R v Langford (2009) H&FLR 2015-2

The Queen v Jessica Maree Langford (2009) H&FLR 2015-2

Melbourne County Court (Victoria)

29 March 2009

Coram: Judge Howie

Appearing for the Prosecution: Anne Hassan (of the Office of Public Prosecutions)
Appearing for the Defendant: Dermott Dann (instructors not identified)

Catchwords: Victoria – criminal law – swimming – alcohol – culpable driving – death – sentence

Facts: The defendant was aged 19 years on 29 November 2008. She and her boyfriend had attended Shoreham Beach late that night where they swam naked and drank premixed bottles of vodka and soft drink as well as a bottle of neat vodka.  After swimming they dried themselves with their clothes and the defendant (still naked) began to drive them back to Frankston.  At Hastings the car was involved in an accident and the defendant’s boyfriend was killed.

The defendant’s blood alcohol reading two hours after the accident was 0.09%.  As a probationary driver she was not permitted to have a blood alcohol reading higher than 0.00% (1). The police concluded that at the time of the accident the defendant was driving at 104kph in a 90kph zone.

The defendant was charged with culpable driving causing death and dangerous driving causing death. Magistrate Wakeling committed her to stand trial in the County Court: DPP v Langford (2009), Sydney Morning Herald, 8 September 2009.

The Crimes Act 1958 (Vic.) provides as follows regarding these offences –

[in §318(1 & 2)] – Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 

… a person drives a motor vehicle culpably if he drives the motor vehicle—

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; …

and

[in §319(1)] – A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The defendant pleaded guilty in the County Court to dangerous driving causing death. Her barrister noted that she suffered from marked pre-existing psychological problems, had a post-accident history including substance abuse, multiple suicide attempts and a diagnosis of bipolar affective disorder, and had been prescribed anti-psychotic medication. He noted that she had no criminal history.

The Crown submitted that the defendant’s mental health was irrelevant, and that her good character and prospects for rehabilitation did not alter the need for general deterrence. It was submitted that the defendant should be detained in a Youth Training Centre.

Held: Sentencing the defendant to a community based order and prohibited her from driving for 18 months, that –

1. The attitude of the deceased’s family, who forgave the defendant and openly supported her at trial, was relevant to imposing a lenient sentence.

2. It was relevant that the defendant’s psychological state was fragile and that her recovery would not be assisted by a custodial sentence.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Herald Sun (Melbourne) of 29 March 2010, the Daily Telegraph (Sydney) of 23 March 2010 and the Sydney Morning Herald of 8 September 2009 and 15 February 2010.

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(1) The limit in Victoria for the holder of a full licence is 0.05%.

Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.

Judgment

The Court’s judgment is available here.