Director of Public Prosecutions v Bannon
[2019] VCC 1029
•8 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-00994
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY BANNON |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May & 25 June 2019 |
| DATE OF SENTENCE: | 8 July 2019 |
| CASE MAY BE CITED AS: | DPP v BANNON |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1029 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Dangerous driving causing serious injury
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:10 months” imprisonment plus 2-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr A. Sharp | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1Zachary Bannon, you have pleaded guilty to one charge of dangerous driving causing serious injury. This offence carries a maximum penalty of five years’ imprisonment.
2You were born on 22 May 1991 and are now 28 years old. You were aged 25 at the time of the offending in January 2017.
3You have a criminal record to which I will refer shortly.
4By way of background to this matter, at the time of your offending you were in a relationship with the victim, Ms Breeanna Barker-Davies.
5Also at the time of offending, you were the holder of a probationary driver’s licence that mandated a zero blood alcohol content.
6The circumstances of the offending are as follows.
7On the evening of Friday 20 January 2017, you and Ms Barker-Davies had been out drinking with friends in Elmore from approximately 8 pm. You both continued drinking until you left at approximately 11.30 pm to drive to your parents’ property in Kamarooka. Both you and Ms Barker-Davies had consumed approximately 12 to 13 standard drinks each during the night.
8You and Ms Barker-Davies drove in your vehicle (a white Ford Sedan) with you, Mr Bannon, as the driver.
9You and Ms Barker-Davis arrived at your parents’ property at around midnight on Saturday 21 January 2017. You drove the vehicle up the approximately 50m-long driveway and parked it outside the house.
10You and Ms Barker-Davies had been arguing on the drive home in respect to Ms Barker-Davies’ perceived interactions with another male earlier in the night. Upon arrival at the property, you entered the house and continued arguing.
11You ultimately told Ms Barker-Davies to “Fuck off and go to sleep in the car”. She then left the house and went to her vehicle which was parked outside the boundary fence of the property about 50 metres from the house and your vehicle. Ms Barker-Davies fell asleep in her vehicle for approximately thirty minutes.
12Upon waking, Ms Barker-Davies noticed you walking to your vehicle from the direction of the house. As she exited her vehicle, you were entering yours.
13Ms Barker-Davies started walking towards your vehicle from the rear. You were already in your vehicle when she started walking. She was walking in line with the passenger side of the vehicle and was waving her arms hoping to get your attention. She was wearing a black singlet and light blue shorts.
14You began reversing your vehicle and struck Ms Barker-Davies with your vehicle, knocking her to the ground where she ended up in a sitting position. Ms Barker-Davies tried moving off the driveway, however, could only get as far as the rear left wheel. She was sitting on the driveway.
15You then drove the vehicle forward and stopped. Ms Barker-Davies could see your rear-view mirror. You did not get out of the vehicle.
16You then reversed the vehicle again. This time the vehicle ran over Ms Barker-Davies. The rear left wheel of your vehicle drove up between her legs and onto her stomach while continuing to spin. Ms Barker-Davies screamed. You again drove the vehicle forward and exited, running into the house to notify your parents of what had occurred.
17You ran back and asked Ms Barker-Davies “What did you do that for?”. You wanted to drive her to the hospital.
18Emergency services and police eventually attended.
19At approximately 1.10 am, police observed Ms Barker-Davies lying on the driveway approximately five metres behind your vehicle. She was being treated by ambulance members and crying in agony. You were also comforting her, as was your mother and your step-father.
20You underwent a preliminary breath test which indicated the presence of alcohol on your breath. You were conveyed to the Bendigo police station where, at 2.39 am, a breath sample recorded a reading of 0.066.
21You were interviewed by police on Saturday 21 January 2017. You stated that you and Ms Barker-Davies had been out drinking and were arguing during the drive home. You stated that the arguing continued in the house before Ms Barker-Davies left and locked herself in her vehicle.
22You stated that you approached her vehicle and knocked on the window, however, Ms Barker-Davies told you to leave her alone. You then walked up the driveway to your vehicle and entered it to leave the scene. While reversing you heard her scream, at which point you drove the vehicle forward, exited to check on her and then ran inside to alert your parents. You stated that you thought Ms Barker-Davies was still in her vehicle when you began reversing and did not realise she was behind you until you heard her scream.
23During this interview you made admissions to driving after having consumed alcohol and further said that:
· your view looking behind you while reversing was “as clear as it could have been at the time, like, with the alcohol impairing [your] vision”;
· “with the amount of alcohol [you] had in [you]” you would not have seen Ms Barker-Davies if she was lying on the road and behind your vehicle; and
· you “very much” doubted you would have even been able to see her if she was “standing up”.
24You re-attended the Bendigo Police Station on Thursday 26 January 2017 and were again interviewed by police. You again stated that you failed to see
Ms Barker-Davies when you were reversing, and otherwise largely repeated your account of the incident from the earlier interview. You also stated that the vehicle radio was playing when you were reversing.25During this interview, you also stated that as soon as you realised that it was “something serious” you ran up the driveway and called the ambulance. You then stated that you went and woke up your parents to “let them know”.
26You further stated that at the time of the incident, you were “pretty pissed” and “fairly intoxicated”.
27As a result of the alleged offending, Ms Barker-Davies suffered the following injuries:
a.A rupture of the bladder
b.A right-sided rib fracture
c.Right superior and inferior pubic rami fracture
d.Left acetabular fracture
e.Lacerations (including split skin graft) and bruising to her right leg and thigh
f.Swollen left ankle that resulted in her walking with difficulty and using a crutch for long distances, as well as undertaking ongoing physiotherapy.
28I now turn to your personal circumstances.
29As I noted earlier, you are now 28 years old and you were 25 at the time of the offending.
30You do have a criminal record, which comprises an adjourned undertaking for wilfully damage property in 2015 and convictions on 26 May 2016 for unlawful assault and behaving in an offensive manner in a public place. On that last occasion you were sentenced to imprisonment for a period of 48 days, together with a twelve-month community correction order, which I note included a condition that you be assessed for treatment for alcohol abuse or dependency.
31The current offending breaches that community correction order.
32You are one of seven children and were raised by your mother. Your parents separated when you were four or five years old and your father had little input during your upbringing. Your mother re-partnered when you were 11. You met your father again on one occasion when you were 21, but have had nothing further to do with him. You currently live with your mother and step-father and you remain close with your siblings.
33You had attention problems at school. You were bullied and engaged in bullying yourself. You were often suspended. You completed Year 10 and left part-way through Year 11.
34You have had several long term relationships, including one with the victim in this matter. You and the victim stayed in a relationship for a short period after the incident, but you are no longer together.
35You currently have employment as a labourer. In the past you have undertaken an apprenticeship as a painter and have worked on a camel farm.
36The most salient feature of your personal circumstances concerns your mental health.
37There is a family history of mental illness including schizophrenia and autism. Your mental health history dates back to your childhood and adolescence. Records indicate that you were diagnosed with hyperkinetic disorder in 2001 - this is now referred to as attention deficit hyperactive disorder, or ADHD. There is also a noted suicide attempt by you at age 15.
38You were likely medicated on both Ritalin and Dexamphetamine during adolescence, though medication ceased at age 16 because of perceived adverse effects.
39You have had three inpatient psychiatric admissions as an adult, with one in 2016 prior to the current offending and two in 2017 subsequent to this offending.
40You were admitted into care in April 2016 after two suicide attempts: one by carbon monoxide poisoning and the other by attempted hanging. You were diagnosed as suffering an Adjustment Disorder. The offences for which you were sentenced in May 2016 were committed shortly after that admission into care.
41Your first psychiatric admission in 2017 was in the Adult Acute Inpatient Unit at Bendigo Health from 29 March to 7 April. Upon release you were admitted for post-acute care, but were discharged as a result of an overdose of Prazosin. You will return to the Acute Unit until your discharge on 22 April when you had failed to return after a period of leave.
42Your list of diagnoses from Bendigo Health includes:
a) mental health and behavioural disorders due to harmful alcohol use, multiple drug use and use of other psychoactive substances
b) depressive conduct disorder
c) Major Depressive Episode
d) suicidal ideation
e) adjustment disorder
f) disturbance of activity and attention
g) conduct disorder.
43A report from consultant psychologist Carla Ferrari was tendered on your plea. Ms Ferrari assessed your mental state in interview and conducted a series of psychometric tests.
44Ms Ferrari”s assessment may be summarised as follows:
· you present with a chronic history of clinically significant symptoms of major depression;
· since the current offending you have experienced heightened symptoms of depression and anxiety, as well as persistent symptoms indicative of post-traumatic stress;
· you have a historic diagnosis of ADHD comorbid with depression, anxiety and alcohol/substance use disorders;
· at the time of the offending you were experiencing depressive symptoms, including persistent low mood and suicidal ideation;
· your mental health problems are highly treatable and you are willing and motivated for treatment.
45Your driving was patently dangerous in the circumstances of reversing your vehicle in the dark whilst affected by alcohol without being precisely aware of where Ms Barker-Davies was. You believed that she was still in her car. I accept Ms Barker-Davies’ evidence that having initially struck her, you stopped, drove your vehicle forward, stopped and did not get out of your vehicle. You then reversed, not investigating what it was that you had struck, and ran over Ms Barker-Davies.
46Because of the ingestion of alcohol, your driving was likely compromised by an inability to exercise appropriate judgment and increased risk of disinhibited impulsive behaviour and poor consideration of possible consequences.
47Your culpability is aggravated by the fact that at the time of the offending, you were the holder of a probationary driver’s licence that mandated a zero blood alcohol content and, as I have indicated, also the fact that you were subject to the terms of a community correction order at that time.
48A victim impact statement from Ms Baker-Davies has been tendered. In her statement, Ms Barker-Davies has articulated the suffering she has endured as a result of your act. It was a frightful situation and she thought she was going to die. She was hospitalised and underwent five separate operations which included skin grafts. She has enduring pain and internal organ dysfunction. Further operations will be necessary and the ultimate prognosis is uncertain. The experience has also affected her emotionally with increased depression and anxiety. She has been both physically and emotionally scarred.
49I accept, however, that your history of mental illness and particular mental health at the time of the offending is partly causally related to the offending. Your mental illness, particular Major Depression, has extended over many years from at least adolescence and clearly pre-dates the current offending. Your full culpability for the offending, however, includes the context that you have apparently self-medicated in the past by recourse at least to alcohol, and probably other illicit substances, and did so on this occasion. I am not suggesting that you were under the effects of any illicit drug substances on that particular occasion, but clearly, at least to alcohol. This also would have compromised your ability to display appropriate judgment and increased your risk of disinhibited impulsive behaviour and poor consideration of consequences.
50In these circumstances, whilst I accept that your mental health illnesses may be taken into account as a contributing causal factor for your offending, it is not the only factor because of your self-intoxication which reduces the weight that I have applied to moderation to your moral culpability.
51I do accept that your mental health will mean that a sentence of imprisonment will weigh more heavily on you as compared with a person in normal health and may trigger further deterioration in your mental state.
52In mitigation, I take into account the submissions of your counsel and in particular:
· your plea of guilty, both for its practical effect and as an expression of remorse - you made significant concessions as to your conduct which facilitated the plea of guilty to this offence, and I also accept that you have expressed specific and genuinely-felt remorse for the impact your offending has had on the victim and have accepted responsibilities for your actions;
· the admissions you made in your police interviews;
· your mental health issues and longterm reactive resort to alcohol and other substance use activity;
· your capacity for rehabilitation which I regard as moderately optimistic - I suspect that it will depend upon how conscientiously you apply yourself to psychological and psychiatric care.
53You have been assessed by Corrections Victoria as suitable for a community correction order and I intend to sentence you to such an order as part of a combined sentence.
54Mr Bannon, could you please now stand.
55On Charge 1 you are convicted and sentenced to ten months’ imprisonment.
56The sentence starts today.
57On Charge 1 you are further ordered, with conviction, to serve a community correction order for a period of two years.
58The community correction order commences upon the completion of your imprisonment term and ends two years thereafter.
59The Corrections Centre you will attend is the Bendigo Community Correctional Services at 3 William Vahland Place, Bendigo, and you must attend there within two clear working days after the completion of your imprisonment term.
60All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 150 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric, in a hospital or a residential facility as directed by the regional manager;
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager; and
· you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, educational, cultural and personal development programs as directed by the regional manager.
61Now I realise you have already had the mandatory terms of the community correction order explained to you, but I must go over them now with you.
62The mandatory terms are that:
· 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 the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug or alcohol affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is the Bendigo Centre, within two clear working days of the order starting, and as I have already indicated, that means on the completion of your imprisonment term;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
· you must obey all lawful instructions and directions of Community Corrections officers - such directions maybe given either orally or in writing.
63Do you understand and agree to those conditions, Mr Bannon?
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: If you get sick or exceptional circumstances arise, the order may be suspended for a period of time and if your circumstances alter materially, you may apply for a variation or cancellation of the order. In either case you must notify the Bendigo Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
66However, I must warn you that if you breach any condition of this order you will be brought back to court and you will be brought back before me. One of the options open for me then is to cancel the community correction order and resentence you on the original charge, and I may also deal with you for the breach itself by sending you to prison for up to three months.
67So Mr Bannon, do you understand the consequences of breaching your community correction order?
68OFFENDER: Yes I do.
69HIS HONOUR: I will ask you to sign the community correction order shortly.
70Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is three years imprisonment with a minimum period of two years to be served before eligibility for parole.
71I note that under s.87P of the Sentencing Act this is a serious motor vehicle offence and this has enlivened s.89 of that Act.
72Pursuant to those sections I further order that any driver’s licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of eighteen months, effective from today.
73At the plea hearing the Crown sought a forensic order which you opposed. I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order and the granting of the order is in the public interest.
74Now I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. Do you understand that Mr Bannon?
75OFFENDER: Define reasonable. Sorry.
76HIS HONOUR: I think that is pretty straightforward, Mr Bannon. The sample to be taken will be a blood sample and the police may use reasonable force to enable that procedure to be conducted. Now they will make that determination. If there is an issue with that, that could be determined in another place. But they may use reasonable force to conduct that procedure. Do you understand that?
77OFFENDER: Yep.
78HIS HONOUR: All right, you can take a seat for the moment. Are there any other matters from either counsel?
79MS MILLAR: No, Your Honour.
80MR SHARP: No, Your Honour.
81HIS HONOUR: Ms Millar, it would seem appropriate that on the order there be custody management issues noted as mental health issues.
82MS MILLAR: Yes thank you, Your Honour.
83HIS HONOUR: Are you aware whether or not Mr Bannon is currently taking any medication?
84MS MILLAR: He is not taking any medication.
85HIS HONOUR: All right, thank you. If you could just wait after I leave the bench, so that the other formalities can be completed through my associate. Thank you.
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