Director of Public Prosecutions v Belot
[2016] VCC 1593
•27 October, 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01530
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| KANE BELOT |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October, 2016 | |
DATE OF SENTENCE: | 27 October, 2016 | |
CASE MAY BE CITED AS: | DPP v Belot | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1593 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Reckless Conduct Endangering Persons x 1, Negligently Causing Serious Injury x 2, Recklessly Causing Injury x 2
Legislation Cited: Sentencing Act 1991, Road Safety Act 2006, Crimes Act 1958
Cases Cited: Harrison & Rigogiannis v the Queen [2015] VSCA 349
Sentence: TES IMP 5 years 10 months, NPP 3 years 10 months, PSD 56
days, 464ZF Order, License Cancel & Disq 3 years from date of release.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | OPP |
| For the Accused | Mr M Page | Leanne Warren & Associates |
HER HONOUR:
1 Kane Belot, you have pleaded guilty to two charges of negligently causing serious injury. That offence carries a maximum penalty of ten years’ imprisonment. You have also pleaded guilty to one charge of reckless conduct endangering serious injury and two charges of recklessly causing injury. These offences carry a maximum penalty of five years’ imprisonment.
2 The driving incident giving rise to these charges occurred on 16 July 2014. You were charged on 28 January 2015 and entered a plea to the charges on 8 August 2016 which resulted in a trial scheduled to commence that date being vacated. Whilst it was not an early plea, I accept that by your plea you have indicated remorse for your offending. Moreover, that in entering the plea you saved the victims the ordeal of giving evidence and the community the cost of a trial. You are entitled to the utilitarian benefit of your guilty plea.
3 You are now 42 years of age. You have a relevant prior matter from 2005, being a traffic infringement notice for exceeding the speed limit by 35km/h or more but less than 40km/h on 4 December 2004. You have other prior criminal matters, also now dated, being cultivating, possessing and using cannabis from 1994 and in October 2003, two charges of trafficking a drug of dependence, use of a drug of dependence and a dishonesty offence for which you received a without conviction fine. I return to these matters later in my reasons for sentence.
4 No offending is alleged against you between 2004 and July 2014.
5 A summary of the circumstances of the offending was tendered by the prosecution and marked ‘exhibit A’. I do not intend to repeat the entirety of that summary. The following account is based on that summary which was agreed.
6 On 16 July 2014, you left the Hoppers Crossing factory in which you work at 5.55 pm. You drove your 2006 Holden Commodore, exiting the factory car park onto Old Geelong Road. You later told police you had consumed six cans of full strength beer before leaving work. You had a blood alcohol reading of 0.115. You were observed to drive onto the incorrect side of Old Geelong Road and to travel at a speed of between 119-131km/h. The posted speed limit for the area is 60km/h.
7 The intersection of Old Geelong Road and Forsyth Road in Hoppers Crossing is a built up area. As you drove south-east towards Forsyth Road, you drove past heavy traffic that was stationary at the intersection.
8 As you approached the intersection, you were seen to attempt to drive back onto the correct side of the road, but in doing so you collided with the driver’s side door of a 2007 Holden Commodore sedan as it turned left from Forsyth Road into Old Geelong Road. This car was being driven by Elizabeth Sheather with her daughter in the rear, restrained by a child seat (Charge 1 – Reckless conduct endangering serious injury to Elizabeth Sheather).
9 The chain of events that followed this collision was horrific.
10
The impact of the collision resulted in your car rebounding off
Ms Sheather’s Commodore and into the driver’s side front panel of a 2007 Hyundai Getz sedan driven by Sakshi Varma. Ms Varma had been stationary in the right turning lane facing north-east on Old Geelong Road waiting for a green right turn arrow. The impact forced Ms Varma’s vehicle rearward into the running left lane of traffic that was continuing north-east on Old Geelong Road. The Hyundai then crashed into the front of a 2013 Nissan Dualis driven by Rochelle Condon, which in turn was forced rearward colliding with a 2011 Subaru Forester driven by Michael Broad.
11 As a result of the collision, Ms Varma was seriously injured and was taken by ambulance to the Royal Melbourne Hospital. She suffered a moderate sized right pneumothorax with a partial collapse of her right lung, a 9mm subdural haemorrhage, fractures to her left second and left fourth transverse processes, which are the bones that protrude from the vertebra. She also suffered bleeding on her brain and pain to the jaw (Charge 2 – Negligently causing serious injury).
12 Ms Varma’s four year old daughter, Shaina Varma was also seriously injured as a result of the collision. Shaina was transported by ambulance and admitted to the Royal Children’s Hospital, suffering a skull fracture, soft tissue injuries to the right side of her chin and to her clavicle (Charge 3 - Negligently causing serious injury).
13 Rochelle Condon, the driver of the Nissan Dualis, was 22 weeks pregnant at the time of the collision. She was transported by ambulance to the Sunshine Hospital and was released after assessment. As a result of the collision she suffered injuries, including soft tissue injuries to her face, left knee and muscular pain and tenderness to the neck. She also suffered right chest lower rib tenderness, but a facture could not be excluded as her pregnancy meant the area could not be X-rayed (Charge 4 – Recklessly causing injury).
14 The momentum of the Hyundai driven by Ms Varma forced it to continue into the left running lane of Old Geelong Road and into the path of a 2000 Nissan Pulsar driven by Helen Fitzgerald which in turn, collided with the rear of the Hyundai. Ms Fitzgerald describes seeing a car coming from nowhere and although she attempted to brake, she had no time to react before the collision. Ms Fitzgerald was transported by ambulance to the Alfred Hospital where she was admitted with injuries including a buckle sternal fracture, a fracture to her left ninth rib and to her left patella (Charge 5 – Recklessly causing injury).
15 The police examined your vehicle following the collision. Data obtained from that investigation revealed that 2.5 seconds prior to the first impact you were travelling at a minimum speed of 124km/h (with an allowance of 3%), that you commenced braking 1.0-1.5 seconds prior to impact resulting in a minimum speed of 114km/h at the point of impact.
16 As the photographs tendered by the prosecution graphically demonstrate, each of the vehicles involved in the collision was extensively damaged beyond repair.
17 Remarkably, you suffered no injury from the collision.
18 The impact of your offending on each of the victims has been profound. The victim impact statements from Sakshi Varma, Rochelle Condon, Helen Fitzgerald and Elizabeth Sheather outline the physical, psychological and financial consequences of your offending. The victim impact statements are each a powerful reminder of the significant harm caused by this type of offending.
19 In her statement, Ms Varma speaks of undergoing intensive rehabilitation for between four to six weeks and wondering whether she would walk again. She describes feeling constant nausea, and ongoing headaches. Ms Condon’s statement describes the fear that she had that she will lose her unborn baby, and the intense anxiety she experienced as a result. Notably, she writes that “what should have been a joyful experience of becoming a mother was taken away from me, hoping each day that my baby’s life wouldn’t be put at risk unnecessarily”.
Ms Fitzgerald’s statement refers to the impact on her life caused by the ongoing pain she experiences to her knee; no longer able to enjoy long walks and yoga. Ms Sheather’s statement outlines the impact of the accident, suffering nightmares, panic attacks and sleepless nights as she re-lives the accident. All victims speak with one voice about their fear and anxiety when driving, particularly in the vicinity of the collision, and of no longer feeling safe on the roads.
20 I turn now to discuss your personal circumstances. Mr Belot, you were born in Melbourne in 1975 and grew up in a happy and stable family environment. You attended Broadmeadows West Technical School, completing Year 10. You have largely had a consistent work history, having worked in the concreting industry for the past two decades, typically as a concrete pump operator. You were in full time employment with Toplaze Concrete Pumping until 16 July 2014. Following the collision, you ceased working and have been in receipt of a Jobsearch allowance.
21
You were married in 2002 and have two daughters, aged eight and six years. Your marriage broke down in February 2015. Due to the existence of a Family Violence Intervention Order, you have not had any contact with your former wife or two children for the past eight months. You are also now estranged from your parents. For the past 12 months, you have been in a relationship with Ms Hocking, who continues to support you in court, and with whom you have a six month old son.
Ms Hocking has three daughters from a previous relationship.
22
You were assessed for the purposes of the plea by Jeffrey Cummins, Forensic Psychologist, on 10 April, 21 April and 1 August 2016. In his report dated 3 August 2016, Mr Cummins says you began drinking alcohol at school at the age of 14 but following an ‘overdose’ on alcohol at that age, you did not drink between the ages of 14-18 years. After that, you told Mr Cummins that you developed a habit of drinking alcohol to excess with mates. Mr Cummins reports that he spoke with your
ex-wife who reported that she considered you had a drinking problem from 2011 until the date of the collision, linking this to a period of unemployment in 2009, and again following a workplace injury in 2010. Mr Cummins’ reports that in May 2015 you completed a Michigan Alcoholism Screening Test (MAST) and obtained a score of 12 which
Mr Cummins says is on the borderline between “frequent excessive drinking” and “problem drinking”. You told Mr Cummins that, prior to the collision, you were usually drinking “between six and ten cans of full strength beer or bourbon each evening”. Mr Cummins also reports that you were a chronic smoker of cannabis, typically smoking up to one gram of cannabis each evening. You told Mr Cummins you effectively ceased drinking after 16 July 2014.
23 In Mr Cummins’ opinion you did not present with any psychological disorder, although he noted you presented in August 2016 as being mildly anxious and moderately depressed. He expressed a provisional opinion that you “may have a cannabis induced and/alcohol induced memory problem and may also have a memory problem which has been either triggered by, or exacerbated, as a result of suffering an accident related trauma diagnosis such as a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and features of traumatisation and/or a Posttraumatic Stress Disorder (with associated memory loss).”
24
At Mr Cummins’ suggestion, you were referred for a Neuropsychological assessment by Dr Matt Treeby, Clinical Neuropsychologist and Clinical Psychologist with ARBIAS, on 25 August 2016. Following testing,
Dr Treeby in his report dated 14 September 2016, says that you performed at the extremely low to borderline range of intellectual ability, with a full scale IQ of 72, indicating significant and longstanding cognitive limitations. Dr Treeby expresses the opinion that this “may have contributed to your poor decision-making at the time of the offending”. He notes that your level of intoxication at the time “may also have acutely impaired your decision-making, including your decision to drive under the influence”. Dr Treeby said it was “unclear” whether a sentence would weigh more heavily upon you due to your cognitive limitations.
25 Since April, 2016 you and Ms Hocking have been assisted by Ms Tracey Duhau, Family Services Case Manager with Sunbury Community Health Services. In her letter dated 21 October 2016, Ms Duhau says that during the course of your sessions, you have acknowledged that you have made significant mistakes and that you are “incredibly remorseful” for the impact of your actions on others.
26 Mr Belot, your conduct falls within the upper range of seriousness for this category of offending. You drove with a very high degree of negligence, with a blood alcohol reading significantly in excess of the legal limit, at a speed up to twice the applicable limit whilst driving on the wrong side of the road when traffic conditions were, predictably at that time of night and in that area, moderate to heavy. Your inexplicable conduct was a significant departure from the standard of care required of a reasonable driver.
27 The collision had a direct impact on multiple road users, four of whom were injured and of those, two (including a young child) were seriously injured and another victim was placed in danger of serious injury. They suffered every road user’s worst nightmare. That you have a prior for significant speeding, albeit one that is dated, is an aggravating feature of the case.
28 I do not, however, regard your other prior criminal history as having any great bearing on the sentence I impose today. The offences are old, and other than confirming addiction issues in your past, are very different to the conduct for which you are being sentenced.
29 On your behalf, Mr Page submitted that your offending can be categorised as “one off” and that, noting the absence of any offending between 2004 and 2014, the need for specific deterrence does not present as a major sentencing consideration. Whilst acknowledging that an immediate custodial term was warranted, Mr Page submitted that you should be afforded an opportunity to complete rehabilitation programs in the community under a community correction order following a period of imprisonment. Whilst Mr Page conceded your culpability was high, he submitted that I should have regard to the absence of longstanding and enduring injuries that can result in such cases.
30 For a number of reasons I do not consider that such a sentencing disposition is appropriate. First, in cases involving a high degree of negligence, such as this, the sentencing considerations of general deterrence and denunciation are heightened and must figure prominently in sentencing. Secondly, although the serious injuries suffered by the two victims did not, fortunately, result in long-term impairment, your offending is rendered all the more serious by the fact that you caused not one, but multiple victims, to suffer injury, two of whom were seriously injured. Consequently, some degree of cumulation in respect of the charges is required. Thirdly, in the decision of Harrison & Rigogiannis v the Queen [2015] VSCA 349, the Court of Appeal in December 2015, having reviewed sentencing practices for negligently causing serious injury by driving, concluded that those current sentencing practices for offences at the upper end of seriousness are inadequate and need to be uplifted.
31 In the decision of Harrison, the Court of Appeal discussed the situations in which a community correction order or a combination of a term of imprisonment of up to two years and a community correction order may be appropriate in cases of negligently causing serious injury, stating [paragraph 130]:
“It may very well be that some instances of NCSI by driving, in lower categories of seriousness, may appropriately be dealt with by the imposition of a CCO or a combination of a CCO with a term of imprisonment of up to two years. But the likelihood that a CCO alone or in a combination sentence will be appropriate necessarily diminishes as the degree of negligence and the seriousness of the injuries increase. As the Court recognised in Boulton, a point will be reached at which such sentencing options cease to be capable of satisfying the sentencing purposes of punishment, denunciation and deterrence”.
This is such a case.
32 In mitigation of your sentence, I find that whilst you have taken time to come to terms with the impact of your offending, you have since expressed genuine remorse. That, combined with your pleas of guilty, warrants a sentencing discount. Noting the absence of any offending for ten years between 2004 and 2014, I accept that specific deterrence plays a lesser role in your case, and that you have good prospects of rehabilitation subject to you continuing to receive and accept treatment to address your alcohol and other substance abuse issues.
33 I have also taken into account the assessment of Dr Treeby of your intellectual ability being within the extremely low to borderline range, and that this may have contributed, to some degree, to your offending. Undoubtedly, however, your decision-making was also significantly impaired by your level of intoxication.
34 As I stated, the consequences of your actions were devastating. The manner of your driving was appalling. Two people were seriously injured, two others were injured and one was placed in danger of serious injury. In sentencing you, I need to convey to the general community that where the negligence of the driving is at the upper end and it results in serious injury to other road users, substantial punishment can be expected.
35 This is a case where the legal principle of totality has application. That requires me to impose on you a total effective sentence after aggregation of the sentences on each individual count that is just and appropriate for the criminality involved in your conduct.
36 Mr Belot, if you could stand, please.
37 Mr Belot, having regard to these matters, I sentence you as follows:
38 On Charge 1 – reckless conduct endangering serious injury – you are convicted and sentenced to 18 months' imprisonment; on Charge 2 – negligently causing serious injury – you are convicted and sentenced to four years’ imprisonment; on Charge 3 – negligently causing serious injury – you are convicted and sentenced to four years’ imprisonment; on Charge 4 – recklessly causing injury – you are convicted and sentenced to two years’ imprisonment; and on Charge 5 – recklessly causing injury – you are convicted and sentenced to two years’ imprisonment.
39 I direct that 12 months of the sentence imposed on Charge 3; six months of the sentence imposed on Charge 4 and four months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 2. That gives an effective head sentence of six years’ and ten months' imprisonment. I direct that you serve a minimum term of four years, three months before becoming eligible for parole. I direct that - and if I could confirm with counsel, how m any days of pre-sentence detention?
40 MR PAGE: My calculation is 56.
41 MR NIBBS: Yes, Your Honour.
HER HONOUR: Thank you. I direct that 56 days be reckoned as having been served under this sentence, noting that you were remanded on
1 September 2016 for breach of bail.
42 Pursuant to s.89 of the Sentencing Act 1991, on Charges 2 and 3, your licence to drive is cancelled and you are disqualified from driving in the State of Victoria for a period of three years with effect from the date of your release. In setting this period, I have had regard to the fact that you were disqualified from driving for a period of 12 months upon the service of the s.51 notice under the Road Safety Act 2006 in July 2014.
43 Pursuant to s.89C(1) of the Sentencing Act 1991 I find that the offences were committed while you were under the influence of alcohol, which contributed to the offences.
44 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have imposed a total effective sentence of seven years’ imprisonment, with a non-parole period of five years.
45 Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a sample from the inside of your mouth. I make this order noting that it is not opposed and being satisfied that such an order is justified having regard to the seriousness of the circumstances of your offending and is in the public interest. I am required to inform you that if you do not consent to the forensic procedure, then a blood sample may be taken from you and police may use reasonable force to enable that forensic sample to be conducted.
46 Have a seat, Mr Belot.
47 Are there any questions that arise from the sentence that I have imposed?
48 COUNSEL: No, Your Honour.
49 HER HONOUR: I have signed the forensic sample order and I will provide that to counsel. Thank you, if you could remove Mr Belot.
50 (At a later stage).
51 MS CHURCHILL: Your Honour will note that I wasn't involved in the matter at the earlier stage.
52 HER HONOUR: Thank you, Ms Churchill.
53 MS CHURCHILL: I understand Mr Nibbs has been difficult to locate, but I am happy to communicate what Your Honour is about to articulate to the Crown and the instructor.
54 HER HONOUR: Yes, thank you. Look, I do apologise particularly for having Mr Belot brought back up again, but it will be apparent to you when you have had time to absorb the figures that what I announced in open court was actually misread and it makes no sense. So can I just confirm the sentence I have imposed on the individual charges.
55 On Charge 1 - reckless conduct endangering serious injury - convicted and sentenced to 18 months' imprisonment; on Charge 2 - negligently causing serious injury - convicted and sentenced to four years' imprisonment; on Charge 3 - negligently causing serious injury - convicted and sentenced to four years' imprisonment; Charge 4 - recklessly causing injury - convicted and sentenced to two years' imprisonment; and on Charge 5 - recklessly causing injury - convicted and sentenced to two years' imprisonment.
56 MR PAGE: Yes, Your Honour.
57 HER HONOUR: I then directed that 12 months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4 and four months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 2.
58 Charge 2, as you know, was the sentence where I imposed four years' imprisonment. The cumulations, therefore, give an effective head sentence of five years and ten months' imprisonment, and I mispronounced a head sentence of six years and ten months' imprisonment.
59 MR PAGE: Yes, Your Honour.
60 HER HONOUR: Can everyone follow what I have just said? Yes.
61 MR PAGE: Yes.
62 HER HONOUR: I apologise for that.
63 MR PAGE: That's all right. It explains the 6AAA.
64 HER HONOUR: No, it also means that the minimum term I pronounced was in fact incorrect - - -
65 MR PAGE: Yes, Your Honour.
66 HER HONOUR: - - - and needs also to be rectified.
67 MR PAGE: Yes.
68 HER HONOUR: And I am directing that Mr Belot serve a minimum term of three years, ten months before becoming eligible for parole, and that then explains the non-parole period - sorry, the 6AAA that I imposed.
69 MR PAGE: Yes, Your Honour.
70 HER HONOUR: I again apologise - - -
71 MR PAGE: I'm grateful for that, Your Honour.
72 HER HONOUR: - - - for the error and hope that the parties are now clear as to the sentence I have imposed.
73 MR PAGE: We are, Your Honour. Everything works in our favour, so I am very happy, Your Honour.
74 HER HONOUR: Ms Churchill.
75 MS CHURCHILL: I've taken the figures down, Your Honour. I don't know what the sentence was that Your Honour originally imposed, but I'll communicate that to both the Crown instructor and Mr Nibbs.
76 HER HONOUR: Thank you.
77 MS CHURCHILL: I'm sure it will make sense to them.
78 MR PAGE: I will speak to Mr Nibbs as well, Your Honour.
79 HER HONOUR: Yes, thank you.
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