Director of Public Prosecutions v White

[2017] VCC 1625

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00439

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WHITE

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 October 2017
CASE MAY BE CITED AS:	DPP v WHITE
MEDIUM NEUTRAL CITATION:	[2017] VCC 1625

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr T. Lavery
For the Accused	Mr P. Bourke

HIS HONOUR:

1Nathan White, you were convicted by a jury of the charge of culpable driving.  I find in the factual circumstances of this case that your driving can be categorised as that part of the charge listed under Part (a), that is, that you drove negligently and I do so because of the speed and the reading in relation to your alcohol levels.

2The facts of the case, of course, were recounted to the jury but briefly stated the charge arises out of a fatal motor vehicle collision which occurred on Chisholm Street, Black Hill in Ballarat at approximately 12.03 am on 30 June 2015.  The collision occurred when your vehicle collided with the pedestrian, Patrick Bell, who was then aged 17.  You were travelling at 96 kilometres per hour in a 60 kilometre per hour zone and you had a blood alcohol reading of .101.

3Earlier in the evening you had attended two local hotels where you played pool and drank beer.  You then visited the home of a friend, Tim Molenkamp, where you consumed more alcohol.  You then left those premises and a short time after, not far from his premises, the collision occurred.  You saw the deceased just prior to impact and took evasive action but very unfortunately the right hand corner of the rear of your car collided with him. 

4You have admitted your criminal record which somewhat disturbingly includes two convictions involving driving either affected by alcohol or drugs.  You were issued a traffic infringement notice on 11 April 2009 for exceeding the proscribed alcohol concentration with a reading between .070 and .099.  Your license was cancelled for six months.  On 15 May 2013 at Geelong Magistrates' Court you were convicted of careless driving and failing a drug blood test within three hours of driving.  You were fined $2000 and your license was cancelled for three months.

5Two victim impact statements were tendered.  One from Mr Bell's mother and one from his sister, Shae Bell.  I have read them and taken their contents into account.  Both of them are very moving documents and I will set out briefly what Rovinnia Richardson said.  She said:

"Our hearts, our home and everything about our lives has changed.  It will never be the same.  We have a gaping hole that can't be filled". 

6Further on she said:

"My son had much to live for and he was just finding out the big world and where he wanted to go in life.  That was horribly stolen from him and his family".

7On your behalf Mr Lavery filed written submissions and supplemented them with oral submissions.  He submitted, (1), that you are a 36 year old with a very limited history of offending.  Of course I make the point that it is very relevant history of offending for this type of offence.

8(2), you had a good work history. 

9(3), the loss of contact with your two young daughters will make your imprisonment more onerous.  I have taken that into account.

10(4), you had made voluntary contributions to the community. 

11(5), you have good prospects of rehabilitation.

12(6), you have shown remorse from the time of the collision.  That is a difficult proposition to consider and I assume what he means by that is you have shown remorse for the consequences of your actions.  It is different to the remorse that would have been shown if you had pleaded guilty and thus would have been available for the substantial discounts if you had pleaded guilty.  You are not given an additional sentence for pleading not guilty, it just means that the discount is not available to you.

13(7), he outlined the problems you have had since the collision as is set out in the report of Dr Aaron Cunningham.  Your background is set out in that report and I will not go into it in any detail.  You left home at 17, undertook a panel beating apprenticeship.  You had two children to your ex-wife.  That relationship broke up after some 13 years.  You have had difficulties maintaining access with your children.  You say that your ex-wife doesn’t comply with court orders.  You have been a relationship with your current partner, who has attended court on every day, for about three and a half years.

14You have attended, apparently, something in the order of 13 primary schools but once leaving school you were able to make your way in the panel beating world and have been consistently employed as a panel beater.  You began using cannabis at the age of 15 and since the accident you told Mr Cunningham that you were drinking eight to 12 beers a day.  You told him that your alcohol and cannabis use were motivated by stopping the distressing recollections of the accident.  He said there was no indication of an intellectual disability.  He said you meet the criteria for post-traumatic stress disorder.

15You have distressing recollections of the death of the victim.  He said that there was some indication that you were suffering depression prior to the trauma in the context of the difficulty of accessing your children.  But that would not have affected your mental functioning at the time of the offending.

16You have attempted to manage your distress by abusing alcohol and cannabis.  You currently were not receiving any treatment.  He said you presented with significant remorse for your offending behaviour.  He said that it is likely that exposure to trauma in a prison environment aggravate your own symptoms of trauma.  He said you would benefit from accessing mental health intervention but whilst in custody it would seem you have made a decision not to enlist the services of professional people to assist you with your PTSD.  He opined that you had good prospects of rehabilitation.  Mr Lavery submitted that the PTSD should lessen your moral culpability when I look at the issue of general deterrence.  Mr Bourke referred me to the case of Khoja v R [2014] VSCA 9.

17(8), He submitted that because of the PTSD and other mental health issues you have, your time in prison would be more onerous.

18(9), he submitted that your driving should be categorised at the low end of the sentencing range for culpable driving. 

19(10), he tendered a number of references. I refer to the one from Mix Painting where the writer of that reference, Michael Roberts, outlined the support that you had given to him and his family when his wife was terminally ill with dementia.  He said you were a hard and dedicated worker.

20In sentencing you, I have to consider a range of matters and am required to balance the interest of the community in denouncing criminal conduct, with the interest of the community to seek to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of the behaviour.

21The basic purposes for which a court may impose a sentence are punishment, general deterrence and specific deterrence, denunciation and protection of the community.  In sentencing you, I have to consider a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the effect that your actions have had on the victim and his family.

22General deterrence in my view is the overriding sentencing consideration here.  That is, I have to impose a sentence that tells the community that this type of behaviour will not be tolerated by the courts.  You made a decision to drive, knowing that you had had a substantial amount of alcohol to drink.  You proceeded to drive at a speed of 96 kilometres per hour in a 60 kilometre zone, in a street that you were familiar with.

23When confronted with the presence of Mr Bell on the road, although you took evasive action, it was not enough.  I surmise that if you had been travelling at 60 kilometres and you had been more alert and possibly had less to drink, you should have been able to avoid the collision.

24In relation to the post-traumatic stress disorder that Mr Cunningham has diagnosed in his report, and its effect on general deterrence, the Court of Appeal in the case of Khoja made it clear that the consequences of you being involved in this is your fault, to adopt the words of the Court of Appeal, “the author of your own predicament.”  In my view, the submission that general deterrence should be moderated because of your PTSD in law has no basis. 

25You are precisely the kind of person who may properly be treated as a vehicle for general deterrence in sentencing for this offence.  It is not surprising, given the horror of the consequences of your culpable driving, that there has been the psychological response that has been reported by Dr Cunningham.  Unless you seek professional help whilst in custody to deal with the PTSD, your problems will remain unsolved and will make your time in custody onerous. 

26I think it is unhelpful to categorise your driving to fit it into a category such as less serious, medium serious or most serious.  Such categorisations might in fact trivialise what has happened.  You are to be sentenced based on the fact of the case.  It is sufficient to say, that there have been more or less horrific examples of culpable driving, however, the combination of speed and alcohol is unfortunately a common scenario.  The courts must impose sentences that seek to deter such driving.

27I ask the question how can it be in 2017, that the message about drink driving and speed still has to be told to the community? You have two prior convictions that are relevant and go to the issue of specific deterrence.  How can you not have known about the effect of speed and alcohol and possible consequences?  Taking all those factors in to account ‑ ‑ ‑

28MR BOURKE:  Your Honour, I'm obliged to rise and interrupt you sir.

29HIS HONOUR:  Yes.

30MR BOURKE:  My apologies.  I'm instructed this morning, the criminal record has not been filed, in its original form.

31HIS HONOUR:  Yes.

32MR BOURKE:  And I seek to do that.

33HIS HONOUR:  All right.  It doesn't change it does it?

34MR BOURKE:  No.

35HIS HONOUR:  All right, thank you.

36MR BOURKE:  I wanted to do it before Your Honour actually sentences.

37HIS HONOUR:  Thank you.

38MR BOURKE:  So my apologies to all involved.

39HIS HONOUR:  Thank you.  I have carefully considered all the submissions that your counsel has made and the submissions of the prosecutor and have arrived at the following sentence.

40A charge of culpable driving, I sentence you to a period of imprisonment of ten years.  You are to serve a period of seven years before being eligible for parole.  I declare the time of 41 days that you have already served, to be reckoned to be part of the term of imprisonment that I have just imposed.  Have you got the 464 there now?  You can sit down, thank you Mr White.

41MR BOURKE:  I'm instructed it has been sent to your associate, Your Honour.

42HIS HONOUR: Has it? I make an order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample.  Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances, the making of the order is justified for the following reason, the seriousness of the offending, why the order being made, the order is by consent or not opposed.

43Mr White I will tell you that if when police come around to take that forensic sample, if you decide to resist it, police may use reasonable force to enable that procedure to be conducted.  Any other matters I have to consider?

44MR BOURKE:  Licence disqualification.

45HIS HONOUR:  Yes.  In relation to your licence, I cancel your licence, disqualify you from obtaining a licence for a period of six years.  Any other matters, Mr Lavery?

46MR LAVERY:  No, Your Honour.

47HIS HONOUR:  Thank you.  Can you take Mr White out, thank you.  Adjourn the court until 10.30, thank you.

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