R v McPherson and Sargent
[2015] VSC 403
•10 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0139
| THE QUEEN |
| v |
| JAMIE WILLIAM MCPHERSON |
AND
S CR 2014 0140
| THE QUEEN |
| v |
| SHAYNE WILLIAM SARGENT |
---
JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2015 |
DATE OF JUDGMENT: | 10 August 2015 |
CASE MAY BE CITED AS: | R v McPherson and Sargent |
MEDIUM NEUTRAL CITATION: | [2015] VSC 403 |
---
CRIMINAL LAW – Two co-offenders – D1 pleaded guilty to two charges of culpable driving causing death – D1 70 years old, suffers from emphysema with limited life expectancy – No remorse – Total effective sentence of 8 years’ imprisonment with non-parole period of 5 years – D2 pleaded guilty to two charges of dangerous driving causing death – Lesser role in offending and less culpable than D1 – Genuine remorse – Total effective sentence of 5 years’ imprisonment with non-parole period of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L A Taylor QC | Office of Public Prosecutions |
| For the Accused McPherson | Mr D Gibson | Victoria Legal Aid |
| For the Accused Sargent | Mr M McGrath | Balmer & Associates |
HIS HONOUR:
Jamie William McPherson and Shayne William Sargent. You have each pleaded guilty to having, by your negligent driving, caused the deaths of Gary and Fred Whearem. In your case, McPherson, you have pleaded guilty to two charges of culpable driving causing death, contrary to s 318(1) of the Crimes Act 1958, with each charge carrying a maximum penalty of 20 years’ imprisonment. You, Sargent, have pleaded guilty to two charges of dangerous driving causing death, contrary to s 319(1) of that Act. Each of those charges carries a maximum penalty of 10 years’ imprisonment. It is now my task to sentence you for your offences.
The events leading up to, and the facts surrounding, the commission of these offences were, ultimately, not in dispute. They may be briefly stated.
On Saturday, 4 January 2014, Gary Whearem was driving a blue Ford station wagon in a south-easterly direction along the Calder Highway. He was travelling at that stage on a stretch of road between Wedderburn and Inglewood. His younger brother, Fred, was a passenger in the front seat of that vehicle.
You, McPherson, were driving a brown Ford Fairmont sedan in close proximity to the Whearem vehicle, effectively, at stages, tailgating it. Your partner, Rebecca Toner, was in the front passenger seat of your car. Both vehicles were travelling at a considerable speed, later estimated by police to be about 109 kilometres per hour. The speed limit in that area was 100 kilometres per hour.
At about 12.40 pm, the passenger side of your vehicle came into contact with the driver’s side of the blue Ford. As a result of that contact, Gary Whearem lost control of his vehicle. It spun around in a clockwise direction, before colliding head on with a tree on the side of the road. Both Gary and Fred Whearem sustained fatal injuries, and died almost immediately at the scene of the collision. As well, you lost control of your vehicle, and it collided with a tree. You and Ms Toner both suffered injuries, and were hospitalised.
At the time of the collision, you, Sargent, were driving your gold Commodore in close proximity to, and in the same direction as, the two Ford vehicles. Your car was not involved in the collision as such, though your driving certainly contributed to it. To your credit, you immediately pulled over to the side of the road, and sought assistance.
It was no coincidence that all three vehicles happened to be travelling together at that point. There had been a long history of animosity between you, McPherson, and Rebecca Toner on the one hand, and Gary Whearem on the other.
Gary Whearem and Ms Toner had previously been in a relationship, and had two children together. The termination of that relationship resulted in a great deal of acrimony and ill feeling between them. From Ms Toner’s point of view, that ill-feeling extended to Fred Whearem.
In the early part of 2013, Rebecca Toner entered into the relationship with you, McPherson, of which I have previously spoken. To complicate matters somewhat, Gary Whearem began an on-again-off-again relationship with your daughter, Julie McPherson. That relationship ended shortly before January 2014. It seems that a deep hostility subsisted between various members of the Whearem family on the one hand, and your own family on the other. That hostility was manifested by a series of abusive and threatening phone calls that you, McPherson, and Ms Toner made to both Gary and Fred Whearem.
In January 2014, Gary Whearem was living in the Cobram area. He had arranged to stay with his brother Fred, and Fred’s partner Sally Jackson, at their Wedderburn home. He arrived there on 3 January 2014.
Gary Whearem was, at that stage, separated from Julie McPherson. He had arranged to collect some belongings that he had left at her Charlton home on the following day.
At that time, you, McPherson, were living with Ms Toner in Violet Town. However, on 3 January 2014, you had driven to Charlton to visit your daughter Julie. You arrived in the evening, and stayed overnight.
Gary and Fred Whearem had a brother, John, who lived in Charlton. In an effort to avoid trouble between yourself and Gary, Julie took Gary’s belongings to John’s house on the night of 3 January 2014. Julie telephoned Gary and told him that he could collect his belongings from John’s house the following morning.
At about 9.30 am on 4 January 2014, Gary and Fred, together with Sally Jackson and her son Corey, left Fred and Sally’s home in Wedderburn to drive to Charlton in order to collect Gary’s belongings. Gary was driving the others in his blue Ford station wagon.
Along the way, Gary decided to take a detour past Julie’s home to see who was there. As he drove past, you, McPherson, Ms Toner and Julie were all out at the front of the house. Gary simply drove on. Julie, however, told you what she had seen. You responded by taking a long wooden handled stick out of the boot of your car and putting it on the backseat. You then drove off, seemingly in pursuit of Gary’s vehicle.
Shortly afterwards, you came across a random breath testing site that had been set up on the Calder Highway, at Charlton. Some time between 11.30 am and midday you were given a preliminary breath test by Senior Constable Michael Jablonka.
Tellingly, you said to him: ‘Have you seen a bloke in a blue EA come through here?’. As you drove away, you called out to him: ‘Well if I find him, you’ll be picking up broken bones’, or words to that effect.
You then returned to Julie’s home and told her of your comment to Jablonka. Shortly after this, Julie received a text message from Gary Whearem claiming that you, McPherson, were stalking him, and stating that ‘payback is a bitch’.
On being told of that message, you dictated a message of your own to be sent by Julie to Gary. It read: ‘I told you cunt next time we meet I will shoot you. You’re lucky you never came in my drive, you wouldn’t have left’.
Julie sent that message. Gary replied: ‘Get stuffed’.
At around midday, you and Ms Toner left Charlton, heading towards Wedderburn, and apparently en route to Violet Town. At about that time, Gary Whearem and his three passengers left his brother John’s house, also heading towards Wedderburn. He had, by that stage, collected his belongings.
Before leaving Charlton, Gary Whearem stopped at the Commonwealth Bank while he checked his account balance at the ATM. While his blue Ford was parked, Sally Jackson saw you drive past with Ms Toner in the front seat. She told Fred Whearem of this. You then parked in the BP service station nearby, in effect ‘stalking’ the Whearem vehicle. On Gary’s return to his car, Fred told him of your presence. Gary then said: ‘Okay, we’ll just go home’.
Gary then drove out of Charlton heading for Wedderburn. A few kilometres further on, Sally Jackson looked to the rear and saw your vehicle coming up quickly behind them. You then slowed down and remained two car lengths or so behind them for a short while, before overtaking their vehicle. During that overtaking manoeuvre, you stretched your right arm across in front of Ms Toner and stuck your middle finger up at the occupants of the Whearem vehicle. After overtaking their car, you stayed a short distance in front. You were then travelling at about 115 kilometres per hour.
The two cars remained in close proximity, with you ahead of the blue Ford until you arrived in Wedderburn. At that stage, both vehicles slowed down. Sally Jackson and her son were dropped off at their home. In the meantime, you stopped your vehicle a few car lengths in front, and waited.
The blue Ford, by now containing only Gary and Fred, and your vehicle, containing yourself and Ms Toner, then headed off, almost in tandem, in the direction of Bendigo. At about that time, Fred telephoned John in Charlton. He asked John to race over to Wedderburn because, according to him, Ms Toner and you were following them.
John Whearem’s recollection was that Fred sounded worried, so he did as he had been requested. However, he could not locate Gary’s car when he got to Wedderburn.
At 12.26 pm, Ms Toner telephoned you, Sargent. That call lasted some 45 seconds. At 12.31 pm, you telephoned Ms Toner, a call that lasted 43 seconds. It was common ground, on the plea, that in these calls, McPherson asked you, Sargent, to come along and help him to frighten, and intimidate, the Whearem brothers.
The calls precipitated your departure, Sargent, from your property in Wedderburn in order to meet up with McPherson on the Calder Highway.
Shortly afterwards, your gold Commodore joined the two Fords driving towards Inglewood. Independent witnesses commented that the three vehicles were travelling erratically, in very close proximity to each other. One witness placed your gold Commodore in the lead, but said that all three cars were travelling in a line, endeavouring to overtake each other, but unable to do so because of oncoming traffic. That witness said that he was shocked by what he saw. He said that he had never seen such driving.
At one point, it seems, the three cars were spread out right across the roadway. The Commodore was to the far left, in its correct lane. One of the Fords was in the middle of the road, and the other was completely on the incorrect side of the road.
Another witness described the three vehicles as all bunched up together, bumper to bumper. That witness said that at least one had pulled out onto the wrong side of the road, clearly intending to pass, but obviously in dangerous circumstances.
At the time this was happening, Fred Whearem had become so concerned that he telephoned triple zero for help. He said to the operator: ‘We’ve got a gold Commodore and a gold Ford trying to run us off the road, doing a high speed. He’s right up our arse. He’s doing high speeds. He’s all over the road, trying to run us off the road. We need the police now.’
When asked if he knew the people involved, Fred replied: ‘Yes. It’s me brother’s ex-girlfriend and her boyfriend. He’s threatened to shoot me brother and there’s two of them trying to run us off the road. They’re both sitting right up our arse trying to hit us.’
The triple zero call was interrupted by the sounds of the blue Ford leaving the road and colliding with the tree.
The actual collision between the Whearem vehicle, and your Ford, McPherson, was not observed by any independent witness. However, it is clear from what had occurred seconds before the point of impact that all three vehicles were travelling at high speed, and were very close together. One witness described them as being ‘like they were in formation’. She added that the gold coloured car, presumably the Commodore, was partly in the gravel. Then the dark coloured car, presumably the Whearem vehicle, was somehow beside the Commodore, but still mainly within its lane. She described the ‘tan coloured car’, presumably your vehicle, McPherson, as coming into the right hand lane. She said she was horrified as the three cars were travelling ‘side by side’ across the entire road.
Shortly after the collision, police attended the scene and took measurements and photographs. A reconstruction carried out by the Major Collision Investigation Unit determined that there had been contact between the left front of your brown Ford, McPherson, and the right rear door of the blue Ford. That impact had caused the blue Ford to rotate, clockwise, across your path. The blue Ford then crossed to the southern shoulder, where efforts were made to steer it back towards the road. However, it struck a large tree head-on before rotating clockwise and coming to rest several metres southeast of it.
Your brown Ford itself left a tyre scuff mark as it made a steering correction, but that led to a further loss of control and your vehicle went off to the right. There was then a second impact between the two vehicles when the passenger side rear of the blue Ford made contact with the passenger side door of your car as the blue Ford rotated clockwise after having hit the tree.
As I have previously indicated, you, Sargent, did a U-turn after the collision, and stopped at the scene to render assistance. You, McPherson, were able to extricate yourself from your vehicle. At some point you removed the wooden stick that you had placed in your car earlier that day when you had gone off in search of Gary Whearem. That stick was later found underneath your vehicle when it was removed.
Both of you men spoke to various people at the scene of the accident. You, McPherson, spoke to an off-duty nurse. You sought to blame Gary Whearem for the collision, asserting that you had merely overtaken his car when he sideswiped you. You told another witness that you had been overtaking the blue Ford when it swerved and lost control. You added, speaking of the Whearems, ‘they deserve everything they got.’ That was an extraordinary display of callousness on your part.
You, Sargent, also sought to blame Gary Whearem for what had occurred. You said that the driver of the blue car had been attempting to overtake four cars in a row. That was entirely false. You told another witness that you had merely been driving past, and had come upon the scene of the accident fortuitously. That too was entirely false. Your counsel invited me to take a somewhat charitable view of these statements, suggesting that you may have been confused at the time.
On the day after the collision, you, McPherson, were formally interviewed at the Bendigo Police Station, following your discharge from hospital. You told police that that you had attempted pass the Whearem vehicle four or five times, but claimed that each time you got close enough to do so Gary would not allow you through. Once again you blamed him for what had occurred. You even said ‘he done it on purpose. He planned it. He wilfully did it. He deserved what he fuckin got’. Again, that statement was entirely uncalled for, and did you no credit whatever.
You also admitted to police having said to Jablonka, on the previous day, that you were going to ‘spread em all over the fucking street’. You denied any knowledge of Ms Toner’s having telephoned Sargent shortly prior to the collision. You falsely claimed, in effect, that you had no idea that he would join you in your planned intimidation of the Whearems.
So far as you, Sargent, are concerned, you were interviewed by police on the evening of 4 January 2014. You told them that earlier that morning McPherson had called you about some Lorikeets. About an hour or so later he had called you again and asked you to meet him on the Calder Highway. You claimed that McPherson had told you that there was a car following him with two men in it.
You said that you drove to the corner of Scotts Lane and the Calder Highway, and that when you arrived there you saw McPherson pulling over to the left hand side of the road with a blue station wagon following close behind. You said that the station wagon nearly ran into the rear of McPherson’s car, but somehow swerved back on to the road and continued towards Inglewood. You told police that you followed the blue station wagon, and that McPherson had followed you, third in line, for a time, however, he then passed you. You said that McPherson tried to overtake the station wagon on a number of occasions, but each time it would swerve into the middle of the road, preventing him from doing so.
You claimed that it was the blue car that had swerved to the right, colliding with the passenger side of McPherson’s car. You told police that you had nothing to do with the collision, and that it was entirely the blue car’s fault. Indeed, you claimed that you had dropped back behind the two cars, and were five to ten cars behind when the collision occurred. You denied having ever been level with the other two cars, and you denied any suggestion that the three cars had been spread across the road.
Plainly, in the light of your plea of guilty, your account to the police was palpably false.
Both you, McPherson, and you, Sargent, have prior convictions.
In your case, McPherson, you are presently aged 70. Your convictions go back a very long way, the earliest dating back to 1963. They include offences of dishonesty, and, in particular, theft and fraud. They also include robbery, armed robbery, felon in possession of a pistol, and burglary. You have served two lengthy terms of imprisonment, one of six years imposed in 1975 for robbery, and one of ten years imposed in 1980 for armed robbery. You have a number of convictions for motoring offences, and you have on two occasions been dealt with for having breached parole.
What can, however, be said in your favour regarding your lengthy criminal record is that you were last convicted in 1985. It appears, therefore, that at least until the commission of these offences, you managed to turn your life around, and did so over the past 30 years or so.
Sargent, you are presently aged 52. Your criminal record is nowhere near as bad as that of your co-offender, but is nonetheless extensive. You have a history of having committed drug and alcohol related offences, as well as some relatively minor offences involving dishonesty. You have, however, served one term of actual imprisonment. That was in 1989 when you were sentenced, on a charge of theft, to a term of two years and six months’ imprisonment. All other sentences imposed upon you have been either suspended, or ordered to be served by way of intensive correction order or its equivalent.
I shall deal next with the victim impact statements. Gary Whearem was aged 55 when he died. His brother Fred seems to have been aged 31, although some records suggest that he may have been 29.
At the plea, victim impact statements from John Whearem, and Gary and Fred’s sister, Jane Rowley, were tendered. Victim impact statements were also tendered from Gary’s stepdaughter, Lesley Dehne, and Fred’s partner, Sally Jackson, as well as his mother in law, Lesley Jackson.
John Whearem’s statement, in part, reads as follows:
I’ve lost two brothers and am the only brother left now. I am absolutely gutted and don’t feel like I will ever recover. I think I will probably cry every night. I have seen a psychologist for some time and never go out anymore. The loss of my brothers like this has almost stopped me from functioning, even forgetting to pay some bills and I forget things and lose things. My thoughts are always about Fred and Gary.
Similar sentiments were expressed by Jane Rowley. She too continues to grapple with feelings of sadness and anxiety as a result of the death of her brothers, and has sought help from a psychologist in order to deal with her grief.
Sally Jackson, who it will be recalled was travelling with her son in the Whearem car on the morning in question, and was dropped off in Wedderburn shortly before the fatal collision, also spoke of the impact that Fred’s death, in particular, has had upon her and her family. I have had regard to her statement, though it was not read aloud in court
I have also had regard to the victim impact statements of Ms Dehne and Ms Lesley Jackson, which endorse many of the sentiments referred to above. Put simply, it is clear that this offending has had, and continues to have, profound emotional, psychological and, indeed, financial effects on the lives of those close to Gary and Fred Whearem.
I turn now to your personal circumstances.
You, McPherson, were born Graham Moylan Hindle. You were an only child, and grew up in Wangaratta. You left school when you were aged 15, without any formal qualifications.
Your mother died when you were 16, at which point you went to live with your paternal grandparents, as your father was unable to care for you. When you were 18, you moved to Kalgoorlie, where you obtained work as a roustabout at a gold mine.
It was at this point that your issues with the criminal law began. In 1963 and 1964, when you were still 18, you committed a string of offences for which you were imprisoned in Western Australia. Your offending continued almost uninterrupted from that time up until your latest conviction in 1985. Indeed, the majority of your adult life between the ages of 18 and 45 appears to have been spent in prison.
In 1983, whilst you were still in prison, you married Julie McPherson (not to be confused with your stepdaughter, also named Julie McPherson). Although the marriage lasted only three and a half years, the two of you have remained close friends, and she has been your primary support since you were charged with these offences. You are regarded as a father figure to her five children, and something of a grandfather to her 17 grandchildren.
You were released from prison in 1990. Upon your release, you changed your name to Jamie McPherson, and found work as an interstate truck driver.
You also met a woman named Marlene, who you later married. You are the stepfather to her two daughters, one of whom is Julie McPherson. It is to your credit that, for the next 24 years or so, you lived with your family as a law-abiding member of the community.
In around 2009, Marlene was diagnosed with pancreatic cancer. You quit your job, and acted as her primary carer until she died in 2013. You subsequently met Rebecca Toner, with whom you are still in a relationship.
After retiring from your job, you volunteered with the Audburn-Lidcombe (NSW) Lions Club. Specifically, you assisted in a program called ‘Freedom Across Australia’, which organises road trips to various places in Australia for persons suffering from disability.
A character reference from a Mr Harry Brindley, a paramedic, and one of the coordinators of that program, was tendered at the plea. Mr Brindley indicated that you participated as a volunteer at some of the Freedom Across Australia trips, and also made financial contributions to cover some of the expenses involved in those trips. Mr Brindley also spoke of occasions in 2013 when you assisted a person who was, at the time, a neighbour of yours who suffered from a chronic medical condition. On a number of occasions, at the request of Mr Brindley, you drove your neighbour to the local hospital, over an hour away from your home, so as to enable ambulance services to remain available to respond to other emergencies.
You have been a heavy smoker for most of your life. About four or five years ago, you were diagnosed with emphysema. At the plea, evidence was given by Dr Terry Luscombe, a general practitioner who has been treating you since March 2014. Dr Luscombe said that you currently suffer from chronic obstructive pulmonary disease, the principal component of which is emphysema. He indicated that, with adequate treatment, you remain relatively well, but are prone to shortness of breath on exertion. You are also prone to frequent exacerbations of your illness due to either viral or bacterial respiratory infections, which are occasionally severe enough to require you to be hospitalised. You have had approximately four exacerbations of your illness since March 2014, and were admitted to hospital as an in-patient on two of those occasions. Dr Luscombe characterised your exacerbations as being potentially ‘life threatening’.
The most recent exacerbation occurred on 29 June 2015, the day upon which you were supposed to be arraigned on these charges. However, that incident was complicated by the fact that you refused at that time to take your antibiotic medication, or to receive any other treatment. In any event, your condition subsequently stabilised. When you were examined by Dr Luscombe the following week, you did not present with any particular abnormality.
As to your future prognosis, Dr Luscombe indicated that, given adequate treatment and a total cessation of smoking, you could live for several more years, though he added that it could be longer or shorter than that. The medical evidence before me goes no further than that.
Turning to you, Sargent, you are the second of five children. Both of your parents have died, your mother in 2011, and your father in 1998. You are said to have a good relationship with your older sister. Sadly, she suffers from liver cancer, and is in need of a transplant. You have much less contact with your three younger sisters.
You have two children, a son aged 32 and a daughter aged 21. Your son lives in New Zealand, and you have not seen him for many years. You do not have any contact with your daughter.
You grew up in Braybrook, where you completed primary school and attended two different secondary schools. You left school in Year 9 to commence work at a factory painting blackboards. You stayed in that role for about 12 months before taking up a position at a chicken factory, where you worked with your father for about three years. You then worked at a petrol station for a further one to two years.
In around 1992, you were involved in a motor vehicle accident. As a result of that incident, you sustained serious back injuries, which continue to cause you chronic pain. A medical report dated 22 July 2015 from a neurosurgeon, Dr Patrick Lo, was tendered at the plea. The report states that you likely suffer from lumbar canal stenosis at the L4/5 level which, in all likelihood, will require you to undergo lumbar spinal surgery. Dr Lo went on to note that, were you to receive a term of immediate imprisonment, he would hold grave fears for your neurological function. That observation appears to have been based on his concern that, without appropriate medical treatment, your condition will likely deteriorate, and may result in permanent neurological decline.
Since 1994, you have received a disability support pension on account of the injuries you sustained as a result of the car accident. You also received a compensation payment at around that time. You used that money to purchase a semi-trailer so that you could undertake part-time work as a truck driver to supplement your income.
A report dated 10 July 2015 from a consultant psychologist, Carla Lechner, was also tendered on your behalf at the plea. You told Ms Lechner that, when you were about 11 or 12 years old, you were the victim of sexual abuse. The perpetrator was said to be the older brother of a friend of yours. You did not tell anyone about this incident at the time, and indicated to Ms Lechner that you had ‘blocked out’ the experience for many years, and eventually come to terms with it.
Ms Lechner found that you present with symptoms of Major Depression and Post Traumatic Stress Disorder (DSM 5). Your depressive illness is said to date back many years, and to relate to a series of significant personal losses, including the loss of contact with your son. You have been on anti-depressant medication since about 2000.
Ms Lechner also notes that, during your interview with her, you were ‘clearly distressed’, evidencing symptoms of both depression and anxiety at a clinical level. This was said to be confirmed by your scores on the Beck Depression Inventory (a self-administered questionnaire), which put you at the ‘top end of the moderate range’, and the Beck Anxiety Inventory, which put you in the ‘extreme’ range.
The report goes on to state that you have a history of alcohol abuse, and that your consumption of alcohol has increased in recent times. Psychometric testing was said to indicate that your cognitive functioning is ‘extremely low’, particularly in the non-verbal sphere. You were found to have an IQ of 68, and to fall within the ‘mildly intellectually disabled/borderline’ range of intelligence.
Ms Lechner also referred to your history of head injury which, in addition to the accident in 1992, also included a second car accident in 2004. You reported suffering poor memory and headaches since that time. Ms Lechner indicated that this history, combined with the results of your psychometric testing, raised the possibility that you may suffer from an acquired brain injury.
Ms Lechner’s report states that you deeply regret your involvement in the present matter, and that you expressed sympathy for Gary and Fred Whearem’s family. She concluded that you present with a positive prognosis, and may be assisted by a lengthy parole period. She also noted that, in light of your mental health issues and cognitive deficits, you are likely to find prison more onerous than a person of normal health.
Character references were tendered on your behalf from a Mr Geoff Stute, and his partner, Ms Grace Jackson. It appears you have known the both of them for many years, having first met them whilst volunteering at the local Neighbourhood House. They attest to you having assisted Mr Stute and his partner in various ways after he sustained a back injury. They also state, more generally, that you are a popular member of the local community.
As to the gravity of this offending, there can be no doubt that each offence, whether of culpable driving, in your case McPherson, or dangerous driving causing death, in your case Sargent, must be viewed as being extremely serious.
So far as you, McPherson, are concerned, you set out after Gary Whearem, intent upon, at the very least, intimidating him by driving in the manner that you did. You did so in a state of anger, bordering upon visceral rage. Your comments to Senior Constable Jablonka make that perfectly clear.
Your driving exhibited a high degree of negligence. To ‘tailgate’ another vehicle as you did, at a speed of more than 100 kilometres per hour, while zigzagging across the road, at times in circumstances which would have posed a real danger not just to the Whearems, but other drivers, was in truth an act of madness. Your culpability in that regard was great.
Two men have lost their lives directly because of your stupid and utterly irresponsible behaviour. You have shown no remorse whatever for your actions. Quite the contrary. General deterrence is an important sentencing consideration so far as you are concerned.
The offence of culpable driving causing death carries a maximum penalty of 20 years’ imprisonment. That is the same maximum penalty as applies in relation to manslaughter, the offence with which you were originally charged. It also shows the seriousness with which the legislature views culpable driving.
I note that according to the Sentencing Advisory Council, 67 people were sentenced for culpable driving causing death in the higher courts between 2009–10 and 2013–14. In 87% of cases, a term of immediate imprisonment was imposed. The median length of sentence in those cases was 6 years.[1]
[1]Sentencing Advisory Council, Sentencing Snapshot No 173: Culpable driving causing death (May 2015).
Of course, your offending is rendered all the more serious by the fact that you caused not one but two deaths. Your counsel conceded that this meant that there should be some degree of cumulation in respect of each charge. That concession was plainly appropriate.
I have also had regard to the observations of the Court of Appeal in relation to sentencing for this offence.[2] Plainly, denunciation and general deterrence are factors which ordinarily must figure prominently for offending of this kind.[3]
[2]See, eg, Pasanyk v The Queen (2014) 66 MVR 415; DPP v Solomon (2002) 36 MVR 425; DPP v Hill [2012] VSCA 144.
[3]R v Withers (2003) 40 MVR 178, 181; R v Franklin (2009) 52 MVR 544, 547.
In your case, having regard to your state of health, specific deterrence does not feature as a significant sentencing factor. Nonetheless, you must be adequately punished for your appalling behaviour. That means a substantial term of imprisonment.
I have taken into account such mitigating factors as you can call in aid. These include your plea of guilty which, although it came late, had considerable utilitarian value. You saved the community what would probably have been a lengthy trial, and you saved a number of witnesses, particularly those close to the Whearems, from the trauma of having to give evidence. As a result, your sentence will be reduced somewhat, though not nearly to the degree that it would have been had you shown a skerrick of remorse.
I also take into account the evidence as to your health and future prospects. Your counsel submitted, on the plea, that the reality is that you are likely to die in prison. I accept that this is so. That cannot result in my imposing a sentence that is so far below what would otherwise be warranted as to be manifestly inadequate. In other words, I will reduce the sentence that I would otherwise have imposed to reflect the additionally burdensome nature of imprisonment upon you, having regard to your health, and prognosis.
I do not regard your history of prior offending as having any great bearing upon the sentencing task. The offences are old, and for the most part, very different to the conduct that has led you to this place today.
As regards you, Sargent, your offending is less culpable than that of McPherson. You participated in this act of folly solely in order to help a friend. Whereas he was consumed by hatred, you went along with his actions simply because he asked you to do so.
Although your liability is said to arise by virtue of the doctrine of complicity, it does not follow, logically, that you are every bit as culpable as your co-offender. Your involvement in this lunatic act was much shorter than that of McPherson, and there was no element of pre-planning on your part. In addition, it can be said that what you agreed to do may have involved a somewhat lesser degree of negligence on your part than his, which may explain why the prosecution have permitted you to plead guilty to dangerous driving causing death, rather than culpable driving.
It is less clear why the prosecution has put its case against you on the basis of complicity, rather than primary liability. However, I will sentence you, as best I can, on that basis.
Statistics from the Sentencing Advisory Council indicate that between 2006–07 and 2012–13, 124 people were sentenced for the offence of dangerous driving causing death. An immediate term of imprisonment was imposed for 38% of those charges, with the median length of sentence being 3 years.[4]
[4]Sentencing Advisory Council, Major Driving Offences Current Sentencing Practices (June 2015), 43.
In your case, I find that you have expressed genuine remorse. That, coupled with your plea of guilty, warrants a significant discount. I do not consider that specific deterrence is a factor which figures prominently in your case. However, general deterrence is an important sentencing consideration for offending of this kind.[5]
[5]DPP v Oates (2007) 47 MVR 483, 486; DPP v Neethling (2009) 22 VR 466,477.
I also take into account in your favour your mental state, which is that of someone who is seriously depressed, and has been for some time. That will make the burden of incarceration greater for you.
As regards your back condition, I will proceed upon the assumption that, should you require surgery, the corrections authorities will arrange for that to be carried out.
Jamie William McPherson, it is the sentence of this Court that on charge 1 — culpable driving causing the death of Gary Whearem — you be imprisoned for a term of 5 years. On charge 2 — culpable driving causing the death of Fred Whearem — you will also be imprisoned for a term of 5 years. Three years of the sentence on charge 2 will be cumulated upon the sentence on charge 1, making a total effective sentence of 8 years’ imprisonment. I fix a non-parole period of 5 years.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that, but for your plea of guilty, you would have been sentenced to 10 years’ imprisonment, with a non-parole period of 7 years.
Your pre-sentence detention is 32 days not including today, and I direct that this be reckoned as time already served and entered in the records of the Court.
Shayne William Sargent, it is the sentence of this Court that on charge 3 — dangerous driving causing the death of Gary Whearem — you be imprisoned for a term of 3 years. On charge 4 — dangerous driving causing the death of Fred Whearem — you will also be imprisoned for a term of 3 years. Two years of the sentence on charge 4 will be cumulated upon the sentence on charge 3, making a total effective sentence of 5 years. I fix a non-parole period of 3 years.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that, but for your plea of guilty, you would have been sentenced to 7 years’ imprisonment, with a non-parole period of 5 years.
Your pre-sentence detention is 18 days not including today, and I direct that this be reckoned as time already served and entered into the records of the Court.
For the sake of completeness, I will order that any licence to drive held by each of you will be cancelled for a period of two years, commencing upon the date of your release from prison.
---
0
7
0