Director of Public Prosecutions v Buckingham
[2023] VCC 347
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR 22-02207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS BUCKINGHAM |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 March 2023 | |
CASE MAY BE CITED AS: | DPP v Buckingham | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 347 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A.J. Moore | |
| For the Accused | Ms L. Bull |
HIS HONOUR:
1 Lucas Buckingham, you have pleaded guilty to two charges of conduct endangering persons, that is serious injury. That crime carries a maximum penalty of five years imprisonment. You were 22 years of age at the time of the offending and was still a young offender in a common sense way, and you remain a young offender at the age of 23. I accept that your plea of guilty is accompanied by appropriate remorse. Indeed in the MHARS report from the court which was provided to me just a few minutes ago, it says:
'Mr Lucas Buckingham has a documented history of borderline personality disorder, depression, polysubstance misuse, childhood adversity and trauma. He presented today as emotionally intelligent, self-reflective, remorseful of his offending behaviours and stable in his mental state'.
2 I am satisfied that that remorse is genuine. You have pleaded guilty at an early opportunity and must get the full weight of that. There is also a very significant utilitarian benefit of this plea of guilty. It saves the cost of a trial which would have been distressing not just for you but for your partner as well in all the circumstances. You also fall to be sentenced in the times of Worboyes and discounts are to be given which are recognisable in these circumstances due to the delays due to COVID.
3 Your pleas are also of real value to the Crown in this particular case. It seems to me that in terms of reckless endangerment serious injury, you could have chanced your arm on each of those and with a country jury may well have been successful. But in any event, it goes to your genuine remorse and also adds to the benefit of that plea of guilty. You do have a prior conviction for speeding but that is of no relevance in this situation. You have not been charged with anything since, so you come before me as a 23-year old with no prior convictions and no subsequent, very remorseful and having facilitated the interests of justice.
4 You, upon being charged with these matters, were remanded for 80 days and subsequent to being released on bail you have completed a three-month residential rehabilitation program and I take that into account, obviously, as well. The 80 days that you did was the first time that you have ever been imprisoned and for a person with your background disabilities, that gives me real confidence of what you can achieve in the future.
5 A summary of the offending is that the two charges arise from the one incident effectively, which occurred on 6 November 2021. Your partner received a phone call from you and she had her two children from a previous relationship in the car with her. She drove you to Moe with you in the front seat. As she was coming off the freeway towards Moe, you became involved in an argument. You became angry, demanded to stop. She kept driving and said basically:
'I'm sick of this shit'.
6 You then yelled:
'Let's stop then'.
7 The vehicle was driving west along Lloyd Street near the train station and you said:
'Just drop me here'.
8 Reached over and grabbed the handbrake. You pulled the handbrake up, causing the vehicle to slide and skid to a stop with the tyres emitting a loud screeching sound. The vehicle came to a stop in the middle of the street. There was other traffic at the time and Ms Hudson continued to drive forward with the handbrake on as she was, in fact, holding up traffic. That is the first charge of reckless conduct endangering persons. It says in the opening it is a rolled up charged but I do not know if that is right, but anyway.
9 Whilst the vehicle was moving, you unbuckled your seatbelt, opened the front passenger door saying 'Fuck this'. She pulled over, stopped partially in a parking bay outside the Moe Courthouse with the engine still running. Certainly, one of the children was in the back and was crying and telling you to get out. You got out but reached back for your hospital paperwork. You yelled at the child. Your partner - I will take the names out of this - then started hitting you on the arms and torso and told you to get out. She said she never wanted to see you again and she threw your paperwork at you. You then noticed there was a 5-litre jerry can containing petrol in the passenger foot well and you said:
'All right. You're never going to see me again'.
10 You grabbed the jerry can, flipped the lid open and began pouring petrol all over the roof and front windscreen of the vehicle. She then drove off down the road with the passenger door still open to protect herself and the two children. The children were screaming. That, again, by reason of your plea of guilty, has placed the three of them in danger. Again, that is described as rolled-up. I do not know whether that is correct or not. As she drove off you threw the jerry can at the vehicle. It landed on the road near a parked car. She went home and washed the car. Witnesses called police. Do not need to go into the detail of all that.
11 One thing, and I am not being critical of certainly the prosecutor instructing this matter, is that in terms of there is then expert analysis which has been referred to in the Crown opening which says that the reconstruction of the skid marks said the vehicle was travelling at, at least, 38 kilometres per hour when the hand brake was applied and skidded to a stop. It then goes on to say the injury risk of occupants suffering a serious injury on a collision and gives percentages for that. In my view, that is clearly inadmissible.
12 The Full Court many years ago said that matters of endangerment and recklessness are not to be treated as mathematical equations or percentages. That also assumes that whatever policeman worked all this out is able to answer jury questions as to what a serious injury is and what a serious injury is not. I think that is a dangerous and inadmissible material to be there. It is an objective test in this situation and one has to look at the circumstances of each individual ones, not a statistical analysis. In any event, you have pleaded guilty to the charge and that is the end of that. But I do express concerns about that material being there.
13 Insofar as the likelihood of the danger of the petrol, Dr John Kelleher, who I cross-examined 30 years ago, said that there was:
'A quite high likelihood of the petrol poured on the vehicle igniting'.
14
Whether that is correct or not, I do not know. But in any event, I understand how petrol works. Becomes when the vapour is flammable and a ratio of
2:8 per cent. It is almost impossible to work out where that is going to be. It might be in the vehicle; it might be beside the vehicle; it might be some distance away. He also goes to point out that a cigarette lighter is not the only source of ignition. A car provides many other potential sources, such as manifold, exhaust pipe, et cetera, et cetera. Whether that gives rise to a high likelihood of spilt petrol, I do not know. I will have to take his word for it.
'Should vapour in the correct range contact one of these sources, there is a high likelihood ignition to vapour would occur. The fact it did not suggests movement of the vehicle and/or the wind kept the fuel away from the ignition sources in the engine compartment'.
15 It seemed to me is a matter of logic. Therefore, there was no danger if the wind was blowing such as to not give rise to that situation. In any event, you have pleaded guilty. I am just concerned that the behaviour is reprehensible. There is no other word to describe it. But one must bear in mind that this crime carries a maximum penalty of five years and it should not be elevated into acting as if the actual consequences did, in fact, happen.
16 When you arrested, you gave an interview and made full and frank admissions, in my view. In this situation, the two are so closely intertwined that total concurrency would be the situation in any event. The offending is certainly not premediated. The grabbing of the handbrake - how far the car went, I do not know - was immediate and the petrol would not have occurred if it had not been sitting there. There is no premeditation. There is no planning to this. That is not to say it is not a serious offence. It is not to say as I have already said, that it is reprehensible. But I think that the seriousness of it can be easily overstated because of the emotive aspects of it or rather the reality. I think that they are not the high end of reckless endangerment, either of them. But I take it no further than that.
17 As I have said, it has to be regarded as serious. Calls for the application of general and specific deterrence, is a situation where it involves a form of domestic violence and I am very much conscious of that. There must be denunciation and there must be an appropriate punishment. As I understand it, there is no victim impact statement before me. Indeed, as I understand it, you and the victim have reconciled and in terms of that relationship, are doing very, very well. I take the forgiveness of the victim very much into account in terms of your prospect for rehabilitation.
18 I then look to matters personal to you. This is a situation where before I outline the details, I refer to the decision of the Court of Appeal in R v Toumngeun, where the court said:
'As this court recognises in DPP v Leach, "It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. After all, it may be a decision which rebounds very much to the benefit of the community". As President Maxwell says in DPP v Tokava, "A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence. Because in the long term, the community's interest will be best served by that course. This court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, it is vital to community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime"'.
19
The matters I will now refer to, I think, bring home very much the matters that are referred to in that decision. Tendered on your behalf were some very helpful submissions as well as various reports. One from a general psychologist,
Mr Campbell and another from Uniting Victoria and I will be going to those in a little bit of detail in a moment.
20 You were brought up in an unstable home environment. You had a very difficult childhood with significant trauma history. Your mother had a borderline personality disorder, she had drug and alcohol abuse and you spent periods of time homeless and sleeping in a car. You were sexually abused by your father from the ages of two to nine, but otherwise had no contact with him for extended periods. You had no contact with him at all from nine on for a period of time. You have also experienced significant family violence from your mother's partner. Child Protection have been involved with you since the age of six. You have two sisters with whom you have a good relationship.
21 The victim in this matter, your partner, as I have already indicated, has reconciled with you. The two of you have an infant daughter and you are employed as a scaffolder working full-time. Making it very clear from the outset, that you were able, despite all your difficulties in childhood, to get through an apprenticeship and you worked in it all that time up until your remand and upon release you have been able to obtain full-time work again. That is all very much to your credit and adds to my confidence of rehabilitation.
22 Your education was impacted by your family situation. You missed Year 8 entirely because of the family being homeless. You left school in Year 11 because you could not deal with your mother's substance abuse. It was after that, that you commenced a cabinet-making apprenticeship which I have already indicated, you completed.
23 On the material before me, you have been diagnosed with a chronic major depressive disorder. It says moderate to severe due to childhood trauma and multiple stresses, borderline personality disorder and polysubstance dependence which does not in these situations help a lot. The symptoms of bipolar disorder in your circumstances include from Dr Aim, A-i-m:
'Impulsivity, affective instability, issues with anger and emotional dysregulation.
24 Among others, that is clearly what has occurred here. As I have already indicated, it is surprising with these difficulties that you have not offended previously in this sort of a way. You commenced alcohol use ‑ substance abuse during your teenage years. That was normalised by your mother. You have been absent from illicit substances now for a considerable period of time and I take that into account.
25 It is clear - and I am going to refer to other reports in a moment. It is clear, in this situation, that the principles involved in Bugmy do apply. In fact, you have done very well to get to the age that you have with no prior history. I have got no doubt in your situation five and six of Verdins would be applicable as well as Charge 1. This is a spontaneous act. It is not premeditated and I think that just has to be recognised. The behaviour is intolerable, but in terms of general deterrence you have already done 80 days and as indicated during the course of the plea, I think that plus a CCO is sufficient. Insofar as specific deterrence is concerned, you now realise the damage that you have done and how much you stand to lose were such behaviour to be repeated.
26 The report Mr Campbell, psychologist, essentially goes through what I have just said. You had a very disruptive childhood. Went to five different primary schools across Gippsland which is never a good start. You went to Wonthaggi Secondary School. As I indicated, you left school, did the apprenticeship and you completed that apprenticeship and continued employment with that employer until you were arrested for these matters. You have been going well since and you are starting a course in relation to the scaffolding which you are now doing.
27 He said that you did appear to have good insight into the factors that have contributed to your past issues. You have not used drugs since your arrest which is comforting to him. He again goes through the difficulties that you had with your mother and her abuse of substances. At the time this offending occurred - and there is an earlier report that is on file as well - you were clearly undergoing matters of stress. You were using drugs to self-medicate. We have seen that early relationships, if not this one, involved the use of drugs and it just, in the end, got too much and you, with your background effectively snapped in a very unfortunate and reprehensible way that you have.
28 Insofar as your recent mental health is concerned, you spoke to Mr Campbell and he said:
'Of a reduction in your mental health issues in recent months and alleviation of distress in comparison to before the offending'.
29 He said you attributed that to receiving appropriate mental health. He spoke positively of your actions with the clinician at Fulham Correctional Centre. You were able to reiterate strategies that he or she had given you. You also spoke positively of the support you have received while participating in treatment at the GYRC and that help that you have got there assisted you in maintaining abstinence from drugs and alcohol.
30 I do not think I have to go any further with all those matters. It is a situation where you have now got yourself a little family which is going very well and that would make it even more difficult for you if you would be further incarcerated, being taken away from that child and I think, as I have already indicated, there would be a significant deterioration in your mental state if you were to be put back into prison.
31 Insofar as Uniting Victoria is concerned, they reported that you are now receiving Narcotics Anonymous in Traralgon which is very much to your credit. In their report in November of last year, you were treated as a trusted member of that group and would open the premises for the programs and the like. You volunteer every two weeks for a hospitals and institutions presentation and, again, in which you share you recovery and you have demonstrated pro-social role modelling for a number of the current clients. You have attended the Latrobe Community Health every Tuesday. At that stage, you had completed nine weeks of a 20-week program in Men's Behaviour, which I understand has now been completed. It points out that you reconnected with your partner and are active as a father to not only your own child, but to her two children as well and you are relishing and taking the benefit of that.
32 You were admitted to the Gippsland Youth Residential Rehabilitation Program on 21 January 2022 and you completed that program on 21 May 2022. As I have indicated, I take that into account. I cannot remember the name of the case. It starts with a K. During that three-months of residential, you, obviously, did very, very well. It said you could participate in all daily groups. That you engaged in one-on-one weekly counselling. Said that:
'Lucas was very motivated and usually asked for these appointments and asked for extra counselling. Whilst in our program, Lucas was very vocal in regards to his transition planning and also getting extra supports in place. He completed a course for parenting and also asked for a referral to be made for his anger management offending. A referral was made and you were enrolled in a Men's Behavioural Change program'.
33 I have already made mention of that. There is a report from Community Health which I think speaks well of you. I simply quote one paragraph:
'Mr Buckingham has managed his risk factors and built recovery by avoiding places and people with which drugs are prevalent; attending Narcotics Anonymous and Alcoholics Anonymous meetings; following the 12‑step program; speaking with his sponsor regularly and undertaking the secretary role for the Traralgon Narcotics Anonymous meeting; undertaking the major life roles of a partner, parent and provider with regular employment as a scaffolder; securing private rental accommodation for the family; discussions with the rental manager as to address rising damp and mould in the house and communication by sitting and talking with his partner at the end of the day. Regular contact with the treating doctor and taking medications as prescribed'.
34 I think that is all I really need to go through. This is a situation where I think the prospects of your rehabilitation are excellent. They have been brought about very much by your own efforts. The risk of you re-offending is described by Corrections as medium or moderate, I think, was the expression that they used. When being interviewed by them, you told them yesterday that you:
'Acknowledged your offending and advised them that you felt devastated and ashamed. That it had changed you and your partner's life and you clearly understood that the victims, that is your family, would have been impacted severely'.
35 Taking into account all the principles involved in this and that is not to deny the seriousness of this sort of domestic violence, albeit there might be some dispute between myself and the Crown as to the level of it. I think a custodial sentence is warranted, but, in fact, you have already done that. The personal circumstances are such that the principles of (Indistinct) come very much into play. In those circumstances, as I have said, I had you assessed for a community corrections order. They have found you to be acceptable. It will be a somewhat onerous community corrections order because there will be a number of conditions upon it. It seems to me that in terms of the actual offending itself and all the matters personal to you, that the time served plus a CCO is ample for the offending that has been committed.
36 I make it clear that even if I took a different view of the seriousness of the offending, your personal circumstances are such that I would still have given the same sentence. I just do not want it to be seen that I have produced a sentence greatly because of my perceptions because of the nature of the Crown case. In any event, on those two charges, an aggregate of 80 days - direct that 80 days be reckoned as having been served under this sentence. If you agree, there will be a community corrections order for two years. It will be with conviction. The conditions will be treatment and rehabilitation for drugs; treatment and rehabilitation for alcohol; treatment and rehabilitation for mental health; treatment and rehabilitation for programs to reduce reoffending and supervision. In these circumstances, I think work hours will be gratuitous because what is going to happen is there is going to be a lot of hours taken up over the next couple of years with you attending those programs. I am very confident that you will comply. The materials that are before me will also be given to the community corrections people and I am sure that there are a number of programs that you have been undergoing can be continued.
37 Your rehabilitation in this situation and the security of your family significantly outweigh, in my view, the nature of the offending itself which I have already said about three times, has to be regarded as reprehensible. All right. Do you agree with that?
38 OFFENDER: Yes, sir.
39 HIS HONOUR: Before you sign it, just stand up just for a second for me, Mr Buckingham. Look, it's a CCO. It's treatment only.
40 OFFENDER: Yes.
41 HIS HONOUR: All right. I know you do understand how serious what you did was and I have no doubt that you're ashamed of what you've done. Your partner is, obviously, very supportive, watching her in court. In these situations, they sometimes cower in the corner saying they're in support, but she clearly was. But if something like this happens again, you pull a stunt like this with her or the kids, your breach this and you're brought back before me, you're going in.
42 OFFENDER: Yes.
43 HIS HONOUR: All right. Clearly going in. All right.
44 OFFENDER: Yes.
45 HIS HONOUR: All right. If that's all right, you can sign that. I don't need to say any more than that. We'll give him a copy. I'll sign that and we'll just give him a copy.
46 MR MOORE: Thank you, Your Honour.
47 HIS HONOUR: All right. Thank you. I'm supposed to give a 6AAA for this, am I? I guess I am. Twelve months with a six-month minimum. I have declared the PSD. There is no other orders I need to make? Now, you'll need to report to Corrections within two days. They would have explained all that to you. That's all under control. All right. Thank you for that. Do you need to talk to your client, Ms Bull?
48 MS BULL: No, Your Honour. Thank you.
49 HIS HONOUR: No. I think everything's under control. All right. You can come out of there. Thank you, Mr Buckingham. All right.
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