DPP v Ballan

[2020] VCC 883

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02031

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENT BALLAN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 June 2020
CASE MAY BE CITED AS:	DPP v Ballan
MEDIUM NEUTRAL CITATION:	[2020] VCC 883

REASONS FOR SENTENCE
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Subject: dangerous driving causing death
Catchwords: guilty plea – spotlighting – rolled utility in paddock – no alcohol, drugs, fatigue or excessive speed – 1^st offender – category 2 offence – exceptional family hardship – substantial and compelling reasons established
Legislation Cited: Sentencing Act, s 5(2H)

Cases Cited: DPP v Neethling [2009] 22 VR 266, DPP v Oates [2007] 43 MVR 483, R v Teh [2003] VSCA, Andrew Farmer v The Queen [2020] VSCA 140, R v Markovic [2010] 30 VR 589, R v Najjar [2009] VSCA 246

Sentence: Community Correction Order for 30 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr S. Tovey

HIS HONOUR: 

1A driving offence that results in the death of or serious injury of another person is very serious.  The offence of dangerous driving causing death will attract an immediate term of imprisonment unless there are exceptional circumstances.

2I am satisfied in your case the hardship your family will suffer if you are imprisoned is exceptional and the cumulative impact of that hardship and the other circumstances of the case justify a departure from a prison sentence.  I will release you on a community corrections order which will commence today.

3On 5 June 2020, you pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury.  The maximum penalties are 10 years and five years' imprisonment respectively.

4The circumstances of your offending are set out in the summary of prosecution opening.  They are agreed facts.

5On 5 January 2019, around 9 pm, you were spotlighting on your brother-in-law's farm.  In the utility, which you were driving, your youngest child was a front seat passenger.  Your other four children together with your oldest daughter's boyfriend and oldest son's girlfriend, were standing within a shooting crate fitted to the tray of the utility.

6As you were driving through a large paddock you sighted a fox and followed it.  When one of the young men, who was standing in the rear of the utility, fired a shot, the fox turned to its left.  As you steered left to follow it, the utility's driver's side wheels dug into the loose soil and the vehicle rolled over.

7The six occupants on the tray were thrown out.  Your daughter's boyfriend, Brendan Hutton, suffered fatal injuries and your son's girlfriend, Zoe Rohrlach, suffered serious head and facial injuries.  Each of your children was injured to varying degrees.  You were also injured yourself.

8When police interviewed you the next day, you told them you were conscious of the need to be careful because you knew the paddock surface was soft.  You said you guessed that you were travelling at possibly 50 kph when you turned the wheel at about a 10 or 15 degree angle to follow the fox.  You said when you braked and tried to straighten the vehicle the vehicle started to lean slowly and you felt it was going to right itself but it did not.

9You said your brother-in-law had suggested you go out spotlighting as he and his wife and your wife were going to an engagement party in Rainbow.  You said you were not particularly keen to do it yourself but “the kids were fairly keen” and you were “the logical driver”.  You said your brother-in-law put the crate on the utility for you to go.  You said you had not consumed any alcohol before you got into the vehicle.  You said you had driven in the paddock many times before in various conditions and been spotlighting hundreds of time without incident, sometimes, with six on the tray, sometimes with less.

10When asked how you would describe having six people in the back of the ute, you said 'It's probably unsafe.'  When you asked whether you foresaw it being unsafe, you said 'I didn't foresee that anything like that was going to happen.  I can understand that it might.  There is always that sort of risk.'

11After questioning you, police released you pending further enquiries.  You were charged on 30 July 2019.  After a committal hearing, where only police witnesses were cross-examined, you pleaded guilty. 

12You have no previous convictions but have admitted an infringement conviction for exceeding the speed limit by 30 kph or more but less than 35 kph on 23 November 2004 for which you lost your licence for one month.

13You were born on 21 October 1964 and are now aged 55 years. 

14Your counsel, Mr Sam Tovey, told me your father was an air conditioning mechanic and your mother a homemaker.  You have three siblings.  You grew up in the Wattle Park area and attended local schools.  You completed Year 12 at Melbourne High School and, after one year of an electrical engineering degree at RMIT, you moved to Swinburne where you obtained an advance diploma in mechanical design and engineering.

15After university, you worked for Beauwater Scott and then Onga Pumps.  In 1988, you moved to WA Deutscher where you worked for 30 years. There, you were promoted to operations manager and then general manager.  A few weeks after this accident, you were made redundant as a result of a company restructure.  Because you were the primary income earner, your job loss has caused financial difficulties for the family.

16In 1989, you married and, with your wife, who has supported you in court, you have had six children.  Sadly, your second child, Larissa, was diagnosed with a brain tumour in 2002, when she was five years old.  She died 14 months later.  The loss was profoundly difficult for your wife and you.

17Your oldest daughter, Chantelle, works for a radiology practice and your oldest son, Daniel, is an apprentice carpenter.  Your youngest son, Riley, and daughter, Annaliese, are secondary school students.  Annaliese suffers a form of hip dysplasia.  According to her treating physician, Associate Professor Greta Palmer from the Royal Children's Hospital, Annaliese suffers daily sharp and bruising pain.  She is likely to need major pelvic hip surgery to try to correct the condition.  Her prognosis is guarded and she may be left with lifelong hip pain.

18Dr Palmer noted Annaliese also suffers PTSD symptoms in relation to the accident which are made worse by her own pain, her elder brother's diagnosis of metastatic cancer, the death of her elder sister's boyfriend and your legal proceedings.  She is prescribed anti-inflammatory medication for her hip pain and an antidepressant for her PTSD and the nerve component of her pain.

19Annaliese's counsellor, Sarah McGregor, wrote her PTSD and anxiety symptoms have improved with counselling. Nevertheless, according to Ms McGregor, Annaliese shows visible stress about your possible imprisonment. 
Ms McGregor anticipates a significant decline in her mental health should you be incarcerated.

20In May 2019, in the same week you lost your job, your middle son, Eamon, who was then studying his VCE, was diagnosed with Ewing's Sarcoma, a rare bone cancer.  For the last 12 months he has had intensive chemotherapy and radiation treatment.  Eamon's oncologist, Dr Leanne Super, at Monash Children's Hospital, wrote his cancer, which is in his hips, knee and spine, had significantly metastised when he was initially diagnosed.

21Because the cancer was significantly advanced, in her opinion, he has a five year survival rate of less than one third.  The day following his diagnosis he commenced a very intensive regime of chemotherapy. From May to December 2019 and in January and February of this year he was admitted to hospital regularly for chemotherapy.

22He also had radiation therapy which is scheduled to complete this month. 
Dr Super described you as a constant presence and source of support to Eamon over this time.  She wrote:

'Eamon has had difficulty gaining weight and meeting his nutritional needs and as a result of this he now has a tube providing supplemental feeds administered via a pump directly to his stomach via a gastrostomy.  Mr Ballan administers the feeds using equipment and training provided by the hospital'.

23She continued:

'The diagnosis of childhood cancer is confronting and distressing for any family, but for the Ballan's this is their second child to be diagnosed with cancer so it has been particularly devastating.  Eamon's older sister, Larissa, died as a result of a very aggressive brain tumour when she was six years old.  This had a profound effect on the family which has been further compounded by Eamon's significant cancer diagnosis.  Mrs Jenny Ballan rarely attends hospital appointments and when she does appears to have difficulty coping and it is unclear if she is able to take in any information.  Our assessment is that this is likely related to this prior history.  Mr Ballan has been Eamon's primary carer and support throughout his treatment and admissions.  Mr Ballan attends all appointments with Eamon and stays with him during admissions.  Eamon himself is an incredibly reserved young man who is carrying the weight of cancer diagnosis and treatment in addition to the trauma of the vehicle accident and the possible incarceration of his father.  Prior to his diagnosis Eamon was very withdrawn and did not share details of his private life with his family.  However, during the treatment he and his father have developed a strong bond which has been vital to his mental and emotional recovery.  Eamon's scans in April were free of disease but he is at very high risk of relapse.  He requires careful ongoing monitoring with regular medical appointments and scans.  There is a reasonable chance that if his disease will recur and while there may be an option of further chemotherapy the prognosis for survival and recovery will be very poor.  Family support is extremely important for this monitoring, especially given how withdrawn Eamon has been with all professionals involved with his care.  Mr Ballan is the only person we have observed who Eamon will voice his concerns or pain to and early detection of symptoms is vital in the identification of possible cancer relapse'.

24While you care for your son, your wife works part time as a swimming instructor.  She wrote one of 63 testimonials from family and friends who all attest to your considerable personal qualities.  She described the anguish of the loss of Larissa.  She wrote at that time you were a tower of strength to her and to the children.  You took time off work to help look after Larissa near the end as she, your wife, could not emotionally cope with it.

25She said she almost had a complete breakdown.  She confirmed the timing of your redundancy and Amon's cancer diagnosis.  She verified you were Amon's primary carer taking him to appointments and staying with him when he was hospitalised.

26She said you are a very careful, responsible, law abiding driver and have never caused any accidents before.  She said you are acutely remorseful for your actions and deeply distressed by the consequences.  Members of Brendan Hutton's family and Zoe Rohr, lach and her family, all wrote letters supporting you.

27Those families and yours belong to the same church and you have all known each other for many years.  Brendan's brothers wrote your deep remorse was immediate.  Peter wrote that Brendan enjoyed many family events with you where he felt he was respected and loved as one of your own children.

28Tim described you as always careful in shared family activities which included the Great Victorian Bike Ride and touring the Northern Territory. 

29Brendan's aunt and uncle described your regret as genuine.  They wrote:

'Kent is already serving a prison sentence in his own mind and this sentence will go with him for the rest of his life.  We cannot bring our nephew back but it is our express desire also that Kent's family not to be ripped apart by a further prison sentence'.

30Zoe has known you since she was a young girl, as she described it, 'through our walk with God'.  She said you were the first person to help her at the scene.  She said you have shown great sorrow and remorse for the injuries you caused her.  Because of their very high regard for you her family and her continue to support you.

31The references from your parents and children demonstrate you are a loving and caring son and father.  You are known in your church community and work circles as a careful, responsible and highly respected man who is devoted to his family and contributes to his church and community.

32Mr Tovey acknowledged your offending is undoubtedly serious and, in the absence of exceptional circumstances, a prison term must be imposed.  He submitted taking into account spotlighting, whilst an inherently risky activity is not illegal, that you were experienced in spotlighting on the property, that the utility was fitted with a purpose built spotlighting crate, that the dangerousness of your driving was limited to an excessive left hand steering input and the absence of aggravating features such as speed, alcohol, drugs or fatigue, that I should assess your moral culpability as low.

33In mitigation of penalty he relied on the following factors.  You are a 55 year old first offender who has otherwise led a blameless life.  You assisted police investigations by your frank confessional answers to them.  You made an early plea of guilty.  You are a devoted husband and father of five children.  You have an excellent employment history and you are profoundly remorseful.

34He also relied on the hardship your family will suffer if you are imprisoned as a mitigating factor.  He submitted, considering the impact of Eamon's cancer and Annaliese's hip condition and PTSD on each of them and their need for your care, that the hardship is exceptional.

35He also submitted the forgiveness of the victim's families is relevant to sentencing. As well, he relied on the additional burden of COVID-19 pandemic on prisoners. 

36He acknowledged for the charge of dangerous driving causing death that s.5(2H) of the Sentencing Act mandates an immediate term of imprisonment unless I am satisfied one of the statutory exceptions is established.

37In his written submissions he relied on assistance to law enforcement authorities under paragraph (a) as an exception.  By the time of the oral hearing the Court of Appeal had handed down the decision of R v Andrew Farmer [2020] VSCA 140 where an identical argument was rejected. In oral submissions he withdrew reliance upon it.

38Alternatively, he submitted relying on paragraph (e), your low moral culpability, in combination with your personal circumstances, the impact of COVID-19 on prisoners and the exceptional family hardship, amounted to substantial and compelling circumstances that are exceptional and rare and justify not making an order for your imprisonment.

39Ms Parkes, who appeared for the prosecution, submitted your driving, that is, making an excessive steering manoeuvre on uneven dirt ground, while carrying six unrestrained passengers standing in the rear of the tray, and engaging in the inherently dangerous and risky activity of spotlighting was a serious breach of the proper management and control of the vehicle you were driving.

40She submitted having regard to all the circumstances of your driving, including the conditions and your familiarity with them, your moral culpability should not be assessed as being at a low level. 

41She submitted, while they have not made victim impact statements, it is clear the Hutton family, Chantelle Ballan and Zoe Rohrlach have suffered significant trauma and suffering.

42She told me Ms Rohrlach fortunately has made a full recovery from her injuries.  She noted they are all supportive of you and expressed a wish you not be sentenced to a term of imprisonment. 

43She accepted you are remorseful and a hardworking man with a close and supportive family, and you are well liked and respected in your community.

44She also accepted your family had experienced tragedy as a result of Larissa's death and Eamon's illness and your imprisonment potentially will disrupt Eamon's and Annaliese's treatment and care.  Nevertheless, she submitted the hardship to your family is not exceptional.

45Alternatively, she submitted, should I be satisfied exceptional hardship exists, its mitigatory effects should be limited to moderation of the length of your term of imprisonment.  She acknowledged the risk of the COVID-19 infection will cause you added stress and anxiety in gaol.

46She also referred me to the statutory prescriptions under sub-s.(2HC) that I must give greater weight to general deterrence and denunciation than other sentencing considerations, I must give less weight to your personal circumstances than other matters such as the gravity and nature of your offending and I must not have regard to your previous good character other than the absence of previous convictions or an early guilty plea or your prospects of rehabilitation, when determining whether there are substantial and compelling circumstances under paragraph (e).

47She submitted the circumstances relied on are not substantial and compelling, nor are they exceptional and rare such as to justify not imposing a term of imprisonment.  She submitted the circumstances are the ordinary constellation of factors that arise regularly in sentencing in this court and do not surmount the very high hurdle to establish the exception.

48In that regard she referred me to Farmer's case. 

49She submitted general deterrence is the principal sentencing consideration in cases involving dangerous driving causing death and serious injury.  She referred me to the established principles stated in DPP v Neethling [2009] 22 VR 266 and to a number of other appellate court decisions.

50I have used them for guidance as to the applicable sentencing principles and practices. 

51On the charge of dangerous driving causing death in your case a term of immediate imprisonment must be imposed unless I am satisfied there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order for imprisonment.

52As the Court of Appeal said in Neethling:

'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'.

53The appellate courts have also stated a fulltime custodial sentence is not necessarily required in every case.  See for example DPP v Oates [2007] 43 MVR 483 per Neave JA with whom the Chief Justice agreed, at paragraph 22.

54Your moral culpability is relevant to the sentence I impose.  Your excessive left hand steering input caused the car you were driving to roll over.  By your guilty plea you acknowledge that manoeuvre was dangerous in the circumstances.  I have viewed the police photographs of the accident scene and the Major Collision Investigation Unit reconstruction.

55You were driving in an open flat 600 acre paddock.  Your steering manoeuvre while dangerous on the soft ground was gradual rather than sharp.  While I accept you have done the same thing hundreds of time and did not anticipate you could kill or seriously injure someone, as you acknowledge, there is a safety risk in spotlighting.

56I must take into account you put the six people who were riding in the utility tray at risk.  One lost his life and another was seriously injured.  I must also take into account you were not speeding, your driving was not aggressive or erratic, you had not consumed any alcohol or illicit drugs and you were not fatigued.

57I take into account you have a reputation as a careful driver.  You have a good driving record over a period of more than 30 years.  One of your friends, Mark Westley, wrote his daughter and yours were both diagnosed with terminal cancer at different hospitals in different states on the same day.

58Mr Tovey told me the one blemish on your record occurred when you failed to slow down when you entered a 60 kilometre speed zone while you were driving Mr Westley's children to hospital to see their dying sister.

59Overall I assess your moral culpability as low to mid-range. 

60Mr Tovey submitted you are an exceptional man.  It is to your credit you have lived an otherwise good and decent life.  I accept you are deeply remorseful and take into account the grief and guilt you carry for the grave consequences of your actions.  See R v Teh [2003] VSCA 169 per Justice Vincent with the Chief Justice and Justice Calloway agreeing at paragraphs 20 and 21.

61I also accept you almost certainly will never reoffend. 

62However, individually and in combination your personal circumstances, while not so commonly seen in this court, are not exceptional.  As the prosecutor pointed out, I must give less weight to your personal circumstances than the seriousness of your offending and I must disregard your previous good character other than the absence of previous convictions.

63I must disregard your early guilty plea and your excellent prospects of rehabilitation.  I must also give greater weight to general deterrence and denunciation than other sentencing considerations. 

64Hardship to third parties is only relevant in mitigation where it is highly exceptional or the exceptional case where the plea for mercy is seen as irresistible.  See R v Markovic [2010] 30 VR 589 at [7].

65In that case a five member Bench affirmed the principle that unless the circumstances were shown to be exceptional family hardship was to be disregarded as a sentencing consideration.  At [77], the court said:

'Whether or not in any particular case family hardship gives rise to exceptional circumstances must be a question of fact and degree.  A sentencing judge should also have regard to the many examples in the decided cases of undoubted hardship which have nonetheless been held by the appellate courts to fall short of exceptional circumstances.'

66Exceptional hardship can arise where a family member is especially vulnerable and dependent on the offender or where there are a number of vulnerable dependents.  See Markovic's case and also R v Najjar [2009] VSCA 246

67As Dr Super noted, the loss of your daughter, Larissa, has significantly exacerbated the distress you and your family suffer as a result of Eamon's cancer diagnosis and, as the prosecutor acknowledged, you have a unique role in Eamon's care.

68You accompany him to his appointments and stay with him when he is admitted for treatment.  His doctors rely on you as the communicator between your son and them and you are the only non-medically qualified person who can assist your son with his tube feeding.

69Without you, his treatment and care will be severely disrupted. 

70Annaliese has major PTSD and anxiety symptoms.  In her psychologist's opinion, it is likely her mental health would significantly worsen in the event you are incarcerated. 

71Considering Eamon's grave illness and Annaliese's guarded hip prognosis and frail mental health, and their reliance on you as their primary carer, I am satisfied, if you are imprisoned, your family will be exposed to exceptional hardship.

72In deciding whether there are substantial and compelling reasons that are rare and exceptional that justify the imposition of a non-custodial sentence I have derived considerable assistance from the decision in Farmer's case.

73There, the court held, in the case of an 18 year old offender who had pleaded guilty to an armed robbery, the cumulative impact of the circumstances of the case compelled the conclusion that the mandatory detention provision should not apply. The court noted as a most unusual feature, that the offender suffered a physical disfigurement which had profoundly affected his life, which explained his offending and which made him extremely vulnerable in custody.

74The court said, at [51] and [52]:

'Within the context of s.5(2H)(e) is a residual category of limited scope. On any view it is a high hurdle that will often not be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment. Importantly community correction orders or a combined community correction order and term of imprisonment are not available. In many cases, given the type of offences within category 2 a term of imprisonment will be inevitable. In some cases the operation of s.5(2H) will be harsh. In other cases a term of imprisonment would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work a serious injustice. To a degree paragraph (e) of sub-s.(2H) guards against the risk of injustice but the stringency of the test cannot be avoided.'

75It is clear that the test for the paragraph (e) exception is very high.  In considering the test, under sub-s.(2I), I must have regard to Parliament's intention that an immediate term of imprisonment without a community correction order should ordinarily be made and decide whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

76I am satisfied the exceptional hardship your family, particularly your son and daughter, will suffer if you are imprisoned, and the cumulative effect of that hardship and the other circumstances of the case, in combination, are rare and exceptional and compel the conclusion that the mandatory detention provision should not be applied.

77I have had you assessed for a community correction order and you have been found suitable.  You told the assessing officer the consequences of your driving, and the impact it has had on everyone affected, have devastated you and you will never go spotlighting again.

78You were assessed as a low risk of reoffending and I accept the assessing officer's recommendation that minimal order conditions are an effective way of maintaining your low risk of recidivism.

79On the charges of dangerous driving causing death and dangerous driving causing serious injury you are convicted and released on a community correction order which will commence today.  The duration of the order will be 30 months.

80In addition to the mandatory conditions which the assessing officer explained to you I order that you complete 250 hours of unpaid community work.  I remind you a condition of the order is that you attend the Box Hill Justice Service Centre at 703 Station Street, Box Hill within two working days of today's date.

81While there is some artificiality and intellectual difficulty in stating the benefit you have received because of your guilty plea, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to two years' imprisonment and imposed a minimum non-parole release period of
12 months.

82As s.89(1A) of the Sentencing Act requires me to do, I order all licenses and permits held by you under the Road Safety Act be cancelled and you are disqualified from obtaining any further license or permit for the statutory minimum period of 18 months from today.

83MR TOVEY:  Yes, Your Honour.

84HIS HONOUR:  I do not appear to have any discretion.

85MR TOVEY: No. I have dealt with the section before. I have not found a discretion even I doubt in the few frantic moments I am spending now one will suddenly appear. In the ordinary course of events the court is unable to exercise any discretion either with respect to length or timing in the absence of a notice under s.51 of the Road Safety Act which has the effect of a provisional suspension in certain circumstances.

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