will make the finding under s.89C, that is, that both alcohol and drug - that he was under the influence of alcohol or a drug or both which contributed to the offence. Now, that is just a finding that I presume will affect later consideration of his license status, that is as I recollect I was told. I am obliged under s.89 to make a cancellation or disqualification order on his license. And I am minded to make it that period for five years which will allow him, if he has rehabilitated himself in terms of driving, to make application to the court and then the relevant authorities or people can consider the case at that time. So, that is the license disqualification period that I set, five years from today. Just excuse me for a moment.
51Had you not pleaded guilty, I would have imposed a sentence of 13 years with a minimum term of nine years.
52Anything else that I need to do?
53MR GIBSON: No, Your Honour.
54HIS HONOUR: Thank you.
55MR KENNY: Thank you, Your Honour.
56HIS HONOUR: I will stand the matter down now, that means I will turn people off, thank you.
57MR GIBSON: If the court pleases.
58MR KENNY: May it please Your Honour.
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