Director of Public Prosecutions v Williams

[2014] VCC 1591

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY MICHAEL WILLIAMS

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2014
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2014] VCC 1591

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Ms A. Harrold
For the Offender	Ms C. Dunn

HIS HONOUR: 

1Toby Michael Williams, you have pleaded guilty to one charge of culpable driving and one summary charge of driving a motor vehicle whilst suspended. 

2These offences carry the following maximum penalties.  Culpable driving, 20 years' imprisonment.  Driving whilst suspended, 30 penalty units, or four months' imprisonment.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the prosecution plea opening.  That opening was accepted by you through your counsel.

4I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

5On Saturday 28 September 2013 at approximately 5 pm you left your mother's home in Manifold Heights.  You were driving a Toyota Hilux utility and you were bound for Leopold.  You were observed by a number of witnesses driving at a grossly excessive speed and in a dangerous and erratic manner.

6The route you travelled from Manifold Heights to the site of the fatal collision between your motor vehicle and the Ford Festiva Hatch driven by a young woman, Natalie Shekel, in Melaluka Road, Leopold, is depicted in Exhibit 2, "Witness Location Map".

7The observations of witnesses along that route provide a graphic description of your driving shortly prior to the fatal collision.

8Antonio Mammino observed your motor vehicle in Ryrie Street.  She heard your motor vehicle's tyres screeching.  She was overtaken by your motor vehicle.  Your motor vehicle was cutting in and out of cars and accelerating away from her motor vehicle quickly.  She saw your motor vehicle straddling the left and right lanes.  She considered your driving to be quite erratic.

9Rodney Spong observed you driving on Geelong/Portarlington Road, the extension of Ryrie Street.  You overtook a black station wagon on its left.  You were travelling in the emergency lane.  According to Spong you appeared to lose control of your motor vehicle as you came very close to that station wagon.  Spong also described your driving as quite erratic.  He estimated you were travelling at approximately 100 kilometres per hour in an 80 kilometre per hour zone and you accelerated away quickly.

10Another driver on Geelong/Portarlington Road, Tara-Louise Wearne, described your motor vehicle flying past her motor vehicle on its left side.  The speed of your motor vehicle rocked her motor vehicle and your motor vehicle hit low lying trees and kicked up dust and stones. 

11She estimated that your motor vehicle was travelling at well over 100 kilometres per hour in this 80 kilometre per hour zone.  She commented that she was amazed you did not lose control and have an accident given the combination of speed, stupidity, and erratic driving on the left where no lane existed.  As your motor vehicle re-entered the roadway it kept swerving between lanes passing other traffic at high speed.

12Dominic Moss, another driver on Geelong/Portarlington Road, described your motor vehicle flashing past his motor vehicle.  Your motor vehicle was very close to his motor vehicle and he estimated your speed as at least 160 kilometres per hour in the 100 kilometre per hour zone.  Moss' girlfriend, a passenger in his motor vehicle, estimated your motor vehicle's speed at 160 to 170 kilometres per hour.

13After leaving Geelong/Portarlington Road, you travelled south down Melaluka Road.  Richard Donselar was at home in Melaluka Road.  He heard your motor vehicle screaming past his house.  He said this sounded like a car at a trace track.  He estimated the speed of your motor vehicle to have been at least 120 kilometres per hour and increasing.

14A driver travelling north in Melaluka Road, Glenda Timpany, saw your motor vehicle drift towards her side of the road.  Your motor vehicle came very close to her motor vehicle and she was forced to take evasive action by steering to the left.  She estimated your motor vehicle's speed at in excess of 150 kilometres per hour.

15You continued south down Melaluka Road and collided with the motor vehicle driven by Natalie Shekel as she started to execute a U-turn at the intersection of Reedy Lakes Court and Melaluka Road.

16A reconstruction of the collision indicated that your motor vehicle was travelling at a minimum speed of 149 kilometres per hour at the commencement of the skid marks leading to the point of collision and approximately 92 kilometres per hour at the point of impact.        The applicable speed limit was 70 kilometres per hour.  Your motor vehicle and the Ford Festiva travelled 22 and 23 metres respectively post-impact.

17Natalie Shekel was trapped in her badly damaged motor vehicle.  She was unconscious and she died within minutes of the collision as a result of rapid and extreme blood loss from blunt impact injuries to the chest.

18Shortly after the collision you were assisted out of your motor vehicle.  You were behaving in an aggressive, agitated and violent manner.  You were blaming the other driver for the collision.  You were taken to Geelong Hospital and you were noted to be extremely agitated, combative and uncooperative.

19You made a number of belligerent statements, including blaming the other driver and hoping she was dead.

20It was necessary to physically restrain you on several occasions when you attempted to leave the hospital.

21You were interviewed by police at Geelong Police Station on 30 September 2013.  In that record of interview you stated that you had been driving to Leopold to buy drugs.  You knew the speed limit in the area of the collision was 70 kilometres per hour.  You said you were not travelling at more than 65 to 70 kilometres per hour and you denied travelling at high speed.     You also knew Melaluka Road was "Notorious for crashes".

22It is necessary to now describe in more detail the background to your offending.  You had been an ice user for approximately five years.  As at 28 September 2013 you were attempting to withdraw from ice.  When interviewed by police you said that you had suffered from paranoia and sleep deprivation when coming off ice, but on the day of the collision you denied feeling anything more than anxiety.  This is not, however, consistent with the observations of you made by witnesses on that day.

23You were 24 years of age at that time.  You were the holder of a Victorian driver's licence which had been suspended for three months from 18 September 2013 following a traffic infringement notice on 20 August 2013 for driving a motor vehicle with more than the prescribed concentration of drugs present in your blood or oral fluid.

24Thus, on 28 September 2013, you were driving whilst suspended.  This is an aggravating factor. 

25You had been living with your mother for about two weeks prior to 28 September 2013.  You were trying to withdraw from ice.  Three days prior to the offending you were taken by your mother to a doctor at Kardinia Health, but you were behaving in an agitated and erratic manner and this led staff at the clinic to telephone police.

26You were prescribed diazepam to assist in the withdrawal process.  Traces of this drug were found in your system when tested at hospital after the collision.

27During the days following this attendance at the doctor and leading to this offending you continued to be in an unwell and intermittently agitated state, as an apparent result of your withdrawal from ice.

28At approximately 1 pm on 28 September 2013 you asked your mother to take you to a doctor.  This led to a dispute as your mother explained that she could not take you back to the previous doctor as he would not see you again.

29You grabbed your car keys and drove from your mother's home.  Your mother and her partner were worried and they set off searching for you.  Your mother received a phone call from your grandmother.  Your grandmother was upset and she ended up calling police at 3.10 pm.

30In that Triple 0 call, your grandmother said, "He took ice three days ago, he is going crazy wanting to try to leave the house."

31Your mother gave evidence at the plea hearing.  She became aware that you were using ice three to four years ago.  She said you were not taking drugs at the time of this accident.  She was constantly checking you.  She said you were violently ill, you had fevers and were vomiting.

32She agreed that leading up to this accident you were in a fairly agitated state.  She said you were desperate for help.  She said you were experiencing pain everywhere. When tested at Geelong Hospital you did not test positive for any illicit drugs. 

33It was submitted on behalf of the prosecution that you were withdrawing from ice at the time of the fatal collision and, as a result, you were in a wholly unfit state to drive a motor vehicle and you well knew this.  Accordingly this was an aggravating factor. 

34I do not accept this submission.  Whilst it is not in issue that you were withdrawing from ice at the relevant time, there is no evidence before me on the effect such a condition or state might have had upon your capacity to drive. 

35Your drug use and attempts at withdrawal are relevant in terms of your personal circumstances and background to the offending.

36I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at a relatively early stage on 25 June 2014 when this matter was listed for committal.  No witnesses were called to give evidence.

37I accept on all the evidence before me that, despite your comments and behaviour immediately after the fatal collision, you are genuinely remorseful.

38I have been told something of your personal circumstances.  You are 25 years of age having been born on 11 June 1989.  You are a single man with no dependants.  Your parents separated when you were seven, but you still had a good upbringing.  You were educated at Lara Primary School and Grovedale College.  You were a keen sportsman.  You left school at Year 11 level and completed a plumbing apprenticeship before moving into the construction industry.  You worked for some time in the mines in Western Australia.

39You started using alcohol at 15 years of age and you began to experiment with drugs when you were 17 years of age.  Initially you were using amphetamines, ecstasy and alcohol.  Over time you graduated to ice and you ultimately became addicted to this drug.  Up to about three weeks before this offending you were using ice daily and in significant amounts.

40At the time of this offending you were unemployed having descended to this level as a result of your spiralling drug addiction.  As I have already stated, you were attempting to withdraw from ice use shortly prior to this offending.

41At the time of this offending you were a relatively young man.  I have taken this into account, however, you have committed the very serious offence of culpable driving and as the Court of Appeal has noted this type of offending involving the driving of motor vehicles is often committed by younger persons.  (See DPP v. Neethling 2009 22 VR 466) and (Leddin v. R 2013 VSCA 2074).

42I therefore give your relative youthfulness less weight than if it arose in other contexts.

43Three references and testimonials have been tendered on your behalf.  Your sister, Lauren Williams, described your fragile emotional state in custody, and great remorse.  She knew you as a sensitive and caring man.

44A longstanding family friend, Mark Butcher, described you as a handsome, well-loved, hardworking, honest and reliable young man, who had been led astray when introduced to ice at a vulnerable age. 

45Your grandfather, R.H. Tucker, described your close-knit family.  He has provided much detail on your achievements in work and assistance to family members.

46As I have already stated, your mother, Heather Williams, gave evidence on your behalf.  She described your happy childhood, success at school, and involvement in sport when younger.  She noted your escalating drug use and that you were using ice about three to four years ago.

47In describing the effect of this drug upon you, she said, "Ice ruins people.  Ice turns beautiful people into sick people, desperate people."  She commented that when on ice you did not like to work, you slept all day and you were agitated.  Your mother tried to enlist the assistance of every relevant agency and resource she could think of in Geelong to deal with your addiction, but all to no avail.

48It is clear from your mother's evidence that you were desperate for help.  I have already summarised her evidence in respect of your condition shortly prior to this fatal collision.

49Your mother continues to support you and she stated that upon your eventual release from custody it is likely that you will relocate and you hope to eventually work in the area of environmental farming.

50I accept that you have strong support from your family and friends.

51A report from Dr Nina Zimmerman, psychiatrist, dated 24 July 2014, was tendered on your behalf.  I accept her opinions that when assessed you were not suffering from major depression, but were clearly worried and distressed by your situation and the fact you caused the death of another.

52A report from Helen Barnacle, psychologist, dated 16 August 2014, was also tendered on your behalf.  She was of the opinion that you are now experiencing many symptoms of post-traumatic stress disorder, but you do not meet some of the criteria for a diagnosis.

53I accept Helen Barnacle's opinions that, "Toby is currently a distraught and remorseful young man who is struggling to come to terms with the loss of life caused by his actions and the devastation which has resulted for two families.  If Toby remains abstinent from illicit drugs, ceases association with individuals involved in illicit drug activities, and practises new strategies and techniques to be mindful of his thoughts and behaviours, his prognosis should be positive."

54It is not submitted that any of the well-known principles enunciated in Verdins case apply. 

55I assess your prospects of rehabilitation as good, provided you remain drug-free.

56It was submitted on your behalf that as a result of media reporting of this incident you have been abused in custody and have been in protection whilst on remand.  I do not accept that this is a factor in mitigation.  There is no evidence before me that you will be required to serve your sentence in protection or in particular circumstances which may make the burden of imprisonment more onerous.

57Against these matters in mitigation, however, your actions were deplorable.  This was, in my opinion, a very serious example of the offence of culpable driving.  You were driving whilst your motor vehicle licence was suspended.  You were driving at an excessive speed and in an erratic and dangerous manner for some distance prior to the fatal collision.

58You knew Melaluka Road was, to use your words, "Notorious for crashes".  This was not a case of a momentary lapse of judgment or a situation in which the risk of collision could be described as unexpected.

59In these circumstances I assess your moral culpability as being high. 

60There are a number of victim impact statements.  The deceased, Natalie Shekel, was born on 20 December 1979.  She was a much loved young woman.  She was raised by her parents in Leopold.  She was employed as a solicitor.  She engaged in voluntary work for the Red Cross and other charitable organisations.  She voluntarily helped many elderly persons.  She worked in a soup kitchen helping the homeless.  She has been described as a young woman who loved life and lived her life to the full.

61Her parents, Paula and Walter, and her sister, Tania, have been devastated by her death.  Their detailed victim impact statements eloquently describe their immense suffering and loss as a result of Natalie's death.  Their lives have been shattered by Natalie's death.

62Natalie's activities at work and the impact of her death upon work colleagues are described in the victim impact statement of Sophie Gilbert.

63A close friend of Natalie's, Jennifer Lawrie, described Natalie as one of the most brilliant people she would ever know.  She stated that Natalie was incredibly kind, thoughtful and supportive, and "Her love for her family and her life knew no bounds."

64Another close friend, James Schaddee van Dooren stated that, "Natalie had an endless well filled with compassion, generosity and love for all those she came into contact with."

65Christine Schaddee van Dooren described Natalie as, "An incredibly beautiful person, kind, vivacious, generous, talented and hardworking."

66I have had regard to these victim impact statements but the must not overwhelm other relevant sentencing considerations. 

67You have admitted before me a prior conviction.  On 26 August 2009 you received a three month wholly suspended sentence of imprisonment for trafficking ecstasy and possessing and using ecstasy and methylamphetamine.  I have already stated your motor vehicle licence was suspended for three months from 18 September 2013 for driving a motor vehicle with a prescribed concentration of drugs present in blood or oral fluid.

68There are 231 days of pre-sentence detention.  You have also been in custody for 63 days on unrelated matters.  This is not pre-sentence detention, however I have taken this period in custody into account in a general way.

69As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged.

70I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct, and generally to impose a just punishment.

71I have had regard to current sentencing practices, and the sentencing statistics relating to culpable driving, and discussions of those statistics in the recent cases of Pasznyk v R 2014 VSCA 87 and Leddin v. R 2014 VSCA 155.

72Having regard to all relevant facts and appropriate sentencing principles, I sentenced you as follows:

73Charge 1, culpable driving, convicted and sentenced to seven years' imprisonment.

74Summary Charge 16, drive whilst authorisation suspended.

75Convicted and sentenced to two months' imprisonment.

76All motor vehicle licences are cancelled and you are disqualified from obtaining a licence for five years from this date.

77I direct that the sentences be served concurrently.  The total effective sentence is seven years' imprisonment.

78The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

79In all the circumstances, I direct that you serve a minimum term of five years before becoming eligible for parole.

80As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you spent in custody is 231 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

81There is an application made by the prosecution for a forensic procedure for the taking of samples. Pursuant to s.464ZF of the Crimes Act I intend to make an order that pursuant to s.464ZF of the Crimes Act you undergo a forensic procedure for the taking of samples in accordance with sub-division 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.

82The reasons for making the order will be published on the order which I will sign.

83I must inform you as a matter of law that a member of the police force may use reasonable force to enable the procedure to be conducted.

84Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed, but for the plea of guilty, is nine years' with a non-parole period of six years.

85There was no disposal sought, was there?

86MS MORAN:  No, Your Honour.

87HIS HONOUR:  Does that cover all the formalities?

88MS MORAN:  Yes, it does, thank you.

89(Offender removed.)

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