Director of Public Prosecutions v Van Remmen
[2021] VCC 1466
•21 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-00673
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN VAN REMMEN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2021 | |
DATE OF SENTENCE: | 21 September 2021 | |
CASE MAY BE CITED AS: | DPP v Van Remmen | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1466 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Catherine Parkes | Office of Public Prosecutions |
| For the Accused | Mr David Hallowes QC | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
1 Colleen Plowman was a woman whose life revolved around her family. She had been married to her husband Michael for 40 years. They had four children and seven grandchildren. She was 64 years old. On 5 September last year, she left the home of one of her daughters, in Malmsbury, to drive back home to Kyneton. She never made it home. Only a few hundred metres down the road, her car was hit, head on, by a car which was being driven on the wrong side of the road. You, John Van Remmen were the driver of the car that collided with hers.
2 It was a sunny afternoon, the weather was fine, the road was dry and visibility good. You had no drugs or alcohol in your system. There were no mechanical defects to your car, or hers that can account for the collision. Neither of you was travelling over the speed limit or at excessive speed in the circumstances. In fact, the reconstruction evidence indicates that both of you were travelling below the speed limit.
3 You, Mr Van Remmen, had been working in Bendigo, and had been travelling on the Calder Freeway home, to Melbourne. You left the Calder Freeway at the Malmsbury exit. But in leaving you turned onto the incorrect side of the road. You drove across the Calder Freeway overpass and along the road into Malmsbury, on the wrong side of the road. The driver of a car which had turned onto Mollison Rd behind you started flashing his headlights at you, trying, unsuccessfully, to get your attention, to warn you that you were on the wrong side of the road.
4 You travelled a total of 1.3 kilometres on the wrong side of the road. You negotiated a right-hand bend and collided head on with Ms Plowman’s car.
5 You drove on the incorrect side of the road for the entire distance of 1.3 kilometres from the Calder Freeway exit to the point of collision. You failed to heed the keep left sign, which faced you, as you turned onto the overpass from the freeway. You failed to heed the white arrows painted on the roadway, facing the wrong way for a car travelling in the direction you were driving. You failed to note the concrete traffic barrier, and the white centre road line markings, first a traffic island then simply a road divider to your left, on the passenger side of your car, and failed to heed that the verge of the road was immediately to your right, on the driver's side of your car, for that whole distance. In order to negotiate the significant right curve, just before you collided with Ms Plowman’s car, it is clear from the accident reconstruction evidence that you must have steered your car around the corner. In other words, these were voluntary actions.
6 Ms Plowman had no hope of avoiding the collision or taking anything but minimal evasive action. Airbags on both cars deployed. You were unhurt. You immediately went to Ms Plowman’s aid, and helped her out of her car. She was struggling to breathe. Others soon arrived to help. They included two nurses from the Youth Justice Centre just opposite the collision scene. They administered CPR until an ambulance arrived. Ms Plowman was ultimately airlifted to the Alfred. She had sustained multiple chest injuries and died of those injuries at 5.42 pm that afternoon.
7 She leaves a stricken, and still grieving family. Her husband, her four children, and one son in law wrote moving, heartfelt victim impact statements. Her husband, Michael, did not want his read aloud in the hearing. But I read it, more than once. Those written by her children and son in law were read aloud. I have reread them, too. You, I understand have read all of them a number of times. To the family, and the friends of Ms Plowman, I say, I know this hearing, and the sentencing task I must discharge cannot undo what happened, or allay your pain, but I hope you have felt heard, listened to, and are aware you have given her a respected presence in this hearing.
8 How did this happen? From the moment you first gave an account immediately after others took over from you in looking after Ms Plowman, you have said you were tired, felt yourself nodding off and were looking for a rest area to park and stop.
9 The prosecution sought a report from Professor Mark Howard, a sleep specialist. In his opinion, the level of sleep restriction you described, that is, that you felt yourself dozing off and nodding off prior to the collision and that you had turned off the highway to stop to rest, would not by itself be expected to result in loss of control of a motor vehicle and would only marginally increase crash risk.
10 Analysis of your phone records and of what you had told police about your sleep and waking activities in the days leading up to the collision make it clear that you were not seriously sleep deprived.
11 The collision itself, Professor Howard reported, is not typical for a fatigue or sleepiness related crash. You had the ability to have proper control of your car leading up to the collision, evidenced by your ability to steer, stay on the road, and negotiate the bends in the road. He concluded fatigue or sleepiness could have contributed to confusion or disorientation and driving on the incorrect side of the road. He noted that fatigue exacerbates the recognised risk in drivers used, as you were, to driving on the incorrect side of the road for those of us in Australia. Fatigue also explains delay in taking evasive action in response to the oncoming vehicle.
12 It is as a result of your driving, in this manner, on this day that you now find yourself, a 31-year-old with no criminal record, and no driving record, pleading guilty to dangerous driving, causing the death of Colleen Plowman.
13 This is not a case where you fall to be sentenced on the basis that you were aware that your driving created a serious risk of death or serious injury, nor is it a case where your driving was grossly negligent, that is, it is not a case where your driving fell greatly short of the standard of care a reasonable person would have exercised and involved a high risk that death or serious injury would result. They are, in the hierarchy of offences known to the law in this state, more serious forms of driving causing death.
14 Dangerous driving causing death involves a serious breach of the proper management or control of a vehicle which creates a real risk that members of the public in the vicinity would be killed or seriously injured. That is, driving in a manner that significantly increases the risk of serious injury or death, over and above the ordinary risks of the road.
15 Specifically, your dangerous driving causing death, the charge to which you pleaded guilty, is put on the basis that you were driving in a manner dangerous to the public by a combination of driving on the wrong side of the road, driving whilst fatigued, failing to maintain proper attention, and failing to take evasive action in order to avoid the collision.
16 In The Queen and Musemeci:[1] a decision of the New South Wales Court of Criminal Appeal, endorsed by our Court of Appeal in the case of Neethling, Chief Justice at Common Law Hunt summarised the relevant sentencing considerations. For cases of dangerous driving causing death, relevantly for this case, they are these:
1. That the legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
3. The courts must tread warily in showing leniency for good character in such cases.
[1] Unreported, NSW Court of Criminal Appeal, 30 October 1997, 4-5.
17 The maximum penalty for this offence is imprisonment for 10 years. Parliament has prescribed that a term of imprisonment must be imposed unless of one of exceptions in s5(2H)(a) to (e) of the Sentencing Act can be established.
18 In Neethling[2] the Victorian Court of Appeal decision to which I have already referred, the Court of Appeal set out the factors relevant to an assessment of the level of risk created by dangerous driving causing death or serious injury. Relevantly here, they include:
· the extent and nature of the injuries inflicted;
· the number of people put at risk;
· the length of the journey during which others were exposed to risk;
· ignoring of warnings; and
· sleep deprivation.
[2] DPP v Neethling (2009) 22 VR 466.
19 When considering the first of these Neethling factors it must be borne in mind, that it is an element of the charge you face, that the driving caused a death. We are here dealing with fatal injuries, a life lost. You drove whilst fatigued. You knew you were tired. You kept driving, looking for a place to stop. It may well be a sign of your fatigue and impaired concentration, that you kept driving, looking for a place to stop, instead of just pulling over. You drove a considerable distance, over 1.3 kilometres whilst on the wrong side of the road.
20 You had come to Australia from the United States. You had however been here for nearly a year and nine months, and been driving on our roads, as I understand it, for all that time. You were therefore not able to be described as unfamiliar with the requirement to drive on the left in this country. The distance you drove, the time of day, during the afternoon, and the nature of the road, that is the road from the town of Malmsbury to the freeway, all combine to indicate the reality of other road users being in the vicinity and being placed at significant risk.
21 You failed to take any but the last moment evasive action. You should not have been on the wrong side of the road in the first place. Ms Plowman’s car should have been clearly visible to you. You ignored the signposts and road markings, the raised concrete median strip, the flashing headlights of the car travelling behind you, the keep left sign, the turn arrows facing the opposite direction to your path of travel and the fact the driver's side of the car was on the verge, not the centre of the roadway. All of this combined to indicate that your level of inattention was protracted, and high.
22 In my view, these matters all point to the objective seriousness of this driving sitting well above the lowest level of seriousness for cases of dangerous driving causing death. Whilst there are other features that can be present in cases of dangerous driving causing death that are not present here, a comparison with worse cases is not necessarily a helpful exercise.
23 It follows though, from this, that subject to considerations personal to you, denunciation, general deterrence and just punishment, loom large in the sentencing mix. What then are the matters applicable to you which must be taken into account in reduction of a sentence otherwise appropriate, or to balance against the needs of denunciation, deterrence, and just punishment having regard to what I found to be the objective seriousness of the offending?
24 I have already noted that you are a man without prior convictions, including without driving convictions. You were 30 at the time of the collision, you are now 31. You are a citizen of the United States of America, you came here in late 2018 as a young, but clearly highly skilled and talented graduate, to take up a position as a senior clinician providing innovative and highly specialised behavioural programs for children with complex and severe behaviour autism presentations.
25 Ms Goldfinch, the Chief Executive Officer of Irabina Autism Services, which employed you, gave evidence that she had introduced this specialised treatment in Australia in early 2018, having been exposed to it on a study tour to the United States. Irabina, she said, provides the only such service in Australia. You were recruited not long after she started this program in Australia, not only to work as a case manager, or senior case manager, with an individual client load, but also to develop the skills of locally trained therapists employed by Irabina as case managers. You also demonstrated a skill in writing NDIA funding applications and training other therapists to do that was added to your role.
26 You came here initially on a two year contract and visa. By the time of the collision, you had decided you wanted to stay here for longer in that work, and because of your personal life. Irabina was more than happy to continue to employ you, and arrangements were already in train to extend your employment contract and your visa.
27 You were single when you arrived in Australia, but you formed a relationship after your arrival with an Australian man. That relationship endures, and is obviously an important one to you and to him. It would appear that the combination of performing difficult work that you found rewarding and fulfilling, and which made a meaningful impact on the lives of those children and the families that you worked with, the forming of a loving relationship, and the building up of a good friendship circle here in Australia had led to the decision to extend your time here.
28 A quite overwhelming number of testimonials were provided, from your partner, many members of your immediate and extended family in the United States, your employer, your work colleagues at Irabina, many of whom had become personal friends as well, and from most, if not all of the families whose children you have worked with. All of the testimonial providers spoke from different perspectives, but to the same end.
29 Some of those testimonial providers also gave oral evidence, and again their evidence all pointed in the same way. You are a big personality with a big heart, caring and committed to family, friends, your clients, the work you do, and others less advantaged than you. You are a fearless advocate for the benefits of the program you administer, for the rights of the children you work with and their families. You are rightly proud of the outcomes you have achieved for them. The families speak with one voice in expressing their gratitude, and their amazement at the outcomes you have achieved for children, children who had otherwise generally been given up on by other providers, and whose complex behaviours, other services had been unable to provide for in any meaningful way. The families spoke of their desperation before you, and the program that you were administering through Irabina intervened. They expressed their fear at the prospect that you may not be able to continue to work with them.
30 Ms Goldfinch gave evidence that there are about 240,000 people with diagnosed Autism spectrum disorders in Australia, and up to 20 per cent of those, between 12,000 and 24,000 present with previously unmet complex needs. You manage a caseload of 12 children and their families, drawn from that small number of children with complex needs to whom Irabina is at present able to provide services. I am assuming that its other case managers have a similar or smaller case load. The lives of the children to whom Irabina can provide services, and their families, have been greatly enhanced. Ms Goldfinch’s vision was, and remains, to use overseas clinicians with the training and skills that you have to upskill the local workforce to make this service model available to all families who are at present are missing out. You, however, present it would appear, as someone exceptional even in this exceptional group.
31 It is valuable, meaningful work, and requires people with a special mix of training, experience, dedication, and personal qualities. It is clear you fall into that small, highly specialised cohort, and you have despite your relative youth, earned the respect and admiration of the clinicians and clients that you work with.
32 Your care for others less advantaged than you is something that you have demonstrated from your youth. One of your more significant earlier achievements, but not, I understand your only one, was the founding of a charity called Raddish. You founded that in your home city of Atlanta. It was formed to support gay young people who were rejected by their parents because they were gay, and who had as a result become homeless. Some of them also found it difficult to access mainstream services, even mainstream services for gay young people because they had embraced lifestyles such as veganism, and Raddish was particularly sensitive to ensuring that whatever the interests and needs, in eating and living, that these young people had, that it could provide for them. It was a sensitive approach to charity and welfare.
33 I accept, and take into account, this overwhelming positive evidence of good character, and your commitment, a lifetime commitment, to assisting those less fortunate than you.
34 You pleaded guilty, and did so at the earliest possible opportunity - at committal mention, and before you were fully aware of all of the evidence that the prosecution had. I accept that your early plea of guilty denotes an acceptance of legal and moral responsibility, and you get full benefit for the earliest opportunity on that which it was entered. I accept in the circumstances that it is clearly also further evidence of remorse. Your plea of guilty therefore deserves weight for all of the purposes that a guilty plea can get weight, for its utilitarian purpose in advancing the interest of justice, particularly in these covid times when court delays are so significant. All of the matters detailed by the Court of Appeal in Worboys[3] apply here and operate.
[3] Worboyes v The Queen [2021] VSCA 169.
35 I accept that you have been profoundly affected by the appreciation that you have caused the death of Ms Plowman, and that you will likely carry a burden of guilt for the rest of your life. I accept too, the evidence that you see continuing to work in your chosen field as in some ways, an honouring of her memory and an attempt to expiate some of your guilt, by devoting your life to those less advantaged. I take into account the observations to that effect in the reports of Mr Newton, Mr Gurtman, the assessing psychologist and treating psychologist who provided reports, and also on your letter apology.
36 In your letter of apology that you wrote to the family of Ms Plowman, you took full responsibility for your actions. You said that words cannot express how sorry and remorseful you are, and that your actions you acknowledged were your own. You said that you will never get over that day and you will live with the events the rest of your life. You accepted that your expressed sorrow will never be enough for the pain and loss to the family that you have caused. I accept all of that as genuine, heartfelt, and profound.
37 I accept, based on the reports of Mr Newton and Mr Gurtman that you have been suffering from depression as a result of your appreciation of the consequences of this day, and the acceptance of responsibility for what happened. I accept that depression will make imprisonment more burdensome, and that the fifth and sixth limbs of Verdins[4] are therefore enlivened. I accept too that as a gay man, imprisonment is likely to be more burdensome because of the risk of homophobic behaviours being visited upon you in a prison environment. If they are not actually visited on you, there is always a fear that they might be, and that clearly adds to the burden of imprisonment too.
[4] R v Verdins [2007] VSCA 62.
38 I accept also, that as you are not an Australian citizen, the effect of our commonwealth migration law is that you will face automatic visa cancellation if you are sentenced to be imprisoned for a period of 12 months or more. I accept that would have a significant impact on you, personally, on the relationship that is clearly so important to you, that you have formed since you came here, and on the people whose lives you have impacted so positively and can continue to impact positively on if you are allowed to remain in this country. I accept that the concern about that is a proper factor to take into account.
39 These are all powerful considerations.
40 So too, although I have mentioned Worboys in passing, I should say explicitly, is the added burden of imprisonment in these covid times. The restrictions imposed by reason of the need to try and keep prisoners safe, the limited access to visits, to facilities, training, and the like. All of those properly would go to reduce the sentence otherwise appropriate. As I noted last week during the plea hearing, this is one of those tragic cases where an otherwise good person by his own wrongful actions, brings about the death of another good person, who had done nothing wrong,
41 In Neethling, the court relevantly found that a custodial sentence would usually be appropriate for this offence, even where the offender is of good character, except in cases where the offender’s moral culpability is low.
42 In addition, for the offence of dangerous driving causing death, since Neethling was decided, s 5(2HC) of the Sentencing Act requires the court to regard general deterrence and denunciation as having greater importance than the other sentencing purposes in s 5(1) of the Sentencing Act. Less weight is to be given to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence.
43 I do not consider your moral culpability for the collision to be low. I have already expressed my reasons for finding the objective seriousness is not at the lower end of the range. Similar reasoning leads me to conclude that your moral culpability is not low either. The factors I listed when assessing the objective seriousness also play into the assessment of moral culpability. You were tired. You knew you were tired, tired enough to appreciate you should stop and rest. But you kept driving, whilst looking for a place to stop. The distance over which you drove on the wrong side of the road, and the inattention over that period evidenced by the failure to heed the multiple warning signs, in my view takes this well away from the moment of inattention type of cases which have warranted characterisation, not only of low objective seriousness, but also of low moral culpability.
44 Mr Hallowes, in the course of his submissions, submitted that you had not, relevantly for the purposes of the assessment of objective seriousness, and moral culpability, failed to heed warnings. He submitted you had not failed to heed warnings in the sense of a deliberate or wilful ignoring of them. In my view failure to heed warnings is not confined to a deliberate or wilful ignoring of a warning such as a spoken warning to slow down or to keep left. It covers in my view, your conduct here, the failure to heed the road signs, the keep left sign, the painted arrows pointing in the wrong direction for your direction of travel, the verge on your right shoulder, centre road barriers, the markings on your left, and the flashing lights in your rear view mirror. That is so,, whether the failure is through inattention or deliberate flouting (Noting there is no suggestion here this was deliberate flouting of a warning). The fact is you ignored and failed to heed multiple warnings over that considerable distance of 1.3 kilometres.
45 Mr Hallowes submitted that this was a case which fell within one of the exceptions to the parliamentary direction to otherwise impose a term of imprisonment for the offence of dangerous driving causing death. Specifically, that this case fell within s 5(2H)(e). That is, that there were substantial and compelling reasons that are exceptional and rare which justify departure from the otherwise mandated imprisonment. In considering whether there are substantial and compelling reasons that are exceptional and rare justifying departure from imprisonment, I must consider whether the cumulative impact of the circumstances would justify a departure
46 In considering the ‘substantial and compelling circumstances’ exception the Court of Appeal in the case of Hudgson[5] held that the burden ought to be a heavy one, not capable of being lightly discharged. ‘Compelling’, it held, meant powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind. In the latter case of Farmer[6] the court confirmed that the very high hurdle required to satisfy the exception in s 5(2H)(e), was a threshold not often surmounted. It observed that in some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work as a serious injustice, particularly for young offenders. It described paragraph (2H)(e) as a residual category of limited scope, one which, to a degree, guarded against the risk of injustice. But it warned that the stringency of the test cannot be avoided.
[5] DPP v Hudgson [2016] VSCA 254 (Weinberg, Whelan and Priest JJA).
[6] DPP v Farmer [2020] VSCA 140.
47 Parliament specifically directs me when considering whether there are substantial and compelling reasons, that I must:
·give greater weight to general deterrence and denunciation than other sentencing considerations – s 5(2HC)(a);
·give less weight to the offender’s personal circumstances than other matters, such as the nature and gravity of the offending – s 5(2HC)(b); and
·must not have regard to the offender’s previous good character (other than an absence of previous convictions or findings of guilt, an early guilty plea, prospects of rehabilitation or parity with other sentences – s 5(2HC)(c)(i) to (iv).
48 It follows from that, that although I must give greater weigh to general deterrence and denunciation than to other sentencing considerations, and I must not have regard to your previous good character, other than the absence of prior convictions, your early plea of guilty or your prospects of rehabilitation, I am permitted otherwise to take your personal circumstances into account. Although I am mandated to give less weight to them than to general deterrence and denunciation.
49 It is difficult, in your case, to disentangle your personal circumstances from good character over and above absence of prior convictions, because they are interlinked, but doing my best to abide by that directive, I take into account the following personal circumstances when considering whether there are substantial and compelling reasons which are exceptional and rare.
50 You are a highly skilled and valued behavioural specialist, working in a highly specialised field of behavioural therapy for autistic children with complex needs. You were recruited from a specialist provider of such services in the United States to provide your skills, as a senior case manager, and trainer of local clinicians. You were recruited by what I was told was the only provider in Australia of such services to that vast number children with those previously unmet complex needs.
51 The reports from your employer, your clinical colleagues, and the families that you have provided these specialist services to speak with one voice of a dedicated, highly skilled person who has been an integral part of bringing a new and successful way of improving the lives of these children and their families.
52 You are profoundly affected by the appreciation of the consequences of your conduct, in taking away a life, and of the resultant grief caused to Ms Plowman’s family and friends. You are suffering and will continue to suffer depression as a result.
53 By operation of commonwealth law, your visa will be cancelled and you will likely be deported if a sentence of more than 12 months is imposed. That will impact the personal relationship you have formed here, as well as the valuable contribution you would otherwise continue to make through Irabina to these children and their families with such profound, and generally otherwise unmet needs.
54 Mr Hallowes submitted that the combination of these matters take this case outside the run of the mill and justify departure from the otherwise mandatory imprisonment required by s 5(2H).
55 I have given this case and the submissions anxious thought. No sentence will bring Ms Plowman back, and her life is not to be valued by the crude measure of the sentence imposed. The sentence that I am about to impose will not please everyone, it may please no one. That is the dilemma of attempting to reconcile the irreconcilable.
56 I have ultimately determined that in accordance with Neethling, the objective gravity of the driving, and your level of moral culpability are such that, despite your excellent character, and the matters counting so powerfully in your favour, a sentence of imprisonment is the only outcome. I do not consider, when taking into account only those matters I am permitted to under s 5(2H), setting aside those matters I must, and giving lesser weight to the personal circumstances that I have outlined than general deterrence and denunciation, that this case falls within that residual category of substantial and compelling circumstances that are exceptional and rare so as to justify a non-custodial sentence.
57 However, when able, under general sentencing principles to take into account, and give proper weight to your personal circumstances, your good character, your early guilty plea, your prospects of rehabilitation, and the impact of the risk of deportation, I consider that although a sentence of imprisonment is warranted, in the unusual circumstances of this case, and in this covid 19 environment, a sentence of less than 12 months is open and that is what I intend to impose.
58 Mr Van Remmen can you now please stand. On the charge of dangerous driving causing death, to which you have pleaded guilty you are convicted, and sentenced to be imprisoned for a period of 10 months. I declare pursuant to s 6AAA that but for your plea of guilty I would have imposed a sentence of two years imprisonment and fixed a non-parole period of 12 months. By law I am required to cancel all licences held by you, and to disqualify you from obtaining a further licence for a period of 18 months, and I make that order. Are there any other orders that are required to be made Ms Parkes?
59 MS PARKES: No, Your Honour.
60 MR NORTON: As Your Honour pleases.
61 HER HONOUR: Is the sentence that I pronounced, pronounced correctly according to law?
62 MS PARKES: Yes, Your Honour.
63 HER HONOUR: Mr Norton are you able to go down now and see your client.
64 MR NORTON: Yes, Your Honour.
65 HER HONOUR: In that case I will adjourn - or do you want to speak to him briefly before - - -
66 MR NORTON: No, he understands, Your Honour, that I will be coming straight down.
67 HER HONOUR: All right, I will adjourn so that you can go down and see him straight away. Can I thank you, Mr Norton, Mr Hallowes, and you Ms Parkes for your considerable assistance in what was a very difficult matter.
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