Director of Public Prosecutions v Bacon

[2015] VCC 1636

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00101

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE BACON

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2015
DATE OF SENTENCE:	13 November 2015
CASE MAY BE CITED AS:	DPP v Bacon
MEDIUM NEUTRAL CITATION:	[2015] VCC 1636

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	OPP
For the Accused	Mr S. Payne	Victoria Legal Aid

Pages 1 - 25

 

 

HER HONOUR: 

1Luke Bacon, you have pleaded guilty to one charge of negligently causing serious injury to Rory Byrne; one of failing to stop and render assistance after an accident occurred; and to two related summary offences, one of exceeding the prescribed quantity of a drug within three hours of driving, that drug being cannabis, and one of exceeding the prescribed quantity of alcohol within three hours of driving, that resulting in a reading, or that being related to a blood alcohol reading of .176. 

2The events that gave rise to these charges arose in the early hours of the morning of 28 January 2014.  The previous day you had been at home drinking, it would appear throughout the day, with family and friends.  At approximately 12.30 in the morning, so by then the early hours of the morning of 28 January, you went to obtain some cannabis from somebody who appears to have been one of your regular cannabis suppliers. 

3Although it was 12.30 in the morning, your 12 year old son was still up and awake and you took him in the car with you.  You went to your dealer's home in Kitchener Crescent, Seymour, which was not far from your own home, only about two minutes' drive away from Skermer Avenue in Seymour where you when then living. 

4When you got to Mr Sharrard's house, there were a number of people present and police.  The police ultimately left and there was some form of argument or altercation between you and the people who were present at Mr Sharrard's home.  Those people included Mr Sharrard, his partner, Ms Waugh, a man by the name of Rory Byrne who was the victim of Charge 1 and a man described as Mr Byrne's brother, David Berry.  All parties appeared to have been to a greater or lesser extent argumentative and to have been drinking.  Police observations of you when you arrived at the house and before they left were that you were agitated and aggressive and needed to be calmed down.  You appeared to be affected by both drugs and alcohol. 

5After the police left, there was an argument between you and some of the people in Mr Sharrard's home and you left with your son.  You went back to your car, which was parked around the corner in Morrish Court. 

6The shortest and most direct way back to your home was to turn right out of Morrish Court in the opposite direction to the Sharrard home in Kitchener Crescent.  Instead you drove past the Sharrard home and up to Smith Street at the far end of Kitchener Crescent.  You drove in a manner that appears to be designed to attract attention.  You did not slow down as you went over the speed hump.  You did a U-turn at the intersection of Kitchener Crescent and Smith Street in a manner that caused the tyres to screech.  Whether it was an actual attempt to do a burn out or simply a too fast U-turn is hard to tell.  However it is clear that your car was not under complete control because you mounted the gutter and drove along the nature strip on the corner of Kitchener Crescent before you got back onto the road surface. 

7Again, you did not slow down when you reached the speed hump and you drove back towards the direction of Monash Drive, past the Kitchener Crescent address of Mr Sharrard and the people who had been at the home with him.  By the time you came back a number of people from that house were out in the road and Rory Byrne was crossing the road in front of your car.  Eyewitnesses described him as appearing to wave his hands in the air. 

8You struck Mr Byrne, who was in the path of your car.  You were unable to stop when he moved into your path.  He was very gravely injured as a result of being struck by your car and came to rest on the road outside 13 Kitchener Crescent, just a couple of doors away from where you had earlier been. 

9You made no attempt to slow down or to stop either before you hit Mr Byrne or after.  You continued driving along Kitchener Crescent, turned right into Monash Drive and then pulled up in front of your home address.  You went straight inside and told your partner that you had run somebody over and believed you had killed them. 

10CCTV footage was available from the area and it showed that almost simultaneously with the time that your car struck Mr Byrne, somebody else had run towards your car holding what has been described as a shiny object, that sounds from the description to be like a baseball bat, and he either struck your vehicle or had attempted to strike your vehicle. 

11There was a chaotic scene, both at Kitchener Crescent and outside your home in the immediate aftermath of this collision.  It was clear that Mr Byrne was gravely injured and the response of the bystanders and others who came by made it particularly difficult for police and paramedics to get to him to attend to him properly, to stabilise him and to take him away.  That meant it was some time, about nearly an hour and a half after the collision before the police were able to leave the scene in Kitchener Street and go to your home, where again there were a number of people outside, a clearly volatile and unruly group.  

12You surrendered yourself to the police and it was clear that you had injuries, apparently sustained between the time you had returned home and the time the police arrived and arrested you.  Immediately after your arrest that you were taken to Seymour Hospital.  Your injuries were checked, and blood samples were taken.  That resulted in the findings of cannabis and alcohol in your blood. 

13You made admissions from the very outset, by having your partner call the police when police arrived, and in at the hospital, as to your responsibility.  You said that you were the driver, that you were aware that you had struck somebody, that you had left the scene, that you had been drinking and that you had, although you said not immediately before but had been previously using cannabis. 

14In that account, along with those truthful answers, some part of your account was patently false.  You denied having done a U-turn in Smith Street.  You denied causing your tyres to screech.  You denied having parked in Morrish Court and said that you had in fact been parked in Kitchener Street facing towards Smith Street and that was why you had to head past the house where Mr Sharrard and his friends were.  You said that you had stopped immediately after the collision for a short time but then had driven off because of your fear of the group who were surrounding your car.  It is clear from the CCTV that you did not stop and it is also clear from other material that you were parked in Morrish Court and did not have to travel past the house as you said you did. 

15Mr Byrne suffered grave and life-threatening injuries.  He suffered multiple fractures to both legs, broken ribs, severe damage to many of his internal organs, fractures of his skull, a significant brain injury and a burst eyeball.  He was airlifted to the Alfred Hospital.  He remained there in intensive care for two weeks before being discharged to Epworth Rehabilitation Hospital where he remained for six months before being discharged to the Epworth Transitional Living Centre. 

16He has since then been able to go home and live with his mother and make a transition to independent living, but he will never be able to live completely independently.  He has ongoing and significant cognitive problems, and has lost the sight of his left eye. 

17The effect on him of the traumatic brain injury and the physical injuries has been profound and will be permanent.  The effect on his mental state as well as on his physical state has also been profound.  The impact of course is not confined to him.  The impact on his immediate family, particularly his mother, who has had to assume the role of primary carer, has also been significant and life-changing for her as well.  It is right to describe the consequences to Mr Byrne as devastating as well as life-changing. 

18In his victim impact statement he said, amongst other things, this:  "My whole life and body has changed completely.  I can't see properly with one eye.  I'm off balance all the time.  Worst of all what I'm told today I won't remember tomorrow."  

19When he wrote his first impact statement he was so distressed that he reported a number of times that he kept saying, "Why did I survive?"  He spoke of the frustration he had at the loss of the life he had before and seeing the impact that it had on his mother particularly.  He could not sleep.  He relives the collision, has nightmares, is scared to go out and is incredibly distressed by the different way he is treated by people as a result of his physical and cognitive disabilities.  He feels that people are not speaking to him, or the him he was any more and he is deeply distressed that he is, as he describes it "treated like a child" instead of the person he was.  Every aspect of his life, the things that he loved most, riding his bikes, feeding and playing with his dogs, taking his nieces and nephews out, seeing his grandmother, are things that he is unable to do and will continue to be unable to do. 

20By the time he wrote his second victim impact statement, shortly before the plea, he had made some progress physically, cognitively, emotionally and psychologically.  He no longer wishes or wonders why he did not die and is starting to come to terms with having to live a life very different from the one he otherwise could have looked forward to continuing to live. 

21His parents, but particularly his mother, who has assumed the role of primary carer, are also profoundly affected by this.  Life for his mother will never be the same again and the pain that any parent must feel in seeing a child, whether they are still of tender years or an adult child, rendered disabled as a result of the conduct of somebody else is a pain that screams out from the pages of Mrs Byrne's victim impact statement.  She puts in very clear and eloquent terms the grief and pain that flows not just to the primary victim but to all of those around who are profoundly and long lastingly affected.  The evidence from Rory Byrne himself from his mother and also from his father is very moving and it eloquently states just how significant the impact of this is. 

22The major offence to which you have pleaded guilty, this driving related negligently causing serious injury, for the reasons that were so clearly set out by that recitation of the injuries that I have given that Mr Byrne suffered and by what he and his mother said, particularly about the impact on each of them of this, is one which clearly requires, subject to considerations personal to any individual offender, sentencing considerations of denunciation, deterrence and just punishment to be given significant prominence. 

23Responsible driving is essential in our community and the risk of serious long lasting and permanent harm, such as that caused here is just unacceptably great, if a person gets behind the wheel of a car and drives when impaired by drugs and alcohol, drives at a speed and in the manner you did in that residential area and does so against a background of anger and hostility to people in the immediate vicinity.  It is important to point out that the same level of negligence is required to be established for this offence as is required to be established for the charge of culpable driving causing death, that is an act or omission which involves such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a risk that grievous bodily injury would follow, that the conduct merits punishment under the criminal law. 

24It is clear that the objective gravity of the offending must be assessed by reference both to the degree of the negligence and to the seriousness of the injury caused to your victim.  It is also clear that permanent brain damage of the sort suffered by Mr Byrne is at the highest end of the scale for serious injury.  As is clear and as I have already said, Mr Byrne's life has been irreversibly changed as a result of your negligent driving, negligent driving which merits punishment under the criminal law. 

25The degree of negligence is high.  Your level of intoxication was high.  You returned a blood alcohol reading of .176.  That is well over three times the legal limit.  You were a probationary licence holder.  That means you were not permitted to drive with any alcohol at all in your system.  You are a chronic cannabis user.  You told the police that, "I did not use cannabis for two days before the collision."  Whether that is a truthful account or not, I am unable to determine, but given the chronicity of your cannabis use, whether you had just recently used cannabis or you were just suffering the general diminution in capacity that a chronic cannabis user does, does not really matter.  It is clear that you were likely impaired by cannabis as well as by the alcohol and so much was acknowledged by your counsel, Mr Payne, in the course of his careful and thorough submissions on the plea. 

26In addition to the charge of negligently cause serious injury, you have pleaded guilty to failing to stop and render assistance as a result of the driving off straight after the collision and to two related summary charges of exceed the prescribed quantity of cannabis and exceed the prescribed concentration of alcohol. 

27You have a previous conviction for exceed the prescribed quantity of alcohol and a poor history of driving offences generally between 2003 and 2012.  You have not held a licence for much of that period, but it would appear that notwithstanding that you were driving and coming under the attention of the regulatory or criminal authorities for driving related offences. 

28Your 12 year old son was in the car with you.  That is a particularly grave or aggravating feature of the offending.  Not only because you took him in the car when you were impaired by drugs and alcohol, but because of the manner in which you drove.  As a result he, too, was exposed to the risk of injury and he was exposed to the traumatic scenes flowing directly from the striking of
Mr Byrne.  Surprisingly, nothing was said to me on the plea to suggest that there was any insight into the risk of harm to which your son was exposed or the actual harm to which he was exposed as a result.  Nothing was put before me to indicate whether he has suffered ongoing effects from that, or is receiving any care or attention in respect of that.  I can only hope that appropriate attention is being paid to him, to the impact on him of this and that if he needs any assistance or counselling that steps are taken to make sure he obtains it so that he does not have his teenage years further blighted.  They will already be blighted obviously by the fact that his father is to be incarcerated and by the understanding of what has happened when he was present. 

29The manner of your driving itself was nothing short of appalling.  I do not accept the account that you gave to the police that you drove past the house because your car was facing that way, or that you did a U-turn simply to avoid driving on Anzac Avenue and therefore to try to avoid the police because of your awareness of your level of impairment for alcohol and the fact that you should not have been driving and that you had breached the conditions of your probationary licence.  I am satisfied that you went out of your way to drive past the Sharrard house, that you did a U-turn or a burn out at the end of the street before driving back past the house again and did so following that angry altercation in and outside the house with the occupants. 

30In addition to that U-turn or burnout you went over the speed hump in each direction without slowing.  You were driving at an unsafe speed in that street in the circumstances given the time of night, your impairment by drugs and alcohol and the presence of people, angry people in that street.  There was no need for you to drive past that house to get home. 

31I have already mentioned the account that you gave to the police and some of which you maintained on your instructions on the plea is shown to be wrong by the CCTV or by other evidence.  You did not stop as you told the police, you were not parked in Kitchener Crescent facing the direction of Smith Street.  You could have turned right from Morrish Court in the opposite direction to the Sharrard house and gone straight home by the shortest route.  It is really appropriate, in my view, to characterise your driving on this night going up and back Kitchener Crescent as you did as "hoon" driving and provocative in the circumstances. 

32For the same reasons as I have found your degree of negligence in the driving high, your moral culpability for the offending is also high. 

33The maximum penalty for this charge of negligently causing serious injury is ten years' imprisonment.  It was increased to that level from its previous maximum of five years' imprisonment following a recommendation by the Sentencing Advisory Council as a result of an enquiry made by it.  It is clear that when the penalty was doubled parliament intended to increase the maximum sentence for this offence where serious injury is caused by culpably negligently driving to allow for sentences to place greater emphasis on the harm caused by the offence. 

34Although failing to stop and render assistance is a serious offence and usually in circumstances such as these warrants a degree of cumulation, I consider it is not appropriate, although I am imposing a sentence on your for it, to cumulate part of it with the sentence for the negligently causing serious injury.  I accept that it was a very volatile situation in Kitchener Crescent, where, because of the obvious hostility between you and the occupants of the house, by the time you left the house and the provocative nature and manner of your driving past the house, the circumstances in which Mr Byrne was struck by you, the presence of the assailant with the baseball bat, as seen on the CCTV, running at your car at the same time as Mr Byrne was struck, and the response of the people in the street to Mr Byrne's plight, made it highly unlikely that you would have been able to render any assistance to Mr Byrne. 

35It is significant that although you left, it was clear that you were not leaving him alone and without help.  It was clear that there were people there who were more likely to be able to render him assistance without risk of attack from bystanders than you.  The descriptions of the conduct of those in the street at the place when Mr Byrne was struck, even after the paramedics and police arrived, and the descriptions of the conduct of those outside your home when the police arrived and you surrendered to them and the descriptions of the injuries that you had sustained support a finding that you had a well-founded belief that you would be unlikely to be allowed to approach Mr Byrne and render assistance to him. 

36Your conduct in going straight home, only two minutes away, telling your partner what had happened and having her call the police, makes it clear that you were not fleeing in order to avoid detection.  You were not trying to avoid responsibility for what had happened.  In some ways it could be seen to be a reasonable or understandable response in the circumstances.  And, you did take steps to ensure that appropriate professional assistance was sought in a timely manner for Mr Byrne.  This contrasts with the conduct of many other people in similar cases, where they drive away clearly to avoid detection or to seek to avoid a blood alcohol or drug test. 

37The manner of your driving and your provocative conduct in driving in the way you did are matters properly to be taken into account as part of the circumstances of the major charge, that of negligently causing serious injury, and bears on the assessment of the objective gravity and your moral culpability.  To take them into account for this charge as well would risk double punishment for this charge. 

38So far as the two summary charges are concerned, although they are individual charges, I must be careful when imposing sentence for them again to avoid double punishment.  The circumstances of intoxication and impairment by cannabis are properly relied on and acknowledged to be aggravating features of the offence of negligently causing serious injury.  For these purposes I treat the two summary offences as regulatory ones and it is the conduct and exceeding the prescribed concentration of alcohol and cannabis and not the impairment or the consequences of driving so impaired which calls for punishment under the related summary charges. 

39I was referred to the report of the Sentencing Advisory Council in respect of serious driving offences and have looked at the sentencing statistics for the charge of negligently causing serious injury when it is driving related.  There are three reasons though why the sentencing statistics must be approached with care.  First, for the reasons recently restated by the High Court in R v Pham.[1]  Secondly, because there has been a relatively short time in which sentences for negligently causing serious injury have been imposed against this increased maximum term of ten years' imprisonment.  Thirdly, because no appellate consideration has been given to the impact of Boulton v The Queen[2] in the case of driving related negligently causing serious injury. 

[1] [2015] HCA 39.

[2] [2014] VSCA 342.

40No doubt, as your counsel acknowledged, you must be sentenced to a term of imprisonment.  Mr Payne's submissions centred on whether, post the guideline judgment in Boulton, a combination sentence of a term of imprisonment and a community corrections order was open.  Mr Payne submitted it was and that that was the appropriate disposition.  Ms Fallar submitted that the only sentence properly open in the circumstances of this case was one of imprisonment with a non-parole period fixed. 

41In Boulton the court said at [131] that a community correction order may be suitable, even in cases of relatively serious offences which might previously have attracted what they described as “a medium term of imprisonment”. They gave examples, including aggravated burglary, intentionally cause serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide. It is worth noting that many of these offences listed by the court in this category carry a maximum sentence of imprisonment of 25 years and homicide carries life imprisonment.

42At [131], the court went on to say: 

"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirement of proportionality, parsimony, just punishment and just punishment of affording the best prospects for rehabilitation." 

43It expanded on that in [132–135] of Boulton. 

44Mr Payne did not however submit that a community correction order alone would be appropriate.  His submissions were directed specifically to a combination sentence.  That was dealt with the by the court in Boulton at [141] and [198].

45The availability of a combination sentence challenges our notions of how to evaluate pre Boulton sentences, as it is not possible to compare a head sentence with a non-parole period with a Boulton type combination sentence of a term of immediate imprisonment followed by a properly conditioned community corrections order. 

46Whilst there may in practical terms be some force in the characterisation by Professor Freiberg that a combination sentence is akin to setting a term of imprisonment with a court fixed period for automatic release followed by a court sanctioned parole, it is dangerous in my view to compare the imprisonment part of a combination sentence with either a non-parole period or a head sentence.  It is not appropriate to consider the length of a community correction order following a term of imprisonment as akin to a parole period.  Nor is it appropriate to add the custodial part of a combination sentence to the length of the term of a post-imprisonment community corrections order so as to arrive at a notional head sentence and non-parole period. 

47Indeed at [32] of the guidelines for sentencing courts in Appendix 1 in Boulton the court said that there was no necessary correlation between the term of the community corrections order and the term of imprisonment which might otherwise have been imposed.  All that can be said is that because imprisonment is more punitive than a community correction order, where a community correction order alone is imposed, it is likely to be of longer duration than the term of imprisonment which might otherwise have been imposed. 

48For these reasons it is difficult to consider what is the appropriate sentencing range by comparing pre Boulton sentencing statistics with post Boulton sentencing statistics for negligently causing serious injury.  Similarly, one cannot get a proper sense of average or median terms of imprisonment for an offence by comparing the term of imprisonment (alone or added to the term of a community correction order) in a combination sentence with a traditional head sentence. 

49What one can conclude when looking at the sentencing statistics collected by the Sentencing Advisory Council in its report "Major driving offences current sentencing practices," published in June this year, is that in respect of sentences imposed since the maximum penalty was increased to ten years from five, but before the decision in Boulton was handed down late last year, the median sentence for a term of imprisonment was imposed for this offence was two years six months.  That was up three months from the median sentence when the maximum penalty was five years, or in the period immediately leading up to the end of that time. 

50In the driving related negligently causing serious injury cases considered by the Court of Appeal, after the penalty increase but before Boulton, or in cases where no submission for a community corrections order alone or in combination was made, head sentences of four years' imprisonment were described as "stern" but not outside range.  Sentences of five years or more were reduced as being outside current sentencing practices.  This is clear from the analysis of such sentences in the case to which I was referred of Gorladenchearau v The Queen[3] and Simpson v The Queen.[4] 

[3] [2011] VSCA 432.

[4] [2015] VSCA 210.

51The question for me is where the objective seriousness of the offending and the moral culpability is high, as it is here, is it open, having regard to the principles that I have outlined from Boulton, Gorladenchearau and Simpson, the Sentencing Advisory Council report and taking into account the matters personal to you, appropriate as well as open to impose a combination sentence. 

52There are a number of mitigating factors relied on in your favour.  You are, I accept, genuinely remorseful for the harm that you have caused Mr Byrne and have been genuinely concerned for him.  I accept that you are stricken by the awareness of the harm that he has suffered since that night.  Your guilty pleas, although not at the earliest opportunity and not entered until after a contested committal, I accept are an indication of your remorse and the acceptance of your legal and moral responsibility for the harm that you have caused Mr Byrne.  They must be given weight for that as well as the utilitarian value.

53You have been diagnosed as meeting the criteria for a provisional diagnosis of a major depressive disorder, singular episode of moderate severity with anxious distress and post-traumatic stress disorder delayed expression, both arising directly out of the consequences of this collision and your realisation of the severity of the harm suffered by Mr Byrne and your acceptance of responsibility for that.

54You are 32 and you have been in a relationship with your partner, Amy Seddon, for 14 years.  You have two children and a third on the way.  Although your most recent court appearance before this included a charge of breach of a family violence intervention order concerning or in favour of and designed to protect Ms Seddon as well as charges of threat to kill and assault which apparently related to your conduct towards police when called in respect of the intervention order breach were of sufficient gravity to warrant a term of imprisonment.  It is clear that the relationship with Ms Seddon continues.  She is, as I have noted, pregnant with your third child.  I am told she remains supportive of you and she has been at court on each occasion to support you today with each of your children.

55Any assessment of your role as a parent and your responsibility must of course be tempered by the circumstances in which your 12 year old son came to be in the car with you, impaired as you were by drugs and alcohol at 12.30 in the morning as you went to your marijuana dealer's house to buy cannabis from him.  That you took him into the house and then drove in the manner you did on leaving with that child beside you must be seen as matters of concern to your capacity to properly discharge your parenting responsibilities.  I have no doubt that you have a great love for your children but your capacity to make sure you treat them properly and act responsibly towards them is something that does give me some concern having regard to that. 

56The threat to your safety demonstrated by the conduct of a group outside your house that night led you to relocate from Seymour with your family.  You live in fear of retaliation against you and them.  Whether that fear is well founded or not, I cannot assess.  Whilst you will be punished by the court by today's sentence and will have to live for the rest of your life with the realisation of what you have done, I want to make it very clear that it is no part of a civilised society for individuals or groups to take it upon themselves to engage in acts of retaliation. 

57I also want to make it very clear that today's sentence is a punishment for your criminal acts.  The sentencing process does not and cannot equate the harm done to Mr Byrne with the length of the sentence to be imposed upon you.  No sentence can turn back the clock.  No sentence can restore Mr Byrne to the state he was in before he was struck and no sentence can ever compensate him for the harm that has been done to him and to his family.  So it is very clear that the terms and conditions of the sentence to be imposed today are not to be and cannot be taken as a measure, however crude, of the value of his life or what has been taken from him. 

58You have assumed the role of carer for your father.  His long history of alcohol abuse has led him at only 62 years of age to be in very poor health.  He is wheelchair bound and dependent on others for assistance with activities of daily life.  Your assumption of the role of carer for him is of note as your childhood was blighted by his alcohol fuelled violence, both before and after the break-up of his relationship with his mother when you were only eight.  You eventually lived with him for the most of your childhood except when he was incarcerated for periods himself for alcohol related driving offences.

59The symptoms which have led the psychologist, Ms McCallum, to make the provisional diagnoses to which I have referred of major depressive episode and post-traumatic stress disorder, I accept will make imprisonment more onerous for you than for someone not so affected.  I accept that that enlivens limbs two and five of R v Verdins[5] and therefore I will moderate the sentence, by reducing the weight otherwise to be given to those factors.

[5] (2007) 16 VR 269.

60You have recently engaged with Ms McCallum, the psychologist and a counsellor through the GP Better Mental Health Program and you are taking prescribed medication for depression and anxiety.  This indicates a preparedness to engage in treatment for your psychological condition.  You have also been diagnosed by her and by the psychologist, Mr Simmons, who assessed you for the purposes of the plea, as suffering substance abuse disorder.  You have abused various substances since childhood, starting with sniffing substances, moving on to cannabis and other drugs and alcohol.  Your most persistent drugs of abuse have been cannabis and alcohol. 

61Despite a period of abstinence following your 2012 sentence of imprisonment, you have returned to alcohol and cannabis use.  Despite their role in this collision, you have not shown any signs, it seems, of preparedness to address your substance abuse.  Indeed, as Mr Simmons noted, your capacity to perform the tests he administered to you was impaired by the amount of alcohol you had consumed the night before attending on him.

62Your exposure to substance abuse and the absence of responsible parenting throughout your childhood prepared you poorly for life.  Your education was intermittent.  Your behaviour at school was so disruptive that you were expelled from those schools that you did attend for extended periods or at least for long enough for the school authorities to decide they needed to deal with you.  You have a limited work history, although you did, I am told, hold down employment for three years as a leather grader in the period up to your imprisonment in 2012. 

63It is difficult to assess your level of intelligence.  Your impoverished education and your history of substance abuse since childhood equip you poorly for undertaking many of the standard intelligence tests.  Mr Simmonds, when assessing you for the purposes of the plea, said that after some limited testing your verbal skills were below average and your non-verbal and total scores would place you in the intellectually disabled category.  He qualified this by noting your high levels of anxiety when tested, on presentation generally and the effects of your intoxication from the previous night.  He concluded that even allowing for those interferences your intelligence was likely to be below average. 

64By contrast, Ms McCallum, the psychologist who has seen you on four occasions for counselling considered, although without specific testing having been undertaken, that you appeared to be of average intelligence.  It may well be that her assessment, based on the level of engagement in counselling over her four sessions is more likely to be correct than that one off forensic assessment conducted under those adverse conditions. 

65Although you reported a period of abstinence from alcohol following your imprisonment in 2012, it is clear that both alcohol and cannabis are significant problems for you and negatively impact upon your prospects for rehabilitation.  I agree with the prosecution assessment that they are guarded. 

66I have ultimately, after much reflection, come to the view that a combination sentence is open to me and is the one that is most appropriate to address the complex and often conflicting sentencing principles that apply in this case.  Ultimately I have decided that the community correction order component of the sentence with conditions of drug and alcohol assessment and treatment, continued psychiatric and psychological assessment and treatment, unpaid community work and supervision can properly be engaged here for both punitive purposes and to encourage and support your prospects for rehabilitation.  That means there is punishment both in the term of imprisonment and in the community correction order. 

67In addition, I consider that the means to monitor your substance abuse and the means to direct your participation in drug and alcohol rehabilitation can be better achieved through a community correction order and therefore that the needs of protection of the community from the risk of your continuing to drive when impaired by drugs or alcohol are better served by having those conditions upon a community correction order rather than allowing them to be part of a condition of parole if granted.  Such conditions may also encourage a more meaningful participation in paid work if you begin to live your life unimpaired by drugs and alcohol.

68I propose to impose a term of imprisonment close to the maximum that I can impose when imposing a combination sentence but I do not propose to fix a non-parole period.  My intention is to impose a sentence close to that maximum of two years and then to impose a community correction order which will run for a considerably longer period than the term of imprisonment.  In total, the term of imprisonment and the term of the community correction order will well exceed what on the sentencing statistics would be the upper range under current sentencing practices of a total effective sentence with a non-parole period fixed.

69Could you now please stand.  Luke Bacon, on the four charges to which you have pleaded guilty, you are convicted.  On Charge 1 of negligently causing serious injury, you are sentenced to be imprisoned for a period of 23 months and to a community correction order on the terms that I will shortly announce.  On Charge 2 of failing to stop and render assistance after an accident you are sentenced to be imprisoned for a period of six months. 

70On summary Charge 8 of driving under the influence or in excess of a prescribed content of a drug, namely cannabis, you are fined the amount of $500 and on summary Charge 10 of exceed the prescribed content of alcohol, you are sentenced to be imprisoned for a period of two months.  That makes a total effective sentence of 23 months and I declare that you have spent a period of seven days in pre-sentence detention which is to be counted and reckoned as part of that sentence.

71The community correction order to be imposed in addition to the term of imprisonment on Charge 1 is to run for a period of four years, commencing upon your release from imprisonment.  It is in these terms.  You must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend for any of your service or attendances under the community correction order and you must submit to drug and alcohol testing if directed.

72You must report to and receive visits from the Secretary or delegate.  You must report to the community corrections centre at Sunshine Community Correctional Service, 10 Foundry Road, Sunshine, within two clear working days of the order starting.  That is, within two clear days of your release.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate. 

73In addition to the core conditions, the following special conditions are imposed. First you must perform 300 hours of unpaid community work over a period of four years as directed by the regional manager. If you fail to comply with this condition the Secretary of the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act1991. 

74You must be under the supervision of a community corrections officer for the full period of the order, that is, four years.  You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo mental health assessment and treatment and that may include psychological, neuropsychological or psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.  Do you understand the effect and conditions of this community correction order?

75OFFENDER:  Yes.

76HER HONOUR:  And do you consent to it being made?

77OFFENDER:  Yes.

78HER HONOUR: All right. In addition, all licences held by you are cancelled. Under Charge 10, the charge of exceed the prescribed content of alcohol, all licences held by you are cancelled and you are disqualified from obtaining a further licence for a period of 34 months, that period of disqualification commencing on 15 May 2014. In addition, so far as Charge 1 is concerned, under s89 of the Sentencing Act 1991, all licences held by you are cancelled and you are disqualified from obtaining licence for a period of two years, dating from the time of your release. 

79On Charge 10, summary Charge 10, the exceed prescribed quantity of alcohol, an alcohol interlock - a mandatory alcohol interlock condition is required and that runs for a period of four years from today, as I understand it. 

80I make the forfeiture and disposal orders in the terms that are of those orders and I direct, pursuant to s.464ZF of the Crimes Act 1958, that you provide a forensic sample.  That is the taking of a sample, not retention, is it not?

81MS FALLAR:  Yes.

82HER HONOUR:  Yes.  I must warn you in respect of that sample, Mr Bacon, that is for the taking of a scraping of the mouth or what is known as a buccal sample.  If you do not cooperate in the provision of that buccal sample then the police are authorised to use reasonable force to obtain that sample and may well use the more invasive means of obtaining that, namely the taking of a blood sample.  Do you understand that?

83OFFENDER:  Yes.

84HER HONOUR:  I declare pursuant to s.6AAA of the Sentencing Ac 1991t that but for your pleas of guilty I would have imposed a total effective sentence of five years' imprisonment and fixed a non-parole period of three years. 

85Now, before I ask Mr Payne to take the community correction order down to you and have you sign that, can I just ask counsel whether the orders that I have pronounced reflect what I said I intended to do, whether the arithmetic is correct and whether there are any further orders that are required to be made.

86MS FALLAR:  Will Your Honour just give me a moment?

87HER HONOUR:  Yes. 

88MS FALLAR:  Wish to confirm my notes, Charge 1, negligently cause serious injury, that is 23 months base sentence.  Charge 2, that is six months wholly concurrent.  Summary Charge 8 with conviction fined 500 and summary Charge 10, two months wholly concurrent, hence no order in cumulation such total effective sentence of 23 months' imprisonment.

89HER HONOUR:  Yes. 

90MS FALLAR:  In relation to Charge 1, 89A was imposed by Your Honour and it appears to have already complied with - sorry ‑ ‑ ‑

91HER HONOUR:  Two years commencing on the date of release.

92MS FALLAR:  Correct. 

93HER HONOUR:  And Charge 10, 34 months commencing on 15 May.

94MS FALLAR:  And alcohol from today.

95HER HONOUR: Now, my associate has just pointed something out to me in respect to the alcohol interlock device. Can you just show me that? The - do I make the alcohol interlock order is something that the Magistrates' Court must make upon any application for renewal of licence, that appears to be what is required under the provisions of s 50AAA of the Road Safety Act 1986. 

96MS FALLAR:  Can I get that section again, please?  Section?

97HER HONOUR:  I will have my associate show you what she has already printed out.

98MS FALLAR:  Thank you. 

99HER HONOUR:  I have never been asked to make such an order before so I would not be at all surprised if it is indeed something that does not operate until the person applies for a licence.  It applies from the date of the new licence.  Agree with that?

100MR PAYNE:  I do, Your Honour.  I ‑ ‑ ‑

101HER HONOUR:  Good.  Yes, so I do not make the alcohol ‑ ‑ ‑

102MR PAYNE:  No.

103HER HONOUR:  ‑ ‑ ‑ interlock order.

104MR PAYNE:  Brings back distance memories.

105HER HONOUR:  But Mr Bacon needs to be advised that not only are these periods of disqualification - no, please do not remove him yet.  He needs to understand that he does not get his licence back automatically ‑ ‑ ‑

106MR PAYNE:  He has to apply.

107HER HONOUR:  ‑ ‑ ‑ after the expiration of the period of disqualification.  He must apply to the Magistrates' Court and the Magistrates' Court must impose a four year alcohol interlock condition as a condition of getting his licence back.

108MR PAYNE:  Yes, Your Honour.

109HER HONOUR:  Right, all right.  Thank you.  In that case can you check the CCO, Mr Payne, and take it down ‑ ‑ ‑

110MR PAYNE:  Yes, Your Honour.  Thank you.

111HER HONOUR:  ‑ ‑ ‑ have Mr Bacon sign it.

112MR PAYNE:  You can - may I approach, Your Honour?

113HER HONOUR:  Yes, please. 

114MR PAYNE:  Just having a mental block, Your Honour.  Does Your Honour sign first or does Mr Bacon?

115HER HONOUR:  Mr Bacon.

116MR PAYNE:  Thank you. 

117HER HONOUR:  Ms Fallar, your original prosecution summary said there was a disposal order as well.  I have only got a forfeiture. 

118MR PAYNE:  Yes.  Thank you, Your Honour.

119MS FALLAR:  My understanding is once it is forfeited which Your Honour has already granted, it will then subsequently be destroyed.  So there is no separate ‑ ‑ ‑

120HER HONOUR:  No separate disposal order.  All right.  Then I retract the announcement that I was making the disposal orders sought because there is not one sought. 

121MS FALLAR:  Thank you for directing our attention in relation to the alcohol interlock.  

122HER HONOUR:  All right.  So all of it is correct?

123MR PAYNE:  Yes, Your Honour.

124HER HONOUR:  No further orders required to be made?

125MR PAYNE:  No, Your Honour.  Thank you.

126HER HONOUR:  All right.  Thank you.  Could you remove, Mr Bacon, now, please?  Thank you and I will just stand down briefly.

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