By Mikayla van Loon
A Mount Evelyn truck driver has been jailed after pleading guilty to dangerous driving causing the death of a couple in a crash in Montrose in 2020.
Despite County Court judge Duncan Allen wanting to give a more “mercifully lenient” sentence, 28-year-old Daniel Magnay will serve three and a half years in prison, with a non-parole period of one year.
Mooroolbark residents, 72-year-old William and 69-year-old Marion Williams, were killed in the collision at the intersection of Mount Dandenong Road and Canterbury Road in Montrose on 19 October 2020 around 3.47pm.
Magnay had been driving a Hino tipper truck towards stopped traffic when he collided into the back of the Williams’ Toyota sedan, which then hit a tree.
“This is a most tragic and sad case,” Judge Allen said.
“[Mr and Mrs Williams] are grieved deeply by their family members.”
Evidence given by Dr Shane Richardson, an engineering expert in the field of crash reconstruction, suggested a driving phenomenon known as the ‘looming effect’ could have contributed to the collision.
The ‘looming effect’ is a situation where a driver doing higher speeds on a straight stretch of road can assume a car well ahead in the same lane is travelling at the same speed but is in fact travelling slower or is stopped.
In previous cases the Crown has conceded this may have contributed to collisions of a similar kind and Judge Allen took this into consideration when making his sentencing decision.
Mechanical Investigation Unit Sergeant Mathew Craine identified at the time of investigation the ABS brakes on the Hino truck were faulty and may have also contributed to the incident.
This was a factor that Judge Allen found was out of Magnay’s control due to the vehicle being owned and registered by Yarra Valley Water, his employer at the time.
While conditions on the day suggested traffic was moderate, visibility was good and the weather was fine, traffic had begun to bank up in the right-hand turning lane, spilling out into the lane Magnay was travelling in.
Speaking to witnesses after the incident, Magnay was consistent in his understanding of what happened in the lead up to the collision.
“It all came up so quickly, I just dropped the anchors and there was no time to stop,” Judge Allen read from a witness statement during the sentencing hearing on Monday 6 March.
“[I] was driving along, not speeding, 65 maybe I looked over into the left lane and noticed the traffic flowing freely. When I turned back, the traffic had stopped. I had nowhere to go. I couldn’t stop,” another witness statement read.
The collision investigation found that at the time of driving, Magnay was travelling at a speed of 62km/h in a 70km/h zone and after applying the brakes, his speed reduced to a minimum of 32km/h.
“It’s evident you were travelling at a safe speed well within the speed limit,” Judge Allen said
“It’s also clear from the evidence that up until you applied the brakes you were driving with due care.”
In the prosecution’s summary of events and further evidence from Dr Richardson, it was suggested that Magnay had a total of 2.6 seconds to attempt to stop without causing damage.
“You’re in jail now and you will be in jail for a while now because of 2.6 seconds,” Judge Allen said.
“This is another tragic consequence of that day.”
Judge Allen said Magnay’s inattention was just seconds – that was not caused by distraction, phone use or ill driving but rather looking at the traffic around him.
“You reacted as soon as you could,” the judge said.
“If the community was aware of the full circumstances of this case their consciousness would be shocked.
“Nothing that I have said undermines or reduces the tragic consequences suffered by Mr and Mrs Williams and the ongoing grief of their friends and family.”
Since the 2018 parliamentary change to the sentencing of dangerous driving, Judge Allen said it was mandatory for Magnay to serve time in prison, despite his better judgement.
“Unlike parliamentarians, judges of this court and justices of the Supreme Court [wish] to rethink the sentencing of young [people], decent members of the community, of good family, with no previous driving convictions.”
Taking into account Magnay’s guilty plea and acceptance of responsibility, Judge Allen said he would give the most significant sentence reduction possible.
“To demonstrate your remorse you pleaded guilty, even though in my opinion you had a viable defence for both charges.
“You sacrificed the opportunity to be acquitted…[and a] guilty plea has avoided any further distress to the family of Mr and Mrs Williams.
“It’s a powerful acknowledgement of responsibility on your part.”
Finding that Magnay had low moral culpability, with no intent to cause harm nor any engagement with distractions, as well as it being unlikely for him to be charged on a similar offence again, a non-custodial sentence would usually suffice but the mandatory sentencing says otherwise.
“I have no option but to impose a sentence of imprisonment,” Judge Allen said.
Magnay’s driver’s licence was also cancelled for a period of 18 months. His jail term includes six days served in pre-sentence custody.
