R v Bell
[2024] VSC 384
•2 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0291
| THE KING | Crown |
| v | |
| CHRISTOPHER BELL | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2024 |
DATE OF SENTENCE: | 2 July 2024 |
CASE MAY BE CITED AS: | R v Bell |
MEDIUM NEUTRAL CITATION: | [2024] VSC 384 |
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CRIMINAL LAW — Sentence — Manslaughter by criminal negligence — Offender killed friend and co-worker when he accidentally ran over him in a bobcat in the work yard whilst affected by alcohol — Priors for driving whilst substance affected — Plea of guilty at first reasonable opportunity — Remorse — Difficult childhood due to sexual abuse — PTSD and ADHD — Verdins 1, 3, 5 & 6 — Offender sentenced to 7 years’ imprisonment with minimum term of 4 years — Bugmy v R (2013) 249 CLR 571 — R v Verdins (2007) 16 VR 269 — Sentencing Act 1991, s89A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Ramsay | Office of Public Prosecutions |
| For the Accused | Ms A Wong | Victorian Legal Aid |
HIS HONOUR:
Christopher Bell, you pleaded guilty to manslaughter, which carries a maximum penalty of 25 years imprisonment. The form of manslaughter to which you pleaded guilty is manslaughter by criminal negligence.
You accidentally killed a friend and work colleague, George Tereva, aged 34, on 7 September 2022 when you ran over him in a bobcat in the work yard of HSG Developments at 81 Bangholme Road, Dandenong. You and your work colleagues, including Mr Tareva, Ernes Imer and James Reeve, had stayed behind after work to have a few drinks. Your boss, Steve Galea, had left for the day around 3.30pm.
CIRCUMSTANCES OF OFFENCE
The circumstances of your offence are sufficiently described in the prosecution summary at paragraphs 11 to 20 and 45:
11. Between 3:30pm and 4pm, Mr Tereva spoke to his father, Tony Mokau, by phone and told him that he was having a few drinks at work ‘with the boys’ and asked if his father could pick them up.
12. The group stayed at the yard and waited for Mr Tereva’s father to arrive. By this stage [Mr Bell] had consumed [about] four beers (Corona bottles).
13. At 4:25pm, [Mr Bell] entered the bobcat and began operating it. CCTV from a neighbouring business captured, from a distance, Mr Bell’s movements on the bobcat and the subsequent incident involving Mr Tereva. In the CCTV footage, [Mr Bell] appears to drive the bobcat around in semi-circles and then, several times, drive towards and away from where the remainder of the group (Mr Tereva, Mr Imer and Mr Reeve) were standing or sitting. This continued for approximately three minutes.
14. According to Mr Imer , [Mr Bell] was, “going round in circles, making jokes, spreading dirt and doing stupid shit.”
15. On a final occasion [Mr Bell] drove the bobcat up close to where Mr Tereva was sitting on a chair. This occurred at approximately 4:28pm. Mr Tereva was heard saying to [Mr Bell] , “I’m not gonna move, you won’t do nothing”. The bobcat was close enough that Mr Tereva could put both his feet up on the bucket of the bobcat.
16. [Mr Bell] held the bobcat in that position for approximately 1 minute and 10 seconds. He then reversed the bobcat away from Mr Tereva, spun it around and drove a short distance away. In the CCTV footage, [Mr Bell] appears to use the bucket of the bobcat to lift dirt or other material from the ground, and deposit it nearby.
17. [Mr Bell] then drove the bobcat directly towards where Mr Tereva was sitting…
18. Mr Imer described [Mr Bell’s] actions as “charg[ing] at us”. He heard the bobcat “under full throttle” and saw that the bucket of the bobcat was up in the air, and that the two front wheels were also up in the air. Mr Imer moved to get out of the way. As he did so, he saw Mr Tereva go under the bobcat.
19. [Mr Bell] struck and ran over Mr Tereva with the bobcat.
20. [Mr Bell] immediately stopped the bobcat and attempted to reverse, however Mr Tereva was trapped underneath. [Mr Bell] then drove the bobcat forward, until it hit the nearby fence. Mr Tereva was released from underneath the bobcat and Mr Imer went over and pulled him out of the way.
…
45. Whilst it is not alleged that [Mr Bell] deliberately ran over Mr Tereva, it is alleged that on the final approach towards Mr Tereva, he did drive deliberately towards him.
Mr Tereva was badly injured but still alive.
Mr Imer called 000.
Mr Tereva’s father arrived before the ambulance arrived at 4.42pm. You said to him “I’m sorry Homey, I done it, I panicked, I got to go.”
Over objection from Mr Tereva’s father, you left before the police arrived but you later returned to the yard and presented yourself to the police at approximately 6.40pm. The police gave you a Preliminary Breath Test and then an Evidentiary Breath Test. You had a blood alcohol reading of .1%, twice the legal limit, a couple of hours after your offence.
Meanwhile, Mr Tereva had been taken by ambulance to the Alfred Hospital. He died there at 6.53pm. The cause of death was abdominal and pelvic injuries.
In your recorded police interview, you told the police that after completing a job in Oakleigh earlier in the day, you returned to the yard with Mr Tereva, Mr Imer and Mr Reeve, and together drank Corona beers. You said you had four or five beers and that Mr Tereva told you to get into the bobcat and clear the ground near where you were drinking. You had experience driving a bobcat, but were not experienced operating the bobcat that belonged to HSG Developments. You said that initially you reversed the bobcat from where it was parked to perform a “back blade”, which is where the bucket is used to flatten the ground. You said you were attempting another “back blade” and was “bucked” forward, which caused you to hit the “sticks” to go forward towards the deceased and run over him. You admitted that you should not have been operating the bobcat after drinking alcohol. You denied that you were doing circles or making jokes, and you denied hearing Mr Tereva say “I’m not gunna move”, whilst you were operating the bobcat.
Having regard to the agreed summary of facts, you plainly told the police a number of lies in your recorded interview. That did you no credit. I note in particular that at the plea hearing, you did not take issue with the allegation contained in [45] of the prosecution summary, namely, that on the final approach towards Mr Tereva you drove deliberately towards him. In your recorded police interview, you tried to paint a very different, self-serving picture.
I am satisfied beyond reasonable doubt that when you drove deliberately towards the deceased, although you meant him no harm, you were foolishly and tragically playing chicken with him.
On 30 September 2022, expert examination of the bobcat revealed that there were no faults that would have caused or contributed to the fatal collision.
You were ultimately arrested by police on 20 August 2023 and have been in custody since that time.
Victim Impact Statements
I have received victim impact statements from the deceased’s mother, Pauline Tereva, his wife, Nerissa Shipsides and from one of his three young children, Shylah Tereva. The impact on the family has been devastating and their trauma is ongoing.
His mother Pauline writes:
Even though I have three other sons whom I love just as dearly there will always be an emptiness inside of me due to George’s death that will haunt me for the rest of my life.
His partner Nerissa writes:
My future, our families future was taken from us in the most horrific way…I am plagued by what ifs and it eats at me. What if I just picked him up, what if he didn’t get the accused a job with him. The what ifs drive me into panic attacks.
His daughter Shylah writes:
I hope he knew how much I loved him and that he knows I miss him everyday.
Objective seriousness of offence
The prosecutor submitted that this was a serious example of the offence of manslaughter by criminal negligence. She relied on the fact that, first, you were substance affected and were aware that you should not have been operating the bobcat in that condition; second, on your own admission, you were not familiar with the operation of the particular bobcat; third, you were hooning around in the bobcat for several minutes; and fourth, you drove deliberately towards the deceased on the final approach. I accept the prosecutor’s submission that this is a serious example of the offence of manslaughter by criminal negligence.[1]
[1]I note that your counsel accepted that you drove deliberately towards the deceased immediately prior to the fatal collision.
Moral culpability
I am not satisfied on the balance of probabilities of the claim you made in your recorded interview (and later repeated to clinical psychologist Alison Mynard) that the deceased urged you to drive the bobcat. You told lies in your recorded interview, as I have already indicated. Further, there is no corroboration of that claim in the statements of Mr Imer and Mr Reeve.
Relevant Criminal Priors
Whilst you neither intended nor foresaw harm to Mr Tereva,[2] your moral culpability for this offence is significant. Only a couple of months before your offence, you were dealt with by a Victorian court for driving whilst substance affected. In total you have three criminal antecedents for driving while substance affected.[3] You may not have been driving on a public highway on this occasion but I find that you were fully aware of the fact that you should not have been driving that bobcat whilst substance affected, especially not in close proximity to other people.
CIRCUMSTANCES OF OFFENDER
[2]I note what Weinberg JA said in R v Jagroop [2009] VSCA 46 at [65]: “The moral culpability of an offender who has been convicted of manslaughter by criminal negligence is likely to be lower than that of an offender who has killed someone by an unlawful and dangerous act. There is, after all, in most cases of criminal negligence, no intent on the part of the offender to cause any harm whatever to the victim.
[3]You have relevant criminal antecedents in Victoria and New South Wales. On 23 June 2022 at Dandenong Magistrates’ Court you were fined for drink driving (BCA .058%) and speeding on 11 April 2021 and driving whilst suspended on 9 September 2021. On 18 October 2019, at Wagga Wagga Petty Sessions, you were fined for drug driving on 10 May 2019. On 30 February 1991, at Paramatta Local Court, you were fined for drink driving (Mid PCA).
Personal History
Turning to your personal history and circumstances, you were born on 26 November 1970, making you 51 years of age at the time of your offence and 53 now.
Your parents, who are both still alive, had five boys, one of whom died before you were born. They live in Winston Hills in New South Wales and keep in contact with you by phone. Your three surviving brothers also live interstate. You are close to your brother Jeff, who lives with your parents.
Your parents provided a reference for you. They state that you have “great remorse” over what you did. They say you were sexually molested by a friend of one of your brothers when you were a young boy and that “from that day on [you have] been effected by the traumatic experience.”
You told Clinical Psychologist Alison Mynard, who provided two reports on you, that you were sexually assaulted multiple times by the same adult offender when you were seven to eight years old.[4] You believe he also assaulted your brothers. You did not tell your parents about the sexual abuse until you were in your 30s. Ms Mynard diagnosed you with PTSD originating in the sexual abuse you suffered as a child. She also notes that your PTSD has been exacerbated by your accidental but criminally negligent killing of your friend.
[4]I note that your counsel in her written submissions suggests at [36] that the sexual abuse lasted until you were 12 years old, but Ms Mynard does not say that.
You began smoking cannabis from the age of 10 to 11 and drinking alcohol in your mid-teens. Drugs and alcohol have been longstanding problems. Ms Mynard diagnosed you with alcohol abuse disorder. Your use of drugs and alcohol throughout much of your life can be linked to your childhood sexual abuse.
You saw a psychologist as a child because of anger management problems. You had a stutter and were teased a lot at school. You left school halfway through Year 9 after being expelled. In fact, you were expelled from one primary school and two high schools.
You seem to have had a reasonable work record. After leaving school, you worked for relatively short periods in an abattoir and as a delivery driver before becoming a linesman for Telstra and later Optus. You later worked as an asphalter in Queensland, New South Wales and Victoria.
In your late 20s you were medicated for ADHD. Ms Mynard notes that impulsivity is a factor with both PTSD and ADHD, and that you have a propensity to dismiss consequential thinking,[5] a trait exacerbated by alcohol consumption.[6] These problems or limitations, are, according to Ms Mynard, linked, at least in part, to the sexual abuse you experienced as a child. In my view, they also contributed to your offence, which reduces somewhat your moral culpability.
[5]See Alyson Mynard’s reports dated 20.3.24 (eg, at [102]) and 14.4.24 (eg, at [7]).
[6]For example, see Alyson Mynard’s report dated 14.4.24 at [10] and [14].
You have been married twice and divorced twice. Your intimate relationships, according to Ms Mynard have also been adversely affected by the sexual abuse you experienced.
You were married to your first wife from 1993 until 1999. There were no children from that relationship.
You met your second wife in 2000. Your daughter was born in 2007. You speak to her every week on the phone.
You began using methamphetamine in 2012, having stopped taking your medication for ADHD. You became a regular user of methamphetamine.
You and you second wife divorced in 2017.
When your second marriage foundered, you went to live in Queensland, then with your parents for a while in New South Wales, before moving to Victoria to live with an uncle in 2019.
You were working at HSG Developments as an asphalter for about six months prior to your offence and were living in a boarding house in Frankston.
After your offence, you moved back to New South Wales and lived with your parents.
You were arrested in New South Wales and extradited to Victoria. You have been in custody since 20 August 2023.
In prison, you see a psychiatric nurse on a weekly basis and are currently medicated for depression and anxiety. You continue to experience nightmares about the accident.
Mental Impairment (Verdins)
It is convenient at this point to quote a number of passages from Ms Mynard’s reports. In her first report dated 20 March 2024, Ms Mynard writes:
[98] Mr Bell was diagnosed with ADHD in his late 20’s and medicated for the same. He has had multiple complex mental health issues and issues with addiction over the years, and many of the symptoms of ADHD and PTSD appear to overlap. For example, both ADHD and PTSD have symptoms of restlessness and heightened nervous system arousal. In addition, ADHD and PTSD also have symptoms of inattention, difficulty concentrating and impulsivity.
…
[101] Mr Bell has become accustomed to using substances to give him social confidence, coping with negative emotions and covering up his PTSD symptoms of negative affect and hyper-arousal related symptoms. At the time of his offending, Mr Bell had continued to suffer from PTSD, and ADHD, as diagnosed years before.
In her second report dated 14 April 2024, Ms Maynard writes:
[18] Mr Bell’s experience of custody is highly distressing because of this distress that is linked to his PTSD, which are symptoms as a result from both childhood trauma and the trauma of the offending circumstances. His time in custody is being affected by ongoing re-experiencing symptoms, intrusive images, nightmares, high nervous system arousal, negative affect, significant feelings of guilt and shame. In custody, he has fewer resources to cope with these distressing symptoms, however is reaching out for regular support with the mental health clinician, reading and playing cards to distract himself.
[19] In the writer’s opinion, there is a risk of significant adverse effects on Mr Bell’s mental health condition regarding his PTSD over and above the normal mental (sic) imprisonment has on any other person. This is due to the seriousness of the incident that occurred, and Mr Bell’s responsibility for this, and the highly distressing state he has remained in, even though time has passed since the incident. He has remained in a state of distress for a lengthy period of time, and his mental health may continue to deteriorate, particularly without support that may be more readily accessible in the community.
In R v Verdins[7] at [32], the Court of Appeal explained how an offender’s mental impairment is relevant to sentencing:
[7](2007) 16 VR 269.
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
Your counsel relied on Verdins principles 1, 3, 5 and 6.
In relation to principle 1, the prosecution pointed out that it was based on the psychologist’s misunderstanding that you had been encouraged by others to drive the bobcat. The prosecution also pointed out that the psychologist did not take account of the duration and manner of your driving prior to the collision. Whilst these two criticisms of Ms Mynard’s opinion are valid, and during the plea hearing I expressed the view that principle 1 had no application, on reflection I consider that your impulsivity, and your problems with alcohol, which are linked to your ADHD and PTSD, contributed somewhat to your offending, even though you were driving the bobcat in an erratic manner for several minutes prior to the fatal collision and were well aware that you should not have been driving that vehicle when substance affected. I will give modest application to principle 1.
Likewise in relation to principle 3. I will reduce to a modest degree the weight to be given to general deterrence.
I am satisfied that because of your ADHD and PTSD that prison has been and will be significantly harder for you than for prisoners not afflicted by those conditions. Principle 5 should be given significant weight in your case.
The prosecution submitted that there is not a proper evidentiary basis for finding that principle 6 applies as Ms Mynard only opined that it is possible that your mental impairment will worsen in prison whereas principle 6 requires satisfaction of a serious risk of that occurring. But giving due weight to her observation in [19] that you have remained in a state of distress for a lengthy period of time and her observation in [18] that “in custody, he has fewer resources to cope with these distressing symptoms” I consider, on reflection, that she was alluding to a “serious risk” of prison aggravating your mental health conditions, even though she did not say so explicitly.[8] Consequently, principle 6 of Verdins is also engaged.
[8]I note that in her first report at [107] Ms Mynard writes: “Mr Bell has been finding his time in custody so far to be highly distressing, with his mental health deteriorating with the anticipation of the court case and the stress associated with this”.
Early plea of guilty and remorse
The prosecution fairly and rightly conceded that your plea of guilty was entered at the first reasonable opportunity and that you are truly remorseful. I have no doubt about your remorse: you killed a friend. There will be a significant discount on your sentence because of your early plea of guilty.
Delay
You argued that delay was also a mitigating circumstance. Although the offence occurred in September 2022, you were not charged until August 2023. Whilst I think it likely that the lies you told in your record of interview contributed somewhat to the delay in you being charged, and the delay between the offence and you being sentenced today has not been inordinate, I will regard the delay in your case as a mitigating circumstance but only to a modest degree.
CURRENT SENTENCING PRACTICES
As regards current sentencing practices, the prosecution referred me to a number of sentencing cases regarding manslaughter by criminal negligence.[9] The prosecution acknowledged that many of the cases had quite different facts but could be considered “instructively different”. The prosecution submitted that R v Sheen[10] was the most similar case on the facts. Your counsel referred me to the case of R v Lavender,[11] but I do not consider that a New South Wales case from 20 years ago reflects current sentencing practices in Victoria.
[9]R v Blackwell [2013] VSC 499; R v Jagroop (2009) 22 VR 80; R v Lai [2015] VSC 346; R v Lovett [2023] VSC 50; DPP v McEachren [2022] VSC 386; R v Naddaf [2020] VSCA 41; DPP v Nelis [2022] VSC 50; R v Reid (2010) 29 VR 446; DPP v Russo [2019] VSCA 129; R v Sharif [2020] VSC 226; R v Sheen [2016] VSC 235.
[10][2016] VSC 235.
[11](2005) 222 CLR 67.
I consider that culpable driving cases are a useful point of comparison,[12] but one needs to bear in mind that the maximum penalty for that offence is 20 years’ imprisonment[13] whereas it is 25 years for manslaughter.
[12]See Victorian Sentencing Manual Case Summaries – Chapter 2.1.1 – Culpable Driving.
[13]Crimes Act1958 (Vic) s 318.
I have found the cases to which I have referred of some assistance but each case turns on its own unique facts.
SUMMARY OF MITIGATING CIRCUMSTANCES
Let me summarise the circumstances which I accept should mitigate your sentence:
·Your plea of guilty at the first reasonable opportunity;
·Your remorse;
·Your difficult childhood by reason of the sexual abuse you suffered;
·Your PTSD and ADHD which enliven principles 1 and 3 of Verdins to a modest degree and, more significantly, principles 5 & 6;
·The delay between your offence and you being sentenced;
·By reason of your early plea of guilty, remorse, limited antecedents and good work record, I consider that you have reasonable prospects of rehabilitation.
SENTENCE
On the charge of manslaughter, I sentence you to 7 years’ imprisonment.
I order that you must serve 4 years’ imprisonment before being eligible for parole.
I declare that you have served 317 days by way of presentence detention.
But for your plea of guilty, I would have sentenced you to 9 years’ imprisonment with a minimum term of 6 years.
In circumstances where you have been dealt with by the courts on several occasions for driving while substance affected and where, on this occasion, you drove substance affected with fatal consequences, it is appropriate to disqualify you from driving for an extended period. Accordingly, pursuant to s 89A of the Sentencing Act 1991, I disqualify you from driving for 5 years from today.
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