IN THE COUNTY COURT OF VICTORIA Revised Suitable for Publication AT MELBOURNE … · 2020-05-04 · VICTORIAN GOVERNMENT REPORTING SERVICE 210002 IN THE COUNTY COURT OF VICTORIA Revised

VICTORIAN GOVERNMENT REPORTING SERVICE 210002

IN THE COUNTY COURT OF VICTORIA Revised Not Restricted

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AT MELBOURNE CRIMINAL JURISDICTION

CR 19-00228 DIRECTOR OF PUBLIC PROSECUTIONS v JOSHUA NEALE

--- JUDGE: HIS HONOUR JUDGE BROOKES

WHERE HELD: Melbourne

DATE OF HEARING: 5, 8, 19 August, 14 October and 18 November 2019

DATE OF SENTENCE: 16 December 2019

CASE MAY BE CITED AS: DPP v Neale

MEDIUM NEUTRAL CITATION: [2019] VCC

REASONS FOR SENTENCE

--- Subject: CRIMINAL LAW Catchwords: Sentence - Culpable Driving; Standard Sentence. Legislation Cited: Sentencing Act 199 (Vic), ss 5, 5A, 5B, 6, 11; and 11A. Cases Cited: Peter Brown v The Queen [2019] VSCA 286; R v De'Zilwa [2002] 5 VR

408; R v Mills (1998) 4 VR 235; R v Azzopardi & Ors [2011] VSCA 372; DPP v Allsop [2010] VSCA 325; Director of Public Prosecutions v. Leach (2003) 139 A Crim R 64; R v Jurisic (1998) 45 NSWLR 209; and Director of Public Prosecutions v Huby [2019] VSCA 106.

Sentence: Convicted and sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of one year.

--- APPEARANCES:

Counsel Solicitors

For the Director of Public Prosecutions

Mr M. Cordy Office of Public Prosecutions

For the Accused Mr S. Gardner LD Legal Services Pty Ltd

.PM:AFC 1 SENTENCE DPP v Neale

HIS HONOUR:

1 Joshua Neale, on 5 August 2019 you have pleaded guilty to one charge of

culpable driving by gross negligence relating to a road collision which caused

the death of Matthew O'Donoghue.

Circumstances of Offending

2 The offence occurred on Tuesday 16 March 2018 at approximately 6.40 am.

The collision occurred on the Heathcote-Rochester Road, Bonn. It took place

at the end of a sweeping bend in an area known as the “S-Bends”, which is

approximately 5 kilometres south of Rochester. It was a two vehicle head-on

collision involving a blue 1997 Holden Statesman which was travelling

approximately south and driven by the deceased and a partially restored black

1981 Toyota LandCruiser that was being driven by you in an approximate

northerly direction along Heathcote-Rochester Road. At the time of the collision

it was still dark, with dawn just cresting on the horizon. The Toyota was being

driven with no headlights installed. However, it is probable that the parking

lights were operational and there was an 85 per cent full moon.

3 The driver of the Holden had attempted to legally overtake a slower moving

vehicle and was probably unable to see your vehicle travelling towards him.

The Holden and Toyota collided head on, in close proximity to the vehicle that

was being overtaken. The point of collision was on your side of the roadway

near to the intersection with Hanrahan Road and at the completion of the

sweeping bend for the deceased's vehicle.

4 The collision resulted in the death of the driver of the Holden, Matthew

O'Donoghue. You were trapped in your vehicle and once removed were taken

to hospital with serious injuries. The vehicle driven by the deceased was a 1997

Holden Statesman which was blue in colour and registered to the deceased,

expiring on 5 September 2018. It had sustained extensive damage to its front

as a result of the collision. The vehicle was mechanically inspected by a Victoria


Police mechanic, which inspection did not reveal any pre-collision mechanical

fault that would have caused or contributed to this collision.

5 The vehicle driven by you was a partially restored 1989 Toyota LandCruiser

which was black in colour. The vehicle was unregistered at the time, having

previously been registered in Victoria, expiring on 1 April 2013. The Toyota

was owned by you and it had been purchased in April of 2017. You had been

completing a restoration of the vehicle. It was extensively damaged in the

collision and subsequent rollover.

6 Your vehicle had been issued with an unregistered vehicle permit on 5 March

2018. This permit allowed the vehicle to be driven for a number of reasons and

there were conditions on the permit which included: (1) the vehicle must be safe

to use on a highway including road and road-related areas, and (2) the vehicle

must be used in daytime between sunrise and sunset.

7 A mechanical inspection was conducted on 29 March 2019 after the collision

by Victoria Police mechanic Senior Constable Mark Wood. In his inspection he

was of the opinion that (a) prior to the impact the Toyota would have been in

poor condition, (b) the Toyota had no headlights fitted, (c) the failure to have

working headlights fitted makes it difficult for the Toyota's driver to see where

he is driving and it makes it difficult for other vehicles to observe the Toyota.

8 The deceased, Matthew O'Donoghue, who was aged 26 years at the time of

the collision, was residing at a Rochester address with his mother and

stepfather. He was the only occupant of the Holden. He was employed at a

local vineyard and was travelling to work at the time of the collision. As a result

of the collision he was pronounced dead at the scene. A pathologist conducted

an external examination and CT scan of the deceased and the cause of death

was found to be multiple injuries from a motor vehicle impact. A blood sample

was obtained from the deceased and this was analysed and the results

revealed no alcohol or common drugs detected.


9 At the time of the collision you were aged 20 years, having been born on 18

January 1998. You lived at an address in Runnymede. You were the holder of

a probationary Victorian driver's licence with the expiration date of 9 September

2019. You were the only occupant of the vehicle and were travelling to work

from your home address. As a result of the collision you were seriously injured

and were treated at the Alfred Hospital in Melbourne. Whilst at the Alfred

Hospital a Road Safety Act blood sample was taken. The sample was later

analysed and the results were no alcohol or common drugs detected other than

those that were medically administered.

10 As to the collision scene, the south and northbound lanes were separated by

broken white lines. There were raised strips also located dividing the north and

southbound lanes. The road travelling south had a sweeping left-hand bend

followed by a short, straight section. The road then has a sweeping right-hand

bend. The bends are such that vehicles approaching from the north or the south

can observe vehicles approaching from the opposite direction. This is

particularly easy at night due to the headlights being visible.

11 The edge of the road in both directions had a sold white fog line and raised

white guideposts to which reflectors are fixed. The road had a short bitumen

shoulder which abutted a short gravel and grass verge. This led to a grass

verge which ran to the property line which was defined by a wire and post fence.

On the eastern side there were sporadic small to medium trees close along the

edge of the post and wire fence. The general area would be described as rural.

The Heathcote-Rochester Road in the area of the collision is a default 100

kilometre per hour zone.

12 There are yellow advisory signs as you approach the S-Bend from south and

north which advise a speed of 80 kilometres per hour indicating the approaching

bends. There is no street lighting in the area. The collision occurred in the

northbound lane of the Heathcote-Rochester Road. The Holden was a

minimum of 2.56 metres on to the incorrect side of the road consistent with it


overtaking another vehicle. There were gouges at the point of collision and

scrapes leading to the rest positions of both vehicles post collision. There was

no evidence of pre-impact steering or braking by either vehicle prior to the

collision.

13 At the time of the collision it was clear, there was light on the horizon to the

east, but the sun had not risen. According to an expert certificate tendered, the

beginning of morning astronomical twilight is 5.43 am. The beginning of the

morning civil twilight is 6.45 am and the lunar illumination at the time was 85

per cent. The visibility was good with headlights, the road surface was dry and

in reasonable condition.

Circumstances

14 You purchased the Toyota in about April 2017 as a restoration project from a

person near Donald. You obtained an unregistered permit for the vehicle and

drove it back to your home address. You commenced to strip down the Toyota

and restore it. You removed and changed the motor and gearbox. The Toyota

had a new custom tray built and fitted to the rear of the vehicle and the vehicle,

which had been yellow, was painted black. You worked on the vehicle as a

project over time.

15 As a part of the restoration process you removed various lights from the vehicle,

including the headlights. There is evidence that the parking lights were still

installed and operative at points in time prior to the collision. In the days prior

to the collision your other vehicle, a Mazda BT-50, had broken down. During

the evening prior you spoke with Paige Clay over the social media platform

Snapchat. You informed Ms Clay that there was something wrong with your

Mazda motor vehicle and you indicated that you were going to drive the Toyota

LandCruiser to work on the following morning. On 6 March 2018, shortly before

6.40 am, you sent a Snapchat video to Clay. Clay viewed the video after waking


up at around 7 am. It went for about five seconds. It showed the vehicle moving

along a dirt road with no light coming from the front of the vehicle.

16 Just prior to the accident Anton Damon was travelling south along the

Heathcote-Rochester Road approaching the area of the collision. There was

not much traffic on the road, it was still dark. Damon was aware of a vehicle

coming up behind him as he could see the headlights approaching. The vehicle

was close behind him for a bit and as he entered a right-hand bend the vehicle

started to overtake him. At this point he was not worried. All of a sudden he

saw a car coming towards him on the other side of the road. It was only about

10 metres in front of him when he saw it; it had no headlights. Yours and the

deceased's vehicle collided just near the rear of Damon's vehicle.

Reconstruction

17 Detective Sergeant Dr Jenelle Mehegan, a Victoria Police collision

reconstructionist, attended the collision scene where she conducted an

inspection and numerous tests in relation to the collision. In respect of the tests

and expert knowledge she states:

In my opinion, the Holden Statesman was travelling south on Heathcote-Rochester Road, Bonn, when the vehicle has crossed into the northbound lane to overtake a slower moving vehicle. Whilst travelling south in the northbound lane the Holden Statesman has collided head on with a Toyota LandCruiser tray that had been travelling north. It is not possible to determine with certainty the speed of either vehicle at impact; however, both vehicles were travelling at a similar speed. There is no evidence that either vehicle was travelling at more than the speed limit. Taking into account all the physical evidence it is most likely that both vehicles were travelling between 90 and 100 kilometres per hour.

18 At formal interview by the police on 17 May 2018 you had no memory of the

collision but stated, amongst other things, that you had travelled backroads until

you ended up on the Heathcote-Rochester Road. You believed that the parkers

and indicators were fitted and worked, and at the time of the accident you

believed that it was dawn but the sun had not come up.


Sentencing Principles

19 By s.5 of the Sentencing Act 1991 the only purposes for which sentences may

be imposed are:

(a) to punish the offender to an extent and in a manner which is just in all of

the circumstances; or

(b) to deter the offender or other persons from committing offences of the same

or a similar character; or

(c) to establish conditions within which it is considered by the court that the

rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the

offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.

20 Pursuant to s.5(2):

In sentencing an offender a court must have regard to –

the maximum penalty prescribed for the offence (which in this case is 20 years);

and

(ab) The standard sentence, if any, for the offence; (which in this case is eight

years' imprisonment) and

(b) current sentencing practices; and

(c) the nature and gravity of the offence; and

(d) the offender's culpability and degree of responsibility for the offence; and

(daaa) whether the offence was motivated (wholly or partly) by hatred for or

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prejudice against a group of people with common characteristics with which the

victim was associated or with which the offender believed the victim was

associated; and

(daa) the impact of the offence on any victim of the offence; and

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence; and whether

the offender pleaded guilty to the offence and, if so, the stage in the proceedings

at which the offender did so or indicated an intention to do so; and

(e) whether the offender pleaded guilty to the offence and, if so, the stage in the

proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender's previous character; and

(g) the presence of any aggravating or mitigating factor concerning the offender

or of any other relevant circumstances.

21 Pursuant to s.6 of the Sentencing Act:

In determining the character of an offender the court may consider (among

other things) –

(b) the general reputation of the offender; and

(c) any significant contributions made by the offender to the community.

22 This sentence falls to be subject to the standard sentence scheme which

commences at 5A of the Act. Where such an offence specifies a period as the

standard sentence of the offence, then:

(1)(b) The period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

23 For the purposes of s.(1)(b) subsection (3) states:

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The objective factors affecting the relative seriousness of an offence are to be

determined –

(a) without reference to matters personal to a particular offender or class of

offenders; and

(b) wholly by reference to the nature of the offending.

24 By s.5B(2):

(2) In sentencing an offender for a standard sentence offence, a court—

(a) must take the standard sentence into account as one of the factors relevant to

sentencing; and

(b) despite s.5(2)(b) must only have regard to sentences previously imposed for the

offence as a standard sentence offence in relation to the sentencing for which this

section applied.

25 Pursuant to sub-section (3), Subsection (2) -

(a) Does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and

(b) is not intended to affect the approach to sentencing known as instinctive synthesis.

26 Pursuant to sub-section (4), A court that sentences an offender for a standard

sentence offence must at the time of doing so state the reasons for –

(a) imposing that sentence; and

(b) any non-parole period fixed in accordance with section 11 as part of that

sentence if that period is shorter than the period specified in section 11A(4)(a), (b)

or (c), as the case requires.

27 Section 11A sub-section (4) states:

Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least—


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(c) 60% of the relevant term if that term is a term of less than 20 years.

28 Further, by s.5B sub-section (5):

As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

29 The standard sentence regime was considered recently by our own Court of

Appeal on 10 December 2019 in a decision of Peter Brown v The Queen [2019]

VSCA 286. The court stated at paragraph 4:

The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of

the factors relevant to sentencing’. This requirement is to be treated as a 'legislative guidepost', having the same function as the maximum penalty; does not affect the established 'instinctive synthesis' approach to sentencing; does not require or permit 'two-stage sentencing'; and does not otherwise affect the matters which the court may, or must, take into account in sentencing.

30 Further:

The submission of senior counsel for the Director of Public Prosecutions was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment1.

31 For the reasons set out in Part 1 the court upheld that submission. It was the

court's opinion that:

The standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of 'objective factors'. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence 'in the middle of the range of seriousness'2.

32 In the court's view:

“This conclusion is required by the language of the standard sentence provisions.

It is also consistent with the express policy of the legislation, which is to preserve

1 Peter Brown v The Queen [2019] VSCA 286 at [7]. 2 Ibid.




instinctive synthesis and prohibit 'two-stage sentencing'.”3

33 Finally, the court found that:

This construction provisions reflects their legislative history, based as they are on the analysis — and the language — in the unanimous judgment of the High Court in Muldrock v The Queen. (2011) 244 CLR 120.4

34 Our Court of Appeal explained the decision of Muldrock in the following way at

paragraph 25:

These passages may be distilled into a number of propositions, as follows:

1. The standard non-parole period is a 'legislative guidepost', in the same way as

the maximum sentence is.

2. In order for it to serve as a guidepost, meaningful content must be given to the

legislature’s specification of the standard non-parole period as the non-parole

period 'for an offence in the middle of the range of objective seriousness'.

3. Giving meaningful content to that specification requires that 'objective

seriousness' be assessed:

(a) 'without reference to matters personal to a particular offender or class

of offenders'; and

(b) 'wholly by reference to the nature of the offending’.

4. The sentencing court is neither required nor permitted to assess whether the

subject offence falls within 'the middle of the range of objective seriousness' by

comparison with 'an hypothesised offence answering that description'.

5. The requirement to give reasons for fixing a non-parole period above or below

the standard non-parole period does not require the judge to 'classify the objective

seriousness of the offending'.

3 Ibid at [8]. 4 Ibid.


6. The judge must, however, identify all of the facts, matters and circumstances

which bear on the conclusion reached as to the appropriate sentence.5

35 At paragraphs 26 and 27 the court said:

[26] In the High Court's view, therefore, the standard non-parole period provisions required only one assessment of 'objective seriousness'. That was the assessment which was necessary in order to give 'meaningful content' to the legislative description of the 'hypothesised offence' as an offence 'in the middle of the range of objective seriousness'. It was that assessment, the Court said, which must be undertaken 'without reference to matters personal to a particular offender or class of offenders' and 'wholly by reference to the nature of the offending'.

[27] The Court made clear that the sentencing court was not required to assess the seriousness of the subject offence by comparison with the hypothesised offence of mid-range seriousness. To do so would be to embark on two-stage sentencing. That is, any attempt to assess the seriousness of the subject offence by comparison with the hypothesised mid-range offence would lead — implicitly if not explicitly — to consideration of the appropriate relativities between the non-parole period for the subject offence and the standard non-parole period.

36 The court said at paragraph 39:

Before examining those decisions, however, it is necessary to address the requirements of ss5B(4) and (5) with respect to the giving of reasons. When sentencing for a standard sentence offence, the court must (under s5B(4)) state the reasons for imposing the particular sentence. Under s 5B(5), the court in giving its reasons must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

Gravity of Offending

37 The head of culpable driving to which you have pleaded guilty is one of gross

negligence. A person drives with 'gross negligence' if his driving fell so far short

of the standard of care a reasonable person would have exercised and involved

such a high risk of death or serious injury resulting from his conduct that it

constitutes gross negligence. However, a significant departure from the

standard of care required is not sufficient. Judges should be careful in

examining that language. See R v De'Zilwa [2002] 5 VR at 408.

38 In the circumstances of this case a plea of guilty is such that your judgment fell

5 Ibid at [25].


far short of the standard of care expected of a reasonable person and created

a high risk of death or serious injury. As to the gravity of your offending, one

can readily accept the learned prosecutor's submission that it was a 'very stupid

thing to do to drive a vehicle on a country road, pre-dawn, without headlights'.

39 The first matter that I must address in this regard is that your negligence must

be looked at prospectively and not retrospectively. A reasonable road user

would appreciate that the headlights enable (1) the driver to safely navigate his

or her own course on the roadway and (2) give adequate warning to other road

users principally travelling on or on to the same carriageway.

40 Your plea of guilty to culpable driving causing death means that you admit that

you are guilty of gross negligence causing death and that alone tends towards

serious offending. However, I take into account that the accident occurred

shortly after you attained 20 years of age and that you had offered to plead

guilty to dangerous driving causing death at an early stage, and, as best as I

can tell probably before attaining 21 years. Had this plea been accepted at an

early stage you may have fallen to be sentenced where a youth training centre

was an available option.

41 In any event, it falls upon me to assess the gravity of your offending taking into

account all the surrounding relevant circumstances. In making that assessment

I must look at your actions prospectively and not retrospectively, now knowing

the horrific outcome of your negligence. I take into account the following

factors. At the time of collision you; (a) were on the correct side of the road; (b)

were not travelling at an excessive speed; (c) had travelled approximately 400

metres in a straight line on the relevant road before the collision occurred.

42 I can infer that you could adequately negotiate the passage of your vehicle on

the correct side of the road for some 20 minutes prior to the collision, or at least

I am not satisfied beyond a reasonable doubt to the contrary.

43 there was a near full moon of 85 per cent illumination which to some degree


corroborates the paragraph above.

44 Although you have no memory of the collision for an appreciable time

beforehand, I infer that your vehicle's parking lights were operational and in use.

See, for example, the statement of Carmody, and once again I am not satisfied

beyond reasonable doubt to the contrary.

45 Part of the duty of care of the reasonable motorist is that he or she is to consider,

amongst other things, whether vehicles approaching him or her from the

opposite direction would have adequate warning of the approach of his or her

vehicle.

46 Given the operation of the factors in paragraphs 42 to 45 above, a reasonable

motorist could anticipate that a vehicle approaching from the opposite direction

in a straight line would have adequate warning of the approach of his vehicle.

Once again, I am not satisfied beyond reasonable doubt to the contrary.

47 Further, in these circumstances such vehicle's headlights would reveal the

presence of a motorist's vehicle on the roadway.

48 Your principal error of judgment which has been proximately causative of the

collision is that you have failed to foresee that a vehicle approaching your

vehicle not in a straight line, for example on a sweeping bend, may not have

adequate warning of the approach of your vehicle if the driver was attempting

to legally overtake another vehicle.

49 Otherwise there is nothing in the manner of the driving of your vehicle that one

only too often sees which typifies the more serious examples of this offence.

50 The prosecutor with his customary fairness conceded, therefore, that the gravity

of the offending with respect to this particular offence of culpable driving could

be seen to be at the lower end. It was also conceded, and which I endorse,

that a jury could well have acquitted you on the more serious charge of culpable

driving and brought in a verdict of dangerous driving causing death, which has


half the maximum sentence attached to it.

51 That all being said, it is clear that the consequences to, first the deceased and

then to his family, have been nothing short of devastating. A number of victim

impact statements were tendered on the plea. I have read all of them and I do

not intend to go through every one, but in particular I mention the victim impact

statement of the mother, Andrea O'Donoghue. She states, amongst other

things:

I was trying to deal with the aftermath in the days shortly after but they were a blur. I was number. The constant visitors all meaning well, trying to organise Matt's funeral and everything else that needed to be organised and dealt with was so hard, especially our last goodbyes with Matt at the funeral home. It was horrific. I didn't want to leave him, I was his mum. You are not supposed to leave your kids helpless and that's how I felt. At the time I was working two jobs but since that day I haven't worked. I haven't driven a vehicle or slept through a full night. I struggle to go down the street and no longer socialize. I only catch up with Matt's mates on special occasions like Matt's birthday. I have been diagnosed with post-traumatic stress disorder by my doctor and have sought counselling, but I still struggle constantly with anxiety and depression. I am just broken. You're not supposed to bury your children. I struggle every day with Matt and seeing our children going through their life without him really affects me. One will have a good day and another a bad day. I try every day to be there for them to support but it's hard. I try and try but I cannot accept that Matt has gone. I'm no longer the person I once was but I am determined to be there for our kids and guide them as best as I can and learn to smile once again for my kids. It's what Matt would have wanted.

52 Another statement was from a sister, Stephanie Crouch. She states that:

I was only 16 when my brother died. To say my family and my life has turned upside down would completely and utterly be an understatement. To be honest, to this day I still believe he's going to pull up in the driveway because I don't think I will be ever able to fully accept that Matthew has been taken away from us. He's supposed to be here with us as a family, he was supposed to fall in love and get married, have kids, and die an old man, but he will never get to do those things because he's dead. My emotions have become much more sensitive after Matthew's death. Simple, fixable situations are difficult for me to solve without disappearing into a puddle of tears. I also face a lack of motivation to do anything productive some days and all I can think about is Matt.

53 At the time of her statement she said it was currently 516 days since he was

killed and she says, 'I can tell you with extreme confidence that it does not get

easier and I strongly believe that it will never get easier'.


54 Another statement is by a sister, April Crouch. She states:

The loss of Matt has absolutely destroyed our family. There will never be enough words to explain what my life is like now since my beautiful big brother was taken from us at the age of 26 years. Every day I'm filled with sadness, anger, grief and many other overwhelming emotions. I have lost the ability to be the person I was when Matt was here. When he was around everyone he was just the life of every party and everyone who had the pleasure of knowing him say he was just an all round top bloke whom we all miss dearly. Matt was an awesome big brother and loved his siblings so much. Matt played a huge part in mine and my siblings' life, he was like our second dad.

55 She goes on to speak about the effect that his death has had on the two younger

brothers, aged 10 and 11, particularly with respect to their cricket activities and

how much he is missed by them.

56 Mr Simon Pearson, a policeman, has also given a statement as to how he has

been affected, having known the deceased in an intimate way. Perhaps

importantly he states on p.2, 'I bear no ill will towards the other driver involved

in Matt's death' but he himself has been greatly affected.

57 The next victim impact statement is by Ian Crouch, the stepfather of the

deceased. He says:

Matthew's passing has left a hole in my heart that can never be filled. He's my son and a brother to his siblings, who looked up to him as an idol in life. Matt loved his cricket club. He was a coordinator of the Milo Cricket training for his brothers and their friends and it was a highlight of their game days. He would volunteer to drive his sisters to netball training match day and was a major support for them all.

58 He states:

Most days I feel emotionally saddened by the fact I have to face the world without my son of 26 years. I'm having a hard time accepting that Matt is gone from us. I see Andrea and my kids and friends in pain and struggling with it all.

59 The next one is from Paige Crouch, who is 23 years old and the second eldest

of the eight children. She relates how the first call that she answered 'with the

words I'll never forget, the call to tell me that Matt was dead, he's been a car

crash'. She said:

That was the moment a part of me died as well. Not only was Matt my big


brother, he was my protector and one of my best friends. I'm so incredibly lucky to have had such a good relationship with my brother. I now suffer from anxiety and depression due to losing Matt. This has been diagnosed by a psychologist but beyond measure is the immense amount of frustration, anger and sadness that no one can ever take away.

60 I now turn to matters personal to you. You were born on 18 January 1998 and

had just turned 20 at the time of the offending. You have one elder half-brother

who is approximately 32 years of age, one older full brother who lives at the

farm with your father but who suffers from autism and does not work. I note

that no member of your family or extended family has been before the courts in

any capacity and from testaments that I will refer to later, you come from a law-

abiding, well regarded family of many generations in the community.

61 The family lives on a 3000 acre farm that crops wheat, canola, chickpeas, barley

and oats. Your mother and father separated in approximately 2004 when you

were at a young age and having lived with either of them alternatively you have

been groomed by your father to take on the farming business from a young age

and you have been working on the farm consistently from the age of 10.

62 You attended Rushworth Public High School with a Year 10 pass and you were

partway through Year 11 when you left to become a fulltime farmer. Your father

relies incredibly heavily on you to keep the family business going through hard

times caused by drought and it was in this situation that you were having a

second job at the time of the collision in order to assist the family income. Your

other brother is really unable to assist in any meaningful way.

63 During the hay season, mid-October to end of November, you work 16-hour

days. During the sowing season, mid-April to early June, 14-hour days, and

during the harvest season, mid-November to early January, 14 hours. Spraying

occurs all year round when there are gaps and quite often there are eight to 10-

hour days. Your father has stated he is not sure how he will cope in your

absence.

64 On 9 October 2007 your grandfather died, apparently from suicide, which has


been an ongoing source of grief for the family and particularly yourself. There

is evidence that your grief is largely unresolved and not dealt with, in the old-

fashioned country sense, to 'get on with things and don't complain'.

65 Since 2017 you have been supplementing the family income by picking

seasonal tomato harvest in February and March of each year, on the Weekes

farm, to which you were travelling on the particular morning. They in turn have

a contract with SPC and picking days can be up to 16 hours depending on the

number of full bins. The conclusion that has been urged upon me, and which I

do make, is that you are a young man of considerable potential with a strong

work ethic.

Verdins Principles.

66 You received serious injuries as a result of the accident. The accident occurred

on 6 March 2018 and you were in the intensive care unit of the Alfred Hospital

for approximately two weeks. There was a prolonged extrication from the

vehicle after the accident and also there was significant pain requiring

medication. You were transported to the Alfred Hospital. Your injuries included

a traumatic brain injury with brain scans showing a thin right cerebral convexity,

subdural haemorrhage with redistribution along the falx and left tentorial leaflet.

There was also a tiny 7 mm extra-axial haematoma over the right frontal lobe

associated with subgaleal haematoma over the right frontal calvarium.

67 You had complex facial lacerations with underlying nasal fracture, left fracture

femur with right extracranial internal carotid artery lesion and a fractured right

orbital blowout. You were slow to wake neurologically, with agitation not in

keeping with radiological appearance of the subdural haematoma. An MRI

brain scan on 18 March demonstrate diffuse axonal injury. You were extubated

without complication on 19 March and on transfer to the other unit your Glasgow

coma score revealed you were still confused. You underwent surgery for the


left fractured femur, as well as undergoing a surgery for your nasal bone

fracture and facial lacerations. You had a left pneumothorax which required an

ICC insert on admission which was removed without complication in the ICU.

68 You were discharged from the Alfred Hospital on 29 March 2019 after a further

nine days on the ward. It was noted that complications during your inpatient

stay were anemia, aspiration pneumonia, and multiple episodes of seizures. It

was noted that an MRI brain scan on 18 March showing the original subdural

haematoma also had a small left cerebral convexity subdural haematoma, most

marked posteriorly, a left parietal sign and tentorial subdural haematomas

measuring up to 3 mm in thickness, small volume intraventricular haemorrhage

and probable trace of subarachnoid blood near the vertex. There was evidence

of diffuse axonal injury in the left parieto-occipital region.

69 The court has received a number of reports from treating practitioners, including

neurological and orthopedic reports. The thrust of the reports is that, apart from

a neurological finding of reduced light touch sensation at the right V1

distribution, you are otherwise neurologically recovering. The court also

received a report from Mr Ian Joblin, forensic psychologist, dated 16 August

2019. At that time Mr Joblin noted that you had problems with your mobility and

cannot run or move as well as you used to prior to the accident. He noted that

although the registrar at the Alfred Hospital had said that the memory and

attention and concentration were intact, he had some concerns about your

memory and did not feel that it was intact.

70 His main concern at presentation was your quite apparent depression. He

noted that there was a family history of suicide and that you had indicated that

you had had suicidal thoughts in the past. He noted your very strong obsession

with your work and he felt that this was related to the need to avoid issues that

were potentially psychologically harmful to you. He considered you were of

reasonable intellect.


71 In terms of the incident, your presentation was dominated by sadness and

distress, consistent with symptoms of remorse, and he acknowledged the

friendship that you had with the deceased. You reported having a breakdown.

You acknowledged that whilst you had improved, you have not recovered to

anywhere near the standard you demonstrated prior to the accident and this

was of concern to you. Mr Joblin recommended that you have psychological

treatment.

72 Mr Joblin in his report has given a consistent history and he stated further,

'It seems that Mr Neale has been a hard worker all his life. He reported that while attending school, he would work on the weekends. He reported that he's never had a weekend off or taken holidays with friends. It seems that he is in fact somewhat obsessed about work. He reported that his ambition for the future is to continue to work on the property with his father.

73 Mr Joblin gave a fairly fulsome outline of your ongoing difficulties. First, you

had problems with mobility. You cannot run or move as you had been able to

prior to the accident. For you that is a factor which impacts on your ambition to

work in the capacity that you wish. The second issue is related to the letter of

Dr Yoni Goldenberg, registrar in the Department of Neurosurgery at the Austin

Hospital. Dr Goldenberg in his letter of 14 May 2018 indicated, 'Grossly

speaking, his memory, attention and concentration are intact'. Dr Goldenberg

indicated that Mr Neale had been able to travel by train from Bendigo to

Melbourne to attend an appointment on his own. Mr Joblin said:

I have some difficulty with the issue concerning Mr Neale's memory. Many of the details given above were obtained from his father. When I asked Mr Neale about the ages of siblings, parents, et cetera, he was unable to provide those details. When questioned on his memory functioning, Mr Neale acknowledged that he does have serious problems with his memory and with his concentration. This results in his very close link to the farm where he does not have to deal with strangers and where he can work without interference from others, which might upset his concentration. I am of the opinion that he still suffers memory problems. Certainly, subjectively he acknowledged such difficulties. In terms of the offending, Mr Neale reported that he has no recollection of the incident whatsoever. His recollection begins only when he was located in intensive care at the Alfred Hospital.

74 In Mr Joblin's opinion, one of the main concerning problems with your


presentation is your quite apparent depression. Mr Joblin noted at the time of

interview that you had not been prescribed any psychoactive medication and

he believes that there is such a need. Mr Joblin noted that you did have a

strong positive relationship with your paternal grandfather but he died in

circumstances that I have already referred to. When your father outlined those

circumstances to Mr Joblin, he noted that you became obviously distressed. In

addition to his distress over the offending, these factors now contribute to your

present depression.

75 Mr Joblin said again it is quite apparent that you have a very strong obsession

with your work and from a psychological perspective, in his opinion, that is

related to your need to avoid issues that are potentially psychologically harmful

to you. In particular, this includes the offences for which you are before the

court as well as the death of your grandfather.

76 As indicated, one of the most pressing issues was the depression in relation to

these matters and the history of suicide in the family. You indicated that you

had had suicidal thoughts; however, had he been going to court on the day that

he saw you, there would have been no issue of fitness to attend.

77 Importantly, and it concerns my sentencing process, Mr Joblin says one of the

major issues in such cases is the matter of remorse.

There is no doubt that Mr Neale has a very strong attitude about the offending and what it means. He acknowledged the friendship he had with the deceased, his presentation was dominated by sadness and distress consistent with symptoms of remorse.

78 In Mr Joblin's opinion:

This is more than simply sorrow because of apprehension of an offence. Further, it is more than sorrow or regret for having committed a crime because of the punishment it could bring. Remorse is an emotive issue, and in my experience to determine the presence or absence of remorse one looks for emotive factors that might be consistent with remorse, those issues involving in particular sadness and distress.

79 He states further:


Mr Neale reflected a torturing sense of guilt for his actions. He was constantly self-evaluating. He reported that daily he experiences what he described as a "break down". Certainly he indicated a painful response to having committed the offences and a strong wish that they had never occurred. He has insight. As indicated, it is important to note the psychological basis for remorse including his strong awareness of the wrongness of his behaviour and the wish the offending had never occurred.

80 Mr Joblin says:

There are therefore issues in the case that raise concerns such as the difficulties involving memory and mobility, and there can be doubt – he states from his discussion – about the presence of remorse and self-reproach.

81 He states that:

The quite apparent depression should be the subject of professional attention, even though seeking such assistance is a foreign concept for Mr Neale.

82 Nevertheless, he states, it should be done as in his opinion you are fragile in

relation to depression which may well affect your psychological state,

particularly if you are incarcerated. Any sentence may weigh more heavily on

you than on a person with normal health. In so commenting and as submitted

by your counsel, such an opinion enlivens Verdins principles 5 and 6 and I have

taken this into account in moderating the sentence to be imposed.

83 As outlined at the commencement of the sentence, the court is to take into

account in the sentencing instinctive synthesis the previous character of the

accused. The first reference that I have been referred to is from a Mr James

Weeks whose property you were travelling to at the time of the collision. He

states that he has known you for a period in excess of six years and you have

become friends and grew close and you share mutual interests and hobbies,

working side by side in the industry of agriculture.

84 He says he has always found you to be a reliable and trustworthy person. He

says by way of example your position of employment beside him eventually

held you accountable to being on call for 24 hours, seven days a week. As a

result of hard work at the outset, he states:


Josh's position was promoted from a temporary fill in to a permanent requirement each season. My family have found you entirely dependable and are much relieved by your presence on the property. Josh is an extremely selfless person, so much so that he tends to forget that he exists too. He will always find an elderly or disabled person to assist in our local main street or a parent struggling with unhappy children in the supermarket. I cannot say that I have ever been in the presence of someone who has assisted someone in need more than what I have personally seen Josh do. My children look up to him as an uncle and I couldn't think of anyone more genuinely fit to influence and encourage their young mind and hearts than him. A stand out example of his generosity comes to mind when some time ago a local was questioning people's knowledge of possible alternatives regarding a local widow's property maintenance. Josh was quite offended with the high quotes in excess of $3000 that this elderly lady had received for large tree removal, so much so that he rallied a group of us together and made his way out there himself with the full required heavy machinery and tools. He spent the day successfully finishing the hard labour required and wouldn't accept a cent off the elderly widow. This is just example of how he demonstrates his generosity and compassion to others.

85 He states the aftermath of the accident has taken a significant toll on you. He

states:

He has suffered a loss of his reputation and been disgraced by friends and locals. My fear upon consideration of incarceration would be watching this rare, genuine, compassionate soul and the prospect for his future disappear. Josh is certainly an individual that our society both wants and needs.

86 He says he shares in Joshua's dismay and heartache regarding the commission

of this offence and is confident that you will take responsibility for any

involvement. He is confident that you will never be in this position again.

87 There is a further reference from Mr David Trewick from the Elmore football and

netball club. He states that you have been generous with your community work

when you employment on local farms has allowed, both in set up and pack up

of the Elmore field days events, horse stable installation at the Elmore event

centre and aiding with baling, stacking and cartage of straw as a fundraiser for

the Elmore football netball club.

88 Over the last six years he states you have been a valuable volunteer for these

organisations, working with others, showing up on time, being dressed

appropriately, engaging with the public in a professional manner.


89 Mr John Griffin has provided a reference. He says he himself is the captain of

the Hunter West Fire Brigade for the past six years and a lieutenant for many

before that and that although you are a fully CFA volunteer, he says that he

knew that he could always count on you and your father to lend a hand

whenever it was required. He said:

When Josh was old enough to get his driver's licence he was able to assist in getting extra water to the fires with his own private water tanker. Josh has also assisted at several fires in our local area with the use of his telehandler to aid the CFA to do our job. In my opinion I have always known Josh to be a quiet, down to earth, good-hearted country boy who, like his father Phil, would do anything to help anyone out when such a situation arises and give you the shirt off his own back.

90 Then there is a reference from a Chris Dunn, agronomist. He says he first met

you in 2014 when he started doing the agronomy on your family farm. He said

you have always seemed older than your years. He said the whole time he has

known you, you were helping your dad out on the farm after school and on

holidays with sowing, haymaking and harvesting crops. He says you have

grown into a very accomplished farmer that prioritises timeliness of operations

over social activities which is a very rare and admirable quality for a young man

in his early 20s. He say that you have been involved in baling straw to raise

money for the football and netball club as previously stated.

91 He says that he knows that you have pleaded guilty to dangerous driving. He

says, 'To me, this seems very out of character as I've always seen him as a

very safe and mature young man'.

92 Then from Derek Schotten, who is president of the Elmore & District Machinery

Field Days Incorporated. He writes to confirm your involvement in the

community not for profit organization, the Elmore & District Machinery Field

Days Inc. He says he has known you since you were a very young child,

'coming out to our field days, working bees and meetings with his father, Phillip,

who is one of our organisation's committee men.

As Josh has grown in years he has continued to attend our working bees and our actual field day events, helping whenever he could over the years.


During those years of involvement with the field days Josh has volunteered in the following areas of our organisation' – and he sets out a number of ways in which you have contributed.

93 A Ms Vivian Spezika has given a reference. She says that she has known you

since you were about five and that she has been a neighbour of yours for many

years. She says that she has watched you grow up. She says:

I have seen him grow into a very gentle, loyal adult. Josh is always there to lend a hand to family and friends.

94 There are a number of other references in a similar vein and together with

obviously one from your mother, who gives a heartfelt explanation of the

suffering that she and you have gone through. In light of the lay evidence and

the evidence of Mr Joblin as already stated, I consider that the Verdins

principles 5 and 6 are enlivened, thus:.

(5) the existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and

(6) where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

And I will find accordingly.

95 Further, with respect to your youth and general deterrence, Defence counsel

has conceded that this type of offending is considered extremely serious by the

community and it is generally accepted that denunciation and general

deterrence are of great importance in sentencing for such offences. However,

in this current case general deterrence is of lesser importance because of your

youth and because of your good character. Correspondingly, your rehabilitation

should be at the forefront of the court's consideration when determining a

sentence in this manner. This approach has been commented upon favourably

in the well known case of R v Mills (1998) 4 VR 235 and also in the case of R v

Azzopardi & Ors [2011] VSCA 372.

96 With respect to just punishment, I am mindful of what the Court of Appeal has

said in DPP v Allsop [2010] VSCA 325 where Redlich JA stated at paragraph


30:

Second, the overall sentence should not be crushing in the sense that it would destroy any reasonable expectation of a useful life after release. The critical question then is whether after allowing for mitigating circumstances the total sentence including the parole sentences reflects what is appropriate for the overall criminality of the convicted person.

Plea of Guilty

97 The plea of guilty offer to dangerous driving causing death was made at a time

prior to the committal and on legal advice you chose not to plead guilty to

culpable driving causing death until the first day of the trial before me in

Bendigo. I take into account your offer to plead guilty in the usual way because,

for the reasons that I have endeavoured to set out, I consider that the gravity of

the offending is at the low end and I could see a jury acquitting you of that

particular charge.

98 Further, there is no doubt that on the day that you elected to plead guilty to this

charge you gave evidence in the witness box and tendered a letter of apology

to the family. It has been submitted on your behalf that that apology was sincere

and heartfelt and was not in consideration of your own predicament facing

criminal charges. I accept this submission and I consider that your remorse

and the apology are genuine in all the circumstances.

Moral Culpability

99 In the context of your antecedent good character and because of the matters

that I have endeavoured to illuminate considering the surrounding

circumstances, I consider that on the spectrum of moral culpability your fault

lies more towards the immature end rather than the criminal end, but of course

I take into account the ingredients of the offence to which you have pleaded

guilty.

100 With respect to the standard sentence, I note that this is a standard sentence


offence for which the standard sentence is one of eight years. Pursuant to s.5A

of the Sentencing Act the period specified as the standard sentence for the

offence is the sentence for an offence taking into account only the objective

factors affecting the relative seriousness of that offence is in the middle of the

range of seriousness.

101 Both Mr Cordy, who appeared on behalf of the Director of Public Prosecutions,

and Mr Gardner, on your behalf, submitted that the objective seriousness of

your conduct in relation to this offence could be regarded at the lower end of

the spectrum. As has been established by recent authority in this state, taking

into account the standard sentence for an offence is a guidepost for the court

to consider as part of the instinctive synthesis, like any other factor and does

not have primacy in the exercise of the discretion. I also acknowledge

s.5B(2)(b) of the Sentencing Act 1991 which provides that in sentencing an

offender for a standard sentence offence a court must only have regard to

sentences previously imposed for the offence as a standard sentence offence.

102 Further, when fixing a non-parole period for a standard sentence offence

pursuant to s.11A(4)(c) of the Sentencing Act, unless the court considers it is in

the interests of justice not to do so, the court must fix a non-parole period of at

least 60 per cent of the relevant term.

103 Finally, the factor that is applicable in your case is whether the court should

exercise a modicum of mercy when administering justice. As Eames JA said in

Director of Public Prosecutions v. Leach (2003) 139 A Crim R 64, it is

particularly important that the Court of Appeal:

Should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought to be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.6

104 Further, as Spigelman CJ stated in the matter of Jurisic which is reported (1998)

6 Director of Public Prosecutions v. Leach (2003) 139 A Crim R 64 at [48].


45 NSWLR 209, His Honour stated:

It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishments. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict but that we live in a society which values both justice and mercy.7

105 In my instinctive synthesis in forming the ultimate sentence I confirm that I have

taken into account the standard sentence of eight years for this offence as one

of the factors to be considered. I also take into account the stipulation of the

non-parole period of 60 per cent unless justice of the case demands otherwise.

For the reasons I have set out above, I consider that this is such a case. The

ultimate sentence that I impose principally, but not exhaustively, relates to the

standard sentence with respect to the low level of objective seriousness and

the matters personal to you as set out above.

106 Further, for similar reasons I consider that a shorter non-parole period than

usual is appropriate in this case and for examples where that has been

exercised by the courts in the past I refer to a series of cases referred to,

Director of Public Prosecutions v Huby [2019] VSCA 106.

107 Mr Neale, could you please stand. On the charge of culpable driving causing

death you are convicted and sentenced to three years' imprisonment. I direct

that you serve one year before becoming eligible for parole. Pursuant to s.89

of the Sentencing Act 1991 your driver's licence will be cancelled and you will

be disqualified for a period of 18 months from this date.

108 Is there anything further, counsel?

109 MR GARDNER: There was just one matter. Your Honour referred to s.11A(c)

and it's my understanding that it may in fact be sub-s.(b) that's operable.

7 R v Jurisic (1998) 45 NSWLR 209 at [211].


110 HIS HONOUR: Why do you say it is (b)?

111 MR GARDNER: Because it is not less than – I will just get the section out.

112 HIS HONOUR: Yes, I have got the section here but I think it refers and has

been referred to the sentence that is imposed. I have not imposed a sentence

of 20 years.

113 MR GARDNER: I cannot bring the section up but I just wanted to draw that to

Your Honour's attention.

114 HIS HONOUR: Thank you for that. I did consider that and I thought the same

myself, but I noted in a case recently before our court, which I have not got just

to hand, that it was considered that it is 4(c) because it is the sentence that I

impose, which is not 20 years.

115 MR GARDNER: May it please the court. The other matter was Your Honour

will need to make a s.6AAA pronouncement.

116 HIS HONOUR: Yes, thank you. Pursuant to s.6AAA, but for the plea of guilty

I would have sentenced you to a term of imprisonment of six years with a non-

parole period of four years. Anything further?

117 MR GARDNER: Just before Your Honour has my client removed, I know that

sometimes with processing these difficulties, would you just permit me to

approach the dock very briefly?

118 HIS HONOUR: Yes, certainly. What I intend to do is once you have done that,

I will ask for the prisoner to be removed, the court will be cleared, and I

understand that there may be brief arrangements for the family to say goodbye

to him.

119 MR GARDNER: Thank you.

120 HIS HONOUR: Do you want to approach?


121 MR GARDNER: If I can approach the dock?

122 HIS HONOUR: Yes.

123 MR CORDY: Just before my learned friend does approach the dock, Your

Honour.

124 HIS HONOUR: Yes, Mr Cordy.

125 MR CORDY: There's a couple of matters. I missed – it was a little bit faint,

Your Honour. I missed the head sentence.

126 HIS HONOUR: Three years.

127 MR CORDY: Yes, thank you, with a non-parole period of one year. Your

Honour imposed a disqualification for 18 months from driving. I understand the

minimum is two years, Your Honour, and that will need to be reflected.

128 HIS HONOUR: Thank you for that, Mr Cordy. I will correct that to two years.

129 MR CORDY: The other matter, Your Honour, is there is an application - Your

Honour might not be aware of it but there is an application for a forensic sample

pursuant to the provisions of s.464ZF. I understand that is not opposed and if

Your Honour is minded to make such an order a pro forma order will be E-

lodged if it has not been already.

130 HIS HONOUR: Yes. Is that opposed?

131 MR GARDNER: It is not, Your Honour.

132 HIS HONOUR: I will make that order. What I should indicate to you, Mr Neale,

is that is a taking of saliva for forensic purposes. If you do not agree to the

sample being taken, reasonable force can be used. Anything further,

gentlemen?

133 COUNSEL: No, Your Honour.


134 HIS HONOUR: All right. Thank you, Mr Cordy. You may remove the prisoner

for the moment – did you want to speak to him now?

135 MR GARDNER: Might I just - - -

136 HIS HONOUR: Just a minute, yes. Adjourn the court please.

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IN THE COUNTY COURT OF VICTORIA Revised Suitable for Publication AT MELBOURNE … · 2020-05-04 · VICTORIAN GOVERNMENT REPORTING SERVICE 210002 IN THE COUNTY COURT OF VICTORIA Revised