DPP v Grayden [2020] VCC 279

6. At some stage Mr Weatherall left the premises alone and later returned. At approximately 5.15 am on 8 April 2019, you and Mr Weatherall left the Cowes residence with you driving and Mr Weatherall in the front passenger seat of what was his black Nissan Navara ute. You drove in a northerly direction on Phillip Island Road and were next observed by a number of other motorists between 5.40 am and 5.50 am. The observations of these motorists are detailed in the Crown opening document, but variously described the black Nissan Navara as speeding. At 5.50 am Mr Weatherall's vehicle, still driven by you, collided with a cypress tree on Phillip Island Road in Cowes. A fixed yellow roundabout advisory sign was located approximately 200 metres prior to the roundabout and was visible to northbound traffic.
7. At the point of the collision, Phillip Island Road is posted with a 60 kilometre per hour zone speed sign, some 220 metres prior to the roundabout for northbound traffic. You had not heeded those warnings, entered the intersection of Ventnor Road at a fast rate of speed, failed to negotiate the roundabout, and lost control of the vehicle, commencing a clockwise rotation. It was the front passenger side of the utility, where Mr Weatherall was seated, which collided with a large cypress tree located on the nature strip on a northwest corner of that intersection. At the time of this collision Mr Weatherall was unrestrained. It was clearly your responsibility as the driver to ensure that he was wearing his seatbelt. Mr Weatherall died at the scene from multiple injuries. He was located face-down on the back seat.
8. At the time of the collision I am told conditions were clear, the road was dry and street lights were operating. There was nothing about the vehicle itself which contributed to the collision occurring. I note that photographs of the accident scene were tendered.
9. In terms of the accident, police attended at approximately 6.14 am on 8 April 2019 and commenced their accident investigation. Detective Sergeant Robert Hay, attached to the Collision Reconstruction Mechanical Investigation Unit, examined the scene. He calculated that the vehicle was travelling at approximately 92 to 97 kilometres per hour at the time of the collision with the tree, which was located in the 60 kilometre zone. He describes the impact with the tree as being significant and states that little speed would have been lost in cornering or in the impact with a sign that was also knocked down before the tree was impacted.
10. The charge of culpable driving, as put by the Crown, is based on high speed in circumstances where you had ingested drugs and that you failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances. The particulars of your negligence is your speed.
11. Accepting that there are worse examples, as there almost always is, your driving was at a grossly excessive speed in the circumstances. I do not take into account that you had been ingesting drugs or alcohol in the time prior, given there is no evidence before me as to any impact that may have had on your driving. Either way, you placed other road users in peril at, and in the lead-up to, the intersection, which was effectively a crossroad with both persons and other road users in proximity. Given the charge, you clearly placed your passenger, Mr Weatherall, in peril.
12. You ignored warning signs of the roundabout and the speed limit in a situation which essentially appears to be an example of showing off and in a pursuit of what you described to police as "fun". This, in my view, elevates the objective gravity of your offence.
13. Indeed, I find the objective gravity of the offence of culpable driving to be high. You were familiar with the area, having previously resided in Cowes. You were driving at high speed in a vehicle which was unfamiliar to you. You have a relevant prior history, which would have informed your knowledge and adds to your moral culpability, which I also assess as high.
14. To make things worse, you left the scene without providing any assistance to Mr Weatherall. You say that you believed he was deceased. This is simply not the point. The penalties for this offence increased fivefold in 2005, reflective of community concerns, and are intended to deter people from fleeing the scene of an accident in which they were involved. Your explanation of being dazed and panicked carries no weight. Indeed, you showed callous disregard for your newfound friend in circumstances when you were likely to be well aware of the responsibility you carried for what had occurred.
15. Mathew Knell was working nearby and heard a large bang and saw a man running west along Ventnor Road. He yelled out, asking if anyone else was in the car. The man he observed was you and you responded there was one person in the car, before continuing to run west along Ventnor Road. Another motorist, Ross Holmberg, had seen the collision when he passed the roundabout and observed a male, again you, running along Ventnor Road. He followed you and asked if you were okay. You replied that you were and asked for a lift home. You told him that you had not been drinking but intended to do so when you did get home. To his observations you smelt of alcohol and, when asked, you told Holmberg that there was another person in the car. Not surprisingly, he told you that you had to return but you replied, "No, just take me home, don't trap me". You then pulled the handbrake on the moving vehicle and got out of the vehicle, walking away.
16. Your actions on leaving the scene were cowardly and clearly borne of nothing other than your own self-interest at that point in time.
17. It is accurate to describe each of the offences on the indictment as serious examples of their type.
18. You returned to the Cowes premises you had been at earlier. When you arrived you were on a pushbike and wearing different clothes. You told Stephanie Powell that you had dropped Mr Weatherall around the corner.
19. At some later point in the morning, Tracey Bowes became aware there had been an accident and she told you that she thought Mr Weatherall must have been the driver and had left the scene. She was concerned that he would return to her house, to which you responded, "If he does I'll fuckin' kill him". Certainly at this point you were still failing to take responsibility for your actions.
20. When police attended at the Cowes premises you hid in the bedroom. In your absence the police told Tracey Bowes that Mr Weatherall had died. Once they left, you asked to be driven past the crash scene and to look for the damaged vehicle in a car yard. You remained at Ms Bowes' premises until

10 April 2019, when she contacted police. They attended and you were arrested and then interviewed.

21. You explained in that interview that upon returning to Cowes after your release from gaol the week prior to your offending, that you "stupidly got on, got on the bloody ice, got on the marijuana, got on the MD and just used my sort of birthday as an excuse to have a bit of a party, party time". You explained that you met a lovely man with a nice black Navara and that you thought you would go out when there were no cars on the road and "have a bit of fun".
22. Your counsel submits that there is relevance in Mr Weatherall's conduct in the exercise of the sentencing discretion such as to reduce your level of moral culpability. He submits that Mr Weatherall was an active party in, firstly, your decision to drive and, secondly, in your decision to drive in the way that you did.
23. I was referred to and refer to the decision of Spanjol v The Queen,

55 VR 350, in which the Court of Appeal concluded as follows in relation to a charge of negligently causing serious injury:

"(1) In a case of negligently causing serious injury by driving, the finding of guilt (or plea of guilty) establishes that the offender's driving was criminally negligent and that the negligent driving caused the victim's serious injury.

(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.

(3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.

(4) As to the causal link with the serious injury, the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the serious injury.

(5) The language of 'complicity' should be avoided in this context. 'Complicity' is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.

(6) Instead, the language of 'reduced responsibility' should be used to describe the first kind of qualification and the language of 'other contributing causes' to describe the second kind of qualification.[1]

1. The decision of Guseli v The Queen [2019] VSCA 29 at [62] confirms that these principles (those in Spanjol) apply to the offence of culpable driving causing death.
2. I understand the defence submissions to relate to the suggestion that Mr Weatherall was an external circumstance partly responsible for your manner of driving, rather than being a causal link outside your control which was also a material cause for his death. I did ask for further submissions from both parties in relation to this argument and, having received them in both written and oral form, I have taken the contents of those submissions into account.
3. Whilst in no way doing the full extent of your counsel's submissions any real justice, he draws my attention to the following:
   • Firstly, that the deceased was estimated to have consumed two cans of Jack Daniel's bourbon around 5 pm, the day prior and in your company;
   • Secondly, that at one stage the deceased left what I have described as the Cowes premises and returned at around 8.30 to 9 pm appearing angry, stressed and distraught;
   • Thirdly, that around 11.30 pm, the deceased again left the Cowes premises, returning around 1 am to 1.30 am, at which time he presented as upset and agitated;
   • Fourthly, that you and the deceased appeared to get on well, bonding over a mutual interest in cars, and you were observed to both smoke ice by Tracey Bowes;
   • Fifthly, that you and the deceased asked Ms Bowes what time it got light, to which she replied, "Around 5.30 to 6 am";
   • Sixthly, that you then suggested, "Why don't we go drifting?", which Ms Bowes reported seemed to calm Mr Weatherall; and
   • Finally, that you and the deceased left the premises when it was close to being light.
4. In relation to this evidence it is suggested that the deceased was presenting as reckless the night prior and therefore more likely to engage in reckless driving. Further, it was submitted that you and Mr Weatherall had bonded over an interest in vehicles, and indeed he had permitted you to use his Nissan Navara in circumstances that he was aware you had been drinking and using drugs and had talked of going "drifting". I understand the term "drifting" to be a driving technique where the driver intentionally oversteers, with loss of traction, whilst maintaining control and driving through the entirety of a corner. Shortly after this comment about drifting, Mr Weatherall permitted you to drive his vehicle.
5. My attention is also drawn to your record of interview, in which you referred variously to the following:
   • Firstly, to have "stupidly got on drugs" and used your birthday as an excuse to have a bit of "party time";
   • Secondly, that the deceased offered to let you drive his car;
   • Thirdly, "We sort of thought we'll go out when there's no cars on the road and we'll have a bit of fun, so we did and he - he - he said to me, you know, 'Would you like to have a drive?' And I said, 'No, no, no, I shouldn't, I shouldn't', and - and he said, 'Well, you know, just have a drive, have a drive', and I did. I really wanted to, so I did";
   • Fourthly, that when you went off driving, you asked the deceased, "Is this okay? Is this okay?", to which he responded, "Yeah, it's awesome. Keep going, keep going, it's awesome"';
   • That it was, in effect, your combined goal to have a bit of fun when no one was on the road, going as fast as you could;
   • That you said to Mr Weatherall, "You tell me if I'm pushing your car too hard 'cause it's your car", to which you attribute him replying, "No, no, go for it, mate. Let's go, let's go, let's go".
6. In assessing these submissions it can only be in the context of how the Crown case is put in relation to the culpable driving, and that relates to your speed. It is submitted that your record of interview some three days later was candid. Further, it is submitted that the comments which you attribute to the deceased encouraged your driving and your driving was reactive to the encouragement given. It is submitted that Mr Weatherall played an active role in the manner in which you were driving and that, but for him permitting you to use his vehicle in the manner in which it was, it is difficult to see that this tragedy would have occurred. It is submitted that, if it is accepted that Mr Weatherall was partly responsible for your manner of driving, then this may be of some, not great, weight in reducing your moral culpability.
7. In the alternative, the Crown submit that you should not be any less morally culpable or have any reduced responsibility because you had another person encouraging your actions. At best, they say, the evidence of Mr Weatherall's encouragement or praise of your driving, if accepted, is to be treated only as an absence of circumstance of aggravation.
8. There is no challenge by the Crown to the observations made by witnesses in the lead-up to your decision to drive. There is no real challenge to the account given by you to police in your record of interview. Accepting that position, I find that the evidence available in the period preceding your decision to drive is of limited, if any, assistance to your decision-making some 35 minutes later at or about 5.50 am on 8 April 2019. You chose to accept the key from

Mr Weatherall in circumstances where you knew you should not be driving.

9. The observations by the road users in the 10 to 15 minutes prior to the collision is the next available evidence and does not assist with any contribution made to your decision-making at the relevant time which could be attributed to

Mr Weatherall, only that the Nissan Navara was driving at speed.

10. I place your broad canvassing in your record of interview of any discussion between you and Mr Weatherall in a similar category. It is only of little assistance in determining what I am asked to determine.
11. You were observed to leave the Cowes premises at approximately 5.15 am and the accident occurs at approximately 5.50 am on 8 April 2019. You do not attribute any conversation between yourself and Mr Weatherall proximate to the offence of culpable driving. Be that as it may, Mr Weatherall was someone barely known to you. At best he gave you an internal freedom to drive how you indicated you wanted to do so in any event, in circumstances of celebrating your release from gaol and your birthday. You have not given evidence.
12. It was, in my view, your choice to drive the Nissan Navara, and it was your choice to drive it in circumstances of such gross negligence that Mr Weatherall was killed. Indeed, whilst you should not have been driving in the first place, given you were disqualified from doing so, you, in any regard, have responsibility when driving to ignore encouragement from others to drive in an irresponsible manner.
13. My assessment of your moral culpability remains unaffected by the arguments raised on your behalf. Even if I had accepted that Mr Weatherall was partly responsible for your driving and the manner of driving, any weight in reducing your moral culpability would have been minimal. It is not lost on me in making that finding that you have a relevant prior history, to which I will later refer.
14. As I have referenced, you had been released from custody only a matter of days at the time of this offending and were to have commenced a Community Corrections Order which was designed to facilitate your treatment and rehabilitation. Your offending is in breach of that order and is an aggravating circumstance to your offending - referencing both charges on the indictment and the driving while suspended charge. Your driver's licence was suspended at the relevant time but is subject to a separate charge and will be treated accordingly.
15. As I have already referred, 8 April 2019 was also your birthday and it is apparent that you had intentions to celebrate that fact and your release from custody. That decision has resulted in what can only be described as the most tragic of consequences.
16. Three victim impact statements have been tendered. These have been received from Mr Weatherall's sister, his wife and his mother. The purpose of the victim impact statements is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them. I am obliged to, and I do, take the contents of those victim impact statements into account.
17. Mr Weatherall's sister, Shannon, and mother, Julianne, read their victim impact statements to the court. The other was read by me. Each of those persons has lost someone important to them and essential to their daily lives. Three children are now without a father. I am told that you have been made familiar with the contents of each of these victim impact statements. It could not be lost upon you that the impact of your offending on each and any one of those persons has been both profound and will undoubtedly be long lasting.
18. I do take into account matters personal to you. These include that you are presently aged 34 years and were born to parents Wendy and Ross Grayden. I am told your mother works in aged care and your father is now deceased but worked as a boilermaker. You are an only child. Your parents separated when you were young. You instruct that your father was remanded when you were young for murder but was ultimately acquitted, having successfully argued his actions were in self-defence. You had little contact with your father whilst growing up.
19. In your early years your mother presented as paranoid and frightened, as she perceived she was under threat from those associated with the person your father was responsible for killing. She developed a number of psychological conditions, including post-traumatic stress disorder and depression. As a result of her beliefs you moved frequently until commencing primary school.
20. It would appear you had a good education. Indeed, you completed Year 12 at Camberwell High School. You then commenced and completed a Diploma of Building and Construction Management at Box Hill TAFE. You obtained employment with Hallmark Constructions, where you worked as a building supervisor for a period of some eight years.
21. In 2008 you married and had four children: Lucy, born in 2012; Bonnie, born in 2014; Bradley, born in 2016; and Casey, born in 2018. You were certainly fortunate at that time of your life to have had a good education, good employment and good family. I am told you were hardworking, industrious and family orientated.
22. In your later years you re-established your relationship with your father. Shortly after this point in time, your father became unwell and passed away. You took leave from your employer and began using amphetamine and then methylamphetamine. Ultimately in this context you lost your employment and the support of your marriage. Indeed, you are currently the respondent to a family violence intervention order where the affected family member is your wife. You instruct you have not had contact with your children since

October of 2018. At the time of your offending you resided with your mother in Burwood but were otherwise couch surfing, having been released from gaol the week prior. In essence, you say that your use of drugs has destroyed your life. It has certainly led to your involvement in the criminal justice system.

23. You have admitted a prior criminal record of some four court appearances. In addition, there are some traffic infringement notices, notably in 2008 for exceeding the speed limit by 40 kilometres or more but less than 45 kilometres, and in 2014 for exceeding the speed limit by 25 kilometres or more.
24. In terms of court appearances, on 19 August 2010 you appeared at Ringwood Magistrates' Court in relation to charges of driving while suspended and driving an unregistered motor vehicle, and were fined the amount of $600. You next appeared in the Court of Petty Sessions in Goulburn on 3 February 2015 for drug driving offences and were also fined. Later that year you appeared at the Korumburra Magistrates' Court for a range of offences which included reckless conduct endangering life; recklessly causing injury and other offences involving violence, damaging property, dishonesty offences and driving offences, including drive in a manner dangerous, exceeding the speed limit by

35 kilometres but less than 45 kilometres, and one of driving while suspended.

25. You were imprisoned for three months and were also required to complete a Community Corrections Order of 12 months duration, which did include various treatment conditions. You appealed this decision to the Latrobe Valley County Court and on 16 February 2016 your appeal was allowed. The order of the Magistrates' Court was set aside and instead you were ordered to serve 43 days imprisonment, which was reckoned as having already been served by way of pre-sentence detention. In addition, you were placed on a Corrections order of 18 months duration with treatment conditions.
26. Your next appearance was at the Wonthaggi Magistrates' Court on 29 March 2019 in relation to a variety of offences, which included offences of violence, failures to answer bail, weapons possession, drug possession and driving offences which again included driving while suspended. That court convicted you and sentenced you to 163 days imprisonment. Upon release from that imprisonment, which was reckoned as having already been served, you were released on the Community Corrections Order we have already discussed for a period of 18 months. That order also included treatment conditions.
27. It is clear from this chronology that you had been released from custody only a matter of days at the time of the offences before me. As previously noted, your offending was in breach of the Corrections Order that had been imposed by the Wonthaggi Magistrates' Court and had been directed at your treatment and rehabilitation.
28. Your prior history is relevant in the sense that you certainly have driving related offending. You have been dealt with for exceeding the speed limit on a number of occasions and for driving in a manner dangerous and whilst your authorisation was suspended. You are well acquainted with the risks of driving at excessive speed and with the punishments imposed by the court system. In my view, this further informs your level of moral culpability for the charge of culpable driving.
29. Your criminal history also indicates there has been limited sanction in, or assistance gained, from orders which have been designed to both punish, treat and rehabilitate. This is relevant to the assessment that needs to be given to the weight which should attach to specific deterrence, that is, putting you off further offending, denunciation and the need to protect the community from you, as well as just punishment. In your case, weight does need to attach to each of these factors. General deterrence obviously has an essential role to play. Given the serious ramifications associated with such driving and leaving the scene of an accident, others must be dissuaded from following a similar path.
30. There is a concession that, after negotiations between your legal representatives and the Office of Public Prosecutions, you entered your plea of guilty at an early stage. I accept that is so. Your plea of guilty has utilitarian value, in that it has saved the court the time and expense of contested proceedings. More importantly, it has saved witnesses the trauma of having to give evidence and relive the events of 8 April 2019. In all the circumstances I am satisfied that your plea represents remorse. These are all factors that will be taken into account in your favour.
31. Indeed, you have written a letter to the court expressing a desire to be a more positive contributor to society and to be more realistic about your mental health and past substance abuse. You indicate a desire to rehabilitate and express your remorse. Generally I find such letters to be relatively self-serving and of limited weight but I do encourage you to maintain your expressed desires for a more positive future. It is clearly in your own interest to do so, as well as that of other members of the community. I accept your expression of remorse.
32. Your future prospects are difficult to assess. In more recent times you have appeared before the courts on a regular basis, largely linked to your use and abuse of drugs. Your prior offending has relevance to the matters before this court. By the same token, you had an extensive period of time when you were compliant with the community's expectations, and you express a desire to return to that path. I also appreciate that you are about to commence a lengthy sentence. As I fall to assess your prospects for rehabilitation at the time of this sentence, I am of the view that they remain live but are presently somewhat guarded.
33. I have also referred to the standard sentencing scheme which operates in relation to Charge 1 on the indictment, culpable driving. The standard sentence scheme became effective on 1 February 2018 and only applies to offences committed after that date, which yours clearly was.
34. The period specified as the standard sentence is "the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness". The standard sentence for the offence of culpable driving is one of eight years. In determining the objective factors, a court must consider only the nature of the offence and not your personal circumstances. This determination is only intended to give "content to the hypothesised mid-range offence". Nothing in the scheme circumscribes the manner in which the court is to assess the seriousness of an offence.
35. The Court of Appeal has said that the key requirement is for the court to take into account the standard sentence as a relevant sentencing factor but, as with the maximum penalty, it is a legislative guidepost. It does not affect the instinctive synthesis, does not permit two-stage sentencing or otherwise affect matters a court may or must consider when sentencing. A court does not start by asking whether or not the standard sentence should be imposed and then work its way up, or indeed down.
36. Consideration of current sentencing practices is necessarily limited by sentences previously imposed if the offence in question was subject to the standard sentencing scheme. I have been referred to one case of culpable driving which was subject to the same scheme. Principles established in past cases still remain relevant.
37. In considering all factors, the totality principle clearly also has a role to play. The totality principle requires that where an offender has been sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains what is described as just and appropriate for the whole of the offending. At the same time there is need to reflect the separate offences before the court.
38. In terms of the basic purposes for which a court may impose a sentence, they include punishment, general and specific deterrence; rehabilitation; denunciation; and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victim. I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.
39. I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case and, necessarily, ss.5A, 5B and 11A. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the standard sentencing scheme as it relates to Charge 1.
40. In relation to the charge of culpable driving, I cancel any licences held by you and disqualify you from obtaining a licence for a period of four years.
41. In terms of sentence, in relation to Charge 1, culpable driving causing death, as previously discussed, this charge carries a standard sentence of eight years. The sentence I impose is higher than the standard sentence for the offence. Having identified and considered what I consider to be the relevant factors in assessing the sentence, including my assessment as to the very serious nature of the offending and your high degree of culpability for it, against your plea of guilty, future prospects and display of remorse, I have formed the view that this is appropriate.
42. The sentence I impose for this charge is one of 9 years. That finding takes into account the standard sentence, as well as the relevant sentencing considerations to which I have referred.
43. In relation to the charge of failing to render assistance, you are convicted and sentenced to 2 years imprisonment, of which 8 months is cumulative on the penalty imposed on Charge 1.
44. In relation to the charge of driving while suspended, you are convicted and sentenced to 8 months imprisonment, of which 2 months is cumulative on the sentences otherwise imposed.
45. You are therefore sentenced to a total effective penalty of 9 years and 10 months imprisonment.
46. I fix a period of 6 years and 6 months before you are eligible for parole.
47. 343 days will be reckoned as having already been served.
48. Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of

12 years, with a minimum of 8 years and 6 months before being eligible for parole.

49. MS COOMBES: As Your Honour pleases.
50. HER HONOUR: Anything arising?
51. MR ANDERSON: As Your Honour pleases. No, Your Honour.
52. HER HONOUR: All right, thank you. If you could remove the prisoner, thank you. I will close the court temporarily, thank you.