R v Eades [2001] VSC 407

Supreme Court of Victoria|2001-09-05|Before: COLDREY, J

Travis William Eades, you have pleaded guilty to the culpable driving of a motor vehicle causing the death of Peter Hess at Glen Iris on 13 August 2000. The form of culpable driving to which you have pleaded guilty is that you drove your motor vehicle recklessly. The law is that a person drives a motor vehicle recklessly "if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving".

It is necessary to briefly outline the circumstances surrounding the commission of this offence since they are relevant to the sentence which I must impose upon you.

The truck was driven to the carpark of the Gardiner Railway Station which was quiet, virtually unoccupied, and well lit. The two men were in the process of changing the tire when, according to Mr Gray, he became aware of the presence of a man standing in front of a four-wheel drive vehicle which was facing towards the parked truck. The man walked towards Mr Gray and Mr Hess yelling abuse, such as, "What are you cunts doing here?" that man was you. You were addressing men with whom you had never had any previous contact. Mr Gray describes you as having rage on your face and shaking with anger.

On its face your demeanour and conduct was both inexplicable and bizarre. Subsequent to the events of this evening you declined to give any explanation to investigating police of your actions, nor did you present any such evidence to this Court. Further, no psychological or psychiatric evidence was tendered on your behalf.

However, the depositional material before the Court does provide some insight into the genesis of your behaviour on this night.

As early as May 1998 you had attended a psychologist, Ms Gina Cidoni, on six occasions to undertake an anger management program. That program included instruction on the effect of alcohol on mood states. Later that year, you had formed a relationship with a Ms Maria Patrick. According to a statement she made to police, that relationship terminated in March 1999. She describes you as having an uncontrollable temper. Following the break-up you proceeded to stalk Ms Patrick and, in August 1999, she took out an Intervention Order against you. You were found to have breached that Order at the Melbourne Magistrates' Court in March 2000. Nonetheless, according to Ms Patrick, you continued to harass her thereafter.

Apparently you again visited the psychologist, Ms Cidoni, in June and early July 2000 describing feelings of depression. After counselling you reported an improvement in that state.

The date of this fatal accident, 13 August 2000, was your 31st birthday, and, on the evidentiary material, you rang Ms Patrick on two occasions at about 7.30 p.m. On identifying you, she immediately hung up. At about 8 p.m. you attended at the house of Ms Patrick's sister at 5 Burke Road, Malvern East where you spoke to her husband, Mr Peter Jennings.

According to Mr Jennings you were aware, at that stage, that Ms Patrick would be at her mother's house and he recalled warning you not to go down there. Significantly "down there" was an address at 6/73 Carrol Crescent, Glen Iris, a property which was overlooked from the Gardiner Railway Station carpark. At the time he spoke to you, Mr Jennings could smell some alcohol on you. Later that evening, when you were intercepted by police, you were described as unsteady on your feet, smelling strongly of intoxicating liquor and with eyes that were bloodshot and glazed. An empty wine bottle was located in the footwell on the front passenger side of your vehicle.

It was put by your counsel, on your instructions, that the reason for your attendance in the vicinity of Ms Patrick's then residence was your desire to place a letter on the windscreen of her car. However, no such letter was ever located in your vehicle or on your person. Whether it was ultimately your intention to attempt to visit Ms Patrick cannot be determined. What is clear, however, is that you attended the scene in a highly emotional state which manifested itself in anger when faced with the unwelcome intrusion of other persons in the vicinity of your former girlfriend's residence. It is also highly likely that your anger was fuelled by the alcohol you had consumed.

There are differing versions as to what occurred thereafter in the evidence of Mr Gray and another witness, Ms Celina McAlister, who observed the incident from the right rear passenger seat of a motor vehicle travelling east in Carroll Crescent towards Burke Road. These discrepancies are not surprising given the sudden, traumatic and unexpected nature of these events.

It appears that, following your query as to the presence of the two men in the carpark, Mr Gray picked up a sledgehammer which had previously been used in the process of changing the tyre. After telling you to "fuck off", Mr Gray, having discarded the hammer, approached your four-wheel drive Jeep Cherokee station wagon. By this stage you had re-entered the vehicle and the windows were up and doors locked. On the evidence, Mr Gray approached your vehicle and tried the door handle. He may also have pushed on the window. At about that time he said, "Do you want to come outside and go on with it?" his behaviour may be regarded as exhibiting a level of aggression, but he was unarmed and standing outside your vehicle. There is no evidence that his actions converted your original anger to fear.

It is to be noted that at no stage had Peter Hess played any role in this encounter.

There are two versions of what next occurred. On Mr Gray's account you started the vehicle and drove forward causing him to take a couple of steps backwards to avoid being grazed by the back of the vehicle. The vehicle travelled in a clockwise direction accelerating towards Mr Hess who was observed to be standing on a naturestrip between the bitumen carpark and the roadway.

The gist of Mr Gray's evidence was that Mr Hess endeavoured to get out of the way of your accelerating vehicle and either ran or was forced towards the middle of the road, at which point he bounced off the bonnet of your vehicle and landed on the road surface. In his statement Mr Gray describes the four-wheel drive vehicle as having "chased Peter on to the bitumen roadway".

In relation to this aspect of your driving, Ms McAlister said she first observed your four-wheel drive vehicle facing towards the front of the truck at a 45 degree angle to it. There was a man standing near the driver's side door of your vehicle. On a fair reading of the material she would seem to have been identifying Mr Gray. She describes the vehicle reversing for about two metres, a manoeuvre which resulted in the man she observed being in a position two to four metres in front of it. On her observations the vehicle then immediately accelerated forward straight towards the stationary man. According to Ms McAlister the man raised his hands, but did not get a chance to move before being struck. The point of impact occurred in the carpark before the vehicle reached the median strip. Ms McAlister observed the man lifted on to the bonnet of the vehicle and subsequently falling to the roadway in about the middle of Carrol Crescent. She estimated the height of the man struck as about 5'10" tall. By contrast, the victim in this case, Mr Hess, was a large man, weighing 121 kilograms and measuring 191 centimetres, (or just over 6'6"), in height.

I prefer the observations of Mr Gray from his position at the scene to those of Ms McAlister whose vehicle had passed the scene of the impact prior to her observations being made. However, both witnesses expressed the view that you drove deliberately at the man struck. This view gains support from the fact that you drove across the median strip of the carpark when you could have left by any of three exits. I do not accept your assertion, made through your counsel, that you did not see Mr Hess prior to the impact. He was, as I have said, a big man and the carpark on this evening was very well lit.

After Mr Hess had rolled off the bonnet of your station wagon, your acceleration was such as to cause your vehicle to mount the kerb on to the opposite side of Carrol Crescent where it first struck a fire hydrant, then a treated pine barrier and a tree behind it.

Next, you then reversed in a manner described by Ms McAlister as "much quicker speed than someone would normally reverse out of their driveway". This was also the view of Mr Paul Jones, the driver of the vehicle in which Ms McAlister was a passenger. It was, however, Mr Gray's view that you reversed at a normal speed. Again I prefer the observations of Mr Gray who was in the best position to observe this manoeuvre. On the evidence the area of the roadway was less well lit than the carpark. However, at the time you reversed your vehicle you well knew that the body of Mr Hess had been deposited on the roadway. The wheels of your vehicle ran over that body. Mr Gray describes seeing the car "go over two bumps". I am satisfied that you well knew what you had done. Nonetheless, you accelerated swiftly from the scene. Your damaged vehicle ultimately broke down about four kilometres later on the northern section of Orrong Road, where you were intercepted by police.

Mr Hess remained conscious for some short time at the scene before suffering a cardiac arrest while being attend to by ambulance officers. Later that evening he was pronounced dead at the Alfred Hospital. The injuries suffered were extensive and are detailed in the autopsy report of Dr Malcolm Dodd.

In describing the injuries occasioned by the collision Dr Dodd was questioned on the basis that the acceleration of your vehicle to the point of its initial impact with the deceased was over a distance of about four metres. It is to be noted that this assumption was consistent with the evidence of Ms McAlister, but not that of Mr Gray. However, acting on this assumption, the Crown expert expressed the opinion that what had occurred was "a fairly low velocity impact at that distance". Accordingly, he expressed the view that, depending on the point of impact, there would possibly be bruising and abrasions to the mid or upper chest area which would equate with their contact with the bonnet, and bruising and abrasions, possibly to the facial area flowing from the secondary impact, which would be contact with the roadway. Additionally, there may be an isolated fracture or two.

In general terms it was the opinion of Dr Dodd that the multiple injuries which were the cause of Mr Hess' death were inflicted when the wheels of your vehicle reversed over him. In other words, it was the injuries occasioned in the second episode of driving that resulted in the death. Those injuries included the fracturing of almost every rib in the deceased's body; the fracture of virtually every bone in the pelvic region; the fracture of the left collarbone and of the right shoulder area involving the scapula; the fracture of the left thigh bone and of the right shin bones.

It was on the basis of this expert evidence the Crown could not prove that the initial deliberate impact of your vehicle with the deceased caused his death. Otherwise the charge of murder would have proceeded. Similarly, the prosecution conceded that it was unable to establish that your backing over Mr Hess was a conscious and deliberate act performed with the intention of killing him or inflicting really serious bodily injury upon him. By your plea, however, you have conceded that when reversing your vehicle on to the roadway where your earlier actions left Mr Hess lying, you consciously and unjustifiably disregarded a substantial risk that your driving would result in his death or the infliction of grievous bodily harm upon him. It follows that what occurred cannot, in any way, be characterized as a simple accident. Indeed, the facts of your driving to which I have adverted, point unequivocally to the opposite conclusion.

As has been pointed out by one member of the Court of Appeal in R v. McGrath [1997] VSCA 197 (per Callaway, J.A. At para.16) the worst class of culpable driving would almost certainly involve recklessness. It is my opinion that your driving on this evening constitutes a very bad case of culpable driving.

Any sentence imposed must not only reflect the gravity of this offence, but must deter others from the driving of their motor vehicle in a manner which may result in unnecessary and unavoidable killing on the roads of this state.

In passing sentence there are a number of matters personal to you which I must take into account. Before doing so, however, I wish to make some remarks about the deceased. Peter Hess was only 41 years of age at the time of his death. He had been married to his wife Elizabeth in March 1996 and a daughter, Sarah, was born in February 1999. In her Victim Impact Statement Mrs Hess speaks of the happiness of her life with her husband who many people described as "a gentle giant". Her own life which was, in her words, "bright like sunshine", is now "covered with cloud", whilst her daughter only has a photo of her father as a memory. Mrs Hess' mother, Remira, speaks of a devoted son who looked after her wellbeing during 25 years of widowhood, and of his support for his workmates, as well as his activities in cricket and football clubs. He was a person respected by all. Mrs Hess writes that she cannot fully express in words the loss she feels.

The death of Peter Hess, and the manner in which it occurred, is something from which his family will never fully recover.

Travis Eades, you are presently 32 years of age and have one brother Gavin, who is apparently a champion jockey. You came from a relatively well to do family with your father operating a pharmaceutical business in the Ascot Vale area. You were sent to Melbourne Grammar School which you attended to Year 10. Thereafter you enter the hospitality industry, working in a number of hotels on the Gold Coast including the ANA and Chevron Hotels. In 1988 you worked as assistant manager with an organization called Chris' Coaches during the Queensland Expo where your duties involved organizing tour buses. Returning to Melbourne in 1989 you completed a course in commercial cooking and thereafter worked at the Victoria Avenue Restaurant in Albert Park. Subsequently, you and a partner took over the contract in the kitchen at the Red Eagle Hotel, but your counsel informed the Court that this business failed because of your partner's gambling habits. Further business ventures, first in the finance industry, and later in the production of large imaging printing, were also unsuccessful. The final employment with which you were involved was with one of your character witnesses, Mr Michael Hart, at the Victoria Wholesale Market.

Insofar as other activities are concerned, you have played ice hockey with the Footscray Pirates, the team of which your father was secretary, whilst the whole family has been associated with the racing industry.

A number of character witnesses were called on your behalf. You were described variously as a respectful and loving son to your parents, and a person who has cared for your mother since your father's death in 1992. The loss of your father was said to have had a profound effect upon you. A witness, Ms Angela Smith, spoke of your kindness to her teenage daughter who was suffering from a terminal illness. This theme was taken up by Mr Wes Buntine who spoke of your friendship over the years with his eldest son who is intellectually disabled and suffers with epilepsy. A Catholic Priest, Father Joseph Giacobbe, frankly conceded that an uncontrollable temper had been the cause of a number of your past problems, particularly in relation to young women, when you would not accept that your relationship with them had finished. Indeed, the Court was told of three significant relationships with young women, all of which had broken down. The inability to form proper relationships has led to a great deal of anger and frustration on your part. Nevertheless, Father Giacobbe expressed the view that you were now endeavouring to rehabilitate yourself in the prison setting.

A bundle of testimonials was tendered to the Court, including from jockeys Darren Gauci and Damien Oliver, which reinforce those positive aspects of your character to which I have already referred.

However, these accolades must be seen in the context of your prior convictions. Between November 1987 and October 1990 you had three court appearances for seven offences involving dishonesty.

In January 1994 you were convicted at the Prahran Magistrates' Court of unlawful assault, which apparently related to an altercation at a nightclub where you approached a former girlfriend and grabbed her by the hair. In July 1998 you were convicted at the Melbourne Magistrates' Court of driving a motor vehicle in a manner dangerous to the public, recklessly causing injury, resisting a police officer in the due execution of his duty, failing to answer bail and driving a motor vehicle whilst having a blood alcohol content exceeding .05. According to the Crown these offences began with a violent confrontation in a car with a woman with whom you were then living. A passing police officer endeavoured to intervene, but you drove off dragging him down the road. The police officer managed to stop the car, apparently by removing the keys from the ignition. In March 2000 you were found to have breached an Intervention Order when you attended the house of Ms Maria Patrick, although it is not alleged that violence occurred on that occasion. You were also convicted of driving a motor vehicle whilst your authorization was suspended, (your licence having been cancelled for earlier offences).

Up until now you have received fines, a Community Based Order and an adjourned bond. You have not previously been sentenced to any term of imprisonment.

Your record, which includes convictions for both acts of violence and driving offences, does not, on its face, provide much confidence in your rehabilitation. It also provides a warrant for weight to be given to specific deterrence in any sentence imposed upon you.

Nonetheless, as Father Giacobbe put it, you have, whilst in prison, adopted a "pro-active approach to build self-esteem and progress rather than ... Become depressed and resentful". This is instanced in a number of programs you have undertaken including "Skills and Goals for Life" and "Consequential Thinking", as well as programs involving communication skills, anxiety and stress management and self-esteem building. Additionally, you have undertaken certificate courses offered by Kangan TAFE in asset maintenance (cleaning operations). This is to your credit.

I also take into account in your favour a letter signed by you addressed to the family of Mr Peter Hess apologizing for his death. I am prepared to accept that it is evidence of some degree of remorse on your part, but your assertion in it that what occurred was an accident, indicates an unwillingness to recognise your full responsibility for Mr Hess' death.

You are also entitled, in the sentence passed, to credit for your plea of guilty, which may also be seen as demonstrating some remorse.

All that having been said, your conduct in the driving of your motor vehicle on this night was appalling and the seriousness of this offence must be reflected in the sentence imposed.

Taking all the matters which I have referred into account, and balancing as best I can the sentencing principles enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I conclude that the appropriate sentence is that you be imprisoned for period of ten years. I fix a minimum period of seven years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 389 days inclusive of today's date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.

Any driving licence held by you is cancelled and you are disqualified from obtaining a further licence for a period of ten years.

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Judgment (42 paragraphs)

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