Director of Public Prosecutions v Winfield

[2015] VCC 1723

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 14-00105

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH MATTHEW WINFIELD

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Geelong
DATEOF HEARING:	12 March 2015
DATEOF SENTENCE:	17 March 2015
CASE MAY BE CITEDAS:	DPP v Winfield
MEDIUMNEUTRAL CITATION:	[2015] VCC

REASONS FOR SENTENCE

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Subject:              Drag race, dangerous driving causing death.

Sentence:          Total effective sentence 30 months imprisonment, 15 months suspended, 18 months cancellation and disqualification of license.

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Ms J. Piggott (Plea)

Mr J.B.B. Lewis (Sentence)

O.P.P

For the Offender  Mr P. Billings (Plea)

Mr D.H. Starvaggi (Plea & Sentence)

Michael Benjamin & Associates

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

HIS HONOUR:

1Leigh Winfield, you have pleaded guilty to one count of dangerous driving causing death. The maximum penalty is ten years' imprisonment.

2In addition under s.89 of the Sentencing Act 1991 (Vic), I am required to cancel your driver's licence for not less than 18 months.

Circumstances of the Offence:

3The circumstances of the offence which occurred on Melbourne Road, North Geelong, on 18 August 2012, and resulted in the death of Roy Andrew McKenna, are set out in the Crown Opening Exhibit A, which was read in open Court on the plea and which was not contested by your Counsel. I incorporate that opening by reference.

4In brief summary, you attended the previous evening at around 11.35 pm at licensed premises here in the city known as Alley Cat. The deceased, Mr McKenna, arrived at the same hotel around 1.34 am.

5At around 4.48 am the two of you are seen leaving the hotel, but you do not appear to be together. At the same time, two other persons, Mr Jacobson and Mr Berta, were at the front door of the hotel. They got into a taxi and around the same time you are seen to be leaving the hotel with Mr McKenna.

6There was a conversation between you and Mr McKenna and these two gentlemen, and they are persuaded to leave the taxi and move towards the car park.

7Those two men accompanied you in your vehicle, while Mr McKenna was in another vehicle. You were both apparently heading for a gaming venue in the Corio area.

8In the depositions, Mr Berta said that you and the other driver were baiting each other to have a drag at a set of traffic lights near the Geelong North Railway

Station.

9It appears from the CCTV footage that the vehicle driven by you was ahead of Mr McKenna's vehicle and in the process of slowing down outside the railway station. After passing the station, Mr McKenna's vehicle can be observed to brake heavily as it approached the rear of your vehicle and the intersection of Bay Street. It appears that Mr McKenna lost control of the vehicle at that point and rotated and crashed into a tree. He died upon impact.

10Mr McKenna was found to have a blood alcohol concentration of .16 per cent at the time. You were interviewed by the police and attempted to distance yourself from Mr McKenna.

11A preliminary breath test indicated that you had a reading of .068 per cent.

Expert evidence shows at the time of the driving you would have had a concentration of between .096 and .115 per cent.

12There was a dispute on the reconstruction evidence as to the speed of Mr McKenna's vehicle, with one estimate putting it in the range of 136 to 170 kilometres per hour.

13It is not necessary to make a precise finding on this issue but significantly it is the opinion of a forensic medical specialist that Mr McKenna, due to his level of alcohol in his blood, would have been incapable of having proper control of a motor vehicle.

Seriousness of the Offence:

14By your plea, you have admitted that your driving was a substantial and operating cause of the death of Mr McKenna. It is your driving in a manner dangerous that must be considered. I accept that Mr McKenna's own conduct contributed substantially to his death.

15The law says, however, that acts for which you are to be held responsible do

not need to be the sole cause of the death of Mr McKenna.

16Your Counsel did not dispute the Crown Opening which indicates that it had been raining and was windy at the time. There was other traffic about.

17Next, you were exceeding the speed limit by a significant amount. The speed limit was 70 kilometres per hour. The estimate of your speed taken from the CCTV camera was a range of between 93 and 107 kilometres per hour.

18You filed an expert report that states that your speed when going through the intersection was 107 kilometres per hour.

19Even accepting the evidence of the informant that he believed the CCTV footage showed that you were slowing down, this indicates that at the very least, at some stage, your speed must have been around 100 kilometres an hour, which is 30 kilometres above the applicable limit in wet conditions.

20Next, it is not disputed that your blood alcohol level at the time of driving was estimated to be between .096 per cent and .115 per cent, which even at the lower level is nearly twice the legal limit.

21You are not to be punished for this, but it is a matter relevant to your overall moral culpability. Dr Odell stated in his report at that those levels, and even at lower levels, your driving skills would have been adversely affected by the effects of alcohol.

22Further, you must be taken to have been aware of the road conditions and your own level of alcohol consumption and its impact on your own actions in the event of an emergency.

23Next, you have admitted that you were in a drag race with Mr McKenna. It patently requires two to engage in such an activity. Such an activity is inherently dangerous. It is all the more dangerous when you must be taken to have known that the other participant had been drinking before he left the licensed premises.

24I am unable to make a finding as to the duration of the drag race. It must have been for some seconds from the previous set of traffic lights for each vehicle to get to the speeds that they did.

25You obtained a concession from the informant that your vehicle appeared on the CCTV to be slowing. While I accept that evidence, I do not see that as reducing your moral culpability. It is in the nature of a drag race that at some stage one or other of the participants may come to their senses and seek to revert to driving within the law. It is the entering into, and engaging, in the race that creates the aggravating factor in this offence.

26A final matter in considering your moral culpability is that you had been the subject of previous court sanctions for careless driving and exceeding PCA.

27Weighing all the matters associated with your driving, I put your offending in the mid-range of moral culpability. I cannot accept that your offending can be equated with a case of momentary inattention or of low culpability. While it may have been a spur of the moment act to commence the race, you had been driving for some kilometres from the hotel, so you cannot have been ignorant of road conditions and were prepared to risk driving while over the alcohol limit.

28It is in those circumstances that you took off from the lights in a race with the deceased, reached a speed of at least 100 kilometers per hour, then Mr McKenna lost control of his vehicle and crashed.

29Your driving is more serious than a short ill-advised manoeuvre that results in disaster. In reaching the conclusion that you must be held to have a mid-range of moral culpability, I have taken into account that Mr McKenna also substantially contributed to his own death.

Prior convictions:

30Your prior driving record is relevant to your moral culpability.  You have a fair driving record. When you were aged 21, you were disqualified from driving for

six months for exceeding the prescribed concentration of alcohol.

31When you were 22 you were fined for driving while disqualified, and disqualified for a period of a month.

32On 25 July 2006, for exceeding PCA, you were fined $600 and your licence was cancelled and you were disqualified for 12 months. You were not to be re- licensed except on the order of a Magistrate. Thus, some time since 2007 you have had to convince a Magistrate that you understood the implications of driving and drinking in order to regain your licence.

33On 4 May 2011, you were before the Geelong Magistrates' Court for careless driving. You were fined $800 and your licence was suspended for a period of a month. Thus you have a driving record, and it is not insignificant, in that you have been suspended from driving on four occasions, including twice for exceeding PCA, albeit that they were low readings.

Victim Impact Statement:

34The partner of the deceased, Ms Padreny, has filed a Victim Impact Statement.

In that document she indicates that she feels the loss every day of the deceased and sees the deceased's face in the faces of her daughters.

35She states, "It breaks my heart to know that the girls will never get to experience their father in their life, no birthdays, Christmases, Graduations, milestones, or weddings will be complete."

36She feels she is no longer the happy person she was and struggles with daily chores. She indicates that she and the deceased had proposed to get married and these plans were cut short by a senseless and pointless tragedy.

37She indicates that her eldest daughter asks about her father every day, while the youngest has not been impacted, as she never got to meet her father.

38She indicates that the deceased had a thirst for life that was unquenchable. He

was putting himself back in schooling attempting to get a forklift licence and obtain employment. She is now to carry the load of the children on a pension, which she finds extremely stressful. She is seeking justice.

39The Victim Impact Statement indicates that your conduct has had a substantial impact on those immediately surrounding the deceased and, in particular, his partner and children. I must take into account the impact of your offending on those people, but recognise that no sentence of the Court can bring Mr McKenna back, nor fill the gap that has been left in the lives of his loved ones.

Your personal circumstances:

40Your personal circumstances are fully set out in a report by Mr Joblin, forensic psychologist, and I incorporate them by reference.

41Your Counsel on the plea described you as “normal”, and that is a fair description of your personal circumstances and background.

42You are aged 33 and you were 30 when this event occurred. Your parents are alive, but with health difficulties, and live locally, but you come from a stable family background.

43You have three brothers, one married and living in New South Wales; another living in Queensland, and your twin brother living with your parents locally and working as a truck driver. You attended the Gordon Institute to the equivalent of Year 10, and were able to obtain an apprenticeship as a motor mechanic and worked in that trade. Thereafter you worked in the petrochemical industry in Altona and Footscray and more recently here in Geelong. In addition you have been working as a barman and security officer and bottle shop attendant at a local hotel.

44In your early 20s you were involved in a relationship and you are the father of a daughter. In May 2012 you married your partner, and you have a daughter born 2013.  Initially your wife was supportive of you after this offence, but very

recently the two of you have separated.  You have a positive attitude to your children.

45Mr Joblin notes that you do not have a problem with alcohol and he was of the view that you do not require professional attention for alcohol or drug abuse. I am satisfied you have a good work ethic and are of good character.

Character Evidence:

46On the plea you called four impressive witnesses as to your character. The supervisor at your place of employment, the refinery, gave evidence that you are the shop steward and you have a good reputation for work, for safety and also for involvement in industrial relations, including persuading the employees recently to enter into an Enterprise Bargaining Agreement.

47There was also evidence from a security officer who had known you for some ten years and had employed you for security functions. He indicates that you have a good reputation and has no hesitation in your capacity to discharge your duties and taken on positions of responsibility.

48There was also significant evidence from a father and son team who are involved in a local hotel. They indicate that you are a trusted employee, when required, at particular functions, including the provision of security services.

Other matters in mitigation:

49You have pleaded guilty. You are entitled to the benefit of that. You have taken responsibility and have facilitated the course of justice and obviated the need for a trial.

50Your plea however was late and this reduces its utilitarian value. The plea could have been offered earlier. While I accept that you were charged with the more serious offence of culpable driving, the offence to which you have pleaded is an available alternative, and the plea offer could have been made earlier.  The

matter had been listed for trial previously and not reached. The matter only resolved after a pre-trial ruling against you as to the admissibility of the breath sample taken from you after the accident.

51I do not accept that the case of Nash v The Queen [2013] VSCA 172 relied on by your Counsel should lead to a different conclusion. Each case must be considered on the facts.

52I am satisfied that your plea is also evidence of remorse, and I have taken that into account.

53As I have indicated, your Counsel tendered a report from a well-known forensic psychologist, Mr Joblin. The report indicates that when he saw you recently he was of the view that you were suffering from depression. You have also been concerned as to the ramifications associated with the publicity of this event, and you have lost motivation.

54He notes that soon after the accident, you were referred for a number of counselling sessions and you appear to have symptoms of depression. He confirms that you are remorseful for your conduct. I have taken into account Mr Joblin's report in your favour.

Sentencing Considerations:

55In sentencing you I am required to take into account current sentencing practises as well as the maximum penalty, the circumstances of the offence, the impact on any victims, and your personal circumstances.

56The Crown Prosecutor stated that she found it difficult to find any comparable cases. This is not surprising in that the dangerous driving causing death or serious injury is manifested in a wide variety of circumstances.

57She referred to the case of DPP v Yeates [2011] VCC 713, where a youthful offender in a drag race was sentenced to a CBO. I regard that case as

distinguishable, on the basis that the judge found low culpability, the offence occurred soon after the maximum penalty was raised, and the offender was youthful.

58She also referred to the twin cases of Rodi v The Queen [2011] VSCA 48 and Rooke v The Queen [2011] VSCA 49, where the drivers were involved in a drag race and the vehicle driven by Rooke collided with another vehicle, resulting a death.

59Substantial sentences were imposed on both drivers, even though only one was driving the vehicle that directly led to the death.

60Overall the learned prosecutor indicated that there were a breadth of sentencing options available.

61I have considered these authorities of some evidence of current sentencing practice. Each case has its own features, and I consider the sentences imposed as something of a yardstick to be considered, along with all other considerations pertinent to this case in sentencing you.

62Your Counsel submitted, relying on the cases of Boulton v The Queen [2014] VSCA 342 and McAleer v The Queen [2015] VSCA 4 that the Court ought impose a CCO. I have had you assessed as suitable for such an order. Alternatively, Counsel submitted that a suspended sentence was an available and appropriate option.

63Your Counsel submitted that your moral culpability is reduced due to the contribution of the deceased to the accident and that general deterrence is to be reduced due to the complicity of the deceased.

64In this case, consideration of an appropriate sentence is difficult because whatever sentence is imposed will not satisfy the victims and a sentence will disrupt your life, family and employment.

Purposes of Sentencing:

65The basic purposes for which a Court may impose a sentence, are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

66In this case there are some room for specific deterrence as a factor given the driving record that I have referred to.

67The authorities make clear that general deterrence is a most significant sentencing factor for this offence. People who kill others in motor cars by their dangerous conduct need to know the severe consequence of their actions. The Courts must uphold the value of human life.

68It is significant that the maximum penalty for this offence was doubled in April 2008. This is a clear indication by Parliament of the seriousness of the offence. Yours was not a case of momentary inattention. This was a deliberate race on a public road in wet conditions where you were well above the speed and alcohol limit. This was a serious example of a serious offence.

69In DPP v Jansen [2011] VSCA 19 Justice of Appeal Nettle, as he then was said, at paragraph 34:

"The need for general deterrence of any particular type of offending is informed by the prevalence of that type of offending. From time to time different views have been expressed as to the sort of evidence, if any, which is required to establish prevalence and thus the need for general deterrence. Arguably the better view is that prevalence is something which the court may take judicial notice without the need for strict proof."

70He went on:

"Subject to proportionality and other relevant considerations, general deterrence is an important sentencing consideration in all cases of dangerous driving causing death."

71Another important consideration is denunciation. Your conduct is to be abhorred. The sentence must record society's condemnation of your conduct. In doing so it assists social rehabilitation. President Maxwell in DPP v Neethling 2009 VSCA 116 when discussing denunciation, referred to sentencing and social rehabilitation and said:

"The rationale of the criminal law is to minimise the damage occasioned by antisocial behaviour by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.

Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK [2003] VSCA 109:

"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and consideration represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery, is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never been removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred and the life of that person as a consequence of the commission of the crime may well aggravate its situation.”

In our view, these remarks apply with particular force to the offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in R v Musumecia (unreported, NSWCCA, 30 October 1997)

, that ‘the sentence must be seen to have a reasonable portion of proportionality to the objective circumstances of the crime. Persuasive subjective circumstances must not lead to inadequate weight being given to these objective circumstances.’ Similar sentiments were expressed by Spiegelman CJ in R v Jurisic (1998) 45 NSWLR 209:

"It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciations, courts do, and should have, regard to the moral sense of the community, and to community expectations of appropriate punishment. Courts are, however, aware of the requirements of justice and the requirements of mercy which are often in conflict, but we live in a society which values both justice and mercy.””

72When taking into account all of the submissions made on your behalf, applying these comments in this case is a difficult task as matters personal to you which invoke the principle of parsimony, compete against the objective seriousness of your offending, which calls for general deterrence and denunciation.

73Further, I must, and do, take into account the delay in this matter. The original trial was not reached and so it has been some 28 months since the offence to date, which has weighed on you, and for which regard must be had in your favour.

74You have used this period to continue working and nothing further has arisen, so I regard your prospects of rehabilitation as good.

75It is important to record that in 1970, a time when many in this Court were not born, or do not recall, there were 1034 Victorians who died on the roads that year. As a result of a concerted and continuing campaign, including media advertising, road design, car design, drug and alcohol testing, changes in road rules including speed limits, more enforcement and higher penalties by the court, this State is a world leader in road safety, and less than 300 people died on the roads last calendar year.

76Over the years Parliament has increased penalties for driving related offences, particularly those involving loss of life and injuries. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously, is to be regarded as a crime of some seriousness. The maximum penalty for this offence increased to ten years' imprisonment in 2008.

77In the course of the plea hearing I indicated that drag racing is a species of hoon driving. This is a prevalent offence and a social menace as seen as recently as 2006 and 2010 when Parliament tightened the laws relating to confiscation of vehicles for hoon driving.

78The Courts have a part to play in this continuing campaign as explained by President Maxwell. The sentence of the Court has to send a signal that notwithstanding compelling personal circumstances, motorists will be held responsible by way of significant penalties when their driving results in the death or significant injury to others.

79The community and those like the family impacted in this case expect nothing less. Notwithstanding the matters put on your behalf as to other sentencing options, considerations of general deterrence and denunciation, call for a sentence of imprisonment to be served here.

80I do not accept your submission that the complicity or contribution of the deceased as to his own demise leads to any other conclusion.

81I do not accept that a CCO in this case will serve all the ends of sentencing.

82A message has to be sent to all drivers that those involved in forms of hoon driving, including drag or street racing that results in death or serious injury to other road users, will result in sentences of imprisonment.

83In your case, having regard to the circumstances of the offence and the delay and your prior good character and prospects of rehabilitation, I have determined to suspend part of the sentence I impose.

84There is a mandatory licence cancellation and disqualification for this offence.

The period of that disqualification is further punishment and I have sought to fix a period that facilitates your rehabilitation.

85In fixing the period of disqualification, I have taken into account that you already

had your right to drive suspended for a period of nine months.

86Could you please stand.

87On Count 1, you are sentenced to 30 months' imprisonment. I order that 15 months of that sentence be suspended for a period of 15 months.

88This means that you will be required to serve an immediate term of 15 months' imprisonment.

89I order that licences that you hold are cancelled and you be disqualified from driving for a period of 18 months from the date of your imprisonment.

90I declare that you have served nil days of pre-sentence detention.

91Pursuant to s.6AAA I declare that had you not pleaded guilty I would have imposed a total effective sentence of three years' imprisonment and a non- parole period of two years.

92I must advise you that upon your release from prison, for a period of 15 months, the 15 months balance of the term of imprisonment is suspended. In the event that you are found guilty of an offence carrying a term of imprisonment over that period, then save in exceptional circumstances, you will be required to serve the balance of the 15 months term.

93Given the seriousness of the offence, I have decided to order a forensic sample.

The authorities may use reasonable force to obtain a sample from you.

94Are there any other matters, Mr Prosecutor?

95MR LEWIS:  No, Your Honour.

96HIS HONOUR: Could the prisoner please be removed. I thank Counsel for their attendance.

(Offender removed.)

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