Director of Public Prosecutions v Adamson

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR -18-00692

DIRECTOR OF PUBLIC PROSECUTIONS

THOMAS CHARLES ADAMSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2018
DATE OF SENTENCE:	13 September 2018
CASE MAY BE CITED AS:	DPP v Adamson
MEDIUM NEUTRAL CITATION:	[2018] VCC 1502

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K Doyle	Office of Public Prosecutions
For the Accused	Mr J Dickinson QC with Mr J Taaffe	Doogue & George Defence Lawyers

HIS HONOUR:

Introduction

Thomas Charles Adamson, you have pleaded guilty to two charges of culpable driving causing death contrary to s 318(1) of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment.
You have also pleaded guilty to a related summary charge, charge 5, of driving while disqualified contrary to s 30(1) of the Road Safety Act 1986 which in this instance being a first offence, carries a maximum penalty of 30 penalty units or 4 months imprisonment.
You have also admitted your Criminal Record.

Circumstances of the offence

A prosecution opening was tendered on the plea and may be summarised as follows:
On 9 August 2018, you Thomas Adamson had been working at your parents' house in Facey Road, Devon Meadows before going to Kelly's Hotel in Cranbourne with a friend, Troy Tarrant. You arrived at the hotel at about 5.30 pm. At the hotel you had a meal, drank beer and played the pokies. Whilst there, you received a phone call from your girlfriend, Genevieve Ireland, asking where you were. You had moved in with Ms Ireland two weeks earlier. Ms Ireland was angry with you and terminated the phone call. You and Mr Tarrant then travelled back to your parents’ house, arriving there around 7.00 pm.
You were driving a friend's 2001 silver Holden Commodore, registration QPB 849. You did not have a drivers’ licence. Your licence was disqualified on 9 May 2017 for a period of 7 months as a result of an accumulation of demerit points.
At your parents' house you argued with your parents about your failure to meet with Ms Ireland. Mr Tarrant left, and a short time later you also left in the Holden Commodore, alone. You returned home to Ms Ireland however when you arrived Ms Ireland was not there. You did not have a key to get in so decided to continue to drive and return to your parents' home. You travelled towards Cranbourne on the South Gippsland Highway, however at some point, made a U-turn and headed south east back towards Facey Road.
The South Gippsland Highway is situated in a semi-rural setting on the south eastern outskirts of Melbourne. The road is a two lane divided highway, separated by a grassed median. There are wire rope barriers present. The road is essentially flat and straight and runs in a predominately north west to south east direction at the point where the collision occurred. It is constructed of sealed bitumen in excellent condition with the provision for two lanes of travel in each direction, separated by a single broken white line painted on the road. At the intersection with Devon Road, where the Lighthouse Christian College exit was located, overhead street lighting was present and operating. There is a sign posted speed limit of 100 km/h.
Witness Kassandra Llerena was driving south east on the South Gippsland Highway with a passenger, Joshua Ellis. She had just driven past the Cranbourne RSL and into the 100 km/h zone, when she heard a loud engine noise. Her vehicle, which had just reached 100 km/h, was overtaken by a car (your Holden Commodore) travelling in the right hand lane at, what she described as "really high speed" as it was going "a lot faster" than her vehicle. Mr Ellis describes the driving as "erratic".
Gerrit Bezuidenhout was stationary at Craig Road, waiting to turn right into South Gippsland Highway. He observed what he initially thought was a motorbike approaching as he saw only one headlight. He states that as the car passed, "it sounded like a jet going fast and it sounded like it was already in top gear but still revving very hard." He estimates that your vehicle was doing at least 150 km/h.
His wife, Wenselina Bezuidenhout was travelling in the vehicle behind her husband. She too observed your vehicle travelling at high speed, describing it as "flying". She says, "this car was going way faster than any other cars on the road".
Another witness, Anthony Jones was also driving south east along the South Gippsland Highway when he was overtaken by your car. Mr Jones described what came past him on his right hand side as a “bolt of lightning". He estimated the speed of your vehicle as being in the range of 160-170 km/h.
You continued to drive at a fast rate of speed as you approached the entrance and exit to the Lighthouse Christian College on your left. Meili Dai, aged 44, was travelling with her daughter Xinyu Yuan, aged 14, and had just driven out the main entrance of the college. They were travelling in Ms Dai's 2011 black Toyota Corolla sedan, registration YEA 218. Ms Dai had moved to Australia from China with her family seven years earlier and was employed as a factory worker. Xinyu was a year 8 student at the Christian Lighthouse College. She and her mother had attended parent teacher interviews at the College and were leaving the College through the main entrance when their vehicle was struck by you.
Ms Dai was slowly crossing the outbound lanes of the South Gippsland Highway to reach the centre median in order to turn right and then travel north west towards Cranbourne.
As Ms Dai crossed the outbound lane, the front of your vehicle collided with the driver's side of her Toyota, which pushed her vehicle off the roadway for a distance of 49.2 metres, through the wire rope barrier and into a ditch, killing Ms Dai instantly. Her daughter Xinyu Yuan died a short time later.
Anthony Jones observed an explosion and a puff of smoke, believing the Holden Commodore that had passed him had hit a tree. Witnesses Kofi Nortey and Samules Elia who were in the car park of the nearby church, heard what they described as a big boom sound.
Your vehicle continued along the roadway for a distance of 91.7 metres before it stopped. You remained in the driver's seat and were treated for injuries before being conveyed to the Alfred Hospital. At hospital, a blood sample was obtained for analysis at 10.45 pm.
Dr Morris Odell, a physician attached to the Victorian Institute of Forensic Medicine provided a ‘readback’ blood alcohol concentration at the time of the collision. According to Dr Odell, by the time of the blood sample, it is reasonable to assume that all the ingested alcohol had been absorbed by you. In the 3.45 hours between the collision and the taking of the sample, you would have eliminated an amount of alcohol equivalent to a fall in blood alcohol concentration of between 0.034% and 0.069%. Added to this, the measured figure gives a total amount of alcohol in the body (both absorbed and unabsorbed) at the time of the collision equivalent to a blood alcohol concentration of between 0.120% and 0.165%.
Dr Odell is of the opinion that given this estimated reading, your driving skills would have been adversely affected by the effects of alcohol.
A collision reconstruction expert from the Major Collision Investigation Unit, Detective Sergeant Dr Jenelle Mehegan, attended at the scene on 9 August 2017 and undertook an investigation and reconstruction. It is the view of Dr Mehegan that the collision occurred as the Toyota driven by Ms Dai exited the Lighthouse Christian College and proceeded to cross the south east bound lanes of the South Gippsland Highway to get to the centre median. Dr Mehegan states “As the Toyota sedan commenced to cross the road, the driver of the Holden Commodore applied emergency braking and commenced to skid. The vehicle skidded for about 14 metres before colliding with the driver side of the Toyota Corolla sedan”.
In her initial report in relation to this matter, Dr Mehegan's opinion was that when the two vehicles collided, your vehicle was travelling at a minimum speed of about 159 km/h and the Toyota sedan travelling at about 16 km/h. Dr Mehegan estimates that at the commencement of braking, your car was travelling at about 168 km/h.
On 17 August 2018, your solicitors provided to the Prosecution a Collision Report from Dr Shane Richardson, dated 2 May 2018, in which Dr Richardson gives an opinion that, if 14 metres of pre-impact braking is accepted, he estimates the speed of your vehicle, pre ABS braking, at 155 km/h.
On 22 August 2018, Dr Mehegan provided a further statement in response in which she maintained her opinion that when your car commenced skidding, the vehicle was travelling at not less than 165 km/h. However having reviewed the report of Dr Richardson she accepted that his conclusions were not unreasonable. Dr Mehegan stated: "In my opinion, the Holden Commodore was travelling at a minimum of 165 km/h however a speed of 155 km/h is not impossible". Having regard to Dr Megehan's view that a speed of 155 km/h is not impossible, the agreed position of the parties in this matter is that at the time of braking your car was travelling at a speed in a range of 155 km/h to 165 km/h.
At the time of the collision, it was dark and the road was dry. Conditions were clear with good visibility and the traffic was light.
Following the accident, your vehicle was examined by Senior Constable Brett Gardner, a mechanic attached to the Mechanical Investigation Unit on 13 September 2017. It was found to have significant damage. However, the inspection did not reveal any mechanical fault with the vehicle which would have caused or contributed to the collision.
As a result of the collision, you suffered serious injuries including breaks to your neck, pelvis, hip and wrist. You also suffered nerve damage to your eye and internal injuries to your kidney and liver. You received treatment at a rehabilitation centre and were required to wear a halo brace for three months to assist with vertebrae healing.
On 6 September 2017, you were formally interviewed by police at the Victorian Rehabilitation Centre. You declined to comment other than admitting that you were the driver of the Holden Commodore involved in the collision.

Objective seriousness of the offence

The offence of culpable driving causing death is by its nature a very serious offence as it involves the death of a human being. In this instance two innocent lives were lost as a result of your driving. The prosecution submitted that the particular circumstances of your offending represents ‘a very serious or upper end’ example of culpable driving. Your defence counsel conceded that the culpable driving charges are serious examples of the offence.
In assessing the seriousness of this case I take into account all the circumstances including: that your blood alcohol concentration was between 0.120% and.0.165% at the time of the collision; that at the time of the collision you were driving at a speed in the range of 155 to 165 km/h; that the distance over which you drove at high speed was approximately 3 kilometres; that you made the choice to drive in circumstances where your licence was disqualified and that you had made this choice notwithstanding your prior convictions for driving, exceeding the proscribed concentration of alcohol in 2016 where you had a blood alcohol concentration of 0.113% and for speeding in 2015, where you were driving over the speed limit by 25 km/h or more but less than 30 km/h.
In my view, in all the circumstances your offending does represent a very serious example of culpable driving. Your self-control was entirely overcome by your own emotions in combination with the fact that you were intoxicated. You made a deliberate choice to drive after consuming a large amount of alcohol and chose to speed while in that condition. Your actions on this occasion were entirely self-indulgent; you were angry and you had no regard for the safety of others on the road. I therefore accept the submission on behalf of the prosecution that your moral culpability is high.

Victim impact statements

Meili Dai was 44 years old at the date of her death. She was married, with a son Jake, aged 23 and a daughter Xinyu, aged 14.
Two victim impact statements were tendered and read at the plea. The first was from Zheng Yuan, Ms Dai's husband and the father of Xinyu Yuan. Understandably he describes the enormous grief that he has suffered at the loss of his wife and daughter. In moving language Mr Yuan states “I feel helpless, and I am so sad and crying. My wife and I came to Melbourne to work hard together and encourage each other. Now everything has been destroyed by a car accident…I think of the voice and smile of my wife and daughter. My eyes are crying, my tears are running out…”
The second victim impact statement was from Jake Yuan, the son of Ms Dai and brother of Xinyu Yuan. He too speaks of the enormous grief and loss that he is suffering. He describes the unhappiness and coldness in the family home and that he feels that he has lost the meaning of life.
I wish to direct some comments to the family of Meili Dai and Xinyu Yuan. There is nothing this court can say or do that will bring back your loved ones, or heal your significant and unmeasurable grief and pain. The sentence I must impose can in no way be a measure of the worth of the lives of Meili and Xinyu. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.
I also note that a number of family members have travelled from China to be present during the plea and sentencing hearings and I acknowledge the dignity and respect the family has given to the necessary criminal process.

Personal circumstances

You are 27 years of age. You are the eldest of three children. You have a younger brother aged 25 and sister aged 23. Your parents separated in 2008 however continue to reside together at the family home in Devon Meadows. They have remained supportive of you.
You attended St Peter's College for your high school education however you did not enjoy school and often received detention or suspensions. In year nine you transferred to Kooweerup High School however you were not a good student and only remained there for years’ nine and 10. You left school and commenced a horticultural apprenticeship for a four year period and completed that course. However despite completing the course, you left that profession and began training at the National Broadband Network learning auto CAD design. You did not like a desk job and ultimately changed to a field position which entailed working with contractors structuring layout of cables and field design. You were made redundant from that position however continued to work as a junior rigger in the same area. At around this time, approximately 2014, you began experimenting with methylamphetamine.
You were terminated from your work due to unsafe work practices and decided at that time to start your own business with another man who was also terminated. Thus, in 2016 you commenced your own business contracting with the National Broadband Network. At one point you had up to nine employees in that business. Prior to the plea you had two employees working with you.
You have had a difficult and significant substance abuse history incorporating alcohol and methamphetamine use. You experimented initially with cannabis, ecstasy and hallucinogens. Your methamphetamine use continued from age 23 on a daily basis until about the age of 25. At the height of your use you were smoking up to 2 grams of ice daily. You began consuming alcohol from age 16 which became problematic from the age of 26 after you had ceased using methamphetamine.
Despite your heavy use of methamphetamine, you demonstrated some insight in that you began to appreciate how your drug use was impacting on your relationship with your family, your friends and your then girlfriend, Ashley. Your behaviour had also resulted in a family violence order being imposed in relation to your partner. You contravened the conditions of that order which is reflected in your criminal history.
Around this time you attended a rehabilitation centre in Bendigo for one week however you did not find that helpful. At the same time you had just met your current girlfriend Genevieve Ireland. Nonetheless, it appears that of your own volition you ceased using methamphetamine and have not used since. Unfortunately however, your alcohol use increased.
Reports were tendered on the plea from clinical psychologist Shona Dutton and psychologist Michael Bilyk. Mr Bilyk assessed you from a forensic perspective. As to your personality traits he opined as follows:
Mr Adamson seemingly experiences an underlying emotional lability, and impulsive behaviours which are reactive to the inner turmoil felt when in conflict, or feeling ineffective. He seeks out substances to self-soothe internal distress, and is prone to becoming argumentative whilst his own needs remain unmet. With respect to offending, Mr Adamson clearly has had a reckless disregard for the safety of himself and others, which would seem linked to Mr Adamson's style of coping with problems. Immediately preceding the offence, he had been consuming alcohol, and had experienced conflict with family members and his partner. Interpersonally, Mr Adamson evidently becomes self-critical and does not handle setbacks very well. Mr Adamson is considered to possess an underdeveloped ability to tolerate states of discomfit, which disrupts his capacity to effectively problem-solve. A tendency to suppress emotions (especially anger) usually involves the perception that one's own desires, opinions and feelings are not valid or important to others, and can result in outbursts, or acting out. The disinhibiting effects of alcohol intoxication on the day the offence took place, likely compounded the recklessness of such a response.
You have attended eight session with Ms Dutton. Upon testing, Ms Dutton concludes that you are suffering from a major depressive disorder and anxiety disorder with scores in the extremely severe range. In other testing the results indicate the likely presence of post-traumatic stress disorder. I accept that since the accident as a result of the serious physical injuries you have suffered and the emotional trauma of having to deal with the fact that you killed two people by your actions, has resulted in the psychological conditions that you now suffer.
Nonetheless, you have engaged with Ms Dutton in order to deal with some of the issues you are now suffering and the underlying causes of your impulsive behaviour.
As to your physical injuries, a report was prepared by Dr Vaidya Bala, consultant physician in rehabilitation medicine, and tendered on the plea. He outlined your various physical injuries suffered as a result of the accident and provides a prognosis for the future. He notes that as a result of the accident you suffered a mild to moderate brain injury and of course multiple fractures. In summary, he concludes that your brain injury has progressed to a satisfactory level and he did not foresee any long-term damage. As to your other physical injuries, the remaining injury which will cause you difficulties is your left leg sciatic nerve injury which carries a poor prognosis for full recovery and well result in a permanent left foot drop. He also concludes that you have chronic pain syndrome in your left leg.
Also tendered on the plea were three references; one from your mother
Helen Adamson, one from your partner Genevieve Ireland and one from your grandmother's sister Pauline Scown. I have taken these references into account. In each instance your family and your partner continue to offer support for you and in each case indicate your remorse and difficulty struggling mentally with the devastation you have caused to the victims and their families.

Sentencing considerations

Mr Dickinson who appeared with Mr Taaffe on your behalf, outlined matters in mitigation. First and foremost is your plea of guilty which was entered at an early stage, the matter having resolved at the committal mention. I accept that your plea of guilty was entered at the earliest opportunity which of course has saved the expense and time of a trial and most importantly has avoided the need for witnesses to give evidence and re-live this event.
Over and above your plea of guilty it was submitted on your behalf that you have demonstrated genuine remorse. Both Ms Dutton and Mr Bilyk outline your indications of remorse and your insight as to the effect that your actions have had on the family and friends of the two victims in this case. In her report Ms Dutton stated:
Mr Adamson did indicate remorse for his actions, however explained that he was on a destructive path at the time fuelled by months of bad choices, drugs and alcohol and lacked the ability to think straight or factor in the consequences of his actions.
Mr Doyle who appeared on behalf of the Director of Public Prosecutions submitted that the prosecution accept that you are remorseful for your conduct. I accept that in all the circumstances you have demonstrated a degree of remorse over and above the plea of guilty.
Mr Dickinson highlighted the fact that you have come from a stable supportive background and that your mother is particularly supportive of you, as is your partner. Your family and your partner have indicated they will continue to support you through your time in custody. Mr Dickinson also highlighted the fact that you have been in continuous employment since leaving school and have a strong work history including a successful record of running your own business and employing others.
You suffered a number of significant physical injuries as a result of the accident from which you continue to suffer pain. It was submitted on your behalf that these injuries should be taken into account in mitigation as a form of hardship. As was noted in DPP v King[1] referring to R v Baci and Asling[2], injuries sustained as a result of the criminality should be regarded as some punishment for that criminality. The injuries therefore bore upon the weight to be given to both general and specific deterrence. Further, that those injuries may make a prisoners time in prison more burdensome than for other prisoners.
[1] [2008] VSCA 151 at [35].
[2] (1994) 76 A Crim R 103.
Mr Doyle submits that while the injuries themselves may be taken into account as a form of extra curial punishment, he noted that your injuries are not as severe as those which the offender suffered in the case of DPP v King and therefore your injuries in this case are not a basis for the reduction of general and specific deterrence.
Having regard to the report of Dr Bala, I accept that your time in prison will be more burdensome for you as a result of your ongoing recovery from your injuries and the management of the pain from those injuries. However, while the prognosis for your left leg injury is poor for full recovery, your other injuries do not present any long term problems. As such in my view only slight weight should be given to this principle in relation to the reduction of general and specific deterrence.
I accept that you continue to suffer from depression and anxiety as a result of your involvement in the accident and the physical injuries you have suffered and as such, at least in the short term, I accept that prison will be more burdensome for you in that regard.
General deterrence is of course the primary sentencing consideration in serious cases of culpable driving. Denunciation of your conduct and just punishment are also important principles in this instance. Your criminal record demonstrates that specific deterrence must be given weight in the sentencing exercise. You were disqualified from driving at the time of the offence largely due to demerit points as a result of speeding. Further in September 2016 your licence was disqualified as a result of having a blood alcohol content of 0.113. Your licence was further suspended in May 2015 as a result of exceeding the speed limit by 25 km/h or more. Your prior history therefore is very relevant in the circumstances.
As to your prospects of your rehabilitation, while clearly at the time of the accident you had difficulties with alcohol and self-control, it seems that prior to that time you had enough insight and determination to cease using methamphetamine of your own accord. Further, since the accident you have actively engaged in counselling and have positively commenced your rehabilitation. You have a supportive family and excellent work history and, at 27 you are still a relatively young man. In the circumstances in my view your prospects of rehabilitation are very good.

Sentence

Thomas Charles Adamson, please stand.
On charge 1, culpable driving causing death, you will be convicted and sentenced to 9 years imprisonment.
On charge 2, culpable driving causing death, you will be convicted and sentenced to 9 years imprisonment.
On the summary charge of driving whilst disqualified you will be convicted and sentenced to 2 months imprisonment.
I direct that 4 years on charge 2 be served cumulatively on the sentence imposed on charge 1 making for a total effective sentence of 13 years imprisonment. I direct that you serve 9 years before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 13 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 89 of the Sentencing Act 1991 your licence will be disqualified for a period of 9 years from today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 16 years and 6 months imprisonment with a non-parole period of 12 years imprisonment.

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[2018] VCC 1502

13 September 2018