Director of Public Prosecutions v Templeton

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-00075

DIRECTOR OF PUBLIC PROSECUTIONS

MICHAEL BRIAN TEMPLETON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2018
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v Templeton
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: One charge of culpable driving causing death – Plea of guilty
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Gibson	OPP
For the Accused	Mr J Saunders	Pica Criminal Lawyers

Pages 1 - 13

HIS HONOUR:

Introduction

Michael Brian Templeton, you have pleaded guilty to one charge of culpable driving causing death contrary to s 318 of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment;
You have also admitted your criminal record.

Circumstances of the offence

A prosecution opening was tendered on the plea and may be summarised as follows:
On 17 March 2017, at 5.30 am you, Michael Templeton, attended at a depot in the Gisborne-Melton Road, Toolern Vale and collected a white 2008 Columbia Freightliner tip truck with a tare weight of 9,280 kilograms. The truck was towing a dog tipper trailer which has a tare weight of 5,800 kilograms. Both truck and trailer were unloaded. The combined approximate weight of the combination that struck the Toyota Hilux was 15 tonnes.
After you had picked up the truck, you then drove to the Calder Freeway.
You stopped at the BP Service Station, Calder Park and topped up with diesel before continuing the journey towards Melbourne. As you drove south east along the Calder Freeway, you were observed to be driving in an erratic manner.
Witnesses made the following observations:
Witness Anne Cassidy states: “I first noticed a white tip truck with a trailer as I was going under the Kings Road Bridge. I was in the right lane overtaking slower cars because I was running later than usual…I saw the truck ahead of me and I thought I would pass it at some stage…As I continued to follow the truck I became surprised because I wasn't catching him…As we got to the road works area I saw there were brake lights coming on in the distance. Although it was dark it was clear to anyone paying attention that the traffic was slowing…I didn’t see it slow down at all. I don’t remember seeing brake lights but the cars in front might have blocked my view of this. All of a sudden the truck started to veer to the right and there was dust and debris flying into the air.”
Witness Tim Omeara states: "When he was about 100 to 150 metres ahead the truck changed lanes to the left and really pushed his way in. This caused the cars he'd pulled in on to brake heavily."
Witness David Attard states: "I got onto the freeway and it was an 80 km/h zone. I noticed a truck behind me. It was white, not too old, it was a tipper with a dog trailer…the truck made me feel uncomfortable…when the first opportunity presented the truck driver changed to the right lane. As the truck drove ahead of me I saw it veer slightly from the centre of his lane to the point where his left hand wheels crossed over the lines. His rear axles had dual wheels and both left hand wheels were over the line. The truck stayed out there for about ten seconds before slowly veering back. It wasn't long before the truck did the same veering to the left, but his left wheels didn't cross the line, they were close to or on it. They stayed there for about the same time."
Witness Tony Kostadinovski states: “I noticed that a fellow work mate that I know was in a truck behind me. His name is Mike and he was driving a Freightliner…Once we were on the Calder I could see him coming up on the right. He was trying to get into the faster lane so was at one stage was behind me, but then went back in the right lane. He was only about 20 metres behind me and I could tell he was going to try and get in front of me…I could see brake lights coming up in front of me so I started slowing down cause this road is terrible. I was probably doing 60-70 km/h before I started braking, but I could see Mike coming flat out. I could see something was going to happen so I was watching him flat out. He was coming close to me like nothing and left about two car lengths before he started braking which was way too late. I saw his truck go up and over the car in front.”
Witness Brad Ryan states: "As I slowed to about 60 km/h and continued slowing, another tip truck passed me in the right hand lane. It was a white tipper and dog. I realised immediately there was no way it was going to stop in time.
Even if he had locked them up, I knew he wouldn't be able to stop. When I was alongside the trailer, I started to brake because I knew there was going to be a collision. The truck did not brake or slow at all. There was no screeching or locked up wheels before the impact."
The accident occurred approximately 2 kilometres south east of Kings Road, Taylors Lakes. Traffic was slowing and banking up due to the lower 80 km/h speed zone in a road works area. Both lanes were becoming heavily congested, but cars ahead were highly visible as brake lights were apparent and the weather was fine.
It is unlikely that there was any emergency braking applied by you prior to the collision, but if there was, it was not more than 6.8 metres distance from the Toyota Hilux or less than 1 second before impact. At the time of the collision, your truck was travelling at not less than 88 km/h in the 80 km/h speed zone.
After your truck had struck the Toyota Hilux, it then impacted the rear of a BMW sedan which came to rest on the centre median strip. The front of the BMW impacted the rear of a Holden Commodore station wagon, which rotated off to the left and came to rest in the left lane. The driver of the Commodore station wagon sustained moderate injuries, requiring a short hospital stay. The driver of the BMW was not injured. The front of the Holden Commodore impacted the rear of a Kia Carnival van which came to rest on the shoulder on the right lane ahead of the collision scene. The occupants of the Kia were uninjured.
As a result of the initial impact, the Toyota Hilux was crushed beneath your Freightliner truck and came to rest between the tipper body and the trailer on the centre grassed median strip. The driver of the Toyota Hilux, Kari-Pekka Maunus, died as a result of injuries sustained in the collision.
Kari-Pekka Maunus was employed as a boilermaker/fabricator for Engineering Maintenance Solutions where he was highly regarded. At the time of the collision he was commuting to work in his Toyota Hilux utility. He is survived by his wife Mia and six children, Jani-Markus aged 26, Elisabeth aged 25, Daniel aged 20, Jonah-Mikael aged 19, Juha-Pekka aged 15, and Helina aged 14.
Following the collision, you expressed suicidal ideation and were conveyed to the Royal Melbourne Hospital where you were admitted. In the ambulance you participated in an oral fluid test conducted by Senior Constable Murley.
The test showed a positive result for the presence of methamphetamines and a negative result for alcohol.
A Road Safety Act blood sample was taken from you at hospital and later analysed. This showed that 0.08 milligrams per litre of methylamphetamine was determined to be present in your blood.
Dr Janelle Mehegan, from the Collision Reconstruction and Mechanical Investigation Unit of Victoria Police, stated in her report as to the causes of the collision: "When the Freightliner first commenced skidding, the truck was travelling at about 88 kph. The driver of the truck failed to recognise that the vehicles ahead were slowing and did not break until less than one second before impact if at all. It is possible that the initial tyre marks are the result of the sudden deceleration caused by the impact with the Toyota Hilux ahead. There was a clear line of sight of at least 500 metres leading to the area of impact."
Dr Morris Odell, medical practitioner and forensic physician, provided a report on the effects of methamphetamines on a driver's competency to operate a vehicle. He commented that the research indicates that drivers of motor cars who are intoxicated with these substances are more likely to drive dangerously, speed and take risks compared to non-drug affected drivers. Typical effects include speed, inappropriate lane changes and erratic driving.
He opined that methamphetamine is a drug capable of rendering a person incapable of having proper control of a motor vehicle at any blood concentration including that which was found in this case. However, in view of the amount found in your blood, he concluded that it was not possible to say the degree to which the substance effected your driving on this particular day.
An interview with you was attempted on 18 March 2017, but was not completed to any degree.

The basis of the plea

When consideration is given to the witness statements, it was obvious that for some time prior to the collision the traffic had slowed due to congestion ahead. As one witness pointed out, the brake lights of the slowing vehicles in front gave adequate notice to those approaching the road works that the traffic had slowed and was continuing to slow down. Another witness said that your truck did not brake or slow at all and that there was no screeching or locked up wheels before impact. As pointed out in the report of Dr Janelle Mehegan, because of the speed at which you struck the Toyota Hilux, you failed to brake at all or if you did brake, it was less than one second before the impact.
I am satisfied that you simply did not have an awareness of the traffic having slowed. It was not the case of an individual vehicle braking suddenly but rather the whole body of traffic had slowed for some time due to the road works. When interviewed by your psychologist, you said that you had begun coughing prior to the accident and had reached down to the left to get a can of Coke from a car fridge taking your eyes off the road. However in all the circumstances in my view this was not an isolated moment of inattention. As such I am satisfied in all the circumstances that your driving on this occasion was negligent and caused the death of Mr Maunus.
The plea of guilty was entered pursuant to s 318(2)(b), that is, culpable driving by driving a motor vehicle negligently and not s 318(2)(d), being under the influence of a drug to such an extent as to be incapable of having control of the motor vehicle. I was informed on the plea that the matter was settled on the basis of s 318(2)(b) as the conclusions of Dr Odell meant that it was not possible to determine the degree to which the level of methylamphetamine in your system at the time effected your driving on this particular day. Nonetheless, the fact that you were under the influence of methylamphetamine at the time is not irrelevant.
I noted in this regard that intoxication (in this case by methylamphetamine use) is a matter that may be taken into account for a charge under s 318(2)(b), and is not limited to a charge under s 318(2)(c) or (d).[1]
[1] See The Queen v Wright [1999] 3 VR 355 at [29].
In the psychological report prepared by Stephen Gault and tendered on the plea, you provide some background to your methylamphetamine use leading up to the accident. You stated that your usual pattern of methylamphetamine use during the period leading up to the accident was to go home from work, smoke methylamphetamine and then get up and smoke before going to work, if there were any drugs left from the night before. On the night prior to the accident, you stated that you stayed up talking and smoking methylamphetamine with a friend. You estimated that you got around two hours sleep on the night before the accident.
When asked if you thought your methylamphetamine use had a specific effect on your driving at the time, you said "If I said ‘yes’ I'd be lying to you, if I said ‘no’ I'd be lying to you, I really don’t know." You also agreed that when using methylamphetamine people take more risks than when sober. In relation to the question of fatigue, you said "I don't think I was fatigued. I think I was like every other normal day that I’d used ice."
You had been using methylamphetamine almost daily for about eight years. You admitted to Mr Gault that over your history of truck driving there would have been hundreds of occasions when you had driven whist using methylamphetamine both before and after work. I am satisfied that you were well aware of the risks of driving whilst under the influence of methylamphetamine and while the presence of the drug in your system could not be proved to be causative of the accident, it is nonetheless an aggravating feature of your offending.

Objective seriousness of the offence

The offence of culpable driving causing death is by its nature a very serious offence as it is involves the death of a human being. The particular circumstances of this offence in my view represent a serious example of culpable driving. So much was conceded by your counsel.
In assessing the seriousness of this case I take into account all the circumstances including: the fact that you were driving an extremely heavy and large vehicle; that your driving was erratic; that you were exceeding the speed limit; that it was dark; that both lanes were heavily congested; that you failed to recognise that the traffic had slowed despite adequate warning; and that you were under the influence of methylamphetamine at the time.
As already noted, in my view in all the circumstances your offending represents a serious example of culpable driving.

Victim impact statement

A victim impact statement was prepared by Mia Maunus, the wife of Kari-Pekka Maunus. Understandably, she is devastated by the loss of her husband in such tragic circumstances. She states "I lost my best friend, my partner, the father of my six beautiful kids, after 30 years”.
Ms Maunus notes that your actions have impacted their lives forever and that "You not only took the life of a loving and caring father of six children but also the man that made this family whole”.
I wish to direct some comments to the family of Mr Maunus. There is nothing this court can say or do that will bring back Mr Maunus, or heal his family's significant and unmeasurable grief and pain. The sentence I must impose can in no way be a measure of the worth of Mr Maunus' life. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Personal circumstances

You are now aged 31. You are the middle of three siblings, you have an older and younger brother. You father worked as a mechanic then as a truck driver. Your mother ran a courier business. You have maintained a close relationship with your mother.
You attended Whittlesea Secondary College to year nine and then transferred to Craigieburn Secondary College. You struggled to fit in at school and it was reported that you were subjected to bullying due to your weight. You did not like sport and were not academically gifted. You left school during year 11 as you were struggling to pass your subjects.
You have a very consistent work history. After leaving school you commenced an apprenticeship at Baker’s Delight. You completed two years of that apprenticeship but had to leave due to a skin allergy in relation to working with flour. When you were 19 you began casual employment with a truck company and whilst at that company obtained a truck licence and worked for around 18 months as a driver. You then worked for a number of different freight companies as a driver ultimately obtaining a licence to drive semitrailers. In April 2015, you began full-time work at Dallas Texas Pty Ltd as a subcontracted driver. You described the owner of that company as being like a father to you. He was aware of your methylamphetamine use and provided you with accommodation for a period of time.
Approximately three weeks prior to the accident, you struck a guard rail while driving one of your employer's trucks. Your employer was of the view that the accident was as a result of your drug use and dismissed you. However you were able to resolve your differences with your employer and returned to normal duties for the three weeks leading up to the accident.
You have been in one significant relationship. At age 21 your partner became pregnant however the relationship broke down and you have had limited access with your son who is now 10.
As noted, you have been using methamphetamine on a daily basis from about age 21 up until the time of the accident, save for a short period of abstinence when you were living with your employer. I have already outlined your methylamphetamine use leading up to the accident however, it is clear that you have had a long standing struggle with that drug. Mr Saunders who appeared on your behalf, pointed out that you have had a consistent work history despite your drug use. However, as was discussed during the plea hearing, this of course is a double-edged sword. While it seems that you were able to continue working whilst using methylamphetamine, you were at the same time behind the wheel of a truck whilst under the influence of the drug.
After assessing your mental state, Mr Gault concluded that he could not find anything to indicate you suffered from an undiagnosed mood disorder at the time of the accident. Therefore no Verdins considerations arise in this instance. He states that the only psychological condition that you were suffering at the time of the accident was a methamphetamine use disorder.
Evidence was called on the plea from a long standing friend of yours, Ricardo Burtina. He gave evidence that supports the submission that you have an excellent work history and that the breakup of your relationship with the mother of your child greatly affected you.
Since being in custody you have engaged in work and educational programs within the prison system, which again is consistent with your motivation to continue to work. You have remained drug free as was evidenced by urine screens presented on the plea.

Sentencing considerations

Mr Saunders submitted that your remorse in this instance is significant. First, this is indicated by your plea of guilty which I accept was entered at the earliest possible opportunity. The plea of guilty of course avoids the need for a trial and most significantly, in cases such as this it avoids the trauma that inevitably results when witnesses and family have to relive the event of a tragedy involving the loss of a life.
Secondly, over and above the plea of guilty Mr Saunders submitted that there is evidence of genuine remorse. Tendered on the plea was a letter that you had written expressing your sincere apology to the family of Mr Maunus. In that letter you acknowledge your drug addiction and your commitment to engaging in studies related to drug and alcohol abuse so that you may be able to help others who suffer from the same addiction that you have suffered. Further, it was submitted that your comments to Mr Gault clearly demonstrate your genuine remorse.
I accept that your remorse is genuine. You have insight into your offending which is clearly evident in the report of Mr Gault. In the report, Mr Gault repeats what you said to him as follows:
‘Obviously I was responsible…I could have made the decision to pull over, but you don’t think like that. I feel I need to serve time. You could let me out today and I’d never touch drugs again but that’s not the point. I need to serve time for his family, and to be honest to help myself. I think about the effects of the accident on his family every day. I put myself in their shoes. I think if it happened to my father how would I feel? I try to put myself in the position of seeing the damage I’ve done. I can’t fully do that – put myself in their position. I can only imagine the pain they’re going through but never really know’.

Mr Gibson, who appeared on behalf of the Director of Public Prosecutions pointed out that general deterrence is of course the primary sentencing consideration in culpable driving cases. Mr Saunders agreed that this was so. Mr Gibson also pointed out that denunciation of your conduct is also relevant together with just punishment. He submitted that this is a bad example of the offence, which your counsel also conceded.
Mr Gibson also pointed out that pursuant to section 5 of the Sentencing Act 1991,
I must have regard to the impact of the offence on any victim. In cases such as this the circumstances are always tragic and as you yourself have acknowledged, the family has been destroyed as a result of your actions. I have taken this into account together with the Victim Impact Statement tendered on the plea.
Specific deterrence must also be given some weight in the sentencing consideration as the bulk of your prior criminal history which only began in 2013, is associated with your methylamphetamine use.
As to your prospects of rehabilitation, for the reasons noted above in relation to your insight into the offending and your drug addiction, I believe that your prospects of rehabilitation can be assessed as very good. You have begun to address the issues of your drug use through counselling in custody and have committed yourself to a changed life. From a psychological perspective, Mr Gault points out that the issues you grappled with are predominantly related to your substance use. He notes you have a solid work history and a good work ethic which is clearly continuing whilst in custody. You have committed to training to engage in alternative employment and have no plans to return to truck driving.

Sentence

Mr Templeton please stand.
Michael Brian Templeton, on charge one, culpable driving causing death, you will be convicted and sentenced to 6 years imprisonment.
I direct that you serve a period of 4 years imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 441 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 89 of the Sentencing Act 1991 your licence will be disqualified for a period of 4 years.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 8 years imprisonment with a non-parole period of 5 years.

[2018] VCC 813

1 June 2018