R v Bollen - [2014] VSC 651

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2014 0024

THE QUEEN

MELVILLE JOHN BOLLEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2014
DATE OF JUDGMENT:	18 December 2014
CASE MAY BE CITED AS:	R v Bollen
MEDIUM NEUTRAL CITATION:	[2014] VSC 651

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CRIMINAL LAW – Sentence – Pleas of guilty to culpable driving and multiple charges of negligently causing serious injury – Truck and train collided – Train passenger killed – Four others injured - Absence of clear reason why collision occurred - Inattention by truck driver – Whether fatigued and asleep – Accused aged 71 years – Long standing good character – Age as sentencing factor of considerable significance – Significance of general and specific deterrence – Prospects of reoffending negligible.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. A. Hassan with Ms. J. Warren	Office of Public Prosecutions
For the Accused	Mr. J. Gullaci with Ms. F. Todd	Doogue O’Brien George Defence Lawyers

HIS HONOUR:

Melville John Bollen, you have pleaded guilty before me to one charge of culpable driving causing death and four charges of negligently causing serious injury. You were to stand trial on these matters. The trial had not started but after one and a half days of a pre-trial voir dire, the prosecutor abandoned her case that fatigue was the basis for the culpable driving charge pursuant to s 318(2A)(a) of the Crimes Act 1958 (Vic). You pleaded guilty to an indictment which based your liability on criminal negligence pursuant to s 318(2)(b), being that you failed, unjustifiably and to a gross degree, to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.

The maximum penalty for culpable driving is 20 years’ imprisonment.[1] The maximum penalty for negligently causing serious injury is ten years’ imprisonment.[2]
[1]Crimes Act 1958 (Vic) s 318(1). Pursuant to s 318(1A), the baseline sentence is 9 years’ imprisonment.
[2]Crimes Act 1958 (Vic) s 24.

On Friday, 21 November 2014, I heard an opening from the prosecutor, Ms Hassan, together with statements of the impact of your offending on the victims of the offending, evidence and submissions both on your behalf and on behalf of the prosecution. It is now my responsibility to sentence you for these charges.

Circumstances of offending

The charges to which I have just referred arise from a tragic collision that occurred at about 11.40am on Saturday, 3 November 2012. This is yet another case that illustrates the extraordinary danger when motorists do not comply with railway crossing signals for whatever reason. The danger was magnified in your case because you were attempting to manoeuvre a large commercial vehicle.

On that day, a train travelling to Cranbourne and driven by Trevor King was derailed at a railway crossing on Abbotts Road, Dandenong South as a result of a collision with a truck driven by you. In that derailment, one passenger…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bollen

Details

AGLC: R v Bollen [2014] VSC 651
Case: [2014] VSC 651
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the case of R v Bollen, the defendant faced criminal charges following a collision between his truck and a train that resulted in the death of one passenger and injuries to four others. The matter was heard in a higher court where the sentencing for the defendant's pleas of guilty to culpable driving and negligently causing serious injury was to be determined. The defendant, aged 71, had a long-standing record of good character, which played a significant role in the sentencing considerations. The court needed to weigh various factors, including the nature of the offence, the absence of a clear reason for the collision, the potential inattention and fatigue of the defendant, and the low likelihood of reoffending.

The primary legal issue before the court was the appropriate sentence for the defendant, considering the severity of the incident and the mitigating factors of his age and good character. The court had to balance the need for general and specific deterrence with the personal circumstances of the defendant. The absence of a clear reason for the collision complicated the assessment of culpability, but the inattention and potential fatigue of the defendant were significant in determining the culpability. The court also had to consider the prospects of the defendant reoffending, which were deemed negligible.

The court found that the defendant's age was a factor of considerable significance in the sentencing process. Despite the severity of the incident, the court recognised the defendant's long-standing good character and the negligible prospects of reoffending. The court emphasised the importance of both general deterrence, to discourage others from engaging in similar conduct, and specific deterrence, to prevent the defendant from reoffending. Ultimately, the court determined that the sentence should reflect these considerations, resulting in a decision that took into account the defendant's age and good character, while also addressing the need for deterrence.

The court ordered that the defendant be sentenced accordingly, reflecting the considerations of age, good character, and the need for deterrence. The specific sentence was not detailed in the extract but was made in light of the factors discussed.

Orders