Director of Public Prosecutions v Braithwaite-Deegan

[2018] VCC 882

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

AT MELBOURNE
CRIMINAL JURISDICTION
GENERAL LIST

CR 17-01726
Indictment No. H12396904

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB TY BRAITHWAITE-DEEGAN

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2018
DATE OF SENTENCE:	18 June 2018
CASE MAY BE CITED AS:	DPP v Braithwaite-Deegan
MEDIUM NEUTRAL CITATION:	[2018] VCC 882

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence  -  dangerous driving causing death  -  trafficking in a
  drug of dependence  -  plea of guilty

Legislation Cited:           Crimes Act 1958 (Vic), s319(1)

Cases Cited:  DPP v Neethling [2009] VSCA 116; Stephens v The Queen [2016]
50 VR 740; R v Whyte (2002) 55 NSWLR 252
Sentence:  Total effective sentence of four years and six months’
  imprisonment, with a non-parole period of two years and ten
  months; fine of one thousand dollars
Section 6AAA declaration: six years’ imprisonment, with a non-
  parole period of four years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Pickering	Solicitor for the Office of Public Prosecutions Victoria
For the Accused	Mr A Waters	Galbally & O’Bryan

HER HONOUR:

1Jacob Ty Braithwaite-Deegan, you have pleaded guilty before me to one charge of dangerous driving causing death, seven charges of trafficking in a drug of dependence and agreed to two related summary offences to be dealt with by me, namely, dealing with proceeds of crime and possess prohibited weapons.

2You committed these offences when you were 20 years of age and you are
now 21.  Exhibit A, Summary of Prosecution Opening, details the facts and circumstances leading to this offending.  However, I will briefly summarise the offences.

3On 20 February 2017 at about 8.36 am you were driving your Toyota HiLux utility west on Churchill Park Drive, Lysterfield.  At the same time, the deceased, Mr Suvad Vikic, was driving his Ford pick-up in the opposite direction.  Immediately before the collision with his car you were seen veering on the wrong side of the road.  Ms Karen Whatarau was driving directly behind the car driven by the deceased.  She was forced to take evasive action when she saw your car being driven on the wrong side of the road.  She also observed that you were looking down immediately prior to the collision.

4The deceased's vehicle was struck by your car on the right, front side.  Subsequent police analysis indicated that neither vehicle braked prior to the impact.  At the point of impact your car was approximately 1.5 metres across the centre dividing line of the road.  Police analysis also ascertained that your vehicle was travelling between 61 kilometres per hour and 67 kilometres per hour in a 70 kilometre per hour zone.  Mr Vikic died at the scene of the collision from his injuries.  This conduct relates to Charge 1, dangerous driving causing death.

5A witness, Ms Vanessa Whitelaw, who arrived at the scene after the collision heard you say, "I've had a really big weekend.  I'm feeling tired".  Another witness, Ms Darylene Haylan, recalls you saying, "I think I started dozing off".  When spoken to by the police at the scene and asked what the cause of the accident was, you replied saying, "I was adjusting my demister".

6You were interviewed by police the day after the collision on 21 February 2017.  In the course of the interview, you told the police that your last recollection of travelling along that road was that you were looking down and then you got hit.  You denied being distracted by anything.

7Further, when asked by the police whether or not you were tired at the time of the accident you answered "not really" and indicated that you were feeling just normal.  Indeed, at the time of the interview with the police you were unable to provide any explanation as to why it was you were driving on the wrong side of the road.  At the time of the interview your state of mind was such that at the conclusion of the interview you said that you honestly thought that the deceased may have crashed into you.

8Following the collision police conducted a search of your vehicle and located a number of snap lock bags containing white powder and white crystal substances.  Police also seized your mobile phone and, after analysis, obtained information regarding your involvement in drug trafficking.  They also executed a search warrant at your home of 9 Delta Court, Narre Warren and located a total of $39,588.50 cash, an extendable baton, knuckledusters and multiple snap lock bags containing drugs of dependence.  This conduct relates to Charges 2 to 8 on the Plea Indictment and Summary Charges 12 to 13.

9Blood samples were taken following the collision.  The Victorian Institute of Forensic Medicine analysis of the samples stated that the following drugs were detected:  MDMA; MDA, which is a metabolite of MDMA; ketamine; metabolites of cocaine; and lorazapam.  Two blood samples were taken, one at 9.57am and one at 10.30am.  In the opinion of Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine, it is not possible from the levels of the drugs in the blood sample to determine the dose or time of use of any of the drugs.

10In the course of the plea in mitigation, the prosecution relied on the presence of ketamine detected in the first blood sample, as support for the contention that this drug in particular would have had some effect on your driving.  As to the ability to quantify that effect, the prosecution conceded that the state of the evidence eluded such analysis.

11Having further digested Dr Gaya's evidence, the most that can be said in this regard is that; firstly, at 9.57am ketamine was detected at trace or trivial levels and at 10.30am in the second blood sample it was not detected at all.  Secondly, in the circumstances Dr Gaya was unable to give an opinion as to what level it would have been at 8.30 am at the time of the collision.  Finally, in Dr Gaya's opinion any level of ketamine is not compatible with safe driving.  However, in this respect his evidence regarding the impact of this drug upon driving was purely of a general nature and did not purport to relate specifically to the facts and circumstances before me.

12Bearing in mind the standard of proof required for a factor in aggravation upon sentence and after careful analysis of the evidence of Dr Gaya from the committal transcript, I am unable to be satisfied beyond reasonable doubt that any of the drugs identified, in particular, ketamine, did in fact have an impact upon your driving in the manner so contended by the prosecution.

13However, the fact that a cocktail of various drugs were detected in your system subsequent to the collision forms an essential piece of the factual matrix against which this collision occurred.  The objective dangerousness of the driving here is constituted by a combination of factors, all of which are relevant to my assessment of your moral culpability for this grave offending.

14You were driving on the wrong side of the road in circumstances where you have admitted inattention.  Furthermore, given your assertion to Ms Whitelaw immediately after the collision, to the effect that you “had a really big weekend” and you were tired, the role of fatigue is an essential consideration here.  By your actions you have caused the loss of life.

15Exhibit B was a Victim Impact Statement on behalf of the deceased's wife, Ms Sanela Vikic.  In the course of that Victim Impact Statement she says that one phone call on 20 February of last year changed her life forever and part of her died on that day.  She laments the loss of her husband, her best friend and her rock.  She states that looking at her two boys, who will grow up without a father, breaks her heart. Ms Vikic is, quite understandably, unable to console herself given what a huge hole has been left in her life.  It is clear from reading her Victim Impact Statement that every day she lives with the terrible impact of your decision to drive on the morning of 20 February 2017.

16All too often these courts are faced with the tragic consequences of young men such as yourself who fail to understand the potentially fatal ramifications of dangerous driving.  Indeed, as the Court of Appeal has stated in DPP v Neethling:

“It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.  The importance of general deterrence is to try and prevent the very kind of damage which occurred here.”[1]

[1]DPP v Neethling [2009] VSCA 116 at paragraph [55]

17In many respects your case reflects the frequently recurring case of dangerous driving causing death.  You were a young man at the time of the offence, being only 20 years of age and you have turned 21 while in adult prison.  You are previously of good character, having no prior criminal convictions and the evidence before me shows that you have expressed your deep and profound remorse for causing this loss of life.

18In assessing your moral culpability for this offending I take into account a recent Court of Appeal decision of Stephens v The Queen wherein the court observed:

"Both dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender."[2]

[2]Stephens v The Queen [2016] VSCA 121 at paragraph [26]

19Your counsel submitted on your behalf that the objective level of dangerousness here was minimal.  He referred to a list of aggravating features, which appear at paragraph 31 of the Court of Appeal decision of Neethling, and submitted that with the exception of sleep deprivation, none of those factors were present in your case.

20However, as has been observed in Stephens, the factors identified in R v Whyte[3] and subsequently adopted by the Court of Appeal in Neethling, do not constitute a checklist, nor are they intended to be exhaustive.[4]  Furthermore, “offending by a person who has knowledge of the risks associated with particular driving will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge"[5].

[3] (2002) 55 NSWLR 252

[4]Stephens v The Queen [2016] VSCA 121 at paragraph [25]

[5] Ibid at paragraph [27]

21Applying those considerations here and bearing in mind your assertion at the scene that you had a “really big weekend” and that you were tired, your moral culpability is not at the lowest end but certainly far removed from the most serious example insofar as this offending is concerned.

22In your case, I am obliged to impose a sentence upon you which will seek to deter others from adopting the same irresponsible approach to driving without proper regard to the potentially fatal consequences.  Here, defence counsel in his able plea on your behalf submitted that I should have regard to the following factors in mitigation: your early pleas of guilty; your exemplary character; the evidence from Anne Hooker illustrating the commencement of your path to rehabilitation whilst in gaol; that you are profoundly remorseful, both for the driving matter and your involvement in drug trafficking; and that you are a youthful offender.

23As previously stated, you were arrested and interviewed on 21 February 2017 for both the driving and the drug trafficking matters.  You were remanded on that date and have remained in custody ever since.  You have never made a bail application, telling those closest to you that you knew what punishment awaited and that you belonged in gaol.  This shows to me both contrition and maturity as you have accepted early on that a loss of liberty was inevitable. 

24An offer to plead guilty to what is now Charge 1 was made on 12 September 2017 and to the drug matters on 21 August of the same year.

25The committal hearing in relation to the driving matters was heard in October 2017 and conducted solely on the basis of a challenge to the evidence of
Dr Gaya and the impact of the drugs on your driving capacity.  On 25 January 2018, the driving charges resolved and on 12 February 2018 you indicated your plea of guilty to both the dangerous driving causing death and the drug trafficking matters.  In the circumstances, I find that you have entered pleas of guilty at the earliest possible opportunity and that they are pleas designed to facilitate the administration of justice.

26Charges 2 to 8 relate to your involvement in drug trafficking.  The variety, amounts and range of drugs found at your home, combined with the amount of cash, the subject of summary charge 12, revealed the extent to which you were entrenched with drugs and drug trafficking.  It is very clear to me that you had graduated well beyond using trafficking to support your drug habit. 

27Indeed, you disclosed to forensic psychologist Patrick Newton that you had begun to sell drugs shortly after you commenced using them.  Thus while your trafficking was initially motivated to support your drug use it escalated to be an activity motivated purely by profit.

28For someone so young this is of considerable concern.  However, it would appear that the tragic circumstances leading to the death of Mr Vikic have been the catalyst for the cessation of your drug use.  While in custody you have developed insight into what a destructive force your drug use has been in your life and to those closest to you.  While incarcerated at the Penhyn Youth Unit at Port Phillip Prison you have commenced the path of your own rehabilitation.

29I heard sworn evidence from Anne Hooker, who is the Youth Development Officer at Port Phillip Prison.  Her evidence in support of you was impressive and compelling.  She described you as an exemplary and polite young man who was respectful towards staff and other prisoners.  She also described you as having an extremely good work ethic.  You are part of the prisoner mentor program and it is to your credit that you are the youngest ever mentor that has been appointed as part of that program. 

30Essentially she described you as an excellent role model for the other prisoners in the unit.  She also described a change from the person that you were when initially incarcerated.  She said that you were withdrawn and somewhat depressed when you were initially admitted to prison.  Now you are confident, with a healthy sense of self-esteem and showing positive leadership qualities.  The regard she has for you and your contribution was evidenced by the fact that it is only on rare occasions that she comes to court and gives evidence on behalf of prisoners in the unit.

31As to the question of drugs, her evidence was that you had made no attempt to drug seek at all within the youth unit.  In that vein I have also had regard to exhibit 2 on the plea, which reveals two clean urine results from February and March this year.

32Admitted into evidence were a number of certificates relating to vocational training that you have voluntarily undertaken whilst in custody. You have also completed a number of courses directed towards drug abuse and addiction and, in particular, aimed at strategies to prevent a relapse into drug use.  No doubt you will face many challenges upon your release from custody.  One of these may well be resisting the temptation of drugs given their ubiquity within the community.

33I also heard evidence from your mother, Leanne Braithwaite.  She described how you were neglected, abused and abandoned by your drug addicted biological mother.  Her younger sister is your biological mother.  That abandonment by your biological mother led to her adopting you as her own at the age of five or six months.  Thanks to her you grew up in a household filled with stability, warmth and security.  Unfortunately Ms Braithwaite and her partner, Heath, split when you were about nine or ten years of age.  As a result you have grown up without the benefit of any strong male role models.

34Jenny Reynolds, your partner, also provided a character reference on your behalf.  She described you as honest, reliable, ambitious and trustworthy.  These values are a testament to the secure upbringing cultivated by your mother, Leanne.  She has given you every opportunity to reverse the adversity of your formative months. 

35It was clear from your mother's evidence that you had experienced some behavioural issues at high school and began gravitating towards social peers that she perceived had a negative influence upon you.  She told me that once you completed Year 12 you became idle and started smoking cannabis.  Her evidence was that she was completely ignorant of the activity which relates to Charges 2 to 8.

36Leanne Braithwaite appeared to me as a witness who embodied strong family values.  Your conduct involving the drug trafficking certainly runs counter to those values.  She said that you had expressed how deeply ashamed you are at having involved yourself in drug trafficking.

37Mr Jarrod Gaget provided a reference on your behalf.  He previously employed you at Trussed Carpentry Pty Ltd from March 2015 up until your remand in February 2017.  Indeed, you were working for him and on your way to work at the time of the fatal collision.  He described you as having a commendable work ethic.  He also says that you mentored some of the younger apprentices and states that employment is available with him upon your release from custody.

38Your leadership qualities are a recurrent theme throughout the references tendered on your behalf.  Not only have you displayed this whilst incarcerated but also by your involvement in the Big Brothers Big Sisters program in 2011.  Hopefully this admirable trait will continue to manifest itself upon your eventual release from custody.

39Family friend, Jayne Radcliffe, also provided a character reference.  She described your reaction in hospital, when you were hit by the magnitude of your own actions and discovered that Mr Vikic had tragically died as a consequence of the collision.  She says that you were crying, extremely emotional and in complete disbelief.

40Suffice to say, the impression that I have retained from reading each of the character references is that to all who know you, your offending conduct is entirely inconsistent with the person that they know.

41As I have already stated, you were 20 years of age at the time of these offences.  In relation to the trafficking matters I give full weight to the fact that you are a youthful offender.  However, in respect of the driving matter I bear in mind the observation of the Court of Appeal in Neethling to the effect that your relative youth must be given less weight and to some extent must give way to the sentencing principle of general deterrence.

42The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it and your personal circumstances. 

43Here I am of the view that the sentencing principle of specific deterrence has less significance.  I make that assessment in light of the evidence of Ms Hooker and the character references that have been submitted on your behalf.

44In my view, your prospects for rehabilitation are good.  I remain cautiously optimistic that upon your release, subject to any decision of the Adult Parole Board, that you can continue and consolidate the path to self-rehabilitation and realisation that you have commenced whilst you have been in custody. 

45Please stand, Mr Braithwaite-Deegan.

46In relation to Charge 1, being a charge of dangerous driving causing death I sentence you to three (3) years, eight (8) months' imprisonment.  In relation to Charges 2 to 8 on the Indictment and Summary Charge 12, I sentence you to an aggregate term of imprisonment of 21 months.  I have determined it appropriate to impose an aggregate sentence in relation to the drug trafficking charges as each forms part of a continuing episode of offending, all occurring on the same day. 

47I order that 10 months of the aggregate sentence be served cumulatively upon the sentence on Charge 1.  That makes for a total effective sentence of four (4) years and six (6) months.  I order that a period of two (2) years and 10 months be served before you become eligible for parole. 

48In relation to Summary Charge 13, being a charge of possess prohibited weapons, I convict and fine you $1000.00.

49Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare 483 days to have been served as pre-sentence detention and I order such declaration to be noted in the records of the court.

50Pursuant to s6AAA of the Sentencing Act 1991 (Vic), if not for the plea of guilty I would have imposed a sentence of six (6) years and a non-parole period of four (4) years.

51I make the forfeiture and disposal orders in the terms sought by prosecution.

52I order that all driver licences held by you are cancelled and that you are disqualified from obtaining a licence for a period of two (2) years effective from today. 

53You may be seated, Mr Braithwaite-Deegan.

54MR WATERS:  Thank you, Your Honour.

55HER HONOUR:  Are there any other matters?

56MR PICKERING:  No, Your Honour.

57HER HONOUR:  All right.

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