Director of Public Prosecutions v Armstrong, Cheryl
[2013] VCC 537
•15 April 2013 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00263
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHERYL ARMSTRONG |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 26 March 2013 (Shepparton) | |
DATE OF SENTENCE: | 15 April 2013 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v Armstrong, Cheryl | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 537 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Negligently causing serious injury - driving whilst disqualified - fraudulently altering or using a vehicle licence plate - using an unregistered motor vehicle on a highway
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Three years and seven months' imprisonment, minimum term 27 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ekegren | Office of Public Prosecutions |
| For the Accused | Mr D. McKenzie | Victoria Legal Aid |
HIS HONOUR:
1 Ms Armstrong, you have pleaded guilty to four charges of causing serious injury negligently to Simon Hoile, Justin Roberts, Kate Mason and Ryan Smith respectively. Each of the offences is contrary to Section 24 of the Crimes Act 1958 and, having been committed on 27 March 2011, carries a maximum penalty of 10 years' imprisonment.
2 You have also pleaded guilty to one transferred summary charge of driving whilst disqualified, one transferred summary charge of fraudulently altering or using a vehicle licence plate and one summary charge of using an unregistered motor vehicle on a highway.
3 The maximum penalties for the summary offences are:
· for a third offence of drive whilst disqualified, which is the case here, 2 years imprisonment or 240 penalty units;
· for fraudulently altering or using a vehicle licence plate, 2 months imprisonment or 10 penalty units;
· for using an unregistered motor vehicle on highway, 25 penalty units.
4 You are now aged 42, having been born on 9 September 1970. At the time of offending you were aged 40.
5 The offences arise as a result of your driving behaviour and ultimate collision on 27 March 2011.
6 The circumstances of your offending are as follows.
7 On the day leading up to the collisions you had been moving house. You, Justin Roberts and Simon Hoile all helped each other with moving furniture between Devenish and your new place in Benalla. You were mixing vodka with a bottle of soft drink and you and Justin Roberts were drinking it throughout the move.
8 The move was finished some time before 7 pm. Justin Roberts wanted to get some morphine from a friend of his in Shepparton. A decision was made to go to Shepparton. You got into your Magna with Justin in the front passenger seat and Simon Hoile in the back and you all set off from your address in Benalla.
9 At about 7 pm Thomas Donehue was at the FoodWorks store in Benalla. He saw you there, along with Justin Roberts and Simon Hoile. He saw you open the driver's side door of your car and then fall backwards onto your back.
10 At about 7.22 pm you drove to and stopped at the Coles Express service station in Benalla. From the service station you then drove to Baddaginnie along the Baddaginnie-Benalla Road. You were driving fast. Simon Hoile remembers that you almost lost control on the section of road going north over the railway tracks at Baddaginnie. Justin Roberts remembers driving along the Baddaginnie-Benalla Road towards Baddaginnie, but nothing after that until he woke up in hospital.
11 From Baddaginnie you drove north along Tarnook Road at fast speed. At one stage, prior to the collisions, you drove over a crest so fast that Simon Hoile hit his head on the roof of the car. You continued to drink from the mix of vodka and soft drink.
12 At about 7.30 pm Rodney Smith was driving south towards the crest of the hill from the opposite direction. In the front passenger seat was his wife, Valda Smith. Mr Smith was driving a Toyota Landcruiser which was towing a boat on a trailer.
13
Also driving south, about 50 metres behind Rodney Smith, was Ryan Smith, Rodney Smith's son. In the front passenger seat of Ryan Smith's car was his girlfriend, Kate Mason. Ryan was driving a Ford Utility.
14 The road where the crest was located was about four and a half metres wide. It did not have centre dividing lines cutting the road into two lanes. It is the sort of road where drivers who are approaching each other have to move over to their left a little so that they can pass each other by. Mr Smith was not able to see your car approach him due to the crest in the road.
15 Rodney Smith said that he had no time to react when he saw your headlight coming towards him near the top of the rise. He was going at about 70 to 80 kilometres per hour. You were travelling at over 120 kilometres per hour. Only one of your headlights was working.
16 Further expert reconstructive testing was later conducted by Robert William Hay. Hay concluded that Rodney Smith would have first seen your car between 3 and 2.5 seconds before the collision.
17 Your car struck the driver's side wheel arch of Rodney Smith's boat trailer. As a result, you steered left and the passenger-side wheels of your car went onto the gravel shoulder of the road. You then turned your steering wheel sharply to the right. Your car started to turn clockwise as it crossed back onto the road and headed onto the eastern side of the road. Ryan Smith was driving at about 68 kilometres per hour. Your car impacted with the front of Ryan Smith's utility. Your car continued to rotate clockwise before stopping 28 metres north of the utility. The motor in your car was torn out.
18 The scene of the collisions were later inspected and analysed by Senior Constable Jenelle Mehegan. She is an expert in reconstructing how motor vehicle collisions have occurred. It is her opinion that the collision point between your car and the driver's-side wheel arch of the boat trailer occurred about 20 centimetres to the west of the centre of the road. In other words, it is Senior Constable Meehan's opinion that there was a part of the wheel arch which was 20 centimetres onto the side of the road that you were driving on. She based this opinion on observing a gouge in the road at that spot. The place of the gouge mark does not, however, provide ‘pinpoint’ accuracy of the site of the collision - it is accurate to within approximately 50 centimetres in any direction from the gouge mark, according to Senior Constable Meehan.
19 Senior Constable Mehegan's opinion is that about four centimetres of the boat trailer's passenger-side wheels would have been on the gravel of the west side of the road at the time of impact.
20 It is relevant that your car is itself 1.77 metres in width. Even with 20 centimetres of Rodney Smith's boat trailer protruding onto “your” side of the road you would have had enough space on “your” side of the road, about 2.05 metres, to pass by the boat trailer without any need for you to drive onto the gravel, had you driven slightly further to the left. It cannot be ruled out that part of your car was protruding onto “Mr Smith's side” of the road - at the point of contact with the trailer's wheel arch.
21 The accepted facts are that you drove dangerously fast up that crest - so fast that given your position and Mr Smith's position he had no chance to avoid you when he finally saw you. This negligent conduct put Rodney Smith and Valda Smith in danger of being seriously injured.
22 When your vehicle collided with Ryan Smith's utility he, Kate Mason, Justin Roberts and Simon Hoile all suffered serious injuries.
23 Ryan Smith suffered fractures to the bones of his right leg and both feet. He had skin grafted from his left thigh onto his right ankle. He suffered a blood clot to one of the main arteries to his lung. He spent about two and a half months in hospital and a significant period in continuing rehabilitation.
24 Kate Mason lost consciousnesses for a brief period. She suffered a fractured vertebra, broken ribs, a tear to her large intestine, an injured pelvis and an open wound to her abdominal wall. She was in hospital initially for about one month and also has engaged in continual medical treatment and rehabilitation.
25 Justin Roberts also lost consciousness. He suffered a serious brain injury, a broken collarbone, bruised lung and a cut to his scalp. He suffered memory loss - he cannot now remember the collision. He was in hospital for several months.
26 Simon Hoile suffered brain injury, broken ribs, a broken collarbone, a broken nose, several fractured vertebrae in his neck, a punctured lung and a bruised spleen.
27 Police and ambulance members arrived at the site and began helping the injured and making observations of the scene. The first 000 call was made at 7.37 pm.
28 A receipt from the Coles Express service station was later found in your car which shows that you made a purchase there at 7.24 pm. According to the timer on the closed circuit television footage from the service station, you left there at 7.26 pm. The distance between the service station and the sight of the collision was just over 20 kilometres, being 20 kilometres and 365 metres. You drove at an average speed of approximately 122 kilometres an hour between the service station and the site of the collision.
29 Your car was later inspected by a police officer with expertise in motor mechanics. He found that there was no fault in that car which would have caused or contributed to the collision.
30 You were taken to hospital following the collision. A blood sample taken from you at the hospital returned a serum plasma ethanol level of 7.4 mmol per litre at 12.30 am on 28 March 2011. This reading was analysed by Dr Morris O'Dell. Dr O'Dell concluded that based on your blood alcohol reading at 12.30 am, in the "worst case" your blood alcohol reading at the time of the accident would be between .08 percent and .13 percent but because there may still have been an unabsorbed amount of alcohol in your stomach, your actual blood alcohol reading could have been below this "worst case" range.
31 On 17 August 2011 you were arrested and taken to the Benalla police station. You were interviewed by police and that interview was recorded. You told the police that you had had two drinks of vodka on the morning of 27 March between 10 am and 11 am but did not have anything to drink after that. You said that after you had finished moving house you drove Justin and Simon along the Baddaginnie Road, went over the railway tracks and then towards Shepparton. You said you were driving at about 70 kilometres per hour and had driven that road plenty of times before.
32 You claimed that as you were driving on that road you saw four headlights coming towards you so you slowed down to about 60 to 65 kilometres per hour and moved left so that you were half onto the gravel shoulder. You said you saw a car coming closer to you and then cannot remember anything after that. You said this happened on a flat stretch of road. You said you could not remember colliding with the vehicles.
33 You disagreed that you were driving at over 120 kilometres per hour. You said that you would not do so because such a speed would be dangerous on that road.
34 You said that the headlights you saw coming towards you were a "fair distance" away when you saw them. You said that it had been starting to get dark and only one of your headlights – on the driver's side - had been working.
35 I now turn to your personal circumstances.
36 As noted earlier, you are now 42. At the time of the offending you were aged 40.
37 You have had a very unfortunate developmental background, commencing with your parents’ separation when you were aged 7. You then lived with your father for a year before being taken (you describe it as being kidnapped) by your mother. Your mother remarried, and from the ages of 8 and 15 you were subject to sexual abuse from your stepfather. You conceived a child to your stepfather at 15. The child was terminated. You disclosed the abuse to your mother at 21 and your mother's reaction was to blame you for her marriage ending.
38 Your mother and stepfather were employed as fruit pickers, which necessitated many geographical changes. This resulted in disrupted schooling, and you have not completed any formal education beyond two months of Year 10.
39 You have five children, the first of whom was conceived as a result of rape. All of your children have been conceived to different fathers. You have not had much support from any of those fathers. One left you the day the pregnancy was announced, another has not been seen since his child turned four, another wanted nothing to do with his child and another went to gaol when you were pregnant. You acknowledge the assistance your mother has given you with the care of your two youngest children and noted also the assistance you received from the paternal grandparents and father of your youngest son since you have been in custody on these matters.
40 On your release from custody you are anxious to work with the Department of Human Services in order that your children can again live with you.
41 Reports from Ms Warren, psychologist, and Mr Larter, Senior Manager Odyssey House, were tendered.
42 Ms Warren has assessed you as having some challenges in intellectual functioning and an historic pattern of drug abuse that warrants diagnosis of substance dependence with physiological dependence. The pattern of repeated use results in tolerance, withdrawal and compulsive drug-taking behaviour. You have episodic low moods that meet the criteria for major depression. You have some symptoms of stress following trauma but not for the full diagnosis of post-traumatic stress disorder. In summary, Ms Warren concluded that your clinical features are not permanent but wax and wane according to your degree of coping with life's challenges and that you are not as robust or capable as some.
43 You attended the Odyssey House Circuit Breaker Program between 4 June and 16 July 2012. The program was designed to break your alcohol and drug problems and associated behaviour. Whilst you initially struggled with the requirements of the program, you benefited from education on coping and managing your life more effectively through routine, structure and cognitive behaviour and other therapies. You expressed interest in continuing treatment and an extension was arranged to 6 August. You responded positively to the challenges posed, however, it is important that you develop a long-term counselling relationship to assist your continuing rehabilitation. You have accepted that advice and have been accepted on a waiting list for continuing drug and alcohol treatment with the Ovens and King Community Health Service.
44 You have an extensive criminal history commencing in 1993. From 2007 you have offended every year, principally with drug possession and use and driving offences, notwithstanding that you have never held a driver's licence. The driving offences include two convictions for driving whilst disqualified, two convictions for driving whilst exceeding the permissible alcohol limit and two convictions for unlicenced driving. Penalties imposed have included fines, Community-based Orders and short sentences of imprisonment wholly suspended. I note that you have breached Community-based Orders.
45 You were also injured yourself during the collision, suffering a broken sternum, shattered pelvis and damaged shoulder and right arm. You have steel pins in your pelvis and elbow. You spent two weeks in the first hospital and a further three and a half months at Epworth hospital in rehabilitation. You continue to suffer pain and disability.
46 You have spent 395 days in pre-sentence custody punctuated from time to time with being on bail. You were breached on bail one time for obtaining alcohol against a bail condition and were released another time in order to attend the Odyssey House program. Significantly, you worked hard to lower your methadone dosage level in order to meet the requirements of that program.
47 The victim impact statements received from Ryan Smith, Kate Mason and Ryan's parents, Rod and Val Smith, provide eloquent and vivid testimony to the pain, suffering and anguish that negligence in the use of a motor car can cause. Each of the victims still suffers seriously from the impact of their injuries and will continue to suffer into the future. The impact on the families has been devastating.
48 Your offending is obviously serious. It involved travelling fast over a sustained period, in the evening, on a narrow country road, at a time when you were affected to some extent by alcohol notwithstanding that it cannot be demonstrated that you exceeded any prescribed alcohol limit. You drove in that manner without holding a licence to drive a motor vehicle - at that time or at any time previously. You had no right to be driving at all. At the same time, the vehicle was unregistered and with an invalid licence plate. You showed complete disregard for the law and for the safety of other road users.
49 In mitigation I accept your pleas of guilty and the time at which they were made, the delay, your unfortunate developmental history and the addictions you have developed to poly-substance abuse - most likely as a result of that very early trauma in your life, the separation you have from your children, your progress in rehabilitation through Odyssey House, the pain and injury you suffered and continue to suffer as a result of the collision and the fact that so much of your time in custody has been in remand without the opportunity for programs available for sentenced offenders.
50 The basic purposes for which a court may impose a sentence are punishment, deterrence - both specific 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 or victims. 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 re-integrated into society.
51 Whilst the prosecution accepted your counsel's submission that a Community Correction Order was within appropriate sentencing range in light of the circumstances and the fact that you have already served 395 days in custody, I am unable to accept that sanction as sufficiently reflecting an appropriate balance of the sentencing considerations, particularly the serious nature of your offending. I note also your counsel's frank concession that he was hesitant a Community Correction Order was a desirable outcome.
52 Given your history of prior convictions, the nature of those convictions, the nature of these offences, the fact that there are four victims, the injuries to those victims and the fact that previous sentencing dispositions from the courts have included Community-based Orders and a suspended sentence, including breaches, I note, of Community-based Orders, and balancing your personal circumstances, factors in mitigation and prospects of rehabilitation, I conclude that the only appropriate sentence in this case is one of imprisonment to be immediately served and for a period greater than you have currently served. Your behaviour reflects a gross indifference for the safety of other citizens, and as a result four people have had their lives changed through pain, suffering and loss.
53 On Charge 1 of negligently causing serious injury to Simon Hoile you are convicted and sentenced to be imprisoned for a term of 30 months.
54 On Charge 2 of negligently causing serious injury to Justin Roberts you are convicted and sentenced to a term of imprisonment of 30 months.
55 On Charge 3 of negligently causing serious injury to Kate Mason you are convicted and sentenced to a term of imprisonment of 30 months.
56 On Charge 4 of negligently causing serious injury to Ryan Smith you are convicted and sentenced to a term of imprisonment of 30 months.
57 On the transferred summary charge 13 of drive whilst disqualified you are convicted and sentenced to three months' imprisonment.
58 On the transferred summary charge 14 of fraudulently alter or use a vehicle licence plate you are convicted and sentenced to one month’s imprisonment.
59 On the transferred summary charge 16 of use an unregistered motor vehicle on a highway you are convicted and fined $200.
60 Charge 1 is the base sentence. I direct that four months of each of the sentences imposed on Charges 2, 3 and 4 and one month of the sentence imposed on the transferred summary charge 13 be served cumulatively on the sentence imposed on Charge 1 and on each other. The sentences are otherwise concurrent.
61 The total effective sentence is three years and seven months' imprisonment. I order you to serve a minimum of 27 months' imprisonment before being eligible for parole.
62 The sentence starts today. I declare that the period of 395 days 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.
63 Pursuant to Section 89 of the Sentencing Act 1991 on each charge on the indictment you are disqualified from obtaining a licence to drive for a period of four years from today's date. All of these disqualification periods are to run concurrently.
64 Pursuant to Section 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty the total effective sentence that would have been imposed is five years and five months’ imprisonment with a non-parole period of three years and three months.
65 Is there anything else from either counsel?
66 COUNSEL: No, Your Honour.
67 HIS HONOUR: Ms Armstrong may be now taken into custody. Gentlemen, unless there is anything further you can be excused from the Bar table.
68 COUNSEL: Thank you, Your Honour
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