Director of Public Prosecutions v Wells
[2018] VCC 359
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01986
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER WELLS |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 February 2018 |
| DATE OF SENTENCE: | 23 February 2018 |
| CASE MAY BE CITED AS: | DPP v Wells |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 359 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Dalziel | Office of Public Prosecutions |
| For the Offender | Mr T. Cannon |
Pages 1 - 16
HIS HONOUR:
1Alexander Wells, you have pleaded guilty to one charge of dangerous driving causing death and one charge of reckless conduct endangering serious injury. The maximum penalties for these offences are, respectively, a term of imprisonment of ten years and a term of imprisonment of five years.
2You have no prior convictions and no outstanding matters.
3I turn to the circumstances of your offending.
4The prosecution tendered on the plea a summary of prosecution opening, which is Exhibit 3, and I annexe that summary to these reasons. A brief summary of the circumstances are as follows.
5On Saturday 18 February 2017 the parents of Jesse Cooke threw a party to celebrate his 18th birthday. The party was held on their rural property in a shed away from the main house. Behind the shed was a dirt road leading uphill to the back paddock. The back paddock was on ground that had been cleared of trees, but was uneven, and with a marked slope uphill from the left to the right.
6Throughout the afternoon and early evening guests began to arrive. You were one of the guests and you had driven to the party in your Nissan Patrol GU utility work vehicle, the "ute". The vehicle had a roof rack, a frame over the back, a large metal tool box, a portable fridge and a plastic tool box. It was also fitted with off-road tyres and its suspension had been modified to raise the height of the vehicle. These modifications had been carried out before you purchased the vehicle, which came to you, on purchase, with a certificate of roadworthiness.
7Alcohol was being served at the party. At around 7 pm you gave a ride in your ute to eight or so of the young men who had gathered at the party, including Jesse Cooke. You drove up into and around the back paddock before returning to the main shed.
8Shortly thereafter, it seems, another group of youngsters, including young William Grace, got into the back of the ute and you drove again up into the back paddock. There were in total ten youths - young men - on the back tray of your ute, and they were aged between the ages of 16 and 18, and there was one passenger in the cabin. None of those on the tray were wearing harnesses, and some, if not all of them, had been drinking alcohol through the course of the party. Indeed, a few had brought alcoholic drinks with them onto the ute.
9Having reached the end of the dirt road you began to drive in a circle, turning the wheel hard right and accelerating a bit. A number of your passengers described this as an attempt at, or like, a ‘burnout’, or a ‘donut’. Later examination of the scene indicated that the rear wheels of your truck swung out to the left during the first part of the circle manoeuvre.
10Going up the hill the ute maintained traction, but as it came down the slope the right front side of your vehicle lifted and then returned promptly to the ground. You continued to circle and then the driver's side lifted again, but on this occasion the ute rolled over to the left, onto its roof, and finally came to a half upright on its wheels. The youths on the back of the ute were thrown, or jumped off the tray as the ute rolled. Tragically, William Grace had not jumped clear enough, and as the ute rolled the tool box struck him to the head causing catastrophic injuries. Young William died at the scene shortly thereafter.
11Witnesses described you as saying, "No, no, no", and getting out of your cab screaming. You were shortly thereafter observed with your head in your hands saying, "Fuck, no". You apparently said at the time that you had turned too sharply and the vehicle rolled. Five of the other passengers suffered injuries including cuts, grazes, soreness - and for two, I think - brief loss of consciousness.
12Police attended, noting several alcohol cans and bottles near your vehicle. The vehicle was examined. There were no mechanical faults found that would have contributed to the incident. The vehicle was fitted with off-road tyres and a lifted suspension. The raised suspension and larger dimension tyres had the effect of raising the height of the vehicle and changing its centre of gravity. The tyres were not designed to corner aggressively. The combination of these factors meant that if cornered sharply the vehicle was more likely to roll over.
13Subsequent examination of tyre markings on the ground were consistent with a clockwise turning of the vehicle, during which the rear of the vehicle swung out to the left. There was a full circle of marks indicating that a full circle had been performed before the vehicle rolled. There was also an absence of marking from the driver-side front tyre for half of the circle. In other words, this was consistent with weight transfer to the outer passenger-side of the vehicle on the downward side of the hill, and then the rear driver-side wheel lifting as your vehicle commenced to roll. The roll occurred when the downward slope on the hill was greatest. The collision reconstruction calculated the speed of your vehicle immediately before it rolled as between 18 and 21 kilometres an hour.
14When interviewed by police you expressed your sorrow for the family and friends of William Grace. You attributed the rollover to the weight of people on the back whilst on the slope, and that you had felt the vehicle rock, and that it was "like you were on two wheels for ages and then it rolled". You stated that you did not know how many people were on the back, and that "they had just got on when I started driving". You told the officers that you had been driving for two years and that you had had that vehicle for seven or eight months. You had only recently had the vehicle checked and received a certificate of roadworthiness. Importantly, you denied that you were accelerating with wheels spinning when the roll occurred, maintaining that you were turning to go up the track.
15You were aware that at least some of the people who had gotten into the tray had been drinking at the party. You stated to police that you thought it was safe, as they had bars to hold on to on the back, and that if you drove safely all would be fine. You thought you were driving at a safe speed. As you drove off someone said to you, "Don't do anything stupid", to which you responded, "It's all right". You told the police that you had no intention of hurting anyone, but you agreed that it was probably unsafe to have people on the back of the ute when you were driving, as they were not fastened in.
16You admitted that you had consumed alcohol earlier in the day. A preliminary breath test at the scene and a later evidential blood sample both returned negative results, and thus neither alcohol nor drug consumption are aspects of your dangerous driving.
17The matter resolved two months after the filing hearing. The prosecution accept, fairly, that this should be regarded as a plea at the earliest opportunity.
18On the plea there were tendered Victim Impact Statements from William Grace's aunt, Cindy Grace, from his sister, Amber, and from his mum, Donna, and dad, Craig. Cindy, Donna and Craig Grace read out their Victim Impact Statements, and Amber's was read by the learned prosecutor.
19They spoke with a simple eloquence of their loss, of their grief, and of their enduring pain and their inability to comprehend how such a thing could happen. William Grace was a much loved son, brother and nephew. He was a thoughtful, compassionate and reflective young man who had already made his parents proud and had shown them the man that he would have become. I pause here to commend the Grace family for the courage, for the dignity and the grace with which you conducted yourselves throughout the hearing. No one could read or listen to your statements without being extremely moved.
20I turn now to the gravity of your offending.
21In 2008 Parliament increased the maximum penalty for the offence of dangerous driving causing death from five years to ten years’ imprisonment. This must be considered as a mark of how seriously the community regards this offence.
22For driving to be dangerous so as to attract the sanctions of the criminal law, it must be driving that places others at risk over and above the risks that are ordinarily associated with driving a motor vehicle, which in itself is potentially an inherently dangerous thing to be doing. It is the extent of the risk which the driving creates, as well as the extent of the potential harm should that risk materialise, that has to guide my assessment of the dangerousness of your driving and the objective gravity of the offence.
23A factor which informs the seriousness of the offence is the consequence which flowed from it; that a death occurred informs my assessment of the risk that you took. It cannot be ignored, and must never be forgotten, that a young life was lost as a result of your acts. By your plea of guilty to Charge 2, you admit that you foresaw that an appreciable risk of serious injury was a probable consequence of your conduct.
24I must also make an assessment of your moral culpability for this offending. I have regard to the degree to which particular consequences of your acts were, or should have been, foreseen by you. I have to assess both the dangerousness of the driving and your moral culpability by reference to all of the relevant conduct and circumstances as I find them.
25I turn now to the submissions of counsel on the issue of dangerousness.
26It is clear that dangerous driving can encompass a very wide range of conduct. As particulars of dangerous driving, and of recklessness, the learned prosecutor, Ms Dalziel, pointed to:
(i) you drove with ten unrestrained passengers on the tray of your vehicle;
(ii) you were aware that some of the passengers had been consuming alcohol;
(iii) you performed a sharp turn manoeuvre on uneven, unpaved and sloped ground;
(iv) you drove at a speed that was too fast for the conditions, and for the manoeuvre;
(v) you continued to perform a sharp turn manoeuvre after the vehicle had tilted without overturning;
(vi) you performed the manoeuvre in a vehicle which had an increased likelihood of rolling, due to the tyres and due to the changed centre of gravity; and
(vii) several of your passengers warned you as to your driving, and thus the driving occurred in the context of other driving, perceived from time to time, by those present, as being too fast for the conditions.
27In the course of the plea the learned prosecutor clarified that the prosecution case, in essence, was that you were driving too fast at the time of the circle manoeuvre for the conditions, and it was this speed which caused the vehicle to roll. The opinion of passengers as to the appropriateness of your speed prior to your vehicle rolling was a relevant matter, Ms Dalziel submitted, in that I could be satisfied that this was not a momentary lapse in an otherwise appropriate driving, but rather it occurred in the context of driving that was inappropriate for the conditions. Ms Dalziel fairly conceded that I could not be satisfied that you had heard any such warnings as may have been said.
28Ms Dalziel also submitted that, whilst in the end it may be a matter of semantics, it was open to me to find that at the point where your vehicle rolled you were performing a ‘burnout’ or ‘donut’, involving a deliberate attempt to lose traction.
29She submitted that your moral culpability lay in:
(i) your awareness of the number of unharnessed passengers;
(ii) your awareness that some of your passengers had been consuming alcohol (William himself had a post-mortem BAC reading of 0.13);
(iii) the fact that the circle manoeuvre was done for entertainment, or fun; and
(iv) that you had been warned by another person before driving off on the second fateful trip to "not do anything stupid".
30She submitted that your offending fell in the mid-range of seriousness for offences of this kind.
31Your counsel, Mr Johns SC, submitted in reply on your behalf that the relevant particulars of dangerousness were:
(i) driving a vehicle with a number of unsecured passengers; and
(ii) performing a manoeuvre at a speed that was unsuitable for the terrain, given the weight on the back of the vehicle and given the dimensions of the vehicle.
32Mr Johns submitted that your offending should be viewed as falling at the lower end of offending of this kind.
33Mr Johns made clear that it was not accepted that you had heard any warning to slow down. He asserted that there was no material difference in the speed at which you drove on the first or second occasion, that you did not attempt a ‘burnout’ or ‘donut’, and that you had only completed one circle on the second fateful journey. He recognised that your moral culpability must be a critical component of the offending, and of any sentence.
34He submitted that in your case there was an absence of many aggravating features that are often found in such offending, such as high speed, or drug or alcohol intoxication, but he accepted that the mere absence of those kind of factors could not be conclusive of where your offending fell. He submitted that this offending fell towards the lower end of offences of this kind.
35On the plea I was provided with a photo book showing the relevant area of the back paddock and a diagram marking the trajectory of your vehicle tyres. I have also considered the statements of those young men who were your passengers. I cannot find to the requisite criminal standard that at the material time you were performing a burnout or donut, nor that there was a deliberate attempt by you to lose traction.
36However, I find that the dangerousness of your driving lay not only in driving your vehicle with ten unsecured passengers on the tray, but also, and most importantly, in the performing of a circular manoeuvre for the entertainment of those passengers. The circular movement required you to navigate the incline and the decline of the sloped ground. It is not clear to me what speed, if any, would have been a safe speed for such a manoeuvre, but I find that you did so at a speed which, given the weight of the persons on the back of your vehicle and your vehicle’s dimensions, was simply too fast for the terrain. I place your offending in the mid-range of offending for this kind.
37I now turn, Mr Wells, to your personal circumstances.
38You were born on 11 May 1996 in Melbourne, and you were thus 20 at the time of the offending, and you are now 21. You grew up in Warburton East. You have three siblings, which include a twin brother, a younger brother, and a younger sister, Daisy, to whom you are particularly close. You currently live at home. Your father was a carpet layer and your mum devoted her time to bring up the family.
39Mr Wells, everything I have been told about you speaks of the loving family in which you were raised and of the firm foundation of good, hardworking values that you have been given. You left school at the end of Year 10 and after having initially tried carpentry and plastering, you settled on a carpet laying apprenticeship, which you completed. In July 2016 you started your own carpet laying business. You love sport and you were an active sportsman throughout your school years, indeed, you still play senior football for Vermont.
40There was tendered on the plea, Exhibit 9AW, a report from Patrick Newton, clinical and forensic psychologist, and Exhibit 10AW; a report from Bernadette Nugent, a counsellor from the Road Trauma Support Services. You were referred to the Trauma Support Services by an officer, I believe it was Detective Sergeant Van Tunk with the Major Collisions Unit, which was an act of considered professionalism and kindness.
41Between March 2017 and January 2018 you attended 14 sessions. Ms Nugent, your counsellor, identified that whilst you had significant support from your family, friends, and community, you struggled to speak about what had happened.
42Upon presentation you were assessed as experiencing many of the symptoms commensurate with trauma responses; an inability to sleep, feeling overwhelmed and unmotivated, recurring flashbacks, nightmares, avoidance of people and places associated with the event. Ms Nugent states that many of these responses continue to this day. Ms Nugent relates how it was she that encouraged you, against your will and inclination, to go back to the gym and to go back to the sport as a way of looking after your physical and mental health.
43You told Ms Nugent that you did not like attending counselling because the sessions encouraged you to confront what happened and to talk about how you were coping, and to contemplate the possible outcomes of your case. Despite those feelings, you pushed yourself to attend. Her conclusion was:
"It is apparent that the death of William Grace has had a profound long-term impact upon Mr Wells and his family. This tragic incident has become a part of Mr Wells' life story and he has consistently shown intense sadness, regret and remorse for having agreed to take the young people for a ride on the back of his ute the night of the incident, and for the tragic outcome. Mr Wells continues to be traumatised by the incident that occurred and he struggles to accept that it has in fact happened."
44She concluded by recommending that you should continue counselling for as long as was required.
45Mr Patrick Newton, in his report, spoke of you having “expressed a deep and abiding sense of remorse, grief, and guilt for the collision and its effects”, that you think about the deceased man and his family on a daily basis, and that you are “assailed by a crushing sense of responsibility and distress at the death”.
Mr Newton speaks of the traumatic memories that you experience, and your response to it. He says that your internal narrative is darkly self-critical and punitive.46As to your cognitive functioning, Mr Newton recognised the role that anxiety played, however there was no indication of any cognitive impairment, or similar problem. Your moral reasoning , that is, your sense of what is good and right, was not impaired, and your social reasoning, how should you behave in the world, was clear. Mr Newton did not directly assess your intelligence, but estimated it to fall in the average range. Mr Newton observes that your personality remains in the process of forming, a reminder of how young you are, but it is progressing normally and there are no signs of any anti-social or psychopathic personality, rather you express a desire to contribute to society. In short, Mr Wells, you are a decent young man.
47Mr Newton identifies that you are experiencing severe anxiety, that you have suffered a Post-Traumatic Stress Disorder since the accident, and despite the treatment that you have received from Mr Newton, you are still actively symptomatic. You have also developed a panic disorder which has a severe effect upon you, and which will require ongoing treatment. As to your range of depressive symptoms, Mr Newton stated that they are sufficiently intense to meet the criteria for an adjustment disorder with depression. He described the severity of your reaction to these events as being such that you are likely to recover only in the longer term.
48Mr Newton respectfully suggested that the prospects of your experiencing further involvement, that is, you having further involvement with the criminal justice system, will be quite limited. He made this assertion on several grounds:
(i) The impact of the collision upon you has been intensely distressing, and has inspired you to become a cautious driver, now advocating with your friends and colleagues for safety, and for preparation.
(ii) You experience a profound sense of responsibility, guilt, and remorse for the death of young William.
(iii) Your prior adjustment has been without problems.
(iv) In recovering from these events, you enjoy the close ongoing support of your family and a band of close friends.
(v) You have excellent work skills and a stable history of engagement in the workplace.
(vi) You do not abuse drugs, you do not abuse alcohol, and you do not engage in any other behaviours with a high criminogenic risk.
49These matters were also urged upon me by Mr Johns, your counsel, in his submissions. I agree with that conclusion.
50Mr Newton spoke of your vulnerability in light of your Post-Traumatic Stress Disorder, your severe anxiety, and your prominent depression. He concluded that medical treatment for your depressive symptoms should be readily available in a custodial environment, you will find the experience of adjusting to a custodial context to be particularly difficult, and that you would most likely require relatively intense professional support during the initial period. In the long term, you will be vulnerable to both more regular and more intense bouts of severe anxiety and mood disturbance than would a prisoner who did not suffer your pre-existing problems. To this extent the effect upon you of any term of imprisonment was likely to be particularly onerous, that is to say, difficult, harsh, tough.
51I turn now to sentencing principles.
52Principles of general and specific deterrence must be the primary sentencing considerations in cases of this kind. As I look out and see two families that are broken, and hear the stories of two decent men, I reflect upon the fact that offences such as this are so often committed by young men such as yourself, who are of good character and who have good values, and who have no prior or subsequent involvement in the criminal justice system, and with good, if not excellent prospects for rehabilitation. Terms of imprisonment are passed by judges such as I to send a message to other young men, and the message is, quite simply: "Do not act in this risky way, because if you do there will be tragic consequences for those that you kill or for those that you injure, and you will lose your liberty". So that is the message that the courts must send, and so thus general deterrence is of great importance, and your youth or otherwise good character is given relatively less weight. The term of imprisonment, of course, is set by reference to all of the circumstances of a particular case, including your circumstances.
53Ms Dalziel, for the prosecution, submitted that the gravity of your offending should be assessed as falling in mid-range, having regard, in particular, to the nature of the terrain, the lack of protection for your passengers, and their number. I agree with that submission.
54Ms Dalziel provided authorities, Rowev The Queen [2013] VSCA 140 and Stephens v The Queen [2016] VSCA 121, to assist me with the assessment of the gravity of your offending and the application of principle. She cautioned me against too great a reliance upon sentences imposed in many past cases in the light of the discussion in Stephens, whilst making it clear that Stephens was not authority for the proposition that current sentencing practices were wrong.
55Ms Dalziel submitted that there should be a degree of accumulation in the respective sentence imposed on Charges 1 and 2. The totality of your sentence would, of course, need to be considered in determining the degree of cumulation.
56Ms Dalziel fairly accepted that prison would be more burdensome for you in light of the report of Mr Newton and Ms Nugent than for others who were not suffering from your condition, and thus recognised principles of sentencing were engaged.
57Ms Dalziel's submissions were a model of clarity and of prosecutorial fairness, and they were of great assistance to me.
58On your behalf, Mr Johns' primary submission was that the term of imprisonment, which he accepted I must pass, should be moderate. He relied upon the following factors in support of that submission.
59He submitted that your offending fell towards the lower end of the range due to the absence of aggravating features such as speed, drugs or alcohol. As stated above, I find that your offending falls in the mid-range.
60He relied upon your remorse, which he described as deep, genuine and appropriate. I accept that description, Mr Wells, without hesitation, and I further accept that you are truly remorseful, not for the situation that you now find yourself in, but for the pain, the grief and the loss that you have inflicted upon the family of young William.
61He pointed to your plea of guilty, which was entered at the earliest opportunity. This early plea attracts a utilitarian benefit in recognition of the saving to the community, witnesses, and to victims, of the expense and trauma of a trial, but it is also that early plea of guilty which is indicative of your remorse. I again accept, unhesitatingly, that submission, and give full weight to it and reflect it in the sentence that I pass.
62He pointed to your excellent prospects of rehabilitation given your remorse and contrition, your strong family support, solid work history and prospects, the absence of prior or subsequent matters, the degree and extent of your engagement with your therapeutic clinicians, and the matters contained in the reference material, all of which I have read, from your family and your friends. It is my view that you will not trouble the courts again.
63He also pointed to your relative youth and your vulnerability as a young man in an adult prison for the first time, and with your current traumatic and oppressive disorders. Again, this I accept. He pointed to the accepted fact that prison will be more burdensome for you in the light of those disorders
64Lastly, Mr Johns submitted that there should be no cumulation.
65Mr Johns' submissions were also of great assistance.
66Mr Wells, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is, I must deter others from behaving as you did on this fateful evening in February of last year. I see no need to deter you from repeating your behaviour. I am confident that you are not going to trouble the courts again. I must express the community's denunciation of your conduct, and I shall promote, if possible, your rehabilitation. I must take into account the effect that your crime has had upon your victims, and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence that you have committed, and to the maximum penalty imposed by Parliament. I must try to balance your personal circumstances with the circumstances of your offending.
67To the Grace family, I am conscious that no sentence I pass can bring William Grace back to life. No sentence that I pass is intended, in any way, to compensate you for that which you, as a mother and father, sister and aunt, have lost.
68In this case, Mr Wells, principles of general deterrence and denunciation are the primary sentencing considerations, but I give full effect to all of the mitigatory factors that have been urged upon me. However, the Court of Appeal has made it clear that for your offending, there is no alternative to an immediate term of imprisonment. Had I been able, I would have considered a disposition within the youth justice system. Given that you had turned 21 at the time of the plea that was not an option to me, however, Mr Wells, the combination of your particular circumstances, that is, your plea of guilty, your genuine remorse and contrition, your relative youth, your vulnerability in an adult prison, your traumatic disorders that will make prison more burdensome to you, the young man that you were at the time of the offending, and the young man that you still have the capacity to be, I am able to adopt an exceptional course and impose both a lesser sentence than I would otherwise have done, and with it a shorter non-parole period.
69On Charge 1, dangerous driving causing death, I sentence you to a term of imprisonment of two years and eight months.
70On Charge 2, reckless conduct endangering serious injury, I sentence you to a term of imprisonment of 12 months.
71I order that four months of the sentence on Charge 2 run cumulative to the sentence on Charge 1.
72This makes a total effective sentence of three years' imprisonment. I set a non-parole period of 18 months.
73Pursuant to s.89(1) of the Sentencing Act, your licence is cancelled and you are disqualified from obtaining a licence for a period of two years. Ms Dalziel, there was no s.51 cancellation of the licence before?
74MS DALZIEL: There was not, Your Honour.
75HIS HONOUR: Thank you, Ms Dalziel.
76Pursuant to s.6AAA, had you not pleaded guilty, you would have been sentenced to a total term of imprisonment of four years and six months with a non-parole period of three years.
77Now, Ms Dalziel, I do not propose, in the light of this particular term, to make the forensic order.
78MS DALZIEL: May it please the court.
79HIS HONOUR: To the Grace family, I thank you again for the dignity that you have shown throughout this. This is a tragedy, and if a message can go out and young men do not behave as you have done, then perhaps there has been some purpose to it all.
80Ms Dalziel and Mr Cannon, can I thank you for your assistance. Now, before I rise; custody management issues, Mr Cannon?
81MR CANNON: Just in relation to the assessment for psychological aspects.
82HIS HONOUR: Yes, I have spoken to Corrections. Corrections will have my sentencing remarks by Monday. I know that Corrections will note that and my associate will be in touch with them to help that transition to be as smooth as possible.
83MR CANNON: Thank you, sir.
84HIS HONOUR: So hopefully I've covered the matters that can be covered at this stage. Yes, all right, can you take him down please? Thank you, Mr Wells. Mr Cannon, Ms Dalziel, I thank you for your assistance in this matter.
85MS DALZIEL: May it please, Your Honour.
‑ ‑ ‑
Annexure 1
| IN THE COUNTY COURT OF VICTORIA | Court Reference: CR-17-01986 |
| AT MELBOURNE | Indictment No: H12048286 |
| (CRIMINAL DIVISION) |
THE DIRECTOR OF PUBLIC PROSECUTIONS
v
ALEXANDER WELLS
PROSECUTION OPENING ON PLEA
Date of document: 10th January 2018 Filed on behalf of: The Director of Public Prosecutions Prepared by:
JOHN CAIN
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000
Solicitor’s code:
Telephone:
Direct:
Reference:
Outline of Facts
1. In the afternoon and evening of Saturday 18 February 2017 a group of people gathered at a property owned by the parents of Jesse Cook, to celebrate his 18th birthday. One of these young men was the accused, Alexander Wells. The group congregated at a shed, away from the house. Many of them were drinking alcohol, including the Accused and William (Will) Grace, who was 16 years old.
2. Mr Wells had a Nissan Patrol GU utility, with a roof-rack, a frame over the back portion, a tray on the back which had affixed to it a large metal tool box behind the driver, a smaller plastic tool box at the front of the tray, and a portable fridge between the back of the metal tool box and the rear of the tray.[1] The ute was also fitted with off road tyres, and its suspension was modified to raise the height of the vehicle.
[1] See photos 13-16; Collette 51, Irwin 55
3. At around 7.00 pm eight (8) or so of the youths went for a ride on Mr Wells’ ute, up into the back paddock.[2] Many of them were drinking, but Mr Wells was not, at that time. They were having fun, enjoying the bouncing of the ute over rough patches.[3] The “back paddock” area is a cleared area beyond the shed, reached by a dirt road going up-hill beyond the shed.[4] The ground is cleared of trees, but uneven, and with a noticeable slope up-hill from left to right, as the area is approached by the dirt road.[5]
[2] Kealy 41[6]; Beard 67
[3] Cook 81; Collette 52
[4] Cosham 32
[5] Photos 1-8
4. Some present for this drive state that Mr Wells was not driving too fast or “doing anything silly”,[6] others thought he was driving too fast at times.[7] Joel Smith states that Jack Collette warned Mr Wells that he had to slow down, or the ute would roll, and that Mr Wells responded “I will never roll this thing.”[8] Mr Collette does not mention this in his statement. As to this trip he states “on the first drive Alex was driving fast to get up the hill but otherwise it was ok”.[9] Mitchell Dezylva states that a few times when the ute bounced over a bump people called out for Mr Wells to slow down, but the music was loud and it did not seem that Mr Wells heard or took any notice of this.[10]
[6] Kealy 41[7]; Slattery 47; Wiltshire 63; Harris 74-75; Dolan 85
[7] Smith 71; Beard 67; Collette 52; Dezylva 77
[8] Smith 71
[9] Collette 52
[10] Dezylva 77
5. Jesse Cook got off the ute when they got back to the shed, as did some of the others. Jesse Cook told Mr Wells that he did not think he (Mr Wells) should go again, as did another person.[11] Some minutes before 7.30 pm Mr Wells drove off again up into the back paddock, with a new passenger in the front seat, Daniel Cosham (17 years old), and 10 people on the rear tray of the ute. These were:
[11] Cook 81
5.1. Will Grace (16 years old) – sitting on the metal tool box[12]
[12] Slattery 47, 50; Irwin 56; Wiltshire 65
5.2. Bradley Saxon (18 years old) – on the toolbox, next to Will Grace[13]
[13] Saxon 60
5.3. Jayden Wiltshire (19 years old) – on the tray
5.4. Jake Wall – on the tray[14]
[14] Hunt 104
5.5. Mitchell Dezylva (17 years old) – on the tray
5.6. Jeremy Irwin (18 years old) – sitting on the roof rack, then large tool box behind the driver[15]
[15] Irwin 56; Smith 71
5.7. Joel Smith (17 years old) – sitting on the plastic tool box[16]
5.8. Jack Collette (17 years old) – on the tray[17]
5.9. Reine Slattery (17 years old) –at the rear of the tray[18][16] Slattery 47, 50; Irwin 58; Smith 71
[17] Collette 52
[18] Slattery 47, 50; Irwin 58
5.10. Matthew Kealy (17 years old) – on the tray[19]
[19] Kealy 42[9]
6. As they were driving off Daniel Cosham heard someone call out “that’s not a good idea” and “don’t be stupid”. Mr Cosham says that Mr Wells was driving pretty slowly up the hill. The stereo was on but not too loud. [20] Mitchell Dezylva considered that Mr Wells was driving faster this trip, than on the first.[21] Jayden Wiltshire states that on this second drive Mr Wells was initially driving faster, too fast for the conditions. He says that he and others told Mr Wells to slow down, which Mr Wells did do some degree. He also states that “everyone” was urging Mr Wells to do a skid or something similar, and it was after this that Mr Wells started to turn the ute in a hard right.[22]
[20] Cosham 32
[21] Dezylva 78
[22] Wiltshire 63
7. After the ute had reached the end of the dirt road, in the cleared area, Mr Wells began to drive in a circle, turning the wheel hard right and accelerating a bit. A number of the passengers describe this as an attempt at or like a “burn out” [23] or a “donut”.[24] Examination of the scene later indicated that the rear wheels of the truck swung out to the left during the first part of this circle manoeuvre.
[23] Cosham 33 Hunt 105; Collette 52, Hunt 104; Saxon 59; Dezylva 78
[24] Slattery 47 – 48; Wiltshire 63, Hunt 102
8. The ute maintained traction while going up the hill, but as the vehicle continued the circle down the slope the right front side of the car lifted, and then returned to the ground. Mr Wells continued the circle and then the driver’s side lifted again and the ute rolled over to the left, onto the roof and finally came to a halt upright on its wheels again.[25]
[25] Cosham 33; Kealy 42; Slattery 47-48; Collette 52; Saxon 59; Wiltshire 63
9. Mr Slattery and Mr Wiltshire describes the ute doing one full circle during which they felt the ute lurch or tilt outwards, towards the passenger side, and then the ute start to do a second circle. Part of the way into this circle the ute tilted again to the passenger side, and then rolled over. This recollection is consistent with the tyre marks left at the scene.
10. The youths on the back of the ute were thrown[26] or jumped off[27] the tray as the ute rolled. Joel Smith landed on the ground near William Grace’s feet, and as the ute rolled he saw the tool-box on the back of the ute hit Will Grace to the head.[28]
[26] Kealy, Collette, Saxon, Wiltshire, Smith & Dezylva
[27] Slattery & Irwin
[28] Smith 71
11. Jack Collette was thrown from the tray as the ute rolled, and was able to get out of the way of the rolling vehicle.[29] Jeremy Irwin, who had been sitting on the tool box with William Grace, managed to jump clear when he felt the ute begin to roll.[30]
[29] Collette 52
[30] Irwin 56
12. Matthew Kealy was thrown off the tray as the vehicle rolled, he landed on his back and felt dazed. He saw Will Grace lying on his back next to him, to his right, and got up and ran to help him.[31] Mr Kealy felt a heartbeat from Will Grace initially but a short time later this was absent.[32] Mr Cosham, seated in the cabin of the ute, saw Mr Wells look out his window and swear and say “no, no, no”. Mr Wells also got out, a witness described him screaming.[33]
[31] Kealy 42[11]-[12]
[32] Kealy 43[12]-[13]
[33] Collette 52
13. Mr Cosham got out and ran to assist Will Grace, who was on the ground, unmoving, in a pool of blood.[34] Several of the youths called 000 and rendered assistance to Will Grace until the ambulance arrived. The first of these calls was notified to police at 7.29 pm. The ambulance officers attempted to aid Mr Grace but it was determined that the injuries were not survivable and that he had died.
[34] Cosham 33
14. When Mr Cosham returned to the scene, having shown the ambulance where to go, he noticed Mr Wells sitting away from the crash site, looking at his phone.[35] The various youths had scattered about the area.[36] Other witnesses describes Mr Wells as sitting with his head in his hands, really upset and saying “fuck no.”[37] One of the boys present spoke to Mr Wells and asked him what had happened. Mr Wells said that he turned too sharply and the vehicle rolled.[38]
[35] Cosham 33.
[36] Kealy 43
[37] Beard 68; Smith 72
[38] Dolan 86
Post Mortem William Grace
15. William Grace’s body was examined by a forensic pathologist. It was determined that he had died as a result of crush injuries to his head. He died very shortly after the incident. He had a BAC of 0.13g/100mL.[39]
[39] 150
Injuries to other passengers
16. A number of the other passengers on the tray of the ute suffered injuries as a result of the rolling of the vehicle:
16.1. Jack Collette – cuts and grazes to arm[40]
[40] Collette 53
16.2. Jayden Wiltshire – sore right leg, grazed lower back and a brief loss of consciousness[41]
[41] Wiltshire 64
16.3. Bradley Saxon – brief loss of consciousness, sore shoulder not requiring treatment[42]
[42] Saxon 60
16.4. Joel Smith – injured left thumb, cut to heel of left foot[43]
[43] Smith 72
16.5. Mitchell Dezylva – sore neck and left foot[44]
[44] Dezylva 78
Examination of Scene and Reconstruction
17. Police who attended the scene noted several alcohol cans and bottles near the vehicle, consistent with the statements of witnesses that they had been drinking alcohol. Measurements and photographs were taken.
18. The accused’s vehicle was examined by a mechanic. It had no mechanical faults that would have contributed to the incident. The vehicle was fitted with off road tyres and had a lifted suspension, both of which were outside acceptable roadworthy limits. The raised suspension and larger dimension tyres raised the height of the vehicle, changing the centre of gravity. Furthermore, the tyres, whilst they would work best off road, were not designed to corner aggressively. The combination of these factors lead to the result that if cornered aggressively the vehicle was more likely to roll over.[45]
[45] Gardner 131, Hardiman 139
19. Tyre markings on the ground at the scene were consistent with a clockwise turning of the vehicle during which the rear of the vehicle swung out to the left.[46] There was a full circle of marks, indicating that a full circle had been performed before the vehicle rolled. There was also an absence of markings from the driver’s side front tyre for half of the circle, consistent with weight transfer to the outer part of the vehicle on the downward side of the hill, then the driver’s side rear wheel lifted as the vehicle commenced to roll. The roll occurred where the downward slope on the hill was the greatest.[47]
[46] Hardiman 137
[47] Hardiman 138-139
20. The collision reconstruction calculated the speed of the vehicle immediately before it rolled as between 18 km/h and 21 km/h.[48]
[48] Hardiman 138
Record of Interview
21. The Accused was interviewed by police. He expressed his sorrow for the family and friends of Will Grace.[49] He attributed the roll-over to the weight of people on the back, whilst on a slope. He felt the vehicle rock and it felt like he was on two wheels for “ages” then it rolled.[50] He did not know how many people were on the back, they had just got on when he started driving.[51] He had been driving for two years, and had had that vehicle for seven to eight months.[52] He had recently had the vehicle checked for roadworthiness and had received a certificate, there were no issues with his wheels or suspension.[53]
[49] RoI Q&A 28
[50] RoI Q&A 63 - 70
[51] RoI Q&A 86-89
[52] RoI Q&A 179-182
[53] RoI Q&A 186 - 201
22. He also told police that the vehicle rolled when he was turning to go up a track, and that the circle of wheel marks had been caused earlier.[54] He denied that he was accelerating with wheels spinning when the roll happened, maintaining that he had just been turning to go up the track.[55]
[54] RoI Q&A 221
[55] RoI Q&A 229 236, 251 - 257
23. He was aware that at least some of the people who got onto the tray had been drinking at the party.[56] He thought it was safe as they had bars to hold onto on the back, and that if he drove safely it would be fine. He thought he was driving at a safe speed.[57] He agreed that as he drove off someone said to him “don’t do anything stupid” to which he responded “it’s all right.”[58]
[56] RoI Q&A 329-333
[57] RoI Q&A 336 - 337
[58] RoI Q&A 339 - 341
24. He had no intention of hurting anyone but agreed that it was probably unsafe to have people on the back of the ute when he was driving, as they were not fastened in.[59] He accepted there was a risk involved but said “there’s always a risk factor I guess with a lot of things, too.”[60] He was aware he was supposed to be at zero BAC, but considered that he was not affected by alcohol at all – he felt “pretty fine”.[61]
[59] RoI Q&A 355 - 356
[60] RoI Q&A 361 - 362
[61] RoI Q&A 363 – 372, 384
25. Several witnesses describe seeing Mr Wells drinking alcohol,[62] and when he was spoken to by police after the incident he admitted that he had consumed two cans of Jack Daniels[63], the last drink being around half an hour before.[64] He gave a sample of breath for a preliminary breath test at 8.14 pm at the scene, with a negative result, and a sample of his blood taken at 9.55 pm was tested it returned a 0 BAC reading, and so it is not alleged that alcohol or drug consumption was one of the aspects of the dangerous driving.
[62] For example, Wiltshire 63, Collette 52. Irwin 55
[63] RoI Q&A 108-110
[64] Firns 93, RoI Q&A 39 – 42, 293
Particulars of Dangerous Driving & Reckless Conduct
26. The matters that the Prosecution rely upon to establish that the driving was dangerous to the public having regard to all the circumstances are that Mr Wells:
26.1. Drove with ten (10) unrestrained passengers on the tray of the vehicle;
26.2. Was aware that some of the passengers on the tray had been consuming alcohol;
26.3. Performed a sharp turn manoeuvre on uneven, unpaved and sloped ground;
26.4. Drove at a speed which was too fast for the conditions and manoeuvre;
26.5. Continuing to perform the sharp turn manoeuvre after the vehicle had tilted without overturning; and
26.6. Performed these manoeuvre in a vehicle which had an increased likelihood of rolling, due to the tyres and changed centre of gravity.
27. The matters which found the charge of reckless conduct endangering serious injury are the same.
Other Matters
28. Maximum Penalties
28.1. Dangerous Driving Causing Death – Crimes Act 1958 (Vic) s319(1): Level 5 imprisonment (10 years)
28.2. Conduct Endangering Persons – Crimes Act 1958 (Vic) s23: Level 6 imprisonment (5 years).
29. PSD
29.1. Nil.
30. Licence Order
30.1. The Sentencing Act 1991 requires for the cancellation of the Accused’s licence for not less than 18 months. Dangerous driving causing death is a “serious motor vehicle offence” as defined in s87P. Section 89(1) requires that upon a finding of guilt for a “serious motor vehicle offence” the offender’s licence be cancelled and he be disqualified from obtaining a licence for the period ordered. Section 89(2)(a) requires that the minimum period of disqualification be 18 months.
31. Forensic Sample
A Forensic sample pursuant to s.464 ZF of the Crimes Act 1958 is sought.
Frances Dalziel
Crown Prosecutor
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