Director of Public Prosecutions v Altun
[2013] VCC 1218
•27 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALIRIZA ALTUN |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2013 and 2 August 2013 | |
DATE OF SENTENCE: | 27 August 2013 | |
CASE MAY BE CITED AS: | DPP v Altun | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1218 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – dangerous driving causing serious injury, driving whilst disqualified, and unlawful assault – ABI injury, extra-curial punishment
Legislation Cited: Crimes Act 1958, s319(1); Road Safety Act 2006, s30(1) and s84(1); Summary Offences Act 1966, s23; Criminal Procedure Act 2009, 145; Transport Accident Act 1986,Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v Buhagiar and Heathcote [1998] 4 VR 540;R v Verdins [2007] VSCA 102; R v Daetz [2003] NSWCCA 216; Chaplin v R [2010] VSCA 145; Fuller v R[2013] VSCA 186.
Sentence: 3 years and 3 months imprisonment with 2 years imprisonment to be
served before becoming eligible for parole.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Ching | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms C. Duckett | Patrick Dwyer, Barrister & Solicitor |
HIS HONOUR:
1 Aliriza Altun, you have plead guilty to the following charges:
(a)Charge 1 – that you, at Pascoe Vale in Victoria on 15 May 2011, by driving a motor vehicle at a speed or in a manner that was dangerous to the public, caused serious injury to Mirka Carmelli;
(b)Charge 2 – that you, at Pascoe Vale in Victoria on 15 May 2011, did drive a motor vehicle on a highway, namely Devon Road, during a period of disqualification from obtaining an authorisation to drive a motor vehicle;
(c)Charge 3 – that you, at Ascot Vale in Victoria on 15 May 2011, did unlawfully assault Sahin Yilmaz.
2 Charges 2 and 3 are summary offences and at your committal, such charges were transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009.
3 Charge 1 is contrary to s.319(1) of the Crimes Act 1958 and carries a maximum penalty of five years' imprisonment.
4 Charge 2 is contrary to s.30(1) of the Road Safety Act 2006 and carries a maximum penalty of two years' imprisonment.
5 Charge 3 is contrary to s.23 of the Summary Offences Act 1966 and carries a maximum penalty of three months’ imprisonment.
6 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit and has been accepted by you and your counsel as an appropriate representation of the offending. In particular, it is agreed:
(a)On Sunday 15 May 2011, you spent much of the day with your friend, Sahim Yilmaz, who is the owner of a 1996 black-coloured Audi sedan registered number XWT438.
(b)You had been fishing on the Maribyrnong River, during which time alcohol was consumed and you were seen to be emotional and at times cried.
(c)On leaving the Maribyrnong River, Mr Yilmaz drove his vehicle intending to take you home, but you did not want to go home. Rather, you wished to obtain some “speed”, which Yilmaz refused. According to Yilmaz, you “got pissed off”.
(d)On returning to the river in order to find a bottle of “medicine”, such bottle was ultimately found in the car. You drank “skolling from the bottle” and after Yilmaz tried to take the bottle away from you, you became abusive.
(e)Yilmaz drove away from the Maribyrnong River and you were asked to put on your seatbelt a number of times, which you ignored. As you were travelling along Maribyrnong Road, you put your hand on the handbrake and said in Turkish to Yilmaz, “I’m going to break your face bad”.
(f)When stationary at a red light in Mount Alexander Road, you pulled the handbrake up, causing Yilmaz to grab both of your wrists. One of your hands was on the handbrake and the other hand was trying to hit Yilmaz. Yilmaz could not break the grip and then you head butted Yilmaz lightly, causing hardly any pain (Charge 3).
(g)Yilmaz then unbuckled the seatbelt and got out of the car, and then you jumped out of the window and walked towards Yilmaz and the open driver’s door. Yilmaz began chasing you, but he fell over and you got into the car, revved the engine and left Yilmaz grabbing at the driver’s door.
(h)You drove away in circumstances where you were not permitted to drive a motor vehicle in the State of Victoria due to your probationary licence being cancelled by the Magistrates’ Court on 21 May 2010 and being disqualified from obtaining another licence for a period of two years (Charge 2).
(i)Yilmaz was approached by other motorists, Josephine Willet and Daniel Trapani, and Willet states that Yilmaz asked if she could call his mobile phone which he had left in the car which you were driving. She rang and spoke to you and you informed her that Yilmaz was a “dog” and that he could “get stuffed”. In particular, you told her that you were “going to a better place”, which she took to mean that you were suicidal. Yilmaz called triple-zero to report the stolen car and also to state that he considered that you were suicidal.
(j)At about 10.05 pm, you were driving the Audi sedan in an easterly direction on the wrong side of Devon Road, Pascoe Vale, and collided head-on with a Mercedes-Benz sedan, registration WCN298, which had recently parked facing west along the same road. The Mercedes Benz was driven by Mirka Carmelli.
(k)A witness, Anita D’Prano, who was also travelling along Devon Road at about 50 kilometres per hour, observed you driving the prior to the collision and estimates that your car overtook her car on the wrong side of the road at about 150 kilometres per hour.
(l)Another witness, Con Matarakis, observed you driving in the vehicle “doing 150 kilometres per hour at least”, after which he heard a big bang.
(m)Mirka Carmelli had just stopped in the Mercedes-Benz with her headlights on and the engine was running. She recalls a huge impact to her car and next recalls lying on the footpath with ambulance officers talking to her. She was conveyed to The Alfred Hospital with visible injuries to her mouth, which involved a bite mark on her tongue and abrasions to the right side of her hip, with bilateral bruising from the seatbelt. On arrival at The Alfred Hospital, she was assessed to have a small bowel perforation, which required an exploratory laparotomy on 17 May 2011; anterior abdominal wall contusion and a haematoma and mild mesenteric contusion and lower abdominal bilateral abrasions and bruising due to the seatbelt. She also suffered fractures to the left third, fourth and fifth ribs and right third rib, which were treated in a conservative manner; cutaneous abrasions and undisplaced fractures to the sternum and a small substernal hematoma which were treated conservatively and seatbelt bruising across her chest. She also was diagnosed to have a right hip graze (Charge 1).
(n)Following emergency surgery and operation, she was transferred to the Intensive Care Unit on 17 May 2011, where she remained until 26 May 2011, after which she was transferred for further care. On that day, she was diagnosed and treated for a bilateral pulmonary embolism.
(o)She was discharged home on 3 June 2011 with home help from the hospital until 14 June 2011, with a follow up in the outpatients’ orthopaedic clinic.
(p)As a result of the collision, you were unconscious with your left foot and ankle trapped under the pedal in the vehicle. You were conveyed to The Royal Melbourne Hospital for treatment of your injuries.
(q)You were not interviewed by police due to being hospitalised and it had been reported to police by medical staff that you had no memory of the collision.
(r)A blood sample was taken on 16 May 2011 at 12.15am and on later analysis, it was determined that you had a blood alcohol concentration of 0.137 per cent.
(s)Expert evidence has been obtained involving a reconstruction of the collision by an officer from the Major Collision Investigation Unit and he concludes that the vehicle driven by you was driven at a speed range between 151 to 167 kilometres per hour.
Criminal record of the accused
7 The prosecution tendered a document setting out your criminal record and I was informed that you accept such record is accurate. You are presently 26 years of age and the subject offending occurred when you were 24 years of age.
8 In particular, I note the following offences:
(a)On 27 June 2006, you were found guilty of several offences including the theft of a motor vehicle and driving whilst authorisation suspended. In relation to those offences (together with other offences involving dishonesty), you were placed on a community-based order without a conviction being entered.
On the same date, you were also found guilty of failing to carry a probationary licence, driving in breach of a licence condition and driving at a speed over the speed limited. You were convicted and fined an aggregate of $800.
(b)At Broadmeadows Magistrates’ Court on 15 March 2007, you were found guilty and convicted of a number of offences including driving whilst authorisation suspended, using an unregistered motor vehicle on the highway, unlawful assault and exceeding a signed speed limited. You were sentenced to a community-based order for 24 months commencing on 15 March 2007, which included conditions of performing unpaid community work and to undergo assessment and treatment for alcohol and drug addiction and psychiatric assessment and treatment. At that time, any licences were cancelled and you were prohibited from driving for two years.
(c)On 12 February 2009, you were found guilty and convicted of driving whilst disqualified and sentenced to three months' imprisonment, with such sentence wholly suspended pursuant to s.27 of the Sentencing Act 1991.
On the same day, you were found to have failed to comply with the community-based order made on 15 March 2007 and were fined an aggregate sum of $1,750.
(d)On 21 July 2010, you were found guilty and convicted of exceeding the blood alcohol limit when driving a motor vehicle, driving whilst disqualified, refusing to accompany an appropriate person to a station for a breath test, using an unregistered motor vehicle on the highway, and breaching the wholly-suspended sentence given on 12 February 2009. You were sentenced to effectively six months’ imprisonment and your licence was cancelled and you were disqualified from obtaining a further licence for a period of two years effective from 21 July 2010. You were also fined for some of the offences.
(e)At Broadmeadows Magistrates’ Court on 28 March 2011, you were found guilty and convicted of driving whilst authorisation suspended, and failing to answer a bail condition. You were sentenced to an aggregate period of one month’s imprisonment concurrent with the sentence then being served for the various convictions on 21 July 2010.
Road safety record
9 The prosecution also tendered a certificate under s.84(1) of the Road Safety Act 1986 and I was informed that you agreed with the contents of such document. In particular, I note that you were served traffic infringement notices on 28 May 2005, 16 December 2005, 6 April 2006 and 22 May 2006, all of which involved speeding offences.
The plea
10 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a)
Report from The Austin Hospital dated 13 May 2013 sighted but not signed by Dr James Campbell, a clinical neuropsychologist, and
Dr Edward Theologis, a consultant psychiatrist;
(b)Report of the consultant psychiatrist and neuropsychiatrist, Associate Professor Mark Walterfang, dated 1 August 2012;
(c)Report of the clinical neuropsychologist, Ms Judith Adrian, dated 24 May 2013;
(d)Report of the consultant psychiatrist, Dr Anthony Cidoni, dated 14 May 2013;
(e)Report of the consultant psychiatrist, Dr Remy Glowinski, dated 27 November 2012. Dr Glowinski is a consultant with the Victorian Institute of Forensic Mental Health and gave such report to the Office of Public Prosecutions in relation to your fitness to plead in relation to these offences;
(f)Family Impact Statements from your mother, Emine Altun; your father, Mehmet Altun, and your younger brother, Sedar Altun.
11 Most of these reports relate to the nature, extent and consequences of the undoubted acquired brain injury suffered by you as a result of the collision of the vehicle you were driving and the stationary vehicle at the time of offending. On the basis of the contents of such reports, and the comprehensive submissions made by your counsel, I set out the following details in relation to your personal circumstances, your educational and vocational background, and your medical and substance use history.
Personal circumstances
12 You were born in Turkey on 17 November 1986 and are of Kurdish heritage. Your family migrated as refugees to Australia in 1987 when you were one year old. You have described your parents keeping the traditions of their Kurdish background but you identify yourself as an Australian and as a non-practising Muslim. You have one younger brother, Sedar, who was born in 1993 and is currently studying psychology at university.
13 On arrival in Australia, your family lived in Broadmeadows, before moving to Pascoe Vale in about 2003 when you were approximately 16 years’ old.
Educational and vocational background
14 On leaving kindergarten at age five, your parents enrolled you in the Alphington Grammar School which had different religious teachings to Islam, but was preferred by your parents as it had a good academic record. You were expelled from this school on the last day of Year 9 because of general misbehaviour and truancy.
15 You attended Aitken College during Years 10 and 11 but were threatened by the headmaster that you would be expelled for ongoing truancy and misbehaviour. When you later further offended, you did not return to the school departing halfway through Year 11, after which you attended the Upfield Secondary College, where you again were expelled because of poor behaviour. You were then enrolled to complete Year 12 in 2004 at the Samaritan Catholic College. During the course of such year, you left with the intention to commence trade school and an apprenticeship.
16 In 2004, you commenced an apprenticeship in carpentry with your cousin, where you were employed for about four years until 2008 and became a qualified carpenter. On leaving your cousin’s employment, you were self-employed for about a year and in 2009, you commenced employment in a family business run by your father, which involved installing hot water systems into houses around the Broadmeadows area. Such work continued until you were first incarcerated.
17 Furthermore, during 2005, you successfully completed a two-week security guard course and went on to achieve Certificates II, III and IV in General Security. Since the current offending, you have been unable to be gainfully employed and are receiving benefits from Centrelink in the form of a Newstart allowance.
Substance abuse history
18 You commenced using cannabis at the age of 16 and at the age of 20 you first tried “speed”, of which you had a “free” supply from friends who were dealing. You have also tried “Ice” and have used “Ecstasy” occasionally in the past. Furthermore, in the past you have drunk to excess and in particular, drunk in a binge fashion on approximately a weekly basis, after which you had terrible hangovers and had trouble functioning for days.
Medical and psychiatric history
19 Apart from seeing a psychologist for a while when attending secondary school and very brief periods of depressed mood, you seemingly have not suffered any major psychiatric difficulties prior to the subject offending. In particular, you have advised doctors that you have never attempted suicide, have had no psychiatric admissions and no need for psychiatric medications prior to the subject offending.
The injuries suffered by you as a result of the collision on 16 May 2011
20 You were initially conveyed to The Royal Melbourne Hospital, where you were diagnosed to have suffered multiple facial fractures, in addition to a xiphisternal fracture (near the bottom of the sternum), rib fractures, a right talar fracture and left knee penetration.
21 Of greater significance, you suffered a right subdural haematoma. When initially treated at The Royal Melbourne Hospital, and being surgically managed, there were significant issues with “aggression”, and multiple “Code Grey” instances occurring when in the ward, causing you to be restrained on more than one occasion because of aggression.
22 You were transferred to the Acquired Brain Injury Unit of the Epworth Hospital on 14 June 2011 and because of the history of aggression, you were treated with Carbamazephine, and later with Effexor. In particular, you were cleared of post-traumatic amnesia on 11 July 2011, which represented a post-traumatic amnesia period of 57 days, indicative of a significant and severe Acquired Brain Injury. When in the Epworth Hospital, you had periods of agitation and decreased compliance, but responded well to structure, although you continued to demonstrate poor frustration tolerance and a fluctuating low mood.
23 Professor Walterfang first reviewed you on 4 August 2011 when you were an inpatient in the Acquired Brain Injury Unit at the Epworth Hospital. You were later referred to him by a rehabilitation physician in November 2011. When seen in mid January 2012, Professor Walterfang notes that there were significant behavioural issues as expressed within the family – such issues being an inability on your behalf to listen and you becoming frustrated and aggressive towards family members. When last seen by Professor Walterfang on 12 June 2012, he obtained a history from your family that the medication seemed to have afforded you some control over frustration but you still had very poor motivation and continued to battle with your parents, involving such issues of lengthy periods without showering or bathing.
24 Professor Walterfang states, in part:
“Overall, the impression is of a young adult man with likely pre-existing antisocial personality traits and a significant polysubstance abuse problem who developed a predominantly frontal brain injury in the setting of intoxication, the latter factor likely worsening the severity of the injury. His amnestic period of 57 days post traumatically suggests a significant injury. This has been borne out by his behaviour and function post discharge, with a significant exaggeration of his pre-morbid personality traits and ongoing poor frustration tolerance, disinhibition, poor judgment, aggression and broad behavioural discontrol. My involvement with him has largely been attempting to find a psychopharmacological solution to what is essentially a neuro-anatomical problem of an acquired brain injury, and I am unable to comment on formal neuropsychological testing.”
25 Later in the report, Professor Walterfang states:
“With regards to Mr Altun’s prognosis, I feel that it is guarded. He clearly had significant issues with antisocial acts and poly-substance abuse prior to his injury and these have continued following injury. The necessity of his living with his parents has meant that they have borne the brunt of many of these antisocial and poorly judged acts. In my contact with him he has shown little capacity for remorse, and understanding of the effect of his actions on others and of more adoptive and/or appropriate behavioural alternatives. I remain concerned that long term, because of the nature of his injury, Mr Altun may act in a dangerous manner to harm himself or others as a result of his reduced capacity of full behavioural control and to manage frustration and other negative emotional states.”
26 The clinical neuropsychologist, Ms Judith Adrian, has been treating you since April 2012. Ms Adrian notes that although you have no recollection of the collision, you understand that you were the driver of the vehicle that collided at high speed with a stationary vehicle. She further notes that you have required surgery relating to your spinal and dental fractures and that there has been a failed attempt to obtain an inpatient community-based rehabilitation program due to a lack of funding. She also notes that due to the severity of the brain injury, you have limited insight into the benefit of community-based rehabilitation and seek independence from both providers and your family, which is positive at one level, but Ms Adrian notes that you require support of family and aides to manage any complex task.
27 In particular, Ms Adrian states:
“Although Mr Altun has certainly made progress over the past 12 months, at this point in time he is continuing to present with significant cognitive and behavioural problems. Neuropsychological assessment has demonstrated that although Mr Altun’s basic cognitive skills are intact, he has high level problems with memory and new learning and there is significant evidence of executive dysfunction. He has difficulties with self monitoring, prospective memory, working memory, planning and problem solving. Although Mr Altun’s cognitive problems are adversely affecting his capacity it is behaviours of concern that have been difficult to manage and are currently affecting all aspects of capacity. In summary Mr Altun has difficulties regulating his behaviour in response to complex situations and frustrating circumstances. There is agitation and aggression in response to frustration. He is overwhelmed by complex situations. There is also agitation in response to high levels of stimulation and of family triggers. Mr Altun also demonstrates a high level of risk taking, impulsive behaviour, episodic discontrol, social disinhibition and disturbance of his sleep/wake cycle. Behaviours of a concern are exacerbated by use of illicit substances.
Due to his cognitive problems Mr Altun has difficulties complying with his medication regime and requires prompts and cues from family to ensure compliance. At times Mr Altun can demonstrate concrete and irrational thinking and there has been evidence of mild paranoid ideation. As a result of risk taking and challenging behaviour Mr Altun has ongoing conflicts with his family and these situations have been difficult to manage. Due to Mr Altun’s injuries and his risk taking behaviours of concern the family has been under considerable strain. My opinion is that Mr Altun continues to present at this time of cognitive and behavioural problems consistent with the effects of acquired brain injury. Although there has been improvement in his condition over the time his deficits are currently impacting upon his functional capacity … .”
28 Although Ms Adrian notes that you are able to complete personal care tasks independently and complete many tasks related to activities of daily living, you do have significant difficulty managing the more complex tasks of everyday living. Although with your personal care you are independent, you sometimes require prompting to complete tasks and require supervision to ensure that you take your medications.
29 Ms Adrian considers that you are motivated in terms of psychological treatment and understands to some degree that you will not be able to achieve your goals if you cannot learn to manage your behaviour. Ultimately, Ms Adrian states:
“Due to his acquired brain injury he requires structure, routines and prompting and would require support to complete any community-based corrections order. Due to his behaviours of concern and difficulties regulating his mood he would have difficulties managing any terms of incarceration. His prognosis in the short term in regard to his acquired brain injury is poor and as stated above he requires ongoing treatment.”
30 In his report, Dr Remy Glowinski, who examined you on behalf of the Office of Public Prosecutions, is of the opinion that the effects of your acquired brain injury should be considered in sentencing. Dr Glowinski stated:
“He will likely find incarceration more difficult than the average prisoner. He requires considerable supervision even in his family home and will likely find the prison environment destabilising.
Mr Altun will also require assistance in meeting parole or community sentence conditions given his poor planning cognitive ability.”
31 The consultant psychiatrist, Dr Anthony Cidoni, who examined you on 17 April 2013, was of a similar opinion, and added that a term of imprisonment would be likely to cause your mood to deteriorate with a risk of aggression.
32 When this matter was first listed on 29 March 2013, your counsel submitted, with no opposition from counsel for the prosecution, that a report should be obtained from Corrections Victoria. On that day, I directed that a report be obtained from Corrections Victoria and that the tendered material should be made available at the time of the making of such report. In particular, I directed that the content of such report should be directed to at least these matters:
(a)a description as to how Corrections would manage you if I was to sentence you to a period of imprisonment;
(b)the nature and extent of possible sources of treatment in the prison system in relation to your condition; and
(c)given the psychological condition, whether it would be necessary or preferable that you be placed in isolation and to what extent you could be isolated in the prison population.
33 When this matter returned for further hearing on 2 August 2013, I had available a report headed “Pre-sentence Report” from the Department of Justice dated 17 July 2013, co-signed by Corrections officers at the Broadmeadows Community Correctional Services.
34 Unfortunately, such report, although containing a detailed history, is of little assistance in relation to the issues to which I directed that it cover. The report does note that as per “operational guidelines”, you have been assessed as a low risk of re-offending using the Victorian Intervention Screening and Assessment tool. Apparently this assessment was based on your relatively young age and past criminal history. It is also noted that you need ongoing mental health interventions from the many specialists that you are currently engaging. The report concludes:
“Mr Altun is a 26 year old young offender with a known criminal history who was assessed to be at low risk of reoffending.
Mr Altun has received various dispositions for his past offending including fines, community-based order (CBO) and suspended sentence and has served one term of imprisonment. Mr Altun successfully completed his first CBO, which was imposed in 2006, but failed to complete the second CBO, which was imposed in 2007. Mr Altun reported that his breach was due to non-compliance and received a fine on being re-sentenced.
It is noteworthy that the past offending is similar in nature to the current offending and that the offending is escalating to become more violent, with his current offending behaviour the most serious. It appears that Mr Altun cannot address his offending behaviour, regardless of the disposition imposed by the courts and it is concerning that, the current offending behaviour is similar to past offending behaviour.
Please note that Corrections Victoria are unable to provide specific details relating to a prisoner’s individual treatment plan or their transitional arrangements until a full classification and assessment is undertaken upon their reception into custody. This is particularly the case with regard to transitional arrangements as any issues or needs identified at reception may change throughout a prisoner’s sentence.
Corrections Victoria does provide a range of targeted programs for prisoners with a disability for whom mainstream programs are not suitable. These include both offence specific and offence related programs, with access determined based on the outcomes of a thorough clinical examination undertaken following a prisoner’s reception into custody. Likewise, there are specialist disability units within the Victorian prison system; placement in these units is based on a range of factors including the prisoner’s security rating, functional impairment and offence type.”
35 On 2 August 2013, I also enquired of your counsel whether a member of your family could give evidence as to the situation in relation to your activities at home and the level of supervision required by your parents and in particular, your mother.
36 To this end, your younger brother, Sedar Altun, was called and gave evidence. He lives at home with the family and studies psychology.
37 Your brother described how your mother gave up work to care for you on a full-time basis. She washes your clothes, prepares your food and administers your medication. In this sense, your mother is your main support.
38 Your brother also described how you loose a sense of reality and act in your own way, and sometimes have vented your frustration on doors and walls, but have not been violent to your mother.
39 In particular, he described how you attend your general practitioner every two weeks, receive a visit from a psychiatrist every two months who monitors your medication and has ongoing treatment at The Royal Melbourne Hospital and from a dentist in relation to the various fractures you suffered in the collision. Such medical and like treatment has been paid by the Transport Accident Commission pursuant to the provisions of the Transport Accident Act.
40 Your brother describes you spending most of your time in your room, going out once in a while, but he was unaware of any particular friends that you mix with. Your brother noted that you cannot walk easily, run or jump, because of your physical injuries, and that he drives you around and drops you off when he is available to do so.
41 Your brother described that there have been times when you have attempted to control your own medication but this has not worked out well. There have been a couple of instances where you have taken too much sleep medication and you were hospitalised recently when you took too much medication.
42 Your brother also describes you having difficulty with the necessity of personal hygiene and that you have not had a girlfriend since the offending. Your family are worried to leave you alone as you act on impulse and there have been occasions when you have lit fires in the barbecue for no reason.
43 Your brother also notes that your mother is around all the time to supervise, and a social worker comes in weekly to help with the family. Your brother has also observed you to wake up in a dazed state with no concept of reality.
44 When cross-examined, your brother gave evidence that you do not know what happened in relation to the subject offending but you do regret that someone was injured as a result of the actions.
45 I also refer to the statement from your mother and father. Your mother describes how she has given up her “whole life” in order to care for you as a result of your acquired brain injury. In particular, your mother states:
“While it burdens me to see him in such an incapacitated state, it also brings me great joy knowing that I am the only person willing and able to give him the daily support needed to manage his situation and help him reintegrate and give back to society.”
46 I also refer to part of the statement of your father, wherein he states:
“My son’s life has been torn away by this accident, the way we see him is separated from the ‘old’ and ‘new’ Aliriza. Before the accident he did have many flaws and we are not denying that, but after he became a completely different person, almost unrecognisable. It is a daily struggle for us to try to help him regain some self awareness about his condition and one which we seem to be overcoming. Every day in our stable environment seems to be helping him just that little bit more in coming to terms with his cognitive and physical shortcomings. I plan on always being there for my son and doing everything in my power to help him recover and lead a meaningful life.”
Submissions made on behalf of Counsel for the defence
47 Your counsel essentially submitted the following in mitigation of your sentence:
(a) That although you had previous speeding offences, such offences were “relatively minor” and nothing like the estimated speed that you were travelling at the time of the collision. Furthermore, although there have been various offences involving driving while disqualified, there are no offences involving “really bad driving”;
(b) Since the subject offending, you have not re-offended save for one outstanding matter (as at 29 March 2013) which involves a charge of driving while your licence is suspended. Your counsel described that the circumstances of that alleged offence is that you were driving a motorised scooter (described by your counsel as like a bike with a small engine) on the footpath which was considered by you to be legal given the nature of the vehicle;
(c) That you had served one period of imprisonment and that you had been released from prison one day prior to the subject offending.
Your counsel submitted that on the basis of some of your actions during the day leading up to the offending, comments made by you to your friend, Sahin Yilmaz; the comments made by you to Josephine Willet, who telephoned you while you were driving the car shortly prior to the collision; and the fact that you were driving on the wrong side of the road at excessive speed would all suggest that you had a degree of suicidal ideation and were emotionally distraught.
In such circumstances, it was submitted that your moral culpability is reduced, which affects the weight to be given to such factors as denunciation of the type of the conduct in which you were engaged, and the extent that you would be an appropriate “vehicle” for applying the principles of general deterrence and specific deterrence.
(d) Although you have no real memory of the events immediately leading up to the collision, or indeed for some time thereafter, you are “horrified” as to what has occurred to the victim of your driving, what has occurred to you by reason of your acquired brain injury and indeed the impact on your immediate family. In this sense, your counsel has submitted that there is some degree of remorse on your part in relation to the conduct undertaken by you on the night of the offending. Your counsel has also informed the court that you have informed him that you never want to drive again. Also, your counsel submitted that the court should give due weight to your early pleas of guilty in relation to the subject offences;
(e) The undoubted acquired brain injury is severe and impacts on your day to day living, requiring treatment from a variety of doctors, supervision and care by your mother. Your counsel submits that such acquired brain injury should be taken into account in sentencing in the following ways:
(i) Such acquired brain injury has had a dramatic impact on your life and such condition, although capable of some control by supervision and medication, is likely to be lifelong and constitutes significant “extra-curial punishment”;
(ii) The nature of your acquired brain injury which gives rise to impulsivity, mood swings, sometimes aggressive attitude, difficulties with personal hygiene, are all matters that would cause you to suffer greater hardship during a period of imprisonment compared to someone who does not have such consequences from an acquired brain injury;
(iii)
Although an organic condition, consistent with the opinion of
Dr Cidoni, that it would be likely that your mood would deteriorate in a prison environment;
(iv) That it is unlikely that you would receive in prison the same regime of treatment that you presently receive pursuant to the provisions of the Transport Accident Act.
(f)Your counsel, although accepting that a prison sentence was appropriate, submitted that in all the circumstances, the appropriate sentencing disposition was to have any sentence of imprisonment wholly suspended. In this respect he referred to a Court of Appeal decision of Director of Public Prosecutions v Buhagiar and Heathcote [1998] 4 VR 540 at page 547, whereat Batt and Buchanan JJA stated:
“…Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community’s interest and generally designed to prevent re-offending.”
In support of that submission, counsel also refers to the most recent report from the Department of Justice wherein it is asserted that you are a low risk of re-offending.
Alternatively, your counsel submitted that an appropriate range for a sentence of imprisonment would be a head sentence of 2½ years with a non-parole period of 6 to 12 months;
(g)Your counsel accepted that the driving whilst disqualified must be viewed as a separate criminal act; that is, getting into the car and driving prior to the collision and that there should be some modest cumulation in relation to any sentence of imprisonment for that offence. Furthermore, your counsel submitted that the assault charge was relatively minor and that it would be appropriate to impose a fine in relation to that offence.
48 Counsel for the prosecution made the following submissions:
(a) He noted that prior to the subject offending, you had been dealt with by the courts in relation to driving while disqualified on a significant number of occasions and that you also had various speeding offences. He also noted that pursuant to s.28 of the Road Safety Act 1986 there is the power to disqualify you from driving for any period considered appropriate where a person is found guilty of an offence under the Road Safety Act or any other offence in connection with the driving of a motor vehicle. Furthermore, he notes there is a mandatory minimum licence disqualification of 12 months in circumstances where it is established that the speed of a vehicle exceeded the speed limit by 45 kilometres per hour. He submits that in the circumstances of this matter, that the disqualification period should be for a lengthy time.
(b) The assault charge does not warrant a period of imprisonment and a fine in all the circumstances would be appropriate;
(c) That consistent with your counsel’s submissions, there is no dispute that you were in an “extreme emotional state” at the time of the offending and were overwhelmed by “suicidal thoughts”. In such circumstances, although you are still a “vehicle” to apply the concept of general deterrence, such concept should be “moderated”;
(d) In all of the circumstances, counsel for the prosecution submitted that an appropriate range for a head sentence would be in the order of 3½ to 4 years with a non-parole period of 2½ to 3 years. In particular, counsel submitted that such range encompasses all of the offending on that day and such range was given in the context of all the various reports being available to the prosecution.
Counsel for the prosecution referred me to the Court of Appeal cases of Gangur v R [2012] VSCA 139 and R v Towle [2009] VSCA 280, both of which involved the sentencing of persons convicted of, amongst other offences, the offence of dangerous driving causing serious injury.
Conclusion
49 I have formed the view that your driving at the time of the offending leading up to the collision was a flagrant example of dangerous driving bearing in mind that:
(a)the collision occurred at or about 10.05 pm at night;
(b)your speed was stated to be in excess of 150 kilometres per hour; and
(c)you were travelling on the wrong side of a suburban road leading up to the collision.
50 Such driving led to what was almost the inevitable result – a collision causing serious injury to a person who was lawfully parked on that road. Frightful as the consequences were, they could have been even far worse resulting in the deaths of one or more people.
51 Although I accept that you have not been involved previously in any offence of such a magnitude, your record does suggest that you have been dealt with by the courts in the past for speeding offences and furthermore, have been a perennial offender driving cars when not authorised to do so.
52 I also note that the offending occurred the day after you were released from prison where you had served a six month sentence for amongst other things, breaching a suspended sentence for driving while disqualified and another offence of driving while disqualified.
53 One of the consequences of your dangerous driving was that the driver of the car that you collided with was hospitalised from 15 May 2011 until 14 June 2011, during which time she underwent surgery for one of her injuries and later required treatment for a bilateral pulmonary embolism.
54 I also consider that the offence of driving while disqualified, which clearly occurred leading up to the collision causing the serious injury, must be viewed as a separate criminal act. Your past sentences for such an offence do not seem to have had any real impact of deterring you from committing such an offence.
55 As put by both your counsel and counsel for the prosecution, I accept that the charge involving the illegal assault of Yilmaz is at the lesser end of such an offence. However, I do note that you have been previously convicted of unlawful assault on 15 March 2007.
56 Leaving aside any mitigating circumstances to which I shall refer shortly, I consider that the two driving offences – particularly the offence of dangerous driving causing injury – are deserving of sentences reflecting the denunciation of the community of such offences, general and specific deterrence.
57 After careful consideration, I have come to the view that at the time of committing all the offences, you were in an extremely fraught emotional state and had some degree of suicidal ideation. Although there is no expert opinion expressing the view that you were in such a state at the time of the offending, I accept the submissions of your counsel (which were not opposed by the prosecution) that the following matters lead to such conclusion:
(a)Your demeanour when with your friend at the Maribyrnong river who describes you as “emotional” and was sometimes crying;
(b)After leaving the river and driving your friend, Yilmaz, you placed your hand on the handbrake and said in Turkish to him “I'm going to break your face bad”. Furthermore, when pulled up at an intersection you pulled the handbrake up and attempted to hit Mr Yilmaz when he attempted to break your grip on the handbrake;
(c)The opinion of Josephine Willet, who spoke to you by way of mobile telephone when you were driving, that you were “suicidal” on the basis that you told her that you were “going to a better place”. The same view was formed by Yilmaz who reported to the police the stolen car and that you were “suicidal”.
(d)The very flagrant circumstances of your driving which, as I have commented earlier, suggested that it would lead to an inevitable result.
58 In coming to such view, I am conscious that you had been drinking during the day and indeed there is no issue that your blood alcohol concentration from a blood sample taken from you on 16 May 2011 at 12.15am was 0.137 per cent.
59 Notwithstanding a lack of evidence of any formal psychiatric diagnosis, I consider that the well known case of R v Mark Andrew Verdins [2007] VSCA 102 has application in this sense; it was made plain in that decision that the principles set out therein were not only applicable to cases of “serious psychiatric illness” but also circumstances where the offender is shown to be suffering at the time of the offence from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a serious mental illness. (See Verdins paragraph [5])
60 I accept in principle the submission of your counsel that as a result of your mental state at the time of offending, your moral culpability in distinction to your legal liability is lessened. Furthermore, as a result of accepting what is generally referred to as the first principle in Verdins, I accept that the reduction in moral culpability affects the punishment that is just in all the circumstances and in particular, the need for denunciation is reduced. Furthermore, I also accept the factors of general and specific deterrence, although still operative, should be sensibly moderated in view of such mental impairment. I have taken all this into account when coming to a view as to an appropriate sentence.
61 Although I have given some weight to your early guilty pleas to each of the offences, I am conscious that the evidence against you in each of these offences was probably overwhelming. However, I do accept that there is social utility in an early plea, in that time and money are saved and such a course avoids the necessity of the victim of the collision being required to give evidence. Furthermore, I do not give much weight to any suggestion of remorse, although I well accept that given the nature of your acquired brain injury, you have no first hand memory of the circumstances surrounding the offending. Put at its highest, you have expressed the view that you are sorry that the victim suffered her injury.
62 I accept the submission of your counsel that the undoubted acquired brain injury that you have suffered as a result of the collision can be taken into account at several levels:
(a)I accept that such condition can be viewed as “extra curial punishment. I refer to R v Daetz [2003] NSWCCA 216, where the Criminal Court of Appeal stated:
“… while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.”
I also refer to the more recent decision of Chaplin v R [2010] VSCA 145, wherein the Victorian Court of Appeal stated:
“The court is required to take into account all material facts as required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a judge will give an extra-curial punishment would depend on all the circumstances of the case.”
I also note that in Fuller v R [2013] VSCA 186, wherein in Ashley JA noted that a brain injury suffered by a young accused during the course of his criminal activity could be taken into account as extra-curial punishment.
Consistent with the material tendered before me, I accept without equivocation that you have suffered an acquired brain injury as a result of the collision.
I believe this is best described by Professor Walterfang, who last saw you in June 2012, that the predominantly front brain injury in the setting of intoxication has caused a significant exaggeration of your pre-morbid antisocial traits and causes ongoing “poor frustration tolerance, disinhibition, poor judgment, aggression and broad behavioural discontrol”. You have been under the care essentially of your mother after the discharge from hospital and have not performed any work since the discharge. The acquired brain injury has had significant consequences for you and although such consequences may be moderated to some degree in the future by the learning of appropriate cues and medication, such condition is organic and will continue into the foreseeable future. I accept that such an injury is of some significance for a young man who is only 26 years of age and has his life before him.
(b)I also accept, consistent with the submissions made by your counsel that any term of imprisonment that you will have to serve will be “harder” because of such acquired brain injury and its associated consequences. Furthermore, I accept that it is unlikely that you will be able to have access to the same degree of treatment that you have experienced to date through the auspices of the Transport Accident Commission.
(c)Furthermore, I doubt that the standard of any care that you would receive in prison would be of the same quality of that afforded by your mother who has sacrificed much in order to maintain a reasonable standard of living for you. I do note that I have been advised by the Department of Justice and in particular, the Correctional Services, that there are specialist disability units within the Victorian prison system and that placement in these units is based on a range of matters including the prison’s security rating, functional impairment and offence type.
63 I also take into account the opinion from the Department of Justice that testing would suggest that you are unlikely to reoffend. It is unclear whether such statement relates to the offence of dangerous driving causing serious injury in particular or is a statement of more general application. In any event, through your counsel you informed the court that you did not wish to drive again and it may be that the state of your acquired brain injury would prevent you legally driving ever again. Furthermore, you are a young offender and I take that into account.
64 After considering all the matters which have been put before me and acknowledging that it has been an extremely difficult task, balancing the competing factors, I have come to the view that it is appropriate that you serve a period of imprisonment for the offences and in particular the dangerous driving causing serious injury. The length of such sentence and the non-parole period have been mitigated by the various factors to which I have referred.
65 Please stand.
66 Accordingly:
(1)On Charge 1, you are convicted and sentenced to a period of 3 years imprisonment. Furthermore, pursuant to s.28 of the Road Safety Act 1986, I cancel any licences to drive a motor vehicle that you may hold and disqualify you from obtaining any further licences for a period of five years.
Further on Charge 1, you are ordered to pay Sahin Yilmaz compensation in the sum of $8,000.00.
(2)In relation to Charge 2, I convict you and sentence you to a period of six months imprisonment and direct that three months of that sentence be cumulated with the sentence given in relation to Charge 1.
(3)In relation to Charge 3, I convict you and fine you the sum of $500.
(4)The total effective sentence is three years and three months and I order that you serve a period of 2 years imprisonment before becoming eligible for parole.
(5)Pursuant to s6AAA of the Sentencing Act, I declare that I would have imposed an effective sentence of four years and three months imprisonment with a minimum of two years and nine months to serve before becoming eligible for parole if you had not pleaded guilty to the offences.
67 I direct that a copy of these sentencing remarks and all tendered medical, psychological and psychiatric reports be made available and brought to the attention of those officers in the Corrections Division of the Department of Justice who determine the unit in which the accused is to be placed. Furthermore, I make particular reference to the need of the plaintiff having appropriate supervision and access to appropriate medical and psychological treatment.
68 Yes, thank you. Yes, remove the prisoner, thank you.
69 (Prisoner removed.)
70 Yes, anyone want to add anything?
71 COUNSEL: No Your Honour.
72 HIS HONOUR: Yes, thank you. Yes, we'll adjourn sine die.
- - -
0
6
0