Sentence: Total effective sentence of nine years with non-parole period of six years
[2]
Section 6AAA declaration: 12 years with non-parole period of nine years
[3]
Lee Bratherton, on 21 November 2019 you were 33 years old. You were a decent, hardworking young man with no prior criminal history and with only one minor driving infringement notice. You held a valid driver's licence.
You are from Manchester, England. You were living in Australia with your partner of 18 years, Ashley Vickers. You were hoping to make a future here.
You were working in construction. At around 10:30am on 21 November 2019, it was already over 35 degrees and you and your workmates were 'heated off' the job - that is, you were not required to work for the rest of the day because of the oppressive heat. At around 11:30am, you and your workmates went to the Elsternwick Hotel, where you drank without eating until just after 3pm. You had about seven pints of beer.
Under the influence of alcohol, you took the decision to drive. Two of your workmates and your friends, Mark Harrington and Seán Ryan, were your passengers. Mr Harrington was in the front passenger seat and Mr Ryan sat in the rear.
Like you, Mr Harrington was a decent, hardworking young man from Manchester, England, in Australia with his partner Samantha Morris, hoping to make a future here together.
After a brief period of erratic driving, you drove over a raised bluestone and concrete roundabout and lost control of your vehicle. Your vehicle swerved for about 100 m before you hit a tree.
Mr Harrington and Mr Ryan were both injured and were trapped inside the vehicle but were extracted by ambulance personnel.
Mr Harrington died at 5:45pm due to the injuries he sustained in the crash. Mr Harrington was 33 years old when he died. Mr Ryan had the lower section of his right leg amputated and a dislocated left hip. You were also injured, suffering bruising to your spleen and two broken ribs. You were in hospital for two days and were later readmitted to hospital on 28 November 2019 and were operated upon, undergoing a splenic artery embolism procedure.
You were speeding when you hit the roundabout. You were travelling at a minimum of 89 km/h in a 50 km/h zone, and you were intoxicated. A blood sample taken at 5:48pm provided a blood alcohol concentration reading of 0.145%. Because of your intoxication, you were incapable of exercising proper control of your vehicle. The prosecution case against you also proceeds upon the basis that you drove your car negligently.
The full facts and circumstances of your offending are set out in the prosecution opening, which was tendered as exhibit 1 upon your plea.
The death of Mr Harrington has caused deep and profound grief to his family and to all the many people who loved him. It is my duty to sentence you in accordance with the criminal law. The sentence I will impose is not a measure of the worth of Mr Harrington's life. Mark Harrington was a unique and irreplaceable human being and no sentence I impose can restore him to his family and friends and undo the tragic events of 21 November 2019, which have caused pain and grief to so many people.
Mr Bratherton, you have pleaded guilty to one charge of culpable driving, for which the maximum penalty is 20 years. The offence of culpable driving is a standard sentence offence and the standard sentence is eight years' imprisonment. You have also pleaded guilty to one charge of negligently causing serious injury, for which the maximum penalty of imprisonment is 10 years.
Your offending was objectively serious offending.
First and foremost, you were intoxicated and should not have been driving. After drinking for around four hours without eating, you must have had some foresight, even in your drunken state, that you should not be driving and that you were exposing your passengers and others to risk.
Secondly, before you ultimately lost control of your car, your driving was observed to be erratic. Various witnesses observed you revving your car and doing a burnout at the end of a dead-end street, and fishtailing.
Thirdly, you were speeding, and your speed of 89 km/h was considerably higher than the 50 km/h speed limit that applied to the suburban area.
Finally, although the length of the journey was short - you were driving your car for only around four or so minutes before you lost control - the short duration of your driving is attributable to your heavily intoxicated condition and is indicative that you were unmistakeably in no fit state to drive.
Your counsel Mr Tiwana submitted on your behalf that there were aggravating features often found in driving cases which were not present in your case. In particular, you were a licensed driver with no record of demonstrable disregard for road safety. However, as he properly recognised, the absence of these features does not reduce the obvious seriousness of your crime.
A number of victim impact statements were made by the family and friends of Mark Harrington and were tendered at the plea. They were from Sadie Fraser, Mr Harrington's sister-in-law; Kerry McCarthy, a friend; Darren Morris, the father of Mr Harrington's partner Samantha Morris; Ursula Harrington, Mr Harrington's mother; and Samantha Morris, Mr Harrington's fiancée. All speak of a loving and caring young man whose death has left them devastated.
Mr Harrington's mother Ursula says that Mark was one of a siblingship of four and that his brothers and sister are struggling to come to terms with Mark's death. She says Mark's father is unable to hear Mark's name or look at a picture of Mark without breaking down. Mrs Harrington says that she cannot imagine being able to find any joy in life in the future. The future that the family had envisaged for Mark and his fiancée Samantha is lost, and she is left only with thoughts of Mark's death and of his suffering.
Mr Harrington's fiancée Samantha Morris says that her life has been completely destroyed and she says, in the same vein as Mrs Harrington, that she cannot imagine a happy and fulfilling future without Mark. She says, 'I am completely lost without him. I remember saying goodbye to him, I told him I loved him and not to be scared, and that I would never leave him, all I want is to be with him.'
Mr Ryan, your injured passenger, also prepared a victim impact statement. He said, 'Despite my injuries I want to say that I am still friends with Lee ... Lee did his best to support me after the accident and I have no doubt he is completely remorseful for everything that has happened.' The statement is a testimony to Mr Ryan's resilience. I will turn to the topic of your remorse shortly but for now I say that I take the contents of the victim impact statements into account in sentencing you.
You pleaded guilty to the charges on the indictment on 27 April 2020 at a committal mention. This is an early plea. It has saved the witnesses and the community the cost of a trial. It therefore has utilitarian value, heightened in the current context of extreme stress caused to the administration of criminal justice in this State by the COVID-19 pandemic. I also accept that it is indicative of remorse on your part and, beyond your plea of guilty, I accept that you have shown remorse for your actions.
You understand and struggle with the enormity of what you have done. A number of references were tendered on your behalf at your plea from friends and family, and all speak of the deep remorse that you have expressed.
You have written a letter to the Court and a follow-up note. In your letter, you say:
[4]
Shortly after I arrived in Australia Mark arrived with his partner Sam. We were introduced to each other by a mutual friend Jordan. With the five of us being from the same area back home, we created a friendship out of home comfort.
[5]
Not long after we met, Mark came to work with myself and Jordan as a trainee carpenter. Through work we began to build a unbreakable bond even calling our selves "JLM" and planning to start our own company once our residency came through ...
[6]
It breaks my heart to think that through my choices that afternoon I have taken him away from everyone. There is not a day that goes by I wish I couldn't trade places with him, I'd give anything to take it back.
[7]
But I can't. [I] have broken our bond. I have broken Sam and Ashley's bond. I hurt my friends and will never be able to forgive myself.
[8]
I'm sorry for the trauma and pain I've caused to both Mark and [Seán's] families. Not a minute goes by that I don't think of what I have done to Mark and [Seán]. I've hurt the people I wanted in my life forever and not a day goes by I don't think about how I'd give anything to trade places with them.
[9]
You are receiving counselling from Carlye Weiner, clinical psychologist, to help you cope with what she found to be significant guilt, remorse and distress relating to the death of Mr Harrington. You met and spoke with forensic psychologist Pamela Matthews on 4 June 2020. Ms Matthews prepared a report which was tendered at your plea. Ms Mathews found you to be genuinely distressed and sorry for Mr Harrington's death. You have also made some attempts to assist your victims financially.
You did, in the immediate aftermath of the collision, deny that you were the driver, but I accept this was in the context of shock and trauma. I do note also that you initially denied that you were the driver of the car to Samantha Morris. The subsequent revelation that in fact you were the person responsible for Mr Harrington's death added to her shock and distress. However, since that time, the evidence of remorse on your part is, as was submitted by Mr Tiwana, genuine and compelling.
I turn now to your background and your personal circumstances and, in outlining these, I refer to the report of Ms Matthews and to the character references tendered at your plea.
You were born on 9 February 1986 in Manchester. Your early life was difficult. Your mother abandoned the family and you were brought up by your father and your grandparents. Your father remarried when you were 11 years old. You have a younger half-brother. You and your stepmother were not close. You have found out that your mother died some years ago. You believe you may have half-siblings through your mother's other relationships.
You were academically an average student, and after you completed your education to the compulsory level in the United Kingdom, you pursued vocational training and began but did not complete an apprenticeship in refrigeration engineering, before working at an abattoir and then in construction, before doing a carpentry apprenticeship, which you completed 15 years ago. You have worked in construction ever since.
You met your partner Ashley Vickers when you were 18 years old. Character references were tendered by Ms Vickers, her father Gerald Vickers, her brothers Sean and Callum, and her aunt Jacqueline Fraser. It is clear that you are a much-loved member of the Vickers family.
Ashley Vickers says that you are a caring, respectful and loving man, and that you helped her cope with the death of her mother in 2004 and have helped care for her disabled older brother.
You and Ms Vickers moved to Australia in 2017. Before you left the United Kingdom, both your father and your grandfather died. When you arrived in Australia, you met Jordan Seldon, who got you a job in construction with a carpentry company, Fineline, and who introduced you to Mark Harrington. The three of you worked together.
You have worked for the same employer for all but three months when, after 12 months in Australia, in order to extend your visa, you worked in rural Australia constructing wind turbines. You are still working for Fineline. You have a solid work history and references have been tendered from past and present work colleagues and employers, Craig Watson, Jordan Seldon, James Hart, Anthony Brien and Steve Travers. Aoife Kelly also gave a character reference on your behalf. All speak of you as a resilient, honest, responsible person who has hitherto led a blameless life.
You told Ms Matthews that you began drinking when you left school and between the ages of 18 and 24 you would typically drink about six to eight pints of beer once a week with friends. You told her you cut back on beer when you became interested in boxing and wanted to keep your weight down. You said your drink of choice became gin. In Australia, you told Ms Matthews that you and Mr Seldon would drink together on weekends. You told her you were a social drinker and drank about 10 pints of beer on Friday and Saturday nights. You have used cocaine and cannabis recreationally. Ms Matthews concluded that you had a history of binge drinking and alcohol misuse but that you did not have a history of alcohol dependence and hence no formal diagnosis. Since your offending you have stopped drinking. You have only once had a drink, when you went out to dinner and had a drink with Seán Ryan.
Ms Matthews found you to be suffering a major depressive disorder, experiencing symptoms including depressed mood, sleep disorder, recurrent thoughts of death and suicide ideation, diminished pleasure in almost all daily activities, fatigue and loss of energy. She also found you to have symptoms consistent with a post-traumatic stress disorder, although no diagnosis was made. On the basis of the diagnosis of a major depressive disorder, it was submitted on your behalf that there was some application of Verdins principle five; that is, your time in custody would be more onerous because of your depressive disorder than it would be for a prisoner in robust mental health.[1] I accept that submission and will take it into account in sentencing you.
You face deportation at the conclusion of any term of imprisonment. This will weigh heavily upon you, as you had intended to settle in Australia. Your offending has also put Ms Vickers in a difficult situation. She had been enjoying a happy and successful life here in Australia but now she is alone without much money and her future is uncertain. She may have to return to the United Kingdom. You had plans to marry and have a family, which have now been dashed. Mr Tiwana did not submit that I should take into account the effects of your incarceration on Ms Vickers herself, but did submit that her situation will weigh heavily upon you during your time in custody and will cause you considerable anguish. I accept that submission. Finally, in considering your situation in custody, conditions are currently more onerous as a consequence of the COVID-19 pandemic and I also take this into account in sentencing you.
The sentence I impose upon you must give effect to the principles of general deterrence, denunciation, and protection of the community. It is not uncommon for people who come before this Court for the offence of culpable driving to be people just like you, that is, of previous good character and otherwise productive and decent members of society with promising futures. But the personal attributes of an offender, no matter how admirable, cannot be allowed to blunt the message that must be sent that the community will not tolerate innocent people being killed by those who drink and then drive with speed. It is imperative that the message of deterrence is sent out, particularly to your demographic of young men.
The sentence I impose must promote your rehabilitation. You are not a young offender, but you are still a relatively young man and I regard your prospects for rehabilitation as excellent considering your plea of guilty, your remorse and your good character and work ethic.
I have had regard to the standard sentence of eight years for the offence of culpable driving as one of the matters to be taken into account in arriving at an appropriate sentence for you by the process of instinctive synthesis. I also take into account the maximum penalty for the offence of culpable driving and of negligently causing serious injury.
I was referred to and have had regard to the cases of Director of Public Prosecutions (Vic) v Rakatau,[2]Director of Public Prosecutions (Vic) v Victorsen[3] and Director of Public Prosecutions (Vic) v Lim.[4] These cases are all decisions of this Court on the offence of culpable driving under the standard sentencing regime. These cases have been of some assistance in considering what is the appropriate sentence for you, but ultimately I must sentence you on the basis of all the facts and circumstances particular to your case.
On charge 1, culpable driving, you are convicted and sentenced to a term of imprisonment of eight years.
On charge 2, negligently causing serious injury, you are convicted and sentenced to a term of imprisonment of three years.
I order that one year of the sentence on charge 2 be served cumulatively on the sentence on charge 1. That makes a total effective sentence of nine years.
Section 11A of the Sentencing Act 1991 (Vic) directs that, unless it is in the interests of justice not to do so, the Court must fix a non-parole period, in this case, of at least 60% of the total effective term of imprisonment. In your case, I am setting a non-parole period of six years' imprisonment.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 12 years with a non-parole period of nine years.
Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served two days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
I make a finding that these offences were committed under the influence of alcohol and that alcohol contributed to your offending. Any driver's licence you hold is cancelled and you are disqualified from driving in Victoria for a period of eight years, and that commences today.