DPP v Warrick

[2016] VCC 1134

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 15-02258

DIRECTOR OF PUBLIC PROSECUTIONS

v

WINSTON WARRICK

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	5 August 2016
CASE MAY BE CITED AS:	DPP v Warrick
MEDIUM NEUTRAL CITATION:	[2016] VCC 1134

REASONS FOR SENTENCE
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Subject:                     Sentence – Criminal Law – Dangerous Driving Causing Death
Legislation Cited:     Crimes Act 1914 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:DPP v Neethling [2009] VSCA 116; R v Whyte and Ors (2002) 55 NSWLR 252; DPP v Oates (2007) 47 MVR 483; R v Jurisic (1998) 45 NSWLR 209, Stephens v The Queen [2016] VSCA 121, Boulton v The Queen; The Queen ; Fitzgerald v The Queen [2014] VSCA 342

Sentence:3 year Community Correction Order with 200 hours of unpaid community work and various conditions.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms A. Ward	Brown and Proudfoot

HIS HONOUR:

1Winston Warrick, you have pleaded guilty to one charge of dangerous driving causing death, contrary to s.319 of the Crimes Act. 

2The maximum penalty for the crime of dangerous driving cause death is ten years imprisonment. 

3Now before dealing with the circumstances of the offending, I should acknowledge that your offending caused the death of Aaron Jervis, he was only 43 years of age.  Married to Fiona Jervis, he was the father of two young boys.  His death has caused profound and lasting grief and distress to his widow, his children, his parents, his sibling and his work and social friends. As the heart-rending victim impact statements tendered on the plea, and the one read to the court by Mrs Jervis (with the assistance of her younger son) show, he was a loved and caring, hardworking and a devoted family man.  The consequences of his death serve also to remind us all why it is that the duty to keep a proper lookout on our roads and not drive in a manner that is dangerous, is the subject of criminal sanction in our courts.

4I should also say to those members of Mr Jervis' family who are present here or in Horsham, and his friends, that any sentence imposed here today is not to be understood as in any way placing a value on the life that has been lost, or upon the grief and emotional trauma that his death has caused.

Circumstances of the Offending

5Now the circumstances in which this offence occurred are set out in considerable detail in the summary of prosecution opening,[1] the accuracy of which you accepted through your counsel.  At 4.30 in the afternoon on 19 May 2014, you were driving your Utility in a northerly direction, along the Quantong Cemetery Road, approaching its intersection with Polkemmet Road.  You have lived all your life on the Quantong Cemetery Road, on a property that is only four kilometres south of this intersection.  It was late in the day and the sun was low in the northwest. A give way sign, a little distance south of the intersection was applicable to vehicles travelling north, and so, applicable to you. 

[1] Exhibit 1.

6A great deal of material concerning the police analysis of the collision and extensive photographs were in evidence on the plea and were summarised in the opening. It was not in dispute, and the photographs tendered by the prosecution illustrate this clearly, that your view of Polkemmet Road to the west was obscured to a degree, by bushes, trees and other vegetation and that the sun, though well to the north of west was low and would have been in your field of view.  As would the slightly cumbersome left sided A Pillar of your Utility. These circumstances should have, of course, commanded additional caution when approaching that intersection by you.

7It was put on the plea on your behalf, and the prosecution did not dispute, that you had stopped or slowed sufficiently to change into first gear at about the point where the give-way sign is located and, seeing no traffic on the intersecting road, proceeded into the intersection at a speed that the police analysts calculated to be 16 kilometres per hour. Tragically, the deceased was driving along Polkemmet Road in an easterly direction in his Toyota Prado work vehicle, at a speed the police calculated at 103 kilometres an hour, when the front of your car clipped the driver's side of Mr Jervis' at about the back door, causing his car to spin and then roll many times before coming to rest in a nearby paddock. There was no sign of braking or evasive action taken by Mr Jervis' car before the collision. It is likely that he did not see your vehicle, just as you did not see his, until the moment of collision.  Mr Jervis died at the scene as a result of the injuries sustained as the vehicle rolled.

8After the collision, you immediately got out of your vehicle, (which was later found to have been stalled in first gear) and went to the aid of Mr Jervis who could not be helped.  You rang ‘000’ immediately and in the course of that call, you were heard to acknowledge responsibility for the collision.

9There cannot be any doubt that had you taken more time and stopped and looked at a point closer to the intersection than you did, that you would have seen Mr Jervis' vehicle approaching.  It is also not in doubt that this is exactly what you should have done and your failure to do this is the essential element of the crime to which you have pleaded guilty.

Factors in Mitigation

10Mr Warrick, I state to you that I have taken the following matters into account in mitigation of penalty. 

11First, you have accepted responsibility for your actions at an early stage by pleading guilty at committal, a plea that was entered at your insistence in the face of legal advice that your prospects of acquittal at trial were at least reasonable. Your plea has saved the community the cost and the witnesses and Mr Jervis' family in particular, the stress of a trial and you are entitled to have these matters taken into account in mitigation of penalty, and I do so.

12Secondly, you have expressed your sorrow and regret directly to the family of Mr Jervis, and again through your counsel on the plea.  I accept that your remorse for your actions is genuine and heartfelt.  I accept also that your feelings of guilt for causing Mr Jervis' death have resulted in anxiety and depression and that symptoms, somewhat short of a diagnosis of post-traumatic stress disorder, continue to trouble you.

13Thirdly, I have taken into account the fact that at the age of 70, you have never been involved in an accident.  You have no prior or subsequent convictions of any description, and in particular, no prior convictions for driving offences of any description were alleged.

14I have taken into account your background and personal circumstances.  These are set out in the report of the psychologist Patrick Newton, dated 14 March 2016.[2]

[2] Part of Exhibit 6.

15This and other material tendered on the plea,[3] show that you have led an industrious and blameless life and one of service to the community. 

[3] Exhibit 6.

16Born the youngest of five children on the farm where you still reside, you grew up in a close, but strict rural family environment and you were schooled at local schools until Year 8.  Since then, you have worked as a farmer in primary production and you are now in semi-retirement.  Married to your wife, Mavis, since 1970, you have raised five now adult children, four of whom were in court to support you on the plea.

17In addition to raising your children and surviving the vicissitudes that attend a lifetime in primary production, you have contributed significantly to the local community through a range of volunteering work.  A member of your local Church of Christ, you have served as an elder for 13 years and continue to be engaged in pastoral care.  Presently, you coordinate visits by volunteers to aged care facilities in the local district. You have been actively engaged in many local sporting activities, and in their administration.  You have been the member of the Local Country Fire Authority for 54 years - 16 of those as an officer and of those 16, 6 as captain.  References from prominent members of the local community attest to your life of community service and to the high regard in which you are held.

18

Submissions of Counsel – Moral Culpability

Unusually, in this case, as these matters are very often the subject of dispute, both counsel for the Director of Public Prosecutions and your counsel submitted that in the great range of moral culpability, the offence of dangerous driving causing death covers, your culpability here was at the very lowest end of that range.[4] These submission were supported by reference to the complete absence of any of the aggravating factors (contained in the non-exhaustive list of such matters, in the case of Stevens[5]) that attended your driving in this instance.  Indeed, your counsel characterised your moral culpability here as something that had occurred in the “blink of an eye,” in the course of what would otherwise be thought to be cautious driving on your approach to this intersection.

[4] See DPP v Neethling [2009] VSCA 116; R v Whyte and Ors (2002) 55 NSWLR 252; DPP v Oates (2007) 47 MVR 483; R v Jurisic (1998) 45 NSWLR 209.

[5]Stephens v The Queen [2016] VSCA 121.

19I accept these submissions.  I am satisfied that in a range of moral culpability that this offence covers, your driving here falls within that class of cases which the Court of Appeal characterised as “exceptional” in the case of Neethling[6]  The speed was low, you had taken steps (inadequate though they proved to be) to see whether vehicles were approaching and visibility at that intersection was impaired for both you and your victim. The submission is in my view supported by the photographic material, in particular the photos taken at a similar time of day two days later[7] and by Photographs 31 and 34 of Folio 1.  Given that the unseen vehicle was travelling at highway speed, it is not difficult to see how this fatal mistake was made.

[6]DPP v Neethling [2009] VSCA 116.

[7] Photobook, Folio 2.

Sentencing Principles

20Nevertheless, as the cases referred to show, and the maximum sentence imposed by Parliament for this offence reflects, the offence of dangerous driving causing death is a “serious motor vehicle offence”[8] for which a term of imprisonment to be immediately served will usually be imposed.

[8]Sentencing Act 1991 (Vic), s 87P(d).

21The cases show that general deterrence is to be given significant weight in the sentencing consideration especially having regard to the prevalence of this form of offending.  Having regard to your prior history, specific deterrence has little operation here. Further, I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and otherwise to impose just punishment. 

22Now as the Court of Appeal makes plain in the guideline judgment in Bolton,[9] I must consider whether the purpose for which the sentence here is to be imposed cannot be achieved by a sentence that does not involve your immediate confinement[10] and whether these purposes cannot be achieved by a Community Corrections Order (CCO).[11] 

[9]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.

[10]Sentencing Act 1991 (Vic), s 5(4).

[11]Sentencing Act 1991 (Vic), s 5(4) and 5(4C).

23Having regard to the circumstances of the offending, your culpability for it and the matters raised in mitigation, I do not consider that the purposes for which the sentence here is to be imposed cannot be met by a CCO with conditions.  An assessment as to your suitability to be released on a CCO was ordered, and you have been assessed as suitable for such an order.[12]

[12] Exhibit 7.

Sentence

24Mr Warrick, having regard to all relevant facts and sentencing principles, 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.  You are to perform 200 hours of unpaid community work within the first two years of that order and I expect that this will be onerous for you having regard to where you live, your age and to the absence of your right to drive.

25I am obliged to explain the order so that you understand what it means and what may happen if you breach that order in any way.  There are a number of core conditions that apply to all CCO’s. 

·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.  If you do, you will be in breach of the order;

·   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee during the period of the order, that is, three years;

·   You must report to the Horsham Community Corrections Services, within two clear days from today.  If you do not, you will be in breach of the order;

·   You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee during the order; and

·   You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure your compliance with this order.

26There are a number of additional conditions that apply specifically to you:

·    You must perform 200 hours of unpaid community work over the period of two years as directed by the Regional Manager;

·    You must be under the supervision of a Community Corrections officer for the duration of the order; and

·    You must undergo programs or courses aimed at addressing factors relating to your offending, as directed by the Regional Manager.  . 

27If you contravene this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the contravention itself.  You can also be resentenced for the charge that is before me. In other words, I will resentence you on the dangerous driving causing death charge that is currently before me, and you would in that circumstance, be very likely to be sentenced to a term of imprisonment.  I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections Officer as part of this order, you can also be fined.

28I can only impose a community corrections order if you agree to such an order being imposed.  Do you agree to the imposition of such an order?

29OFFENDER:  Yes, Your Honour.

30HIS HONOUR: Pursuant to s.89(1) of the Sentencing Act, all licences to drive are cancelled and you are disqualified from obtaining a licence for a period of 18 months. 

31Pursuant to s.6AAA of the Sentencing Act, I state that had you been found guilty of this charge after a trial, I would have sentenced you to a term of imprisonment of three years, with a non-parole period of 18 months.  Would you have him sign the order please.  Are there any other matters?

32MR O'DOHERTY:  No, Your Honour.

33MS WARD:  No, Your Honour.

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