Director of Public Prosecutions v Bertuch
[2014] VCC 1026
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW BERTUCH |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2014 | |
DATE OF SENTENCE: | 12 June 2014 | |
CASE MAY BE CITED AS: | DPP v Bertuch | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1026 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Bourke and Ms J. Harris | Office of Public Prosecutions |
| For the Accused | Mr B. Wilkinson | Brendan Wilkinson |
HER HONOUR:
1 Andrew Bertuch, you have pleaded guilty to three charges of dangerous driving causing serious injury. The maximum penalty applicable to each charge is 5 years' imprisonment. You have also pleaded guilty to one charge of possessing a drug of dependence, namely cannabis. The maximum penalty applicable to that charge is five penalty units.
2 These crimes arise out of events which took place on 29 March 2013 at approximately 8.30am. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to say the facts in this case, in my opinion, are most serious.
3 By way of brief summary of your offending, on 28 March 2013 you and friends, Thomas Leather, Joshua Nyhof, Robert Gardener, Michael Davis and William Maloney were at a camping ground near Mount Sabine Road, Benwerrin. That evening you consumed approximately ten beers before going to sleep at some time around 3.00am on Friday, 29 March.
4 At the time of this offending you were 23 years of age and at sentence you are 24 years of age. You were and are close friends with the victims of your offending. At the time of this collision you were the holder of a full and current Victorian driver’s licence.
5 At about 8.30am on Friday, 29 March, there was a single vehicle collision on Mount Sabine Road, Benwerrin. That collision occurred when the van driven by you left the road and collided with a gum tree. At the time of the collision the van contained three passengers, all of whom suffered serious injuries.
6
Prior to the collision, at approximately 7.00am you entered your van as driver, with Gardener in the front passenger seat and Nyhof and Leather in the rear cargo area. You drove away in search of a larger camping area. After stopping for a brief time, you drove to a number of locations along
Mount Sabine Road.
7 The relevant section of Mount Sabine Road is a single lane two-way gravel road in good repair, wide enough for two vehicles to pass each other safely.
8 Running along the western side of the gravel road is a grassed embankment and there is a grassed reserve on the eastern side of the road.
9 This section of Mount Sabine Rod is straight on a slight incline. When driving up this incline, there was a clearly visible yellow 30 kilometres per hour winding road ‘advisory’ sign. At the crest of the rise the road turns slightly to the left before it descends for a short time. At the bottom of the descent is a sharp right hand bend with a number of large gum trees on the inside corner of it, which was the point of impact on this occasion. Mount Sabine Road has a default speed limit of 100 kilometres per hour.
10 At about 8.30am the van you were driving passed the yellow 30 kilometres per hour winding road ‘advisory’ sign and went over the crest of the rise. Whilst attempting to negotiate the slight left hand bend at the crest, the rear of your vehicle slid out to the right. You attempted to correct this by turning the wheel to the right but over-corrected which caused the rear wheels to slide out to the left hand side. The vehicle rotated in a clockwise direction and began to tilt before colliding, passenger side first, into a large gum tree at the bottom of the descent.
11 Leather and Nyhof had no recollection of the collision. Gardener, in his statement to police, said he did not remember feeling unsafe in that you were speeding or anything.
12 Police and emergency services attended the scene and all persons involved in the collision were taken by air and road ambulance to The Alfred and Geelong Hospitals.
13 Thomas Leather, who was 23 years of age, received life threatening head injuries as a result of the collision. He suffered widespread damage to brain tissue together with subarachnoid haemorrhage. He also suffered extensive fractures to the base of the skull, fractures to facial bones, ribs 5 and 8, and both lungs collapsed. He was flown from the collision scene directly to The Alfred Hospital for treatment and was then moved to Epworth Hospital for rehabilitation. He continues to have some ongoing difficulties as a result of the collision.
14 Joshua Nyhof, also 23, was in the rear cargo area of the van. He received fractures to his spine at the level of his neck and chest, fractures to ribs 6 ‑ 12, a collapsed lung and bruising to the lung tissue. He was initially transported to Geelong Hospital then to The Alfred Hospital for further treatment. Medical opinion suggested he had a good prognosis and the prosecution understood Nyhof had made a complete recovery.
15 Robert Gardener, also 23, was seated in the front passenger seat. As a result of this collision, he received fractures to ribs 6 – 12, a lacerated spleen, fractures to thoracic vertebrae 1 – 4, collapsed lung and bruising to lung tissue and was transported by road ambulance to Geelong Hospital and then to The Alfred Hospital.
16 You suffered only minor injuries and were only required to be observed overnight at Geelong Hospital.
17 Before you were taken to Geelong Hospital, a preliminary breath test was conducted with the result of .048.
18 At Geelong Hospital, a blood sample was taken about 5½ hours after the collision and upon analysis had a blood alcohol concentration of .016.
19 You told ambulance paramedics and Senior Constable Daffy that you had consumed alcohol on the morning of the collision.
20
A collision reconstruction was completed by Detective Leading Senior Constable Jenelle Mehegan. In her opinion, when your vehicle first commenced yawing (loss of control), your vehicle was travelling at about
72 kilometres per hour.
21 You were travelling in excess of the critical curve speed which she estimated was about 62 kilometres per hour. She concluded that whilst you were not travelling above the prescribed speed limit (100 kilometres per hour) you were travelling at a speed too high for the corner which resulted in your subsequent loss of control.
22 No mechanical fault was found to have caused or contributed to the collision.
23 When the van was searched police located a small snap lock bag of cannabis in the glove box (charge 4).
24 Turning to your alcohol reading, the lowest possible reading in relation to your alcohol consumption upon analysis was .0516. Dr Wells opined that at a reading of .051 such would adversely affect your driving skills, although I note he did not say in what way or ways you would be adversely affected.
25 I discussed with the prosecutor the basis upon which your driving was dangerous and expressed my concern that your driving did not appear to be a situation of momentary inattention. The prosecution submitted the case against you was on the basis that in that vehicle, your vehicle, on this particular road, when you negotiated this turn, you were driving too fast. In addition, you had on board alcohol to some degree, unable to be quantified, that affected your ability to drive.
26 You were interviewed at Melbourne West Police Station on 9 April 2013 and gave a full account of the events leading up to and of the collision itself. You said in the prior evening you had consumed about 10 beers, and possibly a Jim Beam and cola. You had also ingested a line of what you believed was amphetamines and shared a joint “of cannabis”.
27 It was noted in the prosecution opening you displayed genuine remorse and concern for your victims during your interview with police and that such was also evident at the scene of the collision.
28 The prosecution advised Mr Gardener and Mr Nyhof had recovered fully from their physical injuries. Thomas Leather had substantially recovered from his injuries, having returned to work as an apprentice mechanic four days a week with increasing responsibility, had also been driving, walking and otherwise moving normally, although suffered fatigue and some memory difficulties.
29 You have pleaded guilty to the charges before me and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial. Further, I take it into account in your favour you intimated early your intention to plead guilty to these charges and further acknowledged your guilt when being spoken to by police in the record of interview.
30 In the circumstances I am prepared to accept that your plea of guilty indicates remorse for your actions. Further, that over and above your plea of guilty I accept you are remorseful for your offending.
31 A number of Victim Impact Statements were before me and I shall return to them later in more detail.
32
Mr Wilkinson advised you had another matter pending at the Moorabbin Magistrates’ Court with a mention of that to occur on 9 September 2014. You have been charged with possessing cannabis and driving a motor vehicle with an illicit drug present, that offending was alleged to have occurred on
25 February 2014. I note from the questioning by Mr Wilkinson of your father during your plea hearing, that your offending involved cannabis, that you had been a cannabis user and were now trying to address that. I note this charge is pending and yet to be finally determined. As such, it is not a subsequent Court appearance before me.
33 I also note you do not have any prior Court appearances or convictions for driving or other offences.
34 As previously stated, you are 24 years of age at date of sentence. Your parents were in Court to support you, as were a number of your friends.
35 I turn to your background and history, and in that regard, note the written outline of submissions prepared by Mr Wilkinson on your behalf.
36 You were born in Melbourne and lived in the Mitcham area. When you were about 2 years of age your parents separated. You then lived with your mother until you were about 13, at which time you lived with your father. You have had equal access to both parents over the years. Most recently you have returned to live with your mother. You attended primary school in Blackburn, then Koonung Secondary College in Box Hill, completing year 12.
37
You commenced a science degree at Latrobe University but after three weeks dropped out of the course. You then worked at the Mitcham Hotel as a kitchen hand for a few years, then at the tax office for approximately
1½ years.
38 Your most recent and current employment was with Astoria Paper Products where you had worked for about three or four years.
39 A number of people gave evidence on your behalf at your plea hearing, supplemented by written submissions as to their likely evidence prepared by Mr Wilkinson.
40 Your father Robert Bertuch, gave evidence of your sorrow and remorse for what you have done to your friends. He confirmed you spent time at the hospital concerned in particular about Mr Leather. You had taken full responsibility for this collision.
41 He said you were very upset upon hearing the Victim Impact Statement from Mr Leather’s family regarding the impact of your offending. He described you as a kind and considerate young man, loyal to friends and family. You were remorseful at the time of the collision and remained so today.
42 He referred to your current employer continuing to be supportive.
43 Evidence was given by your mother, Sandra Lynch. She confirmed you currently lived with her and had done so for the past three years. You had said you were sorry for your offending and confirmed you had apologised to each of the victims for the injuries you caused.
44 I heard evidence from Robert Alden who owns Astoria Paper. You had been employed with him for four years and were currently working as his warehouse manager. He described you as a conscientious employee, and that you fitted in well with his other employees.
45 I heard evidence from Ian Matheson who had known your family for many years. He described you as an exemplary man. Your offending had caused you great distress, and you had expressed remorse for what you had done to your friends.
46 I heard evidence from Tessa Murray who had known you from school and remained your friend. She was regularly in contact with you. You had expressed remorse for your offending and were very concerned about the impact of your offending upon your friends.
47 I heard evidence from Michael Gardner, who had known you for approximately 6-7 years. He described you as a confident young man and the responsibility of the collision weighed heavily on you.
48
You attended counselling with Road Trauma Support Services following your mother’s recommendation as she was concerned about your emotional wellbeing. You had one session with the author, Ms Bernadette Nugent, on
3 May 2013. You were emotional regarding the injuries your friends sustained and were concerned about their ability to recover. You had maintained contact with your friends and their families since the collision. She described you as visibly distressed when telling her of what occurred that day and about the injuries your friends received. You expressed a great deal of care and concern for your friends’ wellbeing and accepted responsibility for your role in this collision.
49 I was also given a number of written references.
50 From Anthony Wright, dated 24 May 2014, who had known your family, in particular your father, for forty-five years. He had always been impressed with your good humour, willingness to help others and how you related to family and friends. He described you as hardworking and diligent. You cared for those around you. He was aware of this collision and said it had a significant psychological effect upon you. You felt responsible for everything that happened, and maintained contact with all your friends involved in the collision.
51 A reference from Ruth Bertuch, your stepmother, dated 22 May 2014, who described you as a kind and caring young man, quick to offer assistance to friends and family. You treated her with respect, kindness and had accepted guidance and discipline when required.
52 She said you placed value on relationships and had a number of long term friends. You had been traumatised by what had happened to your friends as a result of this collision. You struggled with feelings of guilt, especially as you were the least physically injured. She said you had devoted time to your injured friends in hospital and helped where you could to aid their recovery or keep their spirits up. You had also interacted with your friends’ parents to make sure you were doing everything possible to help.
53 You had never tried to deny your involvement in the collision and were prepared to accept the consequences.
54 A reference from Erin Bertuch, dated 26 May 2014, your older sister. She described you as caring and had always been respectful of people. You were willing to respect and incorporate the opinions of those with more knowledge or experience than yourself. You had a true belief and passion for the friendships you had. You had shown commitment to your friends and their families affected by the collision. She described you as remorseful. You had made sure you were available to your friends and their families at all opportunity to help out in any possible way.
55 There was also a reference from Ashley Bertuch (undated), your older brother. He described you as hardworking, intelligent and caring. You had offered support to your mother and sister over the past few years. He described you as having a fun loving personality. You had a very strong friendship network. Friendship was a huge part of your life and you often visited friends to help them out or to play music with them. You felt extremely remorseful for this collision and had shown extreme concern for your friends and their wellbeing.
56 There was a reference from Gary Bertuch, dated 24 May 2014, your uncle. You are an intelligent, honest, respectful and caring person. Your offending was out of character. You were remorseful for your offending.
57 A reference from Martin Winecier, dated 10 April 2014. He has known you for the past four years. He was Sales Manager at Astoria Paper. He described you as an invaluable member of their team. You were responsible, mature and professional. You were devoted to your workplace and to your mother and sister. You were highly respected by your work colleagues.
58 A reference from Yahel Razvag, dated 18 May 2014. He works with you at Astoria. He described you as generous with your time and had a hard work ethic. You had been greatly affected by this collision and had been concerned for the welfare of your friends involved in the collision.
59 A reference from Michael Parisot, undated, who worked with you for the past three years. You had expressed remorse and regret over your offending. You were concerned for the welfare of your friends.
60 There was a report from Mr Patrick Newton, Forensic and Clinical Psychologist, dated 9 May 2014, before me who conducted a psychological assessment of you. He also provided further details of your background and history in which you described your childhood as positive, and despite the separation of your parents, you said there had not been any major disputes between your parents. Your family had been supportive of you regarding this offending.
61 You described yourself as an average student, when you attended school although completed Year 12.
62 Since 2011 you had worked as a warehouse supervisor and you described to Mr Newton a strong commitment to your employer.
63 Turning to your mental health, you described a period of depression and anxiety during 2010, coinciding with your employment at the Australian Tax Office. You were referred to a psychologist for assistance with a number of symptoms as described in his report (paragraph 17). You attended about six consultations. You were not prescribed medication. You did, however, resort to heavy cannabis use to reduce your anxiety and facilitate sleep.
64 You experienced severe emotional distress following this collision. Your symptoms incorporated significant depression and ongoing anxiety. You had been ambivalent about seeking professional assistance to address your symptoms. You told Mr Newton you continued to use cannabis until late February 2014, and expressed a motivation to remain abstinent from cannabis use. I hope you do as it will only lead to further problems for you if you do not cease its use.
65 You are not receiving any professional psychiatric or psychological care or taking any medication for your emotional and psychological issues.
66 You expressed a deep and abiding sense of remorse for your involvement in this offending. You continued to struggle to come to terms with the injuries suffered by your friends. You were, said Mr Newton, an emotionally fragile man.
67 Turning to his mental state assessment, Mr Newton concluded your emotional response to the collision in March 2013 was complex, combining a depressive component of guilt, fear, involvement, grief for the injuries suffered by your friends and pessimism about your future. This extended to a number of symptoms of traumatic anxiety.
68 Mr Newton outlined your depressive symptoms and anxiety (paragraphs 24-30 of his report). He concluded you were at risk of experiencing more intense depressive symptoms when under significant stress. Your symptoms were sufficiently severe to warrant a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) with a risk your condition could deteriorate further.
69 There was no indication of psychopathic or antisocial personality traits in your personality.
70 Not surprisingly at interview you were preoccupied by your current legal situation. Your intelligence was, he estimated, in the high end of the average range.
71 In Mr Newton’s opinion you were suffering moderately intense anxiety, causing you distress. Some of your anxiety was in response to this collision and also a pre-existing history of anxiety.
72 He ultimately concluded you did not currently meet the criteria for Post-Traumatic Stress Disorder, although there was a risk your condition could deteriorate following sentence.
73 You were experiencing prominent depressive symptoms overcome with a sense of remorse and sorrow, with empathy for the suffering of your friends.
74 Diagnostically your symptoms were sufficiently severe to warrant diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. You also met the DSM 5 criteria for Cannabis Use Disorder.
75 If sentenced to a term of imprisonment you would likely require intense professional support during the initial period of your incarceration.
76 In Mr Newton’s opinion, further involvement with the criminal justice system by you would be limited, based on a number of considerations (paragraph 49 of his report).
77 Mr Wilkinson was not relying upon any of the principles in R v Verdins & Ors[1] when sentencing you. This was an appropriate concession based on the material before me.
[1] (2007) 16 VR 269
78 There are a number of Victim Impact Statements before me. There is a Victim Impact Statement from Joshua Nyhof. Since this collision he said he felt one hundred per cent with no trouble with fear or anxiety. His injuries he said were very short term and he only needed to take two weeks off work. The injuries he sustained he said had healed. He did not have any ongoing pain or lasting inability with his neck.
79 There was a reference from Harry Leather and Jan Leather, the parents of Tom Leather. They described having to attend upon their son in Intensive Care and that he was unconscious for ten days. Over that time medical staff offered little hope of recovery. You were a regular visitor to their son and were obviously distraught and traumatised by what had happened to your friends. Your sense of remorse they said was significant. The impact on the family had also been significant. Since leaving Epworth Hospital, their son had continued to improve and after six months was able to regain his driving licence and return to work as a diesel apprentice on a part time basis. He continued to spend at least a day a week at Epworth involved in rehabilitation programs. They were optimistic there would be further improvement. Their son continued however to be tired and had some memory issues, being reminders of the severe injury his brain underwent. Their son and the others involved in this collision continued to see each other socially. Recovery they said for all had been traumatic and that had included you. You had suffered and shown genuine remorse and continued to support their son.
80 There was a Victim Impact Statement from Robert Gardener. Immediately after the collision he had feelings of distress and nervousness, however, no longer had distressing feelings about the collision, with no trouble eating, sleeping or working. The injuries he sustained were broken ribs, broken shoulder, punctured lung, lacerated kidneys and spleen and fractures to his spine. He was out of work for three months as a result. He had returned to work with no long term injuries. He was able to work and play sport as he had prior to the collision. He described himself as still being close friends with you and had been in a car with you since.
81 There was a Victim Impact Statement from Thomas Leather, in which he outlined his injuries. His longer term memory had returned but his short term memory “glitches” every so often. For three to four months he had to drag his right leg around because of the nerve damage and he could not move his right arm, fingers or face. He had to take time off work to recover.
82 I note the support the victims and their families have given you.
83 The Sentencing Act 1991 requires a sentencing judge to take account of ‘the impact of the offence on any victim of the offence’ and the ‘personal circumstances of any victim of the offence’. In R v Skura[2], Smith AJA recognised that the fact a victim had forgiven an offender may show an offence has had a limited psychological effect on the victim and may also be relevant to the offender’s prospects of rehabilitation. However, it is clear that the weight to be given to the victim’s attitude varies according to the circumstances of the case (R v CLP[3]).
[2] [2004] VSCA 53
[3] [2008] VSCA 113
84 In CLP reference was made to R v Sa[4], Eames JA said,
"… that the sentencing judge’s statement, that the attitude of the victim could not ‘govern’ the sentencing approach, was consistent with the principles laid down by the Court of Appeal in Skura. In evaluating the weight to be given to such a statement, it is necessary to take account of the fact that there may be multiple victims to the crime, that some people may have been indirectly affected by the offence, and the external factors may lead a victim to support a lenient sentence.”
[4] [2004] VSCA 182
85 Eames JA also recognised it is not always possible for a victim to assess what is in his or her best interests. (paragraph 32)
86 Further, in Mok v R[5], Hargrave AJA observed:
“… even where there are only positive victim impact statements, the weight to be attached to them in mitigation is a matter of discretion in each case.”
[5] [2011] VSCA 38
87 I am mindful of the different charges that each accused faced in those cases to which I have referred.
88 I have ultimately concluded the supportive statements of the victims and their family are a relevant sentencing consideration in your favour and point also to your good rehabilitation prospects.
89 I am satisfied on all of the material before me that your rehabilitation prospects are very good. In fixing an appropriate sentence I must seek to maximise the chances of your rehabilitation as they may be.
90 Mr Wilkinson, who appeared on your behalf, submitted the appropriate disposition for your offending was to impose a Community Corrections Order.
91 I discussed this with Mr Wilkinson. I discussed general deterrence as an important sentencing consideration for the offence of dangerous driving causing serious injury, and that it was also relevant there were multiple victims of your offending (Board v R[6]).
[6] [2013] VSCA 190
92 Regarding general deterrence, in DPP v Oates[7] the Court stated:
“… general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.”
[7] [2007] VSCA 59
93 I am of course aware that you are before me for the latter, not the former. The Court further stated:
“Members of the public must recognise that a person who kills or injures, the latter being relevant here, another while driving dangerously is likely to receive a significant term of imprisonment. As the New South Wales Court of Criminal Appeal said in R v Whyte [2002] 55 NSW LR 252 at 286, ‘a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability.’”
94 In Oates, Warren CJ referred to such offending and confirmed:
“While general deterrence is important, the circumstances of this particular case, including the slight, short period of inattention or falling asleep by the respondent, led to a different approach with respect to general deterrence, as was stated in Whyte and now by Neave JA in her reasons.”
95 Her Honour also noted on the material before the sentencing Judge in that case the rehabilitation of the respondent would not be facilitated by a custodial sentence.
96 Turning to matters of denunciation of conduct of this type, Warren CJ noted:
“… there can be no doubt that, arising from the parliamentary intent underlying the legislation and the statements set out by Neave JA, these types of offences are serious. Indeed, this Court has stated more than once in culpable driving cases the approach that should be taken to denouncing inappropriate driving conduct on the road. To some extent, similar approaches can be applied to this type of offence.”
97 Nettle JA in Oates further confirmed a custodial sentence would usually be appropriate for an offence of dangerous driving causing death unless the offender had a low level of moral culpability in the case of momentary inattention or misjudgement. Ultimately he concluded that the case before him did not necessitate the imposition of a custodial sentence. The Court in Oates considered a community based disposition was within the range.
98 I am required to make an assessment of your moral culpability. Mr Wilkinson, on your behalf, urged yours was low.
99 Mr Bourke, who appeared on behalf of the prosecution, sought further instructions in relation to this and sentencing disposition, ultimately submitting your culpability could be described as ‘low level’.
100 I do not regard your offending a the result of ‘momentary inattention or misjudgment’. However, I note regarding your alcohol reading the expert witness did not state how your driving would have been adversely affected by your alcohol consumption. I also note this was in a 100kph speed zone. You were travelling within the speed limit, just 10kph over the limit considered safe to complete the driving manoeuvre without incident.
101 I also note no other vehicle (and therefore no other people) were injured by your driving other than your own passengers. Having said that I am not condoning your driving offending because it only affected your passengers. Your offending was serious in itself. Your driving did not, however, injure any other innocent person on our roads.
102 On balance, I have concluded your level of culpability can be, perhaps generously, described as low level relevant to moral culpability and such a conclusion is relevant to disposition.
103 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, to which I have previously referred and which is of considerable importance in a case such as this.
104 You do not have any prior Court appearances and specific deterrence need not loom large in the sentencing process.
105 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
106 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
107 Mr Wilkinson, as I stated, urged that I have you assessed for a Community Corrections Order.
108 Mr Bourke submitted that regarding disposition an immediate term of imprisonment was required. I can well understand that submission from the prosecution, as your offending is very serious indeed.
109 I had you assessed for a Community Corrections Order simply to enable me to consider all possible sentencing dispositions, and have subsequently received a report from Paul Kukely, Community Corrections Officer, regarding your suitability for a Community Corrections Order if I considered such was appropriate.
110 Your general risk of re-offending was considered by him to be low. A number of proposed conditions of such an order were explained to you. You demonstrated appropriate remorse for your offending to Mr Kukely.
111 Mr Kukely referred to your self report of your history of heavy cannabis use and your recent cessation of it. You said you were willing to undertake an assessment for drug treatment and complete any treatment recommended. You also agreed to voluntarily attend a program called ‘Caution with Cannabis’ through ReGen.
112 Mr Kukely also recommended (based on the report of Mr Newton which had been provided by the Court), a condition that you be assessed for psychological treatment and participate in any treatment recommended.
113 You were made aware of the proposed judicial monitoring on the Order and you said you were amenable to that condition being imposed, as you were also amenable to unpaid community work.
114 Further, you agreed to a condition to complete the Road Trauma Awareness at your own cost.
115 The conditions of a Community Corrections Order were explained to you and you signed consenting to such an order being made, should such a disposition be imposed.
116 I hope you are aware that I have had to give this matter anxious consideration as to the appropriate sentence for your serious offending, and I have not lost sight of the prosecution submission that your offending warrants a period of immediate imprisonment. I can, as I have said, well understand that submission.
117 In the end, taking into account all relevant sentencing considerations, I have determined, subject to your consent being given to me, to accede to the submission by Mr Wilkinson that you be placed on a Community Corrections Order.
118 Before you take comfort in that decision, I want to ensure you understand exactly what this means because you and I are going to see each for the next four years. You will be required, amongst other conditions, to complete a significant number of hours of unpaid community work. You will also see me every twelve months at best, if you breach this order you will see me a lot sooner. And you will see me for the next 4 years that this Order remains in operation, – ie: until you are 28 or 29 years of age you will have a commitment with me. But that is not the end of it and you better listen very carefully.
119 There a number of Core conditions that apply to all Community Corrections Orders and they also apply to you. You have to comply with these. You breach them, any of them, you come back before me and I will sentence you to gaol. I hope that is clear.
120 The conditions are:
·You must not commit, whether in or outside Victoria, during the period of the order, that is the next four years of your life, any offence punishable by imprisonment. Beware, that can include driving whilst disqualified, it can include offences that you just do not realise carry with them the potential of a gaol term. It does not mean the same offending that you have been before me, there are all sorts of charges that carry with it potential gaol terms. If you commit any of those such offences you will be back before me, I will re-sentence you, you will go to gaol.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order, that is for 4 years. You are not going to have your licence for the next 18 months, no licence, no excuse for not attending. So you cannot come back to me and say, "Could not attend, did not have a licence, could not get there", not interested. So think about these things as we go through them, the conditions are quite onerous.
·You must report to the Community Corrections Centre at Box Hill within 2 clear working days following the making of the Order.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change. If you do not tell them, you breach the order, you are back before me, you go to gaol.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee. No holidays without permission, anywhere outside Victoria for 4 years.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
121 In addition to those Core conditions which apply to everybody on one of these Orders there are a number of other conditions attached to this Order, and they apply to you:
· You have to perform 400 hours of unpaid community work over a period of the first 24 months as directed by the Regional Manager. That will mean you have to work on weekends but look at it this way, if you are in priosn you would be making numberplates seven days a week. So you are going to have to give up your Saturdays or your Sundays or work at night or work in the morning before work. Not attending because you do not have a licence is no excuse. You are going to have to perhaps call in some goodwill of others to drive you to your community work or take public transport like a lot of people. Be careful, no excuse.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee, for 4 years. (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager, in particular a program provided by ReGen called ‘Caution with Cannabis’. You have got to do it, they tell you to do a course, do it, otherwise you come back before me, you get sentenced to gaol, it is simple.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and completing the Road Trauma Aware Program at your own cost.
122 I further order pursuant to s.48K Sentencing Act 1991 that you be monitored by this Court and that means me, not someone else, for the next 4 years for the Court to review your compliance with the Order. You must in that regard re-appear before the Court (me) for a review under s.48L of the Act every twelve months, the first review on 11 June 2015. If you fail to re-appear in accordance with this monitoring condition the Court may issue a warrant for your arrest. You come back before me, sentence you to gaol.
123 Further, I request pursuant to s.48(1) Sentencing Act 1991 a report
six-monthly from your Community Corrections Officer regarding your compliance or otherwise with this Order. Should it be the latter, ie: your non-compliance, you can expect this matter to be brought on as soon as possible after receipt of such a report.
124 I can only impose a Community Corrections Order if you agree to such an Order and that means you agree to every one of those conditions as I have explained. So I need to tell you just a little bit more about that.
125 I should advise you that if you contravene or breach the Order by committing further offences you can be charged for the breach and a sentence of imprisonment is one of the options that can be imposed for that breach. See s.83A(d).
126 In addition, you will also be re-sentenced for the offences before me. One of the options available includes a term of imprisonment, s.83A(s).
127 So you have got to be extra careful for the next four years of your life, which is a long time in the life of a young man. No committing any further offences that might incur a term of imprisonment or breaching of any of the conditions of the proposed Community Corrections Order for four years, otherwise you come back before the Court, and back before me, and I have to re-sentence you on the three charges of dangerous driving causing serious injury and you will go to gaol. So you have to be extra careful.
128 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, a substantial fine can be imposed. See s.83A(e) and A(f).
129 Now you are aware of all of that? Also you should know this that your friends, the victims and their families have played a significant part in my decision today not to incarcerate you immediately despite the prosecution position that you must be incarcerated immediately. Remember you cannot rely on them when you come back if you breach, you cannot come along and say, "My friends are supporting me", too late, this is your only chance. So do you want to have a think about it, do you want to talk to Mr Wilkinson, there is a lot in it Everybody who goes on one of these orders thinks they have had a big win, they might have till they come back, then there is a big loss and I am saying to you that if you do not keep this order, if you breach it in any way, shape or form, you will be back before me, you will go to gaol for this offending, that is it, nothing else, that is it.
130 You understand what I have said, do you consent to a Community Corrections Order being made in the terms that I have just outlined in their totality?
131 ACCUSED: Yes I do Your Honour.
132 HER HONOUR: Do you understand that if you breach this order you will come back before me?
133 ACCUSED: Completely Your Honour.
134 HER HONOUR: Do you understand you will go to gaol for these offences, Charges 1, 2 and 3?
135 ACCUSED: Very much so.
136 HER HONOUR: Do you realise that you are going to be seeing me for the next 4 years of your life?
137 ACCUSED: I do Your Honour.
138 HER HONOUR: First appointment 11 June next year, it will be sooner if you are not complying, I will bring you back, you follow?
139 ACCUSED: It won't be.
140 HER HONOUR: So the formal sentence of the Court is on charges 1, 2 and 3 you be convicted and placed on a Community Corrections Order for 4 years from today’s date with all those conditions that I have previously stated.
141 On charge 4, possess a drug of dependence, you are convicted and fined $250.00 with a stay of one month.
142 Pursuant to s.89 Sentencing Act 1991 your licence is cancelled and you are disqualified from obtaining a licence for 18 months from today’s date, do not drive.
143 In determining the length of cancellation of your licence, I am mindful that licence cancellation has a punitive element and also that having a licence can assist your rehabilitation prospects. See Lefebure[8].
[8] (2000) 112 A Crim R 41
144 I note you have not spent any time in custody by way of pre-sentence detention pursuant to s.18(4) Sentencing Act 1991, should I need to revisit this sentence in the future.
145 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of charges 1, 2 and 3 following jury verdict, in other words if you had pleaded not guilty and been found guilty, I would not have imposed a Community Corrections Order, rather I would have sentenced you to 5 years imprisonment and set a non-parole period of 3 years.
146 You should also note that the Director of Public Prosecutions urged an immediate gaol term, and no doubt he will carefully look at my reasons for sentence. He may decide my sentence is manifestly inadequate, he may appeal my decision. I let you know that but I have attempted throughout these reasons to explain why I have imposed a Community Corrections Order.
147 I am loathe to talk of sentencing as winning or losing, but this may be how you see it. You might think you have had a win today in that you are not going to prison – and you have. It will not be a win if you breach or contravene the Order in any way and come back before me for re-sentencing on these three charges.
148 The prosecution made application for a disposal order in relation to the cannabis. This was not opposed by counsel on your behalf, and I make the order in the terms sought.
149 HER HONOUR: Do you understand all that?
150 ACCUSED: Yes I do Your Honour.
151 HER HONOUR: I really don't want to see you again.
152 ACCUSED: You won't till next year.
153 HER HONOUR: Good answer. All right, now don't go away, you've got to stay standing for a while, orders. I make an order for disposal, yes I forgot to mention that. The prosecution make an application for disposal of the cannabis, that was not opposed by counsel on your behalf, I make the order in the terms sought, yes next. Box Hill Community Correction Services by what's today, within two clear working days, so what's that?
154 ACCUSED: Your Honour, I have an appointment tomorrow already booked.
155 HER HONOUR: Have you, good, make sure you are there, if you are not there you breach it, you are back before me next week, it is very quick. That six monthly report from Corrections means that if you have been messing up and not complying I will hear about it earlier. Do you want to show counsel? Are you right with that Mr Wilkinson?
MR WILKINSON: Yes Your Honour.
HER HONOUR: You can go back if you like just to make doubly sure he understands what he's signing.. All right that is your signature there?
ACCUSED: It is.
HER HONOUR: Copies will be made and given to the parties, don't forget to keep your appointment whenever it is tomorrow, I don't want to see you again, thanks.
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