Director of Public Prosecutions v Arbuthnot

[2020] VCC 1925

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

GENERAL LIST

CR-20-00718

Indictment No. L10017260

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS ARBUTHNOT

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2020, 4 December 2020
DATE OF SENTENCE:	4 December 2020
CASE MAY BE CITED AS:	DPP v Arbuthnot
MEDIUM NEUTRAL CITATION:	[2020] VCC 1925

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Intentionally exposing an emergency worker to a risk of   safety – Plea of guilty

Legislation Cited:

Cases Cited:

Sentence:  Total effective sentence of 13 months' imprisonment followed by a   community correction order for a period of two years.

Section 6AAA declaration:  Three years and six months’   imprisonment with a non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Solicitor for the Office of Public Prosecution
For the Accused	Mr A. Halphen	Stary Norton Halphen Criminal Lawyers

HER HONOUR: 

1Nicholas Arbuthnot you have pleaded guilty to two charges of intentionally exposing an emergency worker to a risk to safety, summary charges of failing to stop after an accident, two charges of failing to stop a vehicle upon police direction, careless driving, driving through a red traffic light, failing to answer bail, and dangerous driving.

2These offences occurred on 31 December 2019 and 1 January 2020.  All of the offences occurred in the Werribee area.

3At approximately 7.55 pm on 31 December 2019 two police officers were driving in an unmarked police vehicle along the West Gate Freeway in Altona North.  Your vehicle, a Toyota Hilux, attracted the attention of the police when you drove past them at a very fast rate.  You then drove your vehicle in front of the police.  They drove behind your vehicle maintaining a distance of approximately 100 metres, for around 10 seconds.  Using the calibrated digital speedometer in their vehicle they determined that your vehicle was travelling at
120 kilometres per hour.  The speed limit applicable to the road on which you were driving was 80.

4The driver of the unmarked police vehicle activated the lights and sirens and signalled to you to pull over.  You slowed down to 80 and then 65 whilst changing lanes.  The police vehicle drove next to your car which allowed the passenger of the police vehicle to roll down his window and to tell you to pull over.  You yelled at him 'fuck, you fucking pull over'.  The police officer held up his police diary, told you they were police officers, and again told you to pull over.  You replied 'you pull over.  What do you want?  Just fucking pull over'.  That conduct gives rise to the charge of failing to stop a vehicle upon police request which is, Summary Charge 15.

5You then swerved your vehicle in and out of your lane before breaking suddenly, which caused the driver of the police vehicle to take evasive action.  At this time you were leaning out if your vehicle and screaming and swearing at the police.  This conduct gives rise to Summary Charge 13, driving in a manner dangerous.  After this you drove off at a fast rate.  The police did not pursue you given the erratic nature of your driving.

6The second incident occurred at 5.25 pm on New Year's Day 2020.  You drove your Hilux into the passenger side of a Hyundai i30 sedan as that car was pulling up at a red light at the intersection of Synnot Street and Duncans Road Werribee.  There was a 16-year-old girl in the passenger seat of Hyundai.  After you collided with the passenger side of the Hyundai you started yelling.  The collision with the Hyundai gives rise to Summary Charge 5, careless driving.

7You then drove through the red light and stopped in the middle of the intersection pulling up to another car and yelling at it.  This conduct gives rise to Summary Charge 1, failing to stop after an accident, and Summary Charge 6  entering an intersection against a red light.  You then drove off, speeding and driving erratically.

8An unmarked police vehicle containing two police officers happened to be driving past at the time and the police officers saw you behaving erratically and yelling at someone in another vehicle.  They performed a U-turn and saw your vehicle drive through the red traffic light at that intersection.

9The police officers followed you and then activated the police lights and sirens.  You initially slowed down but then accelerated at a fast rate along the same road.  This gives rise to Summary Charge 4, failing to stop a vehicle upon police direction.  Before losing sight of your vehicle the police estimated that you were travelling between 80 and 100 kilometres per hour where with the applicable speed limit was 50 and then 60.

10The third incident occurred a few minutes before midnight on 1 January 2020.  Two police officers saw your vehicle parked on Hoppers Lane.  They were unaware of your earlier driving and failure to stop at the request of police.  The driver of the vehicle, Sergeant Terpstra, pulled alongside you and started speaking with you.  You appeared aggressive and possibly drug affected.  The observer in the police vehicle conducted checks on your car.  The observer asked you why you were parked on the side of the road, and you answered 'I'm just sitting here trying to get away from it all.  What do you want?  I can sit here'.  The observer, First Constable Moon, asked if everything was okay.  You replied 'I'm just trying to get away.  Would you just leave'.

11Sergeant Terpstra asked you to produce your driver's license.  You became enraged and asked Sergeant Terpstra if he had a driver's license.  At this stage Sergeant Terpstra reversed the police vehicle so that it was behind your Hilux.

12You drove your car forward, and then did a U-turn so that your vehicle was facing directly towards the police vehicle.  While the police officers were sitting in their car you accelerated directly towards it.  Sergeant Terpstra moved the police vehicle to the left-hand side of the road in order to avoid being rammed by your vehicle.  This conduct by you founds Charges 1 and 2, on the indictment.  You then drove away at a fast rate.

13The next day, 2 January 2020, at around 8.45 pm police officers went to your mother's house.  After a short search they located you on the roof of a house, but you ran away.  You were eventually located and arrested.  You were taken to the Werribee police station where you were assessed by a forensic medical officer as being unfit for interview.

14Prior to this offending, on 12 December 2019, you had entered into bail at the Werribee police station.  You were required to attend Werribee Magistrates' Court on 18 December 2019, to answer that bail.  You did not attend court that day, giving rise to Summary Charge 11, failing to answer bail.

Personal circumstances

15You are now 31 years old.  For the first 23 years of your life, you lived a normal and happy existence.  Whilst you were reasonably good at school it did not interest you and you left at the end of year 10 to take up a plumbing apprenticeship.  You were talented at sport.  Once you left school, however, you focused on work rather than sport.  After you had completed two years of your plumbing apprenticeship you looked into doing other trades and in the two years that followed you worked in different areas of the construction industry, including concreting, bricklaying, carpentry, and tiling.

16At age 21 you started going out with a young woman and eventually moved in with her.  During this period of your life you experimented with drugs, including methylamphetamine, but you were effectively an active, healthy, and sociable young man who had a lot of drive and ambition and plans for the future.

17Tragically on 8 December 2012, when you were 23 years old, you were a passenger in a vehicle which was involved in a very serious accident.  All the other passengers in the vehicle died.  You suffered life-threatening injuries including significant internal and orthopaedic injuries.  You also suffered a severe traumatic brain injury, in part from the collision, and in part from a hypoxic brain injury following the accident.

18You were an inpatient at the Alfred Hospital for around two and a half months and then received rehabilitation at the Epworth rehabilitation centre for two weeks.  Ultimately you received a payout from TAC, which enabled you to purchase your own home, where you were living at the time of these offences.

19Your injuries, both to your head and the rest of your body, led to you losing your relationship with your girlfriend, and made it difficult for you to pursue the social contacts you had previously.  You became socially isolated and you could not return to your pre-accident work.  For some time you had a carer and other supports provided through TAC, but you later dispensed with these services.

20In 2017 you attempted a return to work as a labourer, but this did not work out.  Unfortunately for you, when socialising after work in this period you used methylamphetamine.  You used that drug from time to time after that, and in 2019 you began to use more regularly.  Your explanation for using that drug is that it made you feel better, it eased the boredom and loneliness of your life.  It also brought you into contact with others involved with drugs, which led to people breaking into your home and stealing from you.

21Dr Carroll considered that your brain injury 'Impacted adversely on [your] judgement and reasoning regarding [your] decision to restart using methamphetamine several years ago and [your] decision to continue to use that substance'.[1] Dr Carroll also said that you now have some understanding that there was a link between your offending behaviour and your use of methylamphetamine.[2]

[1] Report of Dr Carroll, [101].

[2] Dr Carroll [61].

22You have no prior convictions or appearances before a court, however, you have received a number of traffic infringement notices.  Two of these are for driving whilst exceeding the prescribed concentration of alcohol dating back to 2011 and 2010.  You also have received five traffic infringement notices for other breaches of the road rules, four for speeding, and one for not wearing a seatbelt properly.  Two of these speeding infringements relate to offences in 2019, one apparently on the same day as the offending before me.

Traumatic Brain Injury

23In respect to your traumatic brain injury I was provided with a neuropsychologist's report from December 2014 and a forensic report prepared by Dr Carroll dated 16 November 2020.  I will focus my reasons on the content of Dr Carroll's report which includes information from the earlier assessment by Ms Sloan.

24Dr Carroll considered that your traumatic brain injury and its consequences upon you meet the criteria for the diagnosis of major neurocognitive disorder due to a severe traumatic brain injury.  Dr Carroll said:

'This has inevitably had a substantial and enduring adverse impact on higher order cognitive functions (sometimes termed 'executive functioning' and primarily governed by the 'frontal lobes' of the brain):  accordingly, he shows a range of features consistent with a 'dysexecutive syndrome' (formerly called 'frontal lobe syndrome') including:

- Fatuous affect;

- Personality change with reduced capacity to manage interpersonal relationships;

- Diminished impulse control;

- Lowered frustration tolerance; and

- Impaired judgment - a reduced ability to weigh up the prosecution and cons of behavioural choices'.[3]

[3] Dr Carroll [86].

25Dr Carroll said there are also associated cognitive deficits including:

- Difficulties with problem solving;

- Memory deficits;

- Problems with verbal abstract reasoning; and

- A propensity to cognitive overload.[4]

[4] Dr Carroll [87].

26Leading up to the offending before the court you were taking a significant quantity of methylamphetamine.  When you were assessed by the mental health assessment team on 3 January 2020, whilst you were in custody, it was thought that you were suffering from low-grade drug induced psychosis.  When you were released on bail, you were placed on CISP bail.  In May 2020 the Werribee Mercy crisis team reported that you were thought to be suffering from paranoia in the context of substantial methylamphetamine abuse.  You were arrested again in July 2020 after what was described as uncharacteristic acts of verbal aggression and property damage directed at family members.

27When you were again placed in custody you were required to undergo quarantine by reason of the COVID-19 pandemic restrictions and moved between a number of prisons.  You were repeatedly required to undergo further quarantines and were placed in isolation.  This led to a significant deterioration in your mental state until you were placed in the AAU in October this year. 
Dr Carroll considered that it is possible that you had periods of psychosis due to the isolation and your head injury, and the residual effects of your use of methylamphetamine.  Once in the AAU you appear to have been given appropriate treatment - you were started on antipsychotic medication leading to a significant improvement in your mental health.  Approximately a week before the hearing of your plea you were moved to Ravenhall Correctional Centre and it appears that you have settled in reasonably well in that environment.

28By the time Dr Carroll examined you in November 2020 there was no evidence of psychosis and your executive functioning had returned to its usual post-accident state.

Verdins

29Based on the material provided to the court I accept:

(i)That your ability to make sound and reasonable assessments about your actions was significantly reduced by your head injury, and that this had an appreciable impact upon your behaviour in the events founding the charges.  It also influenced your choices leading to your use of methylamphetamine at the time of these offences.  This means that it is very difficult to disentangle the effects of the traumatic brain injury and drug use in their reduction of your judgment.  I will moderate the sentences imposed significantly on this basis, although this factor in sentencing remains relevant and carries some weight;

(ii)Your traumatic brain injury makes you more vulnerable to institutionalisation.  A sentence which promotes you remaining drug and offence free, and thus protecting the community, is preferable.

(iii)The terrible injuries you suffered in the car accident in 2012, and their permanent effects upon you, mean that it would be inappropriate to give full weight to the sentencing principle of general deterrence;

(iv)Similarly, in view of the adverse effects of the traumatic brain injury upon your decision making and planning, specific deterrence is better met by focussing on rehabilitation rather than incarceration as a deterrent;

(v)It is clear that your traumatic brain injury, and related issues, made your time on remand so far very difficult indeed, and there is a real risk that it will make your experience of custody significantly more difficult than for a person without such an injury;

(vi)Finally, the report of Dr Carroll indicates that events on remand had a significant adverse effect on your mental state, and the risk remains that this could happen again, whilst you are in custody.

30For all of these reasons, I will significantly mitigate the sentences imposed upon you.

Prospects of Rehabilitation

31The link between drug abuse and your offending is reasonably clear.  You will need help to remain drug free in the community, and supports connected with your traumatic brain injury.  A difficulty in this respect is that you appear to have limited insight into the problems drug abuse cause you, your mental health and your need for supports.  You had terminated supports provided by TAC.  You expressed limited insight to Dr Carroll about your issues.  Your responses to the assessor for the community corrections order yesterday were fatuous.  The Forensicare assessment on 3 December 2020 said:[5]

[5] Forensicare Mental Health Assessment Report, page 2.

'Mr Arbuthnot self-reported having no mental illness, and initially appeared irritable when stating his frustration regarding his ABI being confused by others as a mental illness.  He did not appear to have insight regarding previous episodes of psychosis, and was reported that being prescribed olanzapine (an antipsychotic medication) in custody was a mistake by the general practitioner (GP) when he requested Avanza (antidepressant with sleep-aid properties) for difficulty sleeping.

'Mr Arbuthnot denied any current mental health concerns.  He stated that he feels 'fine' and  while initially appearing frustrated at the idea of having a mental health condition as part of the community correction order (CCO), was able to articulate that he may benefit from engagement with neuropsychology and occupational therapy for assistance with independent living on release from custody'.

Other Matters Raised in Mitigation

32I accept that you are a vulnerable person by reason of your TBI and its effects upon you.  I accept that the conditions of custody have been made significantly more difficult for you by reason of the COVID-19 pandemic restrictions.  In addition the periods of lockdown and the seriously negative effect these had on your mental health, you had not been able to receive visits from your mother in person and your access to courses and rehabilitation programmes has been decreased.

33You entered a plea of guilty at an early stage in the proceedings.  This gives rise to significant mitigation due to the utilitarian benefits to the court, and the facilitation of the administration of justice.  This is even more so in the current circumstances where the business of the court has been significantly affected by the COVID-19 pandemic restrictions.

34Your counsel did not rely upon your plea of guilty as an indication of remorse, but this is not a factor I will treat as a negative for you, in view of the opinion of Dr Carroll about your inability to appreciate other people's thoughts and feelings and how your behaviour would be perceived and experienced them.

Gravity of offending

35Charges 1 and 2 on the indictment are serious offences.  Each carries a maximum penalty of 20 years' imprisonment.  This offence is a relatively recent offence, and the maximum penalty is an indication of this seriousness of it.  Police officers going about their duties should not be subjected to a risk to their safety by driving such as yours.

36Furthermore, whilst your TBI and the use of methylamphetamine would have affected your judgement and reasoning at the time, this does not diminish the objective dangerousness of your offending to other road uses.  I am sure that your offending was very frightening to the people in the Hyundai vehicle, to the police officers, and to other road users.

Sentencing principles and goals

37As I have already indicated, in my view the principles of general deterrence and specific deterrence have diminished weight in the sentencing exercise.  They are not, however, completely absent.  People must be deterred from driving in the manner that you drove.  Furthermore I think you are sufficiently aware of cause and effect that you will understand that if you abuse methylamphetamine and drive in the way that you did on these occasions, you are likely to face serious consequences under the criminal law.  The sentences I will impose are intended to have a deterrent effect upon you whilst promoting your rehabilitation.  In view of your lack of criminal offending prior to 2019, the link between using methylamphetamine and offending must be clear to you.  If you focus on remaining drug free you can remain out of trouble with the law.

38Counsel submitted on your behalf that in all the circumstances, in particular the very serious motor vehicle accident in which you were a victim and the long term consequences of that upon you, that it would be open to me to impose a merciful sentence.  Despite these matters I will not impose a sentence which is lower than otherwise would be appropriate, in the exercise of mercy.  Your conduct does require denunciation and just punishment.  I have, as I have already indicated, significantly moderated the sentences by reason of your TBI and its effects upon you.

39Section 16(3C) and (3D) of the Sentencing Act provide that in your case all sentences are to be served cumulatively unless otherwise ordered.  In view of the significant matters in mitigation, I will make orders for cumulation that result in substantial concurrency between the sentences imposed.

Sentences

Indictment

40Charge 1 – 12 months.

41Charge 2 – 12 months.

42On those charges I direct that 1 month of the sentence imposed on Charge 1 be served cumulatively upon the sentence on Charge 2.  On the indictment, therefore you are sentenced to a total term of imprisonment of 13 months.  In combination with that jail term I order that on Charges 1 and 2 you are to be subject to a community correction order for the period of 2 years, with the following conditions:

- Supervision

- Assessment and treatment for mental health

- Assessment and treatment for drug addiction.

43On the summary offences I will impose an aggregate sentence of a community correction order on the same terms and of the same length as that imposed on the indictment charges.

44By reason of your conviction on the two charges on the indictment, pursuant to s.89 of the Sentencing Act your driver's license is cancelled and you are disqualified from obtaining a license for a period of 24 months.

45Pursuant to s.89(c), I make the finding that the offending was committed whilst you were under the influence of a drug and I will direct that that be entered into the record.

46What is the PSD?

47MS ZAMMIT:  Fifty-eight days, Your Honour.

48HER HONOUR:  I declare that you have served 58 days of pre-sentence detention and direct that that be entered into the records of the court. 

49And pursuant to s.6AAA, I note that if you had not pleaded guilty, I would have sentenced you to three and a half years with a non-parole period of two years.

50Could you just open up the link again to Mr Arbuthnot.  Mr Arbuthnot, the CCO that I have made can be breached if you do not comply with the conditions of it or if you re-offend during the period of the CCO.  If you breach the CCO, you would come back before me and I would have to deal with you on the breach and the charge of breaching and you could be re-sentenced on the offending which is before me.

51Mr Arbuthnot, do you consent to the CCO being made?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  All right, thanks, we can - you can just put that link on silent again please.  Ms Zammit, Mr Halphen, is there anything else?

54MS ZAMMIT:  No, Your Honour.

55MR HALPHEN:  No, Your Honour.

56HER HONOUR:  Mr Halphen, do you want the link left open?

57MR HALPHEN:  That is what I was going to ask, thank you, Your Honour, yes.

58HER HONOUR:  All right, we will adjourn the court.  Thank you.

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