Director of Public Prosecutions v Barbara

[2020] VCC 1159

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00656

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARLYLE BARBARA

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 29 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v BARBARA
MEDIUM NEUTRAL CITATION:	[2020] VCC 1159

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Negligently causing serious injury – Drive whilst suspended – Motor vehicle collision – High speed – Driving whilst under influence of methylamphetamine – Serious example of offence – Relevant criminal history – Specific deterrence – Community protection – High moral culpability – Hardship of imprisonment 
Legislation Cited: Crimes Act 1958, Road Safety Act 1986,
Cases Cited: Harrison v The Queen; Rigogiannis v The Queen [2015] VSCA 349
Sentence: Total effective sentence of 7 years and 6 months with a non-parole period of 4 years and 9 months – s.6AAA declaration – 9 years and 6 months with a non-parole period of 6 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Gurry	The Office of Public Prosecutions
For the Accused	Ms J. Poole	Wilkinson Lawyers

HIS HONOUR:

1Carlyle Barbara, you have pleaded guilty to two charges of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment. You have also pleaded guilty to the related summary offence of driving whilst suspended, contrary to s.30AA of the Road Safety Act 1986. The maximum penalty for that offence is a fine of 10 penalty units.

2You pleaded guilty at committal proceedings on 4 April 2019 and I accept that your plea is evidence of remorse for your offending and that it has spared the community and witnesses the burden of what would have been a complex criminal trial.  I have taken your early plea into account in your favour in mitigation of sentence.

3You have admitted an extensive criminal history for a range of offences dating to 1981.  You have previously been convicted of dishonesty, drug related and weapons offences.  Of particular significance in this case, is your conviction, following a plea of guilty in the County Court at Melbourne on 11 February 2015, for one charge of driving in a manner dangerous causing death.  On that occasion, you were sentenced to ten months imprisonment, with a Community Correction Order for two years, upon completion of the term of imprisonment.  You were serving that order at the time of these offences.  Your counsel informed me that at the time of your plea of guilty, you were standing trial for culpable driving and the matter resolved during the trial.

4I have read Her Honour Judge Hannan's reasons for sentence that reveal that on 20 May 2012, you were involved in a head on collision while driving your vehicle.  The driver of the oncoming vehicle was killed.  At the time, you were exceeding the speed limit and following analysis of your blood, found to have .02 milligrams of methylamphetamine in your bloodstream.  The deceased who was not wearing a seatbelt, was found to have a blood alcohol content of .21 per cent.  Your young child was with you as a passenger in your vehicle.  Plainly the fact that you had been imprisoned in the past for this serious offence, is as I have said, significant in this case.  You must have well known after this fatal collision, the deleterious effects of illicit drugs on your capacity to properly drive a motor vehicle.

5You have also admitted numerous other convictions for other driving offences, including multiple convictions for driving whilst disqualified.  On the occasion of these offences, you were driving whilst suspended, following the issuing of traffic infringement notices for exceeding the speed limit.  Your criminal history, and in particular, your appalling history in relation to driving offences, indicates that specific deterrence and the protection of the community are prominent sentencing considerations in this case.  It is rarely appropriate to employ colloquialism in sentencing remarks, but it must be said, you are a menace to other road users. 

6An agreed Prosecution Opening was tendered in evidence and your offending may be summarised as follows –

7On Wednesday 18 October 2017, roadworks were being carried out on the outbound lanes of the Westgate Freeway, between Williamstown Road and Millers Road in Altona.  The speed limit had been reduced from 100 kilometres an hour to 40 kilometres an hour and the far left lane was closed.  Electronic signs, flashing arrow boards and bollards were in place.  At approximately 9.30 pm, one of the victims of your offending,
Phillip Smith, was driving his vehicle in the area and as it had overheated, he had stopped in the emergency stopping lane. 

8The traffic had banked up and was moving slowly, due to the roadworks.  By chance, a friend of Mr Smith's, Modesto Calandrelli, was passing in his vehicle and he recognised Mr Smith's distinctive Ford Mustang.  So he stopped to see if he could be of assistance.  Both men were standing in the emergency lane adjacent to their vehicles talking.  You were driving a Mercedes Benz that you had recently purchased and as you approached the banked up traffic, you sought to overtake the cars ahead of you, in the inside left lane, which was in fact closed.

9You then drove into the emergency lane and struck Mr Smith's vehicle, forcing it into Mr Calandrelli's vehicle and into both men.  Analysis at the crash scene revealed that you were travelling at 104.7 kilometres per hour, at the time you collided with the Mustang.  The blood sample taken from you revealed that you had .18 milligrams per litre of methylamphetamine in your bloodstream, two hours and forty minutes after the collision.  This rendered you incapable of having proper control of a motor vehicle, at the time of the collision. 

10Mr Smith and Mr Calandrelli both suffered catastrophic injuries.  As a result of your criminal conduct, Mr Smith suffered numerous internal injuries and orthopaedic injuries.  He underwent fifteen rounds of surgery, spent five days in ICU and a total of 97 days in hospital.  His quality of life has been dramatically impaired by his injuries and I have received in evidence, a victim impact statement that graphically details the devastated trauma he has suffered.  Mr Calandrelli also suffered catastrophic head and leg injuries, requiring extensive surgery and hospitalisation.  His rehabilitation has also been devastating for him and I have received in evidence a victim impact statement detailing the profound consequences that your offending has had on his quality of life.

11It is plain that your offending is of the utmost seriousness and these are serious examples of the serious offence that you have pleaded guilty to.  Suspended from driving and whilst on a Community Correction Order for driving in a manner dangerous causing death, you again drove recklessly and at high speed, whilst intoxicated on methylamphetamine.  Your appalling crimes have devastated the lives of your victims. 

12During the course of the plea in mitigation, you sought to reduce your moral culpability by contending that you had consumed the methylamphetamine after the collision.  This submission was subsequently withdrawn by your counsel and for reasons that I stated during the plea hearing itself I have not attached any weight to this matter in arriving at an appropriate proportionate sentence in your case.  Nevertheless, I am satisfied that your moral culpability for your offending is high and you must be punished for your blatant disregard for the safety of other road users.

13The sentence that I impose must also send an unequivocal message to the community that offending of this nature will be met with the imposition of a significant term of imprisonment upon conviction.  The community must be protected of crimes of this nature and the devastating consequences of them.

14This matter has taken almost three years to be resolved and I accept that by reason of the delay, you have had to bear the strain of the criminal process.  It took one year for you to be charged with these offences, but thereafter, much of the delay can be attributed to you.

15You have frequently applied to adjourn the matter for reasons related to your legal representation and the funding of it.  Ultimately, your counsel appeared pro bono and the court is indebted to her for her assistance in this matter.  There are outstanding summary offences in your case and on 3 December 2019, you were placed on the CISP Program by the Melbourne Magistrates' Court. Accordingly, it cannot be said that you have not reoffended during the period of the delay.

16I now turn to your personal circumstances. 

17You were born in Malta on
1 December 1961, and are now aged 58.  You migrated to Australia with your family when you were two years old, but have not become an Australian citizen.  You hold a Maltese passport and permanent Australian residency.  I accept that you are therefore at risk of deportation upon completion of your sentence, and your concern in relation to this and the uncertainty regarding it, will compound the hardship of imprisonment upon you. 

18You have one brother.  Your father is deceased and you have the support of your mother who provided a detailed and impressive reference to the court, on your behalf.  You were educated to Year 11 level and after leaving the school, were employed in the entertainment industry and in the motor vehicle industry.

19At the time of your offending, you were employed by William Mary Transport, as a truck driver and logistics manager, before being injured in a serious workplace accident on 18 June 2018.

20On that day, you were loading a truck with large tyres, when one of them became dislodged and fell onto you, causing multiple fractures to your right ankle, right leg and left leg.  You also lost consciousness and suffered head injuries.  You were treated at the Royal Melbourne Hospital Trauma Centre, undergoing multiple surgical procedures and lengthy inpatient rehabilitation.

21I have received in evidence an extensive body of medical reports, detailing the nature and extent of your injuries and your current medical condition.  You currently walk with crutches and suffer impairment in both of your right and left legs.  These impairments limit your mobility and you are in constant pain.  You require extensive medication and at the time you were remanded in custody, your counsel informed me that you had access to that medication.  And so prison authorities will have a record of it.  I was also informed that you require antibiotic medication and I directed that this matter be noted in your remand warrant.  I accept that your physical injuries will also compound the burden of imprisonment upon you.  Although, correspondingly, you have will access in prison to medication and treatment as required. 

22I have also received in evidence the psychiatric report of Dr Nareen Thomas, detailing your current psychiatric condition.

23I accept that you are suffering from depression and anxiety and post-traumatic stress disorder following your workplace accident.  I also accept that you have recently disclosed to your mother and family, the sexual assault upon you, when you were ten years of age.  This matter was also reported to Dr Thomas.  You are currently also prescribed antidepressant medication to treat your psychiatric condition.  I further accept that your mental illness as diagnosed by Dr Thomas will compound the hardship of imprisonment upon you and may cause it to deteriorate.

24You also have a longstanding history of substance abuse disorder, and particularly methylamphetamine abuse and this is also no doubt contributed to your mental illness.

25Dr Thomas' psychiatric report is supported by report of your treating psychologist Mr John Karamanos.  A neuropsychological report of
Ms Susan Packer also discloses that whilst you do not suffer from an acquired brain injury, there is evidence in your case of moderate executive dysfunction and impulse control. 

26You have four children from three relationships and you have the support of your three adult sons.  Your youngest son is in the care of your mother and brother and he has recently been diagnosed with ADHD.  Your extensive and supportive family is a positive factor, in relation to your future rehabilitation and I accept that your prospects in that regard maybe described as now fair.  You are in middle age and are faced with the burden of your physical impairments.  However, caution is still required in relation to your rehabilitation, due to your longstanding history of drug abuse.

27I also accept that the COVID-19 pandemic, and the resulting restrictions on prisoner visits, movements and activities, will further increase the burden of imprisonment upon you.  In arriving at the appropriate proportionate sentence in your case, I have also had regard to the comparative sentences provided to me by the prosecution and in particular, the decision of the Court of Appeal in Harrison and Rigogiannis v The Queen, 2015, VSCA 349.

28In the result, the sentence of the court is as follows - 

29On Charge 1, the charge of negligently causing serious injury, you are convicted and sentenced to be imprisoned for five years.

30On Charge 2, the charge of negligently causing serious injury, you are convicted and sentenced to be imprisoned for five years. 

31I direct that two years and six months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  This makes for a total effective term of imprisonment of seven years and six months.  I direct that you serve four years and nine months before becoming eligible for release on parole. 

32I declare that you have served 9 days by way of pre-sentence detention, not including today. 

33But for your plea of guilty, I would have imposed a total effective term of imprisonment of nine years and six months, with a non-parole period of six years and nine months.

34On the charge of driving whilst suspended, you are convicted and fined $750

35All licences held by you are cancelled and you are disqualified from driving in the state of Victoria for a period of five years from 31 December 2024.  I declare that the offence committed by you was committed whilst you were driving under the influence of drugs and such declaration will be entered into the record of the court. 

36Are there any further orders required Ms Gurry?

37MS GURRY:  No there's not, Your Honour, thank you.