R v Watson
[2012] VCC 1029
•27 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| THE QUEEN |
| v |
| TIMOTHY WILLIAM WATSON |
---
JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2012 | |
DATE OF SENTENCE: | 27 July 2012 | |
CASE MAY BE CITED AS: | R v. Watson | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1029 | |
REASONS FOR SENTENCE
---
Catchwords: Sentence – culpable driving- negligently cause serious injury- plea of guilty- aggravating factors- very high speed- reading of .139 % blood alcohol 3 hours after crash- ignored pleas to slow down-driver driving aggressively in anger- relevant prior criminal history- injuries sustained by driver- significance of general and Specific deterrence- some moderation because of age and health.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Champion SC Ms M Zammit | |
| For the Accused | Mr S. Bayles |
HIS HONOUR:
1 I should tell you that the ABC has made an application to the court, which was subsequently granted, to film these proceedings and, after making the required undertakings, permission is given for that to take place. The court has media protocols in place for such matters and I just want to say to you, Mr Watson, and to the families, that you are not going to be filmed in this courtroom today.
2 Timothy William Watson, you have pleaded guilty to one charge of culpable driving, two charges of negligently causing serious injury and one charge of theft.
3 On 31st day of October 2011, whilst under the influence of alcohol to such an extent as to be incapable of having proper control of your car, you drove it negligently causing the death of Ebony Dunsworth and injuring Joshua Spierings and Daniel Gibson.
4 You are 24 years of age as of 19 July and therefore were 23 at the time of the offence.
5 On 30 October, you had asked to borrow a Nissan Pulsar which belonged to a friend with whom you lived in Bayswater North. That request was refused, probably because she believed the car to be unroadworthy, it had been raining all day, and four days earlier you had driven her car without her permission. On that previous occasion’ only a few days before, on the 26th, you had in fact been intercepted by police and given infringement notices for unlicensed driving in a car which was unregistered. Despite the refusal, you drove the car and during the afternoon hours drove to other friends' places and brought them back to your house by about 5 p.m. There you again asked permission to drive the car and were again refused. By this time the owner of the Nissan noted that you were quite intoxicated, had a stubbie in your hand and smelt of alcohol, and in fact you had been drinking with others.
6 It appears that one of your friends had to attend court the following day and so the group had decided that, as a prelude, alcohol should be drunk. He had a slab of stubbies in the house and a witness said of him that "…he wanted to have a big one."
7 At about 8 p.m., without the knowledge or permission of the owner, you again took the Nissan and drove to another friend's house and drank more alcohol there. You and the others left there in two cars. You were driving with Spierings, Gibson and another, as passengers. After driving to other people's homes in Lysterfield and Rowville, another slab of beer was bought by one of your mates and you drove to Knoxfield. You drove randomly and then Gibson told you of a friend who needed to be picked up from a party at Emerald. Just after 11 o'clock you arrived at Emerald and there picked up Ebony Dunsworth. She only knew Gibson and she sat in the back with him, initially in the centre of the rear seat. You drove towards Beaconsfield and you were drinking whilst driving and speeding. When you left the Emerald party, your front headlights were not on, but they were on at the time of the crash as determined by the mechanical assessment.
8 After about 20 minutes, Ebony exchanged text messages with a friend, Amelia. One of the texts asked her not to tell her mother who she was with, and that she was with Gibson. She added "LOL, I'm going to die". She may have been referring to your driving or to the fact that she was out with Gibson and others when she was supposed to be on her way home and may get in trouble.
9 Ebony swapped seats with Gibson because at this stage Spierings was drunk and she didn't want to sit next to him. She sat behind you and you drove towards Nar Nar Goon. You stopped at a McDonalds. You did a U‑turn on grass. A witness said you were showing off ‑ "being silly". A second car driven by a friend was following you.
10 At the McDonalds, you performed a number of burnouts in the car park. Passengers of both cars went to the toilet at a BP service station nearby. At about 12.06, Ebony called her friend Amelia and told her she was with some guy she didn't know, at an oval somewhere. She was with Gibson, who was not drinking. She said the others had been drinking and driving at 100 kilometres per hour in a 40 kilometre zone, and the driver, you, had performed doughnuts in an oval. Campbell told Ebony not to get back in the car if the driver was drinking and Ebony told Campbell she wouldn't.
11 After leaving the BP service station, you had a heated argument with a passenger and you became agitated and very angry, screaming. You were still drinking. You swerved and slammed on the brakes and skidded on to the grass to a stop. You were on the Princes Highway and you continued the argument there.
12 Another friend, Ben, who had been driving behind you all this time in a second car, pulled up near you. You started driving again with others noticing that your driving was erratic. You were speeding. Ben , in the car behind you was travelling at between 120 and 130 kilometres an hour and he couldn't keep up with you. You kept on driving faster and faster. Your passengers asked you to slow down, certainly Ebony did, as did Gibson. You ignored their pleas. You turned the music up loud. You drove in the middle of both lanes, down the Princes Highway. You reached speeds of 150 kilometres an hour, up to 180 kilometres an hour on an undulating road. One of the passengers, with whom you had been arguing, warned you that a roundabout was coming up and asked you to slow down. You told him to shut up aggressively, "Shut the fuck up, you fucking dog, I don't want to hear a fucking word out of your fucking mouth."
13 As the roundabout came into sight, you began screaming and you slammed on the brakes. Skid marks were later observed to begin only some 35 to 40 metres from the roundabout. You hit a chevron sign on the roundabout, drove across it, then slid to the left, hit another sign on the passenger side and careered into a culvert ditch, hitting a concrete drain which caused the car to roll a number of times and finally come to rest just over Bessie Creek Road. You were trapped in the car and later flown by air ambulance to the Royal Melbourne Hospital.
14 At 3.20 a.m., nearly three hours after the collision, a sample of your blood was taken and later analysed and found to contain alcohol concentration of .139 per cent. According to the experienced collision reconstructionist who attended at the scene, when you slammed on the brakes, you were travelling at a conservative minimum of 137 kilometres per hour, or 38 metres per second. The speed limit in that section of roadis 100 kilometres an hour, the road was in good condition and well lit by an number of street lamps. Intoxicating liquor could be smelt in the vehicle and a stubbie and a can of beer were in the driver's footwell of the car.
15 Joshua Spierings sustained serious injuries, including many fractured ribs, a broken collar bone, gall bladder laceration, liver laceration, adrenal haematoma, cardiac and lung bruising and lacerations and scalp lacerations, accompanied by post traumatic amnesia. The detachment of part of his rib cage from his chest wall and pneumothorax, creating obstruction of blood to the heart, were life threatening. If he had not received prompt medical attention, the risk of death or disability from a combination of these injuries was very high. The frontal lobe damage has affected his short term memory and may result in permanent cognitive, physical and behavioural difficulties. The impact had ejected him from the car.
16 Daniel Gibson sustained serious injuries, including fracture of the right cervical C3, mild thoracic spine tenderness, upper lumbar spine tenderness, bruising of his temple and forehead, a fracture of his left clavicle, grazes and lacerations.
17 Ebony Dunsworth was ejected from the vehicle, she was found underneath the vehicle, but nothing could be done to revive her. She was 16 years old. She was a beloved daughter to her parents and stepfather; sister and friend to many. She had gone to the party, a fancy dress party at Emerald with school friends. I heard the victim impact statements which were read by the makers in court or read out for them. These statements were very moving, attesting to the life of a young girl who was popular, enthusiastic for life, talented and generous.
18 They also attested to the enormous and tragic loss which her death has caused primarily to her family, but also more widely, her friends, her school, her community and the BMX racing community. The statements were dignified and reflective of restraint in the face of profound trauma. I heard from Helen Creighton, Ebony's mother. Ebony would have turned 17 three days before the plea. The pain of her loss, of the loss of her daughter is unspeakable.
19 Ebony's brother, Matthew, read his statement and that of Craig Creighton, Ebony's stepfather. Their statements highlighted a fun‑loving, caring, confident, thoughtful and active young 16 year old full of promise, a promise which has been shattered.
20 Trevor Dunsworth, her natural father, spoke of her desire to compete with BMX bikes and the enthusiasm she brought to his life, now gone. Amelia Campbell, a friend, spoke of intimacies and confidences now lost, replaced by sad reminders of her absence.
21 Taylor Bennett, a friend from her BMX community, spoke of Ebony's impact and the heartache of her loss, as did Alan Munchau, who read Brendan May's statement, who, like most of her friends, feel lost and in shock.
22 Anthony Richardson, the president of the Knox BMX Club, spoke of Ebony's success in competitions and making friends. The club has created an award in her name.
23 Charlie Webb, another friend, was her childhood best friend and spoke of her determination and popularity, and Curtis Ferrang, another friend, spoke of her open and welcoming nature; she was naturally of sunny disposition.
24 I take these statements into account as an important consideration. Ebony Dunsworth did not die in an accident, but as a direct consequence of your disregard of the law and her personal safety.
25 Without justification, you failed, and to a gross degree, to observe the standard of care which a reasonable man would have observed in all the circumstances and whilst under the influence of alcohol to such an extent as to be incapable of being in proper control of a motor vehicle.
26 The indictment specifies s.318(2), paragraphs (b) and (c) as its particulars and it is this culpability which I must consider, that is criminal negligence. Culpable driving is a species of involuntary manslaughter. The community will not tolerate the taking of a human life by acts of gross negligence of the sort which occurred in this case and expects that those who commit such offences will receive stern punishment.
27 In my view, your culpability is high. To drive while intoxicated is bad enough, but to drive with a high blood alcohol concentration at those very high speeds is totally unacceptable. Such behaviour clearly held the high risk of death and serious injury. The victim was blameless and entirely unassociated with your conduct and the events that led to your commission of these offences. The court must denounce the criminality involved and the loss of an innocent life.
28 It is, of course, no mitigation that all the passengers were aware of your drinking, yet were willing passengers. Over the course of the time leading to the crash, it is a sad reflection that none of them took a firm stand against your driving. Though they asked you to slow down, you ignored them. Even sadder, and again not a mitigatory factor, is the realisation that Ebony was not wearing a seat belt. This is a loud reminder to all, especially young people, that not wearing a seat belt in a car is not a reasonable option.
29 Culpable driving is essentially an offence against public safety and its purpose is to deter the unnecessary and unavoidable killing by car drivers. It follows that general deterrence and, where appropriate, special specific deterrence are of great significance. The consequences of it have become the subject of public awareness and community concern. General deterrence, in particular, is the principal objective of the sentence which rises over and above denunciation and punishment of you as an individual to seek to deter others who may be like minded.
30 There is, therefore, less scope than in the case of other crimes for leniency, on account of an offender's youth. You are now 24 years of age. You were 22 at the time of the offences. Strictly speaking, you are not a youthful offender but, nevertheless, you are still young. I will consider this aspect and the concomitant prospects of rehabilitation when I consider your personal circumstances but, to begin with, I consider that the aggravating features mean that the level of personal culpability, as I have said, is high.
31 You have prior convictions for matters involving driving and alcohol. In 2010, you exceeded the prescribed blood alcohol concentration and you were placed on a community‑based order. One would have hoped that every one of the 40 or so hours of community work which you were ordered to do may have reminded you that drink‑driving is unacceptable, but clearly there was little deterrent in that. On that occasion you were also convicted of failing to stop at a stop sign and unlicensed driving.
32 In 2008, in the Children's Court, you were dealt with for unlicensed driving, theft, robbery and reckless causing injury and placed on probation. The explanation for your offending was that you were not the primary offender, but the offences concerned your involvement with a car.
33 Later that year you were fined for careless driving and drive whilst disqualified and in 2008 you had another conviction for exceeding .05. In 2006 you were dealt with for unlicensed driving.
34 This history, in the years leading up to 2011, raise questions about your prospects of rehabilitation and bear upon your culpability and the weight to be given to specific deterrence and protection of the community. It demonstrates a disregard for the law as it applies to our roads and an indifference for the safety of other road users. Your behaviour on this night was not an aberration and I consider that special deterrence must be a significant element of the sentence. As to this element, it is clear that past dispositions did not adequately deter you from such conduct.
35 Apart from the level of alcohol concentration and high speed, there are the factual aspects of the case that are aggravating. You were again stopped by police only a few days before this tragedy. You were unlicensed and it was clear to you at the time of this driving that you were, because of that occurrence. You refused the pleas of your passengers. You drove erratically and dangerously using speed and aggression to vent anger and frustration. That showed a disregard not only of your passengers, but of other road users.
36 You drove what was effectively a stolen car and, in the end, though that fact adds little to what occurred, it is an indication of your disregard for other people's rights. The car was a right off, so the owners have also been affected.
37 You are now aged 24 and are the youngest of three children. Your parents separated when you were 14 years old. They have both remarried. You have recently lived with your older sister and all your family members have been very supportive. You are a single man with no dependants.
38 You were raised in Kyabram where your father ran a drug and alcohol rehabilitation centre as was pastor of a church for 14 years. Schooling was made more difficult for you by dyslexia and an auditory processing disability, but was otherwise unremarkable. The break‑up of your parents was traumatic for you and your life effectively unravelled thereafter.
39 When contact with your father diminished, you turned to an older group of young men who introduced you to drug taking and you have struggled with drug abuse until early 2011. You have made a number of attempts to stop that drug use, and relapses. You made particular efforts when you went to live with your father. This history has meant that you have neither developed lasting relationships, nor a solid work history, though you have had some employment in different industries. On the last effort to try to get off the drugs, you began to drink heavily in what appears to be a substitution, at a time of depression and frustration at your situation. It was in this context that these offences took place, though I note that the two .05 convictions are of 2008 and 2010.
40 You began using ecstasy at 15. You smoked marijuana daily until 2011 and then used ice, amphetamines and other drugs of dependence until 2011.
41 I received a report from Carla Lechner, an experienced clinical and forensic psychologist. You told her of your responsibility for your actions and, though you have not regained full recollection, you recall the argument and feeling angry. You told her you get flashbacks and nightmares about the crash. You acknowledge the impact on your victim's family and particularly for Emily. She diagnosed you with major depression and post traumatic stress disorder. Neither of those diagnoses comes as a surprise given the circumstances of the offences. She confirmed with your mother that you expressed guilt and shame to each of them and this, too, is appropriate.
42 You have been on a range of medication, including antidepressants. In her opinion, your prospects of rehabilitation from a psychological perspective are favourable. I accept that therapy and psychological work would enhance your prospects of rehabilitation and , that particularly given your age, I accept that there are some prospects of rehabilitation, however I agree with the Director’s submission that, given your history and background, your prospects of successful rehabilitation are by no means assured. However it is in the long term interest of the community to keep alive the possibility that offenders are rehabilitated and reintegrated into society, so I take your relative youth into account in moderating the sentence.
43 I have taken into account as a matter of significance your plea of guilty. I accept it is accompanied by appropriate remorse, though it was given in the face of an overwhelming Crown case, where there was no reasonable prospect of acquittal. Otherwise, I accept it was offered at the earliest opportunity to do so and, by law, such a plea should attract a discount which I will declare.
44 The plea, of course, has utilitarian value which describes the avoidance of both costs, sparing of a traumatic trial for the witnesses and the further anxiety this would add to the victim's family and friends.
45 I take into account the fact that you were also injured. It is appropriate to acknowledge that fact. I have read the reports of Drs Spykerman and O'Meara. As well I should mention Dr Lander's report in relation to Mr Spierings' injuries.
46 Your injuries were multilevel spinal fractures which required spinal fusion and the insertion of steel rods in your back. You have fractured ribs, sternum and scapula. Your spleen was lacerated and you had a traumatic brain injury. Fortunately, the cognitive impact of your head injury is very mild.
47 The injuries which you suffered have affected you and will probably affect you in the future by way of continued need to medicate chronic pain, by loss of your mobility, making you susceptible and perhaps more vulnerable physically because of your injuries. This does constitute some punishment, both tangible and as a reminder of the criminality of your actions. I accept that the burden of imprisonment will weigh somewhat more heavily on you, especially when post traumatic stress disorder and depression is combined, with the need for ongoing pain management and the need to manage appropriate medication and the reduction of mobility in a prison environment.
48 Though there is no long‑term prognosis, and there may be significant improvement in the future, the sentence, in my view, is appropriately moderated by these factors, all of which I take into account with a view to the fifth limb of Verdins.
49 In this context, I should say that I have taken particular consideration of the reports of Dr Calin Gredina, dated 28 June 2012, from the Cairnlea Superclinic, whom you consulted at the end of November 2011, shortly after your discharge from hospital, as well as the report of Dr Andrew Hoang of 12 July 2012 of the Royal Melbourne Hospital Pain Management Services, which covers the pain management and medications involved. I also reviewed the Origin Health assessment notes of March 2012 which were tendered. They make clear that a pain management plan and support should be put in place by Correctional authorities.
50 I have received three references, one from your father, one from your mother and one from your sister. Their statements are filled with regret and the realisation that the best years of their son's and brother's life will be lost to all that he could be. However, they, too, are victims and their heartfelt thoughts are not just for you, but for all those affected, particularly Ebony's family who mourn the irreparable loss of their daughter. The lives of your family have also been changed. They also each acknowledge your remorse and the realisation in you of the enormity of the consequences of your actions, and I take these contents into account.
51 It was submitted that I should impose a sentence which allowed for a longer than usual parole period because this is your first period of incarceration. It is not unusual for people who come before the court for such an offence as culpable driving to be young people, with good character and no prior criminal history and from good families. Each case must be judged on its own merits and it seems to me that an appropriate period on parole after a significant sentence is just as likely to provide rehabilitation and reintegration, and the fixing of the non‑parole period is not primarily linked to prospects of rehabilitation, but to all the circumstances of the offence which require you to serve no less than the term I will impose without the opportunity for parole.
52 The sentence must reflect the fact that there were separate offences and victims involved. With a view to this, I will cumulate part of the sentence for counts 2 and 3 upon the base sentence of charge 1. For the same reason, I will cumulate a small portion of the theft charge.
53 I have been assisted by the helpful submissions of counsel. I have had reference to the many authorities cited and I have referred to the sentencing snapshots which were handed up during the plea. I recognise that such snapshots, while useful in identifying trends and useful statistical data, must of necessity be of narrow focus when input into a complex factual matrix, which invariably these cases are.
54 There are two other matters which should be mentioned. The first matter is this. The characteristics of your victim, Ebony, and the community in which she lived, as well as the circumstances of the offence, have caught the attention of the media and have made your sentencing of community interest. It is not often that the courts can be confident that a sentence will receive the publicity which it requires if deterrence is to be an effective instrument of crime prevention. I want to make absolutely clear to you that by allowing the sentence to be filmed and broadcast, it is not in order to further punish you or that you will be punished more severely than is otherwise just and appropriate in my view. It would be unjust to unfairly exploit this opportunity to send a message to the community by giving inappropriate weight to general deterrence. That will not happen.
55 Given the continuing carnage on the road, there is an urgent need to remind motorists, by firm sentences, of the dangers to all road users of the damage caused by irresponsible driving, especially when linked to excessive consumption of alcohol. The importance of general deterrence means that , by this exercise today, if even one person, particularly one young man, is deterred from similar behaviour, then it is an opportunity which is taken for the benefit of the community.
56 Despite many endeavours and campaigns to make road users aware of the need to exercise proper care and have regard to the safety of others, there is a group of people, usually young men, who will not have heard or understood this message.
57 "Culpable driving cases continue to come too frequently before the court."
58 That was said in a reported case in 2006 and again in another reported case in 2009. Here we are in 2012 and I recite the same sad fact.
59 As I said during the plea, the community should accept that we have a problem with alcohol. Its inappropriate use is not harmless or a quaint cultural trait. It is an epidemic which devastates lives. This requires a change of attitude which must begin in families. The court must play a role in denouncing and seeking to deter behaviour which is largely conditioned by alcohol abuse. This is too often coupled with the misuse of cars which become lethal weapons of destructive power. The excessive use of alcohol as a pastime, combined with reckless driving as a form of entertainment, is a culture that must change. The court, when confronted by this culture of alcohol‑fuelled transgressions that brutalise the community, must denounce and reject it.
60 The second matter is that there is a clear tension between what a sentencing judge is required to take into account as a matter of law and the expectation of others involved in the case, and it is in most cases incapable of being resolved to everyone's satisfaction. The loss of life cannot be somehow restored or made better by a sentencing process. The families of victims are dissatisfied in most cases. I say to you that your daughter's life cannot be said to be worth certain years of gaol. A life is so much more and can never be equated with years of punishment, whether little or great. It is not an equation that is ever valid. The grief which comes from a loss probably cannot be made more bearable by what is done by a court. No words in a sentence can bring consolation. The words of the sentence must consider many more things. It is a balancing of many factors and it often is regarded as too light or too high by the families involved. In the end, the criminal justice system is not an exercise in satisfying individual or private expectations, but a heavy duty, exercised for the benefit of the community and for justice.
61 Would you please stand, Mr Watson.
62 On the charge of culpable diving, which carries a maximum of 20 years, you are convicted and sentenced to seven years' imprisonment.
63 On each of the two charges of negligently causing serious injury, which carry a maximum of ten years, you are convicted and sentenced to three and a half years.
64 On the theft charge, which carries a maximum of ten years, you are convicted and sentenced to 12 months' imprisonment.
65 I order that 18 months on count 2 and 18 months on count 3 and three months on charge 4 be cumulative on count 1. This makes a total effective sentence of ten years and three months. I order a non‑parole period of seven years.
66 But for you plea, I would have imposed a total effective sentence of 12 years with a non‑parole period of nine years.
67 I declare that you have served 14 days, excluding today, by way of presentence detention, and I will have that fact noted in the records of the court.
68 Section 89(1) of the Sentencing Act applies in this case in that I am required to disqualify you from obtaining a diver's licence for at least 24 months. In determining the length of the disqualification period, I find that the offence was committed while the offender was under the influence of alcohol which contributed to the offence.
69 Further, having been convicted of theft, I must disqualify you from obtaining a licence for such a time as I see fit under s.89(4).
70 Any licence you hold is cancelled and you are disqualified from obtaining a driver's licence for two years. Under s.89(1A) of the Sentencing Act, I order that such disqualification be effective from 27 July 2019. In effect, this means that if you are released on parole when the non‑parole period expires, you will be disqualified for 24 months before you can be issued with a licence to drive. Any other disposition as to disqualification, in my view, would be meaningless because the period would run during a time when you could not drive because you are incarcerated.
71 Mr Director, are there any other orders necessary?
72 MR CHAMPION: No, Your Honour.
73 HIS HONOUR: Thank you.
‑‑‑
0
0
0