R v Clark
[2008] VSC 633
•22 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1643 of 2008
| THE QUEEN |
| v |
| RANDALL WYATT CLARK |
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JUDGE: | Curtain J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2008 | |
DATE OF SENTENCE: | 22 August 2008 | |
CASE MAY BE CITED AS: | R v Clark | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 633 | |
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Criminal Law - Sentencing - Culpable driving causing death - Dangerous driving causing serious injury - Pleas of guilty – s 6AAA Sentencing Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr B. Balmer | Balmer & Associates |
HER HONOUR:
Randall Wyatt Clark, you have pleaded guilty to one count of culpable driving causing death and one count of dangerous driving causing serious injury and you have admitted prior convictions.
On Wednesday 20 September 2006 you were in a troubled state. You were ruminating about the discovery of your father’s abuse of your siblings and in these circumstances, whilst sitting in your car outside the Springvale Cemetery where the ashes of your late mother are interred, you decided to commit suicide. You undid your seatbelt and drove down Police Road at a speed observed by other road users to be in the vicinity of 150 kph. Your intention was to hit something solid on your side of the road and in that way, cause your death. Instead, you were seen to overtake two cars and then continue driving on the wrong side of the road. You collided in a head-on side-swipe fashion with the Toyota Camry being driven by Bopha Lisa Taing.
The force of the collision forced the Camry to rotate clockwise off the road and collide backwards through a brick fence. Ms Taing remained trapped in her car. When freed, she was conveyed by ambulance to the Alfred Hospital. She suffered a cervical spine injury at C5 C7, neck and facial abrasions and a haematoma, soft tissue tenderness to her chest wall and abrasions to her right wrist. This conduct forms the subject of Count 1 on the presentment, dangerous driving causing serious injury.
Your car, a Commodore, continued on and collided with a Holden Jackaroo four wheel drive station wagon. This car was being driven by Marilyn Hedrich. Her four month old son, Matthias, was seated in the child restraint in the back seat. The impact of the collision forced the Jackaroo backwards off the road, rotating clockwise and overturning as it did so. The car came to rest against a brick fence. There was massive impact damage to the front driver's side and Ms Hedrich was trapped inside and the baby suspended upside down. One of those who attended the scene removed the baby from the car. He was taken to the Royal Children’s Hospital for observation. He was uninjured. Ultimately Ms Hedrich was also freed from the car and conveyed by ambulance to the Royal Melbourne Hospital. She was found to have suffered a compound fracture of the right tibia and fibular, multiple fractures of the pelvis, a fracture to the base of the skull, left frontal contusions, subluxation of the spine at C5 and C6 and a deep laceration to the right cheek and chin. At the Royal Melbourne Hospital, Ms Hedrich underwent emergency surgery but died in the operating theatre at 2.08 a.m. on the following day. An autopsy later revealed further injury to her brain and fractured ribs. Cause of death was attributed to fat embolism within the pulmonary arteries and lungs. This forms the subject of Count 2 on the presentment, that of culpable driving causing death.
After colliding with Ms Hedrich's car, your car then struck the front driver’s side of a Honda Civic sedan driving by Anna Nowacki. This car had been driving behind the Jackaroo. Ms Nowacki did not suffer any physical injuries although her vehicle sustained moderate damage.
As you were not wearing a seatbelt as you drove down Police Road, upon the second impact, you were ejected through the windscreen of your car. You were taken to the Alfred Hospital where you were treated for serious leg injuries, abdominal, chest and head injuries. You were hospitalised in the intensive care unit and later transferred to the Epworth Hospital to undergo intensive rehabilitation.
You were subsequently interviewed by the police on Friday 2 February 2007. You made frank admissions to the police and expressed your remorse for the loss of Ms Hedrich. You told the police that on 20 September you were not in a good state of mind. You went on to say that you had found out about your father and that as a result you did not want to be here, and so to quote you “I pulled out on the road. I never meant to harm another soul, I really didn’t, and I unclicked my seat belt and I just wanted to hit something hard and solid on my side of the road, and unfortunately I’ve taken another lady’s life because of my stupid actions, and that’s all I can remember.”
You admitted to the police that you knew you were over the speed limit, and this is consistent with the observations of other road users who described your speed at which you were driving as follows. “I would estimate that it was travelling at about 150 kilometres per hour, it was really thumping. You could hear the engine screaming. It was the fastest thing I’ve ever seen on a public road.”
Senior Constable Glen Urquhart from the Major Collision Investigation Unit determined that at impact with the deceased’s vehicle, the speed of your Commodore was between 127 kilometres per hour and 142 kilometres per hour.
Senior Constable Urquhart further opined that there was no evidence on the road between the impact with Ms Taing’s vehicle and that with Ms Hedrich’s vehicle which would identify you as braking, rolling, slowing, maintaining speed, or accelerating in this distance. He was able to determine that your Commodore travelled essentially in a straight line on the incorrect side of the road over that distance. In his view, given that the Commodore slowed as a result of the initial impact, there were two possible scenarios. First, the Commodore, your car, was travelling at a speed greater than 127 to 142 kms at the time of the initial impact, or was travelling at a lower speed and you accelerated over the 89 metres to the point of the second impact. At the point of impact your car was completely on the incorrect side of the road. Clearly your driving at such speeds on the wrong side of a public road into oncoming traffic was reckless driving of a very high order.
Ms Taing, who at the time was 23, was simply driving to Mulgrave to visit a friend. In her statement she said she had turned into Police Road and was driving along the road so far to the left as she could. She was travelling at about 50 kilometres per hour when she saw a car coming along the wrong side of Police Road in the opposite direction to that which she was going. The other car did not have any headlights on and she said it was very hard to see it because it was getting dark. She instinctively moved her car as far as she could to the left and she tried to swerve to avoid your vehicle. She then described your car hitting her car and the force of the crash causing her vehicle to spin in a circle. She did not know how many times her car had spun, but the force of the crash caused her head to hit the driver's door window hard enough to break the window.
Ms Hedrich was 33 years old. She was the mother of three children, whose ages range between eight years and four months. She had been married to her husband, the father of Matthias, for two years and nine months. On this night, she was doing nothing more than returning home after dropping her two daughters off at their grandmother’s home in Richmond.
Ms Taing did not submit a victim impact statement, but victim impact statements made by Marie Bowman, Ms Hedrich's mother, John Hedrich, Ms Hedrich's father and Jacqueline Le Bon, Ms Hedrich's sister were tendered in evidence. They each speak eloquently of the loss of a loved wife, mother, daughter and sister.
Ms Hedrich’s two daughters have, since her death, gone to live with their biological father, thus leaving John Hedrich, her husband, as the sole parent of an infant. Ms Bowman, Ms Hedrich’s mother, has herself been driven to thoughts of suicide, such is her grief and distress. Words cannot adequately convey the tragic impact of your conduct on the lives of innocent people.
The maximum penalty for culpable driving causing death is 20 years’ imprisonment. The maximum penalty for dangerous driving causing serious injury is five years’ imprisonment. Clearly these are regarded by Parliament as serious offences and your conduct in respect of both offences is to be regarded as a serious example of a serious offence.
Your conduct must nonetheless be placed in the context of your mental state then operating upon you. In the days preceding this offence, you had sought psychiatric admissions at the Alfred Hospital, the Monash Medical Centre and the Royal Melbourne Hospital. You were seen at the Royal Melbourne Hospital on 13 and 19 September and it is recorded that you requested help, you were hearing voices, and you confirmed that you could harm yourself. You were also reported to be paranoid, anxious, low in mood and depressed. You said that you were drinking “a bottle of Chivas a day.”
You had been seen on the afternoon of 20 September by an intake worker with the South Eastern Centre Against Sexual Assault (SECASA) Crisis Care Unit. You appeared to her to be distressed, intense and speaking in a disjointed way. You described hearing voices describing you as a predator, paedophile and demon. You told her that you were having suicidal thoughts. Contact was made with the psychiatric services at the Alfred Hospital as you had in the days prior sought an assessment from the CAT team operating there.
You were assessed over the telephone by the psychiatric services triage nurse. You were reported to be feeling suicidal, distressed, anxious, hearing voices and not trusting yourself. You stated that you were in emotional turmoil and struggling with emotional issues. The triage nurse determined after speaking with you that you had settled down and you were agreeable to ongoing phone support later that night and you agreed to telephone the Alfred Triage if you were in distress and not coping.
You left the crisis care unit at 4 p.m. and travelled to your brother’s home at Noble Park arriving between 4.30 and 5 p.m. Your arrival was unexpected. You spoke to your brother’s de facto wife and you appeared to her to be agitated, restless and hearing your absent brother’s voice.
You left the house but came back three or four times remaining outside in your car. You finally left at about five to seven and drove to the Springvale Cemetery. The collision occurred at approximately 7.15 p.m.
When asked in your record of interview if you had considered suicide in the past, you replied “I thought about it often but not considered it in a serious way and like when I made my mind up at the cemetery, it was just like I can’t - I can’t put it into words, it was just like a sudden - it wasn’t me that did it, you know. It was me but I didn’t feel like me. I was inside because there was no - I wasn’t hesitating and I just didn’t want to be here. I just didn’t want to be - I just didn’t want to be a prisoner that way anymore basically. After finding out about my dad and that, it just - it pushed me over the edge.”
A report from psychiatrist Dr Danny Sullivan was tendered in evidence on your behalf. Dr Sullivan details your antecedents which I accept. You had a troubled childhood, your father was abusive and separated from your mother when you were 18 months old. Your mother died when you were aged 12 and you were made a ward of the State and placed in foster homes and at Baltara.
Throughout your childhood and adolescence, you attended 26 schools, finally leaving at Year 9 at the age of 15. You reported that during your childhood, your brothers who were considerably older than you, were engaged in substance abuse and crime and you grew up surrounded by criminal activity and it was they who introduced you to drugs. To your credit, however, since leaving school, you have been consistently in employment, principally working as a welder. You have had two significant relationships and they have each produced children, a son now aged 11 and a daughter aged 6. Another child died at the age of 17 days.
You are now aged 33 and you have 70 prior convictions from 17 court appearances between May 1992 and November 2005. Your prior offending includes a number of instances of driving whilst disqualified and two are for exceeding the speed limit.
You told Dr Sullivan you had been bullied as a small child and sexually abused. You were receiving counselling for sexual abuse but it is said that you were struggling to cope and you said this pushed you over the edge.
You also reported that you had regularly consumed cannabis since you were 15 and you have used heroin and amphetamines in the past.
You told Dr Sullivan that in the two months prior to these offences, you had been going downhill. You had broken up with your girlfriend, the mother of your daughter. You were without employment and you were struggling to find stable accommodation. Indeed, at the time of these offences you were living at Hanover House and indeed your situation is now much the same and you are now effectively homeless.
At the time of Dr Sullivan’s report in April 2008, you were under the care of the Alfred CAT team, you were taking antidepressants and anti-psychotic medication. Dr Sullivan was of the opinion that you appeared to be of low normal intellect, that you acknowledge significant depression, that you appeared helpless and hopeless about the future.
Dr Sullivan reported that Dr Dana Wong, clinical neuro-psychologist at the Epworth Hospital, had noted that you suffered a severe traumatic brain injury and multiple orthopaedic injuries and she noted significant grief and remorse and ongoing major depression which in her view was longstanding and pre-dated the accident.
Dr Wong also reported cognitive difficulties consistent with Dr Sullivan’s findings. Doctor Sullivan concluded that you have significant mood disturbance which he described as a major depressive episode, moderate in severity. The contributing factors appeared to be the accident, your physical health since, your acquired brain injury and your current social circumstances. You are also dependent on benzodiazepine and in his opinion you will remain at risk of suicide.
Doctor Sullivan concluded as follows:
“At the time of the accident Mr Clark was in a deteriorated mental state. His own report is essentially consistent with collateral sources of information. He was depressed, agitated and anxious. He was preoccupied with issues of prior sexual abuse, he had recently withdrawn from amphetamines, he was struggling with cannabis, benzodiazepine and alcohol abuse. He had been hearing derogatory voices, his relationship had broken down and he had no stable accommodation. His pattern of attendance at general practitioners, counsellors and emergency departments in the month preceding the accident, indicated increasing distress and the development of suicidal ideas.”
He went on to say:
“The witness evidence preceding the events indicated that his grip on reality was quite tenuous, experiencing auditory hallucinations and markedly agitated. There is no evidence that he was intoxicated although he had probably smoked cannabis in the morning. From his own account Mr Clark decided to kill himself spontaneously and impulsively in the moments before the accident ... His judgment at the time was somewhat impaired by his focus on suicide and his thinking at that time could not have been described as calm or rational. It is my impression he would still have been able to appreciate the wrongfulness of driving in such a fashion, even though his preoccupation was on his own death. It is likely that he was so focused on that goal that he was unable to think rationally about the welfare of others, as he was absorbed in his own impending death and keen to bring that about. The effect of his depression, anxiety and suicidal drive at the time of the accident would certainly have substantially diminished is ability to reason sensibly. And his mental state at the time was causally associated with the alleged offence.”
I accept that at the time of your offending conduct your judgment was impaired in the way described by Dr Sullivan and accordingly the principles of Verdins[1] and Tsiaras[2] are here applicable. For these reasons I accept that your moral culpability for your offending is reduced, and that by reason of your depression, considerations of general and specific deterrence should be sensibly moderated in the sentencing process. However, such weight as is to be given to general deterrence, should reflect the fact that if other members of the community chose to use their vehicle on a public road way as a means of attempting to commit suicide, then they will suffer condign punishment.
[1] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
[2] R v Tsiaras (1996) 1 VR 398.
As a result of your driving you also suffered serious injuries which included a severe closed head injury which has left you with cognitive defects and multiple severe orthopaedic injuries, which necessitated the fusing of your left leg with a rod from hip to foot. You have recently undergone a left knee arthrodesis. You have suffered chronic pain which has required medication and you have also been prescribed diazepam and antipsychotic and antidepressant medications. You have required intensive inpatient rehabilitation and ongoing outpatient rehabilitation. I accept that by reason of your depression, your acquired brain injury and other physical injuries, which in some respects will be a permanent legacy to you, that this will render prison more burdensome to you.
I accept that you are remorseful for you conduct resulting in the loss of life of one person and serious injury to another. You have expressed your remorse to the police in your interview, to Dr Sullivan and to Dr Wong, and through your counsel to the court. Your remorse is consistent with the way the case has progressed through the criminal justice system. You made full and frank admissions to the police in your record of interview, you did not contest the matter at committal, you offered to plead guilty to culpable driving causing death and negligently causing serious injury. You indicated at a pre-trial hearing that you did not wish to run a trial and the matter was ultimately resolved on the basis of the present presentment to which you pleaded guilty on 1 May 2008.
I accept that you have indicated your preparedness to plead guilty at an early stage and that your plea and conduct to date is indicative of your genuine remorse, and accordingly I propose to give you a discount for the plea of guilty entered in respect of both offences.
Accordingly, in sentencing you, I take into account your pleas of guilty and give you a discount for them. I take into account also your genuine remorse, your full and frank admissions to the police, and your cooperation with them, and as the matter progressed through the criminal justice system. I take into account also that by reason of your plea you have saved the community the cost of a trial and the witnesses the ordeal of one. I take into account also that you were then and you are now, suffering from depression of moderate severity. I take into account that by reason of your mental state operating upon you at the time of your offending that your moral culpability for your actions is reduced and that considerations of specific and general deterrence are in the circumstances of this case to be sensibly moderated.
Against these matters stand the nature and gravity of the offences here committed, driving on the wrong side of a major public road into the face of oncoming traffic at 7.15 pm on a weeknight, is as stated previously, of itself reckless conduct of a high order, which here resulted in the death of one person and serious injury to another.
Even allowing for all matters which go in your favour, your conduct deserves a significant period of imprisonment.
Your counsel has submitted that you would benefit from a lengthy period on parole because you have insight into your condition and because you have sought access to services in the past. You will therefore most likely avail yourself of psychiatric and medical assistance that parole can provide so as to enhance your prospects for rehabilitation. I accept that this is so.
Further, you have a positive relationship with your young daughter, which you hope to continue, and you enjoy the ongoing support of your family and, if ever you are physically able to return to it, your work as a welder. These matters suggest that your rehabilitation is not without hope and should be encouraged. Accordingly, taking into account all matters which need to be addressed, you are convicted and sentenced as follows:
Count 1, two years; imprisonment.
Count 2, six years’ imprisonment.
Although it is the one act of driving, there are nonetheless two victims and accordingly I propose to order that one year of the sentence imposed in respect of Count 1 be served cumulatively with the sentence imposed in respect of Count 2, that is, seven years’ imprisonment.
In order to enhance your prospects for rehabilitation, I propose to order that you serve a non parole period of five years and I declare that you have already served by way of pre-sentence detention a period of 11 days. I propose, pursuant to s 89 of the Sentencing Act to cancel your driver's licence and disqualify you from obtaining a licence for a period of five years. Pursuant to s 6AAA of the Sentencing Act, I am obliged to state and record the sentence I would have imposed but for your plea of guilty.
It is a particularly difficult exercise in this case because there are other considerations with equal or more weight which must be addressed in the sentencing function. Doing the best I can, the sentence I would have imposed but for the plea of guilty is eight years with a non parole period of six.
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