A retired Nullawarre farmer whose driving caused the death of a motorcyclist at Allansford has escaped serving an immediate jail term.
Kenneth Parsons, 78, now of Warrnambool, pleaded guilty in the Warrnambool County Court on August 30 to dangerous driving causing death.
The court was told Parsons attempted to turn right into a driveway and failed to see an oncoming motorcyclist, who died from injuries sustained in a collision in 2021.
An immediate jail term is the usual sentence for such a charge but on September 13 Judge Kevin Doyle found there were substantial and compelling reasons and rare and exceptional circumstances as to why Parsons should not go to prison.
He told the court an examination of 30 comparative cases showed Parsons was the oldest defendant by eight years and he also had an array of health problems, which allowed him to depart from an immediate jail term.
He said Parsons, who had no prior criminal history, was a low-risk of re-offending.
Parsons was convicted and placed on a three-year community corrections order with the condition he be supervised and complete 280 hours of community work. He was banned for driving for three years.
The judge said a report showed Parsons was baffled he didn't see the motorcyclist and accepted Parsons felt shame and remorse in that he caused the collision.
Judge Doyle found Parsons met the tests of substantially and compelling reasons and rare and exceptional circumstances because he was an older man who caused the death through moment inattention, he had experienced the road fatality death of a son and was suffering his own array of health problems.
The court was told Parsons was heading east on Allansford's Ziegler Parade at 4.09pm on Wednesday, May 26, 2021, when he attempted to turn right into business to get a wheel alignment for a large caravan, which he was towing with his Chevy Silverado utility.
Parsons failed to see Saputo supervisor Fred Van Den Broek heading the 1.4 kilometres home from work on his 2005 Suzuki motorbike.
The vehicles collided head-on just one metre from the southern edge of the road.
The 55-year-old married father of three died of injuries he suffered at the accident scene.
Judge Doyle said it was a tragic case involving the death of an innocent motorcyclist riding home from work, who was doing so safely and in a prudent manner.
He said that inexplicably Parsons did not see Mr Van Den Broek approach, who had no chance at all of surviving the collision.
On the day of the accident Parsons had left home with his wife Pamela at 5.15am and drove 334 kilometres to Yarra Junction on the eastern outskirts of Melbourne, before returning home later that same day.
Bu the judge said Parsons had not told police the truth about the full extent of his driving that day, showing less courage than he might have.
Judge Doyle said Parsons told police he turned in front of the motorcyclist and never saw the rider.
"That's exactly what happened," the judge said, explaining he had watched CCTV footage of the collision a number of times.
The judge the facts of the case were never really in dispute and the maximum penalty for dangerous driving causing death was 10 years' imprisonment.
Judge Doyle said there were five victim impact statements tendered to the court from Mr Van Den Broek's wife, son, brothers and his best friend.
He said the impact on them had been devastating and was still raw three years after.
The judge said the gap in their lives would never be filled and it was clear Mr Van Den Broek was a very decent, caring and much loved man.
He said Parsons made an error of judgement and there was nothing anyone could do to bring Mr Van Den Broek back.
The judge said the consequence of that error was the death of Mr Van Den Broek.
Judge Doyle noted Parsons had driven for much of the day and it was a momentary inattention case, involving low moral culpability, but was not based on fatigue.
He said Parsons' focus may have been on the driveway where he was heading rather than the road for a short period of time.
The judge agreed with the prosecutor that it was a "silly mistake", adding it was at the lower end of the spectrum for a dangerous driving causing death charge.
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