Director of Public Prosecutions v Adams

[2019] VCC 1408

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00709

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY SHAUN ADAMS

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2019
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v ADAMS
MEDIUM NEUTRAL CITATION:	[2019] VCC 1408

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Shaw	Office of Public Prosecutions
For the Accused	Mr C. Terry

HIS HONOUR: 

1Bradley Shaun Adams, you have pleaded guilty to one charge of culpable driving causing death and one charge of negligently causing serious injury.  In addition, you have pleaded guilty to three summary charges and have consented to this court sentencing you in relation to them.  They are Summary Charge 3, driving whilst disqualified, Summary Charge 4, driving an unregistered vehicle and Summary Charge 9, refusing to undergo a preliminary breath test.  The circumstances of your offending are as follows. 

2On 4 August 2017, you drove a V8 utility in a north-easterly direction along Plenty Road, Reservoir.  Your 18-year-old son was in the passenger seat.  You drove into a drive-through bottle shop in Plenty Road and purchased two packs of pre-mixed alcohol cans.  Following that purchase you were observed to drive out of the driveway and continue to travel north east on Plenty Road at a fast speed.  As you drove away, you were observed to fishtail on the tram tracks.  At about that time, some distance to the north east, Maria Gaggiano was travelling in the opposite direction.

3Her 87-year-old mother, Rachele Gaggiano, was in the passenger seat of her vehicle.  She travelled in a south-westerly direction on Plenty Road.  She was stationary, waiting to turn right into the driveway of her mother's home.  She observed your utility motor vehicle when it was about 150 to 200 metres away.  She made a turn into the driveway.  As she did, your vehicle, which was travelling at 102 kilometres per hour in the opposite direction, collided with the front passenger door of her vehicle.  As a consequence of that collision, Rachele Gaggiano died at the scene.

4Maria Gaggiano suffered a number of serious injuries to which I will refer later in these remarks.  After the initial impact your utility spun four times anticlockwise and came to a rest in the north east bound lane about 40 metres north east of the point of impact.  The speed limit in Plenty Road at all times from the bottle shop to the point of the collision was 60 kilometres per hour.  This conduct constitutes the offences of culpable driving causing death, Charge 1 and negligently causing serious injury, Charge 2.

5After the collision, witnesses observed you drinking from a can containing alcohol.  Emergency services were called.  You told one witness, 'It's my first beer', even though at the time you were holding a can of pre-mixed spirits.  You were observed to be slurring your words and appeared to be intoxicated.  A senior constable of police attended soon afterwards and observed that your eyes appeared to be bloodshot and glazed.  You smelt strongly of alcohol and you appeared to be intoxicated. 

6Following the collision you said a number of things to police including the following, 'I should not have been driving, okay', further, 'I had one beer.  I went through the bottle shop and I got drinks.  I left the bottle shop, someone's pulled in front of me, turned into their house and I've collided with them', further, 'I necked three cans at the scene.  You stopped me on the fourth'.  Further, 'I reckon I necked two cans of Wild Turkey 101s in about 2 minutes and that was after the accident and then one of the officers took the third one off me, okay', and, finally, you also told police that you were travelling at between 60 and 70 kilometres per hour at the time.

7Further, you refused a preliminary breath test at the scene.  That conduct constitutes the offence of refusing to undergo a preliminary breath test which is Summary Charge 9.  At the time of the collision you were an unlicensed driver having been disqualified from holding such license or permit on 23 January 2017.  Further, at the time the Holden utility driven by you was an unregistered vehicle.  This conduct constitutes Summary Charges 3 and 4 respectively.

8The maximum penalty for each of these offences is as follows:  culpable driving causing death, imprisonment for 20 years.  Negligently causing serious injury, imprisonment for 10 years.  Driving whilst disqualified, imprisonment for two

9years and a fine of 240 penalty units or both.  Driving an unregistered vehicle, a fine of 50 penalty units.  Refusing to undergo a preliminary breath test, imprisonment for 12 months, a fine of 120 penalty units or both.  A penalty unit I should add is approximately $156.

10The victim impact statement from Maria Gaggiano was tendered by the prosecution.  That statement, dated 14 May 2019 outlines a list of injuries suffered by her as a consequence of the collision.  Those injuries are lumbar vertebral fractures at the L4 and L5 level, lacerated liver, large haematoma and post-traumatic fat necrosis on the left thigh, extensive bruising over her entire body, especially the right breast, pain in the right knee and ankle, left-sided rib and flank pain, neck pain with headaches, a haematoma over the right knee and shin, a right ankle injury requiring surgical repair on three separate occasions, inability to walk normally, difficulty using public transport, inability to perform house work and gardening, inability to read due to constant headaches, inability to complete her study, inability to perform her job resulting in unemployment, inability to concentrate, depression, anxiety and post-traumatic stress disorder, flashbacks to the collision, difficulty sleeping, anger, agitation and irritability.

11I accept that the effect of the collision and the death of Rachele Gaggiano has had a catastrophic effect on the Gaggiano family and in particular on Maria Gaggiano and her father, the husband of the deceased, now aged 91. 

12You are currently aged 45.  You were aged 43 at the time of the collision.  You appear to have had a stable and normal childhood save for your report of being a victim of sexual abuse at the hands of your great uncle for a period of about six months from the age of five.  You appear to have struggled academically.  You repeated Year 8 before ultimately leaving secondary education without having completed Year 9.  You then obtained an apprenticeship as a plasterer and have worked as a plasterer and also as a carpenter, though without formal qualifications, during your adult life.  Your employment record appears to have been a stable one.

13You commenced using cannabis in your mid-teenage years and have continued to use it on a daily basis for most of your life up until the time of your remand.  You used amphetamines during your marriage to your ex-wife but reduced that use after your separation from her.  You have been a heavy drinker of alcohol since your late teenage years.  Such consumption increased following your separation from your wife.  I was informed that in the two years leading up to this offending you reduced your consumption of alcohol.  Following your separation you moved to Queensland and later returned to live in Melbourne in about 2010.

14You were married between 1995 and 2007 and you have two children from that marriage, now aged 20 and 17 respectively.  After your separation, until your arrest in relation to these offences, you continued to live with your mother and your son.  Your daughter resides with your former wife.

15Since being remanded in custody you have spent time at Melbourne Remand Centre, Fulham Prison and Ravenhall Prison.  I was informed that you have not used drugs or alcohol during this period of remand.  A report of Mathew Staios, psychologist, was tendered on your behalf at your plea hearing.  Mr Staios noted your persistent use of cannabis from your teenage years, your regular use of methamphetamine or ice between the ages of 25 and 33, regular use of ketamine and LSD.  He noted your heavy use of alcohol from about the age of 18.

16He considered that your cognitive profile was consistent with a low average to borderline range of intellectual functioning.  He considered that you had a fragile sense of self, limited verbal communication skills, and underdeveloped coping mechanisms which were further destabilized through the course of your marriage.  He noted that you had been close to your stepfather and following his death in 2016 your substance use escalated.  I note Mr Staios' report was dated 3 August 2018, about a year ago, and that appears to have been prepared in support of an application for bail.

17A number of character references were also tendered at your plea hearing, from your son Dylan, your mother Rosemarie Reed, and old friends and work colleagues Dennis Moran, Leo Butera and Simon Day.  They speak highly of you, although I note that none of those references contained any mention of a relatively large number of convictions for criminal offences dating back to 1994.  It is, of course, possible that they did not know you as well as they thought they did.

18Your record of criminal convictions is unimpressive, to say the least.  In particular, many of those convictions relate to the use by you of motor vehicles.  You have prior convictions for the following: eight instances of unlicensed driving or driving whilst disqualified; three convictions for speeding in a motor vehicle; careless driving; three convictions for theft or attempted theft, including one theft from a motor vehicle; driving without P plates, two convictions; two convictions of driving an unregistered vehicle; driving without registration plates; two convictions of causing criminal damage; two convictions of unlawful assault; assault by kicking; possessing cannabis; cultivating cannabis; possessing amphetamine; and breaching a community-based order.

19Further, on 6 August 2016 you were apprehended driving a motor vehicle with a blood alcohol concentration of 0.119 per cent.  On 23 January 2017, you were convicted of driving with a blood alcohol concentration exceeding the prescribed concentration, and also with unlicensed driving.  You were disqualified from holding a driver's licence for 12 months.  In addition, on 2 September 2017, approximately four weeks before the offending in question for which I am to sentence you, you committed offences of theft of a motor vehicle, possession of a prohibited weapon without an excuse, namely a machete, and committing an indictable offence whilst on bail for the current matters.

20On 26 June 2018 you were sentenced in respect of those matters to 30 days' imprisonment on an aggregate basis.  The magistrate declared pre-sentence detention in relation to those new offences as 30 days.  In fact, you remained in custody from 3 September 2017 until 11 December 2017, the date upon which your bail in relation to the culpable charges that you face here was revoked.

21That period of nine weeks spent in custody strictly speaking is not time spent in custody in relation to these charges, the culpable driving charges.  That is because on these charges you were bailed throughout that nine-week period. Nevertheless, I have reached my decision in relation to your sentence keeping in mind that you did serve that nine-week period in custody.  I take it into account.

22I consider that the gravity of your offending is in the higher range for a number of reasons.  It is agreed that your blood alcohol concentration at the time of the collision was nearly two and a half times the legal limit.  You were driving at a speed of 102 kilometres per hour, some 42 kilometres per hour in excess of the 60 kilometre speed limit.  You were driving at 6.25 pm on a Friday night, which I accept would have been a busy time in terms of traffic.  This was a main road with tramlines in a built-up residential area, and finally, you had your 18-year-old son with you at the time in the front passenger seat.

23You alighted from your vehicle after the collision and proceeded to consume more alcohol.  Such conduct suggests a lack of remorse on your part, at least at that time.  It is difficult to imagine a worse example of behaviour in front of your 18-year-old son, driving a motor vehicle whilst intoxicated at high speed.  Your conduct was indeed culpable.  I take into account that you conceded to police from the earliest time that you had done the wrong thing in driving on that occasion and  note your relatively early plea of guilty to these charges.

24Further, I accept that at the time you were interviewed by police later on the day in question you were showing signs of remorse for what happened.  By that time you would have been well aware that one of the occupants of the other vehicle had died in the collision and that the other was seriously injured.

25Your counsel submitted that the death of your stepfather in 2015 and the separation from your wife and children in 2007 were factors which might explain to some extent your behaviour on the occasion of the collision.  I note that your stepfather died two years before the collision and the separation from your wife and children some 10 years before the collision.  The inability for you to have contact with your children was related to a family violence intervention order that was issued against you at or soon after the time of separation.  I do not consider any of those matters can legitimately be put forward as any explanation as to why you drove a vehicle at high speed whilst intoxicated in circumstances that were so plainly dangerous to yourself, to your son, and to other users of the road.

26I consider here that the principal purposes for which I am to sentence you are, firstly, to punish you as the offender to an extent and in a manner which is just in all the circumstances.  Secondly, to deter you and other persons in the community from committing offences of the same or similar character.  Thirdly, to manifest the denunciation by the court of the type of conduct in which you engaged. And finally, to protect the community from you.

27I take into account the matters set out in s.5(2) of the Sentencing Act and in particular those relating to the maximum penalties prescribed for these offences to which I have previously referred, the serious nature and gravity of the offences, your high culpability and responsibility for the offences, the effect and impact of the offences on the occupants of the other vehicle, and the injuries resulting directly from your offences, the fact that you pleaded guilty at an early stage, your prior convictions and your previous character.  I note that your counsel conceded that no sentence other than one involving immediate imprisonment would be adequate.

28Your counsel referred me to the Victorian Court of Appeal decision of McGrath v R, the case involving a fatal accident where the accused man had been driving with a blood alcohol concentration of 0.083 per cent, travelling at approximately 40 kilometres per hour in excess of a speed limit of 100 kilometres per hour, a number of prior convictions not dissimilar in nature and extent to your own.  He was sentenced to a total effective term of imprisonment of eight years and nine months with a non-parole period of six years.  I note that your blood alcohol concentration was considerably higher than that of McGrath; his speed was approximately 40 per cent higher than the speed limit, yours was 70 per cent higher; you both had passengers in your own vehicle and the driving in each case resulted in the death of an occupant of the other vehicle.

29On any view, your offending was serious.  It resulted in the death of one person and serious injuries to another.  The quality of your driving on that occasion was dangerous and irresponsible.  The risk of causing a collision should and would have been obvious to you.  As a 43-year-old father one would expect you to be setting an example to an 18-year-old son sitting beside you, rather than behaving in a manner that might be described as an immature hoon, intoxicated, travelling at high speed, fishtailing down the road.

30On the charge of culpable driving, Charge 1, you are convicted and sentenced to eight years' imprisonment.  This shall be the base sentence.  In addition, you are disqualified from holding a driver's licence or learner's permit for a period of three years commencing on the date that you are released from custody.

31On the charge of negligently causing serious injury, Charge 2, you are convicted and sentenced to four years' imprisonment, of which one year shall be served cumulatively on the base sentence.  In addition, in relation to that charge you are disqualified from holding any driver's licence or learner's permit for a period of three years commencing on the date of your release from custody and that period of disqualification shall run concurrently with the period of disqualification imposed on Charge 1.

32In relation to Summary Charge 3, driving whilst disqualified, I note that this is your eighth conviction for offences of driving a motor vehicle either whilst unlicensed or whilst disqualified - an extraordinary record.  You are convicted and sentenced to a term of imprisonment of four months, three months of which is to be served cumulatively to the base sentence.

33With regard to Summary Charge 4, driving an unregistered vehicle, you are convicted and fined the sum of $750.  With regard to Summary Charge 9, refusing to undergo a preliminary breath test, you are convicted and sentenced to a term of imprisonment of three months.  That term is to be served concurrently with the base sentence.  It follows that I have sentenced you to a total effective sentence of nine years and three months' imprisonment.  I direct that you shall not be eligible for parole until you have served seven years of that term.

34Counsel are in agreement as I understand it that the time properly to be allowed as pre-sentence detention in relation to these offences is 636 days, not including today?

35MR SHAW:  626, Your Honour.

36HIS HONOUR:  Yes, my apologies.

37MR SHAW:  I just might add that in the prosecution opening there was an error.  The number of days was correct but I had said in paragraph 49, I referred to a period from 11 December 2017 to 28 June 2019.  That should actually say 28 July, but that number 595 is correct, and since we were last before Your Honour there has been 31 days, so that is 626. 

38HIS HONOUR:  Thank you, Mr Shaw.  Counsel are in agreement that the time properly to be allowed as pre-sentence detention in relation to these offences is 626 days, not including today, and I direct that such period be reckoned as a period of imprisonment already served under this sentence and I direct that this be recorded in the records of this court.

39Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to these offences and had been convicted of them, I would have sentenced you to an aggregate term of imprisonment of 11 years with a non-parole period of nine years.

40Pursuant to s.89C of the Sentencing Act I find that the offences of culpable driving causing death and negligently causing serious injury were committed by you whilst you were under the influence of alcohol which contributed to those offences. Pursuant to s.87Q of the Sentencing Act I direct that particulars of the orders of licence disqualification and findings pursuant to s.89 of the Act be sent immediately to the Roads Corporation.

41Other matters, Mr Shaw.  What ancillary orders, if any, are sought by the Crown?

42MR SHAW:  Nothing else, Your Honour, thank you.

43HIS HONOUR:  Anything else that either counsel consider I should turn my mind to?

44COUNSEL:  No, Your Honour.

45HIS HONOUR:  Yes, thank you.  Mr Adams may be taken downstairs, thank you.

---