DPP v Callick [2019] VCC 2143

4 You, I accept, carry the guilt and the burden of responsibility of causing

Mr Bloom's death heavily on your shoulders. I accept you, too, will never be the same.

5 If only people could see and learn from this. Appreciating that there is a real risk, if they drive when impaired by methamphetamines and at a recklessly excessive speed, that they too will leave a trail of broken lives behind them, including their own and carry a burden of responsibility that is far greater than any finite punishment a court can mete out.

6 But my task today is to impose a sentence on you that reflects the just punishment the law requires for this conduct. In doing so, I want to make it very clear that the term of imprisonment imposed on you by the court is by no means a crude measure of the value of Mr Bloom's life. One cannot equate the term of imprisonment to the value of this much loved man. The law in sentencing for culpable driving performs a different function. I must sentence you in a way which will reflect the community's denunciation of your conduct, in driving as you did, and causing the death as a result, and in a way which will operate so as to seek to deter others from risking killing someone, as you did, by imposing a punishment that may make them think taking a life in these circumstances is so badly wrong and the likely term of imprisonment, as well as the human cost, so high as to not warrant the risk.

7 As a result of your conduct, you have pleaded guilty today to one charge of culpable driving causing the death of Matthew Bloom.

8 The offence of culpable driving is punishable by a maximum term of imprisonment of 20 years. That, in itself, is a measure of the seriousness with which Parliament and the community generally regard such an offence. As the full bench of the Court of Appeal recently affirmed in the decision of Brown v The Queen [2019] VSCA 286 at [55], I am required to assess the seriousness of the offence, taking into account both objective gravity and your moral culpability in determining the appropriate sentence for this offence.

9 Parliament has recently declared culpable driving to be what is now called a standard sentence offence. That requires me to take into account, under s 5A(1)(b), that a term of eight years' imprisonment is the standard sentence for an offence of culpable driving which, taking into account only the objective factors affecting the relative seriousness, is in the middle range of seriousness.

10 That direction is to be treated as a legislative guidepost, just as the maximum penalty of 20 years to which I have already referred is a legislative guidepost. As the standard sentence provisions make clear, and as confirmed by the full bench in Brown, the requirement to take the standard sentence into account as a legislative guidepost does not require or permit a two-stage sentencing process, does not affect the established principles of the instinctive synthesis approach to sentencing or otherwise affect the matters which a court must take into account in sentencing.

'The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence. They are all "legislative guideposts.'

12 I will now deal with circumstances relevant to the assessment of the seriousness of the offence before turning to matters personal to you and which were relied on as mitigation.

13 I have very briefly mentioned the circumstances of the ultimate act that led to Mr Bloom's death but there is some additional history necessary to provide a context.

14 You had purchased the car that you were driving earlier that day. You purchased it as a result of seeing an advertisement and speaking to the previous owner and after having had a short test drive of it in a car park. You purchased it, as you knew, without a current roadworthy certificate.

15 You had driven it from the Western Ring Road at Ardeer through to Geelong earlier that day. You were followed by a friend of yours in another car that you owned, a silver Ford G6 sedan. Your friend, who was supposed to follow you home, reported that you drove at a speed that was well in excess of the speed limit on the drive from Ardeer back to Geelong. He said that you were speeding up and slowing down, that, at one stage, you were going up to 130 km/h and then backing off and then speeding up. Ultimately he decided to let you go because he was not prepared to keep following you at the speed at which you were driving. He also described your driving as moving in and out, or weaving in and out, of the traffic when he last saw you on the Princes Highway at Laverton. He described you as driving as at a speed which left him for dead. He did not know what speed you were doing but he described you as 'moving'.

16 A number of drivers observed you driving along the Princes Highway on the way back to Geelong. They described your speed as being far in excess of the speed limit, frightening them because of the rapidity with which you approached or overtook them. One person estimated your speed as being as up to 250 km/h. Two drivers estimated your speed to be somewhere around about 200 km/h. Another driver estimated your speed at between 150 and 160 km/h.

17 When you got home to Norlane with the new car, you texted the vendor. You told him in your text that you put the boot into the car on the way home to see what the engine was like and told him that you had done 250 km/h and it still had heaps to go. Whether that was a truthful account, or you were, as you later told the police 'just talking', it does not matter. What is clear is that on that trip from Ardeer back to Geelong, you drove for an extended period at a speed well in excess of perhaps double the speed limit.

18 It was not long after you got home that Mr Bloom, who was, as I have noted, a friend and close family member of yours arrived at your house. The two of you then went in the new car to buy some accessories for it at Supercheap Auto in Melbourne Road. When you left Supercheap Auto, you turned from Collopy Street into the Princes Highway and were immediately observed by other drivers to be travelling at an excessive rate of speed. That part of the Princes Highway that you drove onto has an 80 km/h speed limit and it is a stretch of Princes Highway that has a service station and a McDonald's on your left as you are heading north towards Melbourne and, on the right, as the photograph that was tendered in the course of the plea shows, the car park of what used to be the Ford factory. Although it was an 80 km/h zone and although it is not a residential area, the petrol station and fast food outlets attract a fair bit of traffic. This was shortly after 4.30pm on a weekday when there was, as would be expected, a considerable amount of traffic on that stretch of highway. A number of drivers observed you driving shortly before the collision. All of them noted the speed at which you were driving, well in excess of the speed limit, and the way that you were moving through the traffic, changing lanes and causing people to fear for their safety. Some of them reported the sound of revving.

19 It was not that far after you turned onto the Princes Highway, travelling in the right-hand lane that the car was seen to suddenly veer to the left or yaw, as Detective Sergeant Mehegan, the Major Collision Investigation Unit reconstruction expert described it. Yawing occurs when all the available friction is exceeded longitudinally and laterally. The faster a vehicle is travelling, the less steering is required to cause it to yaw.

20 Whether you intended to move lanes or whether you just moved your wheel slightly will never be known. What did happen was the car suddenly steered to the left and commenced a counter-clockwise rotation, going across the middle and left lanes of the northbound lanes. You steer to the right to correct, which caused the car to commence a clockwise rotation as it left the road. It collided with a tree, split in half, and both parts of the car moved off in different directions. The front half of the vehicle containing both you and Mr Bloom continued north, and hit a second tree.

21 The two trees and the collision site were along the side of the BP service station. There was somebody in his car at the service station waiting to fuel up who described what he said was a 'whoosh' of strong force, followed by a second whoosh and then a third in quick succession, the force of which made his car rock and which also resulted in his car being sprayed with dirt, vehicle debris and oil.

22 You were injured and Mr Bloom was grievously injured. He died the following day. He died as a result of the injuries sustained in that collision.

23 Blood was taken from you which later revealed traces both of methylamphetamine and amphetamine. Professor Morris Odell, forensic physician attached to the Victorian Institute for Forensic Medicine, described the level of methylamphetamine in your blood as high. He said that methylamphetamine is capable of rendering a person incapable of having proper control of a motor vehicle at the blood concentration you had and that the description of your driving was in keeping with the effects of methylamphetamine on driving behaviour.

24 You were released from hospital after a week and immediately arrested and interviewed. When interviewed, you acknowledged that you purchased the vehicle that day but denied speeding on your way back from Ardeer to Geelong. As I have already noted, you acknowledged sending the message to the vendor, telling him that you had driven the car at 250 km/h but said that it was 'just talk'.

25 Your explanation for driving as you did from Supercheap Auto was that you had been suspicious for some months that people had been following you and that they were after money that you had from a superannuation payout following a workplace injury. You described a car pulling in to the Supercheap Auto car park, not seeing anyone get out of it and thinking you were being followed. You described also seeing a car containing a number of men pulling out and following you when you left Supercheap Auto and said you just bolted.

26 You said if you were speeding it was because you were being chased. You expressed sorrow, remorse and regret for having caused Mr Bloom's death. I accept, in the circumstances of that interview and your conduct ever since then, that they were genuine and deeply felt expressions of remorse, regret and a full acknowledgement of responsibility for having caused your friend's death.

27 This is, in my view, a serious case of culpable driving. The culpability is at least moderate, if not at the higher end of the scale. The form of culpable driving to which you have pleaded guilty is one involving both recklessness and impairment by methylamphetamine. Recklessness, for the purposes of a charge of culpable driving, connotes a higher level of seriousness and moral culpability than gross negligence, which is another way in which a person can commit the offence of culpable driving. Driving recklessly means, for these purposes, consciously and unjustifiably disregarding a substantial risk that death of another person or the infliction of grievous bodily harm upon another person may result from the driving.

28 By contrast, gross negligence is established where a driver fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case

29 By your plea of guilty to culpable driving in the manner which has been alleged, you have not only acknowledged recklessness, but also that you were driving under the influence of methylamphetamine to such an extent as to be incapable of having proper control of your car.

30 You were driving at a grossly excessive speed: 164 km/h at the time of loss of control, in an 80 km/h zone. Although you were on a wide, divided highway, with good surface coverage, it was just after 4.30pm on a weekday and in a zone where there was likely to be, and in fact was, considerable traffic.

31 On the left of the road, along the stretch where you were speeding, there were fast food outlets and a petrol station, that is, businesses themselves attracting traffic and cars turning into and out of the premises.

32 You were not only impaired by methylamphetamine when you were driving, but were a long term user of it from what I have been told and you knew its effect on you. I have already referred to what Dr Odell said about the description of the driving and its consistency with the known effects of methylamphetamine on driving behaviour.

33 Upon being charged, you were remanded in custody and you have remained in custody ever since, that is for nearly 18 months. You have sought and received psychiatric assessment and treatment by Justice Health since your remand and you have been assessed by the psychiatrist, Dr Adam Deacon, who has had access to the Justice Health records and to records from Barwon Health.

34 It is clear from the information provided to him, from those records and the information volunteered by you that you have been a long term amphetamine and methamphetamine user and that you have, in the past, including in the recent past, experienced periods of paranoia and psychosis. The Barwon Health records revealed that, in 2016, and again in the weeks immediately before the collision in July 2018, that you had sought psychiatric treatment because of paranoid and delusional beliefs which appear to be related, at least in part, to your methamphetamine use.

35 In his report, Dr Deacon concluded you were acutely psychotic at the time of the collision and in a state which directly correlated with your persistent methamphetamine use.

36 It is no mitigator that you were in an acutely psychotic state at the time, because it was drug induced or at least directly correlated to your drug use. The evidence suggests you were aware of the correlation between the psychosis or paranoia and methamphetamine use.

37 You have given Dr Deacon varying accounts of your methamphetamine use in the days and weeks leading up to the collision. Given the results from the blood test taken post-collision, the most likely version is that you had been using on that day and in the days leading up to that.

38 There is no suggestion you were unaware of the effect of methamphetamine on you and its connection to your persecutory and delusional beliefs that you were being chased, which you gave as the explanation for your manner of driving once you left Supercheap Auto. I noted that you did not give any explanation that you had been chased or feared that you were being chased on the drive from Ardeer back to Geelong although your driving was similar, and that is something also to take into account.

39 To choose to drive in circumstances where you were subject to persecutory or delusional beliefs of you being chased is, in my view, a factor that actually adds to the seriousness of the offending. If true, it adds to the factors placing the driving in at least mid-range of seriousness. This characterisation takes into account not just the objective factors but those subjective factors relating to your drug use and your knowledge of its correlation to the beliefs and psychosis that had led you in the weeks beforehand to seek psychiatric assistance.

40 I note there is an absence of some factors often seen in cases that are described as being in the higher level of seriousness of offending. You had a full drivers licence. Although you had, between the late 90's and 2005, amassed a small number of recorded speeding or other traffic infringements, and in 2005, had your licence suspended for a period of a month for speeding, it would appear that all of your traffic infringements were of a lower level of gravity and were dealt with by traffic infringement notices. They were not of sufficient gravity to require you to face a court. There has only been one period of licence suspension, a mandatory one, as the detected speed was over 30 kilometres but under 35 kilometres of the speed limit. The period of suspension was for the minimum one month. You do not have, as is often seen in cases of this sort, a shocking history of flouting road rules, driving whilst suspended or driving whilst disqualified and there is no history of speeding since 2005.

41 Turning then to matters personal to you which bear on the assessment of the seriousness of the offending, the appropriate overall sentence, your moral culpability and on the weight to be given to general deterrence, specific deterrence, denunciation, your prospects for rehabilitation, protection of the community and just punishment, I note the following.

42 You were 44 at the time of the collision and you are now 45. You had by all accounts a difficult and disadvantaged childhood. Although you appear to have maintained a loving relationship with your mother, who has been here at court today and who I am told you have spoken to almost daily since your remand and has visited you regularly whilst in custody, your childhood was marred by a violent and alcohol abusing father and a violent and alcohol abusing stepfather after that.

43 Before your parents separated, the family moved a lot because your father was a shearer, and money was not plentiful. Your schooling was disrupted, not only because of the moves associated with your father's work but, after the separation, with moves related to instability in life generally. You had difficulties in establishing a safe relationship with your stepfather. You moved between living with your father and your stepfather. Neither option was desirable.

44 You left school relatively early, at Year 9. Despite the disadvantages of your background and early school leaving, you have nonetheless managed to achieve generally a law-abiding and normal life. You have a history of a long-term stable relationship and, although that came to an end some years ago, that partner, who is the mother of your three younger children, continues to have a clearly close and respectful relationship with you. She has written a letter of support for you, has been at court today supporting you, has continued to visit you and, most importantly, has made sure your youngest son, who is only 11, is able to visit you regularly, taking him on that long trip from here to Fulham.

45 You also have a daughter from an earlier relationship. She herself has just become a mother and you have just, whilst in custody, become a grandfather. You may not have been able to have that contact with the grandchild you might otherwise have had but you appear to have had a close and continuing relationship with all four children. All of them remain supportive of you.

46 You have also had a good history of employment despite the fact you left school early and you do not appear to have acquired any post-schooling vocational skills. Most of your work has been of a labouring sort but in a variety of fields, general labouring, shearing, concreting and the like. As often happens with people who are engaged mainly in labouring and heavy, physical work, you have had a number of injuries. I am told that an injury in 2016 meant that you have not worked since then. That coincided with an escalation in what had already been quite a long term history of substance abuse including methylamphetamine abuse. It appears to be that escalation in your drug use that led to the disintegration of the relationship with your former partner. Despite that, clearly all of them see the good in you and they have continued to support you.

47 You have no relevant criminal history. You have one old and completely unrelated prior offence, which means, save to say that this is not your first time before a court, otherwise has no adverse bearing on the assessment of your moral culpability or your prospects for rehabilitation.

48 You have used the time since being remanded in custody not only to continue to carry the burden of guilt and responsibility but to do what you can, I accept, to try and make amends. You have acknowledged the role that methamphetamine abuse played in the offending and you have made, I am told, a determination to stop using and to make sure that you are completely clean, sober and able to withstand temptation by the time you are ultimately released.

49 I have been provided with a bundle of urine analysis screens that show that, in fact, you have not returned up any positive screens since incarceration. I am also told that you are working as a billet. That means that you must have returned clean screens and must have behaved in custody. You have done one course, an 'Ice and You' course whilst in custody. I am told that the fact that you have not done any other course is because of the unavailability of them to you, and remandees generally at Fulham.

50 But you have acknowledged that you must serve a term of imprisonment for this and have decided to start serving it as soon as you were discharged from hospital, and to make the best of your time in custody. That, together with the continued family support, the employment history, and the absence of any relevant prior convictions or relevant aggravating driving convictions all count in your favour. Your prospects for rehabilitation are good.

51 If you are able to remain drug-free upon your release, they would go from good to very good and I accept that part of your good prospects for rehabilitation and the unlikelihood of your offending again are due, too, to guilt that you bear for causing Mr Bloom's death.

52 I was particularly taken by the letter that you wrote that was provided to me.

It was not about you, it was about Mr Bloom and your grief and sorrow for him and for his family. Not everybody has the capacity when they have done something as you have to look beyond themselves and to express in as sensitive a way as you did the grief and remorse for what this has done. I am taken by the sensitive way you have approached your sister and her children, waiting for them to decide if, and when they are ready to have contact with you. Again, that shows somebody who is truly accepting responsibility and must have done considerable soul searching. Again, that counts well in your favour and means that your remorse is genuine and adds to the assessment of the strength of your prospects for rehabilitation.

53 Consistently with that, you pleaded guilty at a very early stage and you are clearly entitled to a significant reduction in the sentence otherwise appropriate by way of that and as adding to the assessment of the genuineness of your remorse and therefore your prospects for rehabilitation.

54 As I indicated in the course of the plea, I do not consider that the sentence needed to have any particular weighting for specific deterrence. If what has happened is not sufficient to deter you, then no amount of punishment imposed by the court is going to do so but I accept that the effect and the consequence of what you have done has had that deterrent effect upon you.

55 There is nothing in your personal circumstances to operate to reduce the weight that otherwise would be appropriate to give to general deterrence. Although

Dr Deacon's report and the other material indicates a diagnosis of likely drug induced psychosis at the time of the offending (although with a differentiated diagnosis of underlying, undiagnosed schizophrenia), given the acknowledged role of the methamphetamine in your impaired judgment, that is not a mitigator and does not in any way operate to reduce the moral culpability that might otherwise attach to your behaviour or reduce therefore the weight to be given to general deterrence.

56 I accept however that, by reason of the impact on you of what you have done and your appreciation of the likely sentence range, that your mental state is such that imprisonment will be more burdensome for you. I reduce the sentence to be the appropriate sentence by reason of that.

57 In all of those circumstances too, it is clear too that the protection of the community is not a factor which needs to be given additional weight in sentencing.

58 In the course of what I have said, I have clearly drawn not only on the matters put by Ms Karapanagiotidis in her careful and well-directed plea, but also on the matters coming from the testimonials from your mother, Ms Peso, from

Ms White, your former partner, from your sister, Lisa, which was particularly touching, and from your daughter.

59 I have referred to your history of methamphetamine use and why it is not a mitigating factor in terms of reducing your moral culpability for the offending in a way that would enliven the first four limbs of Verdins.[1] I do however accept the submission made by Ms Karapanagiotidis that the disadvantaged and deprived childhood that you suffered can be seen to be a significant explanation for your embarking at a young age upon a path of substance abuse. Therefore, to some extent, I do mitigate the weight to be given to general deterrence. You had a greater vulnerability to substance abuse in young adulthood because of the deprivation in your childhood. That however does not reduce your moral culpability in respect of the driving itself.

60 I have balanced all those matters as best I can. I am mindful that I must not embark upon a two-stage process, looking at the objective seriousness using the standard sentence as a benchmark and then moving up or down from that, I have used it, like the maximum, as a yardstick. I have looked at those features that add to the seriousness of the offending and the matters that are personal to you that mitigate the sentence otherwise to be imposed, I fix a sentence that I consider in all the circumstances takes into account all of those matters which I am required to consider and weighed as best as I can what I am required to do now by reason of the standard sentencing provisions as they have been explained in Brown. I have done my best to identify and consider what I consider to be the relevant factors in assessing the sentence including my assessment as to the seriousness of the nature of the offending, your degree of culpability, your plea of guilty, your remorse and those personal factors in coming to the conclusions as to what I consider, in that exercise of instinctive synthesis, is the appropriate sentence.

61 Daniel Callick, on the charge of culpable driving to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of eight years and six months and I fix the period of six years as the time that you are to serve before being eligible for parole. On my calculation, that is just over 70 percent of the sentence of eight years and six months. So that should be in compliance with s 11A of the Sentencing Act.

62 I declare that you have spent 506 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

63 I declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 11 years and I would have fixed a period of nine years as the time you would have had to have served before being eligible for parole.

64 All licences held by you are cancelled and you are disqualified from driving for a period of 18 months. That period of disqualification is to take effect from the day of your release.

66 MS KARAPANAGIOTIDIS: As your Honour pleases.

67 HER HONOUR: Any further orders required to be made?

69 HER HONOUR: Form of pronouncing the sentence correct?

71 HER HONOUR: Thank you. Can you remove Mr Callick please?

72 Now, Ms Karapanagiotidis, I suspect Corrections will want to take him away very quickly.

73 MS KARAPANAGIOTIDIS: Yes, I will go down there very quickly.

75 MS KARAPANAGIOTIDIS: Thank you, Your Honour.

76 HER HONOUR: I just wanted to thank you for the submissions and also to say, Ms Harper will tell you, it has been a constant refrain during this circuit that the psychological reports and the material supporting them has been hugely deficient, that has not been the case this time. Dr Deacon's reports were excellent, the material that he was provided, source material was exactly what should have been provided and the way in which they were dealt with was of enormous assistance to me.

77 MS KARAPANAGIOTIDIS: Thank you, Your Honour.

78 HER HONOUR: So thank you for that and for the way that you dealt with the Justice Health records rather than dumping them on me in whole was much appreciated.

[1] R v Verdins; Buckley; Vo [2007] VSCA 102; (2007) 16 VR 269.