Director of Public Prosecutions v Tate
[2021] VCC 22
•21 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN TATE |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26, 27 and 28 October 2020 |
DATE OF SENTENCE: | 21 January 2021 |
CASE MAY BE CITED AS: | DPP v Tate |
MEDIUM NEUTRAL CITATION: | [2021] VCC 22 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Harper | Office of Public Prosecutions |
For the Accused | Ms S. Wallace | Nelson Brown Legal |
VICTORIAN GOVERNMENT REPORTING SERVICE
221035
HIS HONOUR:
1Mrs Gleeda Elaine Hooper was a much loved 77 year old woman. She and her beloved husband, Peter Hooper, then aged 81, had been happily married for over 30 years. As Mr Hooper said in his victim impact statement, he and his wife had a very happy marriage because, as he put it with poignancy, 'We enjoyed each other's company'. It seemed they valued simple things such as going out for lunch after a drive in the nearby Brisbane ranges.
2At around 12.30 pm on 28 January 2019 Mr Hooper was driving safely and responsibly in the Brisbane ranges along a road he was familiar with called
De Motts Road in Anakie. Mrs Hooper was in the passenger seat as they headed in an easterly direction towards the café or roadhouse in the township of Anakie to have lunch. You, Justin Tate, had that day arranged to go from your workplace at the butcher's shop in the Corio Village shopping centre in Corio, to Ballarat to see your daughter. For some reason you took a route to Ballarat which saw you drive along the rural road, De Motts Road. You were heading west.3As you approached the left-hand curve you failed the basic requirement of all responsible drivers when you drifted out of your lane and onto the wrong side of the road. You made no effort to correct your position and you ended up with your car completely on the wrong side of the road. All this occurred as Mr and Mrs Hooper were driving safely along their correct side of the road towards Anakie. Your car came directly at them, out of the left-hand curve. Mr Hooper had nowhere to go.
4You slammed head on into the Hoopers' car. Tragically the collision caused the death of Mrs Hooper. Mr Hooper was seriously injured. He sustained a fractured sternum, multiple fractured ribs and a fractured ankle. He was in hospital for some days and in rehabilitation for a lengthy time. He has ongoing back pain and has had to give up golf, a game he loved, and he finds moving around, especially with steps, much harder now.
5You too, Mr Tate, were injured, and I will discuss those matters later as well, but for now to return to the scene. After hearing the collision nearby, neighbours, and then other drivers who were coming along De Motts Road, gave immediate assistance and summoned the police, the ambulance and the local CFA. You, Mr Tate, were transported by ambulance from the scene to the Geelong Hospital. A blood sample was taken from you and analysed. What was found was that you had a significant amount of methylamphetamines in your system. To be precise, it was 0.52 milligrams of methylamphetamines and 0.1 milligrams of amphetamines per litre of blood.
6You were interviewed by the police three or so weeks after the collision and charged with culpable driving causing the death of Gleeda Elaine Hooper and negligently causing serious injury to Peter Hooper.
7A contested committal was held with only the experts cross-examined. Once your case was before the County Court there was intensive case management that resulted in you ultimately pleading guilty to the two charges on the indictments and the two related summary offences. The two indictable charges were culpable driving causing the death of Gleeda Elaine Hooper by your negligent driving, and negligently causing serious injury to Peter Hooper.
8The plea of guilty was entered and accepted with certain facts disputed. A contested plea hearing was conducted over three days in late October 2020. The prosecution called five civilian witnesses who attended the scene shortly after the collision. Also called as witnesses was the ambulance officer who attended to you, three police officers, a nurse from the Geelong Hospital and two experts on the topic of methylamphetamines and finally, the informant.
9While the prosecution separately tendered photographs, your telephone records and your record of interview, it was accepted that in resolving the disputed facts, that I could and should rely on the whole of the depositions and all the evidence tendered on the plea, including a letter from you that was tendered after the plea hearing. I was very significantly aided by the written and oral submissions of both counsel.
10The fact in dispute related to the methylamphetamines in your blood when the sample was taken at the hospital. The prosecution submitted that all the evidence led to an inevitable conclusion that you injected methylamphetamines on the morning of 28 January 2019 prior to the collision and, as such, at the time of the collision you were intoxicated with methylamphetamines and thus unable to maintain proper control of your car.
11On your behalf, Mr Tate, your counsel, Ms Wallace, submitted that the prosecution could not prove to the requisite standard that you were at the time of the collision intoxicated by the prior ingestion of methamphetamines. The submission made on your behalf was that the prosecution could not exclude the possibility that the methylamphetamines in your blood was due to you ingesting the drug after the collision.
12The standard of proof required in this contested plea is not in dispute. The law is clear I must be satisfied beyond reasonable doubt before I could find that the prosecution contention to be made out and thus use this adverse fact against you in the sense that it aggravates or makes more serious your criminal conduct, in order to reach the conclusion to the standard of beyond reasonable doubt, all other explanations for the methylamphetamines in your blood need to be excluded as being unreasonable or fanciful.
13Again, in that regard the law relating to the drawing of inferences and proof beyond reasonable doubt of a fact on the basis of inferences is law that is well settled and not here in dispute. The prosecution must establish that the inference they contend for is the only reasonable inference available. To achieve this the prosecution must establish that all alternative contrary inferences are not reasonable. It is not a matter of preferring one reasonable explanation over another reasonable explanation. Rather, the explanation or scenario contended for by the prosecution must be the only reasonable inference. All others must, on the evidence, be eliminated or shown to be unreasonable.
14The question for me is, am I satisfied beyond reasonable doubt that the only explanation for the drugs in your blood is that you took those drugs before the collision. I must conclude that alternative hypothesis, or an alternative hypothesis, that you ingested drugs after the collision, that is at the scene before you were transported from there to the hospital by the ambulance, is not a reasonable hypothesis.
15The parties identified three aspects or categories of evidence that bore on the question to be resolved. Those topics were evidence of the timing or the opportunity, or the lack of opportunity, for you to ingest the drugs at the scene in the relatively short period between the collision and the commencement of your treatment by the ambulance paramedic. The second area of evidence was the ambulance officer's evidence and his notes and observations, the evidence of a nurse and, in particular, the observations and records from the Geelong Hospital and the expert evidence from a forensic physician and an expert toxicologist. The third area was your admissions to the police of injecting methylamphetamines on the morning of the collision prior to driving towards Ballarat.
16I should make it clear that there was no direct or positive evidence whatsoever that you did in fact ingest methylamphetamines after the collision before you were in the ambulance and transported to the hospital. The state of the evidence is such that the submission of your counsel was that an alternative hypothesis remains open and not excluded notwithstanding that she properly acknowledged that there was no evidence, no observation or other evidence that went to establish positively that you did in fact ingest the drugs after the collision. Of importance and a matter I have kept well to the fore, is that the only positive evidence about the point in time that you put the drugs into your body was what you said to the police in your record of interview. Your account was that you injected methylamphetamines on the morning before the collision. You gave that account or description as your answer or explanation to the simple question of the police as to how you had a reading of 0.52 milligrams per litre in the blood that was taken as a sample at 3.15 pm on the day of the collision.
17I will say more of this evidence and its importance as an admission against interest later. What is stressed at this point is that this is the only positive evidence as to when the drugs were taken. As I have said it is acknowledged there is no positive evidence of drugs being taken at the scene after collision. That of course does not mean that the hypothesis put by your counsel is thereby eliminated. It remains necessary for me to consider all the evidence and determine if all explanations other than the one that the prosecution contends for are simply unreasonable and can be rejected.
18As is well understood in respect of the validity of any hypothesis, I must consider all the evidence as a whole, not simply one piece of evidence or any piece of evidence independently of all other pieces of evidence. That said, on the topic of the evidence of opportunity or the timing of events, I first note generally all witnesses who came to the scene gave helpful and honest evidence before me. Importantly, what they did on that afternoon was to help the Hoopers and you, Mr Tate, and that is to be commended. They were confronted with a traumatic scene and they helped, they comforted and they ensured that the Emergency Services were quickly summonsed. They were all impressive and decent members of our community, doing the right thing.
19To be asked over 20 months later to recall details is no easy task. While there were understandably differences in some accounts and observations, I found the evidence of the first man on the scene, Mr Ellery, and the occupants of the first car on the scene that was coming along De Motts Road, that is Mr Kirk and Ms McKinley, to be particularly impressive and helpful evidence.
20The evidence established that Mr Ellery heard the collision from his nearby house and came to the scene that is from his adjacent property, and within a minute or a minute and a half he came to observe you, Mr Tate, standing or wandering outside your car. He quickly rang 000 and was asked to give a description of the scene to the 000 operator. His call was at 12:38pm. He said that by that point you, Mr Tate, were lying on the ground by your car where you remained until you were put into the ambulance and you were quickly using your own phone. Your phone records reveal that at 12:39pm you used your phone to make a call which lasted 19 seconds. Mr Ellery described you as complaining of pain in your stomach area and writhing. As it turned out, you did have a significant spinal fracture.
21The next ones at the scene and to attend to you were Mr Kirk and Ms McKinley. Other neighbours, Mr Lorenz and Mr McDonald, also arrived. What can be deduced from all the evidence of those at the scene was that no one made a point of military type surveillance of you, Mr Tate, but with these realistic concessions that there may have been gaps in one or other of the witness' observations. With those concessions it was made clear that the witnesses were attending to you and closely assisting you and the Hoopers as best they could.
22The distances between where you were on the ground by your car and the Hooper's car was not significant and enabled good observations from one aspect of the scene near your car to where the others were and vice versa.
23Mr Ellery was observing you until Mr Kirk and Ms McKinley arrived and took a more direct role while he was on the phone to 000. Mr Kirk and Ms McKinley took turns to help the Hoopers and you, that is one moved to one area and then the other moved to the other area and they swapped.
24Another unknown person, a nurse, arrived and played a bigger role with the Hoopers. Given the proximity of all the people and especially their focus on helping you as one of the injured, given your injuries which you describe, the pains in your stomach area, and given your use of your own phone at 12:39pm, 12:42pm and 12:54pm, and given the commencement of the ambulance care at 1:00pm or at 1:03pm, there time from 12:38pm to 1:03pm was replete with people with you or close to you. In all the circumstances for you to have taken out and swallowed methylamphetamines without anyone seeing anything or any remnant, is not a reasonable scenario or hypothesis at all, in my view. It is fanciful, in my view, that the amount of methylamphetamines required to be available and swallowed could not be done by you as you lay injured, assisted and observed by a number of people who were diligently on the task of looking after and helping you and the Hoopers.
25The fact that the witnesses may have conceded that they could not say as an absolute that you were under their uninterrupted observations merely confirms the witnesses' honesty. As one witness moved to another part of the scene and thus did not have you under strict observation, another took up being with you and so on. In my view, the evidence of the witnesses at the scene up to the time the ambulance officer was treating you, about 16 minutes or so, did not create any realistic opportunity for an entirely unobserved ingestion of drugs.
26As to the 60 to 90 seconds from the collision to Mr Ellery arriving, what can be deduced is that you were in your car with the effects of the collision, the shock and the like. You then got out and by the time Mr Ellery arrived you were, in his words, wandering or unsteady, moving and staggering, and looked to him like you were looking for something. He presumed it was your phone that you were looking for because you were quickly thereafter speaking on your phone. So you did have to locate your phone and then use it. While it could be said that the time before Mr Ellery got to the scene was a time you were unobserved, in all the circumstances of your injured state and the evidence of how much methylamphetamines you had to have and swallow, together with the improbability of you taking drugs at that point, knowing with your experience, which I will touch on shortly, the certainty of being tested for drugs at some point and in light of your unembellished straightforward admission later in your record of interview, of injecting the drug earlier in the day, I find that pulling all the pieces of evidence together, that in combination it renders the scenario that you swallowed methylamphetamines in the 60 to 90 seconds before Mr Ellery arrived, not a scenario or explanation that I accept as a reasonable one. It is fanciful, in my view.
27I am very firmly of the view, that is, I am satisfied beyond reasonable doubt, that the scenario of ingesting the drugs at the scene is simply unreasonable and can be properly and safely rejected. I do not accept it at any level and certainly not to the level of the balance of probabilities. I accept beyond reasonable doubt that the drugs were put into your body and injected as you said they were, earlier, before the collision, that is before driving.
28The argument carefully put by your counsel that the opportunity to consume the methylamphetamines after the collision was not excluded by the witnesses at the scene, is not a persuasive argument either on the basis of the evidence of those witnesses or on the whole of the evidence on the issue. As I said, I must consider this issue of opportunity by reference to the evidence of the witnesses at the scene and all the other evidence as well.
29I move on to the area of evidence regarding the effects of the methylamphetamines and the amounts required to give the reading that was taken at 3:15pm. As to the expert evidence, first, I accept the evidence of the expert toxicologist, Mr Gerostamoulos, that to produce the reading of 0.52 milligrams of methylamphetamines and the metabolism to produce 1 gram of amphetamines, that a situation amount of pure methylamphetamines, between 100 and 250 milligrams would have to have been ingested by you. I accept the evidence of the informant and Dr Sungaila that methylamphetamines on the streets is not sold in 100 per cent purity or anything approaching that. I accept the evidence of the toxicologist that the 100 to 250 milligrams or above is a very significant amount of methylamphetamines and well above, by a factor of three to perhaps 10 of what is usually used in order to get the stimulant effect that drug users seek. I take into account, however, that you were a long term methylamphetamines user.
30Further, while it is the case that your previous heart rate, blood pressure and other observations were not known, the observations from the time of your treatment in the ambulance and throughout your time of treatment in the hospital, reveal there was nothing other than a reasonably standard and steady heart rate and blood pressure and other tell-tale signs. There was no spike or movement that would be expected had you swallowed a large amount of methylamphetamines in the 90 seconds or thereabouts leading up to 12:38pm or from that time until 1:03pm. Taking into account Dr Sungaila's highly cautious approach to the issue of not knowing your previous controlled observations as to your heart rate and blood pressure and the like, I am persuaded or take into account that the ingestion of a significant amount of methylamphetamines in the timeframe of 12:36pm or thereabouts to 1:03pm would have revealed something in terms of detectable changes or symptoms. Your steady, unchanged observations are, in my view, telling or at least very important in finding that there was no ingestion at the scene, rather, it was from earlier ingestion or injection in the morning, just as you said you did in your record of interview.
31The argument of your counsel that the absence of an observation by the ambulance officer of marks of an injection in a long term intravenous drug user that you are, is not a persuasive argument. I am well satisfied that you could have injected methylamphetamines somewhere into your body in the morning and left no signs or none that would have been seen or anticipated by the treating ambulance officer who was then concerned with the serious consequences to you of a high speed head on collision.
32Moving to the admission in the record of interview. The admission evidence in the record of interview is a piece of evidence that I have referred to already. It is clear, unambiguous, unembellished and explains logically the reading or the amounts of drugs in your blood at 3.15 pm. The argument by your counsel, as I understood it, was that there was some level of confusion that you had about the day or dates that you were speaking of, and I find this argument, with respect, to be entirely unpersuasive. At the time you answered the simple question set out in the record of interview at 463 and 464. You knew what you were speaking about – that is the fatal collision on De Motts Road. You knew it was on the day you left work and headed towards Ballarat. You knew you had a blood reading revealing methylamphetamines in your system. You simply, and in my view, truthfully, and against your own interest, and thus reliably, admitted that you injected methylamphetamines on that morning. Your answer that you gave was because that is exactly what you did. The material referred to in the interview which is said to reveal some confusion or, in the informant's evidence, that is said to reveal some confusion, does not have that effect and does not, in my view, undermine the reliability of your admission. In the face of that admission the scenario that the methylamphetamines was taken after the collision is one that is simply without foundation. It is an unreasonable conclusion for me to draw or is a scenario that, in my view, is easily rejected. I have reached the firm conclusion to the high standard of beyond reasonable doubt that there was methylamphetamines in your blood at the time of the collision. I reject any suggestion that you ingested methylamphetamines after the collision.
33Just for completeness, I mention a matter raised by me on the plea as to whether anything could be made of the fact that you did not give evidence on the plea. I received very helpful submissions from counsel and I entirely agree with them, that the issue was simply a distraction. I have entirely put the matter out of my consideration. I have in that way in effect followed the direction given to juries based on the High Court decision in Azzopardi.[1] In short, the fact that you did not give evidence plays or played absolutely no role in my determination of all issues, that is those in dispute or otherwise. Your right to silence or not to give evidence in the plea is fundamental, and that is the end of that issue.
[1]Azzopardi v The Queen (2001) 205 CLR 50
34My finding beyond reasonable doubt that you took dangerous drugs before driving and were consequently intoxicated, increases the gravity or seriousness of your offending conduct and the level of your moral culpability. As a general proposition, to have someone cross over into the wrong lane and drive head on into another car on a country road is a nightmare scenario for all the safe, alert, responsible drivers who are abiding by the road rules. The level of endangerment to those in other cars and the high risk, if not near certainty, of causing death or serious injury or as here, both, makes this type of negligent driving a serious or grave example of this offending.
35You were drug affected and you should not have been driving at all. You were not able to simply keep your car in your lane. This risk that drugged drivers present to other road users and to themselves remains, in my view, under-appreciated, especially by the drug users themselves. It is the responsibility of every driver to be alert, careful and considerate of the safety of all other road users. It is plain that taking drugs can and does impact on a driver's capacity, such that other road users are endangered.
36Also the speed of 70 kilometres an hour which was estimated that you took the curve in the road where seeing the oncoming cars was limited, was also risky driving and part of your overall negligent driving. While there is an absence of what can be described as conscious or deliberate, poor decision making or risk taking such as grossly excessive speed or showing off, hooning type driving, or using a distracting device such as a phone, the factors that are present, that is driving while intoxicated with a dangerous drug, driving at the speed that you were going, driving in a way that you did not remain on the correct side of the road, driving into another car, head on, without effort to avoid it, are, as I said, what makes this a serious example of this needless, avoidable crime. Those matters establish the seriousness of your negligent driving which attaches to both offences.
37With respect to the charge of negligently causing serious injury, while there can be worse examples where catastrophic, life changing injuries are caused, here the injuries are serious enough for the older victim, Mr Hooper. He sustained serious chest fractures. His rehabilitation was protracted. He is not the same man that he was. As to the separate issue of your moral culpability, which often looms large or is of significant importance in these driving offences. Here your moral culpability is high. That is due not just to the deliberate decision you made to drive when effected by drugs, but because you Mr Tate, have a bad history of doing exactly that before and you have been sanctioned and thus warned by the courts of the dangers of such behaviour and the dangers that it presents to the rest of the community. Your poor prior driving history over a number of years is very concerning.
38Your driving history is recorded in the VicRoads' records as commencing in 1996 when you were 19. Those VicRoads records reveal 74 driving offences, mainly for speeding from 1995 to 2015. For these offences, demerit points were imposed. Offending that was dealt with by the courts, relevantly commenced in 2004, with a suspended gaol term being imposed for driving while your licence was suspended. However, the period from 2012 to 2017 is more relevant, as you were dealt with a number of times for serious driving offences which resulted in gaol sentences, as well as community corrections orders which were later breached. In February 2012, you drove unlicensed and while your licence was suspended. You were placed on a 12 month community corrections order and a two month suspended gaol term was imposed You breached the community corrections order and for that, in April 2013, the community corrections order was extended.
39On 24 January 2014, you were sentenced again for two charges of driving while your licence was suspended. But most concerningly, you were also sentenced for a charge of failing an oral fluid test, meaning you were driving while you were effected by drugs. The community corrections order and the suspended sentence penalty is imposed to give you a chance to stay out of gaol were breached and you were sentenced to two months imprisonment. On 16 June 2015, again you were dealt with for failing an oral fluid test. There were other drug offences as well and you were sentenced to four months imprisonment and give an 18 months community corrections order. Various concerning examples of poor driving and in particular again, failing the oral fluid test occurred in late 2015 and through 2016.
40These offences were heard together in the Magistrates' Court in March 2017, along with breaches of another community corrections order. You were given a short time serve sentence of imprisonment and a community corrections order. One requirement of the community corrections order was that you were to do a road trauma awareness course. As I understand it, this course was never undertaken. The community corrections order was breached later and a warrant was issued for your arrest, which was executed in November 2018. You were re-bailed and remained on bail for this breached community corrections order at the time of the collision on 28 January 2019. Thus, you have pleaded guilty before me to committing an indictable offence while on bail. Further, at the time, you were unlicensed and should not have been driving at all. These are matters that add to the seriousness of your offending.
41What is clear, although I pause to say you will not be double punished. What is clear is that you have an appalling driving record. You have been detected driving with drugs in your system three times before. You have had the benefit of sentences directed at helping you deal with your drug problems, but you have breached those rehabilitative sentences. Your prior relevant criminal history means your moral culpability is much higher. You knew the wrongfulness and dangerousness of driving with methylamphetamines in your system, but you went ahead injecting methylamphetamines before you drove off towards Ballarat.
42Your high level of moral culpability and the gravity of your offending conduct means there must be very significant weight given to the sentencing purposes of denunciation and protection of the community from your entrenched dangerous driving habits. The commonplace task of sentencing Judges in assessing the gravity and moral culpability of offending conduct has, where the offence is culpable driving, now another new statutory dimension.
43Culpable driving is a standard sentencing offence, as defined by the provisions of the Sentencing Act. The standard sentence for offences that objectively go to the mid-range is eight years. However, as the Court of Appeal has made clear, the key requirement for me is that I must take into account the fact that the offence is a standard sentence offence and, like the maximum term for culpable driving, which is 20 years, the standard sentence of eight years provides me with a legislative guidepost. The well-known sentencing methodology of the instinctive synthesis of all relevant factors remains unaffected by the standard sentencing regime. What is required is that I explain or give reasons if my sentence is lower than the standard sentence and state how my sentence relates to the standard sentence. I will do that when announcing the term of imprisonment for culpable driving.
44At this point I add, that given the circumstances, your past history and the further statutory categorisation of culpable driving as the Category 2 offence, all agree that the only option is a term of imprisonment with a non-parole period. Before I move to your personal circumstances, I need to give more detail about the victims and in particular, the impact of your crimes on Mr Hooper and the wider Hooper family.
45As I have mentioned, Mr Hooper, in a simple but poignant words gave clear insight into his great sense of loss. He wrote that he has a substantial loss of wellbeing 'due to the loss of my wife who was killed in the crash'. He has, as I said, 'had a successful marriage because we enjoyed the company of one another'. He has been married for many, many years and now feels the loneliness very strongly. His wife had some difficulties requiring personal care from him and he had a strong sense of usefulness. 'Feeling useful is a great component of the feeling of wellbeing' he wrote and he does not have that anymore.
46Their combined daily lives were full and so the loss of Mrs Hooper has left him feeling a great sense of emptiness. I have explained the extent of his injuries, but he also says his prolonged period of confinement has caused him great weakness and recovery of his strength has been slow. It has also meant that there are less social interactions. He has now very little interactions with friends. Mrs Hooper's son wrote of the deep shock that he felt on hearing the death of his mother and the injury to his step-father. From his sister, 'It was made all the worse as he had to go to the hospital to tell Mr Hooper that his beloved wife had died'. It is a moment of deep emotion that sticks in the son's mind.
47What he said, however, in describing his mother was heartfelt and important. He wrote this:
You see, it must be known that Mum was the fabric, a diplomat, the matriarch, the glue, the centre of our family. This has effected every aspect of our family and will continue to do so for the rest of our days.
48He says that his life:
…has changed in more ways than I could ever have imagined… It has changed us fundamentally in so many ways and the sense of loss we all feel [speaking for the whole family] is overwhelming at times.
49Mrs Hooper's daughter and grandchildren had the added trauma of going to the scene. Her daughter spoke in her victim impact statement of having to say goodbye to her mother on the side of the road. She says her life and that of her own children have not been the same since. She also refers to Mr Hooper's serious injury and his lengthy stay in rehabilitation and long recovery. She then adds, 'then he had to go home to an empty house and mourn the loss of his wife'.
50Finally, the very touching victim impact statements from Mr Hooper's elderly sister, who refers to Mrs Hooper by her second name Elaine. It is a victim impact statement that says much and deserves to be heard and set out in these sentencing remarks. She said:
Elaine is my sister. I miss her so much. We would meet up once a week for coffee and a chat. Elaine was a beautiful person, always happy and smiling, intelligent, with a great personality. She worked hard and always had work to go to. She had many friends and was well respected in her community. I can't say enough good things about Elaine. It is terrible that her life ended in this way. She didn't deserve it. My loving sister will always be in my heart and thoughts forever.
51As to your own personal circumstances Mr Tate, you are now 45 years old. The most important aspect of your personal life is your long solid relationship with your wife and the children that you and she have raised. I have read and taken into account your wife's supportive and important letter tendered on the plea, together with the letter from your daughter in that regard. You met your wife when you were both teenagers and married when you were 23. You have raised your four children in the Geelong area. They all too remain supportive of you.
52What stands out in all the references, the letters from Mr O'Toole, Mr Taylor, in particular is your dedication to your family and to others. Your children, especially your very young child now five years old, have struggled with you being imprisoned and because of the COVID restrictions, they are unable to visit. I will take into account that your imprisonment on remand, since March 2020 and to an unknown time, if at all, has been far more onerous due to the restrictions on visits and also programs within the prison.
53To return to important aspects of your background. I have had regard to all the impressive letters by those who know you and can see your good qualities. You were raised mostly by your mother and step-father in the Geelong area ultimately. Your schooling was to the age of 15 and perhaps not very successful. You commenced work as a butcher, though early on you suffered a serious hand injury. Thereafter, there have been significant periods of unemployment and a very difficult failure of a business, which you and your wife came out with nothing. This affected you psychologically. But there have been periods when you have worked as a butcher for periods of time.
54At the time of this offending, you had worked in a butcher shop for about twelve months. You were moving towards taking over that business. Your wife and family speak of this being an important, almost turning point for you. What, however has, over your whole adult life, been your biggest and most deeply entrenched problem is your addiction to drugs. You commenced using drugs when introduced to them by others at your local sporting clubs. It was at first a feature of Saturday nights, which involve drinking and taking ecstasy and amphetamines. But usage increased to involve the whole of the weekend and then some weekdays and then it became daily.
55You moved to using or injecting drugs intravenously. By age 30, you were using and addicted to that dreadful drug methylamphetamines. You have also used GHB. Although you have been offered drug treatment and assistance on community corrections order, you have not engaged or persevered. Your problems with drugs, while in the community, is unfortunately entrenched. It means your prospects of rehabilitation are particularly guarded. I note that you have had some counselling in custody in recent times and have returned clean urine samples. I have taken into account the recent letter received from the Salvation Army, as to your efforts to put drugs behind you. They are to a point encouraging.
56As mentioned, you were injured. You had spinal injuries in the collision, requiring surgery. It does not seem to be ongoing significant problems, but I do not ignore those matters. Your mental health was assessed by Mr Simmons, a psychologist who noticed some early childhood neglect, poor schooling and then the slide into drug addiction. Mr Simmons did not consider that you had any significant mental health problems, other than an understandable traumatic response to the consequences of the collision that you caused.
57On the topic of remorse, Mr Simmons said:
Mr Tate indicated that he is pleading guilty and did not attempt to justify his behaviour. He expressed remorse for his actions and was able to discuss the impact that it may have had upon his male victim, acknowledging he had taken the life of the woman in the motor vehicle and he appeared distressed when talking about the impact his actions have on others. Mr Tate is aware that he will be receiving a significant disposition.
58Your letter addressed to the victim was written before, but tendered after the plea was had, does express remorse for taking Mrs Hooper's life and causing great pain to her husband and family. I take that into account as genuine. You also deeply regret the effect of your crimes have had on your own family. The letters from your family and the Salvation Army, also express your remorse and I have factored that into the sentencing equation. You have missed many milestones and important events in your family's life.
59Your plea of guilty is also an expression of remorse. It was not a straight forward plea of guilty, contesting of whether you took drugs before driving diminishes the usual full mitigatory before of your plea, however, you must understand, I am not punishing you for exercising your right to contest the facts, rather, the full and usually weighty mitigatory value of a plea of guilty is not entirely available to you in all the circumstances. What remains is that your offending is serious and has had a heartbreaking effect on the Hooper family, especially Mr Hooper, a direct victim himself.
60I must, as I have said, give practical expression to the significant weight that must be attributed to denunciation and protection of the community. By practical expression, I mean not just words of condemnation, but by the imposition of years of incarceration. The community expects nothing less. The efforts and the messages of our government, the road safety authorities, of the courts over many years, has been that negligent drug effected driving is not to be tolerated.
61The message especially from the courts is one the endeavours to deter others. It is a simple, easily understood message, that is, if you take the life of another citizen or seriously injure someone by your negligent driving, when effected by drugs, you will receive years of imprisonment. It is, as it must be, hard and firm punishment because it is deserved. We must protect the lives of all who use our roads. You too must be personally deterred Mr Tate. Your past criminal history is, as I have said, very troubling and weight is necessarily given to deterrence to you, in order that when you are released, you stop your dangerous driving behaviours.
62Your rehabilitation is not ignored. Your family support gives some prospects, but in all the circumstances of you not behaving appropriately in the past, and in circumstances when you have had the support of your family means your prospects for the future are guarded. Your counsel said as much. I cannot give much weight to this sentencing purpose of facilitating in your rehabilitation. It is a sentencing purpose that must yield to the other, more important sentencing purposes of denunciation, protection of the community and deterrence.
63You committed two crimes with the two victims and the harm to each must be practically acknowledged. Accordingly, there must be some measure of cumulation so too to the other offences. With respect to your rehabilitation and for the benefit of the community, you should have the potential for supervised release on parole. Whether and when you are released on parole is for others to determine at the appropriate time. The non-parole period I intend to fix is the minimum that justice requires that you should be incarcerated. It is not lower than the 60 per cent referred to in the standard sentencing provisions. It is higher than that and reflects all the circumstances, including your poor history of compliance with court community orders and suspended sentences.
64There are no fixed formulas with respect to fixing a non-parole period and in my view, the non-parole period I intend to announce, and its relationship with the head sentence is entirely orthodox. I have considered all matters in that regard. I have considered other sentences imposed for culpable driving since the offence became a standard sentence offence. No two cases are alike and with respect to this offence, there are always many unique circumstances. It is an offence that has been said to especially enliven the concept of instinctive synthesis, or use the words of the High Court, individualised sentencing.
65That said, the sentence that I imposed in the matter of Castle,[2] for a drug effected woman driving, unable to keep on the right side of the road and taking the life of an elderly driver is a sentence that I have considered. There are more grave aspects to your offending than in Ms Castle’s case. The sentence I have determined is on the basis of your offending and it is, in my view, offending that is above the mid-range. With all things taken into account, including the fact of the standard sentencing legislative guidepost, and the maximum term guidepost, I have concluded that the sentence is justly and appropriately one that is above, but just above, the standard sentencing legislative guidepost. That is because of the dreadful, deliberate, selfish decision that you made, to yet again, take drugs before driving, and then drive in the way that you did, not keeping on your side of the road and causing the fatal head on collision with the Hoopers' car. That explains my reasoning process in respect of the standard sentence of culpable driving.
[2]DPP v Castle [2020] VCC 937
66Taking into account all matters and doing the best I can, I impose the following sentence. In respect of Charge 1, the culpable driving causing the death of Gleeda Elaine Hooper, you are sentenced to nine years and six months. For the charge of negligently causing serious injury to Peter Hooper, you are sentenced to three years. For committing an indictable offence while on bail, you are sentenced to a term of imprisonment of one month and for unlicensed driving, you are sentenced to a period of two months.
67I order that one year of the sentence imposed on Charge 2 and one month of the sentence imposed on the unlicensed driving and the one month on committing the indictable offence while on bail, are cumulative upon each other and upon the sentence that I have just imposed. This results in a total sentence of 10 years and eight months and I fix a minimum non-parole period of seven years and six months.
68You have been in custody since 22 February. What is the pre-sentence detention? I am so sorry, I should have got this before.
69MS HARPER: Ninety-nine days, excluding today.
70HIS HONOUR: No, it's more than 99 days.
71MS HARPER: Six, nine, nine. Sorry, Your Honour.
72HIS HONOUR: Six, nine, nine. I'm so sorry. You have already served 699 days on remand. This figure having been reckoned, I now declare that is part of the sentence that I have just announced. I will ensure that this declaration is entered into the record for the court, so that the authorities are left in no doubt that you have already done 699 days of the sentence I have just imposed.
73Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 12 years and six months, with a non-parole period of 10 years and six months. Your licence must be effected. This is a matter of some importance, I take into account as punishment, but in all the circumstances, I cancel your licence, disqualify you from driving for a period of five years. Is there any other orders required Mr Harper?
74MS HARPER: Yes, Your Honour, there was a disposal order in relation to the syringe.
75HIS HONOUR: The disposal order will be signed. Is that all?
76MS HARPER: And could I confirm when the licence disqualification commences Your Honour?
77HIS HONOUR: It commences upon release. Is that what you mean?
78MS HARPER: Upon release? Yes, Your Honour.
79HIS HONOUR: It is very difficult for me to understand it, because when is release? That is a matter for the Parole Board.
80MS HARPER: That's right. Yes, Your Honour.
81HIS HONOUR: But the time off the road, if it is just subsumed from now will be - have no practical effect and it should.
82MS HARPER: Yes, Your Honour. Thank you.
83HIS HONOUR: So when do I say it, upon release? Is that sufficiently clarified or has it got to be something else?
84MS HARPER: Upon release, yes Your Honour. I believe that's sufficient.
85HIS HONOUR: Ms Wallace?
86MS WALLACE: I understand that's the case as well, Your Honour, that if Your Honour directs upon release.
87HIS HONOUR: Yes. Is disqualified for five years. All right, is there any other orders and finally, does the - - -
88MS HARPER: No.
89HIS HONOUR: - - - arithmetic of the sentence all add up?
90MS HARPER: It does, Your Honour.
91MS WALLACE: It does, Your Honour.
92HIS HONOUR: Thank you. I hope nothing has been left out undone in this regard. Ms Harper thank you for your assistance today, but principally pass on my thanks, as I think I have already done to Mr Hayward, for his very considerable assistance in this regard. But Ms Wallace - - -
93MS HARPER: I will, Your Honour.
94HIS HONOUR: But Ms Wallace, this was one of the highest quality pleas that I have heard and I am very grateful for all your efforts.
95MS WALLACE: Thank you, Your Honour.
96HIS HONOUR: I am very grateful to the dignity of everyone involved in very difficult matters. You will be given time, if you need Ms Wallace to discuss whatever you need to discuss with your client. Everyone else will come off the link and I will leave the court. Thank you.
97MS WALLACE: Thank you.
98MS HARPER: May it please the court.
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