Director of Public Prosecutions v Bausch

[2019] VCC 331

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-01017

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE BAUSCH

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Geelong
DATE OF HEARING:	18 February 2019
DATE OF SENTENCE:	6 March 2019
CASE MAY BE CITED AS:	DPP v Bausch
MEDIUM NEUTRAL CITATION:	[2019] VCC 331

REASONS FOR SENTENCE
---

Subject: Criminal  law - sentence

Catchwords: Pleaded guilty to one charge of dangerous driving causing serious injury, one charge of driving with illicit drug present in blood; one charge of failing to appear on bail – injuries to victim included death of unborn baby – failure to give way at intersection – accused knew of cognitive defects likely to impair driving skills – no evidence of level of illicit and prescription drugs in his blood – serious inadvertence – high level of culpability – remorse – some prospects for rehabilitation subject to not driving.

Sentence: 3 years imprisonment with non-parole period of 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.M. Weigl	OPP
For the Accused	Mr J. Miller	Greg Thomas

1HER HONOUR: Shane David Bausch, you have pleaded guilty to one charge of dangerous driving causing serious injury and to a summary charge of driving with an illicit drug present in your blood. Pursuant to s.49(1)(i) of the Road Safety Act. You have also pleaded guilty to one charge of failing to appear on bail.

2These offence occurred on 26 March 2016 at Bannockburn.  The car you were driving collided with a car driven by Amanda Davies who was seriously injured.  Tragically, one of the results of her injuries was the death of her unborn baby.  That day, just before 3 pm, you were driving a hired car from Lara to Bannockburn to visit your daughter.  A friend of yours was seated in the front passenger seat and one of your children was seated in the rear.  You hold a full South Australian driver's license. 

3Immediately before the collision, another driver, Guy Nealy, saw you driving at about 120 kilometres per hour, according to his estimation, in Clyde Hill Road.  Mr Nealy saw your car slow slightly as you passed him but you continued on the incorrect side of the road for most of the time as you approached the intersection with the Midlands Highway. 

4At that intersection, you faced a Give Way sign.  A car driven by Ms Davies was approaching the intersection from your left side and another driver, Mark Jones, who was travelling on the Midlands Highway from the opposite direction to Ms Davies, observed that your car did not stop at the intersection but drove through it. 

5A reconstruction of the collision performed by police, revealed the somewhat bizarre circumstances that during the five seconds before the crash, you braked and then accelerated, during which time the car slowed to 18 kilometres per hour and then its speed increased to reach 41 kilometres per hour at the point of collision.

6The front of your car struck the driver's side of the car driven by Ms Davies.  The force of the impact caused the vehicles to rotate, with your car coming to rest facing south in the north east-bound lane of the Midlands Highway and Ms Davies' car came to rest on the grass shoulder west of the intersection.

7Mr Jones and Mr Nealy both stopped their cars and went to assist Ms Davies and you.  When the police arrived, you were breath-tested with a negative result and you told police you had not seen Ms Davies car before the collision.

8Ms Davies' injuries included a broken pelvis, rib fractures, spinal fractures and lacerations to her liver, lungs and spleen.  She was air-lifted to the Royal Melbourne Hospital where she was placed in an induced coma.  Her unborn baby, a girl, later named Shiloh was stillborn at 31 weeks gestation following an emergency caesarean section.

9Ms Davies read to the court her victim impact statement in which she described the terrible consequences of the collision, in particular, the loss of her baby.  The immediate experience of the collision was highly traumatic for Ms Davies and for her two children aged 8 and 10 who were in the rear of the car and were thankfully unhurt.

10Ms Davies was conscious and aware of the fact that she was badly hurt and feared that her baby had not survived, but had to remain calm for the sake of the children.  Her physical recovery took a long time, with 18 months of rehabilitation.  She has returned to work as a leading chef at a boarding school, a job which she loves, but described as physically demanding, and she is constantly in pain, but tries not to think about it.

11She considers her personality to have changed from an outgoing person to someone who is stressed and detached emotionally, suffering anxiety and depression because of the ongoing grief.  She is concerned for her children, who also still grieve and suffer trauma at a young age.  Ms Davies acknowledges that she has strong support from her family and doctors and is encouraged by her motivation to tell her story in the hope that one day the law might be changed to recognise an unborn child as a person. She quoted the fact that Shiloh was issued with a birth certificate and her death was counted in Victoria's road toll statistics. 

12Kevin Davies, the father of Ms Davies and the grandfather of Shiloh, also provided a victim impact statement.  With great eloquence and care, he described the very sad experiences of having to identify Shiloh's body, to be present when his daughter was told she had died, and to attend the funeral. 

13He said the structure of his family has been destroyed and he has become a different person, angry and bitter.  The gravity of your offending was indeed high because of the manner of your driving, your knowledge of the presence of drugs in your body and the tragic consequences.  Subsequent drug-testing of you disclosed the presence of several drugs, including methyl amphetamine, and several prescribed drugs, belonging to the benzodiazepine group of sedative drugs.  There has not been any specialist toxicological evidence presented as to the conclusions which can be drawn from the level of the drugs found in your body, save to say that, according to Dr Shriver, the forensic physician who provided the report, the presence of these drugs in your blood would have been expected to impair your driving skills. 

14I have read the transcript of the cross-examination of Dr Shriver at the Committal hearing and his evidence can be summarised in that way.  Dr Treeby, a neuropsychologist, also provided a report and gave evidence.  You gave Dr Treeby a history of your prior and current drug use when you saw him earlier this year and told him that you used Serepax, which is Oxazepam for sleep and to deal with anxiety most nights, but Dr Treeby was unable to establish how often you used prescribed benzodiazepine drugs.

15I shall quote directly from Dr Treeby's report where he said:

16"Mr Bausch said in interview that he failed to see Ms Davies car prior to the collision and this is plausible given his neuropsychological test results.  More specifically, he experiences a range of cognitive impairments including poor attention to visual detail, poor impulse control, reduced information processing speed and severely impaired divided attention, which together may have adversely impacted his decision making and ability to drive a vehicle safely at the time of the accident."

17Dr Treeby went on to note that "Blood test results following the accident revealed the drugs in your system."  He added:

18"It is possible that these substances may have caused additional acute cognitive impairment while he was driving and at the time of the collision."  He went on to say:

19"Mr Bausch has significant cognitive limitations and my impression is that his acquired brain injury adversely effects his judgment, impulse control, decision making, and ability to control and manage his emotions and behaviour more broadly.  These impairments would have been evident at the time of his offending."

20Failure to see Ms Davies' car can be attributed to your cognitive impairments even without the influence of drugs because of your defective judgment, impulse control and decision making.  Indeed, Dr Treeby commented in his evidence that his advice would be that you not drive a car.  

21The evidence indicates that drugs may have played a part in your impairment but it is not possible to determine that exactly and so I cannot make a finding that they did.  There was no evidence as to when you had consumed methylamphetamine and that information would have helped determine at the time of the collision, the likely effect upon you, subject to the opinion of a duly qualified expert forensic specialist.

22While I can place some limited weight upon your decision to drive, knowing you had taken methyl amphetamine, and also prescription drugs in the hours before you drove, I cannot make a finding as to the role played by the drugs.  Even without the factor of the presence of drugs, your culpability starts at a high level because of your serious inadvertence. 

23Your counsel, Mr Lynch, submitted that the principles in the case of Verdans apply to reduce the focus on general deterrence.  That is a very important part of sentencing in a case like this, as indeed is specific deterrence.  Those principles are concerned with deterring others from driving dangerously and with deterring the particular offender. 

24In this case, your cognitive deficits do provide a nexus with your offending in that your poor attention to visual detail which I described earlier, poor impulse control, reduced information processing speed and severely impaired divided attention, adversely affected your driving ability. 

25On the other hand, you knew of these deficits and Dr Treeby considered that despite them, you would have remembered your prior convictions.  Nonetheless, the need for the sentence to reflect general deterrence is slightly reduced.  The same cannot be so easily be said for specific deterrence.  Until 2009, you had a long criminal history indicating scant regard for the law with many convictions for driving offences, although none as serious as this.

26I do note one conviction for driving in a dangerous manner and one for significant excessive speeding.  The absence of any criminal convictions since 2009 can be explained by the changes in your personal circumstances as time passed.  You are now aged 58 and you have been the sole parent to your children for some years.  In 2010, you were released from prison.  Your wife, the mother of your six children, left you and went to live in Queensland. 

27The youngest child was then aged 4 or 5 and the eldest, Kirsten had just qualified as a lawyer.  At the time of the collision, the three youngest children, aged 14, 15, and 19, were still living with you and you were caring for them.  One of your older daughters, Skye, assists you and it was to her home you were travelling on the day of the collision. 

28Your early background was one of considerable depravation.  Your father was an alcoholic who would beat you and your brothers regularly.  Your primary schooling was disrupted by an accident involving a serious laceration to your leg, requiring three operations and extensive treatment to enable you to walk again.

29You entered high school unable to read and write, and you only learned to read when you were 30 and wanted to help your children.  You left school halfway through Year 7 and began work, eventually becoming a labourer and later starting your own rendering and painting business.  You left home at 16 and lived on the streets for a time, but you later met your wife.  She was not a drug user, but you had been using alcohol and other drugs since your early teenage years.

30You ceased this, but in your 20s you started using heroin on and off, ceasing in 2017.  After your release from prison in 2010, you used crystal methamphetamine and you told the psychologist, Mr McMullin, in January this year, that you had not used anything but prescription drugs for four years.  Clearly, that is not accurate.

31Aged 15, you were brought before the Children's Court on criminal charges and were subject to a protection application.  You continued to offend from that time onwards and spent much time in a Youth Training Centre.  At the age of 20, you were sentenced to 18 months in adult gaol and after that you served regular short prison sentences until 2010. 

32You were injured in two car accidents which caused the brain injuries you continue to suffer from.  You told Mr McMullin that you still suffer headaches and a poor memory.  You also suffer from severe anxiety which Mr McMullin classified as a disorder.  Perhaps it was a demonstration of this disorder together with impulsivity and poor judgement that led you to fail to attend court last October.

33Your daughters, Kirsten and Skye, gave evidence and described the bond you have with your children, particularly, the two youngest and the efforts you took in their mother's absence to care for all of them.  You have demonstrated your successful rehabilitation during these years, until this serious offence.  In your record of interview, you told the police that you were more worried about the injured lady than being charged.  Dr Treeby said he noted indications of remorse and that was confirmed by your daughters.

34You have wanted to apologise to Ms Davies and tell you how sorry you are.  Remorse is an important consideration because it can be an indication for prospects of rehabilitation.  Your plea of guilty can also be regarded in that way and you are entitled to a discount for it because it has avoided the need for a trial, which would have been very distressing for witnesses. 

35Taking all matters into account, it is likely that you have some prospects for rehabilitation as long as you do not drive again.  The maximum penalty for dangerous driving causing serious injury, is five years imprisonment, and for the summary offence, a fine calculated according to 60 penalty units.  For failing to appear on bail, it is two years imprisonment. 

36The sentencing submission by the prosecution was that immediate custody was warranted and that a combined prison sentence and a community correction order was not appropriate.  On your behalf, it was submitted by Mr Lynch that such a sentence was appropriate in all the circumstance with a community correction order being available even in cases of serious offending, and in your case, its chief purpose would be to facilitate the stabilisation of your mental health problems.

37I was referred to several decisions dealing with the same offence, with the usual range of differing circumstances, which made comparisons difficult.  They provide limited guidance as to an appropriate penalty, which I have taken into account.  I have concluded that for the reasons I have set out, some leniency is warranted but not to the extent of exceeding to the submission made by your counsel.

38Would you stand now, please, Mr Bausch.

39For the offence of dangerous driving causing serious injury, I sentence you to three years' imprisonment.

I order that you serve a minimum of two years, before being eligible for parole. 

Any driving license or permit that you hold is cancelled and you are disqualified from obtaining any license or permit for five years.

I have been asked to make a finding under section 89(c) of the Sentencing Act 1991, that you committed the offence while under the influence of a drug, but I decline to do so, given the state of the evidence in that regard.

For the summary offence, you are fined $800.  For that offence, your licence is cancelled and you are disqualified from obtaining a further licence or permit for two years. 

For failing to appear on bail, you are sentenced to three months' imprisonment, to be served concurrently.

40The prosecution seeks an order for a forensic sample of saliva to be obtained.  I haven't been told, Mr Miller, whether that is opposed or not?

41MR MILLER:  I will have to get some instruction, Your Honour.

42HER HONOUR:  All right.  I will leave that for the moment or can you do that right now? 

43MR MILLER:  I will do that now, Your Honour.

44HER HONOUR:  Thank you.

45MR MILLER:  I consent to that, Your Honour.

46HER HONOUR:  Pardon?

47MR MILLER:  Consent to that, the making of that order.

48HER HONOUR:  All right.  Now, Mr Bausch, I just need to tell you about that, that the police have the power to use reasonable force to obtain the sample of saliva, but I trust that will not be necessary. 

49You have been in presentence detention for 110 days by my calculation.  I declare that time to be reckoned as already served.  And I shall note that on the court record.  If you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment with a non-parole period of three years.

50Now, is there anything I have omitted or neglected, Mr Weigl?

51MR WEIGL:  Your Honour, can I just clarify the two year disqualification relates to the summary offences?

52HER HONOUR:  Yes.

53MR WEIGL:  I didn't hear whether that was a further two years, is that in addition to the five years?

54HER HONOUR:  No.  Concurrent.

55MR WEIGL:  Thank you, Your Honour.

56HER HONOUR:  And both commence today.  Mr Miller?  Anything I have left out?

57MR MILLER:  No, nothing further, Your Honour.

58HER HONOUR:  Thank you.  Mr Bausch may be taken.  Thank you, Officer.  Adjourn the court, please.

‑ ‑ ‑