Director of Public Prosecutions v Bleakley
[2022] VCC 2065
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE BLEAKLEY |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2022 | |
DATE OF SENTENCE: | 23 November 2022 | |
CASE MAY BE CITED AS: | DPP v Bleakley | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2065 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Negligently cause serious injury; speedboat incident
Legislation Cited: Crimes Act 1958, s 24
Cases Cited:Cooke v R [2021] VSCA 293; Harrison v R (2015) 49 VR 619
Sentence: 3 years, 3 months imprisonment with a 2 year non‑parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr G. Clancy | Clancy Solicitors |
HIS HONOUR:
1On 15 November 2021, you Jamie Dean Bleakley, pleaded guilty to an indictment containing two charges of negligently cause serious injury, contrary to s24 of the Crimes Act 1958. The maximum penalty for each offence is 10 years' imprisonment.
Details of your offending
2The particulars of your offending are set out in the summary of the prosecution opening for the plea dated 14 February 2022, which was tendered in evidence during your plea hearing on 14 November 2022. In short compass it involves your use of a ski boat on Lake Hume at Ebden Victoria on 1 March 2020.
3
On that day, you brought a ski boat which you had owned for approximately
one year to Ludlow’s Reserve, Ebden near Lake Hume with your fiancé, her brother, his daughter, your fiancé's son and his partner and two other friends. Your intention was to spend the day engaging in water sport activities.
4At that time you held a Victorian marine licence and you intended to use the boat for activities, including the towing of what is known as a biscuit, upon which various passengers would be towed.
5At the date of your offending the water level at Lake Hume was low and many dead trees were exposed. You and your group had set up a gazebo and you were observed to be drinking alcohol during the afternoon. Throughout the day you operated the ski boat whilst towing the biscuit. The rope being used, I note, was unsuitable and not designed for the biscuit, although I am not satisfied that this ultimately contributed to the events causing injury to your two primary victims.
6I am satisfied that the manner in which you drove the ski boat whilst towing passengers on the biscuit on that day, brought with it a high risk of injury, or even more calamitous consequences, which fortunately did not occur.
7
At approximately 4.20 pm, you operated the ski boat with your partner's son,
Dallas Edgar, and a friend Kerrida Rourke, as passengers on the biscuit. You performed a series of loops with Edgar falling into the water on a few occasions and Rourke on at least one occasion.
8When one of your passengers fell from the biscuit, you would drive the boat back around and pick them up. As you were completing either your fourth or fifth loop with these passengers onboard the biscuit, you drove too close to the shore, resulting in the biscuit with your two passengers striking a tree, which was approximately 5 metres from the shore and near where your group had set up their camp.
9Ms Rourke, your first victim, struck the tree initially, with Edgar your fiancé's son and your second victim, striking it directly thereafter. The summary tendered in your plea hearing estimates the speed at which you driving the boat at approximately 24 kilometres per hour. Given the length of the tow rope being used to tow the biscuit, your boat could not have been more than 20 metres from the water's edge at that time. You should not have been exceeding five knots within 50 metres of the water's edge.
10The impact of your actions upon your two immediate victims and indeed your other and guests present, was undoubtedly terrifying and traumatic. Fortunately, both victims were pulled from the water. Ms Rourke was airlifted to the Alfred Hospital and admitted to intensive care. Another ambulance was called and conveyed Dallas Edgar to the Albury Base Hospital.
11Police attended and you were required to undergo an evidentiary breath test. This test conducted at approximately 5.54 pm, indicated a blood alcohol concentration of 0.149 per cent. At 6.54 a sample of blood was taken in the Wodonga Hospital. This indicated a blood alcohol level of .164 grams per 100 millilitres of blood, and additionally the presence of the drug Fentanyl, which was recorded at a concentration of 1.2 nanograms per millilitre.
12The opinion of a forensic physician concluded:
“A blood alcohol level of 0.164% causes serious adverse effects. At this level, Mr Bleakley would have been entirely unable to maintain control of his vehicle. The combination of alcohol and Fentanyl is likely to have increased his impairment, however it is not possible to estimate the degree of increase.”[1]
[1]Exhibit A
13I have noted your comments to police shortly after being interviewed on the morning of the following day, noting that you believe you were just there having a good time in the water and, “I estimated the rope length and I just came around … as it's slinging the people out it's gone too far and into the tree.”[2]
[2]Ibid
14I am also satisfied that whether or not your blood alcohol level was 0.164, or 0.149 as measured by the evidential breath test, matters little. I am satisfied that you had consumed far too much alcohol on that day to be safely operating the vehicle.
15Further, the physical evidence of the length of the tow rope and the position where the incident occurred, in my view satisfies me that you were operating the vessel at an excessive speed too close to the edge of a waterway.
16The injuries to your primary victims, in each case, satisfy the threshold for serious injury. Mr Edgar suffered a comminuted and displaced fracture of the left femur and underwent surgery on at least two occasions.
17Mr Morgan on your behalf at the plea, submitted that Mr Edgar's injuries should be assessed at the lower end of serious injury. He submitted to me that Mr Edgar has made a full recovery. I find this difficult to accept, but I do accept that his injuries are certainly at the lower end of the serious injury range.
18The same cannot be said in relation to Ms Rourke. Her victim impact statement dated 3 March 2022,[3] which was tendered, and a further victim impact statement prepared by her father, dated 26 February 2022, were read by the prosecutor at your plea hearing.
[3]Exhibit B
19Ms Rourke suffered a severe head injury and undoubtedly would have died but for appropriate specialist medical intervention. She was in a coma for eight days, has not been able to work following the accident and has had extensive rehabilitation with ongoing physical, mental and emotional reactions to the consequences of your offending. She has ongoing mobility problems in her left side, significant jaw and dental damage and has been significantly reliant upon her father for financial support since the time of your offending.
20Her father's victim impact statement gives some impact into the stressors and anxiety suffered by him as a parent following this event. One aspect of his emotional impact to the crime is set out as follows:
“When my daughter was in hospital, I went to the hospital every day. I was overwhelmed by rage and emotions. Watching our daughter and getting news from the doctors was very stressful and scary. I didn't know whether my daughter would wake up.”[4]
[4]Exhibit C
21At the time of this statement, in February this year, he was still having concerns about his daughter.
“… I think she has changed since the accident. Sometimes she repeats things she has already told me.”[5]
[5]Ibid
22I must conclude that your offending involving Ms Rourke is regarded as a serious example of that type of offending.
Personal circumstances
23You are currently 38 years of age, and you were 35 at the date of the offending. You have four children, three sons aged 17, 12 and 13 and a seven year old daughter. You have a good relationship with your sons, but sadly have not seen your daughter for a number of years, as your relationship with her mother is not amicable.
24You are currently in a stable seven year relationship with Ms Watkins, the mother of your victim Dallas Edgar. You are engaged to be married and I accept that this situation has not been assisted by your uncertainty as to the outcome of these charges.
25I accept that you generally have a good work record, most recently as tree service worker for the Indigo Shire. Sadly you suffered a workplace injury in mid-2020 and you suffered significant back problems since that time. I also accept that you were prescribed medications including those containing Fentanyl as a result of that condition and I do not regard the finding of Fentanyl in your system at the time of your offending as an aggravating factor.
26I also accept that you have shown genuine remorse for your actions and offered support to both your victims, particularly your partner's son, Dallas Edgar. I am prepared to treat your plea of guilty as an early plea and afford you the benefit of that in terms of the sentence I will impose upon you.
27I note that there was a degree of uncertainty about the extent of injuries suffered by your two victims, and this has been one factor which has also led to a delay in the finalisation of this proceeding.
28
I accept that there has been some delay which is not attributable for any fault on your behalf. The fact that you have pleaded guilty on an arraignment on
15 December 2021, and your plea hearing did not proceed until
14 November 2022, must necessarily result in anxiety as to the uncertainty surrounding the outcome of this case.
29You have admitted prior convictions as set out in Exhibit D, although your most recent prior conviction in Victoria dates from September 2010, there is sadly a history recorded in this State and up until 2013 in New South Wales, which indicates a prior history of driving offences, particularly those involved with excessive consumption of alcohol.
30I accept that following your last offending in November 2012, you had completed a six month residential rehabilitation program directed towards alcohol abuse. I am prepared to regard your prospect of rehabilitation as at least good, noting that you have been on bail since your offending and there are no convictions recorded against you since that time. Nevertheless, given your history of multiple episodes involving powered vehicles and alcohol abuse, I must consider specific deterrence as relevant to the overall sentencing disposition.
Sentencing considerations
31
General and specific deterrence in your case together with denunciation of your conduct, must play a significant role in the sentencing disposition. I have taken into account the support of character references tendered on your behalf, from
Ms Paula Ferguson(undated), Ms Gemma Ross, dated
29 March 2022, and Mr Dean Wills also dated 29 March 2022.
32On the basis of those references I can conclude with some confidence that you are a man who is well regarded by others in the community and generally a person who demonstrates good character in his dealing with others. Nevertheless, your behaviour at the time of this offending demonstrated what I regard as an idiotic disregard for the likely risks of serious injury or even death to innocent victims from within your own family and your close friendship group.
33
Mr Morgan urged me at your plea hearing to consider a community-based disposition or at least an order in terms of a combination sentence on a
Community Corrections Order coupled with a short period of imprisonment.
34I have read the assessment that was received and I note that you are assessed as being suitable for such an order, but as pointed out by Mr Cordy on behalf of the prosecution, the assessor regards you as being of high risk of re-offending and furthermore the prosecutor submits that given the current sentencing practices and authorities in the Court of Appeal that a community corrections order alone or in combination with a sentence available for a combined sentence would not be within the range appropriate, given the gravity of your offending.
35Mr Cordy, on behalf of the Director of Public Prosecutions referred me specifically to authorities of the appeal courts in Cooke v R[6] and Harrison v R,[7] which considered sentencing in relation to negligently causing serious injury, albeit not related to boats. In my view, there is no valid reason for a sentencing judge to distinguish between sentences imposed for negligence causing serious injury arising out of irresponsible use of a motor vehicle as against injuries arising from the irresponsible use of a power boat.
[6][2021] VSCA 293
[7](2015) 49 VR 619
36I do accept that the injuries to your two victims occurred in the same event. Nevertheless, I cannot ignore that throughout the afternoon you had continued to drink alcohol, you had continued to use your power boat in this manner, that was in my opinion irresponsible and highly likely to result in innocent people being injured.
37A combination of the manner in which you were driving the boat so close to the edge and exposed dead trees, combined with a blood alcohol concentration, roughly three times the Victorian legal limit, and the inescapable fact that you and those persons travelling on the biscuit, were travelling at an excessive speed so close to the shore, demonstrates the need in your case as specific and general deterrence to be recognised in the sentence.
38If you would stand up now, Mr Bleakley, I propose to sentence you as follows.
39In relation to Charge 1, you will be convicted and sentenced to a term of imprisonment of three years. This is the head sentence.
40In relation to Charge 2, you will be convicted and sentenced to imprisonment for a period of two years and nine months' imprisonment. I direct that three months of the sentence imposed on this charge be served cumulatively on the sentence imposed on Charge 1.
41The total effective sentence I impose on you is three years and three months' imprisonment and I direct that two years be served as a minimum before you are eligible for parole.
42I must also pass further sentences in terms of your marine licence and I propose to do that, but I just want to hear from Mr Clancy and Mr Cordy as to the pre‑sentence detention. Mr Clancy, your client was taken into custody last night. I think you have muted Mr Clancy.
43MR CLANCY: That's correct, Your Honour, yes.
44HIS HONOUR: Yes. So, there would be one day of pre-sentence detention including this day?
45MR CLANCY: That's correct, Your Honour, yes.
46HIS HONOUR: Yes.
47
MR CORDY: I beg your pardon Your Honour, as I understand it a period of imprisonment of less than one day is not to be calculated as pre-sentence detention. I haven't got the section in front of me Your Honour, but it's the prosecution's position that there is no pre-sentence detention. He was taken into custody yesterday, he's here less than 24 hours later and being sentenced
today - - -
48HIS HONOUR: Being sentenced today so he'd get credit for today Mr Clancy.
49MR CORDY: Yes.
50HIS HONOUR: Mr Clancy if there is an issue with that, I'll want to make sure that I conclude the sentence today.
51MR CLANCY: Yes, Your Honour.
52HIS HONOUR: If there is an issue with that pre-sentence detention, I will give leave for you and Mr Cordy, or Mr Cordy's solicitor to bring the matter back on before me and that issue can be argued.
53MR CLANCY: As the court pleases.
54
HIS HONOUR: All right. Well, I am not going to declare any days by way of
pre-sentence detention Mr Bleakley, but both of the lawyers tell me that there's a section that deals with that, but you do get credit for today.
55Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have imposed upon you is four years and three months' imprisonment.
56Pursuant to s171(2) of the Marine Safety Act 2010, upon conviction for an offence against s24 of the Crimes Act [1958], in connection with the operation of a vessel, I cancel any licence you hold under that Act, for a period of three years from today's date, and I direct pursuant to s171(4) of the Marine Safety Act 2010, that he particulars of this order be sent immediately to the safety director and there's a forfeiture order also Mr Clancy in relation to the biscuit that was being towed and the tow rope. Is that opposed at all? Again I'm sorry Mr Clancy I can't hear you.
57MR CLANCY: No, Your Honour, not opposed.
58HIS HONOUR: Thank you. Yes. All right well pursuant to - - -
59MR CLANCY: No, it's not opposed Your Honour.
60
HIS HONOUR: Yes, thank you Mr Clancy I think you were just frozen on the screen for a moment. So pursuant to s78(1) of the Confiscation Act [1997], the property referred to the schedule being placed in the custody of the
Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. And that is the green and black ski biscuit and the tow rope.
61So, is there anything further sought Mr Cordy on behalf of the Crown?
62MR CORDY: I understand that covers all matters, Your Honour, thank you.
63HIS HONOUR: Thank you. Mr Clancy anything further?
64MR CLANCY: No, nothing arising Your Honour.
65HIS HONOUR: All right, thank you. Mr Bleakley, I am sorry that you have had to come here in these circumstances today and no doubt you will be able to get in touch with your lawyer and he will explain matters that you have not understood. Did you actually understand, I've sentenced you to that head sentence of three years and three months, with a minimum period of two years to serve before you're eligible for parole.
66OFFENDER: Yes, Your Honour.
67HIS HONOUR: All right, thank you. Well you can go with the Corrections officers now, Mr Bleakley, thank you, and we'll adjourn the court, 10.30 tomorrow? Thank you, Mr Cordy, thank you Mr Clancy.
68MR CORDY: Yes.
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