R v Dudgeon

PARTIES: The Queen Christopher Daniel Dudgeon

Mr M Ferguson (Crown) SOLICITORS: Turnbull Hill Lawyers (Offender) Office of the Director of Public Prosecutions (Crown)

1 Christopher Daniel Dudgeon, the offender, reached his thirtieth birthday on 11 March this year. His friend, Timothy Hillis, did not reach the point of being able to celebrate his twenty fourth birthday. In the early hours of 28 January 2007 he died from extensive injuries suffered when he was thrown from the back tray of a 4-wheel drive vehicle, which then rolled over onto him, after the offender was driving it in pursuit of a kangaroo across a paddock in Gunnedah. The offender now faces the certainty of imprisonment and the continuing burden that he will carry for the balance of his life, knowing that he was the reason for the death of his younger friend.

2 This case provides yet another example of the tragic outcome when individuals place themselves and others at risk by driving motor vehicles dangerously and after ingesting excessive quantities of alcohol in the face of the enormous effort by the legislature and the courts to curb this behaviour.

3 The offender pleaded guilty in the Local Court at Tamworth to dangerous driving causing death, an offence contrary to s 52A (1) (c) of the Crimes Act 1900, for which the maximum penalty provided is imprisonment for ten years. The charge, as expressed in the court attendance notice commencing these proceedings, identifies the offence to have occurred between 11:30 pm on 27 January 2007 and 12:30 am on 28 January 2007 at Gunnedah. The charge is expressed thus: That Christopher Daniel Dudgeon, between 27 January 2007 and 28 January 2007, at Gunnedah, in the State of New South Wales, did drive a motor vehicle, to wit VMY-165, a white Toyota Landcruiser Table Top 4 x 4, when it was involved in an impact occasioning the death of Timothy Hillis and, at the time of impact, the said Christopher Dudgeon was driving the vehicle in a manner dangerous to another person.

4 In this court the offender adheres to his plea of guilty.

5 The offender has spent no time in custody for this offence.

6 The Crown does not cavil with the proposition that the plea of guilty by the offender was entered at an early stage and it does not offer a submission against what was said by Mr Healey on behalf of the offender, that in the circumstances he is entitled to the maximum discount for his plea of guilty that the law allows.

7 The circumstances of this tragedy are graphically described in the summary of facts included in the material tendered by the Crown.

8 These two young men, both friends, were employed in a business conducting itself as a motor auction in Newcastle. The principal in that business also had a number of other business interests, including a rural property at Gunnedah named Brightling Park, which comprised 7,000 acres over three adjoining properties, called Brightling Park, Kerringle and Beckworth.

9 The property was sold and settlement was to take place on 25 January 2007 subject to a clause that allowed the principal, Barry Gamer, to conduct a clearance sale on the property before leaving it. This was to take place on Saturday 27 January 2007.

10 On Friday 26 January 2007 the offender and Mr Hillis, with other employees, drove out to Brightling Park. Some of them drove cars belonging to the motor auction to be sold at the clearance sale the following day. One of these vehicles was a Toyota Landcruiser Table Top 4-wheel drive, registered number VMY-165, the vehicle driven by the offender at the time Mr Hillis lost his life.

11 Mr Gamer instructed his employees that there was to be no alcohol consumed until the end of the clearance sale on Saturday 27 January 2007.

12 About 5 pm that afternoon, the offender, Mr Hillis, and another colleague, Gary Wagh, had their first drink of beer as the clearance sale began to wind down. They were drinking from cans of full strength beer. The clearance sale ended about 6 pm. After it concluded, these three young men each had two more beers. About this time everyone was making their way to the homestead for a meal that was being prepared there. While waiting to eat they had another two or three beers, the meal was served, and they ate together until it was getting dark.

13 After the meal the offender mounted a small motorbike and rode away from the homestead into nearby paddocks. He was followed by Mr Hillis and Mr Wagh who drove in the Toyota Landcruiser illuminating the way for the offender as he rode the bike forward. This enabled him to see where he was heading. They went to chase kangaroos, but after driving around for a while in different paddocks, did not find any more to chase apart from those they chased initially. They returned to the homestead. By this time they had been out engaged upon this escapade for about an hour and a half. Upon their return they each had another can of beer.

14 It was nearing midnight and the offender suggested that they go out again. He got behind the driver's wheel of the Toyota, Wagh sat in the passenger seat, and Mr Hillis sat on the middle seat. They each had a can of beer with them. The offender drove the vehicle into the paddocks looking to chase kangaroos and other animals. Whenever one was seen, the offender drove after it. Mr Wagh is attributed with the following statement: Maybe at times, Chris was going pretty quick. It's hard to tell, but I think he would have been doing about 60 kilometres per hour. We were bumping around and it was difficult to say how fast we were going at times.

15 They continued driving, consuming their beer, and when they had finished their drinks they returned to the homestead and obtained cans of Bundy rum and cola. They returned to the paddocks in the same seating configuration as before, with the offender driving.

16 They drove around for a while but could not find anything. They stopped, alighted and had a smoke and a talk, after which Mr Hillis jumped onto the rear tray of the vehicle, the offender returned to the driver's seat, and Wagh sat in the passenger seat. They continued driving for some further time looking for animals, with Mr Hillis standing on the back with a torch, shining it about. Whenever they found anything the offender would drive faster. He and Wagh would call out to Mr Hillis to make sure he was safe.

17 They made their way to a dam. There the offender drove over and around the inclines, doing laps on the inside of the dam. He did about three or four of those laps and drove over the dam twice. They eventually stopped and talked and laughed about what they had done. They resumed their positions in the vehicle, with Mr Hillis on the back tray again, and then went looking for more kangaroos. Some were located in a paddock and the offender began to chase them with Mr Hillis standing on the rear tray. Mr Wagh is attributed with the following: The paddock the roos were in wasn't a flat, smooth paddock. It had bumps, tuffs (sic) of grass and holes in it. Chris would have been doing about 50 to 60 kilometres per hour.

18 The offender began to chase a kangaroo directly in front of the vehicle. The animal suddenly changed direction to the right and the offender pulled the steering wheel to his right after it. Wagh is attributed with the following: The vehicle hadn't even started to turn when I felt what appeared to be the front passenger wheel sink into the ground as if there were a big hole there.

19 Crash investigators later determined that at this point the passenger side wheels of the vehicle dug into the dirt. This retarded the forward motion of the vehicle but the momentum it had accumulated caused it to roll onto its passenger side, in the course of which Mr Hillis was thrown from the rear tray and onto the ground to a point where the vehicle rolled onto him.

20 There was substantial damage to the vehicle, and Mr Hillis was crushed. He suffered facial injuries, including skull fractures and internal injuries, and a complete traumatic transection of the descending thoracic aorta. The injuries were such that at least he did not have to suffer for very long.

21 The vehicle continued to roll and finished in an upright position, landing on its wheels a short distance from where Mr Hillis lay. The offender and Wagh got out of the vehicle to check on the welfare of their friend, but it was clear to them that he had died. They covered his body and returned to the homestead on foot to report what had occurred. The police and other emergency services attended.

22 To his credit, the offender spoke to the police and submitted to a conversation recorded on a hand-held device. He was advised that he did not have to answer any questions unless he wished to do so. He admitted being the driver of the vehicle at the time and said that he had turned to come back around to the homestead when the vehicle hit a ditch before flipping over. He said that prior to the incident they were searching the fence line. He said that Hillis was standing on the back of the vehicle prior to it rolling and that he had been driving at about 30 to 40 kilometres per hour.

23 He admitted to drinking six to eight full strength cans of beer and two cans of Bundaberg rum and cola in the hours leading up to the incident. He assessed his own level of sobriety as being at five or so upon a scale of one to ten. At 2:20 am he submitted voluntarily to a breath test. This gave an indication of a blood alcohol level of 0.132 grams per one hundred millilitres of blood. About 4 am a blood sample was taken from the offender at Gunnedah Hospital, which, upon analysis, gave a reading of .067 grams per one hundred millilitres of blood.

24 Dr William Allender, described as a forensic scientist, has offered the opinion that upon his specialised knowledge and based upon the information supplied to him, including the breath test reading and the blood sample result, that the offender, at the time of the impact, would have had a blood alcohol content within the range of 0.10 grams per one hundred millilitres of blood, up to 0.167 grams per one hundred millilitres of blood, but that his most likely blood alcohol level would have been 0.127 grams per one hundred millilitres of blood.

25 The crash scene investigation officers examined the scene of the impact and found a number of items located on the ground in the paddock near the point of impact. These had been ejected from the vehicle. They included parts of the vehicle, several cans of rum and cola, tools and bags of cement. The vehicle was later examined by mechanical examiners who ruled out any defect or failure of the vehicle as a factor towards this event.

26 On Monday 29 January 2007 the investigation officers returned to the property for further crime scene examination. They were able to follow the tracks of the vehicle left in the ground from the point of impact. Along this track leading backwards from where the tragedy occurred the investigators located a number of objects that had been ejected from the vehicle prior to the impact. These included a mop, a pick, a metal rake, a pole, a piece of carpet and a jerry can, all of which had come off the vehicle as it was driven through the paddock. Also along the same track investigators located numerous yaw marks in the ground.

27 These findings are consistent with the proposition that the vehicle was being driven in an erratic and dangerous manner prior to the collision.

28 The paddock in which this occurred featured a number of grass tussocks. Senior Constable McKinnon, the crash investigation expert, noted that the property was rough to drive on. When he drove upon it he found it to be generally uncomfortable and rough. He found that he was forced off the driver's seat towards the roof of the cabin of the vehicle he was driving at speeds as low as 40 kilometres per hour.

29 It is suggested in these facts that the available evidence allows as the proper finding that the impact was caused by a combination of speed, which was excessive for the prevalent circumstances and the alcohol ingested by the offender. On 1 February 2007 investigators contacted the offender but he declined the opportunity to be further interviewed. He was subsequently told that he would be issued with a court attendance notice.

30 I have, in the material tendered, the statement by the crash investigator, Senior Constable McKinnon. It includes a diagram of the properties, photographs of the vehicle and a photograph showing the items ejected from the vehicle leading up to the point of impact. There are a number of other photographs that are included. They are in black and white; they have not photocopied well and are of limited value by themselves, but are entirely consistent with what I have read from the summary of facts to the extent that they are capable of depicting the scenes they represent.

31 Of course the representation attributed to the offender regarding the turning of the vehicle to return to the homestead and that he was driving along the fence line, or looking for the fence line, does not sit comfortably with the proposition that he was chasing a kangaroo and that the vehicle was turned in pursuit of that animal at the point that it went out of control. Nor does it sit comfortably with the observations made by the investigator, who saw the items ejected from the vehicle along the path that it took and the yaw marks on the paddock surface.

32 I have a transcript of the interview in which the offender took part at the location, including his submission to the breath test, and his acknowledgment that he had been drinking to the extent admitted.

33 I also heard from Meryl Ruth Hillis, the mother of Mr Hillis who lost his life, when she read her victim impact statement in what was truly an emotional and moving experience for the court. I shall make further reference to that in due course.

34 The offender was born on 11 March 1978. He has no prior record apart from one speeding offence in May 2001 for which he received a fine. It follows, of course, that he has never been before this time required to serve any period of imprisonment for any misconduct. He comes before the court as a person of good character.

35 Mr Gamer is present in court, I am told, and he has provided a reference. Such is his respect for the offender, he will be doing what he can to provide for his future subject to the orders that the court will be required to make at the close of these proceedings.

36 The offender has been working for Mr Gamer since 12 August 1999. He began as a vehicle detailer and he showed such a level of aptitude and work ethic that he was promoted to a supervisory role within the company. He presently holds a position as foreman supervising twelve other staff members who are engaged upon the preparation of approximately 8,000 vehicles per year for sale through the auctions.

37 He is said to enjoy excellent rapport with all staff. He engenders trust, loyalty and respect from those within his span of control. Mr Gamer, of course, was also the employer of Timothy Hillis and he is able to write of the profound effect this loss has had upon the offender and his family.

38 The offender is married and he has two children aged three years and twelve months respectively. They live together in a modest home at Hamilton. He is the sole breadwinner for his family. A significant part of his income is paid towards the mortgage payments they have for their home.

39 Accompanying that reference are a number of other references. One is from Paul Delforce, who holds office with football clubs in the Charlestown area. He has known the offender since he was a young boy and watched him grow up and mature through his football years. He is said to have shown maturity and leadership, which ultimately led to him being elected by the football club committee to be a junior footballer of the year. This is said to have been achieved at a young age. He was only 16 at the time, and he was selected above other, older team members. Mr Delforce speaks glowingly of the offender, as does Mr Ian Johnson, a licenced motor dealer who has dealt with the offender in the course of his business. So too a Mr Steve Crawford from an investigations company. He is the next door neighbour of the offender and speaks of him as a person of high moral character, as being honest, hard-working, diligent, and a valuable member of the community. He attributes him with expressions of remorse regarding the events that led to the loss of his friend.

40 Mr Stephen Askew writes of the high opinion he holds of the offender and the impact this has had upon him and his family. Mr Kevin Hudson, another motor vehicle dealer, speaks of the respect he has for the offender. So too Peter Price, a local businessman in Newcastle West.

41 I have also a document prepared by his parents. This gives some insight into this obviously close family. I will pause to note that his parents and his siblings are present here in court today. He is the youngest of four siblings. He is said to have grown up with a friendly attitude. He was not one who liked school as much as he ought, except for sports, particularly rugby league. There is reference to his father having had a problem with alcohol for which he attended meetings.

42 There is reference to financial difficulties that required the family to sell the family home and the work that followed to redeem that loss. The letter represents that the offender has been a part of a family that has been through the ups and downs that one might expect of any family in the community, and that he has come through those experiences with a positive attitude which, of course, is reflected in the achievements disclosed in the various references to which I have already spoken. There is reference to his work history before his present employment and there is a plea that I restrict his sentence to home detention or weekend detention.

43 There is reference to his father having a history of depression for which he is medicated and their concern that this might manifest itself with the offender should he be incarcerated.

44 There is one further reference from Imelda Maybury who speaks in equally positive terms.

45 I have a report from W John Taylor, clinical psychologist. There is nothing remarkable in this young man's background other than, I suppose, the fact that one does not see someone of such good character coming before the court to be sentenced for criminal offences. He has been suffering his own burdens described as post traumatic stress disorder by Mr Taylor, and I quote from the section beneath the heading, Emotional Health: He stated that he did not have any emotional difficulties prior to the events which occurred on the evening of 27 January 2007 and which gave rise to him being charged with the present offence. However since then he has experienced feelings of depression and has had a number of symptoms of post traumatic stress disorder. He has had frequent flashbacks and intrusive thoughts about the accident. Initially he had flashbacks of the deceased every day and he said, 'I still remember it rolled over and then yelling at Gary (the deceased) - we found him there - the shock of it - I re-enact it every night'. However he has not received any treatment for his emotional problems.

46 His history of alcohol use is dealt with. He has dallied with illicit drugs in the form of cannabis but that is of little significance to the decision I have to make. Notwithstanding that he might be so foolish as to use cannabis, I do not take that as evidence sufficient to displace the finding I propose to make, that he is a person of otherwise good character.

47 Within the section of the report dealing with the offence the following appears: He stated that he had never chased kangaroos in a vehicle previously and had only driven a four wheel drive vehicle on a property on a couple of occasions. He said that the purpose of going out the night that the offence occurred was to see wildlife at night. He admitted to having consumed alcohol during the day prior to the offence.

48 He stated that after the vehicle rolled over he tried to revive the deceased. He said, He had a bit of blood coming out of his nose - we felt for a pulse and we yelled at him - when we got no response, and had no pulse, we knew he was dead.

49 Mr Dudgeon expressed considerable regret for his offending behaviour. He said, I feel really sad - it was just a bad thing that happened - I feel for the loss of a good friend and a workmate - I feel sad for my family - there will be a lot of adjustments for them to make - it never leaves my head.

50 Mr Dudgeon accepts that the offence was his fault and in relation to this he said, I was in control of the vehicle.

51 He is assessed as having a low risk of recidivism. I have no difficulty accepting that.

52 He underwent psychometric testing which demonstrated a stable personality without any indication of any emotional or personality disorder. He has residual symptoms of post traumatic stress disorder and frequent feelings of guilt about the event. There is no other factor of significance identified in the psychometric testing.

53 As I have said, the report reflects someone of good character who stands aside from the normal profiles that the court is called upon to deal with in its day to day work.

54 Clearly the punishment that the offender must face will have a substantial impact upon him. There can be no doubt that there will be hardship on his family who are here to see their loved husband, son and brother imprisoned. Regrettably, that is the lot of all who must cope with someone for whom they care, suffering this outcome. I have analysed the material here before me carefully but there is nothing so unusual about this matter to require some adjustment in the sentence that might otherwise be warranted.

55 Of course, it goes without saying that the burden of those who are close to the offender as a result of his offence pales against the grief that has been, and will continue to be, the burden of the family of Mr Hillis. The court has been given some insight into the magnitude of their loss through the victim impact statement that was presented and read in open court by his mother, but understands that this is a mere glimpse of what one must accept to be immeasurable pain for that family.

56 I make clear that these considerations are not taken to account in aggravation of the offender's culpability but are noted as is appropriate in my view to mark the impact of this tragedy upon Mr Hillis' family; Regina v Previtera (1997) 94 A Crim R 76.

57 The court views the presentation of the statement by his mother as a compelling reminder of the quality of human life and what follows when it is taken in this way.

58 I must determine the offender's true level of moral culpability across the spectrum extending from mere error of judgement or misjudgement to abandonment of responsibilities at the upper end of the range; Regina v Khatter [2000] NSWCCA 32 at paragraph 31. I have been reminded of the guidance provided by the decision in Regina v Whyte (2002) 55 NSWLR 252, referred to as the guideline judgment in cases such as this.

59 This is not a typical case such as the guideline judgment identified. At 30 years of age, the offender is not to be accurately described as a young offender. He is, however, a person of good character with no prior convictions. There has been death to a single person, but the victim in this case is no stranger. The victim was his friend. There is genuine remorse, I believe. There is a plea of guilty, and although on one view one might take the position that it was of limited utilitarian value, the weight of authority informs me that the offender is entitled to the discount for which the law provides.

60 There are additional aggravating factors that must be brought to account, some of which were identified in the guideline judgment. The first of those is the extent and the nature of the injuries inflicted. Of course, Mr Hillis lost his life. I should take into account that there were three people put at risk in this escapade, not only Mr Hillis but also the offender and Mr Wagh. I take into account that the vehicle was being driven at a speed which was entirely inappropriate for the circumstances. Although it is not possible to determine precisely the speed at which the vehicle was travelling, I am in a position to find that the speed at which it was being driven was excessive in the circumstances.

61 There is a measure of intoxication, which the offender himself admitted to be within the range of 5 on a scale of 1 to 10, consistent one might think with the opinion offered by the expert called to offer an opinion as to the blood alcohol level likely at the time of the event. I believe that the driving described, and as evidenced by the findings at the scene, was erratic.

62 I pause to consider whether the term aggressive ought to be applied. Chasing animals such as kangaroos across a paddock, with which the offender was not familiar, at night-time, having not ever engaged upon such activities in the past, but with a knowledge gained during the night up until that event allows the application of that term in my view.

63 The guideline judgment refers also to the length of the journey during which others were exposed to risk. This activity continued over some hours, and I bring that to account.

64 I should also make reference to s 21A of the Crimes (Sentencing Procedure) Act1999 where the aggravating and mitigating factors required by the legislation to be considered are articulated. I must be careful, of course, not to double count any aggravating factors that are specified in the provision if I have brought them to account by reference to the guideline judgment.

65 The aggravating factors set forth in s 21A (2) (g) refer to injury that was substantial. Of course, that is an essential ingredient of the offence upon which the offender is to be sentenced, and I can put that to one side.

66 Paragraph (i) - the offence was committed without regard for public safety. Again, that is a proposition implicit in this type of offence, and in any event this occurred on a paddock at Gunnedah, not on the public road. I put that to one side.

67 Paragraph (ib) - the offence involved a grave risk of death to another person or persons. That is a matter that I have brought to account already. I can put that to one side.

68 Turning to mitigating factors, in reference to s 21A (3) (b) - this was not planned or organised criminal activity.

69 Paragraph (e) - there is no record of prior convictions apart from the speeding ticket, which I can put to one side.

70 Paragraph (f) - the offender is a person of good character.

71 Paragraph (g) - the offender is unlikely to re-offend.

72 Paragraph (h) - the offender has good prospects of rehabilitation. Indeed, I venture to say that this experience of itself has achieved that outcome.

73 Paragraph (i) - I accept that he has shown genuine remorse and satisfies the requirements in that paragraph recently enacted in this legislation.

74 Paragraph (k) - I take into account his plea of guilty for which he will be given a discount.

75 I must now determine the appropriate sentence, first of all identifying the level of moral culpability to be attached to this conduct, and then upon the exercise of a broad discretion, taking into account all of the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act (see Regina v Whyte at paragraphs 228 to 232).

76 I cannot accede to the submission put so forcefully by Mr Healey that the moral culpability in this case should be seen at the lower end of the range. I note that the offender himself must have had some appreciation of the risk involved in what they were doing by calling out to Mr Hillis from time to time to make sure that he was continuing to be safe. He had been driving across the paddock before this event occurred and before this particular episode of driving was undertaken. He must have been aware of the risks that attached to the pursuit of kangaroos across a paddock in the circumstances.

77 I remind myself of the provisions of s 3A and s 5 (1) of the Crimes (Sentencing Procedure) Act. These articulate the purposes for which the court may impose a sentence of imprisonment, and specify that I must not sentence the offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

78 The reasons for the imposition of a sentence articulated in s 3A are that the offender must face adequate punishment; the sentence is to serve as a general deterrent as well as a specific deterrent for the offender; a sentence must serve to provide protection to the community from the offender, promote his rehabilitation, make him accountable, denounce his conduct and recognise the harm that has been done. I accept that the community is not in need of further protection from the offender, nor is it necessary to sentence him to gaol to promote his rehabilitation. However, the conduct is of such moment, in my view, that there must be punishment. There is need for general deterrence. The offender needs to be made accountable and his conduct must be denounced, and the sentence must be such that the harm he has caused will be recognised.

79 I have come to the view, regrettably, that no sentence other than full-time imprisonment is appropriate in this case. The sentence I intend, and its structure, is to ensure that the offender is adequately punished.

80 I accept that there are special circumstances in this case that will require a significant adjustment in the ratio between the non-parole and parole components of the sentence that might otherwise be required by s 44 of the Crimes (Sentencing Procedure) Act. This is the first time he will have been called upon to serve imprisonment. Moreover, the burden he will suffer in being imprisoned knowing that his family, that is his wife and two young children, are having to cope on their own, albeit no doubt with the help of his extended family, will be a significant burden for him to bear. He will need to adjust back into the community after he as served the custodial component and will need a longer period of time on parole to facilitate that process.

81 I propose to allow a discount of 25 per cent to the sentence that would otherwise have been imposed in this case. The sentence will begin today.

82 Mr Dudgeon, for the offence that you between 27 January 2007 and 28 January 2007 at Gunnedah in the state of New South Wales did drive a vehicle, to wit VMY-165, a white Toyota Landcruiser Table Top 4 x 4, when it was involved in an impact occasioning the death of Timothy Hillis, and at the time of the impact you were driving the vehicle in a manner dangerous to another person, you are convicted.

83 You are sentenced to a term of imprisonment of one year. This component of the sentence will commence today, 10 June 2008, and will expire on 9 June 2009; that is the non-parole component of the sentence. I impose a further period of imprisonment of two years to commence on 10 June 2009 and to expire on 9 June 2011. The total sentence is therefore one of three years comprising the non-parole period and the balance of the sentence.

84 I find special circumstances for the reasons articulated. You are to be released to parole at the expiration of the non-parole period.

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