R v Hackett
[2021] VSC 773
•16 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0109
| Between: | |
| THE QUEEN | |
| -and- | |
| DANIEL JAMES HACKETT | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 6 October 2021 (sentence indication) 16 November 2021 (plea in mitigation) | |
DATE OF SENTENCE: | 16 November 2021 | |
DATE OF PUBLICATION OF REASONS: | 26 November 2021 | |
CASE MAY BE CITED AS: | R v Hackett | |
MEDIUM NEUTRAL CITATION: | [2021] VSC 773 | |
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CRIMINAL LAW — Sentence following sentence indication hearing — Dangerous driving causing death — Where car on freeway braked suddenly because of banking of traffic ahead — Where truck driven by accused within speed limit crashed into rear of car, causing death of driver — Whether “looming effect” operative on accused — Whether accused took evasive action by braking and steering to right — Whether momentary inattention by accused — Where absence of common aggravating factors — Whether low moral culpability — Whether offence at lower end of spectrum of gravity — Plea of guilty — Remorse — Delay (three years and six months between offence and sentence) — Prior good character — Limited history of driving offences or infringements — Excellent prospects of rehabilitation — Whether extra-curial punishment in accused’s inability to work for a few months and self-imposed change of job and associated drop in income — Current sentencing practices — Whether, notwithstanding grave victim impact and importance of general deterrence, non-custodial sentence open — Significance of rehabilitation — Denunciation, just punishment, community protection and specific deterrence of modest significance — Parsimony — Sentenced to community correction order for 20 months, with conviction — Additional conditions requiring unpaid community work and completion of Road Trauma Awareness Seminar — Mandatory cancellation of driver’s licence — Disqualified from obtaining another licence for 20 months — Crimes Act 1958 (Vic), s 319(1); Criminal Procedure Act 2009 (Vic), ss 207-209; Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 36, 48C, 48D, 87P & 89.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Harper | Solicitor for Public Prosecutions |
| For the Accused | Mr M Thomas | Furstenberg Law |
HIS HONOUR:
OVERVIEW
Just before midday on 15 May 2018, while heading towards Melbourne on the Princes Freeway at Officer, Daniel Hackett crashed the garbage truck he was driving into the rear of a small car driven by John Styles.
Tragically, the injuries Mr Styles sustained in the collision were not survivable and he died six days later. Naturally, Mr Styles’ family are devastated.
Mr Hackett, for his part, must live with the fact that his driving caused these terrible consequences. A reflection of that acceptance is that, despite an arguable defence, Mr Hackett pleaded guilty to a charge of dangerous driving causing the death of Mr Styles following a favourable sentence indication.
Usually, this offence will attract a sentence of imprisonment. Inevitably, victim impact is grave, and general deterrence is almost always the dominant sentencing purpose. But there are cases in which, despite these considerations, it is necessary and appropriate to impose a non-custodial sentence. This was one of those cases.
While it was wet and visibility may have been reduced, prior to the crash, Mr Hackett had been travelling within the speed limit of 100 kph. He was not affected by drugs or alcohol or lack of sleep. Nor was he driving erratically, racing or lairising. But he accepted that, for the accident to have occurred as it did, he must have lost concentration at some point. As will be seen, however, his inattention was only momentary — a matter of seconds — and external factors contributed to the accident, which lessened his moral culpability considerably. Mr Hackett was also able to call on an impressive array of mitigating factors, including his plea of guilty, remorse, prior good character and excellent prospects of rehabilitation.
In short, it is for these reasons that, last week, I sentenced Mr Hackett to a community correction order (“CCO”) for 20 months, with conviction. The CCO included a condition that he complete 200 hours of unpaid community work and a treatment and rehabilitation condition requiring him to participate in the Road Trauma Awareness Seminar (or its equivalent). I also cancelled his driver’s licence and disqualified him from obtaining another for 20 months.
My more detailed reasons for sentencing as I did follow.[1]
[1]Several considerations contributed to my decision to sentence on the spot without giving reasons and to defer the publication of my written reasons until today. First, following submissions by counsel at the sentence indication hearing, I had given rather detailed ex tempore reasons for my decision. Second, the law relating to sentence indications meant that, given my indication at the earlier hearing and his immediate plea of guilty, Mr Hackett could not be imprisoned (see s 209(1) of the Criminal Procedure Act 2009 (Vic)). Third, at the plea, Mr Thomas had submitted that a CCO should be imposed and both counsel were agreed on the appropriateness of the proposed additional conditions to be attached to a CCO. Fourth, by that stage, I had formed a view as to the appropriate sentence but was not in a position to deliver settled reasons. Fifth, taking this course would avoid the need for Mr Hackett, his family and Mr Styles’ family to come to Court again. Finally, the parties consented to this course.
PROCEDURAL HISTORY
The procedural history of this matter unfolded in this way.
Some five months after the collision, on 25 October 2018, Mr Hackett was charged with the indictable offence of dangerous driving causing death[2] and with the lesser alternative summary offences of dangerous driving and careless driving.
[2]Contrary to s 319(1) of the Crimes Act 1958 (Vic).
On 3 June 2019, Mr Hackett was committed for trial in the County Court on the indictable charge. Initially, the trial was listed for 24 August 2020, but later was vacated as a result of the suspension of jury trials in the wake of the COVID-19 pandemic. Pre-trial argument that had been listed subsequently was adjourned twice, once when counsel became unavailable and again because a prosecution expert report had not been served on the defence.
On 18 May 2021, the matter was transferred to this Court.[3] On 31 May, a conference was conducted between the accident reconstruction experts engaged by the parties. As a result of a change of opinion by its expert witness, the prosecution changed its case materially and, on 9 July, filed an amended prosecution opening.
[3]Usually, matters of this type are heard in the County Court. This matter was among several in the County Court that have been transferred to this Court in recent times in an attempt to clear the backlog of cases resulting from the impact of the COVID-19 pandemic on the legal system.
On 27 July, the matter was adjourned to enable the Director of Public Prosecutions to consider whether to consent to a sentence indication hearing[4] on dangerous driving causing death. Subsequently, that consent was given.
[4]See ss 207-209 of the Criminal Procedure Act 2009 (Vic).
As a result, on 6 October, the matter came before me as an application for a sentence indication. At such a hearing, the Court is asked to indicate whether, were the accused to plead guilty to the charge on the indictment (or another charge), a sentence of imprisonment that commences immediately would, or would not, be likely to be imposed. In so far as it was practicable to do so, I heard the application as if it were a plea hearing. At the conclusion of the hearing, I indicated that, were Mr Hackett to plead guilty, I would not be likely to impose a sentence of imprisonment that commenced immediately. My reasons for doing so, which I gave ex tempore, reflected the summary of reasons I gave at the outset of this judgment. Mr Hackett then pleaded guilty upon arraignment.
Once an indication of the kind I gave has been given and an accused pleads guilty at the first opportunity thereafter, as Mr Hackett did, the Court must not impose a sentence of imprisonment that commences immediately.[5] As I understand it, that is a major reason why in some cases, in order to avoid duplication of work and with the concurrence of the parties, a court will treat the plea in mitigation as if it had just been conducted and move to sentence forthwith.
[5]See s 209(1) of the Criminal Procedure Act 2009 (Vic).
In this case, however, instead of taking that course, the parties and I considered it necessary that the matter be adjourned until 16 November in order to allow time for the provision of victim impact statements and a pre-sentence report on Mr Hackett’s suitability for a CCO. Subsequently, I received six victim impact statements from Mr Styles’ family and a pre-sentence report prepared by Corrections Victoria.
At the plea hearing last week, the prosecutor Ms Harper opened the matter (again) in the usual way. Each victim impact statement was read in Court. Mr Thomas,[6] who appeared for Mr Hackett, conducted a plea in mitigation. I heard submissions, including on some factual matters. Both counsel also adopted the written and oral submissions they had filed on and made at the sentence indication hearing.
SUMMARY OF BACKGROUND TO, AND CIRCUMSTANCES OF, OFFENDING
[6]Ms Harper and Mr Thomas both had appeared at the sentence indication hearing.
Introduction
I turn now to a summary of the background to, and circumstances of, the offending. This summary is taken in part from the prosecution opening. It is supplemented by matters conveyed by counsel, the additional reports of the accident reconstruction experts and the depositions. In addition, I shall explain my reasoning and conclusions on the disputed matters of fact.
Mr Styles
Mr Styles was the sole occupant of the red[7] Kia Shuma sedan he was driving when that car was struck from behind.
[7]The car was also described as maroon or burgundy in colour.
He was aged 78 at the time of his death. He had not long since retired from his occupation as a product manager.
Mr Styles is survived by his wife, two children, four grandchildren and two brothers, about some of whom I shall say more when addressing the victim impact statements. He also left behind a larger extended family.
The day after the collision, Mr Styles’ family were given the dreadful medical advice that his injuries were not survivable. They then had to make the heart-rending decision to allow his life support to be withdrawn.
Mr Hackett
Mr Hackett was aged 35 at the time of the collision and is now 38. He is married and has two young children.
On 15 May 2018, he held a current driver’s licence with a heavy rigid vehicle endorsement. His work involved picking up and dropping off commercial waste around the Melbourne metropolitan area.
The truck
The truck driven by Mr Hackett was a 2016 model white Scania garbage truck. He had driven it regularly. It was owned by his employer, Konstruct Environment Pty Ltd, which traded as Bingo Bins. Mr Hackett was the sole occupant of the truck when he crashed.
The roadway
At the collision scene in Officer, the Princes Freeway was typical of many other stretches of freeway in Victoria. It ran in a straight line from east to west. The bitumen road was in good condition. There were two traffic lanes for westbound traffic which were defined by broken white lines painted on the road surface, separating each traffic lane. There was an unsealed emergency lane on the left-hand side of the westbound traffic lanes, defined by a solid white raised tactile fog line painted on the road surface. There was an Armco steel safety barrier abutting the unsealed emergency lane. The two pairs of westbound and eastbound lanes were divided by a grass median strip with a Briffen wire rope barrier down the centre to prevent motorists from drifting onto the wrong side of the freeway.
The applicable speed limit was 100 kph.
Weather conditions
In the prosecution opening, it was said that the road was wet and that, despite the overcast weather, visibility was good.
As we shall see shortly, however, some witnesses to the collision described rain and mist at that time.
Circumstances of collision
On the day of the collision, Mr Hackett started work at about 5:00 a.m. when he collected the garbage truck from his employer’s Clayton depot. He then attended 44 separate locations around Melbourne throughout the morning, collecting waste from various businesses.
At about 11:26 a.m., Mr Hackett left his last pick-up location in Commercial Drive, Pakenham, and travelled west along the Princes Freeway (i.e., towards Melbourne).
Mr Styles had left his home address in his Kia Shuma and travelled along McGregor Road before turning right onto the Princes Freeway, also heading west.
At 11:53 a.m., Mr Styles was travelling in the left westbound lane about 500 metres west of Officer South Road when he began to slow down due to traffic congestion up ahead.
At this time, Mr Hackett was also travelling in the left lane. As the traffic was coming to a stop due to the congestion ahead, Mr Hackett failed sufficiently to react to the slowing traffic and collided with the rear driver’s side of Mr Styles’ Kia sedan.
The Kia then veered off the road to the left and into the Armco barrier, before bouncing back to the road, where it came to a complete stop in a roughly north-south orientation, straddling the left emergency lane and the left traffic lane.
Included in the prosecution summary was this passage from the statement of Wayne Pappin, who, at the time of the collision, was driving in the eastbound lanes (i.e., towards Pakenham):[8]
I saw a white garbage truck on the opposite side of the road. The traffic was constant but for some reason the garbage truck had my attention as it appeared to be travelling a little bit quicker than all the other cars. It wasn’t excessive but it was faster.
I saw the garbage truck appear to turn to his left then immediately to his right as if to avoid another car and continued to travel towards the inside shoulder and [onto] the rope barrier. …
[8]My emphasis.
After the truck crossed the right westbound traffic lane and collided with the wire rope barrier in the median strip, it ended up tipping onto its side.
The Kia sustained major impact damage to its rear driver’s side. The front airbags did not deploy.
Civilians, including a medical doctor, stopped to assist.
While he was distressed at what occurred, and in shock, Mr Hackett was not physically injured in the collision.
As we have seen, however, Mr Styles suffered grave injuries. He was taken to the Alfred Hospital. Sadly, he succumbed to his injuries and died six days later. The medical cause of Mr Styles’ death was described by a pathologist as “injuries sustained in a motor vehicle collision”.
The investigation
After police arrived at the scene, Mr Hackett was arrested and conveyed to the Dandenong Police Station. Later that day, from about 5:07 p.m., he participated in a recorded interview with police. On legal advice, he made no comment in response to the allegations put to him. He was released without charge.
A Victoria Police mechanical investigator attended the scene and conducted an initial inspection of the garbage truck. He found the truck to be in good condition, without any faults that could have caused or contributed to the collision.
Detective Sergeant Robert Hay, a Victoria Police collision reconstruction expert, conducted a number of tests in relation to the collision. He formed the view that “the data showed that braking commenced … approximately [one second] prior to impact and was fully developed by approximately 0.8 seconds”, and therefore that the braking was insufficient. He accepted that the lack of tyre marks did not mean that braking did not occur.
Detective Hay further opined that, “based on the damage to the Kia and the scrapes on the roadway at the time of the collision, the truck was straddling the centre white line of the two westbound lanes”. Further, he was “unable to explain the failure of the driver of the Scania truck to take evasive action or steer around the Kia”.
On 17 May 2018, police were given various documents by Mr Hackett’s employer, including a live feed from the garbage truck to the depot outlining the truck’s exact movements by means of a tracking device. Analysis of the GPS tracking system indicated that the truck accelerated up to, and maintained speeds varying between, 84 kph and 97 kph prior to the collision. The data also denoted harsh braking at 11:52:52 hours whilst travelling at a speed of 76 kph.
In the prosecution opening, this was said: “Immediately prior to the collision, the truck was travelling at 97 kph, indicating that just prior to the collision Mr Hackett had not reacted to the traffic stopping ahead”. But, in my view, the first of those two propositions did not sit happily with the last sentence of the previous paragraph; and, as we shall see shortly, it was inconsistent with other aspects of the expert evidence, the eyewitness evidence and my findings in any event. After I raised this issue with Ms Harper, she conceded that Mr Hackett had been travelling at up to 96 kph before slowing to 76 kph (whether by braking or backing off) and then braking harshly just prior to impact.
Joint witness conference
The joint witness conference held on 31 May 2021 involved Detective Hay and Dr Shane Richardson, an accident reconstruction expert engaged by Mr Hackett’s solicitors. Both experts agreed on the following matters:
a)First, prior to braking, the truck was travelling at about 96 kph — so, well within the speed limit.
b)Second, before impacting Mr Styles’ Kia, Mr Hackett reduced the truck’s speed from 96 kph. (As we shall see shortly, on the competing views of the experts, the speed of the truck must have been reduced to somewhere between 69 kph and 79 kph. But, as I pointed out a few moments ago, Ms Harper conceded that Mr Hackett first slowed the truck to 76 kph and then braked harshly just prior to impact.)
c)Third, it was possible that Mr Hackett took evasive action prior to the collision “by using the truck’s brakes”.
d)Fourth, on the available accident data, it was not possible to determine the speed of the Kia immediately prior to impact.
e)Fifth, however, post-impact, the Kia moved at about 56 kph. (When this proposition is combined with the fact of the collision, the damage to the rear of the Kia and the evidence that the Kia was shunted along when it was struck, the pre-impact speed must have been somewhat less than 56 kph.)
f)Sixth, at the moment of impact, the Kia was travelling approximately in the centre of the left-hand lane on the freeway.
g)Seventh, at the moment of impact, the truck was not centred in a lane but was straddling the broken white line between the two westbound lanes.
h)Eighth, at the moment of impact, the two vehicles were overlapping by about 600 millimetres. In other words, the left front of the truck struck the right rear of the Kia, with an overlap of about 600 millimetres.
i)Finally, the truck struck the right rear of the Kia at about 180 degrees (i.e., about square on).
On the other hand, the two experts disagreed on the following matters:
a)First, Detective Hay opined that, at the moment of impact, the truck was travelling at about 79 kph, whereas Dr Richardson opined that it was about 69 kph. (Again, Ms Harper conceded that, given the data denoted harsh braking from 76 kph at the relevant time, the applicable range must be between 76 kph and 69 kph.)
b)Second, Dr Richardson was of the view that the accident involved a “looming” type of collision, whereas Detective Hay disagreed.
c)Third, on Dr Richardson’s view, using the available data, it is possible that Mr Hackett took evasive action prior to the collision “by steering”. Detective Hay disagreed.
The prosecution case
It was the prosecution case that the driving of the truck caused the death of Mr Styles, and that that driving was dangerous to the public having regard to all the circumstances of the case, in that Mr Hackett:
a) failed to take due care and attention;
b) failed sufficiently to apply the truck’s brakes prior to colliding with the Kia; and
c) failed to take sufficient evasive action to avoid a collision with the Kia.
Other evidence
Introduction
While I did not understand Mr Thomas to challenge the foregoing particulars of the prosecution case, he did dispute some of the factual matters alleged and the prosecution’s position on Mr Hackett’s level of culpability.
In those circumstances, and given the areas of disagreement between Detective Hay and Dr Richardson, and the competing submissions of counsel, it became necessary to make findings on the disputed facts. In order to explain those findings, I shall set out in these reasons parts of the statements of the eyewitnesses to the collision, as well as the admissions made by Mr Hackett to a police officer at the scene.
As will be seen, parts of this evidence also touch upon the point I made earlier about the weather and visibility at the time of the accident.
Other eyewitness observations
I turn first to David Andrews, who was heading towards Pakenham at the relevant time. He described the traffic travelling in his direction as “quite light” but said that the traffic heading towards Melbourne was “a little bit heavier”. He noticed cars in the Melbourne-bound lane had “started braking” and “bunching up”, and that there was “a lot of water spray”. He went on to say this:[9]
Just as I [passed] the BP service station (inbound), cars were still braking like a chain reaction and I saw a little red car towards the rear of the row of cars. The red car appeared to brake heavily in the fast (right) lane.[10] I then saw a rubbish truck behind the red car also brake and tried to avoid the red car by veering to the right but it hit the red car in the rear driver’s side corner and catapulted the red car forward.
I then focused on the truck as it headed for the grass and appeared to lose control. It travelled for a short distance and then it hit the wire barrier and travelled for about 60 metres before it tipped on its right … side and stopped. The way it was travelling, it would have hit my car if the barrier was not there.
[9]My emphasis.
[10]By referring to “the fast (right) lane”, Mr Andrews must have meant that the car was in the westbound lane to his far right or the westbound lanes in general. If he meant that, from the perspective of those driving in the two westbound lanes, the Kia was in the right-hand lane, then he was mistaken.
Michael Bristow was travelling towards Melbourne. It “was raining and the roads were very wet and misty”. He recalls travelling at 80 kph. The traffic was “pretty heavy” and was also travelling at about 80 kph. He continued:[11]
As we were travelling the traffic came to a sudden halt. I came to a complete stop in the [right-hand] lane. I looked back in my rear vision mirror and saw that a [handful] of cars was still approaching towards us. I didn’t see anything initially but I heard a faint thud and then a screech. I then looked in my mirror again and saw a [maroon-coloured] car get shunted by a garbage truck. The truck hit the car in the rear driver’s side. The car came to a stop in the [left-hand] lane. When it stopped, it was on an angle facing to the right. I then saw the truck skidding on an angle heading towards the centre median strip. When the tyres hit the grass, the wheels dug in and the truck started to tip over the wire barrier. …
[11]My emphasis.
Gavin Alexander was travelling towards Melbourne. His cruise control was set to 100 kph. He then turned on his adaptive cruise control; but he could not say how fast he was travelling at the time of the collision. He then said this:[12]
I noticed the traffic up ahead was banking up. Because of this, I applied the brakes to my vehicle, not hard as there was quite a gap between my vehicle and the car in front of me. At that point, I’m sure that I heard a bang. I noticed in my left mirror a burgundy … car spinning around coming towards me. At a similar point in time, I saw a garbage truck that was in the right … lane which caused me to look over my right shoulder, when I saw the garbage truck go towards the centre grass median strip and then I saw it topple over. It was like it was in slow motion.
[12]My emphasis.
Claire Probst was heading west, at 90 kph (because of the weather). She said this:[13]
There was no traffic beside me and the vehicles in front were about 400 metres ahead. I was concentrating on the traffic ahead. There was a truck in front of me … I was looking at the truck thinking to myself, “What the hell is it doing?” then I thought, “Oh my god, it has hit someone.” As this was happening I saw the truck go off to the right and roll onto its side. At the same time, a red car was moving back towards my car.
Admissions by Mr Hackett
[13]My emphasis.
Constable Aaron Bowen attended the scene at about 12:00 midday. When he asked Mr Hackett to tell him what happened, he received this response:[14]
The red car had slowed down, there was a gap. The red car then braked harder and aquaplaned. I slowed down so I wouldn’t hit it. I then tried to go around it and pumped my brakes to try and get them to engage. I then skidded and I think I hit them as I tried to go around the outside and that’s when I tipped it.
[14]My emphasis in bold italics. If issue were taken with it, this evidence may have been excluded at a trial, on a number of bases. For example, it would have been arguable that Mr Hackett was suspected, or ought reasonably to have been suspected, of having committed an offence, yet no caution preceded the police officer’s question; he was not informed of the rights to communicate with another or with a legal practitioner; he was in shock; and the questioning and admissions were not recorded electronically and were not confirmed later by any such means (see, e.g., ss 464A(3), 464C, 464H & 464J of the Crimes Act 1958 (Vic); ss 84, 85, 90, 135, 137 & 138 of the Evidence Act 2008 (Vic)). No submission was made that this evidence should not be taken into account on the plea.
Findings on disputed matters
Introduction
I shall address in reverse order each of the three matters on which Detective Hay and Dr Richardson disagreed, as well as some related questions of fact.
Swerving to the right
First, Ms Harper conceded that I was entitled to accept and act on the evidence of Mr Andrews and Constable Bowen. I was satisfied that I should do so. I considered that each account was sufficiently clear, was more or less consistent with the other and was supported by Dr Richardson’s opinion and other aspects of the evidence.
In those circumstances, I was satisfied that, contrary to Detective Hay’s opinion but consistently with that of Dr Richardson, Mr Hackett did take evasive action by steering in an attempt to “go around” the Kia. In particular, it was clear that, in addition to braking, Mr Hackett swerved at least to the right in an attempt to avoid a collision.
In my view, that he swerved to the right (whether or not he first swerved to the left) and struck the right-hand rear of the Kia at about 180 degrees while his truck straddled the two lanes (instead of colliding with the whole width of the rear end of the Kia) was consistent with the view that he commenced this manoeuvre from within the left-hand lane. This, it will be seen, was also relevant to the next point, which concerns the “looming effect”.
The looming effect
The second matter concerns Dr Richardson’s opinion, which Detective Hay disputed, that the collision involved “looming”.
The looming effect appears to have a technical (and perhaps variable) meaning to accident reconstruction experts.[15] But it describes a phenomenon that many drivers have experienced. Put simply, at higher speeds and at distance on a straight stretch of road, it is sometimes difficult to appreciate that a car well ahead in the same lane is travelling much more slowly (or is stopped). Studies and experience show that humans have difficulty perceiving the relatively slower speed of the distant car because our usual depth perception is, in a sense, deceived or compromised because of the way in which the distant car appears on our retinas. Sometimes, a driver will not appreciate or react to the other vehicle’s slower speed until fairly late in the piece — sometimes, almost too late; sometimes, much too late. It is as if, all of a sudden, the once-distant car “looms up” on the driver of the car approaching from behind. While it is a risk that an experienced and prudent driver may be astute to guard against, the phenomenon reflects the limits of visual perception, cognitive processing and reaction times.
[15]While the papers on the looming effect are legion, for a simple explanation of the “looming threshold”, see, for example, Michael E Maddox and Aaron Kiefer, “Looming Threshold Limits and Their Use in Forensic Practice”, Proceedings of the Human Factors and Ergonomics Society 56th Annual Meeting — 2012, pp 700-704, esp. at p 701.
It seemed to me that this phenomenon must have operated, at least to some extent, on Mr Hackett in the lead-up to the collision. This was all the more likely not only because he otherwise inexplicably slowed, braked, and swerved too late, and ended up crashing into the right rear of the Kia in consequence, but also in view of the evidence that some cars up ahead had slowed or stopped (or were “banking”) and that Mr Styles braked heavily too. (It will be remembered that Mr Andrews described Mr Styles’ car as braking heavily and that Mr Bristow said the traffic came to a sudden halt.)
When the looming argument is put on a guilty plea, as it was here, this does not mean that it is said Mr Hackett’s inadequate attention was not a cause of the accident or that his driving failed to reach the threshold of inattention required for dangerous driving. If either were so, the argument would be inconsistent with guilt. That said, taken to its fullest, that was what I understand Dr Richardson’s opinion to be directed at. But, for the purposes of a plea of guilty, where the threshold dangerousness and causation are (by definition) taken to be admitted, the looming argument means, and meant here, that the factors going to culpability were mitigated to a significant extent. This, in turn, in the circumstances of this case, would place Mr Hackett’s moral culpability for the offence at a lower level.
At the sentence indication hearing, Mr Thomas submitted that I should accept that the looming argument applied in the particular circumstances faced by Mr Hackett.
Ms Harper, in contrast, submitted that I should prefer the opinion of Detective Hay and conclude that looming had no part to play at all in this offence. In support of her position, Ms Harper urged me to read Detective Hay’s evidence given at the committal hearing on this topic. I did. I read all of his evidence. And I did so again for the purposes of the plea hearing.
In short, however, that evidence did not at the sentence indication hearing, and still did not at the plea, persuade me that I should reject the looming argument. On the contrary, properly understood, Detective Hay’s evidence only reinforced that argument or otherwise left it open, for these reasons.
First, it was plain that Detective Hay conceded that looming would be an issue if Mr Hackett were driving in the left-hand lane. Second, it was also apparent that his opinion was given on the assumption that, not only was Mr Hackett’s truck straddling the two lanes at the point of impact, but that it must have been doing so for a considerable time and distance before the collision. But, thirdly, on the evidence, I did not accept the latter proposition. Detective Hay appeared to be relying on Mr Pappin’s account for that hypothesis. It will be remembered that Mr Pappin (who was travelling east) said this:[16]
I saw the garbage truck appear to turn to his left then immediately to his right as if to avoid another car and continued to travel towards the inside shoulder and [onto] the rope barrier.
[16]My emphasis in bold italics. I should add that Mr Pappin did not notice that the truck actually struck the other car (i.e., the Kia). He did not pull over immediately because he believed it was too dangerous to do so. Eventually, he pulled over in an emergency lane and rang triple-zero. He then felt he needed to go back to where he saw the incident, which he did. When he got there, he tried to tell a police officer what he had witnessed, and his details, but he was told to move on. Later, he stopped at a country police station and reported what he saw. Subsequently, he learned that the truck had hit a car and that someone had been injured.
Several things may be said about that evidence. First, as I understood Ms Harper, it was submitted that, because on this account there was a left turn and then a right, and given the other evidence about the pre-impact straddling of the lanes, I should infer that Mr Hackett’s truck must have been straddling the two lanes or in the right lane well before the left turn was performed. But that did not necessarily follow at all; and, in any event, I did not draw that inference. Instead, the evidence was equally (and I think more) consistent with the truck initially being in the middle of the left lane, and then Mr Hackett swerving left (if he did at all) before swerving right. This inference still fitted with the concession about straddling the two lanes at impact and striking the right rear of the vehicle at about 180 degrees.
Secondly, what really matters, for the purposes of the looming effect, is whether it is reasonably possible that the truck was in the left lane (and therefore directly behind the Kia) well before any lateral movements. This is because the looming effect is more likely to occur if the following vehicle is more or less directly behind the lead vehicle and, in consequence, the following driver’s depth perception is more likely to be compromised. Thus, on the assumption that, well before the impact, the truck was in the left lane directly behind the Kia (and some distance back), Mr Hackett would not have been able to see the side of that sedan, and thereby was less likely to have been able to perceive its slower speed earlier. But nothing Mr Pappin said suggested the contrary.
Thirdly, I preferred, or at least could not exclude the reasonable possibility of the truth and accuracy of, the account of Mr Andrews and the admissions made by Mr Hackett to Constable Bowen. In context, they both rather implied (or were at least consistent with the view) that Mr Hackett was indeed driving the truck in the left lane behind Mr Styles’ Kia well before slowing, braking, and then swerving to the right, in order to avoid impact.
In the result, I was persuaded that that is what occurred, whether or not there was an initial movement to the left. This conclusion in turn supported the argument about the applicability of the looming effect in this case and its impact in sentencing as outlined a little earlier.[17] I therefore did not accept this aspect of Detective Hay’s opinion. Instead, I accepted the opinion of Dr Richardson, but only in so far as it impacted on sentencing, and not to the extent of its potential impact on liability.
Whether truck travelling at 79 (or 76) kph or 69 kph at impact
[17]A related consideration may be this. Most drivers will have experienced situations in which, while the first car in a line of, say, four cars waiting at an intersection moves off from a rest after the lights change to green, it seems to take too long for the drivers of the second and third cars to react and move off as well, with the result that the fourth car does not and cannot move off until well after the first car has done so. A similar thing happens in reverse when the first driver in a line of cars brakes in response to a hazard or impediment (such as another car ahead slowing down or stopping suddenly) but each driver thereafter takes time to react to the first driver’s braking, thereby successively compressing the time and distance between the cars down the line. The result is that the driver at or towards the rear of the queue has less time and space in which to react than the first and the others in between. However, in view of my conclusion about looming, it was unnecessary to determine whether this additional “lag effect” was or may have been operative in this case.
The third matter in dispute between the experts concerned the speed at which the truck was travelling when it struck the Kia. Given Ms Harper’s concession, I treated the disputed range as being between 76 (not 79) kph and 69 kph.
However, in the absence of hearing viva voce evidence from Detective Hay and Dr Richardson, I simply could not say whether the truck, at impact, was travelling at 76 kph, at 69 kph or at some other speed in between. In those circumstances, and given that the higher speed appeared to be put as an aggravating factor, it might have been thought that the benefit of the doubt should be given to Mr Hackett by acting on Dr Richardson’s opinion on this point. As it happened, however, Ms Harper and Mr Thomas both accepted that I need not resolve this dispute as they also agreed that whether it was 69 kph or 76 kph (or somewhere in between) could make no meaningful difference to the gravity of the offence in the circumstances of this case.
Accordingly, I made no finding on the issue other than to say that the speed of the truck on impact was somewhere between 69 kph and 76 kph.
VICTIM IMPACT STATEMENTS
I turn now to the other factors to which regard must be had in sentencing, commencing with the victim impact statements.
Six statements were filed. They were made by Mr Styles’ wife Lorraine Styles; his daughter Jessica Donovan; two of his grand-children Blake and Keira Donovan; and his twin brothers Douglas and Barry Styles. Each statement was read in open court, each of three by its author, two by Ms Harper, and one by a family friend.
For Mrs Styles, every second with her husband was precious. In 38 years of marriage, they rarely disagreed and, when they did, he would resolve things in a quiet and respectful manner. Mr Styles was very close to all in his family. Like their daughter, Mrs Styles remembered her husband as a good listener and as one who was keen to “have a chat”.
Ms Donovan felt lucky to be Mr Styles’ daughter. Her father was easy-going, loveable, and friendly to all, and would drop everything for anyone. She is devastated by his loss, as are the whole family.
It seemed that Mr Styles was a rather young 78. Indeed, his brother Douglas objected to his being described as elderly. Like others, he said that his brother was vibrant and energetic, and was looking forward to enjoying the retirement he had commenced only recently. Douglas’s twin brother Barry could not bring himself to delete his older brother’s contact details, even though he knew he could never use them again. Both twins lamented the destruction of the special bond the three of them shared.
Blake Donovan (aged 11), who read his own statement via WebEx, remembered his grandfather’s smile and his kindness. Mr Styles’ granddaughter Keira (aged eight) had her statement read by a family friend. She remembered, with endearing pride, that her grandfather said that her fishing rod was the best because it was pink and had lights. He meant everything to her.
All of these victim impact statements conveyed the awful grief of a family struggling to cope with the loss of their loved one. Mr Styles’ family spoke of a man who was utterly devoted to them; who had been, and would continue to be, missed terribly; and who loved dearly and was dearly loved.
In so far as it was permissible to do so, I had regard to the contents of these statements in considering sentence.
I wish to add this. I accepted the reality that there was nothing this Court could say or do that might heal the grief and pain of Mr Styles’ family. The sentence I imposed was not a reflection of the worth of Mr Styles’ life — as if anything so precious could ever be valued in any event. Rather, the sentence I imposed was a reflection of a large number of factors which I was required by law to take into account, only one of which was the impact on victims.
NATURE AND GRAVITY OF OFFENCE
I turn now to the assessment I made of the nature and gravity of Mr Hackett’s offence of dangerous driving causing death.
The offence carried a maximum penalty of ten years’ imprisonment, and still does.
The prosecution case, in substance, was that, had Mr Hackett been concentrating at the level or for the time required of a reasonably prudent driver, he would have been able to slow down earlier, or stop, and thereby avoid the accident and its terrible result. I should add that I accepted Ms Harper’s submission, which was not disputed by Mr Thomas, that the driver of a heavy truck, in the wet, must take especial care given its greater stopping distance and the potentially catastrophic damage that such a vehicle almost inevitably will cause if it collides with, say, a small car, as here. While it was not raised on the plea, it might also be said that others on the road near the crash were put at risk by Mr Hackett’s inattention.
Notwithstanding these considerations and the fact that the consequences of the incident were devastating, this, in my view, was an instance of dangerous driving causing death that fell towards the lower end of the spectrum of gravity and involved low moral culpability. There were essentially two groups of reasons that brought me to those conclusions.
First, Mr Hackett’s offence did not involve the aggravating features commonly seen in more serious examples of dangerous driving causing death.[18] He was not speeding. In fact, he was driving under the speed limit. He was not affected by drugs or alcohol or sleep deprivation. Nor was he driving erratically, aggressively, or competitively; showing off; ignoring warnings; or doing anything even remotely flagrant or outrageous. He was not knowingly, recklessly or even negligently engaged in any risk-taking behaviour at all.
[18]See, for example, the aggravating factors listed by the Court of Appeal in DPP v Neethling (2009) 22 VR 466, 473[31] (Maxwell P, Vincent JA and Hargrave AJA), where their Honours adopted those mentioned by the New South Wales Court of Criminal Appeal when dealing with a similar offence in R v Whyte (2002) 55 NSWLR 252, 286[216]-[217] (Spigelman CJ; Mason P, Barr J, Bell J and McClellan J agreeing).
Secondly, given my remarks about the eyewitness accounts, the admissions to police at the scene and key aspects of Dr Richardson’s opinion, and my findings about the operation of the looming effect, I also accepted Mr Thomas’s submission that this offence resulted in part from an interplay of factors outside of Mr Hackett’s control, including the sudden banking of traffic and Mr Styles’ heavy braking in response. I was also persuaded that Mr Hackett’s failure to take due care and attention could only have been momentary — and must be measured in mere seconds. In my view, these matters in combination compelled the finding that Mr Hackett’s moral culpability for the offence must be at a comparatively low level.[19]
MITIGATING FACTORS
[19]On the relevance of moral culpability, see, for example, DPP v Neethling (2009) 22 VR 466, 474[37]-[39] (Maxwell P, Vincent JA and Hargrave AJA). More recently, see Bell v The Queen [2018] VSCA 281, [39] and [54] (Ashley JA; Priest JA agreeing), where an offence of dangerous driving causing death (constituted by a car turning at an intersection and striking a pedestrian) that involved inattention by the driver for perhaps four seconds was found to be an instance of momentary inattention and an offence disclosing only low moral culpability.
Background and personal circumstances
Before turning to the mitigating factors urged by Mr Thomas, none of which (bar one) was disputed by Ms Harper, I shall give a brief outline of Mr Hackett’s background and personal circumstances.
Mr Hackett is the only child of parents who provided a happy, loving and stable home environment. His father worked as a stocktaking supervisor and his mother worked in accounts and payrolls.
He spent his early childhood in Traralgon and his primary and secondary schooling years in Ferntree Gully.
After completing VCE in 2000, Mr Hackett began working immediately and had been employed almost continuously ever since. He had worked as a forklift operator and storeman with two different companies (from 2000 to 2004 and 2013 to 2015); as a self-employed franchise owner in book distribution (from 2004 to 2006); and as a truck driver with three different companies (from 2007 to 2013 and 2015 to 2018).
Following the accident in 2018, Mr Hackett felt unable to work for some months. As he was unwilling to return to his role as a truck driver, he retrained as a machinery operator. Since returning to work, he had performed that role with the same organisation that employed him at the time of the collision.
This change in roles, however, meant a considerable reduction in his income. Given his substantial debts (most notably in respect of the mortgage over his home), this led to associated financial stress, as he was (and remained) the major breadwinner in the family.
As indicated earlier, Mr Hackett was married in 2010 and had two children, aged nine and six.
Mr Hackett had no drug or alcohol problems.
Prior to the accident, he had no mental health difficulties. Since then, however, he had been suffering from anxiety.
Plea of guilty
The first factor in mitigation concerned Mr Hackett’s plea of guilty.
This was a matter of substantial weight, for several reasons. First, while it came after a contested committal, the plea was entered soon after the prosecution changed its case significantly and immediately after I gave the sentence indication. This change resulted in part from the revised expert opinion of Detective Hay and was reflected in the amended summary of prosecution opening filed on 9 July 2021. Thus, in that sense, it was an earlier plea of guilty than it may have seemed at first blush.
Second, as well as the usual utilitarian and subjective considerations that flow from a plea of guilty, this plea was of additional weight in view of the backlog of cases and associated strain on the criminal justice system in the wake of the COVID-19 pandemic and its restrictions.[20]
[20]See Worboyes v The Queen (2021) 96 MVR 344, 356[35] (Priest, Kaye and T Forrest JJA).
Third, Mr Hackett’s plea of guilty was worth yet further weight because it was entered in circumstances where, in my view, he had an arguable defence to the charge.[21] So much is apparent from the earlier discussion of the looming effect, the external factors partly beyond his control and other aspects of his driving, including the fact that he was driving under the speed limit.
[21]See, for example, R v Sibic (2006) 168 A Crim R 305, 317[36] (Redlich JA; Chernov JA and King AJA agreeing); DPP v Bryan [2014] VSCA 54, [28] (Neave, Weinberg and Beach JJA).
Finally, this plea of guilty avoided what would have been a stressful trial for all concerned, especially Mr Styles’ family.
Remorse
Next, for several reasons, I was satisfied that Mr Hackett had deep remorse for his offending and the impact it has had on Mr Styles and his family.
First, after she got out of her car at the scene to assist, Claire Probst asked Mr Hackett if he was all right. He said, “I’m all right,” but, to her, he appeared “shocked and was very concerned for the driver of the other vehicle”.
Second, I was persuaded that Mr Hackett’s plea of guilty implied remorse, and all the more so in circumstances where he had an arguable defence.
Third, as Mr Thomas submitted, Mr Hackett’s remorse was reflected in the references before the Court. For example, Mr Hackett’s friend of 30 years, Brendan Hart, said this:
Consistent with Daniel’s usual approach, he has not to this point asked for help from his friendship circle since the accident, throughout the investigation or the continued court proceedings; not wanting to burden anyone. …
Despite presenting a brave face publicly, privately, Daniel has on a few nights broken down. Not detailing the events of that day but expressing the sorrow he feels that someone didn’t go home to their family. I know he plays it through in his head, as through tears he has offered me assurances that ‘could he have done anything differently, he would have’. …
…
Daniel did not return to work for some months after the accident. A proud man not able to provide for his family. When he did return to work, he didn’t return to his usual driving role, and as such his earning potential at his current employer has diminished. A man who likes to burden no one, [he] has had no choice but to accept financial assistance from his parents so [as] to cover expenses and engage legal representation. Now he has needed to ask his friends to vouch for him. Whilst it should not, I know for him all the above comes with a level of embarrassment and shame.
Similarly, Brendan McCormack, a former colleague and part owner of the business that employed Mr Hackett, said that he “know[s] Daniel is extremely upset and remorseful about what has happened”.
Finally, I accepted that Mr Hackett’s decision to cease working as a truck driver, at considerable financial disadvantage, also reflected feelings of responsibility and remorse for his offending and its dire consequences. I should add that he took this course despite being considered by others as a “highly skilled driver”, and as one who had never been “reckless or dangerous” but was “safe” and a “standout performer”.
Extra-curial punishment
This brought me to consider Mr Thomas’s submission that Mr Hackett’s inability to work for some months after the incident, the loss of his role as a truck driver, and its negative financial consequences, amounted to extra-curial punishment.
Counsel relied on the proposition that “distress, injury or loss caused to an offender by the commission of the offence is often relevant to the instinctive synthesis that is required and that its significance will vary from case to case”.[22] He submitted that, while perhaps not a matter of significant weight in the sentencing exercise, these impacts on Mr Hackett were in combination a further factor in support of a wholly non-custodial sentence.
[22]R v Teh (2003) 40 MVR 195, 196[2] (Callaway JA) (see also at 199-200[20], Vincent JA; Winneke ACJ agreeing).
Ms Harper disputed the validity of an argument about extra-curial punishment in circumstances where it was Mr Hackett’s decision to cease driving trucks. She also submitted that this is not the type of consideration usually seen as falling within this category of mitigation, such as where an offender suffers serious injury in the course of committing an offence.
While I was persuaded that Mr Hackett’s decision to cease truck driving and work in another position instead, at considerable loss of income, evidenced his remorse, I found it more difficult to determine whether these matters, and the time he spent off work altogether, amounted to extra-curial punishment.
Upon conviction, Mr Hackett had to be disqualified from driving for at least 18 months, and therefore would not have been able to work as a truck driver for at least that period in any event. Yet, while that consequence could not be said to be extra-curial punishment, it may be a factor taken into account in assessing the need for just punishment of an offender, especially one whose occupation necessarily required a driver’s licence.
In the end, I was persuaded that there was a sense in which Mr Hackett’s time off work and the loss of his position as a truck driver, and its financial consequences, did amount to a form of extra-curial punishment. While the cessation of his job as a truck driver was his decision, that choice, I accepted, was informed by his own view, borne of a feeling of responsibility, that he should not work in that occupation any longer. While the basis for his time off work was not made clear, I acted on the assumption that the same or similar thoughts motivated that decision. In those circumstances, I thought that the better view was that these consequences were a form of extra-curial punishment, even if they were not consequences imposed upon him by others.
That said, and this was consistent with Mr Thomas’s submission, these matters were, in my view, of only minor significance as extra-curial punishment per se. After all, it must be remembered that the cases of driving offences in which this principle has had, and is likely to have, a much more significant impact in mitigation are those where the offender has caused the death of his or her own loved one.[23] In my view, a few months off work and a change to a lower-paying job, even if motivated by feelings of responsibility, were incomparable to the inadvertently self-inflicted punishment inherent in such a grave loss. To my way of thinking, the greater significance of these decisions by Mr Hackett was in how they impacted on my findings on remorse and the weight to be accorded to sentencing purposes such as specific deterrence, protection of the community and rehabilitation.
[23]See, for example, R v Teh (2003) 40 MVR 195, where Mr Teh’s culpable driving caused the death of his seven-year-old daughter and serious injury to his five-year-old son. As Vincent JA remarked (at 200[20]): “Hopefully, there would be few who would not experience deep remorse for the death of a child as a consequence of their irresponsible behaviour, whether their own child or the child of someone else. The prospects of successful rehabilitation and the weight to be given to deterrence, both general and specific, would often need to be assessed against such a background”.
Prior good character
Next, I turn to good character as a factor in mitigation.
While Mr Thomas conceded that “the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime” and that “persuasive subjective circumstances must not lead to inadequate weight being given to the objective circumstances”,[24] he submitted that, nevertheless, good character remains an important sentencing consideration, especially in relation to questions of specific deterrence, community protection and rehabilitation.[25]
[24]Citing DPP v Neethling (2009) 22 VR 466, 473[28]-[29] (Maxwell P, Vincent JA and Hargrave AJA).
[25]Mr Thomas referred to Bell v The Queen [2018] VSCA 281, [24]-[25] and [55] (Ashley JA; Priest JA agreeing).
Section 6 of the Sentencing Act 1991 (Vic) provides that, in determining the character of an offender, a court may consider (among other things) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender, his general reputation and any significant contributions he has made to the community.
On the one hand, Mr Hackett had three prior infringement notices and one prior court appearance for driving matters:
· In 2001, when he was aged 18, his licence was suspended for a month for exceeding the speed limit by between 30 kph and 40 kph.
· In 2002, at 18, he was disqualified from driving for six months for exceeding the prescribed concentration of alcohol (with a reading between 0.070% and 0.099%).
· In 2006, at 23, his licence was suspended for a month for exceeding the speed limit by between 30 kph and 35 kph.
· In 2012, at 29, at the Frankston Magistrates’ Court, he was placed on an adjourned undertaking for 12 months, without conviction, for failing to give way at a stop sign.
While they are of some relevance, Mr Hackett incurred two of those infringements when he was only 18 and all were rather stale by the time of the accident.
As for his general reputation, contributions to the community and other matters going to his good character, Mr Hackett was able to rely on impressive evidence of his strong work history and work ethic; his commitment to and support of his family and friends; and his contribution to the community through involvement in sport.
These qualities, I accepted, were reflected in the following passages from the references provided by those who have known Mr Hackett for many years. For example, Mr McCormack said this:
… [Mr Hackett] showed from the start he was a very good operator [of machinery] and a very reliable worker … Daniel was a [standout] performer and was rewarded with a new role …
…
Daniel is a loyal and caring person with a young family, he is heavily involved in local sport where he plays hockey, he is very respected in the workplace, at no time have I found him to be reckless or dangerous, as stated previously he is a [standout] performer, someone I could rely on to get the work done [in a] timely and safe manner.
… I have had 25 years in the transport industry and have seen hundreds maybe even thousands of drivers, I consider him one of the best employees I have worked with over my time in the transport industry.
Steven Hollow, who is Mr Hackett’s first cousin, put it in this way:
Daniel has always been an extremely hard-working individual and done everything in his power to provide everything he can for his family and friends. He will thanklessly work hard to do what it takes to make sure they have enough money to always survive and [have] food on the table. He volunteers at the Knox Hockey Club too where he and his family all play. He coaches a senior team, volunteers with junior clinics, and also helps coaching junior development squads and doing many other voluntary tasks the club needs done in order to operate.
… He is truly incredibly selfless and only too happy to put the need of others first beyond doubt. …
Finally, I return to Mr Hart, who said this about Mr Hackett’s community involvement through the Knox Hockey Club and his willingness to help others:
Daniel continues to play hockey in our men’s top side, is a senior leader in that team and a huge contributor to the family culture that exists within our hockey club. He currently juggles his time to coach our [men’s] reserve team, supports his wife who is our club’s junior coordinator and ferries his two children to junior hockey games and training … This investment in his club, which really is our extended family, is testament to his character. For his teammates and the hockey community[,] he will do anything.
Away from the hockey field, Daniel behaves in exactly this same manner. … Selfless is the word that comes to mind.
It has been said that “[t]he courts must tread warily in showing leniency for good character” in cases of this nature.[26] Allowing for that injunction, I was satisfied that it was appropriate to take Mr Hackett’s good character into account in this case. There were three reasons. First, Ms Harper did not submit that this was an irrelevant or inapt consideration. In fact, when the point was raised, she expressly conceded that Mr Hackett was of prior good character. Secondly, as the evidence disclosed, she was right to do so. Thirdly, consistently with Mr Thomas’s submission, Mr Hackett’s good character informed other considerations as well, such as the weight to be accorded to specific deterrence, community protection and rehabilitation.
[26]DPP v Neethling (2009) 22 VR 466, 473[28]-[29] (Maxwell P, Vincent JA and Hargrave AJA).
Delay
The extensive delay between the accident and sentencing — which, as we have seen, is in the order of three-and-a-half years — was also a matter in mitigation.
None of this delay was attributable to Mr Hackett. Instead, in large part, it had resulted from the impact of the pandemic on the legal system. The balance appeared to be attributable to a combination of the failure to disclose a prosecution expert report in a timely manner, the unavailability of counsel on one occasion, and the delays that, unfortunately, have become commonplace in many criminal matters.
I accepted that this delay had been a source of ongoing stress and anxiety for Mr Hackett. In his reference, Mr Hart spoke of his friend presenting a brave face publicly and of seeking to reassure his wife, but of his breaking down in private on occasions:
Watching my mate, this otherwise stoic man, cry in front of me — I’ve never felt so helpless. I want to ease his burden, remove his stress, better support him through his grief. …
…
… Although we don’t discuss the [subject,] we both have it constantly on our minds. I can see the enormous cost, both mentally and financially, it is had on both Daniel and his family over the past [three] years, and even with an outcome, the impact of the accident will be present for many years to come — if not always.
Similarly, Mr Hackett’s friend of 29 years, Chris Johnson, said this:
Daniel has briefly spoken to me about the accident, but has not spoken in detail of exactly what happened in May of 2018. He is devastated at the outcome and is struggling to come to terms with it. The length of time this trial has gone on for has been extremely taxing on his immediate and extended family as well as himself.
Implicit in these thoughts was that part of the strain of delay is not knowing one’s fate for a prolonged period.
Another feature of delay as a potentially mitigating factor is whether an accused has used that period of delay wisely. Mr Hackett used the time well, by resuming work and continuing to support his family. Mr Thomas submitted, correctly, that it was worth noting that, not only did Mr Hackett incur no traffic infringements in the six years prior to the accident, despite driving for a living on a daily basis, but that he had incurred none in the three-and-a-half years since then either.
Ms Harper noted that the delay has been hard on Mr Styles’ family too. I accepted that that was so. But that, in my view, could not deny or in any way offset the importance of delay as a mitigating factor in sentencing Mr Hackett.
Prospects of rehabilitation
Finally, Mr Thomas submitted that Mr Hackett’s prospects of rehabilitation were excellent. Ms Harper submitted that those prospects were good.
In my view, his plea of guilty, his remorse, his prior good character, his response to the offending, its effect upon him and the positive way in which he has used the delay all combined to show that Mr Hackett had excellent prospects of rehabilitation.
Unsurprisingly, Mr Hackett was assessed by Corrections in their pre-sentence report as presenting a low risk of reoffending. In light of all the evidence before me, I was satisfied that that risk was negligible.
SENTENCING PURPOSES
Introduction
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act provides that the only purposes for which sentences may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence
The Court of Appeal has made it clear that general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death.[27] It must be understood that if, by driving a motor vehicle in a manner (or at a speed) that is dangerous to the public having regard to all the circumstances of the case, a driver causes the death of another person, there is a high risk that he or she will be imprisoned. Indeed, as the law stands now, an offence of dangerous driving causing death committed today (but not when Mr Hackett’s offence was committed) must attract a term of imprisonment unless there are substantial and compelling circumstances that are exceptional and rare that justify not imposing such a sentence or certain other specified factors apply.[28]
[27]See, for example, DPP v Neethling (2009) 22 VR 466, 472[30]-473[32] (Maxwell P, Vincent JA and Hargrave AJA); and Bell v The Queen [2018] VSCA 281, [54] (Ashley JA; Priest JA agreeing).
[28]See s 5(2H) of the Sentencing Act 1991 (Vic), which has been applicable to cases of dangerous driving causing death committed since 28 October 2018. Since Mr Hackett’s offence was committed prior to that date, s 5(2H) does not apply to his case.
Denunciation and just punishment
While denunciation and just punishment had some role to play in the sentencing synthesis, they had a good deal less importance than usual, particularly given Mr Hackett’s low moral culpability and the absence of more commonly seen aggravating factors.
Specific deterrence
Ms Harper conceded that specific deterrence did not have “a great role to play in this sentencing exercise”. I agreed. I was satisfied that, at most, only moderate weight was to be accorded to specific deterrence.
This is because I found that Mr Hackett presented only a negligible risk of reoffending in the same way. Yes, he had some traffic infringements that had resulted in the loss of his licence, but, as I pointed out earlier, two were incurred when he was only 18, and all are rather stale now. Apart from the incident, for something like nine years since his last matter, he had no traffic infringements.
Finally, his plea of guilty, remorse, previous good character and excellent prospects of rehabilitation also combined to suggest there was little need to deter Mr Hackett from offending of this nature.
Rehabilitation and protection of the community
In my judgment, rehabilitation was an important purpose in fixing sentence in this case, whereas protection of the community was not. There were at least three reasons why.
First, that I accepted that Mr Hackett had excellent prospects of reform made rehabilitation a sentencing purpose that had to be accorded considerable weight.
Secondly, the community was not in need of protection from Mr Hackett. As I said, he presented only a negligible risk of reoffending.
Thirdly, to the extent that there was any risk of reoffending, I considered it important to recognise the interplay between rehabilitation and protection of the community in any event. It was in the community’s interests that such prospects of rehabilitation as Mr Hackett may have be maximised, and that he was not crushed by the sentence. I was firmly of the view that a non-custodial sentence would give him a better chance of achieving complete reform than would imprisonment, and thereby would protect the community in the longer run.
Parsimony
Section 5(3) of the Sentencing Act relevantly provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. Similarly, ss 5(4)-(6) set out a similar principle as adapted to the considerations of confinement and the imposition of a CCO. These provisions reflect the common law principle of parsimony. I applied these provisions and this fundamental principle when considering the appropriate sentence in this case.
CURRENT SENTENCING PRACTICES
I also had regard to current sentencing practices for dangerous driving causing death.
While current sentencing practices are relevant, they are not a controlling factor in arriving at an appropriate sentence. They are but one consideration among many. Nor are other sentences precedents to be applied or distinguished.
That said, the cases to which I was referred by counsel[29] showed that on several occasions instances of dangerous driving causing death of a similar order of gravity to Mr Hackett’s offence committed by persons with comparable mitigating factors working in their favour had resulted in sentences other than imprisonment.
[29]The sentences to which counsel referred included: Bell v The Queen [2018] VSCA 281 (two-year CCO); DPP v Leatherland [2018] VCC 1045 (four-year CCO); DPP v Olety-Rajashekar [2017] VCC 1749 (four-year CCO); DPP v Rodda [2019] VCC 1930 (three-year CCO); DPP v Dickinson [2019] VCC 1387 (three-year CCO); DPP v Bailey [2017] VCC 567 (three-year CCO); DPP v Cowburn [2019] VCC 1918 (three-year CCO); DPP v Sodhi [2018] VCC 1554 (three-year CCO); DPP v Warrick [2016] VCC 1134 (three-year CCO); DPP v Doughney [2019] VCC 1266 (two-year CCO); DPP v Yu [2019] VCC 1805 (two-year CCO); DPP v Perera [2018] VCC 1639 (18-month CCO); DPP v Ramirez [2017] VCC 1898 (adjourned undertaking for four years); and DPP v Ellett [2016] VCC 1841 (adjourned undertaking for 18 months).
IMPRISONMENT IS NOT APPROPRIATE IN THIS CASE
The Court of Appeal has said that a term of imprisonment usually will be appropriate for this offence, except in cases where the offender’s moral culpability is low.[30]
[30]See, for example, DPP v Neethling (2009) 22 VR 466, 471[25]-474[39] (Maxwell P, Vincent JA and Hargrave AJA); Bell v The Queen [2018] VSCA 281, [51] and [54] (Ashley JA; Priest JA agreeing).
In this case, however, I adhered to the conclusion I reached at the sentence indication hearing — namely, that imprisonment was not an appropriate sentence in this case. Principal among my reasons for that view were my findings that Mr Hackett’s offence involved only momentary inattention, resulted in part from an interplay of factors outside his control, lacked many of the aggravating features seen in more serious instances of the offence, and, accordingly, involved only a low level of moral culpability.
This was so despite the serious nature of the offence, as reflected in the maximum penalty; despite general deterrence being a principal sentencing consideration; despite Mr Styles’ tragic death; and despite the palpable grief of his family.
When regard was had as well to the powerful array of matters relied upon in mitigation, and to the principle of parsimony, I considered that this was one of those rare cases of the commission of this offence in which a sentence of imprisonment must not — or, at least, should not — be imposed.
Mr Thomas submitted that an additional factor militating against the imposition of a custodial sentence was that, now, any period in custody is likely to be more burdensome than in days gone by because of the more restrictive conditions in place in prisons as a result of the pandemic.[31] I found it unnecessary to determine whether this submission should be accepted or not. This was because the other factors I have already mentioned drove me to the view that imprisonment would not be appropriate in this case.
[31]Mr Thomas referred to, inter alia, R v Farrell [2021] VSC 414, [51] (Jane Dixon J); and DPP v Burns [2021] VSC 518, [47] (Kaye JA).
REPORT ON SUITABILITY FOR CCO
I did, however, come to the view that a CCO, with certain additional conditions, would be an appropriate sentence.
Again, unsurprisingly, Corrections opined in their pre-sentence report that Mr Hackett was a suitable candidate for a CCO.
I asked that the report address the availability and suitability of any road safety programmes that might be administered under the conditions of a CCO. Helpfully, the Road Trauma Awareness Seminar was recommended. This programme is run by Road Trauma Support Services Victoria (“RTSSV”), which is a not-for-profit organisation that delivers a range of programmes designed to address the behaviours and attitudes of drivers with the aim of reducing the incidence of crashes, and the associated trauma and grief. RTSSV advised Corrections that the programme would be suitable given the nature of Mr Hackett’s offending.
Corrections also advised that Mr Hackett would be able to perform unpaid community work.
Ms Harper and Mr Thomas both submitted that these conditions would be appropriate.
I accepted those submissions and the recommendations in the report. The Road Trauma Awareness Seminar, I hoped, would give Mr Hackett some further insight into the risks involved in inattention on the road, even if only momentary, especially when driving a truck.
I decided to include a community work component as a means of satisfying the sentencing purpose of just punishment, even though the weight to be accorded to that purpose in this case was lower than usual. After all, Mr Styles lost his life as a result of Mr Hackett’s offence.
SENTENCE
CCO for 20 months, with conditions
Balancing all factors as best I could, on the offence of dangerous driving causing the death of Mr Styles, I ordered that Mr Hackett be convicted and sentenced to a CCO of 20 months’ duration.[32]
[32]I note that s 6AAA of the Sentencing Act 1991 (Vic) did not require me to declare, and I did not declare, the sentence I would have imposed for this offence had Mr Hackett pleaded not guilty but been found guilty following a trial. This is because I did not impose a term of imprisonment and the CCO is of less than two years’ duration (see s 6AAA(1)(b)(ia) and (ib) and (3)). Nor did I consider it necessary to do so as a matter of discretion (see s 6AAA(3)).
The CCO included all core conditions and the following additional conditions:
a) a treatment and rehabilitation condition requiring Mr Hackett to complete the Road Trauma Awareness Seminar (facilitated by RTSSV) or an equivalent programme; and
b) a condition that Mr Hackett perform 200 hours of unpaid community work.
Mandatory licence cancellation and disqualification for not less than 20 months
Sub-sections (1)(a) and (2)(a) of s 89 the Sentencing Act, when read with the definition of “serious motor vehicle offence” in s 87P(d), provide that, if a person is found guilty or convicted of an offence of dangerous driving causing death, the court must cancel the person’s driver’s licence and disqualify him or her from obtaining a further one for the period of time that the court specifies but not less than 18 months.
In the particular circumstances of this case, including my view that Mr Hackett’s instance of the offence is at the lower end of culpability, coupled with the mitigating factors, but allowing also for his previous losses of licence for traffic infringements, I was satisfied that the period of disqualification should be 20 months.
Accordingly, I ordered that Mr Hackett’s driver’s licence be cancelled and that he be disqualified from obtaining a further licence for 20 months.
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