Director of Public Prosecutions v Wells
[2022] VCC 244
•3 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIKAYLA WELLS |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2022 and 2 March 2022 |
DATE OF SENTENCE: | 3 March 2022 |
CASE MAY BE CITED AS: | DPP v Wells |
MEDIUM NEUTRAL CITATION: | [2022] VCC 244 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Dangerous Driving Causing Death – Balance of Probabilities the Offender has Impaired Mental Functioning – Substantially and Materially Greater than an Ordinary Burden or Risks of Imprisonment – Young Offender – Rehabilitation – General Deterrence – COVID times – With Conviction – Community Corrections Order.
Legislation Cited: Sentencing Act 1991 (Vic) ss 5(2H), 87E and 319; Mental Health Act 2014 (Vic).
Cases Cited: Farmer v The Queen [2020] VSCA 140; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Worboyes v R [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; DPP v Candaza [2003] VSCA 91.
Sentence: With Conviction a Community Corrections Order for a period of 2 years; Licence Cancellation and Disqualification for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Hutton | Office of Public Prosecutions |
For the Accused | Mr L. Gwynn | Victoria Legal Aid |
HIS HONOUR:
1Mikayla Wells, on 2 February 2022 I granted your application for a sentence indication. In doing so, I indicated that I would not impose a sentence of imprisonment should you plead guilty to the charge you faced.
2On 2 March 2022, you did plead guilty on arraignment to one charge of dangerous driving causing death. As I said in the brief reasons for granting your sentence indication application, once again, this court is called on to deal with the deep trauma that results of a death on the road. It is the more traumatic here, because you Mikayla Wells as the young driver, are charged with dangerous driving causing the death of your much loved younger sister, Nikkita Wells.
3I went on to say and I repeat, it is trite that there are a variety of circumstances that are involved in death on the road cases. However, amendments to the Sentencing Act 1991 (Vic) (‘Sentencing Act’) require one outcome, being imprisonment, unless an accused can overcome the very high hurdle or burden that is set out in s 5(2H) of the Sentencing Act.
4In your case, a sentencing indication was sought and granted on the basis of what was set out in s 5(2H)(c)(ii) of Sentencing Act. I said that that section was satisfied. In doing so, I outlined that the section read:
The offender proves on the balance of probabilities the offender has an impaired mental functioning, that would result in the offender being subject to substantially and materially greater than an ordinary burden or risks of imprisonment.[1]
[1]Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).
5I will say more of this shortly, but at this point I repeat what I said at the sentence indication that, importantly in this case, although it was not decisive, the prosecution took the very considered and in my view responsible view of all the materials, circumstances, and submitted that the test in subsection (c)(ii) was made out. I agree with the views of the parties that that subsection was made out. I did so on the basis of the expert evidence, that your impaired mental functioning would mean that prison would be a substantially greater burden, and there would be an increased risk, especially of deterioration in your impaired mental functioning to the point of suicide.
6In short, I indicated that you were deeply traumatised, and grief stricken; that it was your driving that caused your sister's death. Prison would simply be too much in all the circumstances. I add here, in coming to this conclusion that I did in the sentence indication hearing, I am well-mindful of the Court of Appeal decision in Farmer,[2] which makes it clear that provisions that I have just read set a high hurdle that will not often be overcome. Consequently, there will be harsh, even cruel sentences imposed, that impose imprisonment on offenders. But this is not one of those cases.
[2]Farmer v The Queen [2020] VSCA 140.
7Before turning to the evidence regarding your mental health, I will outline briefly the tragic circumstances that brought about the death of your sister.
8On Sunday morning 17 February 2019, you and your sister Nikkita, together with another friend, decided to go to the popular Sunday market at Caribbean Gardens. You drove with your other friend in the front seat, and your sister in the rear passenger seat. You were 20 years old, and a probationary license holder. Nikkita was 17.
9You drove along Stud Road, and I have viewed the Dash Cam and CCTV footage from various sources, and in my view, the traffic was quite heavy along Stud Road. You were driving at, or around, the speed limit of 80 kilometres an hour in the right-hand lane. There was a lane to your left, and then a lane further to the left that was designated as a bus lane.
10As you headed along Stud Road, ultimately, you would have had to have turned or veered off to the left to get into, or to take the entrance road into Caribbean Gardens. When you were around the area of Lakeside Boulevard, you moved to your left, changing lanes without indicating, and when there was not enough room to safely do so. The driver behind was concerned by this unsafe manoeuvre.
11However, worse was to come, as you almost immediately moved further left into the lane designated as a bus lane. This time, two other cars were driving up the bus lane, in effect, passing lanes of traffic on the inside. These two cars were driven by two friends, unknown to you, who were also heading to Caribbean Gardens. Their earlier driving was revealed by other Dash Cam and CCTV footage as dangerous, both in terms of speed and manoeuvres.
12As you went across the traffic into the bus lane, you failed to see the second of these cars. Your rear panels collided with the front of the other car, causing both of the cars to lose control. Your car careered into a nearby power pole, causing colossal damage, as your car was split in two. Your sister in the rear seat bore the brunt of the impact and died at the scene. The occupants of the other car were luckily unhurt. It was also more or less the case with yourself and the other passenger in your car. Everyone was of course in immediate and deep shock. You could not believe what had happened. Deeply distressed, you tried to help your sister, giving CPR, but sadly, to no avail.
13The law and the courts have, and always will, recognise the sanctity and value of each human life. Causing another person's death by a dangerous act or dangerous driving is inherently serious offending. Punishment that must be imposed is not to be taken as somehow the precise measure of the value of the deceased's life. Their life, here, your younger sister Nikkita, her life was invaluable. She was young, vibrant, and certainly with many of her best years ahead of her.
14You and your family would have shared that, but it is not to be. Yours was a momentary mistake or error in the way you changed lanes, in an episode of otherwise lawful and straightforward driving, along Stud Road to go to the Caribbean Gardens. It is accepted that your level of dangerousness was at the lower end, your moral culpability is in my view, low.
15Before the changes to the Sentencing Act, which require gaol terms unless the very high hurdles I have spoken about are overcome, the circumstances of your offence would most likely have led to a non-custodial penalty on the basis of your very low moral culpability. The appellate authorities have in the past, emphasised the importance of assessing moral culpability in these driving causing death and serious injury cases. Those cases of low moral culpability due to momentary inattention do enliven a wider and more merciful sentencing discretion.
16All that said, I emphasise that all drivers at all times must show care and diligent responsibility to all others on the road; changing lanes when it is not safe to do so on a busy major road can set off a chain of catastrophe, leading as it did here to lifelong grief.
17Turning to your personal circumstances, and in particular those aspects of your mental health that are relevant to s 5(2H)(c)(ii) of the Sentencing Act. As noted, you were 20 years old at the time, now 22. Of course, the sentencing principles of giving emphasis to rehabilitation if the offender is young are in play in your case. That is especially the case, given that you have no prior offending.
18I do not need to recite all that was said by the Court of Appeal in the well known cases of R v Mills,[3] and Azzopardi v The Queen;[4] my task rather is to ensure I have applied those principles. That, in short, rehabilitation of a young first offender is in the community's interest and thereby allows a court to impose a sentence that focusses on rehabilitation, rather than the blunt instrument of incarceration to serve the purposes of retribution or denunciation or deterrence.
[3]R v Mills [1998] 4 VR 235.
[4]Azzopardi v The Queen [2011] VSCA 372.
19However, I am also mindful that our Court of Appeal has made clear that these tragic death on the road cases are too often committed by the young who have to that point, been of good character. So, while rehabilitation is a prominent consideration, general deterrence does not disappear, far from it.
20As to other aspects of your personal circumstances, you were the middle child of three. Your parents separated when you were in primary school. You have remained very close to your mother, whose efforts to raise the children on her own with much care and love, helped you as a teenager – most especially they have helped you now. The support for you is critical, and her stoicism, in the face of such an enormous loss, is remarkable.
21Your older sister has her own problems which add to the family's burdens. You and your mother are heavily involved in assisting your older sister with her younger children. These difficulties with your older sibling all add to the family dynamic and the intensity of your grief, because you and your younger sister were so close, helping each other and your mother in navigating at times hard family up's and down's.
22Your school education was to Year 12. There were difficulties socially from time to time through that period. Your mental health as a teenager was not always strong. Self-esteem and your father's poor relationship with the family and your older sister's problems, and aggressions, caused low or depressed moods, suicidal ideation and self-harm episodes.
23You reported to the medico-legal psychologist in this case, Mr Candlish, that in the month or so before your sister's death, things were on the improve.[5] As a consequence of your sister's death, you have understandably expressed deep and unrelenting feelings of guilt, of not wanting essentially to be the one who survived. You became more readily and more regularly focussed on suicide. Your sleep was significantly affected, with images of the collision and its aftermath constantly intruding. You had some panic attacks.
[5] Psychological Report by Simon Candlish dated 23 January 2022 tendered on the Plea (2 March 2022).
24You were unable to face counselling or psychological sessions, as the reliving of the experience was too much. Thankfully, that has now evolved, and you have taken steps for psychological counselling with a private provider.
25In your late teens, a relationship that you had quickly progressed into physical and mental aggression and abuse, further impacting on your self-esteem. As I understand it, you now have a supportive partner.
26Importantly, you have been able to maintain your tertiary studies in recent years in nursing. You have a nursing diploma and want to advance to securing registration and employment as a nurse. You are motivated to giving back to the community as a response to the loss that your actions caused. You remain very involved in the care of your young niece and nephew.
27Overall, you are a young woman with potential, who has even before this catastrophe, battled with and were overcoming significant mental health issues. The grief caused by the consequences of your dangerous driving has added another, very weighty, level of difficulty for you.
28The expert psychological report reveals the full impact of your post traumatic stress and your depressive disorder. Your prognosis is reasonable providing you embark on dedicated psychological treatment. What became clear and indeed, agreed between the prosecution and defence, was that your mental health issues of trauma and depression are at a level of being at an impaired mental functioning, as that term is defined in the Sentencing Act via the Mental Health Act 2014 (Vic). It is accepted and I agree that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment. I am, on the expert evidence and all the circumstances, satisfied of that on the balance of probabilities. As I have said, no one disputes that finding. That finding which means the high hurdle established by s 5(2H) is overcome.
29What needs also to be understood in that context and generally, is that prisons in COVID times are quite simply much more onerous. The necessary precautions and limitations means that isolation and lockdowns and quarantines are more frequent and lengthier. Vocation and rehabilitative programs have been curtailed or limited. Contact and visits from important family and supportive people are more limited and subject to further restrictions depending on particular health scenarios in the whole Corrections system, or at a particular Corrections facility. For a young first offender, the punishment of last resort, prison, is in these days, much more onerous and a daunting prospect.
30A further important matter related to the pandemic is that your plea of guilty at an early point is of enormous utilitarian value. The Court of Appeal in Worboyes,[6] made it clear that the benefit to be accorded a plea of guilty such as yours must be palpably more than in the past. The trial here would have been traumatic, for your family, and for you. Your plea of guilty was important in the whole resolution of what could have been a very complicated trial with causation and co-accused involved. That was all sensibly averted by your plea of guilty. The community and the criminal justice system are the beneficiaries; the response of the courts to that is to consider lower, and in this case, different forms of sentencing.
[6]Worboyes v R [2021] VSCA 169.
31Your plea of guilty is also a powerful indication of your remorse. There are other compelling indications in evidence that you are deeply remorseful. You will be, lifelong.
32As indicated, you are progressing to counselling. With that and with this case over, your prospects of moving on and resuming lawful ways are very good. You are, as has been said, keen to learn, train, and be employed as a nurse. That is encouraging and to your credit. In my view, a Community Corrections order does not need to have any particular rehabilitative programs, given that you have embarked on counselling. Unpaid community work is sufficient in terms of a just and appropriate sentence. It expresses denunciation, deterrence, and just punishment, as well as facilitates your rehabilitation.
33In introducing the regime of the Community Corrections order, the Attorney-General at the time gave emphasis to the benefit of a Community Corrections order in keeping families together. This was given further emphasis in the important decision of Boulton v The Queen.[7] I see that as an important aspect in this case. You will be able to be punished, but have the rehabilitation, psychologically and otherwise. By being around your family and those that are looking after you and those that care for you, and you for them, whilst seeking to advance yourself as a nurse; that is in the community's interest.
[7]Boulton v The Queen [2014] VSCA 342.
34Your counsel went further and submitted that I should impose the Community Corrections order without recording a conviction. The gist of his submission was that the record of the conviction would impact on your employment prospects. This is an aspect of s 8(1)(c) of the Sentencing Act. What is set out in s 8, is that in exercising its discretion whether or not to report a conviction, a court must have regard to:
(a) the nature of the offence;
(b) the character and past history of the offender; and
(c) impact of recording a conviction on an offender's economic or social wellbeing, or on his or her employment prospects.
35It was said on your behalf that this matter as a pending criminal proceeding, had caused difficulties for you already, in getting a foot in the door, as an employee in the health field. There were no specifics, no reference specifically to registration in the future, or what criteria is required or what possible problems you might confront. Of course, in the cases, there are examples of non-conviction for serious offences committed by young offenders and non-convictions were imposed based on impediments that were likely to arise to those young offenders in obtaining professional registration or employment. Candaza is such a case.[8]
[8]DPP v Candaza [2003] VSCA 91.
36However, as the prosecution pointed out in opposing this submission, the nature and seriousness of the offending must be considered in here, a death by dangerous driving is just too serious to permit a non-conviction Community Corrections order. The adverse impact on employment, so it was said by the prosecution was at this point too speculative. Though, as I understand it, even with more direct specific evidence, opposition would be maintained as the seriousness of the offending simply overwhelmed such a consideration.
37A conviction is punishment in and of itself. It is enduring and can have impact on employment. That is understood, especially in the context of a young first offender embarking on a new career. Also important in my consideration though, are general deterrence and denunciation as important sentencing purposes in cases of this kind. Those messages of deterrence cannot be so diluted by a sentence which is merciful being imposed, and then added to by not having the important statement that for this serious crime, so tragically avoidable with due care, that a conviction will not be recorded.
38In my view, it is important for a serious crime, and I repeat one that could have been avoided with due care, there must be a conviction recorded, notwithstanding that in your case, there may be difficulties if you seek a particular profession. It may be harder, or you may have to explain difficult details to regulatory authorities or even to employees. I remain confident that even with the barest explanation, most in the community who learn of this deep tragic case, would be understanding toward you Ms Wells, as you seek employment into the future. But that is for others.
39As I said, at the sentencing indication hearing, this was one mistake, and it does not and ought not define who you are, or what you can contribute into the future. But to properly meet the sentencing purposes of general deterrence and denunciation, as well as by giving significant weight to rehabilitation, the Community Corrections order that I am about to announce will be with conviction.
40The Community Corrections order that I impose is simple enough, but I will explain all the details. So, the sentence that I impose, the charge of dangerous driving causing death is with conviction, a two year Community Corrections order is imposed.
41The one additional condition that is required of you, is that you do 200 hours of unpaid community work in those two years. Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of three years with a minimum of 18 months.
42Now, I need to reasonably quickly, Ms Wells, explain to you what a Community Corrections order expects of you, what those requirements are, and if you say that you consent to the order, then that will be recorded on the document that I sign. That is, that you gave oral consent.
43So, in this case, the Community Corrections order goes for two years. The conditions that apply to everyone on a Community Corrections order, and of course apply to you, are the following. The first is the most important, I am reasonably confident you will get through this, but you need to understand; should you commit any offence that is punishable by imprisonment, it does not matter whether the magistrate imposes such a thing, imprisonment, but if it is punishable by imprisonment, then you breach this Community Corrections order. Almost every offence you can think of is punishable by imprisonment. So just do as you have done before, and since, do not commit any offences. Should you do that, that would breach this, and you come back before me, and the same merciful approach will not be taken.
44The other aspects of Community Corrections order, the standard conditions, are about cooperation. So, you have got to report to the Community Corrections office, I think it is Dandenong, someone will tell me if that is wrong, within two clear working days. You have got to get on the phone to them and start the process. My staff will tell me whether I have got that right.
45The next thing is that you have got to tell them if you change your address or job. You have got to just inform them of that. You have got to tell them if you wish to go interstate, you have to get approval for that. They will no doubt give it to you, but it is any time you go over the border, you’ve just got to tell them you are doing that. Do you understand?
46You have got to receive visits from them and follow all lawful directions. So, those are the matters that apply to everyone. The only special condition that applies to you is you have got to do 200 hours of unpaid community work. Now, that is a burden, because that is the punishment. It is required, but it is not voluntary. It is not a matter of I will do something now, and I will not turn up for my next one, because you know, I will catch up later. That is not how it works. You have got to do it every time; you complete it and be away.
47There will be all sorts of people doing Community Corrections orders. If you do them in group settings and the like, you are committed to lawful ways and your rehabilitation. Do not get wrapped up in anything that you might come across from others at Community Corrections. Just get on with your Community Corrections officers and get this done as soon as possible. Am I right about the place that it has got to be at?
48MR GWYNN: I believe it is Dandenong, Your Honour.
49HIS HONOUR: Dandenong, good. All right, so you have got to be in touch with the people at Dandenong, there is phone numbers on that, and you just have to get in touch with them. They have not assessed you, so they do not know this offending. But you will start that process once I send the order to them later today. So, get on to that within two clear working days, no later than Monday obviously. Now licence, just remind me.
50MR HUTTON: Your Honour, it is a serious motor vehicle offence under s 87E of the Sentencing Act. The mandatory minimum cancellation, or disqualification period I should say is 18 months for s 319 offending.
51HIS HONOUR: Yes. All right. There must be an effect upon your licence, and so the order is that any licence you hold is cancelled and you are disqualified from driving for 18 months. That is the minimum, I do not propose to go any further in excess of that than 18 months.
52MR HUTTON: As the court pleases.
53HIS HONOUR: Keep in mind, driving whilst disqualified is an offence punishable by imprisonment, so that would breach your order. I would be none too happy if that was the process. So, do not drive. All right. Anything else required?
54MR HUTTON: No, Your Honour.
55MR GWYNN: No, thank you, Your Honour.
56HIS HONOUR: Mr Gwynn? No.
57MR GWYNN: No, thank you, Your Honour.
58HIS HONOUR: I will just take a moment to thank counsel for very considerable assistance, these are hard cases; Mr Hutton and Mr Gwynn and your instructors, in sorting out this complicated matter that came over from the Magistrates' Court, and has moved to resolution on all fronts speedily which is to be to the credit of everyone with respect to the current crisis that we are in. But I also thank counsel for their very considerable assistance in the written submissions that were done and oral submissions supplementing that. This was high quality.
59Just got one matter I just will look at before you head away. There is a request from the media to examine both CCTV and Dash Cam footage which I mentioned and have seen and is available. Subject to what you say, it is not footage that is gratuitous or has any aspects of horror about it. It is simply cars, and then very hard to see, but the aftermath of the collision. Any difficulty with that, Mr Hutton?
60MR HUTTON: I do not wish to be heard on that, Your Honour.
61HIS HONOUR: Thank you, Mr ‑ ‑ ‑
62MR GWYNN: Your Honour, I have seen the footage at length during the committal and since, and the actual incident subject to these proceedings is not captured or portrayed.
63HIS HONOUR: No, all right. So, I will allow for the CCTV Dash Cam footage that was provided by the prosecution for examination and as part of this whole process to be made available to the press that are seeking it. Importantly, I say to them, I do not see any need or value in the audio. It is simply the visual that counts. If there is any audio from the drivers of the other cars who are not here to say anything on their own, it was their camera, I can just see no point in playing the audio. It is just the pictures that are sought, if they are played at all. Anything further?
64MR HUTTON: No, Your Honour.
65HIS HONOUR: Thank you. Mr Gwynn?
66MR GWYNN: No, thank you, Your Honour.
67HIS HONOUR: Thank you.
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