The Queen v Bollen [2014] VSC 651

2 The maximum penalty for culpable driving is 20 years' imprisonment.[1] The maximum penalty for negligently causing serious injury is ten years' imprisonment.[2]

3 On Friday, 21 November 2014, I heard an opening from the prosecutor, Ms Hassan, together with statements of the impact of your offending on the victims of the offending, evidence and submissions both on your behalf and on behalf of the prosecution. It is now my responsibility to sentence you for these charges.

4 The charges to which I have just referred arise from a tragic collision that occurred at about 11.40am on Saturday, 3 November 2012. This is yet another case that illustrates the extraordinary danger when motorists do not comply with railway crossing signals for whatever reason. The danger was magnified in your case because you were attempting to manoeuvre a large commercial vehicle.

5 On that day, a train travelling to Cranbourne and driven by Trevor King was derailed at a railway crossing on Abbotts Road, Dandenong South as a result of a collision with a truck driven by you. In that derailment, one passenger on the train, Mr David Cron, died at the scene and several other passengers, whom I will name shortly, were seriously injured. I will come to the details of that death and those injuries during these reasons for sentence.

6 In the collision, you were driving an articulated semi-trailer. It was a white 1993 Western Star prime-mover, towing a trailer loaded with produce. This was a vehicle of significant size and weight and, I assume, well in excess of 30 metric tonnes.

7 Prior to the collision your vehicle was seen by a number of people in the vicinity of the railway crossing. At the intersection of Abbotts Road and the South Gippsland Highway, some distance back from the crossing, your vehicle was observed to make a right hand turn onto Abbotts Road. You then travelled in a westerly direction toward the railway crossing. Your truck passed through the intersection of Abbotts Road and Monash Drive as it approached the railway crossing. Witnesses described a scene that as you approached the railway crossing the boom gates were down and the red lights were flashing. You continued to approach the railway crossing and it became apparent to them that your vehicle was not slowing as would have been expected if it was going to pull up at the stop line before the crossing. Your vehicle was not speeding, and was later calculated to be travelling at the speed limit. According to witnesses, at the last minute it became clear to you that you were not going to be able to stop before the crossing. Apparently realising your predicament you first applied the brakes. Witnesses saw smoke coming from the rear wheels and heard tyres screeching; signs of the brakes having locked. Your truck moved to the centre of the road and then to the left and, although the boom gates were down, it was apparent that you were attempting to steer around the boom gates and had obviously decided that your best hope of survival was to try to get across the railway line before the train hit your vehicle.

8 Other witnesses, who were on the opposite side of the level crossing from you, described seeing smoke coming from the front wheels of your vehicle, seeing your vehicle hit the boom gate and then accelerating through the crossing, hitting the boom gate on the opposite side. One witness in particular, who was on the opposite side of the crossing, first observed your vehicle "..about five to ten metres from the boom gates", as the vehicle was about to go through the crossing.[3] He said he could see you. He said:

When I first saw the truck, I saw the driver had his head down, as though he was looking at the dash, reading something, or using a phone or something like that. I could not say exactly what he was doing but he was not looking at the road ahead of him.[4]

9 That witness continued to look at you and saw you lift your head and look at the road, observed a startled look on your face and then saw smoke coming from the truck tyres. He described you looking up as being more or less coincident with braking on the truck, after which the vehicle swerved to the right and then the left, before hitting the boom gates on both sides of the crossing.

10 As your truck drove across the railway crossing, the approaching train struck the trailer. As a result of that collision, the train derailed. The evidence indicates that just before the collision, the train was travelling at close to its maximum speed, just short of 114 km/h. The train horn apparently sounded at around 13.7 seconds prior to the collision. The emergency brake was applied on the train 72 metres before the collision site, and had virtually no effect it would seem. The lights and bells on the crossing commenced operation 24-25 seconds prior to the collision. The rear two carriages appear to have remained upright and on the tracks. The four front carriages derailed with extensive damage to the front two carriages, including the driver's compartment. One of those front two carriages rolled onto its side.

11 In the subsequent investigation, a collision reconstruction was carried out by police indicating that the skid marks left by your vehicle were some 20.7 metres in length and curved to the right, stopping at the stop line about 13 metres prior to the eastern side of the crossing. That indicated that you had ceased to brake and then steered back to the left as you tried to avoid the approaching train. At the time that you realised that the boom gates were in operation, you were 77.98 metres from the level crossing.[5] Police reached the conclusion that the speed of your vehicle at the time the brakes were applied was 59.8 km/h, which, in turn, meant that at the time when the crossing first became active, your vehicle was 343 metres from the point of impact. That, in turn, meant that you travelled 266 metres before you perceived the hazard, being the active level crossing. To convert that to time, according to the police reconstruction, some 19 seconds passed before you perceived the level crossing ahead of you was active and therefore represents 19 seconds of inattention which, as the prosecutor has said, occurred in circumstances where the weather was fine, visibility was good and the road was straight and in good condition. This was an area that you knew and had travelled a number of times before.

12 The train that you collided with was a passenger train and was the scheduled 10.55am train to Cranbourne. As I have said, it was a six-carriage train. The deceased passenger was David Cron, who was aged 43 years old at the time of his death. He was seated in the first carriage. Mr Cron died at the scene of the collision and the forensic pathologist determined that the cause of death was head and chest injuries, which he sustained as a result of the collision.

13 Amongst those seriously injured was Trevor King, who was the train driver at the time of the collision. He suffered a moderate traumatic brain injury with a loss of consciousness. A CT brain scan revealed a subdural haematoma and he had fractures to ten to twelve ribs on his left side. He also suffered fractures to his hands and foot.

14 Lucia Hatzivoyiatzis was seated in the first carriage and suffered right shoulder pain, left knee pain and multiple minor lacerations. She had a minimally displaced greater humeral tuberosity fracture, which is a shoulder fracture.

15 Charina Villa was in the second carriage and suffered a laceration to her skull, mid-lower back pain, pain in the left arm, and superficial bruising on both legs and on her upper left arm.

16 Finally, Julita Vidot was seated in the second carriage and suffered a liver laceration and subsequent acute post-traumatic stress disorder.

17 In the immediate aftermath of the collision, you said several things about what happened and why it occurred. You told Mr Darren Ruys, "I don't know what happened, I must have fallen asleep or something". You then got out of your truck and rang your employer, Mr Clemmens, and Mr Ruys overheard you saying to Mr Clemmens, "I don't know what happened, I must have fallen asleep and the train hit me". A Mr Hassan also heard you speaking on the phone, saying "I must have dozed off, mate".

18 Mr Clemmens said that in the phone conversation with you, you described the steering wheel being in your stomach and the train hitting the trailer and, in answer to the question as to what had occurred, you said "I don't know, I think I must have snoozed", at which point Mr Clemmens said "Don't say that, you'll get into trouble".

19 You then spoke to Constable Tim Douglas and said, among other things, "I was going to Coles for a delivery when I must have either fallen asleep or not paying attention. All of a sudden I hit the train and collected the trailer and I kept on driving and parked the truck here".

20 You have acknowledged that you were an experienced driver and that you were familiar with the area in which the collision occurred. You said, in accordance with records that have been produced, that on the previous evening you went to bed at 8.00pm, you got up to go to work at about 1.30am. You also said that on 3 November 2012, you slept for about two hours at Woolworths in Mulgrave before the collision.

21 In the record of interview, which was conducted at the Dandenong Police Station, you said you could not explain what had happened and it was all a bit of blank spot. You said:

All I can tell you is just that it seemed that suddenly the boom gates are down and I realised I wasn't going fast but I thought I'm going to pull up - I'm not going to pull up in that distance, and it just happened. The truck went through the boom gates with me in it and the train got the trailer.

22 According to your memory, you had not even tried to stop and you could not recall whether you had endeavoured to accelerate once you realised you had passed the point of no return.

23 The police asked you about the witness who had seen you with your head down, and you said "It could be, I've got a grey area there, I can't help you". You referred to a blank spot in your mind and said that it was not impossible that you had gone to sleep but you did not think you had done so.

24 During the course of the plea proceedings, eight victim impact statements were produced from the following:

25 The family of Mr Cron gave restrained yet eloquent descriptions of the impact of their family member's death on them. Each of those victim impact statements were read to the Court by the family. It was a very moving description of the impact of the death of David Cron on the rest of his family.

26 The other victim impact statements came from those injured as a result of the derailment of the train. Those effects included a resultant fear of using public transport and increased anxiety about bad things happening to them or their family. They also seemed to have symptoms of post-traumatic stress such as flashbacks and nightmares.

27 Trevor King, the driver of the train, spent two weeks in the Alfred Hospital and three weeks at Epworth Hospital, followed by more outpatient treatment. Complications from the surgery that was performed on him resulted in the need for him to be re-admitted to hospital on several further occasions. He has now returned to driving trains but still carries the consequences of his serious injuries.

28 All of those who survived the collision will carry the effects of the collision and their injuries for the rest of their lives. As I have already noted, included in the impact on them, is the resultant apprehension about travelling on trains in the future. That is not something people are used to and is very significant, given the importance of public transport in this community.

29 I have taken the content and detail of these victim impact statements into account in determining the sentence I should impose on you.

30 You are currently 71 years of age and, at the time of the incident ,you were 69 years. You have no prior convictions for any criminal matters and the only blemish on your record is one relatively minor traffic infringement for speeding in January 1986, as a result of which your licence was suspended for six weeks. I pay no attention to this matter for the purpose of this case.

31 It was put on your behalf that you have an outstanding record as a man who has been a professional driver for almost 50 years of your life.

32 You grew up in the Surrey Hills and Blackburn areas and you have an older sister. Your education was at Blackburn South Primary School and then at Box Hill High School until fourth form or Year 10. At the age of 15 you embarked on a five-year mechanics apprenticeship and worked in a variety of automotive service centres, commencing in 1958 and then, during that period, began working on trucks. For a time you worked as a truck operator with Pioneer Concrete and then began to carry out repairs to trucks. In 1978, you bought a truck and trailer and worked with earthmoving equipment. You then continued to drive more frequently until you began working for a Mr Graham Godfrey from about the year 2000. At the time of the collision you were towing David Clemmens' trailer.

33 You were married in 1968 and have a child from that marriage with whom you do not have contact. You later commenced a relationship with a Ms Vivian Saunders, and, in addition to three children of her own, you had two children from that relationship. During that relationship, you purchased a property at A'Beckett Road in Narre Warren, which it seems you have now lost. Your relationship with Ms Saunders broke down some 15 years ago and your relationship with her children is effectively over, although, as I understand it, you see your daughter, Rachel, from time to time, who in turn has two children of her own. Your closest relative is your son, Gregory Bollen, who is also in the trucking industry. Upon your release from custody, it is proposed that you will reside with him.

34 I am told by your counsel that the effect of this incident has been significant for you also. You appear to suffer from depression and nightmares and I have no doubt you feel remorse at what has occurred. Since the collision, your licence has been suspended, which means that your working life is over and, as I earlier mentioned, you have been required to give up your premises at A'Beckett Road, Narre Warren.

35 Written references were provided by a number of people. They included David Peters, Graeme Johnston, David Estcourt and Jeffrey Johnston. They have described you as being honest, responsible and trustworthy. They have observed the devastating effect that this incident has had on you. They refer to your hard working life and your willingness to do all that you could to provide for your family.

36 In addition to the written references, I heard evidence from Mr Ian Castles, who has known you for some 57 years and since you were a young apprentice.

37 He described your character as 'unwavering' and referred to you as a person of high integrity, honest, a good family man and a gentleman.

38 It was to Mr Castles that you turned on the day of the incident after he had been telephoned by your son. He had no hesitation but to do everything he could to assist you. He described, in compelling detail, the change in you as a result of what he described as the 'terrible weight' on your shoulders.

39 Mr Gullaci, on your behalf, conceded that an immediate custodial sentence was the only available penalty and, on 21 November 2014, I remanded you in custody.

40 Mr Gullaci relied on your good character, which was not contested. He pointed out that this case initially had a significant reliance on the issue of fatigue on your part. Initially, the case against you was put on the basis that your negligence was established by proving that you drove the vehicle when you were fatigued to such an extent that you knew or ought to have known that there was an appreciable risk of you falling asleep while driving or losing control of your vehicle.[6]

41 The prosecution abandoned that basis of establishing negligence and the offence to which you have pleaded guilty is negligence, in that you drove the vehicle having failed, unjustifiably and to a gross degree, to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.[7]

42 Indeed, notwithstanding the reference to fatigue by the prosecutor during the course of the opening on your plea, your counsel urged me to conclude that there was insufficient evidence to say that fatigue played any role in the gross negligence the prosecution relied upon.

43 Mr Gullaci also submitted, on your behalf, that the way you drove your vehicle on this day indicated that, at the time of this collision, you were not in a hurry and, indeed, had taken this route to avoid a few tolls rather than take Eastlink, which would have been quicker. Other witnesses described your driving until this incident as normal. Mr Gullaci frankly said, to a question from me as to what actually happened, that he was not going to be able to put forward a positive proposition to explain why you suddenly lost concentration and failed to see that which was obvious, that the railway crossing was operative. Your instructions to Mr Gullaci are that you do not know what happened, although he urges me to conclude that whatever it was, you were not asleep.

44 I am satisfied to sentence you on the basis that you had not fallen asleep but that you were distracted and were not paying attention in the lead-up to the collision. Given that you were driving a truck of the dimensions that you were and, given the likely serious consequences of any incident involving that vehicle, the fact that you were distracted for as long as 19 seconds naturally makes this a very serious offence.

45 Certainly the witness who saw your head down in the cabin did not describe you as someone who had fallen asleep but rather, his impression was that you appeared to be looking at something and were therefore distracted.

46 Mr Gullaci submitted that, given all the circumstances, I should not conclude that you had fallen asleep and that the prosecution do not appear to be urging me to that conclusion either.

47 On your behalf, Mr Gullaci conceded that not realising that the railway crossing was operating until a distance of 266 metres had been covered and 19 seconds had elapsed was a significant failure, particularly given that you were driving the type of vehicle that you were.

48 Mr Gullaci informed me that you had, prior to being remanded in custody, been living out of a workshop at 21 Hilton Street, Dandenong and that in that workshop, having lost your house, you were living a very meagre and basic existence. There is no expert evidence about your mental state, but I am willing to accept that you are suffering from what Mr Gullaci referred to as 'a situational depression' and I do not have any doubt that this incident has affected you quite significantly.

49 As to this position, Mr Gullaci accepts that there needs to be a degree of cumulation of the offences with which you are charged to recognise the consequences of what you have done in each case.

50 I do accept, as Mr Gullaci relied upon, that your conduct from the day of the incident onwards indicated a willingness on your part to accept responsibility for what you have done. I do not expect that you would have understood the nuances involved in the way the indictment for Charge 1 was to be drafted and, the fact that you pleaded guilty to this count after one and a half days of a pre-trial hearing, does not count to your disadvantage as far as sentence is concerned. I accept that you realised you needed to take responsibility for what happened and, despite being advised against referring to the possibility of having fallen asleep when speaking to police, you left that open as an explanation for what had occurred. That is to your credit.

51 Mr Gullaci urged me to take into account your age. Your age is a significant consideration because you are now 71. Every year you serve in custody represents a significant portion of your remaining life expectancy. Nonetheless, the law says that age cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence. In this case, as in several other cases where such an issue has arisen, principles of just punishment and general deterrence are also of considerable significance, notwithstanding your age. Nevertheless, I have taken your age into account, bearing in mind all the other relevant considerations. I have no doubt that at age 71, being in custody for the first time will make that penalty significantly more burdensome.

52 Mr Gullaci also submitted that your prospects for rehabilitation were good - indeed excellent. For my part, I do not have the slightest doubt that upon your release there will be a negligible risk of you committing any further offences. You appear to have family support and I am confident that you will live a law-abiding life once you are released.

53 Nonetheless, as the driver of a heavy vehicle who was fatigue-related, an appropriate punishment has to be imposed upon you. It is true that none of the circumstances that are often involved in culpable driving cases, including alcohol, drugs or speed, are involved in this case. But, as Ms Hassan submitted, there is here a remarkable period of inattention in circumstances where an active level crossing was ahead of you. It is appropriate to describe your failure to realise at an earlier time the operative railway crossing ahead of you as a 'remarkable failure' to keep a proper lookout.

54 In view of the manner in which this case developed, it is necessary to deal separately with the role of fatigue (if any) in this collision. Before you pleaded guilty, I heard evidence dealing with the prosecution's original allegation that the incident happened because you were fatigued, had fallen asleep and knew or ought to have known that that would occur. It soon became clear, when that evidence was tested, that such a conclusion was not viable and the prosecutor abandoned that form of negligence under s 318 of the Crimes Act 1958 (Vic), as I have already described.

55 In opening the case on the plea the prosecutor, Ms Hassan, alleged that you were fatigued but later made clear that it was no longer being put by the prosecution that you had fallen asleep or that you were fatigued and knew or ought have known that you were. However, the prosecutor did point out that you had committed regulatory breaches in relation to required rest during the period of work leading up to the collision in that you had five hours' sleep the night before and that, in trying to explain what happened, you suggested you might have fallen asleep. It is sufficient to say that having heard the evidence I did on the voir dire, coupled with what is really an invitation to join the speculation, I could not be satisfied beyond reasonable doubt that you had fallen asleep.

56 Clearly there was a period of inattention by you - that much is obvious. It is certain you were not paying anywhere near the attention to your driving that you should have been. Why that occurred may remain uncertain.

57 This is a difficult case, as such cases so often are. It is tragic because there is a person deceased and others seriously injured. For those who survived and for the family of Mr Cron, the effects will be life-long. This has occurred as a direct result of your driving which you accept was culpable within the legal meaning of that word although, of course, none of what occurred was intended by you.

58 This is, however, also an unusual case of culpable driving. You are now 71 years of age. You are a person of exemplary character with a similar driving record. Your driving record would be a matter for pride for any motorist but you have been a professional driver and so I can conclude that, for the whole of your working life, your attitude to your driving has been responsible. This terrible incident was not caused by the speed of your vehicle or as a result of the consumption of drugs or alcohol by you[8]. These offences are so often committed by much younger men who have made a deliberate choice to drive dangerously and/or when significantly affected by alcohol or drugs. In addition, your loss from this collision is also dramatic. Of course a life was lost and lasting injuries occurred, but you also have also lost almost everything except the support of your son. At age 71, you are now faced with serving a period of imprisonment. As I have already said, that must be a significant burden for you.

59 In my opinion, it is appropriate to borrow the language of the Court of Criminal Appeal in Okutgen v R[9] when the Court concluded that a man of 40 years who had not previously breached the law (which is the same here, apart from a minor matter), and had led a decent and honourable life and worked hard all that time can "call in aid" his good character and working life. At the age of 71, then all the more so. Ten years later in R v Bazley[10] the same Court said:

The age of an offender is no doubt a relevant sentencing consideration. It may, in some cases, be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.

60 The Court then referred to Crowley & Garner v R,[11] where Crockett J referred to the concept of a sentence that is "crushing" not always being manifestly excessive on that basis alone. I am of the view that, apart from the other matters that stand to your credit, in this case your age and exemplary character are of considerable significance. Given that your offences bear no similarity to the kind of offending that occurred, for example, in R v Bazley, or to culpable driving cases that involve deliberately dangerous driving accompanied by speed, alcohol and/or drugs, your age and record should be given considerable weight. In addition, the time you now spend in custody, as I have already said, represents a significant portion of your remaining life expectancy. In this case, your offending was a tragic 19 seconds of inattention after a lifetime of responsible professional driving.

61 Also, in my opinion, the very fact that, notwithstanding your age of 71 years, you will be required to be imprisoned for a time, despite speed, alcohol or drugs not being a factor in this event, will be a salutary lesson for anyone. Having said that, in my opinion, the consideration of general deterrence may have a lesser significance in this case and the sentence I will impose on you should not be regarded as anything other than the sentence I consider is appropriate for this case. Further, you have the prospect of more life to live and I see no benefit for the community in depriving you of a significant proportion of that. In addition, the consideration of specific deterrence has no role in this case. In all likelihood, you will never drive again. Even if you were to, I have no doubt that you well and truly understand the importance of maintaining a vigilant lookout at all times when driving any motor vehicle and particularly a vehicle of the size and weight that you were driving.

62 In all the circumstances and taking into account your plea of guilty and your previous good character and age as well as the other matters to which I have referred, the sentence that I will impose upon you is as follows:

1. On Charge 1, the charge of culpable driving, you will be sentenced to be imprisoned for a period of four years.
2. On Charge 2, a charge of negligently causing serious injury to Trevor King, you will be sentenced to be imprisoned for a period of 18 months.
3. On Charge 3, a charge of negligently causing serious injury to Lucia Maree Hatzivoyiatzis, you will be sentenced to be imprisoned for a period of 12 months.
4. On Charge 4, a charge of negligently causing serious injury to Charina Villa, you will be sentenced to be imprisoned for a period of 12 months.
5. On Charge 5, a charge of negligently causing serious injury to Julita Vidot, you will be sentenced to be imprisoned for a period of 12 months.

63 I direct that three months of the sentence on Charges 2, 3, 4 and 5 be served cumulatively with the sentence on Charge 1. That results in a total effective term of five years' imprisonment.

64 I direct that you serve a minimum period of two years and six months' imprisonment before you become eligible to apply to be released on parole. I declare that your pre-sentence detention is 27 days, not including this day, and I direct that that period be reckoned as time already served pursuant to s 18 of the Sentencing Act 1991.

65 I indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) , had you not pleaded guilty to the charges which have been brought against you, then the total effective sentence that I would have imposed upon you would have been a sentence of eight years' imprisonment, with a minimum period of five years' imprisonment.

66 I will make the forensic sample orders pursuant to s 464ZF of the Crimes Act 1958 (Vic).

67 Given that you have pleaded guilty to a serious motor vehicle offence, pursuant to s 89(1) of the Sentencing Act 1991, I order that your licence to drive any motor vehicle be cancelled and you be disqualified from obtaining any such licence for a period of five years.

[1] Crimes Act 1958 (Vic) s 318(1). Pursuant to s 318(1A), the baseline sentence is 9 years' imprisonment.

[2] Crimes Act 1958 (Vic) s 24.

[6] See s 318(2A) Crimes Act 1958 (Vic).

[7] See s 318(1) and (2)(b) Crimes Act 1958 (Vic).

[8] Cf, for example, DPP v Miller [2005] VSCA 7 where although the sentence was found to be at the bottom of the range, the circumstances justified it (per Nettle JA and Cummins AJA).

[9] (1982) 8 A Crim R 262 at 265-6.

[10] (1993) 65 A Crim R 154 at 158-9.

[11] (1991) 55 A Crim R 201 at 206.