Director of Public Prosecutions v Bell

[2016] VCC 515

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00065

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON FRANK BELL

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	04 April 2016
DATE OF SENTENCE:	21 April 2016
CASE MAY BE CITED AS:	DPP v Bell
MEDIUM NEUTRAL CITATION:	[2016] VCC 515

REASONS FOR SENTENCE
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Catchwords: Criminal Law- Sentencing- multiple charges of dangerous driving causing serious injury-possession of drug of dependence- uplifted summary charges of drive whilst exceed PCA- drive whilst exceeding PCD- drive whilst suspended.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Mr J Cain, Solicitor for the Office of the Director of Public Prosecutions
For the Accused	Mr A. Zingler	Stary Norton Halphen Lawyers

HER HONOUR: 

1Gordon Bell, you have pleaded guilty before me to three charges of dangerous driving causing serious injury, and one charge of possession of a drug of dependence and, in addition, you have consented to matters being transferred, pursuant to s.145 of the Criminal Procedure Act 2009, and you have entered plea of guilty to summary Charge 3, driving whilst exceeding PCA. Summary Charge 5, driving whilst exceeding PCD, and summary Charge 9, drive while suspended.

2The charges are serious and that is evidenced in the maximum penalties that applies.  They are as follows:

·Dangerous driving causing serious injury, five years' imprisonment.

·Possession of a drug of dependence, where it is accepted the drugs were for personal use; not more than 30 penalty units, or one year imprisonment or both.

·Exceed PCA, for first offence, not more than 20 penalty units. 

·Exceed PCD, for first offence, not more than 12 penalty units.

·Drive while suspended, 30 penalty units or imprisonment for four months.

3In addition, where a person is found guilty of a charge of dangerous driving causing serious injury pursuant to s.89(1) of the Sentencing Act 1991, the court must cancel the offender's driver's licence for no less than 18 months.

4I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read to the court at the plea hearing and is marked as an exhibit.

5I will turn to the circumstances of offending.

6Gordon Bell, you were 25 at the time of this collision and you were, then, the holder of a current full Victorian driver's licence that was suspended.  You were driving a silver Holden Commodore that belonged to Mitchell Cassidy's mother.

7Mitchell Cassidy, your best friend, was the front seat passenger.  There were two other rear seat passengers, Jack Parnell and Jacob McDonald, all of whom were 22 at the time of the collision.

8In the early hours of Friday, 14 December 2012, at around 4.45 am, you drove the Commodore west along Lt Malop Street, Geelong, at speed.  The vehicle broke through an Armco barrier and chainmesh fence at the end of the street, causing the vehicle to become airborne.  The vehicle struck the footbridge over some railway tracks and then collided into a brick wall on the opposite side of the railway line before falling approximately six metres to the ground level, coming to rest on its passenger side.  Each of the three passengers in the Commodore were serious injured.  

9Prior to the collision you had been drinking; you began drinking with Mr Cassidy and Mr Parnell at the Norlane Hotel at around 5 pm.  You also consumed beer after leaving the hotel, at a local boat ramp, and then you went to Fyansford Hotel where you purchased further drinks and your group then drove to the Fyansford lookout where you consumed more alcohol.

10Then you went to the Eureka Nightclub at some time after parking the Commodore on Lt Malop Street.  On leaving the Eureka Nightclub, Mr McDonald, the third passenger, was offered a lift home.

11The circumstances of the collision were that you drove at a fast rate of speed from the Eureka Nightclub through the intersection of Lt Malop and Fenwick Street before crashing into the Armco barrier and chainmesh fence at the termination of Lt Malop Street.

12Edward McKarra, an employee of V-Line was in the vicinity of the accident scene.  He was requested to find out why the railway signal for the V-Line train from Marshall to Geelong was not working.  When he walked to the signal box he saw the Commodore lying on its passenger side.

13When he was about five metres from the Commodore, he saw you appear out of the driver's side front window, stand up and pull yourself out of the window and jump down on to the gravel.  You then walked up the tracks a little before falling on to the side of the embankment.  He asked you if there were any more people in the car and you moaned and said that there were three others inside.

14Thereafter, station workers attended to provide assistance and you were asked questions by them.  You stated that you were on the train and you knew nothing about the vehicle.

15Ambulance officers later attended and spoke with you.  You told them that you were not the driver of the vehicle and you had been wearing a seatbelt.  You were later transported to the hospital with a possible fractured arm.

16Police attended the scene and spoke with you.  When asked who was driving, you told them that you did not remember anything, you just remember that it was not you.

17The CFA and SES attended and extracted the other three passengers.  Mr Parnell and Mr McDonald were removed from the rear passenger area, whilst Mr Cassidy was removed from the front passenger seat where he was located. It was observed that he was still sitting in his seat but slumped down and on his left side.

18Lt Malop Street, Geelong, is a single lane two-way bitumen surface road which runs in a general east/west direction divided by broken while lines.  Railway lines run through Lt Malop Street making two dead-end streets on either side of the railway line.

19At the location of the collision the surface of the road was found to be in good condition.  It is a sign posted 50 kilometre zone, and there is provision for street lighting.

20The Commodore was mechanically inspected on 9 January 2013 and found to be unroadworthy due to rear tyres being devoid of tread.  The inspection, however, did not reveal any mechanical fault which would have caused or contributed to the collision.

21Dr Jenelle Mehegan conducted a collision reconstruction based on her attendance at the scene and measurements and photographs taken. 

22Despite reaching a conclusion as to the speed the vehicle was travelling prior to impact, she conceded that due to the unusual collision and the impact with so many objects, that is, the Armco guardrail, skidding, chainmesh fence, the footbridge and the railway void concrete wall, a definitive speed will never be able to be provided.

23For that reason it is accepted that the speed of the vehicle was the lower of the options posed; that is, that the speed the vehicle was travelling when it collided with the wall was 68 kilometres per hour, was the speed the vehicle was travelling prior to commencing to bolt was 78 kilometres per hour, which is well over the 50 kilometre permitted in that zone.

24As a consequence of the collision, Mr Cassidy suffered:

(a)  Two large cuts to the left side of his head;

(b)  Fractures of the left transverse process C7 vertebrae;

(c)  Five fractures of the spinal bones;

(d)  Fractures of L1 and L7 ribs;

(e)  A left-hand sided lung bruising and a punctured left lung; and

(f)  A fracture to both upper end incisors.

25He was treated in intensive care and diagnosed with an acquired brain injury post-collision.  He has no recollection of the collision.

26Mr Cassidy had a very significant past history which included a previous closed head injury, and epilepsy commencing initially at the age of 15; significant use of illicit drugs since the age of 15, with regular heavy intake of marijuana, previous use of amphetamine and, more recently, dependence on benzodiazepine and alcohol.

27Professor Stephen Davis, a neurologist, has undertaken a clinical examination of Mr Cassidy and he provided reports for the purposes of a Transport Accident Commission claim. 

28He confirmed that Mr Cassidy made steady recovery at Geelong Hospital and was discharged home on 17 December 2012, three days after admission.

29Mr Cassidy has complained of trouble with sleeping, loss of memory, periods of disorientation, irritability and pain in the neck subsequent to his injury.  He has become more forgetful, anxious and agitated.  His personality has changed and he is more irritable and frustrated easily.  He is binge drinking on weekends and is using marijuana.

30Professor Davis confirms his features suggest at least a moderate brain injury with presumed initial loss of consciousness and an uncertain duration of post-traumatic amnesia, which was not quantified in the Geelong Hospital report.

31While there has been concern expressed about increased frequency of epileptic seizures following the collision, the major precipitating factor in Professor Davis' view, seems to be Mr Cassidy's binge drinking, which is more likely to explain worsening control than a head injury per se.

32In a supplementary report, Professor Davis confirmed receipt of a report from treating neurologist, Associate Professor Ross Carne, of May 2014, and following review of that report, Professor Davis confirmed his expressed view that the head injury has not exacerbated Mr Cassidy's pre-existing epilepsy.

33On the basis of that evidence, I accept that Mr Cassidy has been left with a moderate brain injury, attributable to the collision.  Nonetheless, he has suffered greatly as a consequence of the injury.

34I have had regard to the Victim Impact Statement filed on behalf of his mother, Michelle McDowall, where she sets out the significant impact upon her son's health.

35She noted the difficulties that the family experienced whilst he was in a coma for two days and they had to attend the hospital.  He also was required to undergo therapy for his acquired brain injury.  His injuries affected his long-term relationship with his girlfriend.  He suffers with being forgetful and pain.  He was no longer able to pursue his former employment as an asphalter with the City of Greater Geelong, and he previously enjoyed a social life, being a musician, playing as a drummer in a band, but now is a very withdrawn person.

36I have not had regard to her comments about his worsening epilepsy, having regard to the expressed expert medical opinion, to which I have earlier referred.

37Mr McDonald suffered:

38(a)  Bruising of the right forehead with three cuts round the right eyelid and eyebrow;

(b)  A laceration through the ear, including cartilage;

(c)  Superficial grazes and bruising to his back;

(d)  Fracture through the transverse process C7;

(e)  Severe bruising of the lungs with a test tube required to drain an ear leak;

(f)  Air laceration to the liver with bleeding; and

(g)  Fractures of the bones underlying the right cheek.

39He has required plastic surgery and ophthalmic review.  Mr McDonald does not recall the collision but recalls sitting in the back passenger seat prior to the vehicle moving.

40He has declined to make a Victim Impact Statement, but I have had regard to the nature and extent of his injuries and, no doubt, he has suffered greatly as a consequence.

41Mr Parnell suffered a left-sided temple haematoma requiring an urgent burr hold drainage and later a formal left temporal craniotomy, and evacuation of extradural haematoma and pulmonary contusion.  He has no memory of the events leading to the collision.

42Again, he was requested to provide a victim impact statement but declined.  I have regard to the very serious nature of his injuries and accept that he has suffered greatly as a consequence.

43As a consequence of the collision, you suffered:

(a)  Fractured left lateral incisor tooth and a less severe fracture to the upper left central incisor;

(b)  Bruising to your right shoulder; and

(c)  Bruises and abrasions to the abdomen and pelvic area at the ileac crest, and a blood nose.

44You were examined by Dr Jack Pugh at Geelong Hospital on 14 December 2012, and Dr Matthew Ryan of the Victorian Institute of Forensic Medicine on 23 December 2012.

45You told Dr Ryan you could not recall the collision.   Both doctors concluded that the injuries over the front of your hips on the lower abdomen was pattern injury, commonly seen in car accidents from forceful contact with lap sash components of the seatbelt.

46Your blood alcohol level at the time of driving was detected at 0.063 grams/210L.  Your blood was also found to contain 0.03 milligrams per litre of methylamphetamine, and 0.06 milligrams of Alprazolam, a member of the benzodiazepine group of sedative drugs.

47The level of methylamphetamines is lower than the level usually seen in a recreational use of the drug, suggesting that the drug had either been used in a small amount, or had been used some time prior to the collision.

48The Crown obtained an opinion from Dr Sungalia of the Victorian Institute of Forensic Medicine (VIFM) who opined that alcohol should not be used in conjunction with Alprazolam as each potentiates the effects of the other, causing drowsiness, fatigue, and impaired co-ordination.

49He further opined that the combined effect of all the drugs detected in your blood is likely to have prevented the proper control of the motor vehicle.

50When your clothing was removed at the hospital, a small package of white powder was located, and that is the subject of the Charge 4 on the indictment, possess drug of dependence.

51You were arrested on 23 December 2012.  You were deemed fit for an interview following a medical examination.  During the interview you were co-operative with police and gave them information about what you could remember.  You said you could not recall the collision or just prior to it, you had no recollection of driving that vehicle that night or climbing out the window after the collision.  You agreed with the police that if you were driving, you were drug and alcohol affected.

52Procedurally you were not charged with these offences until 2 December 2013, when the charges were filed in the summary stream and on 17 March 2014, the indictable charges were filed.  The matter then proceeded by way of filing hearing and committal mention, and proceeded to a committal, the primary dispute being whether it could be proved that you were the driver of the vehicle.

53The matter then proceeded through various stages and you were committed for trial. 

54On 18 January 2016, a sentence indication hearing was conducted in respect to three charges of negligently causing serious injury.  The indication was provided, but did not result in resolution of the matter.

55Ultimately, a fresh indictment was prepared in the form that you have now pleaded to and on 16 March 2016, you were arraigned on indictment and pleaded guilty to all the charges, together with the other summary matters.

56You have admitted your prior criminal history.  There are a number of court appearances spanning the period from 7 May 2005, until 18 March 2010. 

57There is one relevant appearance, that is, at the Geelong Children's Court on 12 May 2006, you were dealt with for unlicensed driving, use an unregistered motor vehicle and state false name, for which you were without conviction fined an aggregate fine of $250.

58Primarily your past criminal history relates to dishonesty offences and offences of violence against persons, including assault police, resist arrest, and escape lawful custody, and in the past you have been given a variety of dispositions, including good behaviour bonds, fines, Youth Supervision Orders, Youth Justice Centres Orders, and a Youth Attendance Order and a wholly suspended sentence.

59In his plea on your behalf, Mr Sala relied on a number of features in mitigation.  You are currently 26 and are still relatively young.  You were born in the Geelong area and have remained here most of your life.  You reside with your mother, Marlene Bauer, in Norlane.  Your father, who is aged 56, died of suspected emphysema approximately 12 months ago.

60You were very close to your father and you are still grieving his death.  You are close to your mother who remains supportive of you.

61Your mother, Ms Bauer, gave evidence at the plea hearing and she confirmed the level of grief that you have associated with the collision.  She described a recent incident where you were discovered by her in an attempt to commit suicide.

62She also described the dramatic change in your own disposition following the collision, with difficulties with depression and anxiety. You are no longer the happy-go-lucky outgoing person who enjoyed friendships and was very social prior to the collision.  She described you as being socially withdrawn.

63You have a long-term partner, Kayla, with whom you have shared the last ten years.  She remains supportive of you.

64You are the second youngest in a sibship of four.  Your older brother was present in court at the plea hearing and is supportive of you.  You have an older and a younger sister, each of whom remain close to you.  Your childhood is described as having been raised in a loving and caring family. 

65You completed Year 11 VCAL at Corio Bay Secondary College.  At school you were regarded as being of average IQ.  You had some conflict over the years at school and you changed schools a number of times in your secondary years.

66After you left school you worked intermittently with your father on the wharves, eventually you obtained full-time employment at around age 18.  You are a very experienced lagger, working on construction sites.

67As a result of the injuries you received in the collision, you were off work for two years, during which you underwent two operations for right rotator cuff injury.  You resumed work immediately you were given a clearance, approximately 12 months ago.

68You were successful in becoming a FIFO worker in Karratha and on Barrow Island where you undertook lagging work on gas plants offshore.  You ceased that work because of your court commitments.

69You have been reviewed by Jeffrey Cummins, clinical and forensic psychologist.  His view is that you have experienced genuine remorse concerning the offending behaviour and you presented as being moderately depressed and mildly anxious.  You stated to him you have no recollection of the incident, although you accept at the time you would have been intoxicated on alcohol and under the influence of Xanax, and most probably under the influence of cannabis and/or methamphetamine.

70He expresses the opinion at the time of the offending you were suffering from an alcohol use disorder in the form of intermittent binge drinking.  As part of the sequelae to the collision he says you have developed an adjustment disorder with mixed anxiety and depressed mood with features of traumatisation.

71I have had regard to his assessment of your mental health and his expressed opinion that you will most probably deteriorate if you were to be incarcerated.

72He considers that you would benefit from receiving mental health treatment with a focus on residual symptoms of grief in relation to both your father's death and also the collision related adjustment disorder.

73I have had regard to the plea of guilty that has been entered, albeit at a late stage in the proceedings.  In the somewhat unusual circumstances of this matter, I accept that there is still utility in the plea. You have saved the State the expense and necessity of a trial, spared the witness further trauma of having to come to court and give evidence at the trial.

74The matter is unusual insofar as there was a real issue and dispute as to whether or not you could be demonstrated to be driving at the time of the collision.

75By your plea of guilty you now accept that you were driving and you undertake responsibility for the outcome.  I accept that your plea has facilitated justice and your sentence will be discounted accordingly.

76Furthermore, I accept you are genuinely remorseful and that is evidenced through your mother's evidence, together with the expression of your remorse contained in Mr Cummins' report.

77When arrested, you were co-operative with the police and consented to all forensic procedures.  You made appropriate admissions about drinking alcohol and consuming marijuana, and also made admissions that if you were driving, you would have been affected by such.

78You also made admissions to being in possession of the methamphetamines that was found on your person in the hospital. 

79Although you are no longer a youthful, or young, offender, you are still relatively young, and I have taken that into account.

80In the past you have never experienced any time in an adult custody setting.

81There has been a long delay in the resolution of this matter, and that delay is relevant, insofar as you have used the time productively.  You have completed your treatment and rehabilitation for the injuries you suffered following the collision, and you have undertaken productive employment.

82There has been no other charges laid, and you have no other matters pending.  It is now some three years and three months since the collision and that is of significance that during that time you have attended to your own rehabilitation without any independent supports.

83In all the circumstances, Mr Sala submitted, having regard to the particular features of this case, that a Community Correction Order of a lengthy duration was appropriate.  He accepted, given the nature of the charges, that denunciation and general deterrence were important features.

84Mr Lewis, on behalf of the Crown, submitted that some term of immediate custody is required.  He submitted that this is a serious example of this sort of offence of dangerous driving causing serious injury, having regard to the combination of speed, alcohol and drugs, and the fact that three people have been seriously injured. General deterrence looms large because of the factors at work here. 

85He submitted it was a high end example of this particular offence.  He confirmed each of the victims were asked, but declined, to make Victim Impact Statements.  He considered that a CCO in combination with a term of imprisonment to be served would be appropriate in all the circumstances.

86General deterrence, denunciation and punishment are pivotal sentencing considerations for offending of this nature, and in formulating the appropriate sentence, I must also impose just punishment and establish conditions for your rehabilitation.

87The offence of dangerous driving causing death has since 2008 carried a higher maximum sentence, twice the maximum than what previously prevailed.

88I think I announced at the beginning dangerous driving causing serious injury is five years' imprisonment, is that right?

89MR LEWIS:  That is correct, Your Honour.

90HER HONOUR:  Yes.  General principles governing sentences for this offence are well established, and I have had regard to Court of Appeal decisions which deal with this sort of charge. (Dangerous Driving Causing Serious Injury).

91It is important that the driver's moral culpability must be taken into account, together with the objective dangerousness of the driving and a person who drives dangerously, knowing a risk associated with his driving will, all things being equal, be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge, and a court's assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of the potential harm, should the risk materialise, and general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing serious injury. 

92I refer to the dicta of Maxwell, Acting Chief Justice in the decision of Board v The Queen[1], with whom Justice of Appeal Buchanan agreed.

[1] [2013] VSCA 190 at [34].

93Applying those principles it can be seen that this was a very serious instance of this kind of offending.  Driving at high speed with a combination of alcohol and drugs is a highly dangerous activity.  As a consequence you struck the Armco barrier, lost control of the vehicle and an uncontrolled vehicle is likely to cause death or serious injury.

94The risk actually created in this instance was great and the potential for harm was, likewise, very great.  I consider your culpability to be high because you were aware of the fact that you had been drinking and taking drugs that evening prior to driving.

95In your case, balanced into the sentencing exercise is the real progress that you have undertaken following the commission of the offence and further delay in this matter is in no way attributable to any faults on your behalf.

96You have demonstrated to the court that you have taken very real steps towards your rehabilitation.

97Ultimately, I have concluded the appropriate disposition, given all the circumstances, is a combined term of imprisonment and a CCO. 

98I noted the concession of the Crown that such a sentence is an available sentencing disposition and, therefore, implicitly, a sentence of less than two years coupled with the CCO is appropriate.[2]

[2]Debono v The Queen [2016] VSCA 16. Section 44, Sentencing Act 1991 (Vic).

99It is apparent to the court, Mr Bell, that you have changed materially as a consequence of your involvement in the commission of this offending.  You have suffered personally by reason of your own injuries and consequential psychological problems.  You have expressed appropriate remorse in respect to the harm that has flowed from your offending in respect to each of the three victims involved, and you have dramatically changed your lifestyle, so that you have been working productively and have been a contributing member to our community.

100I consider that this is a case where the opportunity for further reformation by you ought to be grasped and, ultimately, the disposition I have proposed is very much to your own benefit and also to the benefit, ultimately, of the community.

101As the Court of Appeal has stated in the guideline judgment of Boulton v The Queen[3] the introduction of CCOs as a sentencing option has dramatically changed the sentencing landscape in this State.  I consider that the imposition of a gaol term in combination with a CCO enables all the purposes of punishment to be served simultaneously in a balanced and coherent way.

[3] [2014] VSCA 342.

102Such an order is punitive because of the gaol component and also because of the mandatory conditions which must be complied with, insofar as the CCO is concerned, together with the further conditions that I propose.

103I have considered that objective gravity of the offending is simply far too great to allow for a CCO without any punitive incarceration.

104The sentence I am about to impose provides for just punishment to reflect the gravity of your offending, general and specific deterrence, protection of the community, denunciation, and allows for your eventual release, subject to supervision with conditions that will enable you to be continued in your rehabilitation in the community.

105Having regard to your post-offence conduct, I have formed the view that your rehabilitation prospects are excellent.

106Can you please stand, Mr Bell.

107In respect to the three charges on the indictment, you will be convicted, and I impose an aggregate sentence of 22 months' imprisonment to follow a CCO of five years' duration on the conditions that I have proposed.

108That is that you will be subject to supervision.  That you will be required to undergo treatment and rehabilitation in respect to both alcohol and drugs, including testing, and that you will be subject to referral for offending behaviour programs.

109In respect to Charge 4 on the indictment, possess drug of dependence, you are convicted and fined $500.

110Pursuant to s.89(1) of the Sentencing Act 1991 your licence will be cancelled and you will be disqualified for holding a licence for 18 months, effective from today's date.

111On the summary charges. 

112On Charge 3, you are convicted and fined $500.

113Charge 5, you are convicted and fined $500.

114Charge 9, you are convicted and fined $750.

115I make the following ancillary orders sought.  I note that they were not opposed.

116I make the disposal order sought and I make the order pursuant to s.464ZF(2) of the Crimes Act for you to undergo a forensic procedure; and

117Finally, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, your sentence imposed would have been five years' imprisonment with a non-parole period of three years'.

118The orders, the forensic order and the disposal order.  I will sign them.

119The only thing I need to tell you, Mr Bell, about the forensic order, is that I have made that order because of the seriousness of the circumstances of the offending, and I consider it is in the public interest to grant that order.

120What will be required is that you will have to undergo a procedure by scraping your mouth with a cotton bud and I have to inform you that if you do not co-operate, then police may use reasonable force to enable that to be conducted.

121I have signed the Community Correction Order.  I will get you Mr Zingler to go down with my associate to please sign that.

122Mr Bell can be taken downstairs.

123I will provide to Corrections a copy of the report that was received from Mr Cummins and just note that he is somebody who is vulnerable.  It is the first time he is in custody and he is relatively young, so, thank you.

124(Offender removed.)

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