Director of Public Prosecutions v Brigante
[2011] VCC 727
•14 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 10-01683
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH ANTHONY BRIGANTE |
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JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 April 2011 | |
CASE MAY BE CITED AS: | DPP v Brigante | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 727 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Verkade | |
| For the Accused | Ms J. Dixon SC |
HER HONOUR:
1 Joseph Anthony Brigante, you have pleaded guilty to one charge of culpable driving contrary to s.318 of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment.
2 In addition, you have consented to the uplifting of summary charges to which you have pleaded guilty, namely three charges - being Charge 6, 8 and 12 - of driving in a manner dangerous contrary to s.64 of the Road Safety Act. The maximum penalty for each offence is two years imprisonment, 240 penalty units or both.
3 You have further pleaded guilty to one charge of careless driving contrary to s.65 of the Road Safety Act. The maximum penalty for this offence is twelve penalty units.
4 You have further pleaded guilty to one charge of failing to accompany for the purposes of a drug impairment test contrary to s.49(1)(ca) of the Road Safety Act. The maximum penalty for this offence is 12 penalty units.
5 You have further pleaded guilty to one charge of driving under the influence of a drug contrary to s.49(1)(a) of the Road Safety Act. The maximum penalty for this offence is 25 penalty units or three months imprisonment.
6 Finally, you have pleaded guilty to two charges of using a handheld telephone whilst driving contrary to rule 300 of the Road Safety Rules 2009. The maximum penalty for each offence is ten penalty units.
7 The circumstances of your offending are set out in the Crown opening which is Exhibit A and I have in addition seen the bundle of photographs which are Exhibit B. At the time of the fatal collision giving rise to the count on the indictment, you were 32 years old and you were the holder of a full Victorian drivers licence. You were residing with your de facto partner and your three children in Glenroy, but for a few days prior to the collision you had been staying with your parents as you were attempting to withdraw from a heroin habit and your partner had quite frankly 'had enough'.
8 On the morning of 4 May 2010, you had injected 0.1 grams of heroin and taken two or three valium tablets before borrowing your mother's Suzuki Vitara to drive to a local bakery. Your mother told police that you appeared to her to be all right that morning and that is why she had let you borrow her car. You drove to a nearby hospital to collect some syringes and then to a service station to buy donuts. You were first observed to be driving erratically at about 10 am whilst driving along Bamburgh Street in Broadmeadows.
9 You approached a learner driver and her instructor on the incorrect side of the road. You either struck the gutter or mounted the nature strip on the incorrect side prior to drifting back onto the correct side of the road. Melanie Cooper, who was learning to drive, had to slow her vehicle and move as far left to the roadway as she could. The front of your car missed the front of hers by about 20 or 30 feet. Your speed was estimated to be between 60 and 70 kilometres per hour in a 50 zone. According to Brian Ellis who was instructing Ms Cooper, you appeared to be 'off your face' and your eyes appeared to be staring straight through the occupants of his car.
10 You continued travelling along Bamburgh Street until you got to Johnstone Street. You then turned left into Johnstone Street prior to executing a u-turn and travelling in an easterly direction. Johnstone Street them becomes Camp Road after an overpass. Prior to becoming Camp Road, Johnstone Street is a two-way carriageway divided by a narrow concrete median strip. There are two lanes for traffic travelling in each direction. After Johnstone Street becomes Camp Road, the two lanes merge into one and there is only one lane for traffic heading in either direction. The road at this point is divided by a narrow, painted median strip.
11 As the two eastbound lanes merged into one, you were observed by Dale Meaney who was travelling in the left lane at about 50 kilometres an hour. He saw that your car was in the right lane and that you were travelling slightly faster than he. Mr Meaney allowed you to pass him. He looked across at you and observed as follows: "His head was slumped backwards and his face was towards the roof of the car and his eyes looked like they were closed. I also recall his hands being on the steering wheel at the time. I immediately thought this guy was drug affected or asleep and that's why it looked as though he wasn't moving at all".
12 Your vehicle continued down the overpass and into Camp Road and drifted towards the centre of the road. You mounted the first of two raised concrete traffic islands, colliding with a keep left sign. Your vehicle continued onto the incorrect side of the road and you were at that time steering slightly left when you collided with a 2002 Hyundai Elantra being driven by the deceased, Barbara Digby.
13 The two vehicles collided head on. At the time of the collision, both vehicles were entirely on the westbound carriageway of Camp Road which was, of course, the incorrect side of the road for vehicles travelling in your direction. Numerous persons attended the scene and provided assistance to both Mrs Digby and you. Mrs Digby was examined by a doctor, CPR was administered and she was conveyed by ambulance to the Royal Melbourne Hospital where she died shortly after being admitted. At the time of her death, Mrs Digby was aged 71.
14 At the scene, you told police you had taken three valium tablets that morning along with one point of heroin. You were arrested and conveyed to the Broadmeadows Police Station. You provided a breath sample which revealed you had consumed no alcohol. You were then assessed by a qualified drug impairment assessor, who was of the opinion that you were impaired by drugs. You then provided a sample of blood which was subsequently analysed and found to contain drugs consistent with your ingestion of three valium tablets earlier that morning. The toxicology report also showed that you had morphine, codeine and fluoxetine in your blood. Fluoxetine was prescribed to treat your depression.
15 Dr Morris Odell of the Institute of Forensic Medicine was subsequently consulted regarding your toxicology results. He also viewed the video tape of your drug impairment testing. Dr Odell stated that in his opinion, the drugs you consumed were, either alone or in combination, capable of inducing drowsiness and adversely affecting your ability to drive. Further, he concluded that the severe degree of impairment seen during the drug impairment test was consistent with the drugs you had consumed.
16 You had been prescribed valium by your GP with the recommended dose of one five milligram tablet twice a day. On 29 April 2010 you purchased a 50 valium tablet pack and on 3 May at 1.34 pm you purchased a further pack containing 20 valium tablets. After the collision, police attended at your home and inspected the packet of 20 valium tablets which had been dispensed the previous day. There were 11 left.
17 An expert collision reconstructionist estimated the speed of your vehicle when it first impacted the deceased's vehicle was between 67 and 73 kilometres an hour.
18 You participated in a record of interview and told police that you had injected 0.1 grams of heroin that morning at your parent's house and then driven to your house where you had had either two or three valium tablets. You told police that after leaving your home you went to Broadmeadows Hospital to pick up some new syringes and then to a service station to buy some donuts. You told police that you must have passed out and that all you remember is waking up as you hit the traffic island. The next thing you remembered was seeing an airbag in your face. You could not remember the earlier driving incident involving the learner driver.
19 You told police that for the previous three years you had been using heroin and that up until about a week prior, you were using half a gram a day. You said that about a week prior to this accident, you decided to give up heroin as your habit was getting in your opinion 'out of control' and, to that end, you had sought assistance from your general practitioner. Your doctor prescribed you valium with the recommended dosage I have already described. Once you got the prescription, you attempted to wean yourself off heroin by injecting 0.1 grams of heroin in the morning and then taking two or three valium tablets during the course of the day.
20 You told police that the valium made you feel normal, but you had been told by your parents and partner that you were 'spaced out' after taking the valium tablets. You knew you should not have been driving after taking valium because two or three days earlier you had been pulled over by police and told that you were swerving all over the road. On that occasion, you had admitted ingesting both heroin and valium. You told police that on the occasion which is the subject of the charge on the indictment, you thought you would be all right because valium normally took about 40 minutes to have an effect upon you.
21 As regards this matter, you answered all questions put to you and cooperated in the investigation. You expressed ongoing concern in relation to the victim's welfare and remorse as regards to your actions.
22 In the ten days preceding this fatality, you were observed by motorists driving erratically on a number of occasions. These episodes of driving are the subject of summary offences which have been uplifted to this court and to which you have pleaded guilty.
23 Charge 6 is a charge of driving in a manner dangerous on 25 April 2010. Just after 12.30 am on Sunday 25 April 2010, you were driving your father's white Toyota Hilux on the Western Ring Road in Sunshine. At that time, Jason Taylor was driving in the same direction as you. Mr Taylor first noticed your vehicle when it was behind him. he noticed that you were swerving from one side of the carriageway to the other. At that point, the Western Ring Road has two lanes for traffic travelling in each direction and an emergency stopping lane on each side of the carriageway. There was also a grassy median strip that separates traffic travelling in either direction and the applicable speed limit is 100 kilometres per hour.
24 As your vehicle approached Mr Taylor from behind, Mr Taylor noticed you veer into the right hand lane and then cross to the emergency stopping lane before finally travelling onto the median strip. Whilst your vehicle was travelling along the median strip, it seems you accelerated to pass Mr Taylor's vehicle. At that time, he estimates that he was travelling at about 95 kilometres per hour. After passing, you continued and veered across both the right and left hand lanes of the carriageway so that your wheels were straddling the emergency stopping lane on either side of the road. You were then observed to veer across the left and right lanes and onto the median strip, where you again accelerated to pass two further vehicles travelling in the left and right lanes of the carriageway. Mr Taylor then lost sight of you.
25 Police later spoke to you at the Keilor Park Drive exit ramp. You told police that you had run out of petrol and they got you to reverse your vehicle off the roadway and lock it. They then drove you to a petrol station so you could get petrol. According to police, you did not appear to be alcohol or drug affected on that occasion.
26 Charges 8 and 27 are charges of driving in a manner dangerous and using a mobile phone on 28 April 2010. On that date at about 4.40 pm, you were observed again driving your father's Toyota Hilux along the Western Ring Road in Sunshine. At this time, Louise Lee was driving her vehicle in the same direction in the right hand lane. At first you were travelling in the left hand lane but you suddenly swerved in front of Ms Lee's vehicle into the right hand lane, forcing her to brake in order to avoid a collision. Once in front of Ms Lee, you drifted between the left and right lanes and slowed to about 80 kilometres an hour in a 100 zone. Ms Lee and surrounding motorists also slowed down. At one stage, you drifted over the fog line into the right hand lane and almost collided with the metal barrier, before drifting back onto the road. Whilst this was occurring, you were observed to be using your mobile telephone which was held to your ear. Your telephone records indicate that you were in contact with your father at this time.
27 Between Sunshine Avenue and Keilor Park Drive, the northeast bound lanes of the Ring Road increase from two to three lanes. At this stage, Louise Lee observed a motorist attempt to overtake your vehicle using the left hand lane whilst you were travelling in the middle lane. The motorist attempted on a number of occasions to accelerate past you but was unsuccessful and he had to brake as you were drifting between the middle and left lanes. The motorist was eventually able to pass you and shortly after he passed you, you drifted all the way over to the emergency stopping lane before drifting back onto the roadway again. You took the Pascoe Vale Road exit from the Western Ring Road and, at this stage, Ms Lee lost sight of you.
28 Charges 10 and 28 are charges of careless driving and using a mobile telephone whilst driving which occurred on 30 April 2010. On that date at about 9.40 am, you were driving your father's Toyota Hilux along Sayers Road in Truganina. As you approached the intersection with Doubell Boulevard, the vehicles ahead of you were travelling slowly as the traffic lights had just turned green. You failed to realise this until the last minute, when you applied your brakes and steered your vehicle to the left of the roadway. This caused you vehicle to rotate anticlockwise and move sideways before steering was corrected. You narrowly missed colliding with the rear of the last vehicle in the line of traffic.
29 You then drove onto the gravel edge of the road before turning left into Doubell Boulevard. At this time you were observed to be holding a mobile telephone to your ear. Your mobile telephone records indicate that you made a short telephone call at about this time. A short time later, you were spoken to by police while sitting in your parked vehicle in a nearby street. You told them you were visiting a friend and you were waiting for your friend to call so you establish exactly where he resided. The police conducted a preliminary breath test which was negative.
30 Charge 12 is a charge dangerous driving on 1 May 2010 and refusing to accompany the police for the purposes of conducting a drug impairment test. Charge 12 incorporates four separate episodes of dangerous driving that were observed on 1 May 2010 and which have been rolled into one charge by consent.
31 The first episode occurred at about 10.30 am on that day when you were parked in your father's utility on the gravel shoulder of Forsyth Road in Hoppers Crossing. At that point, Forsyth Road is an undivided road with a lane for traffic travelling in either direction and a speed limit of 70 kilometres per hour. At that time, a motorist Damien Kraslevski was driving his vehicle in a southerly direction along Sayers Road. Mr Kraslevski approached your vehicle. You abruptly pulled your vehicle out from the gravel shoulder and onto the roadway, which caused Mr Kraslevski to steer his vehicle onto the incorrect side of the road in order to avoid a collision. At that time fortunately there was no oncoming traffic.
32 After Mr Kraslevski's vehicle passed your utility, your vehicle was observed to swerve onto the incorrect side of the road prior to veering back onto the correct side. If Mr Kraslevski had not steered his vehicle onto the incorrect side of the road, you would have collided with the left hand side of his car. As Mr Kraslevski passed you, he looked into your vehicle and noticed your eyes seemed to be closed and you were struggling to keep them open. He formed the opinion that you appeared to be affected by either drugs or alcohol.
33 The next episode occurred just before 10.50 am that morning when you were travelling in a north-easterly direction on the Western Ring Road. Mark Rewuk was travelling in the right hand lane and he tried to pass you. As he did so, you were swerving into his lane. Mr Rewuk was forced to steer his vehicle into the emergency stopping lane to avoid a collision with your vehicle. You swerved back into the left lane and Mr Rewuk lost sight of you. He described you upon his observation as having your head slumped downwards towards your chest and, in his opinion, you appeared to be affected by either drugs or fatigue.
34 The next episode occurred about 11.50 am when you were travelling along the Western Ring Road in Tullamarine. At this time, you were in the left of three lanes with that lane become an exit lane to travel onto the Tullamarine Freeway. As this lane separated from the Western Ring Road, you travelled across the painted white traffic island and veered into what was the middle lane and had become the left lane, causing a motorist, Mark Baratta, to brake to avoid a collision. A short time later, that witness overtook you and subsequently told police "he seemed to be in his own world with his head down in a droopy fashion". He formed the opinion that you appeared to be affected by drugs.
35 You continued to travel along the Western Ring Road but drifted from the left lane into the emergency stopping lane and also into the right hand lane. Another vehicle was forced to brake to avoid a collision with you as you slowly drifted between lanes. In a roadwork zone just prior to the Calder Freeway exit, you drifted to the right hand lane and drove over various bollards. You continued on before entering the Calder Freeway exit lane to overtake numerous vehicles. Instead of leaving the Ring Road in this lane, you travelled across the white painted traffic island and swerved back into the left lane of the Ring Road, forcing another vehicle to brake heavily to avoid a collision.
36 At this time, the rear of your utility was loaded heavily with scrap metal and timber items which were not properly secured. In the vicinity of Keilor Park Drive, an item of timber furniture fell from the tray and smashed onto the road way. This caused a car that was following your vehicle to swerve to avoid a collision. A short time later, you pulled over to the side of the road.
37 You were next observed driving dangerously at about 3 pm when you were sighted along the Old Geelong Road travelling in a south-westerly direction. You were observed to be driving in an erratic manner with your vehicle drifting all over the road. As you approached a left bend, your vehicle drifted on a number of occasions to the left with up to three quarters of your vehicle being on the gravel shoulder. As you were negotiating the bend, your vehicle narrowly avoided colliding with yellow and black signs erected on that side of the road to warn motorists of the sharp bend ahead.
38 Once you negotiated the bend, your vehicle was observed to drift to the right and to travel completely onto the wrong side of the road for about ten seconds. At that stage, you were travelling up a slight hill and had a limited view of oncoming traffic. You were on the incorrect side of the road for some time and you drifted back to the correct side before continuing along Sayers Road in a westerly direction. Your vehicle continued to drift to the right but not at that time so that the entirety of your vehicle was on the incorrect side of the road.
39 As you approached the intersection of Palmers and Sayers Road, the traffic lights applicable to you were red. At that intersection, there is one lane of traffic for cars travelling straight ahead and one lane for traffic turning right into Palmers Road. There were cars stationary in the lane for cars proceeding straight ahead but no cars in the right hand turn lane. As you approached that intersection, the light turned green and you moved your vehicle into the right hand turn lane to pass the vehicles travelling straight ahead. You did not turn right. You proceeded straight through the intersection, over the median strip on the roadway and onto the opposite side of the intersection.
40 After crossing over Palmers Road you continued along Sayers Road where you drifted all over the road. On one occasion, you were observed to overtake a car, driving down the centre of the road. That caused the car you were overtaking and oncoming traffic to veer to the left to avoid a collision. One witness described you as creating a third lane.
41 At the intersection of Sayers Road and Doubell Boulevard, you turned left into Doubell Boulevard. At about 3.23 pm, you were intercepted by police in the car park of a 7/11 store in Tarneit. You underwent a preliminary breath test which returned a negative result. You appeared to be drowsy and told police officers that you had taken two valium tablets with breakfast that day and another two tablets with lunch. Police requested you to accompany them to the Werribee Police Station to undergo a drug impairment assessment test but you refused. Police explained the consequences of your refusal but you maintained that you refused to accompany them. Police seized your car keys and the car remained at the 7/11 store.
42 On 15 June 2010, you were interviewed by police in relation to the summary charges and you exercised your rights not to answer questions in relation to these matters.
43 It is concerning that despite numerous calls to police in relation to your driving, and specifically the state in which you were driving, there was no immediate action taken. I do not wish to be seen to be critical of the actions of Victoria Police in this regard, as the reality is that current available processes would likely have been to slow to have prevented the tragedy that followed. There must in my view be circumstances where it is appropriate for police to have the power to immediately suspend a driver's licence for a short time period pending investigation by VicRoads as to fitness. A licence is a privilege and we must all rely upon each other to exercise that privilege with care and conscious of our obligations as a driver. Where that is seriously questioned by a driver's conduct, the rights of the community must outweigh the rights of the individual. Some clarification, modification and education as regards the powers of police in this regard may be necessary. At the end of the day, this is of course a matter for others.
44 As regards the charge on the indictment, in my view this is clearly a serious example of culpable driving. Your conduct cannot be described other than as outrageous. Your ingestion of both illicit and prescribed drugs in excess of the prescribed dosage in the circumstances of this case made disaster virtually inevitable. You were aware at least from 1 May, when you signed a statement to this effect, that your ingestion of these substances made you drowsy and you had both experienced and been informed of impaired driving which had resulted.
45 You told police as regards this occasion that you thought the valium would take 40 minutes to take effect, so you thought you would be all right, which itself indicates that you knew there would be an effect, albeit you were indicating your understanding that it would be after a short time delay.
46 In my view, you showed no regard for other road users. People who engage in conduct of this type must understand that significant penalties will result in appropriate circumstances. That being said, I accept that you were at the relevant time seeking to do something about your heroin addiction and that you were proactive in seeking treatment which speaks positive intention, albeit that the execution of these intentions was seriously flawed. I accept that you lacked knowledge and insight as regards to the consequences of combining drugs in the way in which you did.
47 None of this in any way excuses your conduct. You will live the rest of your life with the certain knowledge that you have killed another member of our community. The burden will be a heavy one, as it should be.
48 The summary charges which have been uplifted unfortunately serve to illustrate that the driving which founds the charge of culpable driving was not an isolated lapse of judgement. Those offences are serious of themselves. The fact that you faced but one charge of culpable driving was really no more than luck and due to the quick thinking on the part of other drivers. You were a fatality waiting to happen and, tragically, it did.
49 Tendered as Exhibits C, D, E and F on the plea were four victim impact statements from the victim's daughter and three granddaughters. Each of those statements was read in court by its author. Those statements are clear and compelling accounts of the very real consequences of this type of offending. The results ripple through the lives of victims and those around them. Anger and grief pervade their lives, for they must endure what they should not have had to endure and there is no comfort for their loss. It is to be hoped that time will make bearable the reality they now all live with.
50 You have admitted the contents of a criminal record which discloses one prior traffic infringement notice for exceeding the speed limit by between 25 and 30 kilometres per hour. Your licence was suspended for one month. While relevant, I do not regard this matter as having any significant weight in the sentence I will impose this day.
51 You are now aged 33, having been born on 25 November 1977. You are the youngest of three children. You told Mr Newton that you have always regarded yourself as the 'black sheep' of the family, as you are the only member to have ever had issues with drugs or the criminal law.
52 Exhibit 4 is a letter from your mother who clearly loves and supports you. You have been fortunate to have the support of a loving family throughout your life and they will no doubt play an important role in your future.
53 As early as primary school, you had difficulties with literacy and academic progress in general and you were given remedial tuition to little avail. You report feeling ostracised at primary school. Secondary school saw no real improvement and you effectively 'went through the motions' before being asked to leave school after an argument with a teacher in Year 10. You maintained significant literacy and numeracy deficits at the time you completed your education.
54 You have not enrolled in, nor completed, any further education or training and your work history has been largely unskilled. You have worked in a supermarket stocking shelves, loading trucks and, most substantially, in the road construction industry. You were at times working six days a week seeking to support your family.
55 You have been in a long term relationship with your partner Ms Maciula over 15 years. You have three children aged 10, 8 and 2. Your family remains supportive of you.
56 Exhibit 3 is a letter from your partner. She confirms your personal circumstances and details her perspective as regards your battles with addiction. She expresses optimism as regards to your future and her ongoing confidence in you, both as a partner and a father.
57 You have a long history of substance abuse. You first used cannabis at 17, which quickly escalated to daily use. You used cannabis at high levels until approximately 12 months when you told Mr Newton you desisted at your partner's insistence.
58 You first experimented with amphetamine, ice and ecstasy in your late teens. By 22, these were what Mr Newton describes as your 'drugs of choice'. You report high levels of use and a dependence such that you could not function without using. Your use was discovered by your partner and your solution was, it seems, to substitute heroin use which you apparently thought would be easier to hide. You were managing to work but unfortunately working in an environment in road construction where drug use was reportedly rife.
59 You described your addition as out of control in the three months prior to your offending. You said you needed heroin just to make yourself feel normal. You left your employment in road making and started working for your brother in cabinet making. You were it seems able to conceal your addiction issues from him, as was his evidence before this court. Despite all that has occurred, your brother also remains supportive of you and says there is a job available to you upon your release.
60 You made numerous attempts it seems over time to cease heroin use but abstinence was usually short lived. In the months preceding this incident, you were seeking the assistance of your psychiatrist and general practitioner to withdraw. You had been prescribed valium and codeine and you were commencing a buprenorphine program. Unfortunately, not only were you overdosing on valium but you were also, as you described it, 'topping up' with heroin which resulted in intense sedation.
61 Mr Newton says that you meet the criteria for a diagnosis of poly-substance dependence which is now in early remission in a controlled environment. You were, until a few days ago, a resident at the Narconon program at Warburton and you have been so resident for about ten months pursuant to bail conditions. Your parents have funded this treatment program, which illustrates their level of support for you. You report abstinence from all drugs. You were able to articulate to Mr Newton relapse strategies. It appears that you now have some level of insight as regards to your drug issues and a desire to overcome them.
62 Exhibit 1 is a report from David Sanguinedo from the Narconon program. In addition I had the advantage of having Mr Sanguinedo give evidence before me. You successfully completed the Narconon program on 11 March this year, but you stayed on until this week in order to assist others. Mr Sanguinedo confirms that you have maintained drug abstinence and it is his opinion that you have positive prospects as regards rehabilitation.
63 Exhibit 2 is a report from Patrick Newton, a psychologist. You attended upon Mr Newton for the purposes of assessment and report on 25 November last year and 4 April this year for review. Mr Newton describes your presentation as downcast and despondent and he says you were exhibiting clear signs of depression at interview. Mr Newton says that you have experienced significant mood disturbance since your late teens, more particularly depression which was interspersed with hypermanic and manic episodes.
64 Mr Newton says the history you describe is consistent with bipolar disorder which you likely suffered dating back to you late teens. It was not however until 2007 that you consulted Dr Roger Chau, a psychiatrist, and your bipolar was diagnosed and you were prescribed both antidepressants and antipsychotic medications with variable success. You did not feel that you were getting any real relief from your symptoms and you continued to self-medicate with illicit drugs which of course really undermined your treatment. That cycle was continuing at the date of this offending.
65 At the end of the day, I accept that there was a relationship between your diagnosed bipolar and your drug use which founded this offending. In my view, there has been insufficient causal nexus established, especially having regard to the evidence of Mr Newton to found the application of Verdins principles. That however is not the end of any proper assessment of moral culpability. The context in which offending occurred is always relevant. You were trying to address your addiction issues and it seems you believed you were succeeding, having reduced your heroin intake to 0.1 of a gram. Your mood disturbances associated with your bipolar affected your drug taking, which in turn contributed to your offending. Due to the combined effects of your bipolar, poor cognition and drug issues, your ability to make appropriate judgements and to see the full range of consequences was diminished, allowing you to proceed on the basis that you were managing your heroin withdrawal by overdosing on prescribed medication which you saw as some sort of success, rather than the dangerous spiral it ultimately proved to be. This context is to be distinguished from callous disregard and affects proper assessment of moral culpability.
66 Mr Newton says that your current symptoms of depression and hopelessness are only in part attributable to your current legal predicament and best understood as the ongoing impacts of your pre-existing bipolar disorder. He says there is an unequivocal need for ongoing psychiatric attention and monitoring as regards self-harm. Your need for treatment is, it seems, indefinite.
67 In addition, Mr Newton recommends literacy and consequential thinking education to reduce the risk of recidivism, together with targeted drug treatment and psychological counselling. Mr Newton was clearly concerned that at Narconon you could not be treated with any medication and thus your bipolar was, throughout that period, untreated. Mr Newton is further concerned that upon incarceration you may experience increased symptoms and he recommends immediate assessment, especially as regards issues of self harm. He says that upon release you would benefit from a long term, structured, supervised program which could be offered under a parole order which would reduce the risk of relapse and thus recidivism.
68 Mr Newton was guarded as regards to your prospects of relapse, as he noted that the gains that you have made in treatment are yet to be tested outside a controlled environment. He agreed however that the support of your family, the love you have for your children, your good work history, the availability of stable accommodation and your growing insight are all positive factors in this regard.
69 Your counsel has pointed to a number of matters which are entitled to have taken into account in mitigation. Firstly your plea. You have pleaded guilty at an early stage in this proceeding, namely at a committal mention. You have by your plea saved the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial. You are entitled to the full benefit of an early plea and I have acted on that basis.
70 I accept in your case that your plea is properly used as evidence of your remorse. It is clear in my opinion you regret your actions and not just the situation you now find yourself in. Your remorse was expressed to police during the record of interview. You were described as being shocked and upset when you were told the victim had died. You told police you deserved to go to gaol. In the months following, you have reiterated your expressions of remorse to Mr Newton, your family and upon your plea. Mr Newton says that you are remorseful and of the view that you deserve to be punished. He says you feel guilty and ashamed.
71 It is notable that you have instructed your lawyers to bring all summary matters before this court, despite what would undoubtedly have been their advice as to the likelihood for cumulation orders in these circumstances. In my view, this is a further illustration of your remorse and your desire to move forward.
72 You have one prior matter which proceeded by way of TIN which, as I have said, I do not regard as having any significant weight in the sentence I will impose.
73 You are still a relatively young man and you are of prior good character. Thus the community must have a real interest in your rehabilitation. Your prospects of rehabilitation are at first assessment probably guarded in that your ability to remain abstinent is completely untested. That being said, you have only the one prior traffic infringement notice and you have proactively pursued your own rehabilitation via inpatient treatment. You have the ongoing support of your family and you have stable work and residence available to you. When these factors are combined, your prospects probably rise to 'good', provided you remain committed to complete drug abstinence and compliance with mental health treatment. The support of your family and friends will I think prove important.
74 You are aware that your conduct has affected not only the victim's family but yours as well. Your wife had to move to a smaller house and your children had to be told last night that their father would be incarcerated. As this will be your first time in custody, in my view it is likely to have significant deterrent effect whatever the duration.
75 I have sentenced you on the basis that your diagnosed bipolar disorder will increase the burden of imprisonment upon you.
76 The Crown submit that the only disposition open to this court is an immediately servable term of imprisonment and say that the appropriate range is a head sentence of between six and eight years with a non-parole period of between four and six years.
77 Your counsel conceded that the only disposition open to this court is a term of imprisonment, but she submits that the Crown range is too high. On the charge of culpable it is submitted that a head sentence of five to six years is the appropriate range with a non-parole period of between three and four years. It is further agreed that there should be some cumulation as regards to the summary offences but it is submitted it should be in months not years. The Crown concur as regards the cumulation issue.
78 Sentencing is of course a balancing exercise and I have approached my task on that basis. As well as matters personal to you, to which I have referred, I must also take into account other relevant sentencing considerations. Your sentence must manifest the community's denunciation of your conduct and impose just punishment.
79 General deterrence is of particular importance in matters such as this. I must seek to turn not only you but others who would engage in like conduct. I have regarded this sentencing consideration as having significant weight in the sentence I will impose this day.
80 Specific deterrence is also relevant but can perhaps be given less weight given your very limited prior history and the efforts as regards your own rehabilitation.
81 I wish to make clear to the victim's family before announcing sentence that the sentence does not, and could not ever reflect the value of your mother and grandmother's life. My task is to sentence a man, not value a life.
82 Would you stand please. In my view there is no disposition open to this court other than an immediately servable term of imprisonment. You are convicted and sentenced as follows.
83 On the charge of culpable driving, you are convicted and sentenced to be imprisoned for 5 years and 10 months. Further, on that charge, your licence is cancelled. You are disqualified from driving in the state of Victoria for a period of three years commencing this day. I direct it be noted that I find this offence was committed while you were under the influence of a drug.
84 On the summary charges, Charge 6, driving in a manner dangerous, you are convicted and sentenced to be imprisoned for three months. In addition, your licence is cancelled and you are disqualified from driving for a period of six months effective today.
85 Charge 8, driving in a manner dangerous, three months imprisonment. In addition, your licence is cancelled and you are disqualified from driving for a period of six months effective today.
86 Charge 10, careless driving. Fined $500.
87 Charge 12, driving in a manner dangerous. You are imprisoned for five months. In addition, your licence is cancelled and you are disqualified from driving for a period of ten months effective today.
88 Charge 23, failing to accompany for the purposes of a drug impairment test. Fined $500. In addition, your licence is cancelled and you are disqualified from driving for a period of 2 years effective from 22 September 2010, noting that this is the offence upon which the s.51 notice was served.
89 Charge 24, driving under the influence of a drug. One months' imprisonment. Your licence is cancelled and you are disqualified from driving for a period of two years effective this day.
90 Charge 27, using a handheld telephone whilst driving. Fined $300.
91 Charge 28, using a handheld telephone whilst driving. Fined $300.
92 I direct that two months of the sentence upon Charge 12, one month of the sentence upon Charge 6, one month of the sentence upon Charge 8 be served cumulatively with the sentence imposed on the charge of culpable driving upon the indictment and upon each other.
93 That makes a total effective sentence of 6 years and 2 months. I direct that you serve 4 years before becoming eligible for parole. I direct that one day be reckoned as served.
94 I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to a total effective sentence of 8 years and 2 months and ordered that you serve 5 years and 10 months before becoming eligible for parole.
95 Have a seat briefly please. I would like counsel to check the cumulation please. Ms Verkade, you are satisfied?
96 MS VERKADE: Yes, Your Honour.
97 HER HONOUR: Thank you. Remove the prisoner please. Stand down.
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