Director of Public Prosecutions v Waterhouse
[2024] VSC 585
•30 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0195
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| HAYDEN WATERHOUSE | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2024 |
DATE OF RULING: | 30 July 2024 |
CASE MAY BE CITED AS: | DPP v Waterhouse |
MEDIUM NEUTRAL CITATION: | [2024] VSC 585 |
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CRIMINAL LAW — Sentence indication — Dangerous driving causing death — Charge of murder — Accused caused death by driving in dangerous manner — Accused accelerated and swerved onto the wrong side of the road — Aware that there were pedestrians in close vicinity of vehicle — Fled scene — Not satisfied that accused was aware that he had struck deceased man — Prior criminal history — General deterrence — Four and a half years’ imprisonment — Criminal Procedure Act 2009 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | P Thorp & L Gurry | Office of Public Prosecutions |
| For the Accused | J Desmond & S Ranjit | Hofman Carroll Criminal Law |
HIS HONOUR:
Introduction
In this matter, Hayden Waterhouse [‘the accused’] has been indicted in the Supreme Court on one charge of murder. He now seeks a sentence indication on the lesser charge of dangerous driving causing death.[1]
[1]Pursuant to the Crimes Act 1958 (Vic), s 319.
The offence is alleged to have been committed on 8 October 2022, a day on which the deceased, Jamerson Ross, went to the Westernport Hotel in Hastings with a group of friends to celebrate his 23rd birthday. In brief summary, the prosecution alleges that after leaving the hotel at around 10:47pm the group began walking back to the deceased’s house. It is alleged that they were walking up Coolstore Road when the accused approached them driving his Holden Cruze motor vehicle. The accused had a discussion with some of Jamerson Ross’ friends during which he enquired about whether they had hit his partner’s car when she drove past them earlier.
It is put that the accused spoke in a loud voice and seemed angry. He abruptly accelerated and swerved onto the wrong side of the road heading directly toward Mr Ross, who was standing near the kerb, and struck him. The accused drove straight over him and fled the scene. Police and paramedics attended the scene but Mr Ross was pronounced dead at 11:41pm.
For the purposes of this application, the prosecution alleges that the accused caused the death of Mr Ross by driving in a dangerous manner, namely by accelerating rapidly and colliding with Mr Ross in circumstances where he was aware there were pedestrians on the road around and ahead of his vehicle. It is alleged he ought to have taken greater care in operation of his vehicle by ensuring his driving was safe to road users and pedestrians alike.
The application
On 27 May 2024, a jury was empanelled to hear the murder trial in this matter. On 6 June 2024, the jury was discharged, after an application was made by counsel for the accused. The discharge related to the jury’s receipt of inadmissible viva voce evidence from a particular lay witness, led by the prosecution.
Following the discharge, the parties indicated they would appreciate some time to engage in potential resolution discussions. Counsel for the accused has since applied orally for a sentence indication. The hearing of this application is not opposed by the prosecution. The re‑trial on the indicted charge of murder has not yet been relisted.
The facts and circumstances alleged by the prosecution for the purposes of the sentence indication hearing are set out in a detailed Statement of Agreed Facts for Sentence Indication [‘Agreed Facts’] filed by the prosecution, dated 5 July 2024. I have carefully read the Agreed Facts, which was also orally summarised by the prosecutor during the sentence indication hearing. The prosecution also filed written submissions and a copy of the accused’s criminal history. A summary of the impact of the offending on Mr Ross’s parents, partner and friends was also included, and I have read this material.
In response, the accused filed an outline of submissions dated 22 July 2024, along with a bundle of certificates obtained by the accused in custody, a letter of Dr Ashmyra Voogt dated 13 June 2024, and letters from Donna Chandler of GEO Healthcare dated 17 and 18 June 2024.
Both the prosecution and defence made oral submissions at hearing in addition to these materials, which I have read and considered. Some past sentencing decisions relevant to the issues at the hearing were brought to the attention of the court, and discussed.
The relevant law
Section 207(1) of the Criminal Procedure Act 2009 [‘the Act’] provides that any time after an indictment is filed, but before the trial commences, the court may indicate that if the accused pleads guilty to any charge on the indictment, the court will be likely to impose on the accused either a sentence of a specified type, or alternatively, a specified maximum total effective sentence.
Both parties accepted that, if the accused was to plead guilty to a charge of dangerous driving causing death, the only appropriate and available sentence to be passed in this case would be one of imprisonment (with an additional mandatory cancellation of his license for a specified period). Accordingly, for all practical purposes, this court is asked to give a sentence indication of the specified maximum total effective sentence that would be likely to be imposed on the accused if he pleads guilty to that charge.
Section 208(4) of the Act provides that a court may refuse to give a sentence indication. In this case no reason has been put forward as to why the court should not proceed to give an indication.
Section 208(5) of the Act also provides that a court may refuse to give a sentence indication if it considers there is insufficient information before it of the impact of the offence on any victim of the offence. Clearly, there are victims of the accused’s alleged offending, in particular, Mr Ross, and the family members and loved ones of Mr Ross, including the large number of young men who were out celebrating his birthday on the night in question and came to witness his tragic death. The prosecution have filed some material regarding victim impact, namely from Mr Ross’ parents, sister, former partner, and his friend Mr Brown. I note, briefly, that it is evident from this document that these events have had a significant, ongoing impact on many people. He was clearly a popular and beloved young man with most of his life ahead of him. His loved ones are understandably devastated.
I am of the view that there will inevitably be evidence of significant victim impact in this matter if it were to proceed to a full plea hearing, given it involves a death of a loved young man. Insofar as I can at this stage, I have taken into account these matters in determining this application.
On 24 July 2024, having provided the parties with an opportunity to be heard, I granted the application for a sentence indication hearing and proceeded to hear the matter, given, in my view, there was no good reason to decline to hear the application and determine it, as requested.
Submissions of the parties
As above, the prosecution opened the hearing by reading a summarised version of the Agreed Facts. Having heard the matter be opened at the trial for the charge of murder the accused previously faced, I am familiar with the ways in which the agreed facts differ. Notably, the prosecution concedes for the purpose of this application, the accused did not intend to hit Mr Ross with his car and run him over, but alternatively posits that he drove in a manner dangerous by accelerating quickly knowing there were pedestrians on the road in front of his car and colliding with the deceased on the wrong side of the road.
Counsel for the accused submitted that the accused has good prospects of rehabilitation, that there would be significant utility to a plea of guilty to dangerous driving causing death (particularly given witnesses would be spared the experience of a re‑trial, and in light of what was said to be a ‘strong’ defence to the charge of murder). A bundle of custody certificates has been filed and are submitted to indicate the accused has put his time on remand to good use. The letter from Dr Voogt indicates that the accused engaged in six months of psychological treatment focussed on reducing symptoms of Post Traumatic Stress Disorder “stemming from a head injury that occurred in 2022”.
It was submitted that the accused fell into methamphetamine, cannabis and amphetamine use at age 18 but has been abstinent from use of these drugs in recent years. The letters from Donna Chandler indicate that the accused has been involved in drug and alcohol treatment offered by GEO Healthcare whilst in custody, and has “demonstrated a strong commitment to making and maintaining change”, as well as being employed as a peer educator in this area in custody. The accused’s strong work history was also emphasised in oral and written submissions. Counsel for the defence also pointed to the plea of guilty coming at an early opportunity (given it was indicated at the case conference before the trial commenced), and evidence of the accused’s remorse, limited admissions during his interview with police and co‑operation with police, and limited prior convictions (none of which relate to violence, and one being a ‘minor’ driving matter said to be of a different scale to the present offending).
Centrally, counsel for the accused submitted that whilst an inherently serious offence, this offending is not a serious example of the offence, particularly because of the following:
(a) The accused was licensed to drive and was not intoxicated or speeding at the time;
(b) The offending was not sophisticated, pre‑meditated or protracted. Whilst it is accepted the accused attended the scene to speak to the group about their earlier interaction with his partner’s car, the court was urged not to find that this was a ‘revenge mission’;
(c) The accused’s vehicle was kicked and he was in an ‘intimidating’ situation where he drove defensively to get away;
(d) The reconstruction expert’s report indicates the accused’s car was traveling at between 30 and 40km an hour at the time of impact with Mr Ross. The impact felt, it was submitted, may have been mistaken for mounting the kerb. In terms of the later intercept of the accused by Mr Kerr, after the accused had driven away, it was submitted it was unclear whether the accused was told or asked if he had hit someone at the scene. In any event the accused denied this to the witnesses;
(e) The Crown case is said to be weak, and the lay witnesses said to be lacking credibility and reliability. The plea is submitted to have a higher utilitarian benefit in light of what is said to be a viable defence to a murder or manslaughter charge.
In response, the prosecution made submissions regarding the nature of the alleged offending. These included that the accused’s moral culpability must be assessed as high, as he “deliberately chose to “put his foot down” and accelerate forward in a situation where he was acutely aware that pedestrians were in the immediate vicinity of his vehicle”, was grossly indifferent to the safety and welfare of these pedestrians, failed to render assistance afterwards and was, overall, driving in an inherently dangerous manner to the public. The prosecution disagrees with both the defence suggestion that the witnesses were willing to ‘say anything’ to have the accused convicted, and the suggestion that the accused was ‘set upon’ by a large group of drunk men. The Agreed Facts on this point indeed reflect an acceptance by both parties that around five men were standing around the accused’s car at the time when he decided to accelerate and drive onto the other side of the road, hitting Mr Ross.
The submissions of the prosecution also noted the importance of general deterrence in such matters,[2] the significant impact of the offence on the Ross family and others, the accused’s prior criminal history, lack of any confirmed diagnosed mental disorder, mood disorder or personality disorder impacting his mental functioning at the time of the offending (and therefore irrelevance of Verdins[3]) and absence of other significant mitigatory factors relating to the accused’s circumstances or background.
[2]DPP v Neethling (2009) 22 VR 466.
[3]R v Verdins (2007) 16 VR 269.
Submissions were also made in regard to the similarities and dissimilarities of this matter with a number of past sentencing decisions, and current sentencing practices for dangerous driving causing death. Counsel for the accused pointed to the Sentencing Advisory Council’s statistics, indicating that approximately half of the sentencing outcomes for this charge have resulted in custodial sentences, with the median term imposed being two years’ imprisonment. The prosecution, on the other hand, noted the Court of Appeal’s observations that sentencing practices for cases of dangerous driving causing death falling in the mid to upper range of seriousness were inadequate and should increase, particularly in light of the increase in the maximum penalty to 10 years imprisonment in 2008.[4] Otherwise the prosecution noted in oral submissions that there are numerous examples of sentences for this charge, but none were particularly on point for the purposes of this application.
[4]Stephens v The Queen (2016) 50 VR 740.
I have considered the sentencing trends and statistics in relation to dangerous driving causing death, and other comparable sentences.
Discussions and conclusion
The maximum sentence for the offence of dangerous driving causing death as at the date of the offence was 10 years’ imprisonment. A custodial sentence is the only disposition open to the court, given none of the exceptions in section 5(2H) of the Act appear to apply.
The prosecution and defence differ centrally in how the moral culpability and gravity of this offending may be assessed. The prosecution considers this a grave, though mid‑range, example of the offence, whereas the defence suggests it sits on the lower end. In making an assessment of this matter at this point I am of the opinion that the accused man accelerated his motor vehicle when he was aware that there were pedestrians in the close vicinity of his moving vehicle and he was indifferent to a high degree as to their presence. The accused man’s driving was clearly dangerous. That said, I also conclude that this was not a sustained episode of driving, that he had been confronted by a number of aggressive young men around his car. Furthermore, there were no drugs or alcohol involved in the management of his motor car. In all the circumstances I could not be satisfied beyond reasonable doubt that he was aware that he had struck the deceased man and left the point of collision knowing that he had. In all the circumstances I consider the gravity of the accused man’s offending sits somewhere in the mid‑range of seriousness.
Having considered all of the material placed before the court and listened carefully to the submissions made on behalf of the prosecution and for the accused man, I indicate that in the event the accused man pleads guilty to the charge of dangerous driving causing death, the specified maximum total effective sentence I would impose is a period of four and a half years’ imprisonment. This figure, of course, represents a ceiling, and not a floor, on the head sentence that may be imposed if a plea of guilty is entered to the charge, and is provided in circumstances where the court is not fully appraised of all the features that might be proffered in mitigation at a formal plea hearing. It would be expected that, should the accused enter a plea of guilty to the offence, a plea in mitigation would follow at which all matters would be canvassed fully. It was briefly alluded to that any plea hearing may be contested in regard to the question of whether I could make a finding that trolleys were pushed towards the accused’s car in a threatening manner. For the purposes of this application, I have not considered this factor.
I will further indicate that on the basis of what is known at this point, I would be likely to impose a non‑parole period of three and a half years’ imprisonment.
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