DPP v Elliott [2017] VCC 282

Mr Elliott, as he was coming up the road, finished approximately 12 m south of the "give way" sign.

9. Most importantly, Whites Road was an unmade gravel surface road. Cuthberts Road was a bituminised road. Both roads have an applicable speed limit of 100 kph. The weather was fine. From the end of the tree line, Mr Elliott's view to the west was clear, on the evidence, for at least 270 m. There was, I find on the evidence, no issue as to visibility.
10. This accident took place at 4.30 pm on 13 April, which was a Monday. The weather, as I have said, was fine and there was no issue in regard to the mechanical condition of either vehicle.
11. Mr Elliott's statement to the police cannot be disputed in the circumstances, there being no eye witnesses. There is no reason why his evidence should not be accepted by this Court. He looked left, he said, right and left again after he slowed as he approached the intersection. Clearly, he missed seeing

Mr Wilson's bike approaching the intersection. The bike's headlight was on.

12. Mr Elliott gives a description of the precise circumstances of which I have just summarised and his answers in the record of interview to questions, 225, 378, 280 and 391 to 411.
13. Assuming Mr Wilson was travelling at the speed limit, and taking into account the expert evidence, then Mr Wilson, and his bike, must have been within approximately 100 m of the intersection at the time Mr Elliott was looking west.
14. Mr Elliott, having gone through the process, that I have just referred to, and having observed no traffic, accelerated through the intersection. It is to be pointed out that at no stage, that is even when in the intersection, did he see the bike. According to his statement, he knew nothing about the bike until suddenly he heard/felt the collision.
15. In the police traffic recreation by Jenelle Mehegan, the range of speeds given at impact of Mr Elliott's car was between 54.5 kph and 80.3 kph. Those calculations are set out in the depositions at p.57. The speed was therefore averaged for the purpose of calculation to 69 kph. Using such speed, it was calculated that Mr Elliott passed the "give way" sign at 41 kph. I am not quite certain about the maths in this regard, but clearly, the view of the expert was that at that speed, the car could have stopped, had it braked harder at the give way sign. As I say, I have not analysed that closely, but I accept the evidence before the Court.
16. There is no dispute between counsel, as put to me, that Mr Elliott's moral culpability should be assessed in the low range. The dispute is that the prosecution submits that culpability, albeit low, is not so low as to rebut the need, given the seriousness of this crime and its consequences, for a term of immediate imprisonment. In that regard, I refer to Stephens v R [2016] VSCA 121, which was referred to by both counsel.
17. The Director accepts that many of the aggravating facts, as detailed in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 are not present here. This was referred to by Mr Casement. In particular, insofar as that reference is concerned, items (iii) through to (xi) are not present, being matters that often accompany these crimes.
18. However, as pointed out in Stephens, both the dangerousness and the moral culpability in any particular matter falls to be assessed by reference to the actual conduct and circumstances relevant to the specific case, including the circumstances of the offender (see [26] to [27] of Stephens). Implicitly, such determination must be assessed within the spectrum of offending making up the charge (see [29] of Stephens and the High Court case of Ibbs v R [1987] HCA 46; (1987) 163 CLR 447, 452).
19. I have considered the prosecutor's submissions on this aspect, Exhibit G, and

Mr Casement's submission, Exhibit 1. I should specifically say that during the hearing, I advised the learned prosecutor, and I maintain the view, that I did not think that Mr Elliott's driving was, in any way, aggravated by his history; that is, his breaches of the road traffic laws, or from the fact that he was a probationary driver at the time.

20. I should also say that I reject the implicit suggestion in Mr Casement's submission that either the trees to the left or the sun obscured Mr Elliott's view to the west. The reasons for that are: (1) That Mr Elliott did not, in any way, claim that this was so in his record of interview or in any statements made by him. (2) He was wearing sunglasses and gave no indication in such statement of any glare problems. (3) Given the physical makeup of the intersection, he was not looking directly into the sun.
21. I say this despite the evidence of the two independent witnesses, not to the accident, but to the circumstances. Mr McGrath who, in fact, was proceeding west and to use his words, "Had a little bit of difficulty with the sun", page 5 of the depositions, and Mr Harper on p.8, who did remark that there were issues of glare.
22. I also reject the suggestion that looking for the prospective client's address, which Mr Elliott has indicated he was doing would have distracted him. If one looks at Photograph 1, 2, 3 and 4, which is essentially the aerial photographs, as well, a statement of Mr Elliott, clearly there was a significant distance between the last home that he would have looked at, as he said he was looking to his right and the intersection.
23. There was indeed significant distance and time for him to have appropriately focussed on his obligation when approaching this intersection. In that regard, I refer to his specific answer to question 365, in the record of interview.
24. Further, in paragraph 7.10 of his submission, Mr Casement submitted to the Court that the fact that Mr Elliott placed himself in this position of danger is a matter that could be taken into account by the Court. Clearly, that is true, in the sense that we all understand no one knowingly places themselves in a position of danger. But I find that fact does not, in any way, impact on his culpability. We are, in these type of cases, of course, talking about a circumstance that could never be said to be intentional, but which has arisen because of the admitted dangerous driving of Mr Elliott.
25. Considering all the factors, the submissions put to me and the circumstances of this fatal collision, I find that the culpability is as submitted by the Director, at the higher end of the low scale. I do this for the following reasons:

(1) To quote Mr Casement at paragraph 7.8 of his submission, "[Mr Elliott's] vision of the road way was self-evidently tragically inadequate," despite the evidence as to what he did beforehand. He missed, apparently upon looking to his left twice, on an unobstructed flat terrain, a motorbike proceeding towards the intersection, with its headlights on.

(2) While travelling on unmade roads in the country, one has to be particular diligent when crossing an intersecting bitumen surfaced road. This is a vital safety step when driving on country roads, and traversing between an unmade road and a bitumen road.

(3) While time was obviously limited, I find, this was not what is described by Mr Casement as momentary inattention. From the time he passed the trees, he should have observed both portions of the road and made diligent observation, hence the "give way" sign. Indeed, as he said in answer to question 189, in the record of interview, he slowed down to make such observations, as he was approaching the main road from the gravel road. Albeit that he had not been in the area apparently for a period of two years, diligence, as I have said, in such circumstances is mandatory.

(4) Clearly, such culpability subjects the public, driving on Cuthberts Road or anyone who was on Cuthberts Road to a grave risk of injury and death. The potential harm upon the materialisation of such risk was catastrophic, demonstrated here by the death of Mr Wilson.

1. This tragic failure to see Mr Wilson led to his death, and the devastation to his wife, as expressed by her in Exhibit E, and his family as demonstrated by the victim impact statement from his brother, Exhibit F.
2. Of course, the sentencing synthesis does not stop with an objective assessment of culpability. This Court has to take into account, as part of the sentencing process, all relevant subjective factors relevant to Mr Elliott, and they were, if I might say so, most comprehensively put by Mr Casement.
3. While his priors are not a matter that contributed to or can be seen as aggravating in any way of these crimes, they cannot be lightly dismissed. They do not encompass, necessarily, prior bad driving, albeit that of them, there was potential for bad driving, there being two .05 offences and three speeding offences and one offence of careless driving. In particular, in one of the speeding offences the speed limit was exceeded by 40 kph.
4. However, I accept the proposition put by Mr Casement that those prior offences do not aggravate the offending here.
5. I accept that Mr Elliott is genuinely remorseful. A letter was given on the hearing of the plea to the informant, to be given to the family, the Court was apprised of that. His wife, Jessica, has tendered, as Exhibit 3, a statement in support of her husband, a portion of which talks not only of his rehabilitation, but of his distress at being involved in this accident and the consequences caused. To use his wife's words, her husband has been "devastated" by these circumstances.
6. In addition, was tendered Exhibit 2, which are the steps he has taken since this accident to seek counselling; counsellor Georgina Anderson has confirmed that he has been to counselling on several occasions.
7. Mr Elliott has come before the Court and pleaded guilty. Such, again, is an indication of his remorse, a utilitarian action taken by him. Such serves the course of justice and saves the devastated family of the victim from appearing here.
8. Mr Casement referred to the impact of this accident upon Mr Elliott and his wife's life. They have been in a relationship, at least since 2010. As Mr Casement submits the value of such is demonstrated by the change in his behaviour since that time. He has strong family support, I have referred to Exhibit 3, and further, the statement tendered, Exhibit 4, from his wife's aunty and uncle.
9. Mr Elliott has an excellent work history, described by Mr Casement as hard-working and productive. He has been in his own business since 2011 and has four employees. He has, given certain adversities that he has had to experience in that business, shown character. In particular, in 2013 and again with the recent failure of a local company called Watersun, he has had to endure losses in his business. Those matters, of course, are not unknown generally in business, but the manner in which he has handled them, clearly, brings credit to him.
10. His wife works as a child care worker and together, they have a home which has been renovated by Mr Elliott. It has a mortgage upon it and the payments for that mortgage, essentially, come from Mr Elliott's business. As has been expressed by Mr Casement, on behalf of Mr Elliott, he has grave concerns in regard to his wife, home, mortgage, employees and firm if a period of immediate imprisonment was passed upon him.
11. Mr Casement also spoke to the issue of delay. This matter has been hanging over Mr Elliott since 2010, there has been no further offending and I do, indeed, take such into account.
12. It was further submitted that he is a good candidate for rehabilitation. He is still a relatively young person. The manner in which he has conducted himself, despite his earlier failures at a younger age, but certainly the manner in which he has conducted himself since 2010, with the aid of his wife, and the manner in which he has conducted himself in business was relied upon by Mr Casement. It was submitted, he was indeed a good candidate for a sentence which promotes rehabilitation, and I think, subtly, for mercy from this Court.
13. The principles of Boulton & Ors v R [2014] VSCA 342 were relied upon. Mr Casement submitted that it was possible, in all the circumstances of this case, despite its seriousness, for a sentence to be passed, which did not encompass an immediate period of incarceration. In that regard, Mr Casement sought a community corrections report. That will be tendered formally as Exhibit H and but for the matters that I have referred to, clearly, one must take into account, the fact that that is a positive report.
14. To assist in the synthesis, I have been provided with a number of County Court decisions which I have read. I have also considered a number of cases which were referred to in submissions, DPP v Oates [2007] VSCA 59, DPP v Martinez [2008] VSCA 165 and DPP v Neethling [2009] VSCA 116.
15. In regard to such 'like' cases, it is to be remembered what the Court of Appeal said in Hudson v R [2010] VSCA 332, [29]:

"Like cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this Court. They may however be used in search of unifying principles."

1. The Court of Appeal further said in Hasan v R [2010] VSCA 352, [53]:

"In summary it may be said, therefore, that consistency in sentencing is not to be achieved by a search for the matching case or cases. It requires the placement of the sentence within the correct range. That task is a matter for objective determination, leavened only to the extent that the process of instinctive synthesis is properly employed at that stage, and by the application of the relevant principles."

1. Insofar as all of those subjective matters, relied upon by Mr Casement, the prosecution did really not dispute any of those factors however, maintained that the Court should, considering all the sentencing factors in this matter, determine that an immediate period sentence of imprisonment was necessary, and that the submission of Mr Casement, should be rejected.
2. I might say that I have had considerable disquiet about this sentence. One cannot lose sight of the fact that only in 2008, the maximum penalty for this offence was increased from five years to ten years by Parliament. Further, one has to remember the comments made by the Court of Appeal in Stephens as to the adequacy of the current sentencing practice referred to, in particular at [37] to [41].
3. Clearly, offences of this type require consideration, apart from the factors that I have referred to, which are personal to Mr Elliott, of general deterrence, specific deterrence and, of course, punishment.
4. I also note in Neethling at [29], albeit that it related then to an offence with a maximum penalty of five years, that the Court said, "...a non-custodial sentence for this offence should be seen as exceptional." That does not mean that there has to be, necessarily, exceptional circumstances as we understand them in the law. However, the proposition is clear.
5. The principle of parsimony is obviously very important here, as are the other relevant sentencing factors detailed in s.5(2) of the Sentencing Act 1991 (Vic).
6. I am not immune, and nor could one be, to appreciating the concerns that

Mr Elliott has as to the effect of imprisonment upon his family, his workers and their families. However, while I have sympathy for such concerns, such in law, clearly does not amount to an exceptional circumstances. Steps can and no doubt will be taken to ameliorate the effects of the sentence I pronounce.

7. It is, unfortunately, my conclusion, after considering all of the matters, in particular, the submission of Mr Casement, that I accept that the submission of the Director, that there must be a period of immediate imprisonment imposed. I intend to exercise leniency and indeed, mercy generally but specifically in regard to the minimum period that I impose.
8. Mr Elliott, you will be convicted of this offence. For such offence, you will be sentenced to period of imprisonment of two and half years. I order that the period that you must serve before being eligible for parole is a period of eight months.
9. In regard to the P plate offence, I impose a sentence of one penalty unit being, at the time, $147.61 and I grant a stay of 12 months for the payment of that figure.
10. Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, I am required by Parliament to indicate what sentence I would have imposed upon you. Clearly, there are many factors apart form that. However, to the best of my ability, I can indicate to you that the benefit of pleading guilty is that you receive a sentence in this matter of two and half years with a minimum of eight months and not what I would otherwise have imposed of four years with a minimum of three years.
11. Pursuant to the provisions of s.89 of the Sentencing Act 1991 (Vic), I am required to cancel Mr Elliott's licence if he has one, I think he has a probationary, and order that he not be relicensed for a period of 18 months.
12. As I indicated in the plea, I do not intend to make that order under 464ZF as I am quite sure that having served the period of imprisonment by way of minimum, we will never have to worry about having Mr Elliott in Court again.
13. Yes, Mr Elliott, it gives a Judge no pleasure to sentence anyone to gaol and, as I say, I have had considerable disquiet in having to sentence you to gaol. Unfortunately, the totality of the circumstances in regard to this crime is such that I have had to make that decision. However, I wish you well and I am certain when you get out that you will ensure that you never come before Court again. Yes, thank you.