Director of Public Prosecutions v Baudinette

[2023] VCC 552

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02004

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD BAUDINETTE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023 and 9 March 2023
DATE OF SENTENCE:	5 April 2023
CASE MAY BE CITED AS:	DPP v Baudinette
MEDIUM NEUTRAL CITATION:	[2023] VCC 552

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited: Sentencing Act (Vic) 1991 s 6AAA

Cases Cited:Delzoppo v R [2011] VSCA 141; Cook v The Queen [2012] VSCA 293; Harrison & Rigogiannis v The Queen [2015] VSCA 349

Sentence:Five years three months imprisonment with a non-parole period of three years and three years; license disqualification for a period of three years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For the Accused	Ms N. Simpson	Finn & Pugh Legal

HIS HONOUR: 

1Jarrod Baudinette, you have pleaded guilty to the following charges which carry the following maximum penalties, and Counsel, I will ask for your confirmation of the maximum penalties after I deliver them.

2Charge 1, Conduct endangering persons of serious injury, contrary to s23 of the Crimes Act 1958, which carries a maximum penalty of five years' imprisonment and a licence disqualification under s89 of the Sentencing Act.

3Charge 2, negligently causing serious injury contrary to s24 of the Crimes Act 1958, which carries a maximum penalty of 10 years' imprisonment and a licence disqualification.

4And to related summary Charges 13, exceed PCA which carries six months' imprisonment or 60 penalty units (a second offence); and

5Related summary Charge 14, exceed prescribed concentration of drugs contrary to s49(1)(bb) of the Road Safety Act 1986, which carries a maximum of 12 penalty units.

6So, Mr Nibbs?

7MR NIBBS:  Yes, Your Honour.

8HIS HONOUR:  Agreed?

9MR NIBBS:  Yes, Your Honour.

10HIS HONOUR:  Ms Simpson.

11MS SIMPSON:  Yes, Your Honour.

12HIS HONOUR:  Thank you.  Mr Baudinette, you also have a relevant prior criminal history. The significance of your history is diminished by the fact that your previous offending occurred over 30 years ago. I shall say more about that later in these remarks.

Circumstances of Offending

13The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows.

14On 10 October 2021, you were drinking alcohol with Steven Molan at his home in Grey Street, Terang from about 4 pm. Your partner, Chantelle Knox was also present.

15At some time after 7 pm on, you argued with Ms Knox and you got into a car which was parked in the backyard. Mr Molan got into the passenger seat to speak to you, whilst Ms Knox got into the rear seat behind you. Neither of them expected you to drive off with them in the car and neither fastened their seatbelts. You told Ms Knox to 'shut up because something bad is going to happen'.

16You then drove out of the driveway and accelerated up Grey Street, Terang. Grey Street is a residential street with a speed limit of 50 kilometres per hour. The road was in fair condition with no obvious damage to contribute to causing the collision. Grey Street ends in a T intersection with Cameron Street.

17Shortly after accelerating, you hit a gutter in Grey Street and stopped momentarily. Ms Knox yelled at you, and you slowed down sufficiently to allow her to put on her seatbelt. She opened the door of the car, but the door slammed shut because of the speed at which you were driving.

18You then hit a mound of dirt and yet you still continued to accelerate.

19The collision occurred when you accelerated through the T intersection and hit the sign at the end of Grey Street, passing through the two carriageways of Cameron Street. You did not release the accelerator, brake or steer to avoid the sign. Police found no brake or tyre marks on the road. The car's airbags were activated when you hit the T intersection sign.

20The car became airborne and travelled for approximately 37 metres before landing in the paddock west of the intersection with Cameron Street. The car's speed was calculated at between 139 – 167 kilometres an hour when you became airborne. On landing, the car continued moving and sliding as the car tyres furrowed into the ground for approximately 39 metres, at which point it started to roll for another 97 metres. The car came to rest on its passenger-side 173 metres into the paddock.

21Mr Molan was thrown from the car and was conveyed by Air Ambulance to the Royal Melbourne Hospital with life-threatening injuries. He remained in hospital for six days with rib fractures, an associated collapsed lung, head injuries, a fractured vertebrae and bleeding in his abdomen.

22When Ms Knox regained consciousness, she was hanging in her seat by her seatbelt. She climbed out of the car through the sunroof. She suffered multiple soft tissue injuries and whiplash. Her injuries were not life-threatening, and she was taken to the Warrnambool hospital for treatment, where she remained for two days.

23You were trapped in the car and were cut out from the vehicle by emergency workers. Your injuries were not life-threatening, however they were indeed serious and sustained. You suffered a fractured coccyx, fractures to your spinal vertebrae at L1, L2 and L3, and fractures to posterior 12th and 13th ribs.

24I was provided with a series of photographs of Grey Street and the collision site. Even taking into account the fact that emergency workers had to cut you from the car, and the photos depict the car after the roof was removed, the damage to the car is truly shocking. The engine block came away and out of the car and is shown resting in the paddock some distance from the vehicle. The photographs bring home the speed at which your car must have been travelling and the force of your impact after being airborne.

25You participated in a record of interview on 1 December 2021, you made the following admissions to police:

a)You said you drove with Ms Knox to Mr Molan's house around 4 pm on 10 October 2021, for some drinks;

b)You said you were drinking, and possibly smoking marijuana, with Mr Molan and Ms Knox prior to the collision;

c)You all were going to walk to get a pizza from the fish and chip shop. You told police that the next thing you remember is that you woke up in hospital;

d)You admitted being familiar with Grey Street and the surrounding area, and drew police a map;

e)You thought the speed limit is 60 kmh or 50kmh on Grey Street. You believed 50 is the default speed limit for a residential street;

f)You were 'blown away' when told you were driving between 139 and 167 kilometres an hour and could not explain why you would be travelling so fast;

g)You do not recall revving your car out the front of Mr Molan's house; and

h)You do not recall getting back in the car at Mr Molan's house or driving the car out of the backyard.

Objective Gravity and Moral Culpability 

26I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. 

27The offence of negligently causing serious injury has been defined by the Court of Appeal to involve:

such a great falling short of the standard of care which a reasonable person would have exercised in such a high degree of risk that serious injury would follow that the conduct merits punishment under the criminal law.

28Your offending constitutes a serious example of the crimes of reckless conduct and negligently causing serious injury. You made the decision to drive your car after drinking alcohol for several hours. Your blood-alcohol reading of 0.181 per cent can only be described as an extremely high reading, leading to the inevitable conclusion that you were incapable of exercising proper control over motor vehicle.

29Your offending is serious, not only for the fact that you made the decision to drive, but how you drove your car, and for the fact that you did so with two unwitting and unwilling passengers on board. They were not present in the car because they chose to do so, knowing that you would drive; but rather were only present in the car in an effort to reason with you and to calm you down after your argument with Ms Knox in the driveway of Mr Molan's house.

30As I have just said, your offending is made serious by how you drove the car. You drove angrily and erratically, as Ms Knox continued to plead with you to stop and slow down.

31You drove at breathtaking speed – the estimated range of driving speed at the time of impact takes you from just under to over three times the speed limit of 50 kilometres an hour.

32You then drove through the T intersection and through the traffic sign indicating the T without any sign of breaking or trying to steer or avoid the obvious end of the road. Perhaps the whole objective seriousness of your offending is summed up by the fact that your car became airborne as a result of the collision. The word 'airborne' describes the spectacular irresponsibility of your actions when you had the fate of your two unwilling passengers' lives in your hands.

33Your driving involved far more than a momentary lapse of attention. It was a terrifying course of conduct from the moment you deprived your passengers of the ability to get out of the car once they realised what you were doing.

34The concatenation of these factors led to the inevitable conclusion that your moral culpability for your offending is very high.

35I take into account also the Victim Impact Statements of Steven Molan, Pam Molan, Shayne Molan and Chantelle Knox provided to the Court. They speak of the life changing effects of your offending.

36In particular, Mr Molan, the primary victim of your offending, speaks of, 'the constant pain, that the doctors didn't seem to be able to control'. He lost all dignity. Your victim was unable to care for himself, an experience he remembers to be 'degrading and humiliating'.

37Mr Molan now lives in fear. The fear has prevented him from going out, walking his dogs and going to the shops. It is clear that this has had a debilitating impact on Mr Molan's life.  Mr Molan told the court in his impact statement, that he no longer feels safe at home, out and about or socialising. In his victim impact statement he wrote, 'My life has changed forever; I don't know what the future will hold for me. My injuries are forever, I will never be able to put this behind me and move on with my life'. It is apparent that your actions affected every aspect of Mr Molan's life.

38In her victim impact statement, Ms Chantelle Knox reported that she now suffers from flashbacks, has trouble sleeping and finds it difficult trusting people. Ms Knox told the court that even basic day to day life is hard. Your offending represented a violation of your victim's trust, a person with whom you shared a large part of life.

39Your actions have had a devastating impact on the lives of your passengers, I have said that already; and in particular on the life of Mr Molan the impact of your offending has been life altering for him in a physical, psychological/emotional and financial sense, it has also had serious consequences for your own physical health.

40Your offending must be met by principles of deterrence and just punishment.

Personal Circumstances

41You are 52 years old, being born in March 1971.

42You have lived in the Warrnambool area since you were a child. You have one younger sibling.

43Your parents separated when you were six years old, and you describe having a positive childhood. Your mother re-partnered when you were 10.

44Both your father and stepfather abused alcohol. Your father passed away from liver failure as a result of his drinking eight or nine years ago and your stepfather died around five years ago. You reported to Mr Woodward, psychologist, that you witnessed domestic violence against your mother.

45You describe enjoying school and completed up to Year 10 at Brauer College in Warrnambool as you wished to join the workforce. Upon finishing your formal education, you obtained your first job at Woolworths.

46You have prior convictions from April 1994 for exceeding the prescribed concentration of alcohol and driving at a dangerous speed. You told the psychologist, Alan Woodward that you were involved in a single vehicle collision after an argument with your girlfriend, when you crashed into a power pole. 

47It is hard not to be struck by the similarity of your earlier offending with the offending in 2021. Nevertheless, as I will set out, you have led an active and productive life in the 30 years between these matters. Ultimately, I do not consider that your prior offending should lead to a particular emphasis on specific deterrence for these offences.

48Throughout your adult life you have maintained stable employment through full time semi-skilled jobs. You were working as a tank maker for approximately four to five years prior to this offending.

49You only ceased employment for a period of three or four years when you were 19 as a result of a motor vehicle accident. You were able to cover your living expenses during this time through Centrelink benefits and a superannuation payout.

50During your late adolescence and the period of your unemployment, you report developing substance abuse issues with both drugs and alcohol. However, you ceased using cannabis around 10-12 years ago and you then controlled your alcohol consumption to moderate levels.

51Since this offending you have not consumed alcohol at all.

52You have two adult daughters with a previous partner, Rebecca. Your daughters live in South Australia, and you remain close with them and your five grandchildren, despite not being able to have travelled to South Australia since you were bailed for this offending.

53You have a 13-year-old son who lives in Terang with your ex-partner, Jo. You report having a positive relationship with both your son and Jo and spend time with him as often as you can.

54Since the offending you have remained unemployed, as you are unable to work due to the injuries and ongoing complications that you experience.  This has had a significant impact on your financial situation.

55Your injuries affect your ability to sit, stand or lay flat for long periods of time, you experience sleep disturbance, problems with memory and concentration, poor balance, and tinnitus.

56Up until your remand, you were living in Carpendeit with your current partner of 12 months, Alison. You were forced to sell your home in Terang following this offending to cover victims' compensation and your legal fees.

57I have read the reference provided by Raylee Currie.  Ms Currie works as a Community Corrections officer in Warrnambool and coordinates the road trauma awareness seminars in that region.  Ms Currie considers that you understand the consequences of your actions and their effects on others and that you have insight into your offending. She states that you have expressed remorse for causing the collision. Ms Currie observes that you are a hard worker and took pride in buying a house. As a consequence of your injuries, she sets out that you lost your house, the birds that you kept and your dog.

58I have read the report of Alan Woodward, psychologist dated 12 April 2022. Mr Woodward concludes that you suffer from an adjustment disorder but does not consider it is causally linked to your offending behaviour.

59After testing, Mr Woodward concluded that you suffer from severe depression (pushing into extremely severe), moderately severe anxiety and moderate stress.  Mr Woodward concludes that your depression, anxiety, and stress are reactive to your current situation and the prospect of this case. 

60Ms Simpson, who appeared on your behalf, submitted that, notwithstanding these findings, Verdins principles were not applicable in this case.

61Mr Woodward notes that you had been attending counselling for alcohol and drug use at the time of his assessment.

Sentencing Submissions

62Ms Simpson, who as I say, appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

a)Your plea of guilty at the earliest stage, prior to committal;

b)Your plea was entered during the COVID-19 pandemic, has strong utilitarian benefit and the principles enunciated in the case of Worboyes could be applied;

c)You have significant remorse which is demonstrated through the plea of guilty and through expressions to Mr Woodward and Ms Currie;

d)You have suffered extra-curial punishment – that is, the severity of your injuries suffered affects all aspects of your daily functioning.  Then, you were forced to sell your only significant asset – your home - to pay for legal fees and compensation. Then due to the severity of your injuries you have been unable to work.  Then due to the restraining orders over your remaining assets, you have not been able to afford some of the treatment you need or require to make a further recovery from your injuries. I noted on the plea, it is not entirely clear why these expenses were not covered by the TAC;

e)As a consequence of your injuries you have had to stop work, you have not been allowed to drive since the collision (this was a bail condition), and you were forced to sell your home. You are subject to the victims of crime compensation application;

f)Ms Simpson submitted you have high prospects of rehabilitation - you have only a limited and very dated criminal history and there are the observations made by Mr Woodward in this respect;

g)You have engaged in Alcohol and Drug Treatment, and you have been sober since the offending; and

h)I must guard against double punishment, that is the overlapping circumstances in relation to Charges 1 and 2, the sentences warrant concurrency.

63Although Ms Simpson submitted that the Verdins principles were not applicable, she referred to Delzoppo v R[1] to argue that your injuries should be used to mitigate your sentence because they will add to the burden of your imprisonment and constitute a form of extra-curial punishment.

[1]Delzoppo v R [2011] VSCA 141, [22].

64Ms Simpson referred to the cases of Cook[2], and to Harrison and Rigogiannis[3]. In Cook at [41] the Court of Appeal observed driving offences causing serious injury or death are frequently committed by young offenders and/or offenders of previous good character, many of whom have excellent prospects of rehabilitation:

The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed on mitigating factors such as youth, previous good character and rehabilitation prospects.

[2]Cook v The Queen [2012] VSCA 293.

[3]Harrison & Rigogiannis v The Queen [2015] VSCA 349.

65The case of Harrison and Rigogiannis were considered together by the Court of Appeal in 2015. At the end of each, the court dismissed appeals against each sentence. The court considered the then current sentencing practices for this type of driving offence is resulting in sentences which were too low and called for sentences to be increased.

66The case of Harrison was applied in the 2021 appeal of Cook. There, the Court of Appeal considered a sentence of five years three months with a minimum of three years eight months to serve was within range on a plea of guilty to negligently causing serious injury by driving. In the case of Cook, the accused was 30 years of age and drove with a blood alcohol reading of 0.107, he had expressed considerable remorse, and had a difficult childhood, experienced difficulties going to prison for the first time during Covid. He had no prior convictions and was a person of good character, and it was accepted that the experience of imprisonment was burdensome on him. He was considered relatively youthful and had good prospects for rehabilitation. Nevertheless, the objective gravity of his offending was high, and the Court noted that additional weight must be given to general deterrence and denunciation in these types of cases.

67Your offending is different in some respects from that considered in Harrison and Rigogiannis: first, your priors are far removed in time from this offending; second, you are not a youthful offender (as they were in those cases); and you have led a productive life for the last 35 years.  Your prospects of rehabilitation are very much higher than in Harrison or Rigogiannis; and although your victims suffered horrendous pain and suffering, they did not suffer even more catastrophic injuries such as brain injuries as seen in some of the cases.

68Ms Simpson submitted that the reference to youth in this and other cases could be used to distinguish your offending from a number of cases which come before this court, and which are marked by the fact that they are committed by young offenders, often with a string of recent, relevant prior convictions for driving matters.

69Mr Nibbs, who appears for the Crown, submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.  Mr Nibbs submitted that your moral culpability is high, and that the objective gravity of your offending is at the upper end. As such, the principles of general deterrence and denunciation must figure prominently in the sentencing consideration.

Analysis

70I have already made it clear that this is a very serious example of this type of offending. General deterrence and denunciation must indeed figure prominently in the sentencing consideration, specific deterrence less so.  Nevertheless, I am satisfied that each of the matters raised in the sentencing submissions made on your behalf by Ms Simpson should play a part in mitigating the sentence I impose upon you. I emphasise, as the Court stated in Cook, that matters personal to you can only play a relatively limited role in mitigating the sentence I impose on you.

71The case of Cook makes it clear that the call made in Harrison to increase the sentences for this type of driving offence has been and must continue to be heeded.

72I must take into account that the objective gravity and your moral culpability for this offending is high, and that not one, but two persons (other than yourself) were either seriously injured or exposed to serious injury by your actions.

73I must also take into account that I must sentence you across two offences – that is the reckless conduct charge and the negligently cause serious injury charge.  I must ensure that the principle of totality is applied.

74Accordingly, taking into account all of the factors personal to you, I have decided to set what is a relatively low non-parole period.  This will provide you with an earlier opportunity than in Cook, if parole is granted, to return to the community.

Orders

75Accordingly, I make the following orders:

76On the charge of negligently causing serious injury, Charge 2, you are convicted and sentenced to four years and nine months' imprisonment.

77On the Charge of conduct endangering persons, Charge 1, you are convicted and sentenced to two years and three months' imprisonment.

78I order that six months of the sentence on Charge 1 be cumulated on the sentence on Charge 2. 

79On the charge of exceed prescribed concentration of alcohol, Related Summary Charge 13, you are convicted and sentenced to three months' imprisonment.

80On the charge of exceeding a concentration of drugs in your system, Related Summary Charge 14, you are convicted and fined $500.

81I intended a sentence of five years and three months as the total effective sentence.  Do you agree with that, Ms Simpson, on the matters?

82MS SIMPSON:  I do, Your Honour, thank you.

83HIS HONOUR:  And Mr Nibbs?  Yes, I take that as a yes, Mr Nibbs.  A non-parole period is set at three years.

84I reckon the period of 27 days excluding today, be reckoned as already served.

85I order a driver's licence disqualification of three years from today, noting that you had already served a period off the road, as part of the bail conditions.

86The 6AAA declaration is but for the plea of guilty in these matters, I would have imposed a sentence of seven years and nine months with five years and six months to serve.

87So, the sentence should be one of five years and three months, with three years to serve.

88(Discussion)

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