Director of Public Prosecutions v Usherwood
[2019] VCC 1118
•22 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
CR-18-01332
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STUART USHERWOOD |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 July 2019 | |
DATE OF SENTENCE: | 22 July 2019 | |
CASE MAY BE CITED AS: | DPP v Usherwood | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1118 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Dangerous driving causing death - drive whilst disqualified
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:3 years’ imprisonment, 2 years’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director Public Prosecutions | Mr G Hevey | Office of Public Prosecutions |
| For the Accused | Mr R Alexander | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Stuart Usherwood, you have pleaded guilty to one charge of dangerous driving causing death and one transferred summary charge of drive whilst disqualified.
– Dangerous driving causing death carries a maximum penalty of 10 years' imprisonment, and a mandatory minimum period of licence disqualification of 18 months, pursuant to s.89(2)(a) of the Sentencing Act 1991.
– Driving whilst disqualified carries a maximum penalty of, for a subsequent offence - which is your situation - 240 penalty units or 2 years' imprisonment or both.
2 You were born on 19 March 1985 and are now 34 years old. You were aged 32 at the time of the offending in May 2017.
3 You have a criminal record, to which I will refer shortly.
4 By way of background to this matter, at the time of the collision you were driving a Ford SUV and your 18-month-old son was in a child restraint in the rear of the vehicle. You had been disqualified from driving in Victoria and Western Australia. You were living in Halls Gap with your wife and three young children.
5 The victim in this matter is Rodney Maurice May. He was 62 years of age at the time of the collision. He was an organic farmer and resided in Blampied. At the time of the collision Mr May was riding a motorcycle.
6 The circumstances of your offending are as follows.
7 In summary, at approximately 6.15 pm on Monday 22 May 2017 you were involved in a fatal collision that occurred on the Daylesford-Ballarat Road at Gong Gong in Victoria. The collision occurred when you attempted to complete a U-turn and collided with Mr May, who was riding a motorcycle along the Daylesford-Ballarat Road behind you.
8 On that day you drove from your home in Halls Gap to attend an address in Gong Gong in order to collect items that had been purchased by your wife online.
9 At about 6.15 pm you drove in a northerly direction along the Daylesford-Ballarat Road and were using the GPS app on your mobile phone to locate the address where you were to collect the items that had been ordered.
10 As you neared the location, you operated your left turn indicator and pulled over to the left shoulder of the road to check the GPS, and realised that you had driven past the address and needed to perform a U-turn.
11 At that time, Mr May was riding his motorbike north along the Daylesford-Ballarat Road and was travelling towards the location where your vehicle was stationary on the left shoulder of the road. He approached your vehicle from behind.
12 At the time of the collision the Ballarat-Daylesford Road at Gong Gong was a two-way bitumen country road. The lanes for vehicles travelling in opposite directions were separated by a broken white line. The edges of the road were marked by a solid white line with rumble strips, with a narrow shoulder which led to a grassed area.
13 The eastern side of the road was heavily tree-lined. There were no trees on the western side of the road. The road was in good condition. There was no street lighting in the area, and the speed zone was 100 kilometres per hour as defined by road signs.
14 At the location where the collision occurred the road ran in a generally north-south orientation. It was straight with a horizontal alignment. Both sides of the road were bordered by a small grassed area leading to rural farmland.
15 At the time of the collision the road was dry, the weather was fine and it was warm. Traffic was light, and the light and visibility were good.
16 You were stationary on the left shoulder of the roadway with your left indicator flashing. You then turned the steering wheel to the right and moved from the left shoulder of the road to perform the U-turn. The prosecution contend that you did not operate the righthand indicator on your car, and that Mr May, who approached the stationary vehicle at a speed close to the speed limit of 100 kilometres an hour, had no opportunity to brake. Mr May collided heavily with the driver's side of your vehicle and sustained life-threatening injuries in the collision.
17 The collision was not witnessed by any other person.
18 Shortly after the collision occurred, a Mr Scobie was driving north along the Daylesford-Ballarat Road when he was waved down by you and you asked him to call 000. Mr Scobie stopped, checked Mr May and called 000. He noted that:-
“The other driver was just caring for his baby and appeared to be senseless. Not sure whether he was on anything and I’ve never been in his situation but his behaviour wasn’t normal. He was very jittery, shaky and he was wearing a singlet. It wasn’t very warm.”
19 Alan Clarke and his wife Denece Clarke, who were driving in a northerly direction along the Daylesford-Ballarat Road, also drove past the scene of the collision. They assisted both you and Mr May. Mr Clarke noted:-
“He wasn’t at all aggressive, uncoordinated or incoherent. He responded to me rationally but kept repeating “I didn’t see him, I just didn’t see him”.
20 His wife Denece Clarke noted:-
“I found my husband standing at the side of the road, supporting the driver of the SUV … he was squatting by the side of the road and saying over and over “I didn’t see him”.
21 Emergency services arrived at the scene a short time later. Mr May was airlifted to the Alfred Hospital for treatment, but died on 29 May 2017 as a result of the injuries he had sustained.
22 At approximately 6.26 pm police arrived at the collision scene. When they arrived, Mr May was being treated by paramedics.
23 You told police that you had pulled over to the side of the road as you needed to do a U-turn. Police asked if you had your 'blinker' on, and you replied yes. You admitted that you did not have a current licence as you had been disqualified as you had an interstate licence, you said, and never got it changed over.
24 Police took photographs, and noted that your lefthand indicator was still flashing. The righthand indicator was not operating.
25 At approximately 6.42 pm police requested that you undergo a preliminary oral fluid test. The result of that test indicated the presence of methylamphetamine.
26 At 8.45 pm you provided a sample of your blood. That sample was subsequently analysed and found to contain the following:-
(a) Methylamphetamine – approximately 0.14 mg/L; and
(b) Amphetamine – approximately 0.04 mg/L.
27 You attended at the Ballarat Base Hospital shortly after 7.10 pm. While waiting to see a doctor, you told police that you were listening to the GPS but could not hear it, so you pulled over to look at it and realised that you were going the wrong way and decided to do a U-turn. You saw a light in the mirror. You noted that “It was far away, so I did the U-turn and the motorbike hit me”.
28 At approximately 9.45 pm, investigators from the Major Collision Investigation Unit attended at the scene of the collision. No pre- or post-impact tyre marks were observed. The Ford wagon was facing approximately south-east across the southbound shoulder of the road. It had sustained a clear impact to the front driver's side door from the motorcycle. The motorcycle, which was propped up in the middle of the road, had sustained severe frontal crush, the headstand had snapped and the front wheel was buckled. Investigators took a number of photographs and measured the collision scene.
29 At approximately 10.30 am on Tuesday 23 May 2017, police members from the Major Collision Investigation Unit re-attended the scene of the collision. They searched for, but were unable to find, any pre-collision marks on the road and took further photographs and conducted a videotaped 'drive through' of the collision scene.
30 A mechanical examination of the motorcycle concluded that the brakes and headlights of the motorcycle were working satisfactorily and that there were no faults or failures to the motorcycle that would have caused or contributed to the collision.
31 Similarly, the SUV that you were driving was in good overall condition and there were no faults or failures to the SUV that would have caused or contributed to the collision.
32 A blood sample was taken from the deceased and analysed and no alcohol or illicit drugs were detected.
33 At 9.39 am you were interviewed by police. You stated that you were in the area of the collision to collect an item that your wife had ordered online. You stated that you were using the GPS function on your mobile phone and realised that you had driven past the address. You pulled your vehicle to the left, saw a headlight in your mirror and waited for one vehicle to pass. You stated that you saw another headlight and, believing that you had sufficient time, pulled out to complete a U-turn.
34 You claimed that you indicated before pulling out from the side of the road. Almost straightaway you collided with the motorcycle.
35 You described getting out of your vehicle, checking the motorcycle rider and asking a passing motorist to call an ambulance.
36 You stated that you held a Western Australian driver's licence but had “some issues with it”, and you believed that you were a disqualified driver.
37 When asked about the positive result of the drug test, you claimed that you had not ingested any methylamphetamine recently, but suggested that the results of the blood test may have been due to the fact that you had taken some white capsules - which you believed to be caffeine tablets - that had been given to you. You had last taken those tablets at 4 pm the previous afternoon while you were on the way to Ballarat. When asked if you had ever taken methylamphetamine, you stated that you had taken it a few times. The last time you used it, you said, was in Western Australia more than five years previously.
38 Dr Morris Odell, an expert forensic physician, considered the results of the analysis of the blood sample taken from you and formed the opinion that you had consumed methylamphetamine, which was an illicit drug that was capable of having an adverse effect on your driving ability. However, he also noted that it was not possible to unequivocally determine whether the drug rendered you incapable of proper control of a motor vehicle at the time of the incident.
39 Dr Odell noted that relevant research showed that drivers who have ingested that drug and were intoxicated were more likely to drive dangerously, at high speed and to take risks, than they would if not impacted by those drugs. He noted that the research revealed that the typical effects of those drugs included speeding, inappropriate lane changes, erratic driving, disorientation, agitation and irrational behaviour.
40 Dr Odell further stated that caffeine would have been detected if the levels were above approximately 10 mg/L. However, given that caffeine has a half-life of
2 - 12 hours, the absence of caffeine in the toxicology report did not exclude the ingestion of caffeine the previous day.
41 Detective Leading Senior Constable Robert Hay, a collision reconstruction expert from the Collision Reconstruction Unit, attended the collision and analysed the collision scene. He considered the evidence gathered at the collision and his opinion was:-
“Based on the lack of damage to the Ford, the lack of pre-impact marks and minimal radiator damage to the Ducati, it is my opinion that the Ducati was not travelling at an excessive speed prior to the collision and was most likely travelling at, or close to, the speed limit.
“The collision occurred approximately 232 metres from a gentle right hand curve for north-bound vehicles. At 100 km/h it would take the rider approximately 8.3 seconds to travel from the curve to the collision site. Based on this the rider should have been visible when the driver stopped to perform a U turn”.
42 Via your legal representatives, on 6 March 2019 you indicated an intention to plead guilty to a single charge of dangerous driving causing death. At the time of the plea, the matter was set down for trial at the Ballarat County Court commencing 18 March 2019. A contested committal hearing had been conducted on 26 June 2018.
43 Victim impact statements were received from Mr May's two daughters and his brother. Mr May was a much loved man within his family and highly respected in the wider community as a leader and visionary in organic farming. The sudden loss of their father in these traumatic circumstances - following the unexpected loss of their mother some seven years earlier as a victim of a tsunami - has been especially harrowing for the daughters. Each was close to her father, who had assumed the role of both parent and mentor. The daughters endured the anguish of having to make the decision to turn off life support. Each has suffered emotionally. They both assisted their father on his farm, and shared his joy and fulfilment in working towards a sustainable farming life. The practical impact of trying to maintain the farm has been financially difficult and emotionally exhausting in the wake of their father's death.
44 Mr Douglas May lost a brother who was both a mentor and role model on both a professional and personal level from childhood. He lived nearby and shared a close and caring relationship. The loss to Mr Douglas May has caused loneliness and a sense of isolation. He has also been impacted by a loss of family time and additional workload in assisting his nieces manage the property.
45 I now turn to your personal circumstances.
46 As I noted earlier, you are now 34 and you were 32 at the time of offending.
47 Again as I noted earlier, you do have a criminal record for relevant road traffic offending, commencing in the Rockingham Magistrates' Court in 2005 where, for reckless driving and another driving offence, you were fined $700 and had your driver's licence cancelled for 9 months on one offence, and 3 months on the other.
48 Between 2005 and 2011, you were convicted on five occasions for driving whilst disqualified from possessing a driver's licence. In February 2017, in Victoria, for various driving offences including, again, unlicensed driving, you were fined $1500 and had your car and bike licences both cancelled for six months. You were ordered to complete a Safe Driving Program and you were not to be re-licensed except by order of a magistrate.
49 Within three months the current incident occurred.
50 As to your past, you had a disrupted childhood moving between Wales where you were born and Western Australia and back again. You were bullied at school in Wales for being different and fell behind academically because of curriculum differences. You subsequently left school at 15 and commenced a diesel fitter apprenticeship.
51 Your parents separated and you felt bitter towards your mother because of her conduct. You became rebellious, commenced alcohol and cannabis use and engaged in disruptive and delinquent behaviour in gang activity.
52 You returned to Australia in 2001 and worked on a farm. You fell into depression and substance abuse after a broken romantic relationship. In 2009 you worked as a chef on a cattle station in the Kimberley. You later became head chef at a tourist village nearby.
53 You met your wife in 2012 and married in 2014. You worked together and moved to Victoria to run the Grampians YHA Hostel. You were working there in the period of the collision.
54 In 2017 the two of you left Victoria and obtained employment at Coral Beach Lodge Motel in Port Douglas, and you moved to Western Australia in March of this year.
55 You have three children, aged five, four, and two, and your wife is now expecting your fourth.
56 The two older children have both been diagnosed as autistic, and their management has taken a significant toll on your marriage. One child has speech difficulties and continues to suffer significant anxiety and social deficits. The other child also has speech deficits and you have learned sign language in order to communicate more effectively with him. The two boys have frequent involvement with a speech pathologist, paediatrician and occupational therapist.
57 You and your wife are concerned that the third child, a daughter, may also be displaying autistic traits.
58 Your wife and children currently remain resident in Western Australia and it is uncertain whether they will move back to Victoria upon you being sentenced.
59 You have a substance abuse history commencing with drinking alcohol from the age of 13. You engaged in significant binge drinking, leading to consumption of a slab or a Jack Daniels a day. You moved away from heavy drinking when in the Kimberley, and report that you have been a mild drinker since and have not drunk any alcohol for two years.
60 You also commenced using cannabis at age 13 and used it on a daily basis until your time again in the Kimberley and meeting your wife. You report that you have not used cannabis now for 10 years.
61 You have admitted using amphetamines and ecstasy sporadically during your adult years, but again report that you have not used these drugs in several years. You claim that the source of the amphetamine in your system following the collision was likely the result of you having taken some tablets given to you by some backpackers. You said you “thought that they were caffeine or something”. Given your history of familiarity with amphetamine and like stimulants, I find that explanation implausible.
62 Your act of driving, after consuming in recent times an unknown stimulant is, at best, reckless.
63 You have reported periods of depression and anxiety since childhood as well as mood disturbance through your adult years, particularly in the context of the complex health problems of your children and the strain this has placed on your marriage. You have suffered periods of feelings of despair, sadness and suicidal ideation.
64 A report from Dr Matthew Barth, psychologist, was tendered on your plea. In Dr Barth's opinion, you presently suffer from emotional distress following the collision. This has manifested in a clinical diagnosis of Anxiety and Depression, the major cause of which is the ongoing effects of the trauma you have suffered as a result of the collision. Your current symptoms are consistent with a diagnosis of Post-Traumatic Stress Disorder. Dr Barth further opined that the effect of imprisonment upon you is likely to be more burdensome than upon a person who does not suffer from your mental health condition.
65 Between April and July last year you have engaged in counselling with psychologist Ms Sutcliffe. Ms Sutcliffe concluded that you have suffered anxiety from an early age as a result of repetitive exposure to domestic violence and abusive parenting. Ms Sutcliffe opined that the collision triggered pre-existing anxiety, escalating to Post-Traumatic Stress Disorder. Your anxieties are also compounded by grieving the life anticipated for your children's future given their difficulties, and also your father's failing health and the realisation that your father was nearing the end of his life.
66 Several documents were also tendered on your plea particularly relating to the family hardship as a consequence of your children's difficulties. These are:
§ a letter to the court from your wife providing a background to the difficulties with the autistic children, the assistance to her that you have provided and the deep emotional struggle you have endured following the birth of your third child and the consequences of the collision;
§ two reports from Dr Maharaj, paediatrician, and a report from Ms Harvey, psychologist, as to specific aspects of the boys' autism;
§ a report from Ms Sharon Coles, occupational therapist; and
§ a character reference from Mr Hamelink, who was your employer at Port Douglas.
67 The evidence provided by the abovementioned material supports the following propositions:
· both your boys are significantly affected by their autism and your daughter has developed anxiety and self-harming behaviour;
· that in the years leading to the collision on 22 May 2017 both you and your wife have worked extremely hard to maintain your marriage and family in very trying circumstances - the evidence relating to your children's difficulties reflects profound challenges for any couple;
· that in the weeks and days prior to the collision you were endeavouring to maintain the necessary full work at the hostel by yourself and at the same time care for the two boys while your wife was in hospital with complications in the latter stages of her pregnancy (the foetus was not getting sufficient blood to the brain and there was a possibility of major deficits);
· you have provided a high level of engagement in therapy sessions with the children and with implementing follow-up procedures between sessions;
· that your wife will face a serious struggle to cope with the management of the children without your support in your absence, and the children have already suffered and will suffer more from separation from you - because of the boys' autism condition and your daughter's anxiety, this is particularly relevant.
68 It is also apparent that in the days prior to the collision you were exhausted and mentally drained. Your wife blames herself for sending you out to get the bassinet and breast milk pump on the day the collision occurred. It was the day she came home from hospital and two days after the birth. She admits that she was almost hysterical about the need to get the items. She was planning on breastfeeding, but due to what happened in the past with one son when her milk dried she was worried that she would not be able to give her new baby what she needed.
69 Ordinarily you had a friend who would drive when you needed to get somewhere. On this day, however, no one was available to assist.
70 In light of the circumstances, however, you chose to drive.
71 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general to deter other like-minded individuals), rehabilitation, denunciation of the conduct by the court and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
72 General deterrence, in particular, is an important sentencing principle for this kind of offending. The public has to appreciate the very great dangers of driving motor vehicles and the great need for care because of the terrible tragedy that can result from inattention.
73 The culpability of your driving is reflected in the serious risk you created to other members of the public by turning directly into the path of traffic when it was patently unsafe to do so, either because you did not look at all or you failed to keep a proper lookout. Either way, it was inattention.
74 The conditions were such that the rider would have been clear to your view for approximately 232 metres. The evidence is uncertain as to whether you operated your right indicator before moving from the kerb, but even if you had, the circumstances are such that it must have been at the very last moment because the absence of any evidence on the part of the rider to take any evasive action. The clear inference to be drawn is that Mr May never anticipated your turn. I do not regard your moral culpability as low, but at the medium level compared with other cases.
75 Your offending also has to be considered in the context of your previous appearances before the courts. You knew it was against the law to drive, because only three months before you had been disqualified from driving and had been penalised by the courts on six previous occasions for similar offending. Your offences in February 2017, some three months before this collision, also included the offence of careless driving. In these circumstances, I reject your counsel's submission that specific deterrence has negligible or even a minor role to play in the sentencing discretion.
76 Your counsel has submitted that hardship to your family by you being imprisoned is a special matter of mitigation. I do not consider the circumstances are so exceptional that this can be accepted. Whilst the demands on your wife and the disadvantages to your children are likely to be burdensome, they can be managed in your absence. I do accept, however, that your inability to be present and to provide support for your children will bear heavily upon you, and that anxiety may be taken into account as making your life in custody more burdensome.
77 In mitigation, I have considered all the matters submitted on your behalf by your counsel and I accept, in particular, the following:
· your plea of guilty for its practical effect, acceptance of responsibility for your offending and remorse;
· your letter to the court, which I accept is a further indication of genuine remorse: heartfelt, and a real reflection on how your conduct has impacted on others, especially the May family;
· the anxiety upon you of the impact to your wife and children flowing from your imprisonment;
· your family support which will assist your prospects of rehabilitation;
· your difficult early life and the character and maturity you have shown by moving away from a fractured past, working hard, raising a family and maintaining your marriage and family in very difficult circumstances;
· the particular circumstances of the day, which I accept that with your exhaustive work life and your wife's condition, likely made you more vulnerable to drive when you should not have;
· the fact that in the period since the offending you have not committed further offences, and
· your reactive anxiety, depression and Post-Traumatic Stress Disorder, which I accept will make your life in custody more burdensome to a certain extent than on someone in normal health - I am, however, not persuaded that there is a significant risk your mental state is likely to deteriorate further in the period immediately after sentencing, as was opined by Dr Barth.
78 Your letter of apology to the May family expressed a remarkable sensibility to their loss, their pain and their anguish, and an acceptance in your own grief and remorse that custodial time will assist you psychologically in atonement and repentance.
79 Mr Usherwood, would you please now stand.
80 On Charge 1 of dangerous driving causing death, you are convicted and sentenced to 34 months' imprisonment.
81 On transferred Summary Charge 6 of drive whilst disqualified, you are convicted and sentenced to four months' imprisonment.
82 Charge 1 is the base sentence.
83 I direct that two months of the sentence imposed on transferred Summary Charge 6 be served cumulatively on the sentence imposed on Charge 1.
84 The total effective sentence is 36 months' imprisonment.
85 I direct that you serve a period of 24 months' imprisonment before being eligible for parole.
86 I declare the period that you have already spent in custody in this matter, namely 73 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
87 For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is four years' imprisonment with a non-parole period of three years.
88 At the plea hearing the Crown also sought a forensic order which you did not oppose, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is not opposed and the granting of the order is in the public interest.
89 Now, I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that procedure to be conducted. Do you understand that, Mr Usherwood?
90 OFFENDER: Yes, Your Honour.
91 HIS HONOUR: Thank you. Pursuant to s.89(1) of the Sentencing Act, I note that you do not currently have a driver's licence and I further order that you are disqualified from obtaining any such licence for a period of two years from today.
92 At the plea hearing the prosecution further sought a compensation order for the loss of the motorcycle. That order was not opposed, and I have also made that order today. You may be seated. Are there any further matters from either counsel?
93 MR HEVEY: No, thank you, Your Honour.
94 MR ALEXANDER: No, Your Honour, save and except that I'm instructed that Mr Usherwood's wife is now in the process of moving to Victoria with the children, which may make his time inside a little more tolerable.
95 HIS HONOUR: Yes. That will assist him having some support while he's in custody.
96 MR ALEXANDER: Yes. Yes, certainly, Your Honour.
97 HIS HONOUR: Thank you for that.
98 MR ALEXANDER: Nothing further. Thank you.
99 MR HEVEY: Thank you, Your Honour.
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