Director of Public Prosecutions v Amy

[2013] VCC 1125

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00356

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRYSTAL AMY

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May and 21 June 2013
DATE OF SENTENCE:	26 June 2013
CASE MAY BE CITED AS:	DPP v Amy
MEDIUM NEUTRAL CITATION:	[2013] VCC 1125

REASONS FOR SENTENCE
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Subject:  Plea – sentencing

Catchwords:            Negligently causing serious injury

Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:            
Sentence:                 3 years' imprisonment, minimum term 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr P. O’Halloran Mr M. Pitcher	Office of Public Prosecutions
For the Accused	Ms T. Hartnett	Galbally & O’Bryan

HIS HONOUR:

1. Krystal Amy, you have pleaded guilty to one charge of negligently causing serious injury to Mr Tiep Do. The offence is contrary to s.24 of the Crimes Act 1958 and, having been committed on 11 November 2012, carries a maximum penalty of ten years’ imprisonment.

1. This offence arises as a result of your driving behaviour and ultimate collision on 11 November 2012. 

1. At the time of the offending you held a ‘probationary P2 Victorian drivers licence’.  This licence includes a ‘zero alcohol’ condition.  An ‘alcohol interlock’ condition had been removed on 28 October 2011. 

1. The victim, Tiep Do, was aged 50 at the time of the offending.

1. Shortly before 10 pm on 11 November 2012 you drove west at high speed along Wellington Road in the second of three marked lanes towards Stud Road.  Stud Road travels in a north-south direction and has a marked speed limit of 80 kilometres per hour.  It intersects with Wellington Road, herein after referred to as “the intersection”.  The intersection is controlled by traffic control signals which were operating at the time. 

1. At this time, facing north on Stud Road at the intersection were several cars and witnesses, including the victim, intending to travel through the intersection.  They were stationary, in compliance with a red traffic light.

1. On receiving a green traffic light the victim commenced driving his vehicle north through the intersection.  At this time you continued to drive at speed along Wellington Road and entered the intersection against a red traffic light, missing a vehicle already proceeding through the intersection.  Your vehicle struck the victim's vehicle to the front driver's side door area.

1. The impact caused the victim's vehicle to rotate anti-clockwise and collide with a traffic control signal pole in the centre median strip on the western side of Stud Road. 

1. Your vehicle continued travelling, eventually stopping at the right-hand-turn lanes at Wellington Road approximately one metre from stationary vehicles at the intersection.

1. The collision was witnessed by several people positioned at the intersection, who called ambulance and police services who subsequently attended.  Witnesses did not see you breaking or reducing speed immediately prior to entering the intersection. 

1. The victim was contained within his vehicle for approximately 30 minutes, during which time his condition and injuries were monitored.  His injuries required hospitalisation.

1. At the time of the offending the road was in good condition and dry and the traffic flow was moderate.  The intersection was clearly visible as all street lights and overhead lighting were operational.

1. The victim was admitted to the Alfred Hospital in a critical but stable condition where he was examined and observed with injuries including the following:

·     injury to the brain and “bleeding on the brain”

·     nose fracture;

·     lip laceration;

·     “fractured left forearm”

·     “cracked ribs”  and “punctured lung” and liver bruising;

·     bruising and grazes to both thighs and lower legs;

·     “fractured right hip”  and  hip socket.

1. Treatment of his injuries included ‘mechanical ventilation’ for lung injuries and ‘operative fixation’ on forearm and hip socket, as well as recuperative care.

1. You were also admitted to the Alfred Hospital where you were examined and observed with injuries which included fractures to your collarbone, ribs and finger. 

1. It was the opinion of a Detective Hay, who attended the scene of the collision, that the pre-impact speed of 100 kilometres per hour as provided by you in your record of interview "is not inconsistent with the collision scene as [he] saw it”.

1. Blood taken from you at 12.50 am on 12 November 2012 was analysed and found to contain cannabis at the level of approximately 3 milligrams per millilitre.  Based on samples taken from you on 11 and 12 November 2012, it was the opinion of Dr O’Dell of the Victorian Institute of Forensic Medicine that:

a)    the THC (cannabis) level … could have been the result of a past use of cannabis in the days prior to the collision;

b)    you were driving after having consumed alcohol;

c)    at the time of collision you had the ‘equivalent to a blood alcohol content of about 0.161%, although an indeterminate amount of this may not have yet entered [your] blood’; and

d)    your ‘driving skills would have been adversely affected by the effects of alcohol at the blood alcohol content levels quoted’.

1. You were arrested and cautioned upon discharge from the Alfred Hospital on 15 November 2012.  You were interviewed at the Prahran Police Station where:

a)    you admitted driving your vehicle;

b)    you said that on the day of offending you had commenced drinking cask wine around lunch time and before driving you had had "quite a few" and were drunk;

c)    you said that as you came up to the intersection, “those few seconds as the orange, sorta, went to red…I sort of went to go and….I’ve realised it’s gone red and then I realised that I was gonna hit a car, and I didn’t know what to do. I sped up a bit thinking that I’d pass him , and I didn’t”. 

d)    You said that the light changed to red as you passed it, "so I sped up thinking that I'd pass";

e)    you said that the speed limit was 80 kilometres per hour and you were driving at approximately 100 kilometres per hour.

1. I now turn to your personal circumstances. 

1. You are aged 28 and were that age at the time of this offending.  You have a criminal history which includes convictions involving the consumption of alcohol in public and when in control of a vehicle. 

1. Specifically, your first court appearance was in February 2004 when you were just 19 years old, when for various driving offences you had your licence suspended for one month.

1. In August 2005, when you were 20, you were given a 12-month community-based order without conviction in the Ringwood Magistrates' Court for various offences including theft, burglary, assaulting police, failing to answer bail and being drunk in a public place. 

1. You were back in the Ringwood Magistrates' Court a year later, in September 2006, for again being drunk in a public place, for which you were convicted and discharged.

1. Two week after that, in October 2006, you were in the Dandenong Magistrates' Court facing multiple charges including intentionally damaging property, assaulting and resisting police, making a threat to kill, failing to answer bail, reckless conduct endangering serious injury, intentionally causing injury and, again, being drunk in a public place - two charges - as well as the breach of the community-based order imposed in August 2005.  For this offending, you were given an overall sentence of six months imprisonment which was wholly suspended for 12 months.

1. You also have road traffic convictions for careless driving (2004), driving whilst licence suspended (2007) and, importantly, driving whilst exceeding the prescribed alcohol limit, a reading of 0.162 per cent in 2008.

1. I note that your counsel informed this court that you have a mention listed in the Dandenong Magistrates' Court on 5 September this year for further drink-driving offences committed just before this present offending in November 2012, together with a shop-stealing offence committed in May this year.  The offences charged and listed for mention at Dandenong in September include refusing a breath test and excessive speed.

1. You have reported a dysfunctional childhood involving sexual abuse when under ten by a stepfather and a subsequent rape when an adolescent.  You struggled with learning at school and at 13 you were living away from home.  You had commenced drinking alcohol and very shortly after graduated to cannabis and other illicit drugs, including heroin and amphetamines.  You became addicted, and this condition has continued throughout your adult years and has clearly impacted on your ability to cope with life.  Your family has helplessly watched your descent into the dreadful cycle of destructive behaviour that such addiction brings.  You have been unable to maintain employment or personal relationships.  You have lost custody of your three-year-old son.  Your criminal history reflects your struggle with alcohol.

1. Your mother's letter to the court is a well-articulated example of the waste to life such addictions can bring and provides significant and helpful insight into your condition and the sadness and frustrations you and your family have experienced.

1. The two psychological reports from Dr Simon Kennedy tendered on your plea confirm illicit drug abuse and dependency, borderline personality disorder and low intellectual functioning.

1. Your offending is a significant example of what is obviously very serious offending.  It involved travelling well over the speed limit at a time when you were affected by alcohol and cannabis and then proceeding directly through a red traffic control signal.  The likelihood of a very serious injury or a death resulting was high.  Principles of general and specific deterrence and denunciation should feature prominently in sentencing.

1. A victim impact statement has been completed by the victim and was read in court.  The statement provides eloquent testimony to the pain and suffering, both mental and physical, that are the consequences of acts such as yours.  Mr Tiep Do's life has been significantly affected by your irresponsibility and negligence.

1. In mitigation, I accept the matters urged upon me by your counsel, including:

·     the early date of your plea of guilty;

·     your open and honest cooperation with the police investigation, which included significant admissions against your own interest;

·     

your genuine remorse and self-reproach;          

·     your insight into your addiction and the efforts you have made since being in custody to address that addiction;

·     your intellectual challenges which have most likely impacted on the choices you have made and your ability to foresee consequences;

·     the anguish the separation from your child will bring through your time spent in custody; and

·     your own pain and suffering through the injuries you brought upon yourself by your act.

1. The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

1. Balancing the various sentencing considerations and, in particular, the matters set out within Part 2 of the Sentencing Act, I am first satisfied that the purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment.  Your addiction itself cannot be a mitigating factor as excusing the crime.

1. However I can, and do, have regard to the circumstances which have informed that addiction and the helplessness you have felt in attempting to deal with it.  More importantly, I have witnessed your extreme distress in court, which I accept is a genuine reaction to the mess you have made of your life and the sorrow it has caused you through its impact on others, including the current victim.  It bespeaks intense regret and self-reproach.  Such a reaction is consistent with observations made by the psychologist who interviewed you and by your own counsel, and it is consistent also with your mother's account of your personality and history.

1. The very positive response you have made to your time already spent in custody is illuminating and heartening.  I firmly believe you have a genuine resolve to break your addiction and will do whatever you can to achieve that goal whilst in custody.  It is to be hoped that you will also be able to put into place sufficient structures in your life in order to cope once you are released.  You must accept that you have a choice: it is going to be very hard but only you can make it.  If you apply yourself conscientiously to the task, I am satisfied that you have reasonable prospects of rehabilitation. 

1. Krystal Amy, could you please now stand.

1. On Charge 1 of negligently causing serious injury to Tiep Do, you are convicted and sentenced to be imprisoned for a term of 36 months.  I order that you serve a minimum of two years’ imprisonment before being eligible for parole. 

1. The sentence starts today.

1. I declare that the period of 36 days, not including today, is to be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

1. Pursuant to s.89 of the Sentencing Act 1991, you are disqualified from obtaining a licence to drive for a period of 24 months from today's date.

1. Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, the sentence that would have been imposed is four years’ imprisonment with a non-parole period of three years.

1. At the plea hearing, the Crown sought an order for the disposal of the wine cask which you did not oppose.  I have made that order also today.  You may be seated, Ms Amy.  Is there anything else from either counsel?

1. MR PITCHER:  No, Your Honour.

1. MS HARTNETT:  No, sir, thank you.

1. HIS HONOUR:  Thank you.

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