Director of Public Prosecutions v Tulloch
[2022] VSC 352
•22 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0135
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| RYAN JOHN TULLOCH | Accused |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2022 |
DATE OF SENTENCE: | 22 June 2022 |
CASE MAY BE CITED AS: | DPP v Tulloch |
MEDIUM NEUTRAL CITATION: | [2022] VSC 352 |
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CRIMINAL LAW – Sentence – Charges of culpable driving causing death (gross negligence), conduct endangering persons, theft and negligently causing serious injury – Erratic driving prior to incident – Accused trying to avoid detection from police – Plea of guilty – Pandemic restrictions in custody – Standard sentence offence – Sentence of 11 years’ imprisonment with non-parole period of 7 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Dickie | Office of Public Prosecutions |
| For the Accused | Mr H Rattray | Stary Norton Halphen |
HIS HONOUR:
Ryan John Tulloch, you have pleaded guilty to one charge of theft,[1] one charge of conduct endangering persons,[2] one charge of culpable driving causing death,[3] and one charge of negligently causing serious injury.[4] The maximum penalties for the offences are 10 years, 5 years, 20 years and 10 years’ imprisonment respectively.
[1]Crimes Act 1958, s 74(1).
[2]Ibid s 23.
[3]Ibid s 318(1).
[4]Ibid s 24.
The victim of the culpable driving causing death, Betty Sloan, was 86 years old at the time of her death. Her husband, Ian Sloan, was the victim of the negligently causing serious injury. He was also 86 years old at the time of the incident.
The offending
Between 10.00 pm on 12 June and 8.30 am on 13 June 2019, a 1997 Subaru car belonging to Hong Hai Pham was stolen from outside his brother’s home. You were seen driving this car on 17 June 2019, and having assumed control of the stolen car, you are guilty of theft.
On the morning of 17 June 2019, you drove the Subaru knowing that it was stolen. At the time, you were unlicensed, had methylamphetamine in your system, and were heavily fatigued from a lack of sleep.
At about 10.30 am on that morning, while driving your car along Toorak Road, Camberwell, you sped past a car as you were driving on the wrong side of the road. Next, you collided with the rear of a car that was stationary at traffic lights. You did not stop to exchange details but continued to drive on.
Shortly after 11.00 am, you drove into a BP service station at the corner of Canterbury Road and Station Street, Box Hill South. You were observed by two police officers who happened to be at the service station. Suspecting you were about to drive off without paying for fuel, one of the police officers exited the front passenger seat of his unmarked police car and ran up to your driver’s door, yelling ‘Police! Stop!’ You looked directly at him and, without looking behind you or in your rear mirror, reversed your car backwards onto Canterbury Road, directly over the petrol station’s forecourt and footpath. The front guard of the Subaru brushed against one of the police officer’s legs next to the bollards protecting the pumps as you drove off.
You reversed the Subaru at speed down Canterbury Road, swerving between lanes. About 100 metres along the road, you turned the car and reversed it into a concrete pole on the nature strip. You again turned to orient east and drove along Canterbury Road, accelerating to a high speed. You moved between lanes in an erratic and dangerous manner. One of the police officers estimated your speed to be about 90 kilometres per hour. The applicable speed limit was 60 kilometres per hour. Although the two eastbound lanes on which you were heading were free of traffic, you drove onto the wrong side of the road. You drove towards oncoming cars, weaving between them. Some of the cars stopped or turned to avoid a head-on collision.
After heading away from the petrol station for a period, you double backed, driving past the two police officers who had remained at the service station. Your car was observed to have damage to the front of the vehicle and the rear bumper was hanging off and protruding to the right.
Police commenced a pursuit as you drove back along Canterbury Road and turned left into Station Street. Police officers estimated that you were driving at approximately 100 to 110 kilometres per hour along Station Street. As you approached Riversdale Road, you were again observed to be driving on the wrong side of the road. You crossed onto the wrong side of the road and concrete median strip separating the traffic, turning right to go west on Riversdale Road. You then drove the wrong way through a slip turning lane, which was dedicated to left-turning cars from Riversdale Road travelling north into Station Street.
After you had completed this manoeuvre, near the intersection of Station Street and Riversdale Road, you struck the rear of a white sedan driven by Edward Moore as Mr Moore was attempting to do a U-turn onto Riversdale Road. Mr Moore’s car was just to the left of the line dividing Riversdale Road. You continued to drive at about 90 kilometres per hour along Riversdale Road towards Elgar Road.
There is a downhill gradient along Riversdale Road as it heads west towards Elgar Road. Rodney Green was driving east along Riversdale Road and observed that your car was sideways and out of control as it drove towards him. There was smoke coming off the front and left wheels. Mr Green attempted to avoid the collision but was unable to do so and the contact caused Mr Green’s car to hit a parked car.
Your car continued to slide out of control on the wrong side of the road and collided with the front of the car driven by Ian Sloan which was heading east behind Mr Green’s car. Betty Sloan was in the front passenger seat and Jennifer Sloan, the couple’s adult daughter, was in the rear passenger seat.
The severity of the injuries to Mrs Sloan may not have been immediately apparent. She was taken from the car and sat on a bench on the side of the road until paramedics arrived. In fact, the injuries you caused were very grave. Mrs Sloan sustained extensive injuries, including fractures to her ribs, sternum, tibial plateau, thumb and the second and third lumbar of her vertebrae. She remained in hospital after the collision, where she passed away on 19 July 2019 with bronchopneumonia. Although for some time, as is your right, you put the question of causation in issue, you now accept that your driving caused the death of Mrs Sloan.
Mr Sloan suffered injuries that included a displaced sternal body fracture and a fracture to the left fourth rib, right L2-L3 transverse process fractures. He remained in hospital for 56 days. When discharged on 12 August 2019 he was independent in mobility and personal activities, but needed assistance in domestic activities. He had increased confusion following the collision. On 19 September 2019, he returned to hospital after a fall, and a general deterioration in his wellbeing was reported. He never fully recovered and has since passed away. You are not to be punished for his death.
This conduct which I have described gives rise to charges 2, 3 and 4 of the indictment.
I also record that, although not the subject of a charge and not a matter for which you are to be punished, that a second passenger, Ms Jennifer Sloan, also sustained injuries in the crash.
Gravity of the offending
Yours is a serious example of culpable driving. There are a number of features of the offending that require mention. The specific act that constitutes the offence was your grossly negligent driving at the point of impact. At that time, you had lost control of your vehicle and the collision occurred on the wrong side of the road. I am satisfied that there were a number of factors that contributed to your loss of control of the vehicle and the accident can only be understood in the context of your driving from the time you left the service station when you were first observed by police.
From the moment of your first contact with police at the service station, your driving was erratic, involved excessive speed and was appallingly dangerous. You drove on the wrong side of the road, causing cars to swerve to avoid impact. You turned right into Riversdale Road heading in the wrong direction down a slip lane. I am satisfied that your motivation for driving in this shocking manner included seeking to avoid apprehension by police. The fact that you were in a stolen car and had methylamphetamine in your system no doubt provided you with a reason to drive away from pursuit as quickly as possible and regardless of the risks involved.
I am also satisfied that your fatigue was a factor that impeded your judgment. As you told a psychologist, Dr Matthew Barth, who produced a report for the purpose of the plea hearing, you had been on a three day ‘drug binge’ and were ‘falling asleep’ but ‘trying to fight it.’
Given the way you were driving, an accident was virtually inevitable and the risk of a catastrophic accident very high. You had the opportunity to stop. The fact that you persisted in your grossly negligent driving even after you had collided with another car and your muffler was dragging along the road shows that you were either indifferent to the risks involved or determined to flee the scene. You paid no regard to other road users.
I am unable to ascertain the speed at which you were travelling at the point at which you collided with the Sloan car, but I am satisfied that you were driving at an excessive and dangerous speed. I am satisfied that all of the driving from the time you were seen by police at the service station and commenced your attempts to avoid apprehension is so closely connected in time, distance and circumstance as to cast light on the nature of your driving at the time of the collision with the Sloan car and enables me to conclude that the manner of your driving at the point of final impact was of the same character as your earlier driving.
Your driving was grossly negligent to a very high degree.
Your counsel submitted that the negligence involved, and therefore the gravity of the offending, was less serious than in some other cases for culpable driving under the standard sentencing regime. In particular, he referred to Director of Public Prosecutions v Reid[5] in which the driver had been driving at speeds approaching 200 kilometres per hour leading up to the fatal collision. To some extent, the speed at which you were driving was affected by other traffic and the road conditions, including the fact that you turned a number of corners. Although the speed at which you were driving was not as outlandish as in some other cases, the particular road conditions made your driving extremely dangerous. For similar reasons, your conduct in negligently causing serious injury to Mr Sloan is a serious example of the offence. I have already spoken of your driving. The injuries to Mr Sloan were most serious. They resulted in a significant decline in his health and required him to be hospitalised for 56 days.
[5][2020] VSCA 247.
The charge of conduct endangering persons relates to the driving leading up to the fatal collision. Your counsel acknowledged that it was a serious example of the offence and that you were fortunate you had not been charged with the more serious offence of reckless conduct endangering life. I agree. Leading up to the fatal collision you drove in an erratic and highly dangerous manner. By driving on the wrong side of the road at excessive speed and causing cars to manoeuvre to avoid a collision, you placed members of the community at risk of serious injury. Although I have taken this driving into account in forming a picture of your driving at the point of the final collision, I am conscious that you must not be punished twice for the same conduct.
The death of Mrs Sloan and the injuries to Mr Sloan have caused immense pain and suffering to their family. The sentence that I must impose will not make up for that loss. Both Mr and Mrs Sloan were cherished and loved members of their family. Victim impact statements have been received from Betty and Ian Sloan’s three children: Sue, Michael and Jennifer Sloan, and granddaughter, Elise Sloan. The four victim impact statements eloquently express how they and the Sloan family have keenly felt the loss of their mother and grandmother. Although in advanced years, the death of Mrs Sloan came as a great shock and the traumatic nature of her injuries has compounded their sense of grief. They have also witnessed the pain and distress caused to Mr Sloan from this tragedy. Insofar as it is permissible for me to do so, I have had regard to these victim impact statements.
Personal circumstances
I turn then to your personal circumstances.
You are now 26 years of age, and you were 23 at the time of the incident.
Your parents had significant substance abuse problems with both alcohol and drugs and were unable to care for you. The first two years of your life involved significant deprivation and neglect. You were placed in foster care at the age of two years. You lived with the same foster family until you were 18 years of age. Your foster family have continued to support you. You completed primary school and commenced secondary school in Glen Waverley. You were ultimately asked to leave your secondary school halfway through year 10. You were subsequently enrolled in Berengarra Pathways, which assists students of ordinary intelligence and functioning, but who have difficulties with behaviour and personality. You do not believe you completed year 11.
You experienced behavioural issues in your teens and succumbed to substance abuse. You have a lengthy history of substance abuse commencing with cannabis at the age of 15 and culminating in daily use. You started taking methylamphetamine at age 17 and, as you have described, that rapidly escalated and your social networks encompassed other drug users and those involved with criminal activity.
You have a number of prior convictions including three convictions for theft of a motor vehicle, assault, property and drug offences, and other public order offences. They reveal a pattern of unlawful and anti-social behaviour. Prior to this offending, you had served four periods of imprisonment.
I take into account your plea of guilty. There is a significant utilitarian value in your plea, in that you have saved the cost and trauma of a trial which would have been a considerable burden on the community, the Sloan family and other witnesses. The community is served by the avoidance of a trial. The utilitarian value of the plea is heightened at this time as a result of the pandemic and the enormous demands on the court system. I note that you have been on remand since the offending. As such, you have been on remand for just over three years. I take into account that most of your period of remand has been served during a time where there has been significant restrictions in our prisons because of COVID-19. I anticipate that these restrictions will continue and make your incarceration more burdensome than it would otherwise have been. I also note that your foster father passed away while you have been on remand for this offending and that that was a particularly difficult time for you.
I am not persuaded that your plea of guilty is demonstrative of any significant level of remorse. It came on the eve of trial, although I note that you offered to plead guilty to the charges of theft and conduct endangering persons at an earlier stage, and I regard the plea on those charges as early pleas. I do accept that you regret the consequences of your actions and that you expressed some guilt for your offending conduct to Dr Barth, but I am unpersuaded that you have a deep appreciation of the wrongfulness of your actions. In part, this is due to your immaturity and overall lack of insight into your anti-social behaviour.
Two medical reports were tendered on your plea. Psychologist, Dr Barth, noted that your entrenched involvement with anti-social peers, your anti-authoritian views and your substance abuse problems have intensified your behavioural problems. He concluded that your maladaptive personality traits support a diagnosis of an ‘anti-social personality disorder’. He also believes that you have a stimulant use disorder. Dr Barth describes you as a very immature and impulsive young man who is in the formative stages of addressing significant behavioural challenges. He identifies the need for psychological treatment, substance abuse treatment and vocational education and training.
Consultant clinical neuropsychologist, Mr Martin Jackson, provided a report addressing whether you have a cognitive impairment. Mr Jackson noted that in the past you have been diagnosed with foetal alcohol spectrum disorder (‘FASD’) and attention deficit hyperactivity disorder (‘ADHD’). On testing, he noted that you have mostly average cognitive abilities apart from mild to moderate impairments of processing speed, high level attention, and complex planning and organisation which were described as consistent with the diagnoses. He was unable to find any connection between your cognitive impairment and the offending behaviour per se, noting that you do not present with a disorder of impulse control.
Your counsel submitted on your behalf that there was ‘almost certainly’ a causal connection between your drug use and your impulsivity, implicit in this offending. I am not persuaded that any impairment arising from the diagnoses of ADHD and FASD played any material part in the offending. The diagnoses were expressed in somewhat equivocal terms. They form part of the background to your anti-social behaviour and I take them into account. I am not persuaded that they reduce your moral culpability to any appreciable degree. Similarly, it is not suggested that any impairment would render your incarceration particularly onerous.
Having regard to your relatively long history of substance abuse and your past history of offending, I would regard your prospects of rehabilitation as somewhat guarded. However, you appear to have adapted to prison life as best as you can and have settled into a routine working in the kitchen, including volunteering for extra shifts on the weekends. You have also enrolled in and partially completed two TAFE courses and a drug and alcohol course. There is some cause for optimism in this respect.
The offence of culpable driving has been, since 1 February 2018, a standard sentence offence. The standard sentence of the offence is 8 years’ imprisonment being a nominal sentence ‘taking into account only the objective factors affecting the relative seriousness of that offence, … in the middle of the range of seriousness’.[6] The fact that the charge of culpable driving is a standard sentence offence has a number of consequences for the sentencing process. I am obliged to take the standard sentence into account as one of the factors relevant to sentence. It provides a legislative guidepost to which I have had regard.[7] In looking at comparable sentences,[8] I must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied. Further, the standard sentencing regime also has consequences for the setting of a non-parole period.
[6]Sentencing Act 1991, s 5A(1)(b).
[7]Brown v The Queen (2019) 59 VR 462, 464–5 [4]; [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
[8]See, eg, Victorsen v The Queen [2020] VSCA 248; DPP v Currie [2021] VSCA 272; Phongthaihong v The Queen [2021] VSCA 317.
I have already explained why I regard the objective gravity of the culpable driving and negligently causing serious injury charges as being serious examples of the offences. I also regard your moral culpability as high. Your motive for speeding to avoid detection is reprehensible, you had many opportunities to stop the car but you persisted driving erratically until the fatal collision occurred. It is well recognised that the protection of the community from offending of this kind calls for a sentence that strongly denounces this kind of behaviour and acts as a strong deterrent to others who might drive in a way that poses such great risks to other members of the community. Additionally, the sentence must bring home to you the gravity of your offending and deter you from offending in the future.
Ryan John Tulloch, on the charge of culpable driving, I sentence you to 9 years’ imprisonment. On the charge of negligently causing serious injury, I sentence you to 4 years’ imprisonment. On the charge of conduct endangering persons, I sentence you to 12 months’ imprisonment. On the charge of theft of a motor car, I sentence you to 2 months’ imprisonment.
The sentence on the culpable driving charge will be the base sentence. I direct that 20 months of the sentence imposed on the charge of negligently causing serious injury and 4 months of the sentence on the charge of conduct endangering persons be served cumulatively on the base sentence. The sentence for the charge of theft is to be fully concurrent with the base sentence. That means there will be a total effective sentence of 11 years’ imprisonment.
I direct that you must serve 7 years and 6 months before you are eligible for parole.
I declare that you have served 1101 days by way of pre-sentence detention.
Pursuant to s 89(1)(c) of the Sentencing Act, I must disqualify you from obtaining a driver licence or learner permit for the period of time that the Court specifies. I propose to disqualify you from obtaining a driver licence or learner permit for a period of 5 years from today.
I will make the compensation order sought by the prosecution, which is not opposed.
As required by s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty I would have sentenced you to 14 years’ imprisonment with a non-parole period of 10 years.
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