DPP v Gary Dickinson
[2019] VCC 1387
•14 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00121
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY DICKINSON |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2019 | |
DATE OF SENTENCE: | 14 June 2019 | |
CASE MAY BE CITED AS: | DPP v Dickinson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McWilliams | Office of Public Prosecutions |
| For the Accused | Mr D. Hannan | Armstrong Legal |
HIS HONOUR:
1. Gary Dickinson, you have pleaded guilty to a charge of dangerous driving causing death. This offence carries a maximum penalty of ten years' imprisonment.
2. The offence occurred on 20 July 2018 when you were 60 years of age. You are now 61 years of age. You have no previous convictions or appearances and no pending matters. You have no Roads Corporation history whatsoever which is significant given your 10 year history as a professional driver. You are not only of unblemished character, your previous and subsequent character could be described as exemplary. It is not unusual, however, for persons who commit this offence, due to distraction or lack of attention and concentration, to be of otherwise good character.
Relevant facts
3. The facts of the matter are set out in the Prosecution Opening, Exhibit A on the Plea. Exhibit A forms part of these reasons for sentence. There was also detailed discussion and analysis on the Plea as to the precise circumstances of your offending.
4. Comprehensive CCTV footage captured the tragedy. An assessment of the criminality involved in this offence and the level of your moral culpability requires a careful analysis of all of the available materials including the CCTV footage, your record of interview, the available maps, diagrams and photographs, and the summary of evidence provided in Exhibit A.
5. You had been a bus driver for approximately 10 years at the time of the offence. Prior to driving buses you were employed in the aeronautical engineering field for most of your working life.
6. The victim of your crime Ms Julieanne Johnston, who was known as Julie, was on her way to work at the time. She was also 61 years of age. She lived in Kilsyth with her husband. She was employed as a public servant with Victoria Police. She drove to Croydon Railway Station each working day to catch the train to work. I was told by her friend, Ms McIntosh, during the Plea Hearing that Ms Johnston was always very careful, she parked her car in the same spot every day, caught the same train and picked out the same seat on the train each day.
7. On the morning of 20 July 2018 you commenced work at the Ventura Depot in Croydon at approximately 5.25 am. You drove to Montrose where you commenced a transport run to Croydon Railway Station at about 5.47 am. You picked up six passengers en route. At Croydon Railway Station you stopped at Bay 5 and your passengers exited. Two further passengers got on the bus.
8. At 6.08 am you set off to commence the route 690 run to Boronia. You drove the bus into the running lane heading for the exit as you had done so often before. You drove this run three to four times a day several days a week. You were driving at an appropriate speed for the environment.
9. In order to exit the terminal from Bay 5 you must traverse two zebra crossings. The second and longest crossing is the one Ms Johnston was on when she was struck by the bus you were driving. The approach to this crossing requires a right-hand turning motion. Immediately upon traversing the crossing the bus must rotate sharply to the right in order to exit the terminal. The angle of the right-hand turn at this point appears to be approximately 90 degrees.
10. Ms Johnston had parked her car in the railway station car park and walked from the car park towards the railway station shortly prior to the collision, as she did each working day. She can be seen clearly on the footage making her way at a steady walking pace along the middle of the crossing. As you drove toward this crossing, but prior to veering right some 45 degrees before meeting the crossing, Ms Johnston was in your field of vision if you looked directly to your right out the driver’s side window.
11. There are transparent bus shelters between the pedestrian crossing and the path of the bus at the midpoint. There were some people in and around the shelters. As you veered right your attention was drawn to a pedestrian ahead of you and slightly to your left. You were anxious to be sure that this pedestrian stepped back onto the kerb, and he did so. This pedestrian and your observance of him can be seen on the footage occurring within a few seconds of the collision.
12. As you turned to meet the zebra crossing your speed did not appear to slow greatly but nor was it in any way hurried or inappropriate for the circumstances, save for your failure to observe Ms Johnston. You were not travelling so fast as to be unable to stop had you paid adequate attention to whether there were any pedestrians on the crossing. Having turned to the right some 45 degrees in order to meet the crossing at a perpendicular angle you commenced the hard right-hand turn through the crossing. Tragically you had failed to observe Ms Johnston.
13. As Ms Johnston walked along the crossing she appeared to realise, shortly prior to your entry onto the crossing, that the bus was not stopping. It appears that she tried to take a step back. As you continued the hard right turn through the crossing, the near front driver’s side of the bus appeared to encroach further upon Ms Johnston. Tragically, the bus struck her behind the front driver’s side wheel arch and she was dragged under the vehicle. At the time of the collision you were travelling at approximately 14 kilometres per hour.
14. You became aware immediately that you had collided with someone and you stopped the bus. You got out and ran to Ms Johnston’s aid. You instructed others to call ‘000’ while you did your best to provide comfort and support to Ms Johnston. You waited with her holding her hand until the ambulance officers arrived. You assisted at the scene once emergency services were in attendance.
15. Ms Johnston was conveyed to hospital for treatment, however, she passed away later that day.
16. You were arrested at the Croydon Depot and taken to Croydon Police Station for interview. You made full and frank admissions. You were also clearly distressed during the interview.
17. You stated that prior to making the turn through the pedestrian crossing you were watching a man walking on the road rather than the pavement. You stated at Question 41 that you made this observation. I will not read out the answer to that question in these reasons for sentence.
18. You told police that you would drive this particular route every day, two or three times a day. It is likely your bus and Ms Johnston had crossed paths previously.
19. You gave candid answers to police in relation to the various hazards and obstructions to clear vision that were present at the scene and in the circumstances: it was dark at the time, the area is lit but reflections off glass can be a problem, there are bus shelters that can interfere with a clear line of sight, there are some trees and a light pole in the vicinity, the pillar of your vehicle obscures vision to the extent that you routinely lean forward to ensure that there is no hazard to your right.
20. None of these matters were seized upon by you as an excuse or even an explanation for your failure to see Ms Johnston on the crossing. You could not explain why you did not see her at all, at any stage. I accept unreservedly that you did not see her at any point in time prior to or at the point of collision. This was not a case of you trying to rush past an oncoming pedestrian.
21. You did look to your right at the relevant time. This is clearly seen on the footage. However, the inescapable conclusion from the events is that your attention to the task of ensuring that the zebra crossing was free from approaching pedestrians as you turned through it was inadequate. In all of the circumstances, and in particular considering the circumstances that you were in charge of a heavy vehicle and that pedestrians had the right of way across your path, your failure to make sufficient observation to ensure the crossing was clear amounted to dangerous driving.
22. The pedestrian ahead of you and to the left was a distraction, and it was appropriate that you paid due regard to that risk. Nevertheless, any risk created to pedestrians to your right by reason of your attention on the pedestrian to your left could be ameliorated by slowing considerably. You should have slowed considerably whilst your attention was drawn to the pedestrian to your left.
23. It may be that a bus shelter or persons in or around the bus shelters, a light pole, the pillar of your vehicle or even the bus mirror (as you later pondered), obscured your view of Ms Johnston temporarily. There are bus shelters between the path your bus travelled and the crossing and there were people in and around the shelters.
24. Your view could have been momentarily obscured. However, your duty to give way to pedestrians required you to make sufficient observations in order to eliminate the possibility that a pedestrian was within the danger zone of your approaching vehicle, making allowances for blind spots.
25. In your interview you stated that you were rested and well enough to drive. As has just been discussed you referred to a tragic event in the lives of you and your extended family, and this was canvassed at Questions 352 onwards in the interview.
26. As has been discussed that matter was also referred to in the clinical notes of the counsellor you saw through Road Trauma Services where you made reference to the fact that your nephew had tragically suicided two weeks prior to the incident. You had been driving your bus on that day when you received a message to call your brother-in-law John. Your sister Julie was competing in dragon boat trials in Rome as she refers to in her reference.
27. You rang John to be told that your nephew had ended his life at home. You completed your bus run and then went to the home, supporting your family. You patched up holes in the ceiling prior to picking up your sister from the airport because, as you had said to your brother-in-law, you did not want her to see those. You supported the family and friends who were visiting during the period of grief and then you attended the funeral on 19 July, being the day before these events.
28. You told the counsellor you had only ever attended one other funeral. You cannot cope with others' emotions. You got home after the reception and went to bed at 9.30 pm, then you were up at 4 am for work the following day which was, of course, the morning of this incident. You arrived at work in the dark at 5 am.
29. Those matters are also referred to in the reference that was tendered from your sister, Julie Owen, which goes into detail about your involvement in those events and the impact upon you.
30. The proximity in time of your nephew’s funeral and the events leading up to it, to the commission of the offence is relevant in the context of your inexplicable failure to see Ms Johnston in circumstances that you had negotiated satisfactorily several times a day over several years previous.
31. It is possible that the strain of the previous fortnight, culminating in the funeral, was a factor that contributed to your poor attention at the relevant time, together with other prevailing factors associated with driving in the conditions, some of which I have summarised. Allowance must also be made for perceptual and attentional limitations and fluctuations that might otherwise be described as human frailty.
32. In the final analysis, it is difficult to attribute any specific mitigatory weight to the matter of the proximity of your nephew's funeral to these events.
Victim Impact Statements
33. Ms Johnston was a much loved wife, sister, stepmother, grandma, aunt, great aunt and friend. I received three Victim Impact Statements each in their own way poignant and expressive of the terrible grief, loss and anxiety associated with the tragic death of Ms Johnston.
34.
Her friend of 30 years Ms McIntosh has lost a dear companion.
Ms Guthridge, her sister, spoke of shock and distress, the anxiety. She stated that she makes this statement because her sister no longer has a voice.
Who speaks up for her? Why did she have to suffer? She was a loving person and always doing the right thing. The day Julieanne left us, everything I believed about safety and security in the world was gone, it felt like ‘someone pulled the rug out from under me.
35. Ms Guthridge speaks of the particular impact upon her in relation to anxiety and how that affects her life. She also stated:
I have compassion for the driver as I know Julieanne would; but then become angry as she was on that crossing to ensure she was safe. She didn't want to die.
36. Ms Kelly Johnston has experienced trauma and anxiety as has her son. Amongst other things Ms Kelly Johnston stated:
To put it quite simply, I'm not coping as well as I'd like to be, although I am able to hide it better now. There's still a considerable strain on myself and my son's relationship because while I'm grieving for Julie I have, to a degree, been neglecting to take care of all of Keon's needs both emotionally and mentally.
37. Ms Johnston's statement goes on to speak on behalf of Keon.
Keon has become worried that everyone he loves will be in an accident and die just like Grandma did.
38.
Ms Kelly Johnston also spoke on behalf of the late Ron Johnson, the husband of the deceased. Mr Johnston participated in a restorative justice program and found it provided some benefit to him. Ms Guthridge also makes reference to Ron Johnson’s experience in the program in her victim impact statement.
Ms Kelly Johnston states on behalf of Ron Johnston:
Ron Johnston believed that under other circumstances he and Gary Dickinson could have been very good friends. Dad said on many occasions that if speeding, drugs or alcohol had been involved he would have been very angry, however, after meeting with the bus driver, Dad believed that if the bus driver were to be sentenced to prison that it would have a very negative effect because he has already lost so much through the accident. Dad kept saying that we've lost Julie and we will never get her back but the bus driver's family didn't need to be forced to lose a husband, father, grandfather etc., by sending him to prison.
39. I accept this statement and take it into account. I am also aware that the family and friends do not all ‘speak with one voice on this issue’ to use the words of the prosecutor, Mr McWilliams.
40. The significant impact on the victims in this matter are an important consideration in the sentencing process.
Personal history
41. You were born in 1957 and are now 61 years of age. You were born in Manchester, England, coming to Australia at the age of 21. You were one of triplets, I was told, the other triplets living overseas. As I have mentioned, your sister, Julie, lives here.
42. You have an impeccable and impressive work history in particular in the aircraft manufacturing industry, over 30 years, culminating in promotions with Boeing Australia to inspector in charge of the material review board and raw source inspector. There were retrenchments in 2004 and you left then. You were then self-employed for three to four years running a takeaway shop, before your employment commenced at Ventura Bus Lines in 2008.
43. You have three sons, Chris and Carl who are twins born from your first marriage and Ken, who is a stepson, the son of your second wife, Ping. You were married to Ping in 1995. I was told that from your twin sons' age of 13 you were the principal carer and sole parent in relation to the boys, and particular references give testament to the fact that you went to great lengths to ensure that the boys wanted for nothing emotionally, socially, financially and so on.
44. You have led an industrious and blameless life. A number of references from workmates and friends speak to that and, in particular speak to your responsibility and caring attitude throughout the work environment and also in a personal sense.
45. You are a significant carer to your elderly father who is 94 years of age. You help with the cleaning, cooking for him, medical appointments, shopping. Four to five times a week you would take him for lunches and also visiting his wife, your mother, who resides in an aged care facility and is blind.
46. One of the consequences of the orders I will make will be an order against your driving licence which will, in particular, have a punitive effect on you given these activities you engage in.
Previous good character
47. Your previous character is impeccable. You have demonstrated the qualities of selflessness as well as great care and compassion for others during your life. You have been a responsible and considerate individual over your 61 years. I received a number of references from workmates, family and friends. These references attest to your character and several examples of your generosity, kindness and warmth were provided in those references.
Remorse, contrition and response to the offence
48. You have demonstrated remorse and contrition of the highest order. You were appropriately distraught after the event and reported that you were suicidal in the hours following. You have castigated yourself daily and you have been obsessed with examining how it was that you didn’t see Ms Johnson.
49. Reports were tendered on the Plea including a Psychological Report from Alexander Thornton who you have been seeing as a treating psychologist. Amongst other matters Mr Thornton states that you impress as a man who exhibits a high degree of conscientiousness and orderliness. Your life today indicates no tendency towards recklessness or a lack of responsibility, in fact, quite to the contrary. As such, your recovery from the incident is likely to involve a considerable process of self-enquiry and reorientation. Your attitude to the event is one of profound regret and contrition.
50. The Road Trauma Services Report authored by Jane Phillips, counsellor, who you were seeing through that program states, amongst other matters, as follows:
It was immediately apparent that Mr Dickinson was profoundly affected by the incident, and cried often during his re-telling of the story. He admitted to seriously contemplating suicide in the initial 24 hours, but was unable to come up with a means that would not further traumatise his family. He was unable to stop thinking about Julie and her family's grief. He described a loss of appetite, constantly churning stomach, feeling extremely distressed, avoidance of reminders of the incident, and loss of interest in things he'd previously enjoyed. He was having difficulty concentrating, was less tolerant than normal, and felt a sense of detachment "My life will never be the same again." Mr Dickinson also stated that he was prepared to accept the legal consequences, and spoke of the incident as “a terrible accident,” which had nonetheless resulted in a loss of life.
51. Ms Phillips further stated:
Over the months I've observed him experience and express a range of intense emotions - including remorse, regret, shock, disbelief, resignation and grief. His primary concern throughout the journey has been for the family of the deceased, then his own immediate family, and lastly himself. I have no doubt that Mr Dickinson is genuinely devastated that his actions in driving the bus that day resulted… in the death of a lady on her way to work.
52. You also participated in the restorative justice program. The needs of that program require that it has some sensitivity around it, and confidentiality, but it is clear that you participated fully and that that was a matter of some importance to the late Ron Johnston.
53. You have engaged in other actions which demonstrate what I find to be deep remorse.
Plea of guilty
54. A significant discount is available to you due to your plea of guilty, which is reflective of your deep remorse. The plea of guilty in a matter such as this also has a significant utilitarian value. It is significant that you chose to plead guilty in circumstances where you were advised that a trialable issue was available.
Objective seriousness and moral culpability
55. The offence of dangerous driving causing death is inherently serious as it involves the loss of life. Ordinarily a term of imprisonment to be served is imposed for this offence.
56. Upon viewing the vision of Ms Johntson being knocked down by the bus you drove, whilst she was going about her daily routine in the safety of a pedestrian crossing, members of the community would quite rightly experience bewilderment and anger at such an avoidable loss of life. The bewilderment and unimaginable grief experienced by Ms Johntson’s loved ones is beyond words.
57. I must impose a sentence that expresses the community’s denunciation of your crime as well as deterring others. The punishment I impose, and the extent it reflects community denunciation and the need to deter others, is commensurate with your degree of moral culpability.
58. No sentence I can impose can reflect the loss of a life or the bewilderment, anger, despair, anxiety and grief that flows from such a loss.
59. As Mr Hannan submitted on the Plea with reference to authority, the offence of dangerous driving can encompass a very wide range of conduct. In the determination of the appropriate sentence, it is necessary to take into account the objective dangerousness of an offender’s driving and the moral culpability of the offender. In particular, it is recognised that the moral culpability of the driver is of central importance to my task. Your moral culpability is inextricably linked to the degree of your departure from the proper conduct of your vehicle and the level of danger created by that breach.
60. Absent from your driving were many features that are often associated with this offence: you were not speeding, you were not intoxicated, your driving was not erratic, you were not driving your vehicle aggressively, you were not using your mobile phone or engaging in some other activity that distracted you from driving, you were not tired or fatigued, you had not ignored road signs or warnings.
61. The fatal impact occurred because you failed to look and observe to a sufficient standard to ensure the crossing was entirely clear. You did look to your right as you were entering the crossing, which does indicate you made an endeavour to keep a proper lookout, however it was too late and inadequate, as were any earlier observations you may have made of the crossing. If there were blind spots you failed to make allowance for them. Your driving is to be contrasted, however, with the sort of case where no such effort has been made.
62. Your failure to keep a proper lookout was momentary, a matter of seconds. This sort of offending is sometimes described as momentary inattention or a momentary lapse of concentration. Your offending fits into this category. It was submitted by Mr Hannan on your behalf that in all of its circumstances your offending was at the lowest end of moral culpability. I indicated that whilst it was low end, I did not consider it to be at the lowest end. I remain of that view.
63. In the authorities provided to me, in particular in the matter of Woldesilassie, medium neutral citation [2018] VSCA 285 at paragraph 24, there is reference to the case of Director of Public Prosecutions v Oates (2007) 47 MVR 483 where Appeal Justice Neave stated the following principles that are applicable to a case of dangerous driving:
1.General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2.A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3.The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4.A custodial sentence will usually be appropriate for this offence except in cases where the offender's level of moral culpability is low.
64. Your Counsel submitted that a Community Corrections Order without a custodial component could meet all of the sentencing factors I must consider given your plea, exceptional remorse, contrition, and previous character.
65. The Prosecution submitted that a combination sentence was within range but a straight Community Corrections Order was not. The Prosecution placed emphasis on the risk associated with driving a heavy vehicle across a pedestrian crossing, without applying the appropriate care and attention to keeping a lookout for pedestrians.
66. I have given careful consideration to whether a Community Corrections Order could give effect to the various sentencing factors that I must consider. I consider your prospects of rehabilitation are excellent. Specific deterrence is not a weighty consideration in your case. It is clear that general deterrence is one of the principal sentencing considerations.
67. However, your moral culpability is low. I have had particular regard to the brevity of the lapse, as well as the fact that you have driven the same course several times a day, week in week out, for years without incident. Your profound remorse is patently clear. I consider that in your case general deterrence, denunciation and just punishment can be satisfied by a Community Corrections Order without a custodial component. The Community Corrections Order I will impose is a significant punishment, a significant deterrent and form of denunciation in itself.
68. When the circumstances of the fatal incident are properly analysed this is a case of momentary inattention where your moral culpability is low. Despite the serious nature of the offence, despite general deterrence being a principle sentencing consideration, and despite the tragedy of the death of Ms Johnston and the understandable grief of the other victims, this is one of those rare cases where a non-custodial disposition is appropriate.
69. I now sentence you, Mr Dickinson. You can stand.
Sentence
70. On the single charge of dangerous driving causing death you are convicted and sentenced to a Community Corrections Order for a period of three years.
71. You are to perform 300 hours of unpaid community work within the first two and a half years of that order. This will be onerous, I expect, particularly given your absence of the right to drive which I will come to shortly.
72. The conditions of the order will be explained to you once you have consented to it.
73. Pursuant to s.89(1)(a) and s.89(2)(a) of the Sentencing Act 1991 (Vic) I order the cancellation of your driver’s licence and disqualification from holding or obtaining another one for three years from today’s date. This order will also have a punitive effect upon you given your involvement in the care of your mother and father.
74. Pursuant to s.6AAA of Sentencing Act 1991 (Vic) I declare that but for your plea of guilty I would have sentenced you to a term of imprisonment of nine months in combination with a two and a half year Community Corrections Order.
75. I make the s.464ZF Order sought because it is not opposed and it is in the public interest to do so, and I will sign that order once it is prepared. I will deal with that once we have dealt with the Community Corrections Order.
76. Yes, you can take a seat for the moment, Mr Dickinson. There will be an order prepared that you will be asked to consent to and sign.
77. I mentioned a 464ZF Order, Mr Dickinson. That is an order providing for a scraping from the mouth which in turn becomes a DNA sample. That is to be done by attending, within four weeks, the police station for that to take place and I am obliged to warn you that if you do not consent to it reasonable force can be used to obtain the sample.
78. As I have indicated the order is made because it is not opposed and the granting of the order is in the public interest.
79. You will now be asked to consent to the Community Corrections Order and provide your signature on the document.
80. As I said, the order is for three years, commencing on 14 June 2019 and ends on 13 June 2022. You must attend at the Ringwood Community Correctional Services, Level 1, 2 Bond Street, Ringwood within two clear working days from today.
81. The mandatory terms that apply to all community corrections orders are, you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. You must report to and receive visits from the Secretary of the Department. You must report to the Community Corrections Centre within two clear working days of the order. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary. You must obey all lawful instructions from and directions of the secretary and the special condition is that you perform 300 hours of unpaid community work over a period of 30 months as directed by the regional manager.
82. If you fail to comply with this order the Secretary of the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act 1991 and of course, Mr Dickinson, if you were to breach the order or fail to complete it you would be back before me for resentence.
83. I will now hand that document to you and ask you to sign it. I will now sign the order. All right, Mr Dickinson, you are now on the Community Corrections Order.
HIS HONOUR: Mr Hannan, you understand all of that?
MR HANNAN: Thank you, Your Honour, yes.
HIS HONOUR: You'll be able to communicate or your instructor – you've got an instructor here, have you?
MR HANNAN: My instructor's there as well, yes, he is. Mr Brown.
HIS HONOUR: All right. Mr Dickinson, your legal representatives will be able to explain further to you the contents of that order. You'll get a copy of it. Anything else?
MR BROWN: No, Your Honour.
HIS HONOUR: All right. Yes, adjourn to 10.30.
MR HANNAN: As Your Honour pleases.
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