Director of Public Prosecutions v Black
[2020] VCC 1551
•28 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00336
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN DANIEL BLACK |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 July 2020 |
| DATE OF SENTENCE: | 28 September 2020 |
| CASE MAY BE CITED AS: | DPP v Black |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1551 |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence, guilty plea, dangerous driving causing serious injury, multi-vehicle collision, rebound fatigue, COVID-19
Legislation Cited: s.6AAA of the Sentencing Act; s.49(1)(i) of the Road Safety Act
Cases Cited:Stephens v The Queen [2016] VSCA; Neethling [2009] VSCA 116; DPP v Oates [2007] VSCA 59
Sentence:28 months imprisonment with a minimum non-parole period of 14 months imprisonment
S6AAA declaration: 3 years imprisonment with a minimum non-parole period of two years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D'Arcy | Office of Public Prosecution |
| For the Accused | Mr R. Edney | Tony Hargreaves Lawyers |
HIS HONOUR:
Benjamin Black, you have pleaded guilty to two charges of dangerous driving causing serious injury for which the maximum penalty is five years' imprisonment. You have also pleaded guilty to a summary offence under s.49(1)(i) of the Road Safety Act relating to the presence of methamphetamine in a blood sample that was taken from you.
The facts of this matter are set out in the prosecution opening which was tendered on the plea and marked as Exhibit 1.
Background
At the time of the offending in this case, you were 31 years old. You held a full Victorian heavy rigid driver's licence and you were employed as a plumber.
The vehicle you were driving on the day of the collision was a Scania Truck registration XTO 584 owned by Helms Plumbing Pty Ltd. The vehicle was loaded with an excavator as well as other smaller items used in the drainage industry. The total weight of the vehicle and load was 19,290 kilograms.
The offending
I will summarise the facts underlying the charges. At around 4.30 pm on Monday 11 December 2017, you were driving the Scania truck along the Sydney Road off ramp of the Western Ring Road at Fawkner. You were heading east. The off ramp has two lanes, which split into five lanes closer to Sydney Road. There are three left turn lanes for vehicles to travel north on Sydney Road and two right turn lanes for vehicles to turn south on Sydney Road.
The intersection is controlled by traffic lights. Sydney Road runs in a north-south direction. There are seven lanes for northbound traffic. As you approached the intersection, several vehicles were stationary at a red light in the left-hand right turn lane.
The first vehicle was a white Mitsubishi van being driven by Ahmad Khoder. In the right-hand lane was a Toyota sedan; the driver of that vehicle was Mr Hannan Ahmed, who is the victim in respect of Charge 2, to which you have pleaded guilty. In front of you was a Mitsubishi sedan driven by a man named Russell Wilson.
You continued travelling east on the off ramp entering the right turn lane where you collided with the rear of Mr Ahmed's Toyota, forcing it into the rear of Mr Wilson's Mitsubishi. Both vehicles were propelled into the intersection. Your truck side swiped Mr Khoder's Mitsubishi causing minor damage. Mr Ahmed and Mr Wilson's vehicles came to rest within the intersection. Your truck continued moving through the intersection colliding with three other vehicles which were travelling north on Sydney Road with a green light.
The first of these vehicles was a Ford station wagon driven by Giuseppe Ciancio; Michael Yates was the front seat passenger in this vehicle. The point of impact was the front passenger side door where Mr Yates was sitting. The second vehicle you hit was a Ford Territory wagon being driven by Diana Ene. The third was a Toyota driven by Giuseppe Land.
10.Your truck forced Mr Ciancio's vehicle across the southbound lanes of Sydney Road where it struck Jacqueline HEXTALL, a pedestrian standing on a concrete median strip waiting for the pedestrian lights. Thereafter, your truck continued down the on ramp of the Western Ring Road, still in contact with Mr Ciancio's Ford until both vehicles came to a stop on the right-hand side.
11.You then got out of the vehicle. A witness, Andrew Spotwood, who had seen the collision said this:
'From the time the truck stopped and I got out of my car was a matter of about 30 seconds; … once I got out I stopped and ran towards the blue car. When I got there, there was already someone with the passenger of the blue car, so I asked, "Where's the truck driver", someone pointed him out, he was at the front of his truck near the driver's door, just in front and was down on his haunches with his head in his hand. I said, "Mate, you ran a red light' and his response was, "Yeah I know, I blacked out.”'
12.Mr Ciancio said to the police:
'I don't know exactly how long but I remember seeing the truck driver jump out of the truck and run like a bolt, very fast, he was very alert, straight towards me. When he got to me I saw he was alert and panicked, and he said, "I'm sorry, I'm sorry, I blacked out" and put his hands to his head.'
13.A short time later, ambulance, the fire brigade and police personnel attended the scene and rendered assistance. Police commenced their investigation at that time.
14.After the collision, you were taken in an ambulance to the Northern Hospital. You said this to the police officers who travelled in the ambulance with you:
'I was coming back from work … in Caulfield; I was in the left lane coming off the freeway there. I started hyperventilating, breathing very very deeply, and that's it. To be honest with you, I thought I was going to spin around on Sydney Road and that's it. I think I may have made it to the bottom of the ramp and passed out and came to on the other side of the Sydney Road.'
15.On the 2 January 2018, police conducted an interview with you at the Broadmeadows police station. During the interview, you said the following things:
· You were returning to Halley Street, Campbellfield when you started to feel light-headed and slightly disorientated on the Ring Road. By the time you reached the off ramp at Sydney Road, it was getting worse;
· Your intention was to pull over after exiting at Sydney Road;
· You remembered 'gearing down' to slow down for the intersection, and then the next thing you recall was being in the second or third lane on Sydney Road;
· You said it had happened to you once before. You got light-headed and slightly disorientated and shortly after 'blacked out' ;
· For 15 years you used amphetamines once a fortnight or once a week;
· The last occasion, you said, was on the Friday night before the collision. You said you smoked no more than half a gram;
· You were not sleeping well before the collision, but you did not think that fatigue was an issue; and
· You had about six hours sleep the night before the collision.
· You did say that your amphetamine use went over midnight, into the early hours of the Saturday as I follow.
16.There is no evidence that you were took any evasive action prior to the collision. That comes from the reconstruction evidence of Jenelle Mehegan who conducted a collision reconstruction in respect of this incident.
17.You told witnesses and later to ambulance paramedics that you blacked out. You were taken to the Northern Hospital and then returned later to visit a cardiologist. No medical condition likely to have caused a blackout was diagnosed.
18. A blood sample was taken from you which returned a positive result for methylamphetamine with a reading of 0.15 mg/L and amphetamine with a reading of 0.03 mg/L. I note that amphetamine is a metabolite of methylamphetamine and that reading does not represent additional use of amphetamine.
Injuries sustained by the victims in the collision
19.Seven people received injuries in this collision including Mr Yates and Mr Ahmed who sustained serious injuries which are the basis of Charges 2 and 4 to which you have pleaded guilty.
20.I will summarise the injuries these people sustained as set out in the prosecution opening:
21.Lauren Wilson, aged 19, was the front seat passenger in her father Michael Wilson's vehicle. She received minor injuries, pain and soreness to the right side of her body.
22.Giuseppe Ciancio (aged 32) is a bricklayer who was driving his vehicle north towards Craigieburn after working in Coburg. He received injuries which included pain, soreness, a fractured rib and bruising. Mr Ciancio was the driver of the vehicle in which Mr Yates was the front seat passenger.
23.Chloe Ene (aged 11 years) was the front seat passenger in a Ford Territory vehicle driven by her mother Diana Ene, which was struck from the left by the vehicle driven by you. She received minor injuries, pain and soreness to her body.
24.Jacqueline Hextall (aged 69) was retired and was the pedestrian who was crossing the on ramp to the Western Ring Road. She was stationary on a concrete island holding her bicycle when it was struck by the vehicle of Mr CIANCIO as it was pushed along the road. She received a broken bone in her foot as result of this incident.
25.Mr Hannan Ahmed, the victim of Charge 2, aged 55, is a disabled carer who was the driver of the Toyota Corolla. His vehicle as struck from behind. He received serious injuries as a result of the collision including a brain injury, bruises to the heart and bruises and cuts. Mr Ahmed said in his police statement, 'According to the hospital I suffered a brain injury, two bruises on my heart, a few bruises and pain all over my body. I was in ICU for 48 hours and another two nights in a normal bed. I still have pain in my neck in the morning and if I do some thinking it starts to hurt. The doctors said it will take a bit of time, but I'll make a full recovery.'
26.Michael Yates, aged 32, was returning home from work as a bricklayer with Mr Ciancio. The prosecution provided a report from Dr Gaurav Singh, his general practitioner, which is dated 3 March 2020. Dr Singh detailed the injuries sustained by Mr Yates as follows: severe intracranial bleeding; multiple fractures to the skull, chest wall, pelvis, neck and bilateral clavicle. He also suffered a pulmonary embolism and is on long-term anti-coagulation medication. Mr Yates is wheelchair‑bound.
27.Dr Singh says as result of the injuries Mr Yates sustained in the collision, he is 'quite dependent on his full-time carer (sister) for activities of daily living (personal hygiene, grooming, feeding). His memory/cognitive function has been affected by this accident and he is being assessed by a neuropsychologist. Dr Singh said that Mr Yates' anxiety and depression have significantly affected his quality of life and have caused him to withdraw from social activities. In relation to Mr Yates' prognosis he said: 'I feel that there is a possibility of improvement of his mental health in long‑term with good support but will be limited due to complexity of his brain injury.' In respect of Mr Yates' memory and cognitive impairment, Dr Singh said an opinion from a neuropsychologist was required.
28.In relation to Mr Yates' physical injuries, Dr Singh said: 'I feel there will be significant impairment in long-term with his physical ability to do his daily activities. He is currently wheelchair-bound and may change in the future depending on progress made with rehabilitation.'
It is no exaggeration to describe the injuries to Mr Yates as catastrophic. Mr Edney accepted this. He has been irreparably damaged by this collision and his life and that of his mother and sister will never be the same.
Victim Impact
29.Mr Ahmed said in his victim impact statement that he was not able to work for five months after the collision. He describes suffering from increased forgetfulness and confusion. He is apprehensive when driving on highways at faster speeds. He says he is still bearing the consequences of the collision.
30.Janine Taylor, Michael Yates' mother, describes how life for her family changed from the moment of the incident. She describes feelings of disbelief and despair and 'indescribable pain' when asked to make the decision to switch off life support at the hospital after the collision. She has feelings of overwhelming guilt and grief. Since this incident, she has had trouble making decisions and describes her physical health as never having been worse. She says she is missing out on her seeing grandchildren grow due to spending all her time with Mr Yates. She describes ever present anxiety. She feels unsafe away from her house. She has stopped walking her dogs which was her daily routine. Outdoors, she has frightening thoughts and images of cars coming up onto the pavement at her and that cars could swerve and hit her and her dogs.
31.Jackie Taylor is Mr Yates' sister. She is now his carer. She describes her life since the collision as being the hardest and most painful journey she has ever had to go through. She now suffers from major depression, high levels of social anxiety and ever-present general anxiety. She says her social life is now non-existent. She finds talking to and seeing other people a stressful experience. She struggles to leave the house without getting anxious and has feelings of guilt and stress when leaving her brother alone at home. She is unable to take a job and her relationship broke down due to the level of involvement and care she has undertaken for her brother. She believes she has no choice but to be home to care for him 24 hours a day, seven days a week.
She describes hardly sleeping because her mind is constantly thinking and stressing about everything. She feels emotional pain knowing that her brother will never be the same again because of the incident.
It is clear from these victim impact statements that the injuries sustained by Mr Yates have not only left him catastrophically injured, but those injuries and his situation will have an enduring negative impact on at least the lives of his mother and sister as well.
32.Guiseppe Ciancio describes some physical symptoms and indeed, that he suffers from anxiety, fear and hypervigilance as a result of the incident. He said this incident has had a very significant impact on his lifestyle. He describes psychiatric symptoms and that he was admitted as an inpatient at the Austin Hospital in July 2018 and August 2018. He reports persistent agitation, depression, nightmares and flashbacks to the accident. He was prescribed the antidepressant Pristiq to address his symptoms which resulted in him developing tinnitus as an effect of the medication. He continues to take Pristiq and other medications to assist him in sleeping.
33.He continues to suffer flashbacks and thoughts that are triggered by events such as reading about car accidents and watching the news. He says he is easily startled by noises and is easily irritated and frustrated as a result of the accident.
34.It is no exaggeration to say that this collision has had consequences for a large number of people including those that were directly impacted and the family members, in particular, of Mr Yates.
The Prosecution Case
35.The basis of the prosecution case, Mr Black, is that you were driving under the influence of methamphetamine and that whilst driving you experienced one of the known effects of such drug use, being rebound fatigue. Thereafter, feeling tired and unwell, you drove on for a short period and then fell asleep at the wheel leading to this multi-vehicle collision.
36.On 19 March 2018, Dr Jason Schreiber, a forensic physician, provided an expert opinion concerning the methylamphetamine concentration present in your blood sample. He said that the exact doses and times of use cannot be determined from the blood analysis results but methylamphetamine found in the blood was present at levels where impairment of driving skills may be expected.
37.At the Northern Hospital you told staff that before the collision you experienced the following symptoms: shortness of breath, diaphoresis, difficulty focusing, struggling to stay awake, disorientation and visual blurring. You said these symptoms lasted for a few minutes and you continued driving followed by a loss of consciousness.
38.On 12 April 2018, Dr Schreiber provided further expert opinion about the potential reason for you 'blacking out' and said this:
'There is no medical cause for the alleged blackout found in the hospital, apart from an established positive methamphetamine test; methamphetamine can cause, amongst other things, rebound effects of irresistible tiredness (fatigue), urge to sleep and depression'.
39.On 23 January 2020, Dr Michael Horrigan provided an expert opinion concerning the issue of syncope in the circumstances of this case.
40.Dr Horrigan found that since cardiac syncope with or without organic heart disease and epilepsy and neuropsychiatric conditions are extremely unlikely in this case, the plausible scenario is you suffered from the effects of withdrawal from amphetamines being a 'microsleep'.
41.Based on this expert evidence the prosecution case is that effects of the methamphetamine you had taken caused the collision. You have accepted this by your pleas of guilty to Charges 2 and 4 of dangerous driving causing serious injury.
Guilty plea
42.Mr Black, you pleaded guilty to the two charges of dangerous driving causing serious injury this year on 2 March before me in the general list. The matter was listed for trial in that week. The issue in the trial at that time was whether you suffered a blackout resulting from a medical condition. By that stage, the prosecution had obtained the expert report from Dr Michael Horrigan rejecting syncope and offering the view that rebound fatigue from methylamphetamine was the likely cause of the collision.
43.You are of course entitled to the utilitarian benefit of your plea. By pleading guilty you have saved the community the time and expense of a trial and you have spared the witnesses the burden of giving evidence and reliving this traumatic event. These are important matters and I take them into account in sentencing in your favour. I also accept that ultimately your plea indicates a willingness to facilitate the course of justice.
44.However, it is the case that your pleas of guilty were not early pleas. But this is a case where apparently at committal the magistrate had not committed on the basis of methamphetamine use. The delay in pleading guilty must be considered in this context. Additionally, the more serious charges of negligently causing serious injury ultimately did not proceed.
45.The delay in the guilty pleas of course has meant that the victims and their families were deprived of the timely closure an early plea would have provided.
46.Nonetheless, I accept that you are genuinely remorseful for the damage and the trauma that your dangerous driving has caused, and I do accept that your guilty pleas, albeit late, reflect remorse. In coming to this view, I have had regard to what you said to Mr Patrick Newton, the psychologist who assessed you, and to the letter written by your partner Cassie Rogers, in which she describes the remorse you have expressed to her about the consequences to the victims of the collision in this case. She said this: 'He has expressed remorse and guilt at the pain and stress the accident caused the victims and their families.
Defence Submissions
47.Mr Edney submitted that your moral culpability should be assessed as low because this was not a case of drug use proximate to the driving. This was a case where methamphetamine had remained in your system some days after you had used it. Mr Edney pointed out the aggravating features absent such as excessive speed, mobile phone use, erratic driving, alcohol use, competitive driving and failing to stop. He also referred to the length of the driving as a non-aggravating factor.
48.Mr Edney did accept the significance of your drug use to your moral culpability given the rebound effect was the cause of the collision.
49.He submitted that the earlier incident where you say you blacked out is not relevant to the assessment of your moral culpability. In the end, I accept this, and the prosecution did not really argue otherwise.
50.Mr Edney submitted that you did not subjectively understand the chance of the rebound fatigue because you had not previously experienced it, even though you had been using amphetamine and methamphetamine for approximately 15 years. The prosecution accepted that I should not act on the basis you were aware of the risk as a result of your past drug use.
Gravity
51.I turn now to the gravity of the offending in this case. The sentencing principles a court must have regard to in cases of dangerous driving causing death and dangerous driving causing serious injury have been considered by the Court of Appeal in numerous cases including Neethling, Stephens and Oates.
52.In Stephens v The Queen [2016] VSCA 121 at paragraph 21 the court said:
'Dangerous driving thus encompasses a very wide range of conduct, but it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment.'
53.That statement of principle was qualified in the case of DPP v Oates [2007] VSCA 59 where the court noted:
'Any sentence which is imposed must take into account of variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence except where the offender's level of moral culpability is low.'
54.It is clear from the authorities that the gravity of dangerous driving causing death or serious injury is heavily influenced by the offender's moral culpability and the objective dangerousness of their driving. An assessment of moral culpability is a crucial component of the sentencing process in such cases.
55.Another important consideration in sentencing for dangerous driving causing serious injury is the extent of the victim's injuries. In this case, there are two victims - Mr Yates and Mr Ahmed, and Mr Yates received catastrophic injuries.
56.General deterrence is of considerable importance in sentencing for such offences.
57.In the case of Neethling [2009] VSCA 116, the court detailed the considerations relevant to the assessment of the seriousness of such offences. Three of those factors are relevant in this case.
58.First, the extent and the nature of the injuries inflicted. As I just said, Mr Yates received catastrophic injuries and he will never fully recover as I understand the medical material. Mr Ahmed's injuries also met the statutory definition in the Crimes Act for a serious injury being life endangering or substantial and protracted.
59.Second, the number of people put at risk. In this case, many people were put at risk. As detailed in the summary of facts, seven people at the intersection received injuries. This is unsurprising – to fall asleep at the wheel of a truck on an off ramp of the Western Ring road close to peak hour involves the near inevitability of a serious collision, putting at risk all of those in the vicinity.
60. Third, the degree of intoxication of substance abuse. This is a complicated issue in this case. You drove with methamphetamine in your system. There is no evidence which contradicts your claim you had not previously had an experience of rebound fatigue and therefore it is not put that you subjectively understood the risk from previous experience. This was not a situation where you had engaged in a binge of drug use proximate to driving; had you done so I would have assessed your moral culpability as very high. However, you took the drugs and you drove your truck whilst they were still in your system. This is an offence to which you have pleaded guilty under the Road Safety Act. In this case, unlike many involving methamphetamine, it is not is dispute that your use of drugs is causally related to the collision in this case. In the circumstance of this case, whilst it is not put by the prosecution that you had a subjective understanding or personal experience of rebound fatigue, I do not consider that your moral culpability is at the very low level submitted by Mr Edney or that this is the sort of marginal or finely balanced case where is a community corrections order alone is appropriate. This was not a case of momentary inattention. This is a case where you drove in with methylamphetamine in your system to an extent that your ability to properly control the motor vehicle was compromised and driving with the drugs in your system was the cause of the collision.
61.Once you had taken the methamphetamine in sufficient quantities to produce the reading obtained from your blood test, it was incumbent on you not to drive with the drugs still in your system.
62.Fourth, the length of the journey during which others were exposed to risk. Acting on the basis of the account you gave in your record of interview and to the paramedics, you experienced feelings of fatigue not long before you travelled along the exit ramp of the Western Ring road. So, in those circumstances it was a relatively brief period where you were affected by rebound fatigue and in which others were put at risk. Of course, the potential for rebound fatigue to occur was open for a period longer than that.
Psychological assessments
Dr Newton
63.Two reports were tendered on your behalf from psychologist Mr Patrick Newton dated 17 February 2020 and 24 July 2020.
64.In relation to your psychological state, Mr Newton says that you are experiencing elevated anxiety for the following reasons: distress about the collision and its impact on those who were injured and their families; concern and worry about the potential consequences for you of criminal responsibility for those injured; worry about the prospect of separation from your partner and the impact that might have on your relationship; intrusive recollections of a trench collapse at your work in which you were involved in 2017; and stress about ongoing financial difficulties including costs relating to these local proceedings.
65.In the first report, Mr Newton dealt with your history of drug use. You told him that you began to use cannabis in secondary school. Your use of cannabis had been regular but had not persisted into adulthood. However, you experimented with amphetamines at social events in your mid-teens and it became an integral part of your social life. From about the age of 18, when 'speed' became scarce, you began to use cut-down methamphetamine instead. You continued to use methamphetamine weekly until these offences in December 2017.
66.You told Mr Newton that your use of methamphetamine was constant and had not increased over time. You said your drug use was confined to weekend social activities. Mr Newton says based on the history you reported your use of methamphetamine would meet the criteria for a methamphetamine use disorder. You reported abstinence from methamphetamine and as such Mr Newton said your condition could be described as in remission.
67.You are apparently a heavy drinker and have been so since you were aged 18. You describe consuming up to 50 drinks a week. Mr Newton said your description of your drinking indicated significant alcohol related problems and he said your drinking meets the criteria for a moderate alcohol use disorder.
68.Mr Newton was of the view that you would benefit from mental health care to address the anxiety you are experiencing; and secondly, you would benefit from structured assistance to address issues associated with your drinking and substance abuse generally.
69.In his more recent report, Mr Newton said your mental state remains essentially unchanged and you continue to experience anxiety. You are apparently resorting to heavy drinking to manage that anxiety. Mr Newton anticipates your anxiety will become worse in the period following sentence and suggests you will require mental health care in the immediate future. He suggests you would benefit from a sentencing disposition which includes substance-related education, counselling and treatment for your anxiety.
Personal circumstances
70.I turn to your personal circumstances. You grew up in the Essendon area. Your father worked for the government and your mother was a nurse. Your parents separated when you were in your late teens. You have not been in contact with your mother for about six years. You describe her as having alcohol problems. You are closer to your father. You have a positive relationship with him and with your siblings.
71.You attended Essendon Primary School and then Strathmore Secondary College without any problems. After leaving school you completed an apprenticeship as a plumber. You have also completed several other trade certificates and licences. For the most part, you have enjoyed your work as a plumber. You have stayed with each of your employers for several years and you believe you are well-regarded by those who know your work. You have been with your current employer for about a year.
72.You told Mr Newton your new employer is fully aware of your legal problems and has been supportive as you manage these challenges. I have received references from your current employer Lionel Ainsworth and a previous employer Mr Helmi Adams. Both speak of your good character and your reliability and your work ethic.
73.You have been in a long-term relationship with your partner Cassie Rogers since 2002. You have lived together for 10 years and you hope to start a family. She has supported you in the aftermath of this collision and she provided a reference on your behalf to which I have had regard.
Criminal history
74.As regard to your criminal history, you have a minor traffic matter but no other criminal convictions.
Rehabilitation
75.You have no subsequent or pending matters. You have always worked since finishing school. You are a qualified plumber and you have held several long-term positions with various companies. And I accept that you have been a good and reliable employee who has been trusted to work in supervisory positions.
76.You have not used drugs since the collision. In order to stop using drugs, you have withdrawn from the social circle and friendship group associated with your drug use. You have had 19 drug screens since February 2020, all negative apart from one which indicated opioids from a dental appointment.
77.However, your drinking has increased in recent times and is described as 'hazardous' by Mr Newton.
78.Your employment history, stable relationship and the absence of prior convictions, apart from one minor speeding offence, are all matters that point towards good long-term prospects of rehabilitation. However, your long term use of amphetamines and methamphetamines (the cause of this offence) are of concern and you will need to maintain your abstinence in respect of these drugs without resorting to excessive drinking to eliminate the risk of further offending. Overall, taking all these matters into, I regard your prospects of rehabilitation as relatively good.
COVID-19
79.Mr Edney made a number of submissions concerning the effect of the COVID-19 pandemic upon the sentencing in the event that you are to be sentenced to a term of imprisonment. He raised that you will be compelled to enter a 14-day quarantine period of 23-hour lockdown upon your admission to custody. This would not have occurred if the prison system was functioning normally with such lockdown conditions normally confined to those prisoners who have been a management problem or subject to a strict regime of protection. It was submitted that the service of a term of imprisonment in these circumstances is likely to be traumatic, particularly in circumstances where this would be your first experience of prison and add an additional aspect to the punitive process.
80.Second, the burden of imprisonment will be more onerous than would be the case under the normal prison conditions because of the measures taken by Corrections Victoria with respect to the spread of COVID-19 in the prison system. This includes a ban on personal visits with prisoners and a significant reduction in the range of programs offered to prisoners[1].
[1]See DPP v Morey [2020] VCC 320 at [85]
81.Your long term partner Cassie Rogers is a major source of emotional and psychological support for you, and the fact that you will not be permitted personal visits from her – and can only have home visits and phone calls – will increase the burden of your imprisonment and I accept this.
82.Thirdly, the service of a term of imprisonment in a COVID-19 environment is likely to be a source of additional stress and anxiety to you[2]. You are a person already suffering from anxiety, and this is likely to be heightened during a term of imprisonment which will increase the burden of your sentence.
[2]See Brown (aka Davis) v The Queen [2020] VSCA 60 at [48]; Sazimanoska v The Queen [2020] VSCA 66 at [48].
83.I accept the submissions in relation to the impact of the COVID-19 pandemic and I have taken them into account as matters in mitigation in formulating the sentence in this matter.
Submissions
84.As to penalty, Mr Edney submitted that a community corrections order alone was an appropriate penalty given what he submitted was your low level of moral culpability. As I have already indicated, I am not of the view that this is a case where a community corrections order alone is appropriate in the circumstances of this case. The prosecution submitted that a period of imprisonment was appropriate on the facts of this case but conceded that a combination sentence of imprisonment and a community corrections order was within the range of appropriate sentences. Accordingly, I had you assessed by Corrections and you have been assessed as suitable for such an order.
Sentence
85.However, having regard to the very serious nature of this collision, the objective seriousness of the dangerous driving in this case, the catastrophic injuries suffered by Mr Yates and the serious injuries suffered by Mr Ahmed, and the causal relationship between your drug use and this incident, I have formed the view that a community corrections order combined with a period of imprisonment is not within the range of appropriate sentences. This is not a case of momentary inattention; this is a case of dangerous driving resulting from drug use. In my view your moral culpability is nowhere near the level of the momentary inattention cases where periods of imprisonment are sometimes avoided.
86.In my view, having regard to the matters that I have raised, a sentence of imprisonment with a non-parole period is the appropriate penalty. I reiterate that in my view the objective dangerousness of your driving in this case was high.
87.I have formed the view that having regard to your positive prospects of rehabilitation with support, your prospects of rehabilitation are extremely good. I do think you need support. And I have taken into account your previous good character and I will fix a non-parole period that allows for a lengthy period of supervision of parole.
Concurrency and Cumulation
88.In relation to the issues of concurrency and cumulation, the same act of dangerousness that has led to both of the serious injuries in this case; this act was your driving and suffering from the rebound fatigue as a result of your use of methamphetamines. The injuries of Mr Yates are catastrophic and justify the longest period of imprisonment. There must be a period of cumulation in respect of Charge 2, relating to Mr Ahmed to reflect the injuries he sustained. However, I have moderated the period of cumulation to reflect that it was the same actions that led to the injuries of both victims and also by reason of an application of the totality principle – that is the need to ensure that the overall sentence remains just and appropriate.
89.Now, if you could please stand, Mr Black.
Sentence
90.On Charge 2 of dangerous driving causing serious injury relating to Mr Ahmed, you are convicted and sentenced to a period of imprisonment of 12 months.
91.On Charge 4 of dangerous driving causing serious injury relating to Mr Yates, you are convicted and sentenced to a period of imprisonment of 24 months.
92.The period of imprisonment on Charge 4 is the base sentence. I order that four months of the sentence on Charge 2 be made cumulative on the sentence in Charge 4. That makes a total effective sentence of 28 months.
93.Having regard to your previous good character and my positive view of your prospects of rehabilitation with support, I intend to fix a non-parole period at 50 per cent, that is 14 months, before you become eligible for parole. So that is a total effective sentence of 28 months with a minimum of 14 months.
Licence Disqualification
94.In relation to the issue of licence disqualification, firstly, in respect of the summary offence under s.49(1)(i) of the Road Safety Act, you are convicted and fined $600 and your licence is cancelled and you are disqualified from obtaining any further licence for a period of six months. In relation to the charges of dangerous driving causing serious injury, I am required pursuant to the Sentencing Act s.89(2)(a) - this being a serious motor vehicle offence - to cancel your licence and disqualify you from obtaining a further licence for a period of 18 months. Can you just bear with me for a moment?
95.What I will do is - that period is to commence on - I will make it 1 November 2021. In this current COVID environment, I understand there is possibilities of remissions and so forth as a result of lockdowns and I do not know what the precise periods will be, but if that period commences on 1 November next year, it covers substantially the non-parole period and a little bit more in this case. So that is my intention in this matter that that disqualification period commences on 1 November 2021
96.So pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have imposed a sentence of three years with a minimum of two years.
97.So it is a total effective sentence of 28 months with a minimum period of 14 months. Are there any other ancillary orders required, Mr D'Arcy?
98.MR D'ARCY: I do not believe so, Your Honour. No.
99.HIS HONOUR: All right. So nothing else to clarify, Mr Edney?
100.MR EDNEY: No, Your Honour.
101.HIS HONOUR: All right. If Mr Black could be removed please. All right. Thank you both. And I will adjourn till tomorrow.
102.MR EDNEY: Thank you, Your Honour.
103.MR D'ARCY: As Your Honour pleases.
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