STATE OF TASMANIA v MELISSA OATES 22 APRIL 2021
COMMENTS ON PASSING SENTENCE GEASON J
Ms Oates, you have pleaded guilty to a charge of dangerous driving contrary to s 172A of the Criminal Code. You have also pleaded guilty to driving a motor vehicle whilst exceeding the prescribed alcohol limit, and failing to stop and assist in the case of an accident.
You were 34 years old at the time of this offending. You are now 35.
On 28 February 2020 you were at a friend’s residence with two of your children, and Mr Jari Wise. You consumed a considerable amount of alcohol. Close to midnight Mr Wise decided to leave and visit a friend. He walked a short distance to where his friend was living.
When he left his friends residence, at around 1am, he said he was going to walk home.
He was seen walking along a number of streets and ultimately along Wilmot Road.
At around the same time you left to purchase food from the nearby service station. You were captured on CCTV footage at close to 1am driving into a service station in Huonville and purchasing items. You were the only person in the vehicle. You left shortly after and travelled towards the Sale Street roundabout. You turned onto Wilmot Road and were captured again on CCTV footage heading towards Ranelagh. Your phone, which was later examined, shows that there are a number of calls and messages between you and Mr Wise, the last (being a missed call) at 1.10am. He asked you to pick him up. At 1.10am you were captured on CCTV footage again, near the Huon Valley Training Centre heading towards Ranelagh, along Wilmot Road. You were travelling at a moderate speed. You turned your vehicle around in the caravan park on Wilmot Road and headed back along that road towards Main Street, Huonville, travelling at an excessive speed: 110km/h in a 50km/h zone. As you travelled past the Huon High School your vehicle struck Mr Wise with the left front hand side of your car.
The medical evidence is that he would have died almost instantly.
The evidence supports a conclusion that at the time he was struck he was standing on the roadway in your lane. He was dressed in dark clothing.
Witnesses heard the sound of the collision. One witness described it as sounding like a car hitting another car, followed by a revving sound as you drove away. When that witness saw your vehicle shortly after this collision, he estimates it was travelling at 110 to 120 km/h, in the direction of the police station.
Your decision to drive away from the scene after the collision is the subject of a separate summary charge for failing to remain at the scene of an accident.
You drove back to the address where you had been drinking earlier that evening, about 1.6 kms away. Apparently, upon alighting that vehicle, you said to a neighbour “look at the car, look at what he’s fucking done to my car.” Your friend then emerged from the house and asked you what had happened. You said “He jumped out in front of me, he came out in front of me”.
You then drove back to Wilmot Road with your friend. She later told police that during that journey you had said to her “I think I’ve hit something or someone and I hope it’s not Jari”.
The police had received a call in relation to this matter at 1.23am, and by the time they arrived at the scene, you had returned. You were described by a police officer as appearing to be highly intoxicated and crying out “why did he jump in front of me”. You told police that you were driving the vehicle and you said that the deceased had jumped out in front of your car.
Mr Wise had apparently done this before. According to one person who prepared a statutory declaration in relation to this matter, you had been a passenger in her vehicle on a previous occasion when Mr Wise stepped out in front of her car, facing her, and only moving towards the side of the road as she braked. That witness said in respect of this incident that you acknowledged to her that you should not have been driving having been drinking, that you knew you were speeding, (though you did not know how fast you were travelling), and that when something did hit the car you thought it might have been Mr Wise throwing something at the car.
Another person who prepared a statement in relation to this matter, has said that some years ago Mr Wise jumped out in front of your vehicle after the two of you had argued, and he had been asked to get out of the car.
Camera footage from the body camera worn by the police officer attending this accident, records you saying “oh fuck, my baby’s dead, my man’s dead. Why did he have to run out in front of me, why did he run in front of me. He just jumped out in front of me, I didn’t mean to do this. Why did you do this, why did you jump out in front of me”. You also said in the course of that recording, that you did not have your glasses on at the time you were driving. It is a condition of your licence that you wear visual aids.
You were subsequently conveyed to Hobart Police Station but made no comment to police.
A blood alcohol analysis revealed a blood alcohol concentration of 0.152 grams of alcohol in 100 millilitres of blood. That matter is the subject of a separate charge.
At the time of the collision the weather was fine and the road was dry. Wilmot Road is generally dark with street lights positioned nearly 72 metres south and 43 metres north of the point of impact.
An examination of the vehicle indicates that Mr Wise was walking north in the southbound lane facing the vehicle when he was struck. There was no evidence at the scene to suggest that prior to or subsequent to the impact you attempted any avoidance manoeuvres indicating that there is no evidence that you saw Mr Wise prior to impact.
In April 2020 police performed visibility testing at the scene of the collision. That testing involved vehicle speeds of between 60 and 100 km/h. The object of the testing was to explore the point at which a pedestrian could be perceived from a moving vehicle, travelling at various speeds, and with lights on low beam or high beam and with a pedestrian walking or standing. That testing demonstrated that even at a speed of 60 km/h it was difficult to see a pedestrian even though the testing officers were expecting to see one.
The Crown does not assert that you are legally responsible for Mr Wise’s death, but that that result is indicative of the risk that you posed to pedestrians and other road users by your manner of driving. It has arrived at that conclusion, which I accept, on the basis that if the deceased jumped out in front of your vehicle it could not be said that your manner of driving was a cause of death. That hypothesis has regard to statements that you made to police and to a friend shortly after the incident; that the deceased had admitted to jumping out in front of your vehicle in the past; that about a week before he had jumped in front of your vehicle; that given his previous tendency to behave in this way and the fact that he was extremely intoxicated – at the time of his death the deceased had a blood alcohol concentration of .220 – it cannot be ruled out that he jumped out in front of you; and there is no forensic evidence at the scene to disprove your assertions that the deceased did in fact jump out in front of you. This conclusion gives weight to the fact that witnesses have reported Wilmot Road being dark and visibility not being good, and the dark clothing worn by the deceased, and that at that hour of the morning a driver would not expect a pedestrian to be on the road in their lane let alone to jump out onto the roadway immediately prior to impact
In short it cannot be shown that the death would not have occurred even if a reasonable prudent driver had been driving the vehicle, without excessive alcohol, wearing visual aids and travelling at the speed limit. As to that final point I note that the medical evidence is that a pedestrian struck by a vehicle travelling at 50 km/h will sustain injuries sufficient to kill them.
Aggravating features of your conduct include the excessive alcohol in your blood, three times the limit; that you were driving significantly over the speed limit in a built up area; that you were not wearing your glasses as required; that there was a risk to other road users and pedestrians by reason of the manner of your driving; that you were aware in a general sense that Mr Wise was somewhere in the area; and that you did not stop after the collision in circumstances where you should have known that you had struck someone who at the very least would have been seriously injured.
I have considered the matters put in Mr Stevens’ careful plea in mitigation on your behalf. Referring to some of those maters briefly, you had a happy childhood living in the Huon Valley where you attended school, you completed year 11 at Hobart College before travelling around Australia with your family. You worked in the United States for 12 months as a nanny. You worked in a similar role in Melbourne and worked with children in day-care. You came back to this State when you were 21, having fallen pregnant; moving to Western Australia about 4 years later where you had your second child before returning home.
I accept that you have always been a productive member of society having worked for yourself or others, until children came into your life, and became your priority. You separated from your partner after the birth of your third child in late 2014.
You have known the deceased all your life and whilst your relationship was initially one of friendship, it evolved into a romantic relationship and you had a child together born in June 2019. Though there were difficult times in the relationship it is indicated to me that the “wonderful times” outweighed the harder times.
I accept too that you are not a regular drinker, notwithstanding the prior conviction for exceeding 0.05% in 2016; I accept that it is not normal for you to have consumed alcohol to the extent that you did on the night of this event.
I also accept that you regret deeply what has occurred, and that your regret weighs heavily upon you. You acknowledge the irreparable damage you have caused to Mr Wise’s family, and you are sorry for the hurt that has resulted. You have endured threats of violence as have your children.
Whilst the anger of the Wise family is understandable, the manifestation of that anger in threats and violence by anyone sympathetic to that view, is utterly pointless, and to my mind does nothing to honour the memory of the deceased. Those threats have resulted in the children requiring counselling and I accept that whilst you are away from them you will feel loss and separation strongly, as well as a sense of not being able to assist them to navigate what may be a difficult time following the finalisation of this matter today.
I accept Mr Stevens’ submission that you are remorseful for the hurt and the pain that you have caused and note your apology to the police emergency services and others who came upon the scene that night. Your remorse is borne out by your early plea of guilty and, and as well, I acknowledge the utilitarian benefit which flows from the fact of your plea. The Court has an obligation, in my view, to encourage those who are guilty to acknowledge such fact at an early stage in order to assist in the administration of justice more generally, and in recognition of that view I discount the penalty I would otherwise have imposed by 20%.
I note that you have the ongoing support of your family, and that your mother has moved into the family home to assist with the care of your children.
I take account of your record.
You present as a difficult sentencing proposition. Your conduct is serious, as you acknowledge, and the Parliament has determined that acts of dangerous driving should be indictable, and dealt with in the Supreme Court as a way of acknowledging the gravity of such offending. The relevant sentencing considerations in relation to matters such as this focus heavily upon the need for general deterrence.
This is a serious case of dangerous driving; the penalty I impose must deter others from the conduct in which you engaged. The very real risk associated with driving in circumstances such as those in which you chose to drive, are evident here. I accept, as I have said, that your driving was not the cause of death, but your decision to drive carried with it the risk of causing grave harm to others and the result evidences the reality of such risk.
You will live with this episode for the rest of your life.
I acknowledge that the sentence I impose will not, in all probability, satisfy those who have lost a loved one.
The purpose of the sentence I impose today is not to put a value on Mr Wise’s life. The focus of sentencing involves arriving at a proper curial response to the conduct having regard to all of the circumstances including the objective seriousness of that conduct, the need for denunciation of it, the need to deter you and others, as well as your personal circumstances.
In the circumstances of the driving behaviour admitted here I have reached the conclusion that it is only a term of imprisonment that will satisfactorily meet the sentencing objectives. In all the circumstances, I impose a term of 14 months’ imprisonment, backdated to the date you were remanded in custody.
I turn to consider whether some of that sentence should be suspended. Suspension of a term of imprisonment or part of it, affords the Court an opportunity to ameliorate the effect of a sentence in order to encourage rehabilitation. Whilst I have marked the seriousness of your offending in the head sentence, I take the view that it is appropriate to encourage your continued rehabilitation through the suspension of part of the penalty that I have imposed.
I suspend 6 months of the sentence on condition that you commit no offence punishable by a term of imprisonment for a period of 3 years. If you do, you are liable to serve that period.
In relation to the charge of exceeding 0.05%, this was a second offence, and I suspend you from holding or obtaining a driver’s licence for a period of 3 years to commence upon your release. I fine you $ 2000.
In respect of the charge of failing to remain at the scene of an accident I record a conviction.
The effect of the sentence is that you must serve 8 months imprisonment with 6 months hanging over you on condition that you commit no offence punishable by imprisonment for a term of 3 years. Your driving licence is disqualified from when you are released. The fine is self-explanatory and I am recording a conviction in respect of your failing to remain at the scene of the accident.