Director of Public Prosecutions v Williams
[2018] VCC 1343
•28 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SOPHIE WILLIAMS |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2018 | |
DATE OF SENTENCE: | 28 August 2018 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1343 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Office of Public Prosecutions Victoria |
| For the Accused | Mr L. Howson | McNamaras Barristers & Solicitors |
HER HONOUR:
1 Sophie Williams, you have pleaded guilty to one charge of dangerous driving causing death and two charges of dangerous driving causing serious injury. Your pleas of guilty were entered on 2 August 2018 following a sentence indication hearing before me. On that occasion, I indicated that if you were to plead guilty to the charges on the indictment, I would not impose upon you a sentence of imprisonment that commences immediately.
2 Following the entering of your pleas, I adjourned the matter and had you assessed for a Community Correction Order. I will return to that shortly. The matter was otherwise adjourned for a plea hearing today.
3 A summary of Prosecution Opening has been tendered and marked Exhibit A. I will confine my remarks here to a summary of that Opening.
4 On Tuesday, 24 May 2016 at about 8.30 am, you were driving your 17 year old son, James, to school in St Albans before driving yourself to work. James has Autism Spectrum Disorder, together with a moderate to severe intellectual disability. At the time, James was attending a special school with a specialist day program for young people until age 18.
5 You were driving in the left hand lane of the outbound or western bound lanes of the Calder Freeway, East Keilor. The road was in excellent condition and has a posted speed limit of 100 kilometres per hour.
6 There are a total of three lanes on the Calder Freeway at this point. The traffic in the far left lane, which was the lane you were in, was either stationary or moving very slowly. This was due to an unrelated traffic incident that had occurred on Keilor Park Drive next to the exit from the freeway. Traffic had banked-up down the exit ramp and back along the left lane of the Calder Freeway.
7 Mr Liam McErlain was driving his fully laden B-double combination fuel tanker in the centre lane.
8 You went to move your vehicle, a Volkswagen Golf hatch, into the centre lane in an attempt to avoid the congestion. In doing so, you drove into the path of Mr McErlain’s truck, which was travelling in the centre lane. The truck struck the front driver’s door of your Golf, resulting in a catastrophic chain reaction of collisions, and ending with the B-double combination rolling onto a white Toyota sedan and tragically killing 48 year old Mr Duk Nguyen.
9 A number of witnesses to the collision describe your car pulling out into the path of the truck and not having got fully into the lane before the truck collided with your vehicle. Mr McErlain had no time to either brake or take successful evasive action.
10 The collision ultimately involved 11 vehicles. This included the vehicle of Michelle Aminde, who was 48 years of age at the time of the collision and en-route to work in Laverton. Ms Aminde’s vehicle was impacted by the tanker and flipped onto its roof, causing serious injuries to Ms Aminde. The 44 year old truck driver, Mr McErlain, also sustained serious injuries in the collisions.
11 The collision was investigated and a collision reconstruction expert attended at the scene. Based on the damage to vehicles, the collision scene in general, and a GPS download from the truck, it was the opinion of Detective Senior Constable Hay that the B-double tanker was travelling at approximately 97 kilometres per hour at the time of the collision.
12 It is accepted through your plea that the manner in which you drove your vehicle from the left congested lane into the centre lane was dangerous to the public, having regard to all of the circumstances. Your driving was a substantial and operative cause of the death of Mr Nguyen, and the serious injury to Mr McErlain and Ms Aminde.
13 Mr Nguyen was on his way to work at the time of the collision. He died from the multiple injuries sustained in this motor vehicle accident.
14 Mr McErlain sustained an injury to his left knee, requiring surgery to remove cartilage from a torn meniscus. He has permanent flexibility issues in both knees and can no longer run or cycle. He also sustained a tear in his right thigh muscle and heavy abrasions to his left shin. He has been medicated since the collision to help him sleep and deal with the emotional consequences of this collision. He has not been able to return to work since the accident.
15 Ms Aminde sustained a broken rib and a broken collarbone, which required surgery with a plate and pin inserted. She also sustained permanent nerve damage to her right shoulder with loss of feeling. Both the injuries to Mr McErlain and Ms Aminde are serious injuries.
16 I have been provided with Victim Impact Statements from Huyen Tran, Michelle Aminde and Liam McErlain.
17 Mrs Tran tragically lost her husband and the father of her children. She now suffers depression and anxiety, and her children are suffering because they lost their father at such a young age. Mrs Tran feels helpless watching her children suffer their father’s loss. She is now a single mother, supporting two children alone, and that is financially difficult. She has not been working because of her mental well-being, which has suffered because of what occurred. She feels tired, depressed and it is hard for her being a single parent.
18 Ms Aminde says she is a different person since the accident. She also suffers anxiety and depression. She is physically limited by the injury to her right wrist, arm and shoulder, and this is a source of ongoing restriction and pain. Simple tasks are now a struggle. She is nervous when driving or a passenger in a car. She has been seeing a psychologist and takes anti-depressant medication and pain-killers. She was unable to keep working full time after the accident and ultimately lost her job. She now works part time and is earning less money and her career plans have halted. Mentally her functioning is not what it was. She has become socially introverted and lost friends. Her husband and children have also suffered because she is not who she used to be.
19 Mr McErlain, the truck driver, has also suffered as a result of this collision. He used to enjoy his job driving trucks, and had planned to keep driving trucks for many years to come. He is now unable to drive trucks due to his injuries and the anxiety he suffers as a result of this collision. His injuries are ongoing and a source of constant pain. He used to be very active and sporty, but can no longer do what he used to do. His injuries affect his family life and what he can do with his children. The loss of earnings has been be source of stress and argument in his relationship. He suffers sleeplessness, anger, and is now withdrawn and suspicious of people. His injuries will continue to impact his life.
20 You have written a letter of apology to the victims. I have read that letter and the victims may read it in their own time, if they wish. In my view the letter is sincere, apologetic and heartfelt - you take responsibility for the tragedy, and you make no excuses.
21 I am told and accept that you have no useful memory of the event. It may be that you failed to appreciate the speed of the approaching truck, or you failed to look or look properly to ensure that it was safe to change lanes. You were not affected by alcohol or drugs and you were not sleep-deprived. You have no prior convictions nor any driving infractions at all. There is no suggestion that you have ever driven poorly before this day, either earlier this day or at any other time. You are the holder of a full Victorian Driver’s Licence.
22 In my view, this offending falls at the lowest end for offences of this nature. There is an absence of aggravating features. You were not speeding; you were not intoxicated or otherwise under the influence of any illicit substance; your driving had not previously been erratic; you were not driving your vehicle competitively, aggressively or showing off; you were not using your mobile phone; and you were not tired or fatigued. The time and length of the journey during which others were exposed to the risk of injury or death as a consequence of your driving was momentary. The accident was caused because you either failed to look, failed to look adequately, or failed to properly evaluate the speed of the truck. This moment of misjudgment or inattention means that you drove your vehicle in a manner that was dangerous to the public, having regard to all the circumstances. However, as I have just stated, the time and length of your dangerous driving was extremely short.
23 The prosecution did not submit that I should impose an immediate custodial sentence upon you. Whilst the offences of dangerous driving causing death and dangerous driving causing serious injury are of course serious, your offending falls very much toward the bottom of the range for this type of offending. You have no criminal history and no matters pending, and you are deeply remorseful for what occurred.
24 I turn now to your personal circumstances.
25 A number of references and reports were tended on your behalf. These include a brief letter from Ms Di Giacomo, senior psychologist; a letter from Dr Datta, psychiatrist; letters from family members, including your husband; and a letter from your husband’s employer.
26 You were born on 13 December 1968 and are now 49 years old. You are the daughter of Greek migrants. Your father was a gambler and mostly unemployed. He was financially, psychologically and physically abusive and left the family when you were three years old. Your mother worked hard to raise you and your younger brother, Peter, on her own.
27 You married your husband, Brett Williams, in 1996 when you were 27 years old. You have a good relationship and two children: James, now aged 20 years old; and Matthew, now aged 18 years old. Matthew is doing Year 12 and is generally a very good student and hopes to enrol in university next year. James has Autism Spectrum Disorder and a full-scale IQ of 48, meaning he has a moderate to severe intellectual disability. He is now in receipt of a Disability Support Pension. James is unable to care for himself in any capacity and is very reliant on you, his main carer. He requires all his daily needs to be prompted and assisted, including grooming, meal preparation and showering. He is very vulnerable and socially naïve. He has no concept of money and only limited awareness of time. He was described by Dr Eisenmajer as in many ways functioning at the age of a four or five year old child.
28 You are the primary carer of James, and you always have been. James is now aged 20 and attends a specialised day placement program. For the past 19 years you have stayed in part time employment to care for James, which was a sacrifice financially, but one you made to ensure James was as happy as he can be.
29 Given the sentencing indication by me that if you pleaded guilty you would not receive an immediate term of imprisonment, your Counsel sensibly does not pursue a submission that imprisonment of you would have caused exceptional hardship to your son James. Both parties agree that is not a matter I need to determine, and I don’t.
30 I am, however, satisfied that any term of imprisonment on you would have caused you well-justified anxiety as to James’ well-being, and your incapacity to be able to continually care for him would have meant any term of imprisonment, if imposed, would have weighed more significantly and more heavily upon you.
31 This collision occurred on 24 May 2016 and since then you have agonised over what you have done, in particular, causing the death of Mr Nguyen. You learned through neighbours that he was from Vietnam, a husband, and a father to two children. You have suffered depression, anxiety and considerable guilt in relation to what happened, together with remorse in relation to the death of Mr Nguyen and the people you injured.
32 I was provided with a report by Dr Sunil Datta, dated 12 August 2017. Dr Datta has been seeing you as a result of the consequences of this collision. In Dr Datta’s opinion, the contents of your thoughts show the remorse you have in relation to the accident and the grief that you are going through. Dr Datta states you are extremely upset over what has happened and feel really bad for the people concerned and even worse for the wife that has been left behind. Dr Datta states that you have considerable guilt in relation to what happened and feel great remorse. I accept that you feel, and continue to feel, great remorse and guilt about what has occurred as a consequence of your driving on this day.
33 Although your plea of guilty was entered late in the proceedings, I am satisfied that it carries with it significant utilitarian value, as it has avoided the need for a trial in which a great many witnesses would be required to recount traumatic events. Your plea of guilty is also indicative of your remorse and your acceptance of responsibility for what occurred.
34 You suffered some physical injuries yourself, including to your shoulder and left hand, together with depression and anxiety. Your counsel submitted this was relevant in a very small way, and drew my attention to the case of R v Robert Teh [2003] VSCA 169. In my view, this matter is of little if any relevance in sentencing you today.
35 Specific deterrence has no real work to do here. That is because of your age and the complete absence of any prior convictions or any driving infringements. You have not had so much as a speeding fine in all the time you have been driving.
36 General deterrence is of course very relevant here. It is critical that the message is constantly sent to all road users that they must, at all times, pay due care and attention to their driving. The result of a momentary failure, as this case demonstrates, can be catastrophic for other road users. One life has been taken, and others forever altered. Driving on our roads, particularly highways, demands that drivers must be focussed, cautious and attentive at all times.
37 Your counsel submitted a non-conviction disposition is appropriate. The prosecution submitted the charges are serious, there are three of them, and a conviction should be recorded. The prosecution further submitted that a conviction is required to give due weight to general deterrence.
38 I accept the submissions of the prosecutor on this question. In my view, given the seriousness of the matters and the need to give effect to general deterrence, your offending demands a conviction be imposed on all charges.
Conclusion
39 As earlier stated, I had you assessed for a Community Correction Order and have been provided with a Community Correction Order Assessment Outcome Report dated 14 August 2018. Unsurprisingly, you were assessed as suitable for a Community Correction Order. The only condition recommended is unpaid community work. You were assessed as being low risk of re-offending. As such, a supervision condition was not recommended. A road trauma awareness program would be a relevant program. However, I am told these programs are not appropriate for people who have experienced road trauma firsthand, such as yourself. You are engaged in treatment with a psychiatrist, as well as with your general practitioner, and you are able to engage in further treatment at your own volition and expense should you require further support.
40 In all the circumstances, Mrs Williams, I intend to place you on a Community Correction Order.
41 Could you please stand. Thank you.
42 On the three charges, pursuant to s 40(1) of the Sentencing Act, you are convicted and sentenced to a 4 year Community Correction Order.
43 I direct as a condition of the Order that you perform a total of 300 hours of unpaid community work.
44 Pursuant to s 89 of the Sentencing Act, on all charges, I order that all licences held by you are cancelled and you are disqualified from driving for a period of 18 months. In my view, it is not necessary to exceed the minimum disqualification period, given the complete absence of any prior driving offences by you.
45 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, the sentence I would have imposed on all charges is a total effective sentence of 2 years 6 months imprisonment with a non-parole period of 12 months imprisonment.
46 I have had my Associate prepare the Community Correction Order. If that could be shown to counsel please. And Mrs Williams, you may have a seat.
47 Mr Howson, if you could have you client sign that Order please.
(Order signed and acknowledged.)
48 Thank you. I have made that Order. There's nothing further required from the point of view of either party?
49 COUNSEL: No, Your Honour.
50 HER HONOUR: Thank you. We will adjourn now until 2 pm.
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