Director of Public Prosecutions v Burt
[2015] VCC 1063
•21 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 14-00077
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW CHRISTIAN BURT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2015 | |
DATE OF JUDGMENTSENTENCERULING: | 21 July 2015 | |
CASE MAY BE CITED AS: | DPP v Burt | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1063 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. O’Halloran | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Valos Black |
HER HONOUR:
1 Matthew Burt, you have pleaded guilty to two charges of negligently causing serious injury to Wayne Ambrose and Paul Phelps as a result of a motor vehicle collision in which you were the driver. The maximum penalty applicable to each of the two charges before me is 10 years imprisonment. I am also required pursuant to s89 Sentencing Act 1991 to cancel your licence and disqualify you from obtaining a licence for no less than two years.
2 Your offending took place on 28 October 2012. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I was also provided with photographs of the collision scene (Exhibits B and C) and a collision plan (Exhibit D). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. I turn to a summary of your offending.
3 At the time of this offending you were 30 years of age, and you are now 33 at sentence. The victims of your offending, Wayne Ambrose, was 34 years of age at the time, Paul Phelps, 32.
4 By way of background to your offending. On Saturday, 27 October 2012, Mr Phelps and Mr Ambrose were dropped off at a Langwarrin hotel around lunchtime. At the hotel they met up with you and Kate Keizers. Ambrose and Phelps drank beer with you at the hotel, where you stayed for a few hours, leaving at around 4.00pm to go to Ms Keizers’s home. Ambrose and Phelps travelled with her in her car, and you drove your own car to her home.
5 At her home you consumed some food, and Ambrose and Phelps were drinking Jim Beam and Coke. You also consumed alcohol at the house.
6 At around 2.00am on Sunday, 28 October 2012, Ambrose, Phelps and yourself left Ms Keizers’s home in your car.
7 You were driving a Mazda motor vehicle with Ambrose in the front passenger seat and Phelps in the rear passenger seat.
8 Mr Ambrose remembered leaving Ms Keizers’s home and thinking that “this car is being driven too quickly” and “that they were going too fast”. He thought he may have fallen asleep briefly during the trip. He remembered thinking, when you turned onto the Berwick–Cranbourne Road, that you were “going too quick.” Mr Ambrose, who used the road regularly, was aware you were approaching roadworks.
9 Mr Phelps was asleep in the back of the car, remembered hearing you say, “Shit”, opening his eyes, and the car swerving to the right and then a big bang.
10 The car driven by you had failed to negotiate a slight left-hand bend associated with the roadworks and had driven head first into the water-filled safety barriers.
11 Ms Rogers and Ms Cameron were driving along the road at that time and came across this collision. Roadwork barriers were strewn over the road. Ms Cameron and Ms Rogers heard a male voice call out “help”. The vehicle was smashed, and there was smoke coming from the engine. Ms Rogers heard a male yelling, “Help. Call triple 000”.
12 Ms Rogers said there was a male, you, standing near the car who said he had been driving. You seemed to be trying to cut the seatbelt off the front passenger. Ms Cameron could smell alcohol when talking to you and noticed empty cans in the car. You were described by Ms Cameron as seeming confused and dazed. Ms Cameron thought you may have been affected by alcohol due to your demeanour and smell of alcohol.
13 The fire brigade arrived at around 2.50am, and you were observed to be staggering around and quite agitated.
14 Mr Ambrose was treated at the Emergency and Trauma Centre at the Alfred Hospital for life-threatening injuries he sustained as a result of the collision, and those were set out at Exhibit A, para.17. The management of his injuries were also set out in the prosecution opening, as was surgery performed (see paras.18 and 19).
15 Mr Ambrose also required further treatment to clear wounds and necrotic skin which had resulted from multiple orthopaedic procedures. He was transferred to the Victorian Rehabilitation Centre on 16 November 2012 until he was discharged on 3 January 2013. In the intervening period he received daily nursing care, pain medication, physiotherapy, occupational therapy, social work and psychology input.
16 Had that not been the intensive and varied medical and surgical treatment, Mr Ambrose would have died from his injuries.
17 Mr Ambrose’s condition was updated (Exhibit A, para.22).
18 In brief, he was receiving outpatient physiotherapy since 3 January 2013 as well as occupational therapy and exercise physiotherapy input. He had made good progress. However, his left foot was still numb due to neurological damage. He was still impacted by the collision, and he had not been able to return to work. He was not able to return to his previous heavy physical work.
19 Regarding Mr Phelps, he was treated at the Alfred Hospital for injuries sustained (Exhibit A, para.23). He was required to be non-weight bearing on fractures for between four and six weeks. Skin grafts were performed on 21 November 2012 which consisted of three operations under the plastic team at the Alfred. He continued to receive medical treatment at the Plastics Outpatients Clinic as he had a chronic non-healing wound on his left ankle and Achilles tendon.
20 Mr Phelps was transferred to the Victorian Rehab Centre on 27 November 2012, remaining until 25 January 2013. During that period he received daily nursing care, pain medication, physiotherapy, occupational therapy, and social work and psychology input. He was initially unable to walk and required a power wheelchair.
21 In relation to Mr Phelps’s injuries, whilst not immediately life-threatening, they had the potential to cause permanent deformity if not properly treated.
22 Following discharge, Mr Phelps continued outpatient rehabilitation and subsequently required surgery to his left heel and knee and right knee, that is, three separate operations.
23 As at May 2015, he still had pain in both knees, loss of sensation in the left instep, pain to the left foot, required medication and was emotionally depressed. He was also still undergoing outpatient therapy and physiotherapy regarding his complex pain condition.
24 A blood sample was collected from you at 4.00am on 29 October 2012 at the Alfred Hospital, and an analysis of it revealed a blood alcohol reading of 0.144.
25 Dr Morris Odell provided an opinion regarding your level of alcohol, and stated that your, “Driving skills would have been adversely affected by the effects of alcohol at a BAC of 0.144. His risk of crashing would have been more than ten times what it would have been at BAC 0”.
26 There was an inspection at the collision scene. At the time of the collision, roadworks were in progress and the road had a 60 kilometre speed limit in advance of the roadworks. There was a 60 kilometre speed limit sign at the start of the construction zone as well as yellow and black advisory signs warning of construction. There were, as I have said, also a number of water-filled barriers at the location.
27 Detective Senior Constable Hay of the Major Collision Investigation Group noted the speedometer of your car was locked at 130 kilometres per hour and that the vehicle had collided into water-filled safety barriers. Indications from those barriers were that they were airborne for approximately 67.15 metres as a result of the impact with them.
28 It was Mr Hay’s opinion that your car was travelling at between 126 and 130 kilometres an hour when it impacted with the safety barriers.
29 Your vehicle was subsequently examined and inspected. Prior to the collision your vehicle would have been classed as in a mechanically safe condition. The inspection did not reveal any mechanical fault that would have caused or contributed to the collision.
30 The particular circumstances of negligence relied upon by the prosecution were:
(i) firstly, your blood alcohol concentration of 0.144 per cent, and as such you had been incapable of having proper control of the vehicle;
(ii) a speed estimated at between 126–130 kilometres per hour in a prescribed 60 kilometre per hour speed limit area;
(iii) a failure to exercise sufficient care in a roadworks zone which was marked with warning signs and barricades ahead of the roadworks area.
31 Following that collision you were taken to the Alfred Hospital. On 6 February 2013, you were interviewed by police, at which time you made a no comment interview. To answer that way was, of course, your right.
32 You have a number of prior court appearances for driving matters which are particularly concerning. Most recently, at Yeppoon Magistrates Court on 1 April 2011, you appeared at court for driving with a blood alcohol concentration of 0.054.
33 You also appeared on 9 January 2004 at Dandenong Magistrates Court, having exceeded the prescribed concentration of alcohol with a blood alcohol concentration of 0.118. In addition, on that same date, you were dealt with for driving at a speed exceeding the speed limit.
34 Regarding the offending in 2004, it seems you had been drinking at a friend’s house and then drove. That offending occurred on 20 September 2003 when you were 22 years of age. You had driven to a party with a friend, I was told, consumed alcohol at the party, had an argument with your friend and left driving your car and were then apprehended.
35 Regarding your offending in 2011 at Yeppoon, you said you had met a potential work colleague at Yeppoon, drank scotch, making attempts to count and not exceed 0.05 per cent.
36 Further, as I was told during your plea hearing, you had previously received a traffic infringement notice regarding alcohol within your system, and that notice dated 14 January 2001. Your offending was on December 2000 and, according to Mr Barker, your reading was 0.087 per cent. At that time you were approximately 19 years of age and had only had your licence approximately eight months and had a zero alcohol limit. You said you had not been expecting to drive. However, you received a call to go to Hallam Hotel to meet friends.
37 You have a very troubling driving history, in particular, multiple offending involving exceeding the prescribed concentration of alcohol.
38 You have pleaded guilty to these charges, and you are entitled to have that taken into account in your favour, and I do so. The community has been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence upon your trial, and in that regard, in particular, I refer to the victims of your offending.
39 Further, I take into account in your favour you intimated early your intention to plead guilty to these charges.
40 I also accept your plea of guilty indicates remorse for your actions and that you remain remorseful for it.
41 Mr Barker, who appeared on your behalf, prepared very helpful written submissions for your plea (Exhibit 1), and orally addressed those during the plea hearing.
42 In his written submissions Mr Barker referred to you remaining friends with Mr Ambrose and Mr Phelps.
43 Regarding your offending, you instructed you were invited to join both Mr Ambrose and Mr Phelps at the Langwarrin Hotel for a drink and were there from about 1.00 until 5.00pm. You then went to Mr Keizers’s home. As you had planned to stay the night at her home, you began what Mr Barker described as “unrestrained drinking”. Your instructions to Mr Barker were that at one stage, due to Mr Phelps and Mr Ambrose’s “tensions” regarding Ms Keizer, you decided to intervene to stop any fighting. The situation, you said, had become uncomfortable. Having refused initially to drive Mr Phelps home, you “caved in” and drove. Mr Ambrose decided he would also go home.
44 Mr Barker referred to comments from Joseph Poznanski, a psychologist, dated 27 February 2015, and your life circumstances at the time, your then psychological issues, combined with alcohol, as having attributed to your offending behaviour. I discussed this report with Mr Barker, and I will refer to that later in these sentencing remarks.
45 You described listening to an iPad or other device in the car which fell to the floor of the vehicle, and that when you tried to pick it up you lost control of the car. Mr Barker was, of course, correct to concede that did not excuse your behaviour in any way.
46 At the time of sentence you are 33 years of age. Your parents were both employed, and you are the younger of two children. Your parents separated when you were about 4 years of age.
47 Following the separation, you and your mother and brother lived with a maternal aunt in Narre Warren.
48 You attended Fountain Gate Primary School from prep to grade 2, then Maramba Primary School grades 3 to 6. You began secondary school at Fountain Gate High and attended for about a term of year 7 before you decided to live with your father and moved to Chelsea Heights. You then attended Mordialloc High School for year 7 and part of year 8.
49 Due to your father’s re‑employment to Canberra you moved with him and attended Stromlo High School to the end of year 8 before returning to Melbourne to live with your mother. You then attended Berwick Secondary College year 9 and Bayside Secondary College, completing year 10 in 1997.
50 You left school at the end of year 10 in 1997 and worked as a bricklayer’s labourer.
51 Turning to your prior criminal history and your past alcohol consumption and drink-driving offending, you instructed Mr Barker you began drinking alcohol from the age of 16 and would frequently binge drink. Despite that, you were able to lead a productive work life.
52 You met Wayne Ambrose when you were 18, having played in the same baseball team, and you also socialised together. It was through Mr Ambrose you met Paul Phelps. You described a tightknit group of friends who played sport and socialised together and that heavy alcohol consumption was part of that lifestyle.
53 Mr Barker referred to your extensive work history (Exhibit 1, p.7). Reference was made to your recently leaving Victoria, moving to Yeppoon in 2010, and working as a refrigeration mechanic for nine months. You were then employed as a casual concreter with Keppel Coast Concretors. During that employment on 22 February 2012, you sustained a serious injury, and details of that were set out in Mr Barker’s written submissions (pp.7-8). Surgery had been scheduled for your back injury in late 2012 in Melbourne, ultimately postponed until 30 January 2013 due to this collision. You then underwent a lumbar laminectomy and discectomy. A CT scan showed you had significant ongoing disability as a result of disc injury.
54 As a result of this collision, you sustained a broken nose, two broken ribs, and were released after one day. Thereafter, you visited your friends regularly at the Alfred Hospital and also visited them when they moved to the TAC Rehabilitation Centre in Glen Waverley, and this was confirmed in many references placed before me, to which I shall also shortly refer.
55 In 2014, you undertook a Certificate IV in Computers, although you were unable to complete that due to the residual symptoms from your back injury.
56 Your relationship with your partner of eight years disintegrated following this collision.
57 On 14 October 2014, you began seeing Mr Poznanski, Psychologist. He referred to your initial assessment as having symptoms of chronic post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder. Most recently, your condition had improved to the extent that you no longer had all those symptoms. Mr Poznanski was of the opinion you would benefit from ongoing counselling and occupational rehabilitation.
58 You have most recently, on 4 February 2015, undertaken a course and been awarded a certificate of licence to operate a forklift.
59 As I have said, there are a number of references before me, and I turn to summarise those reference.
60 A reference from Lidia de Cinque dated 18 April 2015, who is your neighbour, and had known your family for about eight years. She described you as exhibiting wonderful personality qualities, with a genuine care for friends, family and neighbours. She described your remorse and regret for this offending.
61 There was a reference from Gwenda Oldmeadow dated 17 April 2015, who had known you for approximately 22 years. When she had spoken to you about this collision, you expressed your guilt for it and for the injuries to your passengers. Since then, you have become very withdrawn. She described your sporting interests and confirmed she was aware of the back injury you had sustained whilst working in Queensland. Ms Oldmeadow described your offending as out of character. Reference was also made to a number of courses she understood you had completed through Centrelink.
62 There was a reference from Jean Harrison, 20 April 2015, who met you when she moved next door to you and your family in July 2009. She described you as quiet, friendly and polite, and that you were upset about your offending.
63 A reference from Michael Deal, dated 20 January 2015, who had known you for about nine years. He confirmed your back injury and difficulty working since surgery. Since the collision, you spent a lot of time in your bedroom at home. You had expressed concern for your passengers.
64 A reference from Susan Jurt, 16 April 2015, a neighbour of yours for nine years. She described you as having good family values and that you were remorseful for your offending.
65 I also received a reference from Michael Ashmore, who had known you as a friend for about 20 years, having attended the same high school and playing for the same basketball club. He described you as being remorseful for your offending. He described you as honest and trustworthy, well-liked by family, friends and neighbours.
66 A reference from Joe Kertesz, undated. He had known you for a period of five years and had worked with you in the past, and described you as a diligent and co-operative worker.
67 A reference from Peter Watkins, Yeppoon Australian Football Club, dated 19 April 15, who had known you since 2010. His involvement with you was between 2010 and 2012, when you lived in Yeppoon, when Mr Watkins was president of that football club. You were happy to volunteer your time for duties at the club. During the time he knew you over those two years, he had found you to be courteous and obliging.
68 Also before me was a Certificate of Statement of Attainment regarding your licence to operate the forklift truck, dated 4 February 2015.
69 At your plea hearing two other references were placed before me. From your mother, Rosemary Riddell, dated 20 April 2015, and she referred to your frequent requests for visits to the hospital to visit Mr Phelps and Mr Ambrose. You also went to the TAC Rehabilitation Centre to visit them and attended medical appointments with Mr Ambrose. She said you did not sleep well and got further into “a dark place”.
70 Mr Ambrose and Mr Phelps suggested you receive counselling, she said, but this did not eventuate and you did not renew your Queensland licence.
71 She said you attended Mr Poznanski to help you with your grief and anguish and bleak future prospects. You had not found any antidepressants to date that “agreed with you”.
72 She described you as generous and with a giving nature. Since the collision and when you were living with her (before returning to Queensland) you had become isolated. She confirmed your remorse for your offending.
73 There was also a reference from Damien McKenzie, undated, who had known you for four years as a community member and administrator of the Australian online gaming community. He had not met you personally, however had been in communication daily via TeamSpeak.
74 He said you had expressed remorse for your offending and the damage caused to the victims. In the last two months you had organised events for older community members. He described you as a loyal, reliable and trusting person, a role model for the community and a decent person.
75 Also before me was a medico-legal report of Dr Scott Campbell, Neurosurgeon, dated 28 February 2014, it seems prepared at the request of solicitors then acting for you, relevant to the work incident that occurred on 22 February 2012.
76 Dr Campbell diagnosed a disc bulge requiring surgery. In the two years since the onset of your symptoms, your condition had stabilised and further recovery would be unlikely. You had ongoing daily lower back pain symptoms. At that time, you were studying computer systems and such, he thought was appropriate, as the prospects of your returning to work as a concreter were poor. Dr Campbell referred to the possibility you may need to take painkillers.
77 There was also a report from Associate Professor McPhee, dated 11 February 2014, Spinal Surgeon. His diagnosis was set out at page 3 of his report. You underwent a discectomy with a reasonable outcome, however there were ongoing symptoms of low back and left leg ache. At the time of his report, which was a year since surgery, he expected your symptoms to moderate with time. Further surgery was not then indicated.
78 There was also a report from Deanne Flynn, Occupational Therapist, dated 11 April 2014, relevant to your injury whilst employed on 22 February 2012. Your work history was set out in some detail within her report, and I will not repeat it here. At the time of her report, you were studying your Certificate in Computer Systems and were in receipt of Centrelink benefits. The author was aware of the collision that is before me (see p.5). Reference was made by the author to you having previously presented at Murray House Clinic with symptoms of depression, suicidal ideation and stress (in September 2010), and that you were prescribed antidepressants.
79 At the time of interview with Ms Flynn you described ongoing lower back pain (see p.6). You most likely needed to obtain employment in an area which would not aggravate your physical conditions (see pp.11-12). Ms Flynn referred to a number of treatments that you may require to assist with your injury.
80 There was also the report before me from Mr Joseph Poznanski, Counselling Psychologist, 27 February 2015, who had been seeing you since 14 October 2014, you having been referred to him by Murray House Clinic on 7 July 2014.
81 He referred to you being depressed as a result of your work injury. You had been taking Valium for anxiety, Effexor for depression, and medication for pain management.
82 In the opinion of Mr Poznanski, your psychological condition at presentation (that is, in October 2014) indicated symptoms of chronic post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder. Your conditions had improved whilst seeing him to the point where you no longer presented with significant symptoms of major depressive disorder and generalised anxiety disorder. Reference was made to your ongoing pain as a result of the work injury. At the time of the collision he concluded you had restrictive physical pain and, due to the onset of a major depressive disorder, were socially withdrawn. In his opinion, he thought underlying depression, physical pain and sleep deprivation, combined with consuming alcohol, would have had a significant impact on your mental capacity at the time of the alleged offending.
83 I discussed with Mr Barker whether he was relying upon the principles in Verdins & Ors[1], based upon the report of Mr Poznanski, and I shall refer to those submissions in a moment.
[1] (2007) 16 VR 269
84 He said you experienced a considerable degree of guilt and remorse for your offending. Your counselling at the time of his report involved sadness, guilt and remorse for what had happened to your friends. You had instructed that since this collision, you had only engaged in social drinking of a moderate nature, and that you had a safety plan in place.
85 Mr Barker conceded your offending was extremely serious, as was the impact upon the victims of your offending. He conceded that your offending was wholly avoidable conduct and it had caused serious injury to your friends.
86 He submitted there was no pre-planning in your decision to drive intoxicated on this night, and I discussed with Mr Barker that that is regrettably the situation we often see in these courts with, unfortunately, consequences similar to yours.
87 Mr Barker did not, at any stage, attempt to play down your offending behaviour, nor the seriousness of it, and nor could he. He conceded you were driving a potentially lethal weapon and the effect of alcohol increased the likelihood of a collision.
88 He conceded your offending fell at the high end of gravity for such offending, with a blood alcohol reading of .144 per cent and with speed being travelled at the time of the collision of between 126-130 in a 60 km zone (I proceed on the lowest figure, that is, 126 kms per hour at impact).
89 Regarding the injuries sustained by your two victims, Mr Barker conceded they were at least at the moderate to upper end of the scale, and I agree. He conceded the injuries were ongoing, albeit it had been three years since the collision. Further, he conceded Mr Phelps had not been able to work as a direct result of this collision and the injuries sustained in it.
90 I discussed with Mr Barker the decision in Gorladenchearau v. The Queen[2] and the assessment of the gravity of your offending.
[2] (2011) 34 VR 149
91 In my opinion, your negligence was of a very high degree. The objective features of your driving demonstrated a great falling short of the standard of care required (as set out in Exhibit A, para.38).
92 In addition, the injuries caused were serious and with ongoing effects to both victims.
93 Mr Barker, in his oral submissions, referred to the circumstances of your drinking that night, and your ultimate decision to leave your friend’s home. There were, as I discussed with him, of course, other options you could have arranged, including organising a taxi. Unfortunately, you decided to drive, and unfortunately a course previously adopted by you on three occasions, albeit with no resulting collisions. Driving whilst intoxicated has been part of your offending history from as early as 2000, when you were 19.
94 Regarding this offending before me, you said you had come to Melbourne prior to surgery to meet up with your friend Mr Ambrose, and you were with him at the hotel, your intention there that the three of you would return to your friend Ms Keitzers’s home, intending to stay the night. You were driving your mother’s car and, I was told, under strict instructions from her that if there was any alcohol consumed, you were not to drive. Unfortunately, you did not heed her instructions or warning.
95 At the Langwarrin Hotel you instructed you had the four heavy beers and, at your friend’s home, your intention was to drink fairly heavily, but not drive.
96 Mr Barker submitted your belief was that the applicable speed limit was 90 kms an hour and that you complied with that throughout your driving. He conceded, however, at the time of this offending you were travelling at 126 kms per hour which, he submitted, may have occurred when you attempted to pick up that music device I had previously referred to that had fallen into the seat well.
97 I was told a little more by Mr Barker of your background and history, consistent with his written submissions.
98 I accept you have had a good employment history until your work injury in February 2012. You were supposed to have surgery shortly after the collision, as I had previously mentioned, however, as a result of the collision, it was postponed. Mr Barker instructed that that subsequent surgery had not been productive or helpful, rather had failed.
99 Mr Barker referred to your attendance with Mr Poznanski, his initial diagnosis and his most recent diagnosis.
100 Turning to the report of Mr Poznanski, as I said, I discussed with Mr Barker whether or not the principle in Verdins were being relied upon, such initially suggested by Mr Barker in his written submissions, in particular regarding the restatement of the Tsiaris[3] principles 4 and 5. Ultimately, as I understood Mr Barker’s submission, he did not rely heavily on Verdins or at all on Verdins principles, rather urged that, consistent with general sentencing principles, I could take into account that any sentence of imprisonment would weigh more heavily upon you than someone without your physical and emotional difficulties.
[3] [1996] 1 VR 398
101 I discussed at some length with him whether or not the principles in Verdins applied in your case. I have concluded they do not, however I acceded to his submission that as part of the general sentencing principles I can and do accept your time in custody will be more difficult for you than a more able-bodied prisoner, specifically relevant to the sequelae of your work-related injury, and as such I have moderated your sentence to a degree. I have not lost sight of the report of Mr Poznanski either. However, I do not consider that the report of Mr Poznanski supports the principles, specifically the principles in Verdins, upon a careful scrutiny of that report (see R v. Zander[4]).
[4] [2009] VSCA 10, para 29
102 Regarding victim impact statements, none were filed, and Mr Barker submitted that both Mr Ambrose and Mr Phelps remain your friends.
103 I accept you are remorseful for your offending, and you visited the two victims, both in hospital and when they underwent rehabilitation. Whilst you remain friends with the victims, Mr Barker conceded he could not say that there was “forgiveness” for your offending. He submitted you had extreme remorse.
104 Turning to delay, Mr Barker submitted it was now 33 months approximately since your offending and, in that time you had not come to the attention of the police. In an email dated 15 July 2015 received from Mr Barker subsequent to your plea hearing, he referred to the decision of R v Merrett, Piggot & Ferrari[5] and I accept the principles stated therein as relevant in your case.
[5] (2007) 14 VR 392
105 Mr Barker relied heavily, when sentencing on your plea of guilty to these charges and, of course as I have said, that is relevant in mitigation of sentence and I note the timing of your plea. Mr Barker submitted there was some “difficulty” with your earlier offer by others then instructed by you, which I interpreted to mean you may not have been initially appropriately advised.
106 Your plea of guilty was not early. I nevertheless accept it is indicative of your remorse and has also the utilitarian benefit, as I have previously stated.
107 Mr Barker conceded there needed to be general and specific deterrence when sentencing you. He is correct.
108 Regarding your rehabilitation prospects, Mr Barker submitted these were good. You were intelligent and had previously been a hard worker.
109 I have some concerns regarding your rehabilitation prospects which, in particular, involve your continued consumption of alcohol and driving. You have a drinking problem and you need to address it to ensure your prospects of rehabilitation are maximised. Having said that, I have not lost sight of your most recent offending on 1 April 2011 which involved a “low” level of alcohol. When sentencing you I must seek to maximise your chances of rehabilitation as they may be.
110 Mr Barker submitted, consistent with his written outline of submissions, that the appropriate disposition was a community correction order. I discussed at some length with him, the decision of Boulton & Ors v R[6] and community correction orders, which has been referred to and addressed in a number of cases since including DPP v Maxfield,Alam v The Queen[7], Marocchiniv The Queen[8] and Hutchison v The Queen[9], although of course being mindful of the different offending in those cases from yours.
[6][2014] VSCA 342
[7] [2015] VSCA 48
[8] [2015] VSCA 29
[9] [2015] VSCA 115, paras 17-18, 21-22 (albeit referrable to other offences)
111 As I discussed with Mr Barker, I did not however understand Boulton to remove the requirement that a sentencing judge take into account s5 Sentencing Act 1991, nor did I understand Boulton to mean that the sentencing principles stated by the Court of Appeal relevant to this type of offending now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis required when sentencing.
112 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalty considered appropriate for this type of offence, as set by Parliament.
113 Mr Barker correctly conceded there were many factors to be considered when determining the appropriate sentence.
114 His secondary position without abandoning his primary submission on sentence, was that I could impose a combination term of imprisonment together with a community correction order.
115 Mr O’Halloran, who appeared on behalf of the prosecution referred to Gorladenchearau and submitted such provided assistance when determining the appropriate disposition and assessing the gravity of your offending, and it does.
116 I was referred to the decision of Miller v R[10], which confirmed the approach in that case.
[10] [2012] VSCA 265
117 He submitted there was a high degree of negligence involved in your offending, as described in the prosecution opening (para 38) and I agree.
118 Further, when assessing the injuries sustained by the two victims, Mr Ambrose’s injuries were at the upper-end of moderate severity and there was also a second victim of your offending, Mr Phelps, with less serious injuries. I agree.
119 Regarding delay of one year before you were initially charged, this was the result of injury sustained by the victims, and the prosecution obtaining material to establish the prosecution case.
120 Mr O’Halloran submitted the principles in Verdins did not apply, as Mr Poznanski did not assess you at the time of your offending, rather made retrospective findings. In particular, his report of October 2014 was an attempt to ascertain your state of mind two years earlier. He also submitted that following initial assessment by Mr Poznanski, he considered you no longer had symptoms of a major depressive order or generalised anxiety disorder.
121 The prosecution conceded your remorse had been sustained, that you admitted being the driver at the scene and attempted to cut your friend from the vehicle.
122 The prosecution submission was that a term of imprisonment for this offending, including the nature and gravity of it and your relevant prior criminal history, was the only appropriate disposition. That the imposition of a community correction order, or a combined imprisonment and community correction order would be outside the range of appropriate dispositions for your offending.
123 I arranged to have you assessed for a community correction order to enable me to carefully consider Mr Barker’s secondary submission and to enable me to also consider whether a sentence including a head and non-parole period was the only appropriate disposition. I made it clear to you at the time I ordered that report you should not assume, even if suitable, that I would impose such a disposition.
124 I received a report from Mr Temple-Camp and you have been assessed as suitable for a community correction order with a number of conditions recommended. I note, it seems, your preparedness to live in Berwick rather than Queensland to enable compliance with any conditions imposed. Your back injury, you said, would not prohibit you from suitable community work. The order was explained to you, you consented to such should I sentence you to that disposition.
125 I have given consideration to the appropriate sentence to impose over the past week on the assumption, as I had discussed with counsel, that you would be suitable for a community correction order, as you are.
126 In my opinion however, to accede to the sentencing submissions urged by Mr Barker would not adequately reflect all relevant sentencing considerations, which not only include the gravity of your offending, but all matters in mitigation of sentence.
127 As previously stated, I have determined that a community correction order would not be the appropriate disposition either on its own or in combination with a term of imprisonment.
128 Your offending was serious. In my opinion, a community correction order would be insufficiently punitive in all the circumstances of this case and would not be sufficient to reflect the objective seriousness of your offending, mindful also as I am of your good rehabilitation prospects. The rider being your alcohol use in the future.
129 In so deciding, I am conscious a term of imprisonment must always be the last resort of the court. I am also conscious this is your first time in custody. Specifically regarding your relevant driving history, I am conscious that your offending when 19 years of age was quite some time ago, and that your most recent appearance involved a “low” alcohol reading. The most concerning drink driving offence was also some time ago in 2004. I have also not lost sight of the fact that none of those involved collisions and/or injury to others. These matters, and all matters in mitigation of your sentence, have been taken into account by me when determining the appropriate sentence.
130 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, although troubled by your continuing offending involving alcohol and driving, I must also consider the need for general deterrence when sentencing you, and such is an important consideration. I note the decisions of Hutchison and Marocchini, albeit referrable to different driving related offences.
131 There is also the need for specific deterrence when sentencing you, in particular, given your history involving drink-driving. Again, I do of course note again there has not been any offending of a similar nature in the past, that is, driving causing injury or serious injury.
132 I must also consider the need to protect the community from you. This continues to concern me, given your repeated drink-driving.
133 There is also the need for just punishment and denunciation of your conduct.
134 I now turn to sentence.
135 On charge 1, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
136 On charge 2, you are convicted and sentenced to 2 years’ imprisonment.
137 I direct that charge 1 is the base sentence and six months of charge 2 be served cumulatively upon charge 1.
138 That results in a total effective sentence of 3 years’ imprisonment, and I direct you serve a period of 18 months before you are eligible for parole.
139 I have when imposing the non-parole period imposed what I regard as a shorter non-parole period. In determining the appropriate non-parole period I note the statement by Callaway JA in R v VZ[11], relevant in particular to the gravity of your offending but also taking into account your prospects of rehabilitation.
[11] (1998) 7 VR 693
140 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, in other words, if you had pleaded not guilty I would have sentenced you to imprisonment for 5 years and set a non-parole period of 3 years and 6 months.
141 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 7 days in custody by way of pre-sentence detention and direct that that be entered into the records of the court.
142 Pursuant to s89 Sentencing Act 1991 any licences held by you are cancelled and you are disqualified from obtaining a licence for a period of 3 years from today’s date. In determining the length of that disqualification, I have taken into account R v Lefebure[12] and R v Franklin[13], referrable to rehabilitation.
[12] (2000) 31 MVR 131
[13] 52 MVR 544
143 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958 and counsel on your behalf did not oppose the order being made. The transcript at the start of this plea will reveal that discussion. I make the order in the terms sought. It will be for a saliva sample and I make the order on the basis of your prior criminal history, the seriousness of this offending, and I must advise you that the authorities may use reasonable force in order to obtain that sample.
144 Just in relation to the plea at the outset, clearly, Ms Keizer did not leave in the car. It was Ambrose, Phelps and yourself when they left the house. Right. Including Ms Keizer leaving, she was not in the car at the time. So I fix that up, in case there is any confusion. Anything further in this matter? No.
145 MR BARKER: No. Your Honour, may I approach my client briefly, though?
146 HER HONOUR: Sure. Of course, you can.
147 MR BARKER: Thank you.
148 HER HONOUR: Yes. Just not too long, but you certainly can.
149 MR BARKER: No, no, no. No.
150 HER HONOUR: You certainly can.
151 MR BARKER: Thank you, Your Honour.
152 HER HONOUR: That’s quite all right. Thank you for your assistance. Thank you. You can remove Mr Burt, please.
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