Director of Public Prosecutions v Williams
[2023] VCC 1158
•4 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY WILLIAMS |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 June 2023 |
| DATE OF SENTENCE: | 4 July 2023 |
| CASE MAY BE CITED AS: | DPP v Williams |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1158 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charge of dangerous driving causing death – truck collided with vehicle parked on side of highway – deceased severely injured and later died – fatigue cause of collision – mobile phone use not cause of collision – no criminal history – post traumatic stress disorder and anxiety – greater objective gravity of offending – importance of general deterrence – no application of Bugmy – Verdins limb 5 applicable – evidence of remorse – good prospects of rehabilitation – no application of s 5(2H)(e) Sentencing Act 1991 – sentence not to include non-parole period
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence: 18 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown for plea Mr M. Wilson for sentence | Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit for plea Ms C. Park for sentence | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Mr Williams, I propose to sentence you to 18 months' imprisonment, and I will not set a non-parole period as your counsel requested. I will cancel any licence or permit you hold to drive a motor vehicle and I would disqualify you from obtaining a licence or permit for a period of 18 months.
2After a case conference and subsequent sentence indication hearing, you pleaded guilty to a charge of dangerous driving causing death. By coincidence, the person who died shared your surname. For convenience only, I will call him 'the deceased'.
3On 30 November 2021, the deceased was driving his Jeep north along Calder Highway. He pulled it over to the side of the road and parked on its shoulder, consisting of bitumen and gravel. It seems he intended to effect some repair.
4At about 6.00 pm, you were driving your employer's light truck on the Calder Highway when it struck the stationary Jeep. At the time of the collision, it was broad daylight, the speed limit for that part of the Calder Highway was 100 kilometres per hour. Your truck was travelling at about that speed. At the point of the collision, the Calder Highway is straight and flat with no obstructions. Accordingly, the parked Jeep could be seen from some distance away in the direction you were travelling.
5For the purpose of this proceeding, a very important prosecution witness was Ms Koko Fox. The essential aspects of her evidence were:
(a) She saw your truck approaching her vehicle on your correct side of the road. Her vehicle was travelling in the opposite direction to your truck;
(b) She first noticed your truck because it veered to its left. She then saw it suddenly turn to its left. She did not see the actual collision. To her, the Jeep was parked off the roadway; and
(c) After the collision, you told her you did not see the Jeep.
6As a result of the collision, the deceased was severely injured and died 12 days later. On balance, the deceased was outside of the Jeep at the time of collision. However, I agree with the prosecution, it is immaterial whether he was inside or outside of the Jeep. The collision between the vehicles caused his death.
7When struck by your vehicle, the Jeep was 40 centimetres over the fog line. It was the storage box at the rear of the truck which struck the Jeep. It caused damage along one whole side of the Jeep.
8Again, from the prosecution's perspective, another important witness is Associate Professor Matthew Norton, who is a physician specialising in respiratory and sleep disorders. He has very considerable experience in his areas of specialisation. After analysis of various documents provided to him, he concluded:
(a) The crash is typical of altered concentration while driving. Altered concentration can be due to distraction or fatigue;
(b) He favoured fatigue as the cause because:
(i)You had driven 12 and a quarter hours before the collision without a break; and
(ii)You had a maximum of about six hours' rest between shifts during the previous week which could lead to chronic sleep deprivation;
(c) However, the lack of observation of your driving over a longer period, for example 5-30 minutes, he is less certain about fatigue as opposed to distraction; and
(d) It is probable fatigue was the most likely cause of the collision and you did not have proper control of your truck at the time of the collision.
9You accept your fatigue was the cause of the collision. The reason for your fatigue is your failure to take breaks and rest.
10You do not accept you were using your mobile phone at the time of the collision and the material does not establish you were doing so. However, you had used your mobile phone before the collision. You received several calls and Snapchat messages in the two hours before the collision. You also made some calls and sent some instant messages. Within a minute or so of the collision, you sent a Snapchat message to a person at 5:59:15. This was a reply to a Snapchat message you received at 5:49:33. Although that shows you were careless in your driving, it does not establish distraction as the cause of the collision.
Criminal history
11You have no previous convictions or findings of guilt.
Victim impact statement
12Janet Hayes is the mother of the deceased. She describes her son as 'no angel' but was loved by his family and friends. She endured the days of his hospitalisation while he remained in a coma. His injuries were many and serious. There were operations in the hope of repairing and saving him. Ultimately, she agreed to allow his life support to be turned off. It took 12 hours for him to die. She describes his death as:
'…not like you see in the movies it wasn't peaceful it's terrible ugly and I can never forget it even though I wish to, the Guilt I feel I'm failing him I have to let him go'.
13Her son's death has drained her, she just survives now.
Personal
14You are now 26. At the end of this month, you will be 27.
15You were raised in Sunshine and have two brothers aged 21 and 25.
16You parents separated when you were 10. Your mother re-partnered with Mario and there are three half-siblings, one aged 18 and twins aged 17. Your mother died in 2018 and Mario is in prison. As a result of his imprisonment, you care for your half-siblings, two of whom are intellectually impaired.
17The psychologist Warren Simmons detailed what you told him about your childhood:
‘Mr Williams said that his childhood was “violent” and it “felt like shit”. He revealed that his father was violent to all members of the family and even after his parents separated, during access visits he molested both Mr Williams and his brother. He indicated that the violence occurred on a daily basis and he would encourage his 25-year-old brother to tease Mr Williams which would result in Mr Williams assaulting his brother. He added that the abuse was mainly directed to himself and believed that it occurred when he was “bored” with life and if Mr Williams was not home, he would assault his brother. Mr Williams indicated that there was no violence directed towards his mother whom he said was not scared of his father and had punched him in the nose in the past. Mr Williams added that the violence did not appear to be alcohol-related.’
18Your relationship with your stepfather was good, as is your relationship with your half-siblings.
19Despite difficulties at one primary school, you were able to complete Year 12. After school, you held a series of jobs, unskilled and semi-skilled, with none lasting more than a year.
20You have had a series of relationships. The longest was with Danielle. You are now in a relationship with Tyler and have been for about 18 months.
21At the time of the collision, you were the sole breadwinner for your family. However, you lost your employment for your bail conditions prevented you from driving.
Psychologist
22As I said, Warren Simmons is a psychologist. He interviewed you on 20 February 2023 at the request of your solicitors. Mr Simmons assessed you:
‘Mr Williams did not present with significant antisocial personality traits nor evidence of prior offending other than one conflict with his half-sister. Mr Williams did present with symptoms of Post-Traumatic Stress Disorder, becoming more significant after the death of his mother and further aggravated by the motor vehicle accident for which Mr Williams is before the Court. More recently there has been problems with anxiety attacks, which Mr Williams manages as best he can.’
23Mr Simmons recommended treatment by a therapist skilled in trauma.
24As to your prospects of rehabilitation, Mr Simmons said:
‘Mr Williams prospects for rehabilitation appear to be quite good given the lack of significant prior convictions nor significant antisocial personality traits. He has generally had positive relationships and has been caring for his younger half-siblings while his step-father is incarcerated. There is no history of significant substance use and while Mr Williams experiences anxiety and trauma symptoms, they do not seem to have contributed to his offending.’
Discussion
Gravity
25Your counsel points to features present or absent which seek to place your offence within the range of cases of this offence. He points to:
(a) you were licensed then and still are;
(b) there were no roadworks or other impediments;
(c) the weather was fine;
(d) there was nothing wrong with your truck mechanically;
(e) you were driving on legitimate business;
(f) you were not affected by drugs or alcohol; and
(g) there is no evidence of you driving erratically or at speed.
26Your fatigue was the cause of the collision. A fatigued driver of some form of truck or other large vehicle is a fear of road users. Reports of collisions due to the fatigue of a truckdriver are reasonably common. The larger the vehicle, the greater the potential for damage.
27The objective gravity of your offending is greater than a low-level for this offence, notwithstanding the matters raised by your counsel. Apart from the issue of gravity, the fact of fatigue as the cause highlights the need for general deterrence. My sentence should discourage other persons, especially truckdrivers, from driving while fatigued.
Bugmy
28Your counsel relies upon the observations in Bugmy v The Queen[1] and in support, paragraphs 3 and 7 in Mr Simmons' report.
[1][2013] HCA 37.
29You have had a difficult upbringing, but the effect of that upbringing has no impact on the cause of your offending. I cannot see how such an upbringing affects behaving sensibly as a driver in terms of fatigue. It does not reduce your moral culpability driving while fatigued.
Verdins
30Your counsel relies upon principle 5 of the principles stated in R v Verdins[2] which says:
'The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health'.
[2] 2007] VSCA 102 [32].
31Although Mr Simmons does not say a sentence of imprisonment will weigh upon you more heavily, your counsel invites me to so conclude, relying on the symptoms described by Mr Simmons in paragraph 27 of his report:
‘Mr Williams did not present with significant antisocial personality traits nor evidence of prior offending other than one conflict with his half-sister. Mr Williams did present with symptoms of Post-Traumatic Stress Disorder, becoming more significant after the death of his mother and further aggravated by the motor vehicle accident for which Mr Williams is before the Court. More recently there has been problems with anxiety attacks, which Mr Williams manages as best he can.’
32Although Mr Simmons does not say so, it is possible for me to discern from his findings the applicability of that limb of Verdins' case. Mr Simmons describes symptoms in paragraphs 18, 19 and 20 of his report. In paragraph 20 he speaks of hyperarousal and hypervigilance. In other paragraphs, he mentions cognitive impairment, ruminations and poor sleep.
33These are difficult symptoms when entering a prison environment. I consider limb 5 is engaged and modifies the sentence.
Guilty plea
34The timing of your guilty plea is in the second half of the process starting with the laying of the charge and ending with a trial by jury. At the start of the reasons, I noted the holding of a case conference and a sentence indication hearing. The first occurred in January and the second in March of this year.
35By you pleading guilty, you acknowledge your responsibility for the offence. In this case, the plea itself is evidence of your remorse. In fact, I am satisfied you are remorseful.
36Your plea benefits the criminal justice system. During the height of the pandemic, jury trials in this court ceased. Although the worst of the pandemic is behind us, the virus still affects the prosecution of criminal matters in this court. The effect is much less now than at the height of the pandemic, but it is still present. The benefit to the system is practical. Your plea avoids a jury trial, these are usually time-consuming and resource-depleting. It involves the calling of witnesses. Even now, guilty pleas merit a greater discount on sentence than such a plea during normal times. The observations in Worboyes v The Queen[3] still apply to an extent.
[3] [2021] VSCA 169.
Rehabilitation
37Your prospects of rehabilitation are good. You are remorseful for your offending. Despite a difficult upbringing, you have no criminal history. You have the support of your family. After you are released from custody, you intend to return to your family home. For someone who has never been in custody, my sentence will act as a strong deterrent against future offending of this type.
S 5(2H)
38In giving my sentence indication and the reasons for it, I dealt with the applicability of s5(2H)(e) of the Sentencing Act 1991. I will not repeat what I said then, except to repeat you cannot avail yourself of the subsection.
Non-parole period
39Your counsel invited me to set a non-parole period even if I sentenced you to 18 months' imprisonment or less. I will not take up the invitation. In all the circumstances, the sentence of 18 months' imprisonment is the appropriate period of time in custody. I will not set a non-parole period.
Sentence
40On Charge 1, I sentence you to 18 months' imprisonment.
41I will declare your one day of pre-sentence detention as time served under my sentence today.
Licence
42The offence of dangerous driving causing death is a ‘serious motor vehicle offence’. For that offence, and since you hold a licence to drive a motor vehicle, I will cancel that licence and disqualify you from obtaining a licence or permit to drive a motor vehicle for 18 months.
6AAA
43If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a head sentence of 32 months' imprisonment.
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