Director of Public Prosecutions v White

[2022] VCC 321

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00423

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WHITE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Retrial 26 November – 13 December 2021  Plea  22 February 2022
DATE OF SENTENCE:	11 March 2022
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2022] VCC 321

REASONS FOR SENTENCE

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Subject:  Dangerous driving causing death. 

Sentence: 904 days imprisonment   904 days declared

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan
For the Accused	Mr P. Skehan

HIS HONOUR:

1Nathan White, after a retrial at the Ballarat County Court in November and December 2021, you have been found guilty by a jury of one charge of dangerous driving causing death. 

2The maximum penalty for this offence is imprisonment for 10 years.  At the time that you offended the offence of dangerous driving causing death was not a Category 2 offence.  That means that at the time you committed this offence the sentencing legislation did not compel the imposition of a term of imprisonment.

3The jury’s verdict was handed down on the 13 December 2021.  At the request of your counsel, Mr Skehan, I adjourned the plea in mitigation of sentence to Melbourne on 22 February 2022, and I ordered that your bail be extended on condition that you not drive a motor vehicle.  You have remained on bail since and you now fall to be sentenced.

4This has become a case where, in my judgement, exceptional circumstances exist that warrant a sentence that does not result in you being returned to prison.

5At approximately 12.03 am on 30 June 2015 you were driving your blue
1995 Holden VS Commodore sedan when it collided with a pedestrian, Patrick Bell, on Chisholm Street in Black Hill, a suburb of Ballarat. It was a cool, clear night, the road surface was dry and traffic was light. The street was lit by overhead street lighting.

6A preliminary breath test taken at 12.17 at the scene showed you had a blood alcohol reading of possibly 0.09.  An evidentiary breath test conducted about an hour and a half after the collision revealed you had a blood alcohol level at that time of 0.101.  You did not challenge the evidence led by the prosecution as to your blood alcohol content or the fact that your ability to drive a motor vehicle would have been impaired by the amount of alcohol in your bloodstream. The evidence clearly established that you had a blood alcohol level at the time of the collision approaching 0.1, or about twice the legal limit.

7Dr Janelle Hardiman is an accident reconstructionist who was called by the prosecution.  She inspected the scene of the collision in the early hours of the morning and she carried out skid tests to calculate the speed of your vehicle immediately before the collision. She estimated that your vehicle was travelling at a speed of 96 kilometres per hour at the point of collision which was in a 60 kilometres per hour speed zone. 

8Dr Richardson is also an accident reconstructionist who was called on your behalf to give evidence, which was critical of Dr Hardiman’s opinions and the methodology she used to calculate your speed.  Dr Richardson was most critical of the finding of Dr Hardiman, that a mark which appeared on the roadway was a yaw mark.  This mark had formed the basis for the findings and evidence of Dr Hardiman.  Dr Richardson said the mark identified as a yaw mark lacked, as a feature, what are called striations.  He said Dr Hardiman’s findings were wrong.  He said you could have been travelling at a speed between 55 kilometres per hour and 96 kilometres per hour at the point of collision.

9In my opinion, the jury was entitled to find that prior to the collision with Patrick Bell, you were driving too fast in all the circumstances, and that your ability to drive was affected because you had been drinking.  It was a combination of these factors that caused you to overreact and lose control of your car and collide with Patrick Bell. At the end of the evidence that was the way the prosecution put its case.

10Earlier in the evening you had been drinking with friends whilst playing competition billiards at a hotel and at a friend’s house.   In the minutes before the collision you and a friend both left another friend’s house in separate vehicles and travelled a short distance to where the collision occurred in Chisholm Street.  Prior to the collision location, and as Chisholm St passes Black Hill Primary School, Chisholm Street travels uphill and curves to the left as it crests.  It was on exiting the curve and cresting the hill where the road levels out that Patrick Bell was a pedestrian on the road and attempting to cross it from right to left, taking him across the path of your vehicle.

11Whilst I accept that you may have been surprised by the presence of Patrick Bell in the middle of the road at that time of night, you were in a built-up area where many people live, and Patrick was quite entitled to cross the road where he did.  Pedestrians must be able to expect all drivers to drive safely and within the law.

12You saw Patrick Bell but it was too late.  You swerved to avoid colliding with him but you immediately lost control of your vehicle, which rotated in an anticlockwise direction. As your vehicle rotated the rear of the vehicle struck Patrick Bell, lifting him up onto the boot area of your vehicle and throwing him across the roadway.  He came to rest in the driveway of some units on the northern side of the roadway.  Sadly, he soon after died at the Ballarat Hospital from the multiple injuries he sustained.

13Photographs of the scene depict the extensive damage to your vehicle.  Your vehicle was later mechanically inspected and there were no faults identified that would have caused or contributed to the collision.

14As I said earlier, the prosecution case, which must be assumed to have been accepted by the jury, was that your driving was dangerous, being in a combination of excessive speed in the circumstances, combined with a blood alcohol content in excess of the legal limit.  This combination caused the collision which resulted in the death of Patrick Bell. 

15In my judgement, this is a mid-range case of dangerous driving causing death for which I regard your moral culpability for the cause of this collision as being high.

16After the collision occurred you and others went to Patrick Bell and rendered assistance and called 000.  The 000 call was played to the jury, in which you could be heard to be doing everything you could to assist Patrick Bell, and you repeatedly expressed remorse for what you had done.  I will return to the issue of your remorse later, but there is no more telling evidence of your immediate remorse than what is recorded on the 000 call.

17As can be seen, you fall to be sentenced more than six and a half years after the collision that caused the death of Patrick Bell.  There has been long delay in having the charges arising from your offending finalised.  None of that delay has been of your making.

18You were charged with culpable driving causing death, alternatively, dangerous driving causing death, and you were tried on these charges at the Ballarat County Court before another judge in September 2017 ('the first trial').  That was 27 months after the offending. 

19At the first trial you were convicted of the more serious charge of culpable driving causing death, which has a maximum penalty of 20 years' imprisonment.  It is a far more serious offence, as may be seen from the fact that it carries a maximum penalty double the offence for which you have now been convicted of.  The sentencing judge, after the first trial, sentenced you on the
31 October 2017 to a total effective sentence of 10 years' imprisonment with a non-parole period of seven years.

20You appealed that conviction and sentence.  On the 6 March 2020 (two and a half years after you were sentenced) the Court of Appeal upheld your appeal and overturned your conviction for culpable driving causing death.  It ordered a retrial, which eventually took place before me at the Ballarat sittings in November/December 2021.  The retrial had to be delayed on two occasions because of the COVID-19 pandemic, which put a stop to the Court being able to conduct jury trials.  None of this delay can, nor should be, attributed in any way to you, but you have had this matter hanging over your head now for almost seven years, during which your life has been put on hold.  More than two and a half years of that time was spent in prison.

21On the retrial you were again charged on an indictment charging culpable driving causing death as the principal offence with the lesser offence of dangerous driving causing death as alternative Charge 2.  The jury on the retrial acquitted you of the principal charge and convicted you of the lesser alternative charge.

22Following your conviction and sentence at the first trial you have served
904 days' imprisonment, equating to just over two and a half years' imprisonment.

23After the Court of Appeal ordered a retrial there were a number of informal discussions between counsel and the OPP to resolve the matter without a trial. 

24On 25 March 2020 you instructed your then counsel, Mr Howson, that you would plead guilty to the lesser offence of dangerous driving causing death.
Mr Howson did commence discussions with the OPP on the basis that you would plead guilty to dangerous driving causing death if the prosecution conceded that time then already served in prison by you of 904 days was within the appropriate sentencing range.  Those discussions went nowhere.  I assume the prosecution would not accede to a guilty plea by you on this basis.

25On 10 September 2020 your solicitor told the court at a mention that pending a report from an expert about blood alcohol content, that if the prosecution would accept a plea of guilty to the lesser charge of dangerous driving causing death, that you would plead guilty to that charge.  Although this was in open court, the prosecution did nothing.

26By pleading guilty you would have acknowledged responsibility for your offending and a plea of guilty would have evidenced your already expressed remorse.  It would have saved the time and costs of a trial.  Importantly, the family and friends of Patrick Bell may have been comforted by the fact you had pleaded guilty and accepted responsibility for the offending and your plea would have saved them the agony of having to sit through another trial, and with it the possibility of a total acquittal.  As it transpired, Patrick Bell’s mother was in court for every day of the trial.  This must have been very difficult for her, especially given it took place more than six years after the tragic death of her son.

27In May 2021 your counsel sent an email to the OPP again outlining that you would plead guilty to the lesser charge of dangerous driving causing death if the prosecution conceded that time already served was within the appropriate sentencing range.  Regrettably, no concession was ever forthcoming.  That appears to have remained the position in the result that a further trial of the principal charge was held and which resulted in you being eventually convicted of the lesser charge of dangerous driving causing death, the very charge you had indicated you would plead guilty to.

28In discussions between counsel immediately before trial, your counsel was told not to bother putting in writing any offer to plead guilty to the charge of dangerous driving causing death.  It may be inferred the prosecution was determined to press on with the principal charge of culpable driving causing death notwithstanding that it had notice of expert evidence to be called on your behalf that put into serious question the calculation of your speed immediately before impact, by Dr Hardiman.

29It needs to be made clear, I think, that whilst there is no definite record of all discussions held between counsel, the Court was definitely told by your solicitor, at least on the 10 September 2020, that you were prepared to plead guilty to the charge you have now been convicted of.  That offer was made about six months into the pandemic and just after the appeal.  Since that time the workload and the backlog of the court has increased dramatically.  Your offer to plead guilty to dangerous driving causing death was a good offer, in my opinion, that should have been grasped by the prosecution with both hands.  Instead, nothing appears to have been done.  Nothing.  The matter appears to have been allowed to drift without anyone from the prosecution making a real effort to resolve the charges on what, in my view, should have been an obvious and sensible basis.  That is especially so given you had already served
904 days' pre-sentence detention and the delay not caused by you.  In the meantime your life has been put on hold, the family of Patrick Bell has needlessly had to endure a retrial and I hesitate to guess the total cost in dollar terms to the public purse.  Cases cannot be allowed to simply drift along in this way.  Real lives are affected by delay.  There is needless cost incurred. 

30It is in these circumstances of lengthy delay, none of which can be attributable to you, that you now fall for re-sentencing at a time approaching seven years after the offending.  Depending on the circumstances, delay can be a powerful mitigatory factor in sentencing.  The principles relevant to delay in sentencing were again considered by the Court of Appeal in this State as recently as last Monday.  See Mackie v The Queen [2022] VSCA 28 and the cases cited therein.

31I turn to other relevant matters.

32I received into evidence two victim impact statements from Rovinia Richardson, the mother of Patrick Bell.  One was prepared after the trial in 2017, and the other for the purposes of this sentencing.  I also received two victim impact statements from Shae Bell, Patrick’s sister.  Again, one was prepared after the trial in 2017 and the other for the purposes of this sentencing.  I also received victim impact statements from friends, Michelle Emmett and Natalie Borthwick.

33Those lengthy victim impact statements were read to the court. They speak in a profound way to the impact which your offending has had upon each of them as a mother, sibling and friend. Patrick Bell was a much loved young man with effectively his whole life ahead of him. In a fraction of a second of dangerous driving by you, their lives have been adversely affected in every possible way. It is approaching seven years since you offended but the effects of your offending show little sign of abating and will likely affect Patrick Bell’s family and friends for the rest of their lives. All this needs to be taken into account and I have done so.

34You were interviewed by the police and you cooperated fully with their investigations.  When interviewed you repeatedly expressed remorse for your actions and you expressed appropriate consideration and empathy for Patrick Bell.

35Your time in prison was difficult for you.  It was the first time you had been imprisoned.  I was told and accept that you were stood over in prison.

36You were previously married and you have two children.  Your ex-wife refused to allow your children to visit you in prison.  About six months of your time served was during the pandemic with your rights within the prison system restricted.  That time was more burdensome for you than it would have been in normal circumstances, absent the pandemic.

37I received into evidence a psychological report from Gina Cidoni.  I was told and accept that since offending you have suffered flashbacks, insomnia and panic attacks.  As a result of media coverage of the court process in Ballarat, you received death threats and you were harassed at work.

38You are one of a sibship of six.  Your father was a slaughterman and the family itinerant.  You thus attended some 13 primary schools.  You completed
Year 10.  You commenced a panel beating apprenticeship aged 18, which you finished in Ballarat.  You have an excellent work record, having been in full time employment since leaving school.  You are regarded highly by your employer, Ms Conder, who wrote a very good reference for you as well as attending every day of your trial.

39I was told and accept that because of this offending you have been estranged from your wife and children, resulting in litigation in the Federal Circuit Court.

40I was told and accept that you currently board with your parents and you are paying child support payments.  Importantly, notwithstanding that you work with motor vehicles, I was told and accept that since first being convicted in 2017, you have not driven a motor vehicle, you have not offended in any way since this offending.

41In 2009 you were issued an infringement notice for driving with a blood alcohol level between 0.07 and 0.099 per cent.  Your licence was then cancelled for six months.  In May 2013 you were dealt with in the Geelong Magistrates’ Court on charges of careless driving and failing a drug blood test within three hours of driving.  You were fined $2,000 and your licence was cancelled for three months.  Although you have a limited prior history, that history is very relevant to this offending, a point well made in submissions by the prosecutor.

42The prosecutor on the plea submitted, appropriately, that you made a conscious decision to drink drive.  He conceded it was not easy to be precise about your speed but he submitted, again appropriately, whatever the speed you were driving it was too fast in the conditions.  As I have said, your criminality rests in a combination of speed and alcohol.  In my view, it is mid-range offending.

43Ms Cidoni carried out some psychological testing of you which, showed you have a full scale IQ of 86 with no signs of cerebral dysfunction.  She opined you suffer a major depressive disorder, post-traumatic stress disorder post the circumstances of this offending, and an adjustment disorder.  Your symptoms are low mood, feelings of worthlessness, helplessness, fear, worry, anxiety and at times, panic.  Low energy, concentration problems, inability to relax and restlessness are other symptoms, along with impacted sleep and appetite.

44Ms Cidoni thought your risk of re-offending is linked to substance abuse and any possible escalation.  I was told that since this offending you have dramatically reduced your drinking of alcohol, limited only to weekends socially.  Ms Cidoni’s report again emphasises your remorse.  She recommended you continue to undergo counselling for your major depressive disorder,
post-traumatic stress disorder and adjustment disorder.

45In cases such as this the sentencing Court must have full regard to the sentencing principles of deterrence, both general and specific, and denunciation and it must impart just punishment, and the court must have regard to your prospects for rehabilitation.

46In normal circumstances I would be imposing another term of imprisonment.  However, in the unusual circumstances that you now fall for sentencing, almost seven years after the offending and after having already served more than two and a half years' imprisonment, I have decided not to take that path. The delay here was not caused by you, and because you offered to plead guilty to this offence well before the retrial make this an exceptional case.  You have had this hanging over your head now for almost seven years and this case could have and should have been concluded much sooner.

47Having regard to all of these factors, a term of imprisonment served of 904 days, in my judgement, properly applies all of the sentencing principles enlivened by this exceptional case.

48On the charge of dangerous driving causing death you are convicted and sentenced to a term of imprisonment of 904 days.

49I declare that 904 days be reckoned as having been already served under the sentence passed this day, be entered into the records of the court and be deducted administratively.

50The offence of dangerous driving causing death is a serious motor vehicle offence within s87P of the Sentencing Act 1991. Any licence that you may hold to drive a motor vehicle is cancelled and you are disqualified from holding a driving licence for a period of five years from 31 October 2017.

51Pursuant to s89C of the Sentencing Act 1991, I find that your offence of dangerous driving causing death was committed whilst you were under the influence of alcohol, which contributed to you committing the offence.  I direct that my finding be entered into the records of the Court. 

52Any questions arising out of that, Mr Hannan?

53MR HANNAN:  No, Your Honour.

54HIS HONOUR:  Mr Skehan?

55MR SKEHAN:  No, Your Honour.

56HIS HONOUR:  Mr White, that concludes the matter.  On the rising of the court you are free to leave.

57ACCUSED:  Thank you, Your Honour.

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