R v Southwell
[2002] VSC 526
•22 November 2002
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
No. 1427of 2002
THE QUEEN v ADRIAN LEIGH SOUTHWELL
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JUDGE:
COLDREY J
WHERE HELD:
MELBOURNE
DATE OF HEARING:
22 NOVEMBER 2002
DATE OF SENTENCE:
22 NOVEMBER 2002
CASE MAY BE CITED AS:
R. v. SOUTHWELL
MEDIUM NEUTRAL CITATION:
[2002] VSC 526
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SENTENCE – Manslaughter by criminal negligence – Offender towing unoccupied vehicle uphill in a residential area using unsuitable rope – Pedestrian fatally struck by runaway vehicle after breaking of rope – Unusual fact situation mitigating weight accorded to general deterrence – Genuine remorse – Excellent prospects of rehabilitation – Delay of 2 years from offence to trial – Appropriate for merciful sentence permitting positive outcome – Community Based Order for 2 years with 500 hours unpaid community work – Mandatory cancellation of driving licence (2 years).
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APPEARANCES:
Counsel Solicitors For the Crown Ms. S. Pullen Office of Public Prosecutions For the Accused Mr. J. Kaufman Michael J. Gleeson & Associates HIS HONOUR:
1 I should indicate initially that following the plea hearing of this matter I ordered a pre-sentence report to be obtained pursuant to s.96 of the Sentencing Act 1991. I distributed that report to the parties inviting any comment upon it. I propose to place the report on the Court file along with the written comments received from you, Ms Pullen.
2 MS PULLEN: Thank you.
3 MR KAUFMAN: Your Honour, the reason I did not reply is I did not receive this matter until late last night. Does Your Honour require any response from me?
4 HIS HONOUR: No.
5 MR KAUFMAN: Thank you.
6 Adrian Leigh Southwell, you have been found guilty by a jury of the manslaughter by criminal negligence of Mrs Edith May Bennett, and I must now sentence you. In order to do so I should refer to the relevant facts surrounding the commission of this offence. These may be briefly summarised: On 12 October 2000 at about 5.00 p.m. your yellow Mitsubishi van ran out of petrol in Dalmor Avenue, Mitcham, near the intersection of Ireland Avenue, about 50 metres from your home. Leaving the van on a relatively flat area of the roadway you went up the hill that leads to Quarry Road to your home address at 3 Dalmor Avenue. There, your father offered his assistance but, at this stage, you clearly believed that if you obtained petrol you could re-start the van. Accordingly, you borrowed your father's Toyota four-wheel drive vehicle and drove to Rhode's petrol station on Mitcham Road where you filled a small jerry can with $5 worth of petrol using money your father had also lent you. Having put this in the tank of the van you attempted to start it, but the battery was flat.
7 Precisely what happened next is not clear. This is partly because the observation of neighbours was intermittent, and partly because when you made a record of interview with the investigating police your own state of mind was such that your account of events was not totally coherent. However, it seems that you spoke to Mrs Bennett with whom you were friendly. At the time she was walking her dog on the park side of Dalmor Avenue. A witness, Ms Jacqueline Edwards, heard you telling Mrs Bennett that you would be all right. This was probably the result of an inquiry by her when your efforts to start your van proved to be futile.
8 It seems that you initially pushed your vehicle in the direction of Burnett Street up a slight incline before attempting to roll start it. That manoeuvre having failed, you left the vehicle parked adjacent to the driveway of a Ms Glenda Hitchens, which was opposite the Dalmor Avenue park, before returning to your home.
9 The evidence indicated that the park was used by residents in the area as walkway to a parallel street and that it also contained a children's playground which was a popular attraction for local children. Indeed, on this early evening, the witness Ms Edwards was present in the playground with her two children.
10 Having once against borrowed your father's four-wheel drive vehicle, you parked it behind your van with the front of the four-wheel drive facing the rear of the van. You attached a rope that you obtained from the back of your father's car to the front of the four-wheel drive and to the rear of the van. You then towed the van backwards about 30 metres up the incline towards Burnett Street. After disconnecting the rope you again endeavoured, unsuccessfully, to roll start the van. On one view of the evidence you performed this exercise twice in your attempts to activate the engine.
11 The rope you were using was a three strand six millimetre polypropylene rope. According to the expert evidence it was manufactured to Telstra specifications and it was apparently used to pull cables through pipes. On testing, this type of rope, in an unused conditioned, had a breaking stain of 660 kilograms. The rope used in the towing had a breaking strain of 540 kilograms. The kerb weight of your vehicle was 1,080 kilograms. Despite this weight disparity you had successfully towed the vehicle on one or two occasions over short distances. There was expert evidence that it was possible that a vehicle could be towed above the breaking strain level of the rope on a flat surface or up an incline without the rope necessarily snapping. There was also expert evidence that a rope could stretch up to 25 per cent before rupturing and further, that rope subjected to sudden jerk could break at a strain lower than the design specification.
12 The efforts to roll start the van from the Burnett Street side of Ireland Avenue having been unsuccessful, you re-attached the rope to the front of your van and the rear of the four-wheel drive and commenced to drive up Dalmor Avenue toward Quarry Road. This was a far steeper slope than you had previously negotiated. The distance of 50 metres from Ireland Avenue to your home was described as having a gradient of 14.5 per cent.
13 You towed the van for about 30 metres before stopping the four-wheel drive and activating the brake in preparation for another attempt to start the van by rolling it backwards. It is possible that action produced a jerking motion causing the rope to snap, but in any event the increased strain on an already weakened rope, occasioned by the steeper gradient, would have been sufficient, in itself, to cause the rope to break.
14 Eyewitness described the van careering backwards down hill with you running after it calling out "Look out" and "Oh no, get out of the way, get out of the way". It was estimated that, towards the end of its descent, the van was travelling about 25 to 30 kilometres per hour. As fate would have it, at this time Mrs Bennett was crossing the roadway and, having observed the oncoming van, had apparently run towards the park. Tragically, the van mounted the eastern kerb of Dalmor Avenue and the rear of it struck Mrs Bennett who was, by then, on the eastern footpath. The van came to rest against a parked tree pinning Mrs Bennett partially underneath it. Neighbours immediately contacted an ambulance. You were shocked and distraught at what had occurred and you ran back to your house urgently seeking your father's assistance. The rope was removed from the four-wheel drive tow bar and thrown into the carport area, and your father drove the four-wheel drive the short distance to the scene of the collision with the objective of pulling the van off Mrs Bennett. However, Ms Simone McCarthy, who was at that time on the phone to the ambulance service, relayed to you their advice that this exercise should not be attempted.
15 You remained at the scene, seated in the gutter, and all of the witnesses commented upon your very great distress at this totally unintended course of events and of your concern for Mrs Bennett's wellbeing. Subsequently, you fully cooperated with the investigating police.
16 A close reading of your frank interview with the police provides a clue to your state of mind at the time of these events. Whilst you concede the rope was not sturdy enough to tow a vehicle, you believed it was capable of pulling your van the short distance required to roll start it. You were probably lulled into a sense of false security by having successfully towed the vehicle up the incline towards Burnett Street. It would appear, however, that as your confidence strengthened, the rope weakened.
17 In retrospect you described what you had done as "irresponsibly stupid". That assessment is undoubtedly correct. You completely failed to advert to the possible consequences of your actions.
18 In essence, the jury verdict may be seen as reflecting the view that towing an unoccupied vehicle up a steep slope with a length of rope unsuitable for the purpose, and in a residential and recreational area, constituted criminal negligence.
19 Manslaughter, involving as it does the loss of human life, is a serious offence, and the community is rightly concerned that persons be deterred from pursuing courses of conduct which are grossly negligent and which result in the loss of life. Of course, the offence of manslaughter occurs in many and varied circumstances and is committed by a variety of individuals. Those factors must be taken into account in determining the appropriate sentence in each case. Consequently the penalties for this offence vary very widely. It is, I think, fair to say the circumstances of your case are relatively unique ones.
20 In determining the appropriate sentence there are a number of matters personal to you which I must take into account.
21 Before doing so, however, I wish to say something about Mrs May Bennett who was 80 years old at the time of her death. A small insight into her life may be gleaned from the very eloquent Victim Impact Statement of Mr Bruce Bennett. He put it this away:
"May Bennett was an exceptionally giving person. She was extremely hard working and self-reliant all her life. She almost never asked for help but was always going out of her way to do things for her extended family and others that she had become friendly with. She would refuse herself many of the most common of creature comforts whilst at the same time going out of her way to shower others with luxury."
22 The statement goes on to describe Mrs Bennett's life after she retired from running a hardware shop in Brunswick. For the last 16 years of her life she was, in effect, a surrogate parent to Mr Bennett and his own wife, and a surrogate grandmother to his children. Mr Bennett describes the extremely close relationship that this lady had with his youngest daughter, who was around 12 years old at the time of her death. Clearly, Mrs Bennett was a remarkable woman and one whose memory will be cherished by her family and friends.
23 In the course of the plea in this case your counsel, Mr Kaufman, also referred to Mr Bennett's statement. I do to the need to quote from it. It is sufficient to note that, as far as you are concerned, it represents a most perceptive assessment of your situation, and a compassionate approach to it by Mrs Bennett's extended family.
24 Adrian Southwell, you are presently 24 years old, having been born on 18 March 1978. You have one sister, and you are presently living at home with your parents and your girlfriend of two years, Michelle Little. After living your early life in Richmond, you completed your secondary education at Ringwood Technical School, leaving school at the age of 16. You were apparently not a good scholar, but you have proved to be a hard worker having been gainfully employed as a printer, and as a sub-contractor to Melbourne Water, operating a back-hoe. You are currently employed as a concreter for Vardas Kerb Pty Ltd. The Managing Director of that company, Mr James Vardas, has written to the Court about you skill as a kerb layer as well as your stamina and enthusiasm as a worker. He expresses the hope that your employment with the firm will continue.
25 In your teenage years you appeared before the Children's and Magistrates' Courts for matters involving graffiti; being the passenger in a motor vehicle taken for a joyride; and possessing and using marijuana. No convictions were recorded on those occasions. When you were 20 years old you were fined for several offences, the circumstances of which are not clear, but which apparently included minor drug use. It was not suggested by the Crown that these matters, the last of which was just over four years ago, should play a significant part in this sentencing exercise.
26 Both your mother and your girlfriend gave evidence on your behalf. Each confirmed your capacity for hard work which involved you leaving home at 4.30 a.m. and returning about 8 p.m. Your mother spoke of your considerable maturation since the events of October 2000, whilst your girlfriend, Ms Little, told the Court of the sadness and depression you continue to suffer. This is manifested, on occasions, by uncontrollable weeping and by nightmares. The material before the Court indicates that you have required counselling. You have told Ms Little of your friendly relationship with Mrs Bennett and of her love of gardening. In the course of conversations with Mr Bruce Bennett about what occurred you learned the location of Mrs Bennett's gravesite, and you have gone and placed flowers there. You and Ms Little have also planted a melaleuca tree in the Dalmor Avenue park at the site of this sad event.
27 I have listened to all of the evidence placed before this Court and had the opportunity of observing you closely during the course of this trial. I am left in no doubt whatsoever of the depth and genuineness of your remorse.
28 A considerable number of letters were tendered in evidence from people in all walks of life, including neighbours. The major themes running through the correspondence are of the devastating effect of this event upon your life; your capacity for hard work; your maturation as a person; and your basic decency. These are all matters which demonstrate that your prospects of rehabilitation are excellent and, further, that specific deterrence is not a significant factor in formulating an appropriate sentence.
29 Insofar as general deterrence is concerned, the weight to be given to it is lessened somewhat in light of the unusual circumstances surrounding this offence. Additionally, your reaction to this incident indicates, in my view, that you have already suffered significant mental punishment for your actions.
30 One aspect of this matter which is relevant to sentencing is the delay of over two years between the date of the offence and the trial. Indeed, you were not charged with this offence until nine months had elapsed. During all this time you have, with the ongoing support of your family, pursued a law-abiding and industrious life, and you have established a stable relationship.
31 I have anxiously considered the sentencing options open to me which include, of course, the imposition of an immediate custodial sentence or a wholly or partially suspended sentence. Ultimately I have concluded that this is a case where justice may be tempered with mercy. But this should be done by imposing a sentence which involves some element of punishment and of general deterrence. It seems to me this can best be achieved in accordance the principles of the Sentencing Act which I have enunciated, by releasing you on a Community Based Order which provides that you make a positive contribution to the society in which you live by performing unpaid community work. If you agree, I propose to release you upon a Community Based Order for the maximum permitted period of two years. Apart from the core conditions of that order I add the condition that you perform the maximum allowable amount of 500 hours of unpaid community work as directed by the Regional Manager of the relevant Community Corrections Centre.
32 The core conditions of that order are:
1.That you do not commit, whether inside or outside Victoria, during the period of the Order, another offence punishable by a term of imprisonment.
2.That you report to the specified Community Corrections Centre within two clear working days after the coming into operation of the Order.
3. That you report to and receive visits from Community Corrections officers.
4.That you notify an officer of the specified Community Corrections Centre of any change in address or employment within two clear working days of the change.
5.That you do not leave Victoria except with the permission of an officer of the specified Community Corrections Centre, granted either generally or in relation to the particular case.
6.That you obey all lawful instructions and directions of Community Corrections officers.
7.There is one program condition, that you perform 500 hours unpaid community work as directed by the Regional Manager.
33 I understand that Box Hill is the appropriate Community Corrections Centre.
34 I should add that any breach of the conditions of the Order could, amongst other consequences, result in you being re-sentenced for this offence.
35 Additionally, pursuant to the terms of s.89(1)(a) of the Sentencing Act I am required to cancel your driver's licence for a period of not less than 24 months. Accordingly I do so for that period.
36 Are you willing to comply with that order Mr Southwell?
37 PRISONER: Yes, Your Honour, I am prepared.
38 HIS HONOUR: Very well. You will have to come forward and sign it.
39 MS PULLEN: While Mr Southwell is making his way to the front table, Your Honour, I believe that your Associate has been notified of our intention to apply for a forfeiture order for the rope, and an order in relation to a s.464ZF sample. Both those applications were relayed to my friend that we were intending to make those applications. If Your Honour is prepared to make those orders I have them here.
40 MR KAUFMAN: In relation to the application for a sample for DNA, I oppose that, Your Honour. This is not a case where it is appropriate that should be done.
41 HIS HONOUR: Thank you. These are matters of discretion. I take the view the circumstances and nature of this case are not such as to attract a Forensic Sample Order.
42 MS PULLEN: If Your Honour pleases.
43 HIS HONOUR: I decline to make it. But I will make the forfeiture order.
44 MS PULLEN: Thank you (handed to Bench).
45 HIS HONOUR: I have signed that Forfeiture Order.
46 MS PULLEN: If Your Honour pleases.
47 HIS HONOUR: You will need to sign that Community Based Order, Mr Southwell.
(Community Based Order signed and acknowledged.)
48 HIS HONOUR: Mr Southwell, you have been given the chance to make something out of your life and at the same time to make a positive contribution to the community in which you live. I hope you will avail yourself of both those opportunities.
49 PRISONER: Yes, Your Honour.
50 HIS HONOUR: Adjourn the Court please.
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