R v Borthwick [2010] VSC 613

2 Mark Zimmer was a treasured son, brother and family member who died after the Toyota Tarago van you were driving on the wrong side of Ormond Road, Narre Warren South, struck him early on that morning.

3 The jury found you not guilty of murder, concluding that you did not intend to kill or really seriously injure Mark Zimmer, even though there was evidence that you had previously threatened to kill and to injure him on a number of occasions. I must sentence you on the basis of findings of fact consistent with the jury's verdict.[1]

4 The prosecution argues that I should find you guilty of manslaughter by unlawful and dangerous act on the basis that you hit Mark Zimmer deliberately with the van, despite the jury's verdict. But I am not satisfied that you recognised Mark Zimmer before hitting him or that you intended to hit him or the person, whoever it was, on the road in front of your van.

5 I am, however, satisfied that when you struck Mark Zimmer, you were driving in a way that so seriously breached the duty of care you owed to him and involved such a high risk of causing his death or of really seriously injuring him that your actions deserve criminal punishment and you are guilty of what is a serious example of the crime of manslaughter by criminal negligence.

6 The background to your offence was the breakdown of your two year relationship with your girlfriend, Nicola Martin. Mark Zimmer had become involved with her in the previous three months and she had told you several times that your relationship should end. You told Mr Jeffrey Cummins, forensic psychologist that, even so, it was not until about a week before 16 November 2008 that you had tentatively concluded that she had decided to leave you. You were jealous of Mark Zimmer and persistently sought details of their contact and had threatened to harm and kill him with guns and knives. You had threatened him using a knife in front of friends. Mark had tried to calm you and had reported your behaviour to police.

7 When Nicola Martin again said your relationship was over in the evening of 15 November 2008, you were very upset and phoned Mark Zimmer, threatening to kill him and to come to his home. He rang the police. He gathered friends for protection, providing some spanners and metal poles for them, in case you came armed. When you told him that you were not coming, he told his father that he could not continue living with your intimidation and decided to go to your home to have matters out. There were phone calls between you and your friends and Mark Zimmer and his friends. Some threats were exchanged but I am not satisfied as to the actual words used.

8 You became angry and decided to go home. I point out that, even though there was evidence that you said at one point to your friends words to the effect that if you saw 'them', you would run them over, the jury has concluded that you did not intend to kill Mark Zimmer or cause him really serious injury when you hit him and that is the basis on which I must sentence you.

9 You drove your mother's Tarago van to your house, with two friends as passengers. You also sought your elder brother's help and he drove ahead of you, with some friends in his car.

10 On the way home, you were told that 20 to 30 people with weapons were gathered near your parents' house in Ormond Road. In fact, Mark Zimmer and eight friends were there and were standing around near your house. They had brought several spanners and poles between them. You became scared as well as angry.

11 Three of your friends were in Ormond Road nearly opposite your home in a parked car. Mark Zimmer, who was carrying a pole or stick, Troy Polifrone, who was carrying a squeegee, and Sean Heneric had crossed the road and were standing up against the road-side of the parked car and inside the marked parking lane area. Mark and Sean were talking to the people in the car. The street was lit and Mark Zimmer's other friends on the other side of Ormond Road could see them there. Mark was at the rear of the parked car, Troy was in the middle and Sean was at the front, immediately before your van hit Mark.

12 When your brother's car was some distance ahead in Ormond Road, you sped up and flashed your lights to attract your brother's attention. The parked car where Mark Zimmer was standing was facing the direction from which you were coming. You suddenly swerved onto the wrong side of the road and were then travelling at about 45 kph, in a 50 kph residential zone, towards the parked car. Your brother's car remained in the correct lane.

13 You could see the young men on the road, as well as those gathered on the opposite side near your house. As I said, I am not satisfied that you recognised Mark Zimmer or his friends. Your friends screamed at you to stop, asking what you were doing. You did not pull back, slow down or take any evasive action. You just kept driving on the wrong side of the road, far too fast, in a way which your friends' screamed reactions showed was extremely dangerous to those on the road in front of you.

14 Sean Heneric heard your engine revving and, looking to his right, he saw you flash your lights and swerve onto the wrong side of the road. You only very narrowly missed him and Troy Polifrone who both moved forward to press themselves against the parked car.

15 The right front corner of your van then struck Mark Zimmer at about a 45 degree angle to his left side, as he was apparently attempting to run out of the way, having turned away from the parked car, in effect into your path. He was standing about half a metre out from the parking area, on the road, and you were driving slightly to the right of the centre of the lane when he was hit. Immediately before hitting him, you did not swerve away or try to stop by jamming on your brakes. I am nevertheless not satisfied beyond reasonable doubt that you deliberately drove into him, because everything happened very fast, you were driving too fast and too close to those by the parked car and Mark Zimmer had stepped back onto the roadway.

16 He was thrown into the air, off the right hand corner of the van's windscreen. He struck the footpath before ending up in a driveway where he died of massive head injuries shortly afterwards. His father had been waiting around the corner He heard a loud bang and had come to his son whom he then tried unsuccessfully to revive.

17 Driving at the same speed or faster, you returned to the correct side of the road before pulling over to talk to your brother who had stopped his car. He told you not to go back to the scene. You got back into the van. You were crying, telling your friends that you could not believe what you had done, that you had ruined your life and would be going to gaol. You asked them whether you should burn the van or drive it off a cliff.

18 I accept that you were then afraid of Mark Zimmer and his friends and you and the two friends in your car hid close by for some 15 to 30 minutes. You visited Nicola Martin and then spent the rest of the night at the home of one of your friends, after parking the damaged van around the corner. You co-operated with police who arrested you shortly after 5 am after you told them where you were.

19 You told police that you had been trying to get your brother's attention when the young man you struck appeared from between two parked cars.

20 I now turn to the consequences of your crime in terms of its impact upon the lives of the Zimmer family.

21 Mark Zimmer's parents and his sister made eloquent victim impact statements read aloud in the plea hearing. They tell of their unrelenting sadness at the premature loss of this beloved young man. I mention just a few of the matters they contain but have taken everything they say into account.

22 Mr Zimmer tells of the haunting nightmares and memories of his unsuccessful attempts to breathe life into his dying son. He talks about his relationship with this fine young man of whom he was so proud. They were great friends and his hopes for their shared futures have been completely dashed. A report from a treating psychologist also describes the debilitating effects of Mark's death upon Mr Zimmer.

23 Mrs Zimmer speaks of the heartbreaking changes to her family and her own constant sadness and the problems that creates for her baby son, Zachary. She spends a great deal of time at the cemetery tending Mark's grave and laments that Zach has grown to feel at home there and the unnaturalness of her situation as the grieving one. Her elder son is always in her thoughts.

24 Ms Zimmer speaks of the life-changing loss of her adored younger brother and companion. She tells of their relationship and her hopes of a shared extended family life for them and their respective children. She is having great difficulty coping and Mark's death has had detrimental effects on her own relationships and on her general ability to function.

25 You are 20 years old and were born in Hyderabad, India on 19 March 1990. You came to Australia with your family in 2000. Your mother is a primary school teacher and your father a labourer involved in train manufacture. Your brother is a 26 year old robotics technician who lives at home.

26 Mr Jeffrey Cummins examined you on 5 September 2010 and provided a report dated 9 September 2010. You said to him that you felt abandoned and neglected as a younger child. You said you were a victim of your parents' fairly harsh discipline but accept this as normal in your culture. You said you are much closer to your parents and have felt wanted since you have been involved with the Court process.

27 You were educated in India, at Hampton Park and at St John's Regional College successfully completing a VCAL Year 12 in 2007, studying practical rather than academic subjects. Ms Judy Bishop of the College wrote of your courtesy, regular attendance, assistance to younger pupils and participation in extra curricular activities, including the College Talent Quest and organisation of a year 12 assembly.

28 You told Mr Cummins that music and dance are your career interests. Your parents opposed your wish to study these subjects in 2008 and you were confused about your life and career. You had short term work in a supermarket, in sales and marketing, at TNT and selling mobile phones at Dandenong Plaza before 16 November 2008. You were unemployed at that date.

29 You do not drink alcohol and have never experimented with drugs. Your only long term relationship has been with Ms Martin.

30 You have been involved with the St Kevin's Catholic Church, Hampton Park, attending youth group weekly meetings and parish events, regularly and then more sporadically between April 2005 and June 2008, according to Jessica Jansen, a youth leader and close friend. She regards you as of good character, positive, warm and generous. She says that you were respected and well liked by the youth leadership team but notes her view that your actions often revealed lack of forethought she thinks consistent with your age.

31 Father Shanthaiah Marneni knew you for five years at the same parish. He says you were an active reliable member of the youth ministry with leadership qualities, integrity and moral values. You were a helpful, loving and caring respectful child.

32 Father John Allen, the parish priest of Our Lady Help of Christians Parish in Narre Warren, describes you as respectful, quietly spoken and honest. You attended Mass and were involved in youth activities at the church before November 2008.

33 Neighbours also speak well of your family generally and of you in that context.

34 Father Joe Caddy, the Chief Executive Officer of Centacare Catholic Family Services, is the chaplain at the Metropolitan Remand Centre. He gave evidence in the plea. He sees you weekly for private discussions after Mass at the MRC. You work there in the kitchen, in charge of the larder. He thinks you are immature and physically, morally and psychologically vulnerable in the adult prison system. You do not 'open up' because you are trying to cope with your environment. Although Father Caddy has thought you respectful and reliable throughout, he agrees that you proved unreliable when you breached your bail conditions by meeting up with Nicola Martin. Noting your excellent family support he thinks that, with maturity, you have the potential to make a worthwhile contribution to society.

35 Your parents have also written to the Court, describing you as an outstanding, helpful young man of good character with demonstrated leadership qualities who has made his school proud. They say your offending was totally out of character.

36 Senior counsel also relies upon your being recommended for an Essential Work program at the Melbourne Remand Centre as evidence of your good character and willingness to work.

37 I have taken the character evidence into account. I am also satisfied that you would not accept Mark Zimmer's involvement with your girlfriend and had threatened him and others for some time before you hit him with your van. Whilst I make it clear that that history is only otherwise relevant as background to put your offence into context, I can and do give it some limited weight in relation to your character and your prospects of rehabilitation.[2]

38 Mr Cummins thought you presented as of normal and probably low average intelligence, with previously stable mental health. He found you moderately depressed, mildly anxious but not paranoid, psychotic or schizophrenic. You have no personality disorder and had no adolescent ADHD or bipolar illness when you offended.

39 Mr Cummins concluded that, when you struck Mark Zimmer, you were experiencing symptoms of a severe Reactive Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. He describes this as a clinical condition of the kind most people would suffer if their employment were terminated: your normal equilibrium was out of kilter.

40 Mr Cummins concluded that your adjustment disorder was a reaction to what you told him were your feelings of being intimidated, threatened and confused about your treatment by Mark Zimmer and others and Ms Martin. He thought the disorder was characterised by some delusional thinking and paranoia, triggered by your perception that Mark Zimmer was trying to take your girlfriend and that he and his friends were planning to get at you in some way. In particular, you were beginning to experience an acute grief reaction, having started to believe that Ms Martin was ending your relationship. You had panicked and thought your life was at risk when confronted by the physical situation near your home.

41 When you saw Mr Cummins, you were taking the anti depressant, Avanza, and Epilim as a mood stabiliser. You were not taking medication when you offended. Mr Cummins thought that your current reluctance to have psychological or psychiatric treatment to gain insight into your offence was explained by your focus on looking after yourself in adult prison. He thinks you need treatment to have a more favourable prognosis.

42 I take Mr Cummins' opinions about your mental state into account when considering your moral culpability and the extent to which your sentence is a proper vehicle for specific and general deterrence.[3] However, the strength of his conclusions is significantly reduced by the fact that they are based on what I consider is your misleading, inaccurate and self serving account of events and I do not find them persuasive. You suggested to him that you had progressively formed the opinion that Mark Zimmer was determined to assault you or perhaps even cause you very serious injury. I am satisfied that any threats rather emanated from you and that Mark Zimmer had essentially been conciliatory in response. Your references to simply 'feeling uncomfortable' about his relationship with Nicola Martin and to having had 'heated exchanges' with him do not accurately record the real nature of your relationship.

43 The prosecution argues that you have shown no remorse for your crime, pointing to your failure to go back to help Mark Zimmer, your flight and talk about destroying the van. As for fleeing, I agree with your submission that your failure to go back to Mark Zimmer and hiding is understandable given your probable reception by those at the scene.

44 Mr Cummins thought your comments indicated that you were taking full responsibility for your offending behaviour, that you regretted the events of 16 November 2008 and were remorseful, although you still felt 'confused, puzzled and shocked at how it was [you] came to cause the death of Mark Zimmer'. I agree with the prosecution that his conclusions generally must be viewed in light of your inaccurate self serving account of events and they do not persuade me that you are remorseful. They also point up your lack of insight into your offending behaviour.

45 Father Caddy did not say that you had specifically expressed remorse to him, but he thinks you have developed a deep sense of remorse in custody: to the extent that you had asked him to pray for Mark Zimmer in November when the dead are remembered. You told Father Caddy that you pray daily for Mark Zimmer and his family.

46 Senior counsel argues that you have taken responsibility for your actions. She cites your early offer to plead guilty to culpable driving and your rejected offer to plead guilty to manslaughter by unlawful and dangerous act on the basis of agreed facts which the prosecution considered established only the elements of a dangerous driving offence.

47 Although I do take into account the offers you made, I consider that you have only demonstrated very limited remorse for your actions. Two years on, you still lack insight into your offending behaviour and have not been willing to obtain the necessary treatment to develop it. You did not make a true offer to plead to manslaughter.

48 Your prospects of rehabilitation appear good if you mature and avail yourself of any necessary treatment to develop insight into your offending behaviour. You have completed prison courses relating to mood control, anger management and the like. You have no criminal record. You are educated and talented with a very supportive family.

49 I take into account that you are now only 20 years old and were 18 in November 2008. Imprisonment will be harder for you as a result and it is possible that at some point you may be in protective custody. You hope to stay working at MRC and do not seek assessment for suitability for a Youth Training Centre. In all the circumstances, I do not consider the maximum available term of three years in a Youth Training Centre is sufficient in your case.

50 Despite your youth, your moral culpability is high. You had not had your driver's licence for long, having only turned 18 on 19 March 2008. You were angry and upset and drove in an exceptionally dangerous way in the circumstances. You did not act inadvertently, as in a case where you came across someone on the road unexpectedly. You went to an area where you knew young men were gathered and you saw those on the road. Yet, despite the screamed protests of your passengers, you took no evasive action before tragically taking a young man's life. Even if events occurred too fast for you to stop when Mark Zimmer moved on to the road, his death occurred because of the extremely dangerous way in which you were driving.

51 Behaviour like yours must be denounced. You and other young people must be deterred from using cars in such a criminally negligent way when angry or fearful. Cars can be dangerous and terrible consequences of their misuse are unfortunately all too common. Given the need for deterrence, your youth will be given less weight than otherwise might have been the case.

52 Whilst manslaughter by unlawful and dangerous act is often regarded as more serious than manslaughter by criminal negligence, that is not always the case and there is no fixed rule that manslaughter by criminal negligence always attracts a lower sentence.[4] Culpability depends on the circumstances of the offending, there is no 'tariff' for the crime and sentences can vary widely. [5] The statutory penalty is the same for the different types of manslaughter. Culpable driving causing death may also involve criminal negligence and sentences for that offence offer guidance.

53 I am obliged to take current sentencing practices into account and was given sentencing statistics for the 2003-2008 period and referred to particular sentences for manslaughter and culpable driving, some involving young people. The prosecution relies on them and submits that the appropriate range for your sentence is between nine and seven years' imprisonment, with minimum terms of seven and five years, respectively. It also acknowledges that a shorter than usual non-parole period would be appropriate, given your youth and the weight to be given to your rehabilitation. Senior counsel argues on your behalf that the appropriate range is between three and a half to four and a half years' imprisonment, with a two year non-parole period.

54 Balancing as best I can the sentencing considerations I have referred to and the submissions made and given my view that yours is a serious example of manslaughter by criminal negligence, I sentence you to imprisonment for seven years and six months with a non-parole period of five years.

55 This shorter than usual non-parole period is warranted, given your youth and your good prospects of rehabilitation. Of course, you will not be automatically entitled to release on parole after five years. The decision about whether and when you will be released on parole will depend upon many things and will be made by the Adult Parole Board.

56 I am required to cancel your driver's licence and to disqualify you from obtaining another for no less than 24 months under s 89(1)(a) Sentencing Act 1991. In all the circumstances, bearing in mind the need for you to be rehabilitated and to obtain employment upon release, I will order that your driver's licence be cancelled and that you be disqualified from obtaining one for 24 months commencing 12 months before the expiration of the non-parole period I have fixed.

57 I will also make the forfeiture and forensic sample retention orders sought in the form of draft orders provided.

58 I declare that the 624 days including today during which you have been held in custody be reckoned as already served under the sentence imposed and order that this declaration and its details be noted in the Court's records.

[1] I must also be satisfied beyond reasonable doubt of any facts adverse to your interests and on the balance of probabilities about facts in your favour: R v Storey [1998] 1 VR 359, 370-1 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

[2] See R v Jagroop [2009] VSCA 46 [72] footnote 29 (Weinberg JA).

[3] See R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400; R v Yaldiz [1998] 2 VR 376, 383.

[4] R v Jagroop [2009] VSCA 46, [67] (Weinberg JA).