Director of Public Prosecutions v Thomas Bailey
[2017] VCC 567
•12 May 2017
| IN THE COUNTY COURT OF VICTORIA AT BAIRNSDALE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case Number: CR-16-01198
DIRECTOR OF PUBLIC PROSECUTIONS
v
THOMAS BAILEY
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JUDGE: HIS HONOUR JUDGE SMITH
WHERE HELD: Bairnsdale
DATE OF HEARING: 4 May 2017
DATE OF SENTENCE: 12 May 2017
CASE MAY BE CITED AS: DPP v Bailey
MEDIUM NEUTRAL CITATION: [2017] VCC 567
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Sentencing – dangerous driving causing death – appropriateness of a
Community Correction Order
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)
Sentence:Community Correction Order - 3 years – 400 hours unpaid community work – programs that address factors relating to offending behaviour
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APPEARANCES: Counsel Solicitors
For the Director of Public Mr D. O'Doherty Office of Public
Prosecutions Prosecutions
For the Accused Mr I. Hill QC Tony Hargreaves &
Mr M. Allen Partners
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134
186084
HIS HONOUR:
1 Thomas Bailey, you have pleaded guilty to one charge of dangerous driving
causing death and one charge of dangerous driving causing serious injury.
2 The circumstances relating to those charges are that on 2 April 2014 you were
driving a motor vehicle in an easterly direction on the Great Alpine Road. You intended driving to Mossiface. You reached a point where you were uncertain as to whether you had missed the turn-off to Mossiface or not. You decided to turn off the Great Alpine Road onto Costers Road in order to check your location and the location of the turn-off. Having done so, you determined that you had in fact not missed the turn-off and you intended to travel further in an easterly direction from that point.
3 You made a U-turn and then approached the T-intersection of Costers Road
and the Great Alpine Road. You intended to make a right-hand turn from that point so as to head further in an easterly direction. On reaching the T-intersection, you brought your vehicle to a halt. You looked to your left. You observed a bus travelling on the Great Alpine Road from your left towards you. You determined that there was sufficient time for you to pull out in front of that bus, make your right-hand turn and continue in an easterly direction. You proceeded to do so.
4 As your vehicle proceeded out onto the Great Alpine Road, a semi-trailer
proceeding in a westerly direction collided with your vehicle. The driver of that vehicle took all the measures available to him to avoid you. Regrettably, his braking and avoidance measures caused him to glide head-on with the school bus travelling in the opposite direction.
5 As a consequence of that collision, a 12 year old boy, Griffin Vollermeyer (and
I apologise to his family if I have mispronounced that surname) who was a passenger on the bus, was fatally injured. The driver of the bus, Anthony Cohen, suffered terrible injuries.
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6 I have viewed a number of photographs of the accident scene. Those
photographs, together with other statements and matters put before me, make it clear from the intersection in question, you had a view of some 300 metres to the west, the direction from which the school bus was proceeding. You had a view to the east of some 350 metres, the direction from which the semi-trailer was proceeding.
7 It was put on your behalf at the plea hearing that you had looked to your left
and seen the school bus approaching. I accept that that was so. It was further submitted that you had looked to your right, but not far enough to your right, to see the semi-trailer approaching from the east. I do not accept that that was so.
8 Whilst I accept that you may have glanced to your right, it is difficult on the basis
of the photographs tendered to see how you could have missed the semi-trailer when you had a clear view of some 350 metres to your east.
Background
9 You are currently aged 28. At the time of the collision on 2 April 2014 you were
aged 25. You were born and raised in the outer-eastern suburbs of Melbourne, in Lilydale and Mooroolbark. You are the youngest of three children.
10 You were educated at Mooroolbark East Primary School to Grade 6, and at
Lilydale High School for secondary schooling. You successfully completed your VCE.
11 You attended Latrobe University, and in 2010 graduated with a Bachelor of
Business, majoring in Economics and Finance.
12 On completion of your studies you obtained employment with a financial
planning firm, where you have remained for the past seven years. Recently you have been promoted to a position of mortgage broker. You were in employment, at least on a part-time basis, whilst at school and university.
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13Your employment record has to be considered an impressive one. Prior convictions
14You have no prior convictions of any nature. Since the collision in question you have not been convicted or charged or interviewed by police in connection with any offence.
Character
15A significant bundle of character references were tendered on your behalf. Those references, in the main, from family friends, work colleagues and school friends, describe you as a hardworking and charitable person.
16For a number of years you have participated in volunteer activities and community services ranging from assisting in coaching of junior sport to travelling to foreign countries where you volunteered in communities affected by poverty and disadvantage.
Cooperation
17From the moment of the collision you have cooperated with police throughout the investigation of it. You participated in a record of interview during which you provided full and frank answers to questions asked of you.
Sentencing considerations
18The only purposes for which sentences for criminal convictions may be imposed are the following:
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances;
(b)to deter the offender or other persons in the community from committing offences of the same or similar character;
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(c)to establish conditions within which it is considered by the court that rehabilitation of the offender may be facilitated;
(c)to manifest the denunciation by the court of the type of conduct in which you engaged;
(d)to protect the community from the offender; and
(e)a combination of two or more of any of those purposes.
19 The Sentencing Act 1991 (Vic) provides that I must have regard, amongst other
things, to your culpability and the degree of responsibility for the offence. Here, it is clear to me that your culpability is high. Secondly, the impact of the offence on any victim of it. I need hardly say that the impact upon Griffin Vollermeyer and his family is as high as one could imagine. The impact on the others injured in the collision and, in particular, Anthony Cohen, was extremely high. Thirdly, whether the offender pleaded guilty to the offence and, if so, the stage in the proceeding at which he did so or indicated an intention to do so. Fourthly, your previous character. Here, you have no prior convictions and I am to treat you and sentence you on the basis that prior to this offence, or these offences, you were a person of good character. Next, the presence of any aggravating or mitigating factors concerning the offending and any other relevant circumstances. Finally, the conduct of the offender as an indication of remorse or lack of remorse on his or her part.
20 Importantly, in the context of this matter, I note the provisions of s.5(4) of the
Sentencing Act 1991 (Vic), which provides that a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
Sentence
21 It is true that there are many persons who have been convicted of offences such
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as these who have been sentenced to a period of imprisonment, but there are many others who have not been so sentenced. Generally, the court will consider whether there are any and, if so, what aggravating or mitigating circumstances are applicable. Such features might include matters such as the following:
a) the speed at which the offender was travelling immediately prior to the collision in question;
b) whether the offender was intoxicated or otherwise under the influence of any illicit substances;
c) the degree to which the offender's driving had been erratic;
d) whether the offender was driving his vehicle competitively or showing off;
e) the time and the length of the journey during which others were exposed to the risk of injury as a consequence of the driving;
f) whether or not the offender was driving his vehicle in order escape police pursuit;
g) whether the offender was driving in circumstances where he had previously been deprived of sleep and was, as a consequence, more likely to have difficulty concentrating or staying awake when driving.
22 Your counsel submitted, and I accept, that none of these matters applied in your
case. You were driving at a minimal speed. You were not intoxicated or affected by any substance abuse. Your driving could not be described as erratic. You were not driving competitively or showing off. You had driven from Melbourne to the scene of the accident, but had had two significant breaks en route. This was obviously not a case involving any police pursuit. You had not been sleep deprived.
23 The accident was caused, in my opinion, because, on reaching the T-
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intersection, you looked left but you simply did not look right – sufficiently or at all. Your counsel described the matter as a momentary misjudgement or as a moment of inattention. Whilst the latter might be correct, I do not accept that this was a matter of misjudgement. Had you looked properly to your right, you must have seen the semi-trailer approaching. As I have said, you had an uninterrupted view of some 350 metres. You did not see the semi-trailer until a moment before it struck you. This, in my view, can only be explained by a failure on your part to look to the right.
24 As any learner driver is taught, as children are when taught how to cross a road,
one should look left and one should look right and only proceed if it is clear and safe to do so. I consider it is likely that your concentration was solely on the school bus coming from your left, you concluded that if you moved out quickly, made your right-hand turn, you could do so before the school bus was upon you. Accordingly, you moved out as quickly as you could. You may have glanced quickly to your right, but it is plain that you did not properly look to the right and hence did not see the semi-trailer approaching.
25 You told police that you were not in a hurry at the time, but I consider it is clear
that you wanted to be in front of the bus as you resumed your journey and in that sense you were hurrying to be in front of it.
26 This can undoubtedly be described as a serious mistake on your part, a mistake
that cost the life of a young boy and injured others significantly.
27 In the case of Mr Cohen, the driver of the school bus, serious injuries were
suffered by him from which he still suffers. He has provided a victim impact statement. He does not want it read in court, but I can indicate that he suffered from very significant physical injuries which have resulted in significant orthopaedic surgery which affects him significantly to this day. The injuries have also resulted in a super bug infection for which he receives antibiotics which appear unable to cure the infection but merely hold the infection from
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developing further. He is on constant painkillers and he has difficulty walking. The emotional impact on him has been severe. I note that amongst those emotional repercussions are that he experiences significant feelings of guilt, unwarranted in my view, in that he was not able to protect all of the children on the bus.
28 You have pleaded guilty to these charges. It cannot be said that you pleaded
guilty at the earliest opportunity. However, your plea of guilty has utilitarian value. Witnesses will not be required to give evidence at a trial and court resources will not be consumed or wasted. Young Griffin's family will not be put through the added drama and sadness of a trial, a disputed trial.
29 I have read a report from Mr Mark Maloney, a clinical social worker, dated 25
April 2017. You have been seeing Mr Maloney since August 2014. He considers that whilst you have struggled significantly with the impact of this accident on your life, you have been more concerned about the impact of it on others, in particular on the friends and family of the deceased boy and on the injured driver. Mr Maloney considers that the accident has had a profound impact on your life. There is no question that it has had a profound impact on young Griffin's family and friends and on the family and friends of the injured driver, Mr Cohen.
30 There has been some considerable delay in bringing this proceeding before the
court. The accident occurred in April 2014, more than three years ago. One effect of that delay is that you have had hanging over your head for that period an uncertain suspense as to what was going to happen to you long after the offence was committed. It must also be said, though, that a delay pending trial or sentencing can act to the advantage of a convicted person. In the period since the accident you have been able to demonstrate that you have not reoffended in any way, thus providing an indication that you have good prospects for rehabilitation in the future, if that has not already, at least in part, occurred.
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31 Your counsel has submitted that an appropriate penalty for you in relation to
these offences is the imposition of a community correction order.
32 I was referred to a number of decisions of the Court of Appeal in Victoria to the
effect that:
h) a community correction order can be used to rehabilitate and punish simultaneously; and
i) where there has been a relatively lengthy rehabilitation process since the offending, a process in which the community has a vested interest, the sentence imposed should not jeopardise the continued development of that process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation.
33 Taking all the circumstances into account, I have come to the conclusion that
the purposes of sentencing, as previously outlined, can be achieved in your case by the imposition of such a community correction order with appropriate conditions. It follows that I do not consider that the sentencing purposes that I detailed earlier could only be achieved by sentencing you to a period of incarceration.
34 I am in possession of a report from Community Corrections Victoria, dated 4
May 2017, indicating that you are considered to be a person suitable for a community correction order.
35 It is my intention, therefore, to sentence you on an aggregate basis to a three
year community correction order providing you consent to such an order being made. Prior to seeking your consent or otherwise, it is appropriate that I tell you of the conditions that I intend to propose for such an order.
36 There are a number of mandatory conditions set out in s.45 of the Sentencing
Act 1991 (Vic). These are as follows:
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j) you must not commit, whether in or outside Victoria, during the 3 year period of the order, an offence punishable by imprisonment;
k) you must comply with any obligation or requirement prescribed by Regulations;
l) you must report to and receive visits from the secretary to the Dep’t of Justice or his or her nominee during the period of the order;
m) you must report to Lilydale Justice Centre at 1/18 Clarke Street Lilydale within 2 clear working days of this order coming into force – that is by 4pm on Wednesday 17 May 2017;
n) you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
o) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary. If you go to Albury, you have left Victoria. I hope that is clear;
a) you must comply with any direction given by the secretary that is necessary for the secretary to give to ensure that you comply with the order.
37 In addition, I intend to impose further conditions.
p) that you perform 400 hours of unpaid community work during the term of this order; and
q) that you attend programs that address factors relating to your offending behaviour as directed by Corrections Victoria.
38In addition, I intend to order that any driver's licence held by you be cancelled and that you are disqualified from holding any driver's licence for a period of two years from this date.
39Now I am only permitted to make a community correction order if you consent to it, and I now ask you whether you do consent to a community correction order
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in those terms, and I am happy to give you the opportunity to speak with your representative here today, Mr Freeman, if that would be of assistance to you.
40 OFFENDER: No, I accept it.
41 HIS HONOUR: You consent to such an order?
42 OFFENDER: Yes, Your Honour.
43HIS HONOUR: Thank you. Now, Mr O'Doherty, as I understand it, an order pursuant to s.464ZF(2A) is also sought; is that right?
44 MR O'DOHERTY: Yes, we did make an application for that order, Your Honour.
45 HIS HONOUR: Is that order the subject of consent, Mr Freeman?
46MR FREEMAN: The submission I make, Your Honour, is that in all the circumstances such an order is not necessary, and simply, I don't seek to go beyond really the matters advanced on Mr Bailey's behalf on the plea save to confirm that obviously insofar as the considerations of the Act, Mr Bailey is obviously a man who has no prior matters, no subsequent matters, and in our submission, on Your Honour's findings, there's very little likelihood of any offending in the future.
47HIS HONOUR: I disagree with you. I think the seriousness of the offences in this case warrant the order being made.
48 MR FREEMAN: As Your Honour pleases.
49HIS HONOUR: The order, Mr Bailey, is that pursuant to s.464ZF(2) of the Crimes Act, you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 (Vic) until a sample of sufficient standard is obtained for placement on the database. Basically what it means is that your DNA is recorded on the database held by Victoria Police in this State. Notwithstanding,
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I am required to tell you that if you do not end up consenting to such a sample being taken, police may use reasonable force to enable that forensic procedure to be conducted, and I make that order accordingly.
50I just want to say one further thing. I wish to make it plain that no one in this courtroom or outside it should consider that due consideration has not been given to the loss of this young boy's life. I can only imagine how his family and friends would be feeling, not only at the time of the accident, but in the years that have passed and continue no doubt to this day. I thank the family for providing a number of photographs of Griffin for me to peruse, which I have done.
51 Is there anything further that I should be attending to?
52 MR DOHERTY: No, Your Honour.
53HIS HONOUR: Now what has to be done is you have to sign some documents pertaining to the community correction order. Mr Freeman, you may wish to discuss those with your client.
54 MR FREEMAN: Thank you, Your Honour.
55 (Community corrections order signed and acknowledged.)
56 HIS HONOUR: If you could take those photographs back to the family.
57(Later on 12 May 2017, His Honour ordered that, pursuant to s.6AAA of the Sentencing Act 1991, but for Mr Bailey’s plea of guilty, the sentence imposed would have been 12 months’ imprisonment.)
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