Director of Public Prosecutions v Andrews
[2024] VCC 746
•23 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON ANDREWS |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April and 20 May 2024 | |
DATE OF SENTENCE: | 23 May 2024 | |
CASE MAY BE CITED AS: | DPP v Andrews | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 746 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Dangerous driving causing serious injury – Course of risky and erratic driving on a freeway culminating in offender driving into the emergency lane and striking victim’s stationary vehicle at significant speed – Driving involved a high degree of dangerousness and caused life threatening and life changing injuries to victim – Offender’s driving likely impaired by prescription medication and fatigue –– Relevant but somewhat aged prior offences for speeding and driving dangerously – High level of moral culpability – Very serious example of dangerous driving causing serious injury – Early plea – Remorse – Verdins limb 5 engaged.
Legislation Cited: Crimes Act 1958, s 319(1A); Sentencing Act 1991, ss 6AAA, 18, 87P, 89, 89C.
Cases Cited:Towle v R (2009) 54 MVR 543; [2009] VSCA 280; Gorladenchearau v R (2011) 34 VR 149; Stephens v The Queen (2016) 50 VR 740.
Sentence: Sentence of three years’ imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
| For the Accused | Mr P. Bloemen | Pica Criminal Lawyers |
HIS HONOUR:
Introduction
1Mr Andrews, you have pleaded guilty to and now fall to be sentenced for an offence of dangerous driving causing serious injury that you committed on 12 September 2022.[1] On that Monday morning, you engaged in what can only be described as a dangerous and erratic course of driving for between five and 10 minutes, which culminated in you driving into the emergency lane of a freeway at significant speed and then colliding with the rear of a stationary Toyota Hilux vehicle. The owner of that vehicle, Elias Skandaliaris, had parked it in the emergency lane so he could better secure the work items attached to his roof racks. The force of the collision propelled the Toyota Hilux against a concrete barrier and then into and over the top of Mr Skandaliaris who had been standing at the front of his vehicle. He became trapped under his vehicle and sustained life-threatening injuries. He was then aged 23 and working as a roof tiler. He has not been able to return to his chosen trade and likely never will. The injuries he sustained as a result of your dangerous driving have been life changing.
[1] Charge 1 on Indictment N11988378, pursuant to s 319(1A) of the Crimes Act 1958 (Vic).
2The offence of dangerous driving causing serious injury carries a maximum penalty of five years’ imprisonment.
3You were aged 34 at the time of your offending and are now 36, having been born on 21 January 1988.
Circumstances of the offending
4The circumstances of your offending are more fully set out in the typed prosecution opening[2] and were discussed during the course of the plea hearing. For present purposes, your offending can be relevantly summarised as follows.
[2] Exhibit A.
5At approximately 8:05am on the day of the collision, you set off alone in a Toyota Yaris vehicle from your home in Mornington.[3] Once on the Mornington Peninsula Freeway, you started driving north in traffic that was generally moderate but light in some patches.
[3] This vehicle was registered to a family member of Mr Andrews.
6From approximately 8:15am, other motorists observed you driving in an erratic manner at various points along the freeway. Their descriptions varied, but included the following observations:
·Driving continuously with your left indicator on;
·Drifting across the lanes and road and in and out of the emergency lane;
·Tailgating other vehicles;
·Oscillating your speed and driving above the speed limit, but also without acceleration and below the speed limit;
·Driving along the emergency lane at speed, overtaking other vehicles in the emergency lane and nearly colliding with the barriers on the edge of the emergency lane;
·Slamming on the brakes for no apparent reason;
·Sharply changing lanes and weaving between lanes; and
·Waving your arms around inside the vehicle and moving your head back and forth towards the steering wheel.
7One driver observed you with a grin on your face as you drove past him, while another observed you looking ‘spaced’.
8At 8:20am, a concerned motorist contacted Triple 0 and reported the registration details of the vehicle you were driving.
9At around this time, Mr Skandaliaris had pulled his vehicle over and parked it in the far left emergency lane for north bound traffic, in the vicinity of Old Dandenong Road, Dingley Village. He then exited his vehicle to re-secure the items attached to his roof racks.
10At approximately 8:25am, as Mr Skandaliaris was standing at the front of his Toyota Hilux, you drove into the emergency lane and collided with the rear driver’s side of that vehicle. As a result, the Toyota Hilux was pushed forward and briefly made contact with the concrete barrier at the outer edge of the emergency lane before coming to rest on top of Mr Skandaliaris, trapping him underneath.
11The vehicle you were driving rotated anti-clockwise and crossed both running lanes before coming to rest against the concrete barrier on the opposite side of the north bound lanes of the freeway.
12The freeway had a bitumen surface and ran in a general north to south direction with two lanes in each direction, separated by a concrete barrier. The two north bound lanes were separated by broken white lines, while the edges of both lanes had a solid white fog line, beyond which was an emergency stop lane and a concrete barrier on the outer edge of the road.
13The applicable speed limit for that part of the freeway was 100km/h.
14The collision occurred in daylight when visibility was fine and the road mostly dry.
15The collision was observed by a number of surrounding road users who stopped to assist and call Triple 0. An unsuccessful attempt was made by members of the public to use a car jack to free Mr Skandaliaris from underneath his vehicle.
16At approximately 8:30am, police attended the scene and immediately required you to undergo a preliminary breath test and a preliminary oral fluid test. Those tests returned a negative result for the presence of alcohol and prescribed illicit drugs, respectively.
17Shortly after 9:00am, you provided your consent to police in relation to the taking of a blood sample for analysis. That sample was ultimately taken from you by a doctor at the Alfred Hospital, at 10:22 am. The toxicological analysis of that blood sample detected diazepam at a level of 0.04mg/L and nordiazepam at a level of 0.13mg/L, but not GHB or baclofen. It is accepted that the detection of diazepam and nordiazepam at such sub-therapeutic levels is consistent with you having taken your prescribed Valium at some time prior to you driving as diazepam is the core ingredient of Valium and metabolises to nordiazepam.
18Once Mr Skandaliaris was able to be freed by emergency personnel, he was conveyed via ambulance to the Alfred Hospital in a life-threatening condition.
19Upon arrival at hospital, Mr Skandaliaris was placed in an induced coma and found to have sustained the following injuries:
·A traumatic brain injury;
·Multiple scalp lacerations;
·Multiple spinal fractures;
·Multiple bilateral rib fractures with associated pneumothorax;
·A Grade 2 splenic laceration;
·Multiple pelvic fractures;
·A left humeral fracture; and
·Multiple bilateral lower limb fractures including to both the knees and feet.
20Mr Skandaliaris remained in hospital for approximately five weeks before being discharged to inpatient rehabilitation for ongoing post-acute care and post-surgical follow-up. He underwent reconstructive surgery and multiple other orthopaedic surgeries and required months of rehabilitation before being able to walk again.
21When members of the Major Collision Investigation Unit and the Collision Reconstructionist Unit attended the collision scene, they observed that the Toyota Yaris vehicle was at rest facing south in the east emergency lane with severe frontal damage offset towards the passenger side. The damage profile was consistent with an impact force to the front passenger side corner in the direction of front to rear. The airbags had been deployed.
22The Toyota Hilux vehicle was observed to be at rest facing north in the west emergency lane with contact damage to the rear driver side corner in the form of crush to the tray floor. Multiple pieces of body panels from the Toyota Yaris were stuck underneath the crushed area of the tray. Based on the damage to the front of the Toyota Hilux when impacted, it was concluded that Mr Skandaliaris was wrapped around the front of the vehicle causing his head to hit the bonnet before he was then run over by the vehicle as it came to rest.
23Data obtained from the Toyota Yaris revealed that it was gradually increasing speed from 124 to 136km/h between five seconds and 0.5 seconds before the impact and that the accelerator was pressed to a maximum with no activation of the brakes. However, at trigger, the accelerator was no longer pressed, and the brake was activated. The impact speed was recorded as approximately 129km/h.
24The collision reconstructionist came to the following conclusions:
·The Toyota Yaris was travelling north on the freeway when it crossed the left fog line and collided into the rear of the Toyota Hilux;
·At the time of the collision, the Toyota Hilux was stationary in the emergency lane;
·Prior to impact, the Toyota Yaris was gradually increasing speed from approximately 124 to 136km/h; and
·At impact, the Toyota Yaris vehicle was travelling at 109 to 141km/h.
25Subsequent examination of the Toyota Yaris revealed no faults, failures or conditions that could have caused or contributed to the collision.
Victim impact
26In a victim impact statement dated 19 March 2023,[4] Mr Skandaliaris eloquently describes the physical and emotional impact that this offence has had and continues to have on him. His hospital stay was an isolating and long journey. He endured many complications as a result of the numerous surgeries he had to undergo. His most enduring injuries are his acquired brain injury with associated problems with memory, processing and speech, and the tilt and difficulty he has walking due to his complex pelvic fracture and unstable left leg. The reduced mobility in his neck and spinal injuries cause him ongoing and daily pain. He is no longer able to engage in the activities and hobbies he once enjoyed. Prior to being injured, Mr Skandaliaris was looking forward to completing his three-year roof tiling apprenticeship in early 2023 and the increase in salary he would receive once qualified. Instead, he now finds himself unable to work and financially stressed. As he put it, he feels like a burden to everyone as he has no other qualifications.
[4] Exhibit B.
27Mr Skandaliaris is no longer able to drive due to his acquired brain injury. He does not trust others driving and motor vehicles traumatise him. He now gets overwhelmed in social settings and feels like he no longer has a social life.
28Unsurprisingly, Mr Skandaliaris feels like his quality of life has been reduced.
29In short, Mr Skandaliaris’ victim impact statement provides a measured and powerful insight into the profound and long-term impact that your offending has had and will continue to have on him, Mr Andrews.
Arrest and interview
30You were arrested on the day of the collision and conveyed to the Alfred Hospital for medical assessment. You were initially responsive and able to answer the questions of attending police officers, but once in the ambulance, you began behaving in an agitated and erratic manner.
31At 10:22 am, a sample of your blood was taken and analysed, revealing the presence of diazepam and nordiazepam at concentrations lower than therapeutic levels. When you were searched, five white tablets, believed to be baclofen, were located in your pockets.
32
Following medical clearance, you were taken to a police station for interview. On police request, a Dr Vescovi spoke with you on the phone for almost 30 minutes, commencing at just after 7:00 pm, for the purpose of assessing your fitness to be interviewed. While noting the limitations of relying on verbal information over the telephone and the presence of a police officer for the assessment, the doctor concluded that you were not fit to be interviewed at that time.[5] In her statement,
Dr Vescovi does not state what the basis for her coming to that conclusion was. However, I note that in the statement made by the doctor who was asked to provide an opinion regarding the involvement of drugs in this case, a Dr Schreiber, he indicated that according to Dr Vescovi, you provided a history of GHB addiction, methylamphetamine and alcohol misuse, and trouble sleeping.[6] He then notes, presumably based on something he had either read in Dr Vescovi’s notes or been told by her, that you were found unfit for interview on the evening of 12 September 2022 as you had not had enough sleep previously.[7]
[5] See statement of Dr Cristina Vescovi dated 11 October 2022 (exhibit 12).
[6] See statement of Dr Jason Schreiber (undated), at [2.3] (exhibit 9).
[7] Ibid, at [2.3.3].
33At 12:55 pm on the following day, 13 September, you were deemed fit for interview. An interview was then conducted, during which you answered ‘no comment’ as was your legal right.
Pre-sentence detention
34I note that you remained in custody from the date of your arrest until being released on bail on 30 September 2022, a period totalling 19 days. You then remained on bail until being remanded in custody at the conclusion of the plea hearing on 22 April 2024. The total period of pre-sentence detention is therefore 50 days. A formal declaration to that effect will be made shortly.
Guilty plea
35I note that this matter resolved at an early stage in the proceeding. In January 2023, you indicated an intention to plead guilty to this charge of dangerous driving causing serious injury. Your plea was then formally entered at the committal mention hearing on 4 April 2023, following which you were committed to this court. You are entitled to and will receive a significant sentencing discount for pleading guilty as and when you did.
Prior criminal history
36
You have a limited, somewhat aged, but nonetheless relevant criminal history,
Mr Andrews.
37You have been sentenced for a total of 12 offences in the five year period between August 2006 and December 2011. Whilst your past offences have included weapon, drug,[8] and dishonesty related conduct, your driving offences are of more relevance.
[8] Use and possess a drug of dependence.
38In June 2008, you were convicted and fined for an offence of drive in a manner dangerous. Your licence was cancelled and you were disqualified for six months.
39In August 2010, you received a traffic infringement notice and a six month suspension for exceeding the speed limit by 35km/h or more but less than 40km/h.
40And, in August 2011, you were convicted and fined for refusing to undergo assessment for driving impairment, driving while suspended (x2), and exceeding a 60km/h limit by 35km/h or more but less than 45km/h. On that occasion, you were disqualified for a period of two years.
Personal circumstances
41I now turn to consider your personal circumstances, Mr Andrews.
42Your mother fled from domestic violence from your father when she was pregnant with you. You have never met your biological father. Your maternal grandparents played a significant role in your upbringing. When your mother moved to Japan for work when you were about 10, you and your older brother were left in their care. During that time, you only saw your mother every three or four months. Your mother has since re-partnered.
43Your brother, who is your only sibling, now lives in Queensland. However, the two of you remain close.
44After leaving school in Year 10, you worked for the next three years until losing your licence in 2008. You worked in a factory, at a supermarket and at a JB Hi-Fi store while you pursued further education, initially in engineering and then in business management.
45Between 2007 and 2010, you worked at a real estate agency. However, when you lost that job, you descended into drug use which your counsel relied on to provide some context to your criminal history in 2010 and 2011.
46In 2010, you commenced a double degree in Arts/Commerce at Deakin University. However, in 2019, you discontinued your enrolment in that course.[9]
[9] See academic transcript from Deakin University dated 2 July 2021 (exhibit 8).
47Your maternal grandfather passed away in May 2011, which affected you greatly and led to an acute episode of alcohol and drug abuse.
48In 2016, you worked at a Christmas Tree Farm, managing the seasonal workers.
49As is clear from a number of the written references, you are actively involved in the various activities of your church and you have participated in a number of worthwhile charity events between 2014/15 and 2021.
50In his written submissions, your counsel described your drug use history as ‘considerable’. As he described the situation, you have an ongoing addiction for alcohol, prescription medications, and methylamphetamine. At times you have been in remission but at other times you have been a heavy user of drugs. As he put it, whilst medication has been used to try and stem your abuse of drugs, that has created its own difficulties.
51According to your counsel, you have a long history involving prescription medications, including Valium and baclofen.
52The letter from Dr Andrew Taylor from Frankston Healthcare dated 20 October 2023,[10] confirms that you have attended that clinic with severe chronic relapsing drug abuse for over 10 years, and that the drugs include GHB, methylamphetamine and alcohol. As he also notes, in August 2022 you were very ill with uncontrollable drug use and being prescribed baclofen and Valium.
[10] Exhibit 4.
53A letter from a Dr Daniel Espinosa from The Peninsula Medical and Dental Clinic dated 6 November 2023,[11] notes that you have been a patient of that clinic since mid-October 2022, and that he has been treating you since December 2022. In his opinion, you present with anxiety and depression as well as an alcohol addiction and a polysubstance addiction which includes baclofen and benzodiazepines such as diazepam. You have had difficulty engaging with therapy despite multiple attempts by him and other practitioners. You exhibit drug-seeking behaviour and, according to Dr Espinosa, often visit the clinic under the influence of sedative drugs, seeking Valium for reported insomnia. While you have expressed a commitment to improving your health through regular medical visits and psychiatric treatment regarding the collision and its implications, Dr Espinosa considers your prognosis in relation to your polysubstance addiction as guarded.
[11] Exhibit 5.
54You commenced using baclofen in 2014 and began to use it on a regular basis in 2017. The precise details as to why you have been prescribed baclofen are not entirely clear. In his written submissions, your counsel states that it was to prevent you relapsing into alcohol abuse. In the history you gave to Dr Vescovi (as recorded by Dr Schreiber), you were taking both baclofen and Valium for your addiction to the drug GHB. In your letter to this court, you state that your doctor prescribed you baclofen to stop you from using drugs and alcohol, and that you are addicted to baclofen and still use it. I note that Dr Schreiber describes baclofen as a muscle relaxing medication that may be prescribed to prevent relapse for GHB dependence. I also note that among the possible uses of baclofen referred to by the National Centre for Biotechnology Information (NCBI), one is to maintain alcohol abstinence by decreasing alcohol cravings and alcohol-related anxiety.[12] According to your counsel, you were prescribed baclofen a month prior to the collision (on 8 August 2022) and again on 10 September 2022.
[12] See page 1.9 of extract from the NCBI webpage (exhibit 11).
55In his written submissions, your counsel states that you were prescribed with both Valium and baclofen to prevent drinking while in his oral submissions he indicated that you had been taking Valium for anxiety and to assist you in withdrawing from illicit drug use, including GHB. Apparently, you were last prescribed Valium on 8 August 2022. For the sake of completeness, I note that Dr Schreiber describes diazepam (the constituent ingredient in Valium) as a member of the benzodiazepine group of sedative drugs.
56
Between 2011 and 2014, you were heavily drug dependant and had been a
long term abuser of alcohol. In mid-2014, you were hospitalised with acute pancreatitis as a result of that alcohol abuse, and nearly died. According to your counsel, you were then prescribed with medications to prevent you drinking alcohol, including baclofen and Valium.
57In the wake of that life threatening experience, you joined a local church in 2015.
58
In 2017, you were hospitalised after relapsing into alcohol abuse following a
two year period of abstinence.
59In 2018, your maternal grandmother, with whom you are very close, was diagnosed with lung cancer. You left your university studies in order to care for her. A brief letter from her oncologist dated 6 September 2023, states that she has been treated for that condition since 2018 and is currently receiving chemotherapy.[13]
[13] Letter from Dr Min-Ne Wu (exhibit 6).
60Your mother developed multiple sclerosis in 2003 and currently needs to use a walking stick as a mobility aid. As of September 2023, her treatment included specific medication for that condition as well as pain relief medication.[14]
[14] Letter from Dr Christopher Hughes dated 8 September 2023 (exhibit 7).
61Your counsel described your life since this collision occurred as one that has been punctuated by drinking, self-medicating and drug abuse.
62In November 2023, you were drinking heavily and suffered a breakdown. Police and a CAT Team were called, which resulted in you becoming an involuntary patient for three weeks.
63In January 2024, you were admitted to hospital after being found unconscious in a neighbour’s front yard.
64As the psychologist Errol Akyalcin notes in his report of 5 April 2024, you have been seeing him since 30 January 2023.[15] You have intermittently attended his therapy rooms and had some phone consultations. In more recent times, with the help of your parents, you have increased the frequency of your contacts. As noted, you present as highly anxious and with a number of disorders, including a schizoaffective disorder, polysubstance disorder, disturbed moods and anxiety against a background of ADHD. You are avoidant of responsibility. You have been stressed by this case and by your role as the primary caregiver for your grandmother. You have a history of illicit substance use and of self-medicating or using substances to try and cope with your symptoms of anxiety, depression, paranoia and insomnia.
[15] Exhibit 3.
65Until being remanded at the plea hearing on 22 April this year, you lived at the family home in Mornington with your mother, stepfather and maternal grandmother.
Matters in mitigation
66Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Andrews.
67You pleaded guilty to this charge at the earliest reasonable opportunity, thereby saving the victim and a number of witnesses to the collision and/or its aftermath from the ordeal of having to give evidence. By taking that course, you have also saved the community the cost and time of a trial and demonstrated a willingness to facilitate the course of justice. The utilitarian value of your plea has increased significance given the COVID-related trial listing pressures that this court was experiencing at the time that this matter resolved.[16]
[16] Worboyes v The Queen [2021] VSCA 169.
68In light of your plea and the sentiments that you expressed at the scene of the collision, as well as to a number of other people since, and in your recently written letter to this court,[17] I am satisfied that you are remorseful for your offending.
[17] See typed letter from Jason Andrews dated 7 April 2024 (exhibit 10).
69You have shown yourself capable of applying yourself to work and to study when not seriously abusing alcohol and/or drugs or prescription medication.
70You have engaged in community and church based charitable work.
71You have also taken on the primary care for your ailing grandmother who is now aged 87. I have taken account of the fact that you will be worried about her and your mother’s health while you are serving your sentence and that this concern will add to the onerousness of your sentence.
72I accept that you want to address your substance abuse issues and your mental health problems. As your counsel submitted, your time on remand has already provided you with an opportunity to detox and to reflect on the importance of dealing with your addictions and mental health issues. And, you will have the opportunity to remain substance free and to further reflect while serving the remainder of your sentence.
73As is clear from the written testimonials, you are strongly supported by your family, a friend and the church that you attend.[18]
[18] See bundle of references tendered as exhibit 2.
74I am satisfied that limb 5 of Verdins is engaged. Based on the report of Mr Akyalcin in particular, there is a sufficient evidentiary basis for concluding that you will find the experience of a prison sentence more onerous than prisoners of sound mental health. As he notes in his report, you suffer from ongoing chronic/severe levels of mental illness and in his view you would not do well in any normal way if subjected to overly challenging environments such as incarceration.[19]
[19] See page 2.9 of exhibit 3.
Gravity of the offending
75
This court must also have regard to the objective gravity of your offending,
Mr Andrews.
76The offence that you committed must be viewed as inherently serious given that the prescribed maximum penalty is a custodial one of five years.
77In my view, the offence that you committed was a very serious example of its type, for the following reasons.
78This collision occurred against a background of a sustained course of erratic and very dangerous driving which alarmed many other motorists, causing them to give your vehicle a wide berth and, in the case of at least one of those motorists, to contact the police while they were driving.[20]
[20] See for example, the statements of Christopher Keighley, Emma Palmeri, Megan Heys, Louise Gundry, Caroline Lowe, Nathan Hobbs, Kane Chapman and S/C Harry Thompson located in the depositions and summarised to some extent in the report of Dr Schreiber at [2.2] (exhibit 9).
79The collision was caused by you having driven into the emergency lane of a freeway at very high speed.
80Whilst the exact speed of your vehicle at the point of impact with the victim’s vehicle cannot be calculated, the five seconds of the recorded pre-crash data is illuminating. According to the collision reconstructionist, Detective Senior Constable Zhao, it revealed that your vehicle was travelling at a gradually increasing speed from 124 to 136km/h between five seconds and 0.5 seconds before the impact when the accelerator was pressed to maximum and the brake was not activated.[21] At the trigger point, 0.5 seconds before the impact, the accelerator was no longer pressed and the brake was engaged.[22] The impact speed was recorded as approximately 129km/h but that could have been recorded at any time between 0 to 0.5 seconds before impact.[23] It is for that reason that the collision reconstructionist allowed for a 10 per cent differential when estimating the possible range of impact speed, that is at the point of collision, as approximately 109-141km/h.[24]
[21] See report of D/S/C Zhao at page 18 (exhibit C).
[22] Ibid.
[23] Ibid.
[24] Ibid.
81It would seem likely from all of the available data and other evidence, that after initially accelerating, you only became aware of the presence of the Toyota Hilux in the emergency lane at the very last moment, in response to which you braked in a futile attempt to avoid a collision. In the circumstances, I am prepared to allow for the impact speed being recorded at 0.5 seconds before the actual impact occurred and that you were braking during that 0.5 second period. But even after making those allowances, it is clear that you were still travelling at a frightening speed in a lane that is designed for vehicles to stop in and which you had absolutely no right or reason to be in.
82The reason for your very late realisation of the presence of the victim’s vehicle and indeed, for the course of erratic and very dangerous driving that you had engaged in over some minutes to that point, likely lies in the fact that you were fatigued through lack of sleep and also adversely affected by the prescription medication that you had taken earlier. That medication included, at the very least, Valium, as confirmed by the blood sample analysis. It is also possible that it included baclofen, as you had later told police and medical personnel that you had taken baclofen that morning. And it remains possible notwithstanding that baclofen was not detected in your blood sample. The reason for that is that the exact time and dose of any baclofen you may have taken earlier is not known, baclofen is rapidly absorbed with peak blood concentrations being reached 2-3 hours after ingestion, it has a short half-life (2-6 hours) with significant inter-individual variability as to absorption and elimination processes, and your blood sample was taken two hours after the time of the collision.[25]
[25] See “Mechanism of Action” part of the NCBI excerpt for baclofen at page 2 of exhibit 11.
83In such circumstances, it seems clear from the available evidence as to the inherent nature of each of those medications and the exacerbating effect that taking them in combination can have, that you were likely driving while experiencing drowsiness and confusion and while having difficulties with your perception, vigilance, concentration and judgement.[26] That conclusion is also supported by the various observations that many other motorists made in relation to your erratic and strange driving and, in some cases, in relation to your rather odd behaviour and appearance while driving.[27]
[26] For example, see the report of Dr Schreiber and the excerpt from NCBI, exhibits 9 and 11 respectively.
[27] See also paragraphs 3.7, 3.9, 5.3, 5.4, 8.1 and 8.4 of Dr Schreiber’s report (exhibit 9).
84The fact that you were feeling fatigued and experiencing the other symptoms to which I have referred could not have escaped your attention as you began to engage in the course of erratic and dangerous driving that you did. It remains a mystery to this court why, in such circumstances, you continued to drive in the manner that you did rather than immediately pull the vehicle over. The fact that you ignored the danger that your condition and its effects on your driving presented to other road users for some minutes leading up to this collision, is a disturbing feature of this case and illuminates your degree of moral culpability for this offence.
85A number of things have been made clear by the Court of Appeal in relation to the offence of dangerous driving.
86Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others’.[28]
[28] Stephens v The Queen (2016) 50 VR 740, [20] (The Court) (‘Stephens’) referring to McBride v The Queen (1966) 115 CLR 44, 72 (Barwick CJ); King v The Queen (2012) 245 CLR 588, 607-8 [46].
87However, the offence of dangerous driving encompasses a very wide range of conduct[29] and, in the case of dangerous driving causing serious injury, a broad spectrum of injuries that can amount to a serious injury.
[29] Stephens, [21].
88The seriousness of any given case of dangerous driving causing serious injury is to be measured by reference to the degree of dangerousness of the driving and the severity of the serious injury sustained by the victim as a result of that driving.
89As was noted in Towle v R,[30] and later in Stephens v The Queen,[31] the dangerousness of the driving is informed by the degree or extent of the risk of harm which the driving created and by the extent of potential harm should the risk materialise.[32] So, the extent of the risk includes both the likelihood that something will go wrong and the extent of the harm that will result if it does.[33]
[30] (2009) 54 MVR 543; [2009] VSCA 280 (‘Towle’).
[31] Stephens, [20].
[32] Towle, [66]; Stephens, [20] referring to Board v The Queen [2013] VSCA 190, [34] (Maxwell P, with whom Buchanan JA agreed).
[33] Gorladenchearau v R (2011) 34 VR 149, [25] (Maxwell P with whom Ashley JA and Ross AJA agreed).
90In my view, the level of dangerousness of the driving in which you engaged was very high, Mr Andrews.
91It took place on a Monday morning at a time when no doubt many people were driving on the freeway, whether to work or to some other destination for any number of other reasons. So, there were many other vehicles in the vicinity of the vehicle that you were driving. Given the high applicable speed limit, most if not all of those vehicles could be expected to be travelling at a significant speed when the flow of traffic permitted. Your vehicle was travelling at a significantly greater speed than those other vehicles. The drivers of the other vehicles in your immediate vicinity would be hard pressed to take safe evasive action in the event that you collided with their vehicle whilst the driver of any stationary vehicle in the emergency lane would be in no position to take evasive action if your driving created a need to do so. As such, to have driven as you did while fatigued and adversely affected by prescription medication created a very high risk that something would go wrong and a likelihood of very significant harm being occasioned to one or more other motorists if that risk eventuated. As a number of the other motorists in effect noted at the time, you presented as a tragedy just waiting to happen. And so it came to pass. As tragic as the results of this collision were for Mr Skandaliaris, it could have been even worse as evidenced, for example, by the fact that your out of control vehicle miraculously managed to avoid colliding with any other vehicles as it span out of control across the two north bound lanes of the freeway. For the abovementioned reasons, I consider the dangerousness of your driving on this occasion to be very high indeed.
92As for the severity of the serious injury caused by that driving, I am of the view that it was close to if not at the upper level of the range of serious injuries that can meet the statutory definition of serious injury. In Mr Skandaliaris’ case, his injuries qualify as a serious injury on each possible basis; that is, they were life threatening as well as substantial and protracted in nature.
93Accordingly, I consider this to be a very serious example of the offence of dangerous driving causing serious injury and one that involves a high level of moral culpability on your part, Mr Andrews.
94Whilst not in the worst case category, it is an offence that reaches the upper end of the spectrum of seriousness for offences of this type.
Sentencing principles
95In this case, the sentencing principles of general deterrence and denunciation assume considerable significance. The community is understandably appalled by the entirely avoidable causing of serious injuries to road users as a result of offenders choosing to drive a potentially lethal weapon in a dangerous fashion. The community has a justifiable expectation that a court which sentences an offender for such serious criminal conduct will impose a sentence that is designed to reflect that community concern and to discourage anyone else who might be minded to drive dangerously, from doing so. Any such would-be offenders must be left in no doubt that if they act on their desire to drive dangerously and, as a result, seriously injure someone, then they will face the very real prospect of being sent to prison and in the more serious cases, for a considerable period.
96In my view, specific deterrence and protection of the community are important sentencing considerations in this sentencing task, for the following reasons. You are someone who has been prepared to significantly speed on a number of previous occasions as well as to drive dangerously. The fact that such conduct occurred some years ago reduces its weight but does not make it irrelevant. It is a matter of some concern to this court that you have been grappling with what appears to be a serious addiction to alcohol, illicit drugs and prescription medication for many years. In your own words, you have become addicted to baclofen and continued to use it right up until you were remanded in custody. As long as you continue to battle such addictions, there will be a risk that you will relapse and become intoxicated by whatever substance you abuse. In that event, the risk that you would pose to the community if you chose to drive, would be considerable.
97As required by law, you must be punished to an extent and in a manner that is just in all the circumstances. Given the very serious nature of this offence, any such punishment must be significant in my view.
98This court must also have regard to your age and prospects of rehabilitation, which I have concluded are at best moderate but also very guarded. Unless and until you can fully address your addictions and underlying mental health issues, your chances of achieving medium to long term rehabilitation are slim.
99In that context, it is important for this court to impose a sentence that seeks to encourage and facilitate your rehabilitation to the extent permitted by law. Given the nature of the sentence required in this case, that can only be achieved by allowing for a suitable period of supervised release on parole. In the event that the Adult Parole Board considers you suitable for such release, a strict and focused set of parole conditions aimed at assisting you to get appropriate treatment and counselling for your addictions and mental health issues would be highly desirable if not an absolute necessity in order for you to have the best chance of rehabilitating and in order for the community to be protected.
100Given that you are not experienced, let alone comfortable with the prison environment, and that you will likely find the service of any custodial sentence difficult, it is important to keep any sentence to the minimum that the justice of this case requires. I will also allow for the possibility that the service of that sentence will go some way towards deterring you from committing this type of offence in the future.
Sentencing submissions
101In his sentencing submissions, your counsel quite properly acknowledged that your driving was very dangerous indeed.[34] But, notwithstanding that concession and a further concession that the victim’s injuries have had a ‘life changing’ effect, he invited the court to consider imposing a combination sentence.
[34] Plea transcript for 22 April 2024, at page 14.
102Your counsel urged the court to accept that your driving was explained by the fact that you had earlier taken your prescribed Valium and baclofen medication and that it provided the context for, but not a justification of, your offending.[35] He then went on to contrast your case of taking prescribed medication to other cases where an offender makes a conscious choice to get drunk on alcohol or intoxicated with illicit drugs with a view to then driving.
[35] Ibid, at pages 21-22, 30-32 and 37-39.
103For their part, the prosecution sought to highlight the seriousness of this offending and the importance of a number of sentencing principles enroute to ultimately submitting that an immediate custodial sentence was the only available sentencing option in this case.
104I note that while the prosecution made reference to the need for the court to make a cancellation and disqualification order regarding Mr Andrews’ driver’s licence, the prosecution ultimately opted not to make an application or otherwise invite the court to make an order under s 89C of the Sentencing Act 1991.
Analysis
105In my view, nothing other than a custodial sentence involving a head sentence with a non-parole period would be within the range for this offending.
106To do otherwise would simply fail to justly punish Mr Andrews for the serious criminality in which he engaged on this occasion and would also fail to reflect the importance of a number of other important sentencing principles, including denunciation, deterrence and community protection.
Sentence
107Mr Andrews, after having carefully considered, balanced, and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
108On Charge 1, dangerous driving causing serious injury, you are convicted and sentenced to a term of three years’ imprisonment.
109In respect of that sentence, I fix a non-parole period of two years.
Pre-sentence detention
110Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 50 days pre-sentence detention, not including today’s date, in respect of this sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the court records.
Section 6AAA indication
111
Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for your plea of guilty, you would have been sentenced to four years’ imprisonment with a
non-parole period of three years.
Licencing order
112In respect to any conviction imposed for a serious motor vehicle offence (of which this offence is one), the court must cancel any driver's licences or permits held by the offender and disqualify that person from obtaining any other licences or permits for whatever period the court considers appropriate.[36] Further, in respect of an offence of dangerous driving causing serious injury, the court must not specify a period of disqualification that is less than 18 months.[37]
[36] See ss 87P(d) and 89(1)(a) of the Sentencing Act 1991 (Vic).
[37] See s 89(2)(a) of the Sentencing Act 1991 (Vic).
113Accordingly, in respect of Charge 1, dangerous driving causing serious injury, I order that any driver's licences or permits held by you Mr Andrews are hereby cancelled and you are disqualified from obtaining any other licence or permit for a period of 30 months, effective from today's date.
Other matters
114Are there any other matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Bloemen?
115MR BLOEMEN: No, Your Honour.
116HIS HONOUR: Thank you. Ms Dearman?
117MS DEARMAN: No, Your Honour.
118HIS HONOUR: Mr Andrews can now be taken downstairs, thank you.
119The Court is adjourned.
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