CCO for Dangerous Driving Causing Death

Case Overview

Louise Conwell recently acted on behalf of a client charged with dangerous driving causing death. The client was turning at an intersection when he struck a pedestrian, resulting in her tragic death. The prosecution alleged that he failed to pay proper attention.

Despite having a perfect driving record for over 50 years, with not even a speeding fine, he faced charges of dangerous driving causing death—a category 2 offence that typically results in significant terms of imprisonment. For such an offence, the court must impose a custodial order and cannot issue a combined order (imprisonment and community corrections order) unless special reasons exist under section 5(2H) of the Sentencing Act 1991. The reasons include:

• Impaired mental functioning: The offender proves on the balance of probabilities that the offender had impaired mental functioning at the time of the offending conduct causally linked to the commission of the offence, which substantially and materially reduces their culpability (5(2H)(c)(i)); or
• Impaired mental functioning would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment (s 5(2H)(c)(ii)).
• Secure treatment orders: The court proposes to make a Court Secure Treatment Order or a Residential Treatment Order (s 5(2H)(d)); or
• Substantial and compelling circumstances: There are ‘substantial and compelling circumstances that are exceptional and rare, and that justify’ not imposing a sentence of imprisonment(s 5(2H)(e)). 

Thus, unless proof of one of these exceptions could be established, the client faced a lengthy term of imprisonment—a daunting prospect made even more concerning by the fact that he was a carer for his sick wife.

Defence Strategy

In Victoria, a sentence indication allows the court to inform an accused about the likely sentence if they plead guilty, prior to a formal plea, assisting them in making an informed decision about their plea.

Leading up to the sentence indication hearing, investigations were conducted. The team managed to subpoena the local council to uncover evidence that the intersection had been the site of numerous serious collisions over the past 10 years. Following the collision involving their client, funding had been allocated to upgrade the intersection for improved safety.

Additionally, an expert, specialising in Traffic and Transport Engineering, was engaged to review the intersection at the time of the accident, analysing evidence such as CCTV footage and body-worn police camera footage. This expert provided an opinion on potential contributing factors to the collision, including road shading, pedestrian crossing sequencing, and sun glare.

This evidence allowed the legal team to argue that the case involved substantial and compelling circumstances that were exceptional and rare, justifying a choice against a sentence of imprisonment.

Conclusion

As a result of several hearings, the Judge indicated that if the client pleaded guilty, he would receive a community corrections order with no time in custody. After receiving advice and considering his options, the client accepted this indication.

Cases of dangerous driving causing death carry serious implications. Drawing on their experience, Louise Conwell and her team were able to gather evidence and secure expert testimony, leading to the best possible outcome for their client.