DPP v Mitchell [2019] VCC 624 (6 May 2019)

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IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised

(Not) Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MITCHELL

JUDGE:	HIS HONOUR JUDGE C J RYAN
WHERE HELD:	Ballarat
DATE OF PLEA HEARING:	2 and 29 April 2019
DATE OF SENTENCE:	6 May 2019
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2019] VCC 624

Catchwords: Dangerous driving causing death – absence of common aggravating factors such as drug or alcohol use, use of mobile phone – offender suffering Post-Traumatic Stress Disorder – whether rehabilitative factors outside scope of offending can be taken into account – combination imprisonment and Community Correction Order within range

Sentence: 12 months’ imprisonment to be followed by a 3 year Community Correction Order – s6AAA declaration of 4 years’ imprisonment with non-parole period of 2 years and 6 months’ imprisonment.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Cordy	Solicitor for the Office of Public Prosecutions

For the Offender	Mr R Timms	Cahills Barristers & Solicitors

1 Michael Mitchell, on 2 April 2019, you pleaded guilty before his Honour Judge Mullaly to one charge of dangerous driving causing death. Your plea was entered at the end of a sentence indication hearing, where his Honour Judge Mullaly said that upon a plea of guilty he would sentence you to a term of imprisonment.

3 You admitted your prior driving history that commenced when you were 21 years of age and it includes two prior convictions for exceeding .05 in 1993 and later via a traffic-infringement notice in 2006. As well, by way of traffic infringement notices, you have been dealt with for exceeding the speed limit in 2000, 2001, 2010, 2012 and 2016, as well as other driving infractions.

4 The maximum penalty for dangerous driving causing death is 10 years' imprisonment.

5 Tendered as Exhibit “A” and read aloud in court was a Summary of Prosecution Opening for Plea. In summary, on 24 February 2017, you were driving a

2005 Hino Tipper Truck carrying a bobcat in a generally northerly direction along the Midland Highway in Newlyn North, when you veered to your right and over the white dividing line and into the southbound lane, colliding with a vehicle driven by the deceased, George Paul Hubber Junior, known to his family as Paul. At the point of impact, the passenger side of your truck was 2.6 metres over the centre dividing line of the road. Mr Hubber died instantly as a result of the collision.

6 Mr Hubber was driving his red 2000 Land Rover and had as a passenger his father, George Hubber Senior. At about 4.45pm, the deceased and his father left the deceased's home in Daylesford and were travelling to Creswick and accordingly they were travelling in a southerly direction on the Midland Highway immediately prior to the collision.

7 Detective Sergeant Dr Jenelle Mehegan, an expert in collision reconstruction, attended the scene of the collision and ultimately in her report opined:

8 This opinion is consistent with the evidence of Mr Hubber Senior, who immediately prior to the collision noticed the truck starting to wander into the southbound lane and yelled out to his son, Paul, to “Watch out”. The truck kept coming and collided with the Land Rover forcing it off the road.

9 On the day of the collision, you were working in Ballarat with your supervisor, Mr Hodgkiss. You had been working at the site in Ballarat for a couple of weeks. Both you and your supervisor lived in Bendigo. Your supervisor would pick you up at 6.10am and drive you to Ballarat, a trip of approximately one-and-a-half hours. Your supervisor drove you home at the end of each working day. The collision occurred on the last day of the job at Ballarat. During the course of the job the truck and bobcat remained at Ballarat. However, as the job was over, you were to return the truck and bobcat to your workplace in Bendigo. Your supervisor travelled in a separate vehicle back to Bendigo.

10 In respect to your offending, there is no suggestion that you were on the telephone at the time of driving. A blood sample was taken from you and later analysed and confirmed that there were no drugs or alcohol in your system. There is no suggestion that you were travelling above the speed limit and there were no mechanical faults with your truck that contributed to the collision.

11 You were interviewed under caution after the collision and amongst other things told the police:

(a) “I looked to me left as it was approaching, something caught my eye to the left ... and all of a sudden bang.” (See Q&A 37);

(b) When asked for your explanation for how the truck ended up on the other side of the road you said “I have no explanation for that.” (See Q&A 166-172).

12 Immediately after the collision, you went to the deceased's car to see if the occupants of that car were alright. Mr Hubber Senior recalls someone approaching the car saying “Sorry I didn't see you.”

13 Tendered as Exhibit “B” were Victim Impact Statements, one from each of the father, mother and sister of the deceased. Each are inconsolable in their grief. Mr Hubber Senior lives with the constant memory that his last words to his son were “Watch out for the truck”, words said in panic. He too suffered injury and has been unable to return to work in his consultancy business. His sleep is disturbed and he lives with the daily recollection of his son's death. Mrs Hubber's happy life has been replaced with one of profound sadness. She grieves for the life that she enjoyed with her son and had hoped to enjoy for many years to come. The deceased's sister has lost her soul mate and is broken-hearted by the realisation that she will never see her brother and enjoy his company again. She seeks to support her parents in their grief and this adversely affects her own emotional state. She is depressed, consults her general practitioner and a therapist in this respect, and is medicated for her depression. By your conduct, you have shattered a loving family.

14 Many of the aggravating features that are encountered in cases of this kind are absent in your offending. However, the absence of aggravating features is not the same as the presence of mitigating features. I must assess the dangerousness of your driving. You were driving a relatively heavy vehicle. You allowed yourself to be distracted to the extent that you travelled onto the wrong side of the road with your right-hand wheels over the fog or continuous line on the eastern edge of the tarmac for southbound traffic, the direction in which the deceased and his father were travelling (See Depositions, p.34, the Mehegan Report). Such a manoeuvre is inherently dangerous however, it was momentary distraction, and by that I mean a matter of some seconds, that brought this about. Accordingly, your offending is towards the lower end of offending of its kind. Having said this, general deterrence must be given considerable weight in arriving at an appropriate sentence in your case. Bearing in mind your antecedents, I am of the view that specific deterrence has a role to play in arriving at a proper sentence, although its role is limited.

15 You are 46 years of age and are the father of two children aged 13 and 14 respectively. You have been divorced for some 10 years or so. Since your divorce, you have exercised fortnightly access to your children on a regular basis. As to your earlier history, your mother died when you were 11 years of age and your father died when you were 22 years of age. You have one older brother, who is estranged from you as a result of your offending. You were educated to Year 9 level, leaving school halfway through Year 10 to take up employment. You have always been employed at various jobs, including sales, working as a factory hand and labouring. You had been employed as a truck driver and bobcat operator for only three weeks prior to the collision that brings you before me.

16 You reside with your cousin in a suburb in Bendigo and have become a recluse. Two days after the happening of the collision you attempted suicide by hanging and subsequently spent a week in the psychiatric unit at the Bendigo Hospital. You have experienced suicidal ideation regularly since the collision.

17 As an aspect of punishing yourself, you have refused to exercise access to your children as you feel unable to face them. I am satisfied that you are truly remorseful for your conduct and that your statement to Pamela Matthews, psychologist, whose report became Exhibit 1 on the plea, that if you could take Paul Hubber's place you would, is a true expression of your remorse.

18 Whilst there is no suggestion that any illicit substance or alcohol had any part to play in the collision, it appears from Ms Matthews' report, that you described your alcohol consumption as 10 cans in one or two days, approximately once a fortnight. You admitted using cannabis from the ages of 15 to 33 years. You used amphetamine “on special occasions”, such as New Year's Eve, although you reported that you last used amphetamines some three or four years ago. You told investigating police that you had consumed heroin a couple of days before the accident. For you to be rehabilitated, this aspect of your personal life must stop.

Post-Traumatic Stress Disorder, a diagnosis which I accept. Further, Ms Matthews opines that you will require psychological support to settle in a prison environment, and that you will be an immediate suicide risk and will require monitoring whilst you are in custody.

20 Mr Timms, solicitor who appeared on your behalf and who presented a most helpful plea, submitted that the appropriate disposition in all the circumstances was a combination sentence of a period of immediate imprisonment together with a community correction order, with conditions that would address your mental health, alcohol and drug abuse, and rehabilitation by way of driver education.

21 Mr Cordy, who appeared on behalf of the Crown, submitted that a term of immediate imprisonment was warranted but that a sentence of imprisonment, together with a community correction order, was within range. Accordingly, I had you assessed for suitability for a community correction order.

22 I have received the assessment dated 1 May 2019. You have been assessed as suitable for a community correction order after having served a term of imprisonment.

23 You conducted a committal and employed a collision reconstruction expert to call into question some of Detective Sergeant Dr Mehegan's findings. This attitude was abandoned at the sentence indication hearing. Whilst your plea of guilty is not an early one, in your circumstances I regard it as evidence of your remorse. Additionally, it has utilitarian benefit and you must receive the benefit which flows to you from your plea.

24 Gentlemen, I would like to check pre-sentence detention as seven days, is that correct?

26 HIS HONOUR: Thank you. Would you please stand? Taking into account the circumstances of the offence and its effects with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the principles and purposes of sentencing in a manner appropriate to you and your offending, I sentence you to a term of 12 months' imprisonment combined with a community correction order for a period of three years with conditions.

(i) You be supervised, monitored and managed as directed by the Secretary of the Department of Justice and Regulation or his nominee;

(ii) You undertake assessment and treatment in respect of your mental health;

(iii) You undertake assessment and treatment (including testing) for drug and alcohol abuse or dependency; and

(iv) You undertake behaviour programs directed at reducing your risk of reoffending which include driver education.

28 I declare that you have spent seven days by way of pre-sentence detention not including today.

29 I cancel all licence and permits to drive held by you under the Road Safety Act 1986 and I disqualify you from obtaining any such licence or permit for a period of 18 months.

30 I declare pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of two and a half years' imprisonment. You may be seated. Now, is there an application for a 464ZF?

32 HIS HONOUR: Yes. Could I have those documents please? Thank you. Mr Timms, what is your client's attitude to this order?

34 HIS HONOUR: Thank you very much indeed. Now, Mr Mitchell, my associate will bring to you the community correction order documents for you to sign. Mr Timms, if you wish to assist your client in this exercise, by all means approach the dock.

36 HIS HONOUR: Thank you very much. If you would take it to him now, please. There appears to be some difficulty with our printer, for which I apologise. Please be seated, Mr Timms.

37 All right, Mr Mitchell, would you please stand? Once you have completed the 12 months' term of imprisonment that I have imposed upon you, you will commence a community correction order for a period of three years. You must attend at the Bendigo Community Correctional Services at the Bendigo Justice Service Centre, 3 William-Warland Place, Bendigo within two clear working days after you have been released from prison.

38 Now there are a number of mandatory conditions which form part of this order, but the additional conditions that I have imposed are that you must be under the supervision of a Community Corrections Officer for a period of three years; you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager; you must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager; you must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager; and you must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager including driver education programs.

39 The Crown have made application for what is known as a forensic sample. I have authorised the scraping from your mouth for what is known as a buccal swab. I have granted this order on the basis of the seriousness of the circumstances of your offending warrant the order; your prior convictions are such as to warrant the making of the order; that the order is by consent; and that the granting of the order is in the public interest. I must inform you that if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable use to enable that forensic procedure to be conducted. You may be seated.

40 I am just going to have the orders printed up so everybody has a copy for their records.

42 HIS HONOUR: Thank you very much. Now my associate will provide counsel, of course, with copies of each of the final order, the forensic sample order and the community corrections order and the prisoner will be provided with a copy of those documents for his records. I want to thank you, Mr Timms for a very helpful plea. And you, Mr Cordy for your assistance.

45 MR CORDY: No, Your Honour. But I wonder whether before we commence the next matter, if I might be permitted a short indulgence so I can speak with - just need to speak to Mr Hubber's family for a few minutes, Your Honour.

48 HIS HONOUR: Well then, we will stand down till quarter to 11, till the next matter. You may remove the prisoner.

County Court of Victoria

DPP v Mitchell [2019] VCC 624 (6 May 2019)