Codey is a Senior Associate at Doogue + George who is based at our Melbourne office. He is experienced in defending against a wide range of criminal charges including driving offences. Prior to joining the firm, he was a Senior Lawyer at the North Australian Aboriginal Justice Agency (NAAJA) in Darwin, Northern Territory.
Cosette is based at our Broadmeadows and Melbourne offices and has a strong interest in social justice, human rights, and criminal law reform. She is experienced in a variety of legal matters having been a Judge's associate in the Criminal Division of the County Court of Victoria.
Dangerous Driving Causing Death
The charge of dangerous driving causing death under s 319 of the Crimes Act 1958 (Vic) is a serious offence and carries a maximum penalty of 10 years imprisonment. Dangerous driving causing death requires the prosecution to prove three elements:
- The person was driving a motor vehicle;
- The person drove at a speed or in a manner that is dangerous; and
- The dangerous driving caused the death of another person.
The term 'manner that is dangerous' varies on the
circumstances of the offending but may include:
- inattention, whether that be momentary or casual;
- driving with an obstructed view;
- causing the motor vehicle to lose traction;
- driving under the influence of drugs or alcohol; and
- driving while severely fatigued.
Victorian Law
Upon a finding of guilt of dangerous driving causing death, a Judge must cancel and disqualify the offender's licence for a minimum of 18 months.1 Further, a Judge must impose a term of imprisonment unless exceptional circumstances are available.2 'Exceptional circumstances' are outlined in s 5(2H) of the Sentencing Act and includes that mental impairment, which is causally linked to the offending, would mean that imprisonment would be more onerous or that it would place that individual at greater risk of deterioration. Two recent cases of DPP v Lombardo and DPP v Browne considered the exceptional circumstances test.
DPP v Lombardo
In March 2020, Mr Lombardo drove down a rural driveway at daybreak. His windows and windscreen were foggy and although he applied the demisters and windscreen wipers, his side windows remained obstructed by mist. He wrongly judged that he had time to turn safely and collided with a motorcyclist. Mr Lombardo called emergency services and attempted to perform CPR however the motorcyclist was pronounced dead at the scene.
Mr Lombardo pleaded guilty in the County Court. At the plea, it was submitted that anxiety and post-traumatic stress disorder ('PTSD') symptoms had impaired his mental functioning and therefore his personal circumstances were 'substantial and compelling' to warrant a non-custodial sentence. He was ordered to complete a three-year Community Corrections Order with a 250-hour unpaid work condition. He was also disqualified from driving for 18 months.
This case was appealed by the Director of Public Prosecutions. Court clarified the operation of two of the exceptions under s 5(2H). For Mr Lombardo to satisfy the test that his mental illness or impairment was 'substantially and materially greater than the ordinary risks of imprisonment', he had to establish that he had a formal diagnosis at the time of sentencing, which would worsen if in custody. As Mr Lombardo's PTSD and anxiety symptoms fell short of a formal diagnosis and were unlikely to worsen in custody, he did not meet the exception under s 5(2H).
Further, it was held that although Mr Lombardo's personal circumstances, namely his mental health and the constant reminder of the collision each time he drove down the driveway, could be classified as 'substantial and compelling', they were not 'exceptionally rare' for these types of cases. It was noted that it is a 'tragic consequence' of these matters that a person will experience some distress; but that to avoid a custodial sentence, there must be some exceptional feature of the distress or mental impairment which places it outside the ordinary. On the spectrum of dangerous driving causing death offending, this case fell on the lower end of mere carelessness rather than towards the more serious charge of culpable driving.
While the Court advised that a term of imprisonment was required in this case, the Justices used their residual discretion to not impose a term of imprisonment as the rehabilitative progress made on the Community Corrections Order would be undone.
DPP v Christopher Browne
The case of Christopher Browne was handed by the Court of Appeal soon after Lombardo.
This case involved the death of Mr Browne's two-year old son and injury of his sister when his off-road buggy rolled while he performed 'donuts' in a paddock on Christmas Day in 2020. Immediately prior to the incident, Mr Browne sat on top of the engaged seatbelt, which override the safety interlock system, and placed his son on his knee. His sister sat in the passenger seat with a seatbelt on. Mr Browne was aware of the safety features of the buggy.
Mr Browne was sentenced to a three-year Community Correction Order with a condition to complete 250 hours of unpaid community work. At the plea, it was submitted that he suffered from severe PTSD symptoms with anxious moods which would cause the burden of imprisonment to be substantially and materially greater than the ordinary risks per s 5(2H) of the Sentencing Act.
The Court of Appeal however, held that this sentence was manifestly inadequate and that a term of imprisonment was required. While it was accepted that Mr Browne's mental health diagnoses confirmed his mental impairment, the lack of further deterioration between the sentence and appeal meant that it could not be proven that it would likely deteriorate while in prison. Further, the exceptional circumstances test will be satisfied only if the moral culpability is low, whereas in this case it was high.
Although Mr Browne had completed 64% of his unpaid community work within 6 months of it being ordered, and the hardship faced by Mr Browne's family and business associates should he be incarcerated was considered, the Court held that it would not be appropriate to grant residual discretion considering the dangerousness of the driving which resulted in a finding that the sentence was manifestly inadequate. As confirmed in Lombardo, only when the offender's moral culpability is low and the nature of the offending and/or the personal circumstances are exceptional will a non-custodial sentence follow. Ultimately, while Mr Browne had powerful mitigating circumstances, it did not outweigh his high moral culpability and the need to deter the public from driving in this manner. It was also noted that this case had unique features which should limit its use in future cases.
What Do These Cases Mean for a Person Charged With This Offence?
Dangerous driving causing death is a serious and legally complex charge, particularly in circumstances where there is momentary intention or misjudgement. While the cases of Lombardo and Browne have made it more difficult to obtain a community-based order for this offending and avoid the mandatory term of imprisonment, they have not made it impossible. Cases highlight how important it is to seek legal advice from practitioners who understand the complexity of these charges. Each of these cases are unique and requires an individual approach and strategy. If you are facing charges of dangerous driving causing death, you should consider contacting our office to speak with one of our lawyers.
Footnotes
1 Sentencing Act 1991 (Vic) – see definition of 'serious motor vehicle offence'.
2 Sentencing Act 1991 (Vic) – see Schedule 2.
