R v Evans
[2019] VSC 606
•10 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0311
| THE QUEEN | |
| v | |
| CHARLES McKENZIE ROSS EVANS | Accused |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2019 |
DATE OF SENTENCE: | 10 September 2019 |
CASE MAY BE CITED AS: | R v Evans |
MEDIUM NEUTRAL CITATION: | [2019] VSC 606 |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Failing to render assistance after a motor vehicle accident – Plea of Guilty – Remorse – Good prospects for rehabilitation – General Deterrence – Total Effective Sentence of four years’ imprisonment with non-parole period of two years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | John Cain, Solicitor to the OPP |
| For the Accused | Mr P Morrissey SC | Valos Black |
HER HONOUR:
Charles Evans, you have pleaded guilty to one count of dangerous driving causing death and one count of failing to render assistance after a motor vehicle accident.
Both charges relate to the incident on 28 December 2017 in which Alicia Little lost her life.
The maximum penalty for each offence is 10 years’ imprisonment.
Background
You had been Ms Little’s partner since 2013. By 2017, you were living together in a rented property in Kyneton. Your four year relationship had been marked by episodes of family violence. Both you and Ms Little had, on various occasions, contacted police alleging assault by the other. You had, at least once, separated. But, you had reconciled and, two weeks prior to her death, you had asked for her hand in marriage.
But at Christmas 2017, your relationship deteriorated. Your arguing led Ms Little to occupy the spare bedroom of your Kyneton house.
On Boxing Day 2017 Ms Little had decided to end the relationship. She posted on Facebook ‘I’m over it’, and she told both her mother and her brother that she was going to leave. On 27 December 2017 Ms Little told her mother by telephone that she was packing and that you were verbally abusing her. You could be heard in the background speaking abuse to Ms Little. At one point, Ms Little told her mother that she had to go, and hung up the telephone.
On 28 December 2017, the day she died, Ms Little spoke to her mother twice by telephone. During the first call she said that she was okay and was packing. During the second call, at 2.53 pm, she told her mother that she was in the kitchen. You could be heard in the background, yelling. Ms Little said ‘shut up I’m talking to my mum’. You said in the background words to the effect of ‘bring your brother, bring your uncles. I don’t care. I’m a fucking Evans and I’ll go through the lot of them’.
A little over 30 minutes later, at 3.29pm, Ms Little sent her mother a text message which read ‘in the next 24 hours there is going to be drama. I’m putting the truck and the 5th wheeler [a van] into my name’.
Between 3.39 pm and 3.44 pm Ms Little sent a series of text messages to a friend. She said that her relationship with you was over and that she would not live with a drunk any longer. Ms Little stated that she had caught you using dating websites and could not trust you. The final message read ‘I had to ring the police’.
Indeed, at 3.41pm, Ms Little had called 000 and spoke to the operator. She requested police attend and remove you, as you were abusive and drunk.
At 3.45 pm, Ms Little called another friend, Ms McAlpine, and said ‘Merry Christmas, Happy New Year and all that shit’. Ms Little sounded unusually down and rushed, but not panicked. During the conversation, Ms McAlpine heard a loud ‘whooshing’ sound on the phone. The line stayed open for another 10 seconds before the call terminated. Ms McAlpine tried to call back, but the phone was not answered.
Ms Little’s phone handset was later found by police in your Toyota Hilux vehicle.
The Incident Causing Death
The exact sequence of what happened next is unclear. I will return to this issue later. But you took Ms Little’s phone and went to the rear of your property where your Toyota Hilux vehicle was parked. You entered the driver’s door and commenced to drive out of the property. That necessitated you passing between a fence and a large concrete water tank. Later analysis by police show that you drove your vehicle at a speed between 12 and 16 km per hour around the curve of the water tank, such that the tyres were about 13 cm from it. At one point you applied the brakes and the vehicle skidded for a distance of about 2.2 metres before coming to a stop. You had struck Ms Little.
It seems likely that Ms Little had come out of the house in an attempt to retrieve her phone and perhaps to further remonstrate with you. She was standing near the water tank when she was hit. Police analysis suggests that Ms Little was facing towards the vehicle when she was struck on her right hand side by the front driver side of your vehicle. The force of the impact caused Ms Little to rotate clockwise through 180 degrees as the vehicle was skidding. Her back was struck by the leading edge of the utility tray behind the driver’s door. Ms Little’s DNA was located on the leading edge of the tray on the driver’s side. Scrape marks on the side of the tank match damage to the driver’s side of the vehicle.
A later post-mortem established that Ms Little suffered multiple injuries, including severe blunt trauma, multiple bilateral posterior rib fractures, bilateral scapulae fractures, extensive bruising to the back, pelvic fractures, lacerations of the liver, bilateral pneumothoraces, a right hemothorax and lung contusions. Death resulted from severe effects on the lungs as well as blood loss into the peritoneum from the lacerations to the liver.
Events following the Incident Causing Death
You did nothing to assist Ms Little. You left the scene.
At about 3.50 pm, you rang a friend, Mr Sell, and asked to stay at his home. You said you were already there, washing blood off your nose at a tap. You said that Ms Little had bitten you and she was ‘going right off’ at you. You also said that Ms Little had called the police and you had taken her phone.
Meanwhile, in response to her earlier 000 call, two police officers arrived at your Kyneton address at 3.57 pm and found Ms Little lying on her back next to the water tank. She was foaming at the mouth and obviously seriously injured. An ambulance was called. Despite significant resuscitation efforts, Ms Little’s life could not be saved. She was pronounced dead at the scene.
As paramedics were working on resuscitating Ms Little, a neighbour arrived and saw that Ms Little was injured. The neighbour returned home and, at 4.55 pm, attempted to contact you on your mobile telephone. You did not answer that call, but immediately sent a text message that said ‘can’t talk now. What’s up?’
You already had, at 4.12 pm and again at 4.14pm made two calls to Ms Little’s phone, which was then in your vehicle.
At 4.57 pm, you rang your neighbour and told him that you had been arguing with Ms Little, saying that she had ‘gone mental’ and bitten your nose, causing blood loss. You said that she had telephoned police and you had left. Your neighbour told you that he believed that Ms Little was dead.
At 5.10 pm, you rang your friend at whose property you had been, to say that you were going home. You said that someone had called you and said that Ms Little had tried to commit suicide.
Arrest and Record of Interview
You returned to your Kyneton property at about 5.30 pm. You were immediately arrested. Police noticed you to be obviously intoxicated. When asked how much you had had to drink, you replied, ‘two small scotches’. A breath analysis conducted at the Kyneton police station at 8.28 pm showed that your breath contained 0.087% alcohol.[1]
[1]No inference can be drawn from this reading as to your level of intoxication at the time of the incident.
When police asked what had happened, you variously said, ‘she bit me. Is she ok?’ and ‘I don’t know. My neighbour called me and I came home’.
On 29 December 2017 you were interviewed by police. You said that when you had last left the Kyneton property, you looked out of your window and saw Ms Little ‘on the verandah’ and that she ‘definitely had no injuries’ at that time. You could not explain how Ms Little’s phone came to be in your vehicle.
Telephone calls to son
In a series of telephone calls to your son from prison in January and April 2019, you said that Ms Little had thrown a big rock at the car, which caused you to brake. You said that she could not have been hit by your car because you saw where she was standing. You said that she might have bumped the mirror or hit the side door, which spun her around a little.
Impact on Victims
I have received and considered 22 victim impact statements in this matter.
What shines from those statements is that to those nearest to her, Alicia Little was a spirited, fun-loving woman whose friends and family meant the world. More than one talks about her smile, which could light a room. The photographs of her that I have seen make that plain. She touched the world of children and adults alike, painting rocks in the garden as well as sharing the serious burdens of life. Aged 41 at the time of her death, those around her saw that she had so much more life to live.
A close knit family has lost a daughter, sister, niece, aunt and mother. Friends, old and young, have lost a loved and trusted companion and a cherished non-blood aunty. And the community of the carnival industry, of which you were both part, has been somewhat fractured.
Those that mourn Alicia Little are shattered by her death, missing her presence both in good times and in bad, when they instinctively go to turn to her for fun or for solace. They are inhibited socially, more fearful of the dangers of life than they once were and wary of trusting others. Some have suffered psychological reactions. Some have suffered financial consequences.
In short, the death of Alicia Little has caused wide ranging ripples of grief. Her friends and family are devastated.
Personal History
It is necessary to say something about your personal history.
You were born on 11 September 1973. You were aged 44 years at the time of your offending. You are now aged 45 years.
You are the middle child of a family of five. You grew up in western Sydney, attending two Catholic schools before your family moved to country NSW when you were in grade 6. Your schooling effectively ended at that point. At that tender age, your grandfather persuaded your parents to allow you to join the carnival industry.
Your family has, for some generations, been involved in that industry. Your collective work ethic is strong. Your sister now manages, successfully, the family business of hiring fairground equipment. At the time you left school you had, apparently, already had employment as an actor in television shows and commercials. I am told you regret your lack of formal education. But you have qualifications in boiler making and welding. It seems you are a particularly gifted welder. You can also drive trucks and are skilled with horses.
At the beginning of your teenage years you met and began a relationship with your future wife, who was some three or four years older than you. You commenced co-habiting within months. Thirteen years later you married. Together you have two children, a daughter born in 1995 and a son born in 1997. In about 1999, you bought a ten acre property in Parkes, NSW.
From the many character references tendered on your behalf, I accept that you were a generous, multi-skilled, well-liked and valued member of that rural community. You left that community for Melbourne in 2013 upon the breakdown of your marriage. At about that time, you injured your back. Upon arrival in Melbourne you lived with your sister and commenced contract welding work. Your troublesome back caused you to relinquish that work in 2017. For a man who had worked, and worked hard, all of his adult life and some of his childhood, that was a difficult adjustment.
You had known Ms Little through the carnival industry for some years prior to the commencement of your relationship. That relationship was of some five years’ duration prior to Ms Little’s death. It was, as I have already said, marred by allegations of physical violence by both of you. You separated at least once. There were difficulties in managing a blended family. Ms Little had four children, but they did not live with her or close to Kyneton. But, there is also evidence that you did together find a measure of contentment and moments of joy. You shared a joint passion for horses. Your move to the Kyneton property and the improvements you made to the dwelling were part of a joint plan for the future. You say that you loved Ms Little. You certainly did propose marriage to her.
Legal Principles
The offence of dangerous driving encompasses a wide range of conduct. As the Court of Appeal has said:
Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[2]
[2]Stephens v The Queen (2016) 50 VR 740 (Redlich, Santamaria and Beach JJA) (‘Stephens’), [20].
It is necessary to consider both the objective dangerousness of the driving and the moral culpability of the offender for it. Nine factors relevant to those issues were delineated in R v Whyte[3] as follows:
[3](2002) 55 NSWLR 252 (‘Whyte’), [216].
i. Extent and nature of the injuries inflicted.
ii. Number of people put at risk.
iii. Degree of speed.
iv. Degree of intoxication or of substance abuse.
v. Erratic driving.
vi. Competitive driving or showing off.
vii. Length of the journey during which others were exposed to risk.
viii. Ignoring of warnings.
ix. Escaping police pursuit.[4]
[4]Whyte, [216]-[217] (Spigelman CJ, Mason P, Bar, Bell and McClellan JJ agreeing). The factors were adopted in DPP v Neethling (2009) 22 VR 466, [31] (Maxwell P, Vincent JA and Hargrave AJA) (‘Neethling’).
But, these factors are not a ‘mere checklist’ nor are they exhaustive.[5] And, it is to be remembered that moral culpability for the offence is to be assessed by reference to the offence of dangerous driving and not by reference to the spectrum of offending for the more serious offence of culpable driving causing death.[6]
[5]Stephens, [25].
[6]Stephens, [29].
General deterrence must be given considerable weight in sentencing for this offence and, except, perhaps, where a finding of low moral culpability on the part of the offender is made, a significant term of imprisonment is the likely result.[7]
[7]DPP v Oates (2007) 47 MVR 483, [22] (Neave JA, Warren CJ agreeing); Neethling, [30].
The offence of failing to render assistance after an accident in which a person is killed involves conduct breaching an offender’s moral and legal obligation in circumstances where he or she knew or ought reasonably to have known[8] that, as a result of a motor vehicle accident, a person was seriously injured or dead. The obligation is to immediately render such assistance as he or she can.[9]
[8]In this matter, it is accepted between the parties that the offender ‘ought to have known’.
[9]Road Safety Act 1986 (Vic), s 61(1)(b).
As the Court of Appeal stated in Tokay v The Queen, [10] the maximum penalty for the offence
reflects the serious community concern and disapproval of the failure to stop and render assistance. Several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury, and have referred to the fact that offenders must expect a substantial term of imprisonment.[11]
[10](2014) 69 MVR 24 (‘Tokay’).
[11]Tokay, [26] (Santamaria JA).
It is plain that general deterrence is a significant sentencing factor.[12]
[12]Sarikaya v The Queen [2015] VSCA 236 (Maxwell P and Kaye JA); Tang v The Queen [2013] VSCA 31, [18] (Harper JA); Nguyen v R [2014] VSCA 53, [21] (Neave and Weinberg JJA).
Analysis
As to the dangerousness of your driving, the prosecution submits it is manifested by a combination of it being in the vicinity of Ms Little, who was in an emotional state, you being affected by alcohol, and it being in close proximity to the water tank. This, it is argued, makes the level of dangerousness ‘low to mid-level’. But, your moral culpability is said to be ‘middle range’.
Counsel on your behalf submitted that the dangerousness of your driving could be encapsulated as a failure to keep a look out.[13] It was submitted that most of the nine aggravating features delineated in Whyte were absent. It was submitted that you were agitated, having been bitten on the nose by Ms Little, but you were not angry. Ms Little was in a volatile and agitated state. You deny having consumed alcohol; any alcohol you consumed was after the accident from a bottle you had with you. It was further submitted that while you did hit Ms Little, she was not crushed between your vehicle and the water tank. It is submitted that the dangerousness of your driving falls towards the lower end and your moral culpability is moderate.
[13]Reference was made to Towle v R [2009] VSCA 280.
With respect to your failure to render assistance to Ms Little after the accident, the prosecution submits that your moral culpability is ‘medium to high’ in light of the death of Ms Little and your inconsistent versions of what happened.
Counsel on your behalf emphasises that your plea to this offence is made on the basis that you ought to have known that Ms Little had been killed or seriously injured and not that you did know. Your varying versions of what happened are said to arise in the context of your agitation.
The Court of Appeal has emphasised that:
It is best to avoid categorising cases as falling within a particular ‘range’ and, instead, for sentencing judges to have regard to relevant comparable, and current, cases as ‘yardsticks’. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.[14]
[14]DPP v Weybury [2018] VSCA 120, [34] (Maxwell P and Hargrave JA).
And, that:
Moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.[15]
[15]Stephens, [26].
I find the following factors to be relevant to the assessment of the dangerousness of your driving and your moral culpability for it.
First, your actions caused the death of Ms Little. It seems to me given the nature of the injuries sustained by her, the matching scrape marks on your vehicle and the water tank, the 13 cm distance between your right tyres and the tank, and the dispersal of Ms Little’s footwear and keys, that Ms Little was crushed between your utility vehicle and the tank. But it is not necessary to make a final determination on that matter. It is enough that Ms Little died of catastrophic injuries.
Second, both she and you were in a highly agitated and emotional state. You had been arguing for some days. You had been bitten on the nose. She was planning to leave, had called the police and was contacting friends and family members by telephone. Again it is not necessary to make a final determination about the matter, but it seems most likely that you took Ms Little’s phone from her in anger. That would explain the sudden end to the phone call with Ms McAlpine, Ms McAlpine’s inability to reconnect with Ms Little by telephone, the presence of the telephone in your car and your seeming inability to explain why it was there. I am unable to determine why you later made two phone calls to Ms Little’s telephone service when you knew that you had possession of her phone.
Third, you had consumed alcohol prior to the incident. Aside from the comments of Ms Little that you had done so, that is what you told others, including in response to the police officer who asked routine questions under the Road Safety Act of you shortly after your return to the scene.[16] You were not in a possession of a bottle of alcohol at the time of your arrest, nor was one found in your vehicle. I make no finding as to the level of your intoxication at the time of the accident. Rather, the consumption of alcohol is relevant to your emotional state and your ability to observe and react to your surroundings.
[16]With respect to the Road Safety Act, s 49(1)(f). You said that you had consumed two glasses of bourbon with Coke and had last consumed alcohol at the Kyneton address.
Fourth, the speed at which you drove was quite moderate and should have led you to negotiate the narrow space between the fence and the water tank, a space with which you were familiar, safely. But, your moderate speed renders your failure to avoid Ms Little more, not less, inexplicable. As you told your son in phone calls from prison, you saw Ms Little before you applied the brakes.
Fifth, you were driving a large and heavy vehicle. It was a vehicle with which you were familiar and you are a very experienced and skilled driver.
Sixth, the incident happened extremely quickly. You did not drive erratically or aggressively over a long period. It took place on private property where the danger posed did not extend to the public. And, you applied the brakes when it was clear that there had been a collision.
Your failure to render assistance in circumstances where you ought reasonably to have known that your partner was seriously injured or dead was cowardly in the extreme. So were your untruthful statements that you had seen Ms Little alive and well on the verandah as you left and that she had attempted suicide.
Sentencing Considerations
Turning to the matters which I must consider in reaching the appropriate sentence, I take into account your plea of guilty. While not made at the first opportunity, I accept that it was made relatively early. You were initially charged with murder and contested the prosecution evidence at committal. The resolution of the charges occurred prior to trial. Your plea involves an acceptance by you of your actions and shows a willingness to facilitate the course of justice. It has utilitarian benefit and has spared the family of Ms Little the ordeal of a trial.
I also accept that your plea of guilty indicates remorse on your part. While at times you have been less than truthful about what occurred and maintain that there are things about the incident that you do not remember or cannot explain, I accept that you have genuine contrition for your actions. I accept that you grieve the loss of Alicia Little.
I consider you to have good prospects for rehabilitation. You have no relevant prior convictions. You have an excellent work history and, upon your release, will have the support of a loving family and community. The character evidence tendered on your behalf was impressive.
The sentence I impose emphasises general deterrence and denounces your behaviour. All drivers, whether on public or private roads, must drive in a manner that is careful and safe. And, the obligation to assist anyone hurt in a motor vehicle accident is fundamental. It is the decent thing to do. Failure to do so is indefensible, as in the circumstances it can only be the result of cowardice, callousness and selfishness.
Given my findings as to your prospects for rehabilitation and your level of remorse, specific deterrence and the need to protect the community are of lesser weight in the sentencing exercise.
I have been referred to a number of authorities to assist me with the range of sentences for offending of this type.[17] I have had regard to current sentencing practice.[18]
[17]Sarikaya, Weybury, and Woldesilassie v The Queen [2018] VSCA 285.
[18]Including Sentencing Advisory Council, Major Driving Offences: Current Sentencing Practices, June 2015, in so far as it is of assistance.
Sentence
Mr Evans, please stand.
Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 (Vic)(‘the Act’) and having regard to the matters I have just discussed, for the offence of dangerous driving causing death, I sentence you to three years and three months’ imprisonment. For the offence of failing to render assistance, I sentence you to two years and six months’ imprisonment. Nine months of the latter sentence will be cumulative on the sentence for dangerous driving causing death.
That makes a total effective sentence of four years’ imprisonment. You must serve a minimum of two years and six months’ imprisonment before being eligible for parole.
I declare that you have already served 621 days of that sentence by way of pre-sentence detention, not including today.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years and six months.
Pursuant to s 61(6) of the Road Safety Act, your driver’s licence is cancelled and you are disqualified from driving for a period of five years.
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