Director of Public Prosecutions v Bywaters
[2021] VCC 136
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODEN BYWATERS |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2020, 30 October 2020 | |
DATE OF SENTENCE: | 10 February 2021 | |
CASE MAY BE CITED AS: | DPP v Bywaters | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 136 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986;
Cases Cited: DPP (Vic) v Chambers (2006) 47 MVR 22; DPP (Vic) v Neethling (2009) 22 VR 466; DPP v Weybury [2018] 84 MVR 153; Harrison v R; Rigogiannis v R (2015) 49 VR 619; DPP (Vic) v Bausche [2019] 90 MVR 166; R v Whyte (2002) 55 NSWLR 252; R v Verdins (2007) 16 VR 269; R v Van Boxtel [2005] 11 VR 258; Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HIS HONOUR:
1 Broden Bywaters, you have pleaded guilty to an indictment containing two charges – dangerous driving causing serious injury, and reckless conduct endangering persons with serious injury, both of which carry a maximum penalty of 5 years' imprisonment. You have also pleaded guilty to two uplifted summary offences – driving whilst exceeding the prescribed concentration of alcohol, which in your case carries a maximum penalty of a fine of up to 20 penalty units, a minimum licence disqualification period of 6 months, and a mandatory alcohol interlock requirement for a minimum of 6 months; and one charge of failing to report an accident, which in your case carries a maximum penalty of 8 months' imprisonment or 80 penalty units, and mandatory licence disqualification for at least 4 years if a conviction is recorded, or at least 2 years if no conviction is recorded.
2 You have also admitted your criminal record.
Offending
3 The circumstances of your offending were set out in the Summary of Prosecution Opening dated 22 June 2020, Exhibit A. That document, which was read out at your plea hearing, contains the factual basis of the offending upon which you will be sentenced.
4 Your offending can be summarised. However, some detail is required regarding the events leading up to the incident giving rise to the charges to which you have pleaded guilty, in order to contextualise your actions. As at the date of your offending, 13 April 2019, your victim in this matter, Taylah Spence, was living at an address in Yallourn North with Ms Corryn Saliba and Toby Fowler. At the time, Ms Saliba owned a black Mercedes Benz vehicle.
5 At this time, you were friends with Mr Fowler. On Friday night, 12 April 2019, you stayed the night at their property.
6 During the course of the following day, Saturday, 13 April 2019, Ms Spence was driven by Ms Saliba to a friend's place in Morwell, where she consumed alcohol during the afternoon, before Ms Saliba picked her up later that afternoon. At around 8:00pm that day, they decided to go out again. You drove Ms Saliba, Ms Spence and Mr Fowler to an address in Morwell for some 'pre-drinks' in Ms Saliba's Mercedes. At this time, you were a probationary driver, meaning that you were required to have zero per cent alcohol in your system while driving.
7 At about 9.30pm, you then drove these individuals into Traralgon in Ms Saliba's Mercedes. You parked Ms Saliba's car in the car park of Ryans Hotel on Kay Street. You all got out of the car and walked to Star Bar in Grey Street, where you remained for about an hour, drinking alcohol. Upon noticing Ms Spence's ex-partner, a decision was made that your group would leave to avoid any confrontation. Whilst you moved the car, the others in your group went to the Saloon Night Club on Kay Street.
8 You entered the Saloon Bar at about 10.36 pm. Whilst at the Saloon Bar, Ms Spence and Ms Saliba were involved in a confrontation with two other females, causing security to step in and separate all parties. The other two females were friends with another group of people, including Jamie Moyle, Jack Stone and David Lee. Throughout the night, this group of people were quite confrontational with you and your friends. You and your group left the Saloon Bar at 1.42am on Sunday, 14 April 2019, after Ms Saliba was removed from the venue and you followed. Ms Spence and Ms Saliba waited by the fence near the beer garden of Saloon Bar talking to people, while you walked off to get the car.
9 You drove the car near to where Ms Spence was standing and waited. Mr Fowler was in the car with you. One of the other two females who had previously been involved in the fight with Ms Spence and Ms Saliba at Saloon Bar walked past with Jack Stone, and saw Ms Spence talking through the fence. This female approached Ms Spence and grabbed her by the hair, and they became involved in a fight. You and Mr Fowler exited the car that you were driving, came over, and assisted in breaking up this fight. Whilst you were trying to assist, you were punched by Jack Stone, before Mr Stone became involved in another fight with other members of the public, requiring security to step in. You then got back into the black Mercedes, along with Ms Spence, Mr Fowler, Ms Saliba and Alysha Brookes, before you drove off down Kay Street. By now the time was approximately 2.20am.
10 Soon afterwards, Ms Spence realised that her phone was missing. She insisted that your turn around and go back to look for her phone. You did so, parking on the opposite side of Saloon Bar before Ms Saliba got out of the vehicle and walked to the security at Saloon Bar to see if the phone had been handed in. You followed her.
11 The others, including your victim, Ms Spence, remained in the vehicle. Ms Spence asked Mr Fowler to walk over to the taxi rank nearby and ask the males who had earlier been involved in the fight if they had her phone. Mr Fowler walked over towards the group, and as he approached he noticed Ms Spence's ex-partner, Jamie Moyle, lying on the ground. Mr Fowler returned to the Mercedes and informed Ms Spence of what he had just seen. Ms Spence then exited the car and headed towards Moyle, whilst holding Mr Fowler's mobile phone. Ms Spence spoke to Moyle for about 10 minutes.
12 Meanwhile, you returned from the Saloon Bar to the Mercedes. Mr Fowler told you where Ms Spence had gone and pointed to her. You then walked back towards the group of people that Ms Spence was talking to. Upon arriving there, you were told to leave immediately. You turned around and the other males then suggested that you had better run. You started running back towards the Mercedes. A group of three males, including David Lee and Jack Stone, followed you. Mr Stone was shirtless and appeared to be extremely aggressive. Mr Fowler, who had waited in the Mercedes, noticed the group coming towards him.
13 You got inside the vehicle just before these three males got there. Mr Fowler told you to 'fucking drive', and you drove off in a rush, narrowly missing Mr Lee and other people in the street. As you drove off, Mr Lee hit the Mercedes with his fist.
14 CCTV footage captured these events, including the approach of these males, and Mr Lee aggressively hitting the car as you drove off. You drove to the end of Kay Street and turned right into Franklin Street, turning right again and coming back down Kay Street past the Traralgon Police Station, Saloon Bar and Spirit Bar. You then turned right into Church Street and then right again back onto Kay Street, completing a lap.
15 You returned to where the confrontation had just occurred, where the individual who had hit the car with his fist, Mr Lee, and others were on the road. At this point, you deliberately swerved your vehicle towards them. Mr Lee stepped back onto the nature strip. Your conduct in this regard, forms the basis of Charge 2 on the indictment, conduct endangering persons.
16 As you passed the males, Ms Spence stepped out onto the road. The car which you were driving then hit Ms Spence with the centre of the front bonnet. She rolled up onto the front bonnet and towards the right hand side of the bonnet before landing on the road. At the time, Ms Spence was holding her purse and Mr Fowler's mobile phone. The mobile fell out of Ms Spence's hand and became trapped beneath the front windscreen of the Mercedes. Your conduct in this regard forms the basis of Charge 1 on the indictment, dangerous driving causing serious injury.
17 You continued driving without braking. As you drove off, Ms Spence's purse slid off the bonnet onto the road. You recognised it to be Ms Spence's. You said to Mr Fowler, 'Fuck I just killed Taylah.' As you continued to drive away, you broke into tears, saying to Mr Fowler, 'I can't live with this guilt.' Your conduct in this regard forms the basis of the summary charge of failing to report an accident where a person is seriously injured.
18 You drove back to your mother's address in Traralgon, before getting out of the car and going inside the house to get your car keys. A few minutes later you returned to the Mercedes, got back into the Mercedes and drove via the back roads to Morwell where your own vehicle was waiting at a mechanic's. You then got into your vehicle and returned to your mother's house in Traralgon, arriving there at approximately 3.13 am. Mr Fowler, meanwhile, drove the Mercedes back to the Yallourn North address and parked it on the nature strip.
19 Just after you arrived at your mother's house in Traralgon, police members attended to arrest you. You were taken to the Morwell Police Station where you participated in a breath analysis procedure at 4.22am, the results of which indicated that you had an alcohol concentration of 0.095 grams of alcohol. You were then a probationary driver and therefore required to have a zero alcohol percent in your system while driving. Your conduct in this regard forms the basis of the summary charge of exceeding the prescribed concentration of alcohol.
20 In your interview with police, which I have read in its entirety, you made full admissions to your offending, including admitting that you were driving the Mercedes at the time of impact, that you had been drinking alcohol prior to driving, that you believed your actions had caused Ms Spence to be killed, and that you had failed to report the accident after the collision.
21 After being hit by the car, Ms Spence lay on the ground unconscious. Ms Saliba commenced CPR on her. A crowd of people gathered around her. Ms Spence was observed to be bleeding from the nose and back of her head and was snoring. She was subsequently conveyed to the Morwell Regional Hospital by ambulance, where she was found to have skull fractures, a pelvic fracture and soft tissue injuries consistent with high energy blunt trauma. She was later transported to the Alfred Hospital where she remained for 11 days, receiving multiple treatments for her injuries, the details of which were set out in the Summary of Prosecution Opening.
22 Ms Spence also required ongoing rehabilitation at the Latrobe Regional Hospital.
23 Subsequent police investigation in relation to your offending indicated that you were estimated to be travelling at 40 kilometres per hour at the time of impact with Ms Spence, and that you did not apply brakes at the point of impact.
Impact on Victim
24 A victim impact statement from Taylah Spence dated 15 February 2020 was tendered at your plea hearing (Exhibit B) and read out during the hearing. In that statement, Ms Spence outlined the physical, emotional, financial and social impacts of your offending upon her. Ms Spence indicated that she is in pain, some days she is unable to walk or hold her children. She has bad flashbacks of the incident. She has difficulty concentrating due to the impacts of her injuries. She now has bad trust issues and anxiety in relation to leaving the house and indicated that she is now scared to leave the house.
25 A victim impact statement dated 15 February 2020 was also tendered at your plea hearing (Exhibit C) from Jamie Moyle, the ex-partner of your victim. That statement was not read out during your plea hearing, and I will not therefore detail its contents, save to say that your offending has impacted Mr Moyle, the father of Ms Spence's child, adversely.
26 Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the courts of the impacts of crimes upon them. As evidenced by these victim impact statements, the impacts on victims of crime can be long lasting, and far reaching.
27 In formulating an appropriate sentence in your case, I have considered the contents of the victim impact statements tendered in this case.
Nature and Gravity of the Offending, and Your Culpability
28 Turning firstly to the two charges on the indictment, you have pleaded guilty to two serious offences as a result of your driving conduct, for which maximum penalties of 5 years' imprisonment apply – dangerous driving causing serious injury and reckless conduct endangering persons.
29 In relation to Charge 1 on the indictment, dangerous driving causing serious injury, a driving offence that results in serious injury to another person is very serious.[1] The gravity of dangerous driving causing serious injury offending is heavily influenced by an offender's moral culpability and the objective dangerousness of the driving.[2] An offender's moral culpability is a critical component of the objective circumstances of the offence.[3] Another important consideration is the extent of the victim's injuries.[4]
[1]DPP (Vic) v Chambers (2006) 47 MVR 22, 27 [25]
[2]DPP (Vic) v Neethling (2009) 22 VR 466 at 473 [33], and DPP v Weybury [2018] 84 MVR 153 at 159-160 [13 to 15]
[3]DPP (Vic) v Neethling (2009) 22 VR 466 at [33]
[4]Harrison v R; Rigogiannis v R (2015) 49 VR 619, 629 [44] and DPP (Vic) v Bausche [2019] 90 MVR 166 at [37]
30 In assessing the gravity of your conduct in relation to this charge (Charge 1), together with your culpability for it, I have had regard to the non-exhaustive list of features that may aggravate the gravity of dangerous driving causing serious injury which has been referred to in various other sentencing decisions in this and other jurisdictions.[5] These factors do not represent an exhaustive checklist of the factors to be considered when assessing your moral culpability and the overall gravity of your conduct – both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and the circumstances of any specific case, including the circumstances of an offender.[6]
[5]R v Whyte (2002) 55 NSWLR 252, Neethling, and Weybury at [22 and 23]
[6]DPP v Weybury [2018] 84 MVR 153 at paragraph [24]
31
The extent and nature of the injuries inflicted as a result of your conduct is a significant factor to be considered. As a result of being hit by the car, Ms Spence was rendered unconscious, bleeding from the nose and back of her head. While an ambulance was called, CPR was administered to her. As a result of your dangerous driving, Ms Spence sustained skull fractures, a pelvic fracture and soft tissue injuries. She was hospitalised for some 11 days, firstly at the Morwell Regional Hospital, and then at the Alfred Hospital, and multiple medical interventions were required. The ongoing impacts on
Ms Spence have clearly been significant and sustained. Following her admission to the Alfred Hospital, she was subsequently treated as an inpatient at the Latrobe Valley Regional Hospital for some time and has undergone significant and ongoing rehabilitation due to her injuries. Further medical and psychological material in relation to Ms Spence was provided at the subsequent hearing on 30 October 2020 (Exhibit D), highlighting the ongoing and serious consequences of your offending on her physical and mental well-being. In recent months, Ms Spence has reported debilitating issues, including ongoing back and neck pain, problems with memory and concentration, trauma related anxiety and panic attacks, increased insomnia and a loss of smell. She is engaging with a clinical psychologist, with psychiatric reviews.
32 The number of people put at risk through your dangerous driving accentuates the objective gravity of your conduct in relation to Charge 1. Whilst, given that you have also pleaded guilty to reckless conduct endangering persons, Charge 2 on the indictment, and therefore there is a need to take care not to doubly punish you, the number of people put at risk through your dangerous driving nevertheless accentuates the gravity of your conduct in relation to Charge 1. Here, clearly, there were numerous individuals in the vicinity of the incident on Kay Street when you struck Ms Spence, accentuating the dangerousness of your conduct in this regard.
33 I have considered the degree of speed when you struck Ms Spence. According to the relevant police collision reconstruction expert, it was estimated that your vehicle was travelling at 40 kilometres per hour at the time of impact. There is no evidence before me to suggest that you were exceeding any prescribed speed limit at the time. However, as the CCTV footage reveals, your vehicle was moving at a dangerous speed in the vicinity of individuals, and there is no evidence of any brakes being applied by you.
34 I have considered your degree of intoxication at the time of this offence. In your interview with police you referred to having a 'big night' in the context of alcohol consumption.[7] You referred to consuming approximately two to three mixed drinks at the Star Bar[8] followed by approximately six mixed drinks at the Saloon Bar.[9] At 4.22am, slightly less than two hours after the impact with Ms Spence, testing of your breath indicated an alcohol concentration of 0.095 grams of alcohol in 210 litres of breath. In these circumstances, I am satisfied that you were adversely affected by alcohol at the time of this offence. Indeed, you acknowledged as much in your interview with the police when, in relation to the impact of alcohol on you, you said, 'It fucked my judgment right up'.[10] As I earlier indicated, at the time you were a probationary driver, and were required to have no alcohol in your system when driving.
[7]Record of Interview (14 April 2019) Answer 479
[8]Ibid Answer 97
[9]Ibid Answer 119
[10]Ibid Answer 481
35 In terms of the other relevant factors, there is no suggestion that you engaged in erratic driving, competitive driving or showing off, there is no suggestion that you ignored warnings, or that you were sleep-deprived or escaping a police pursuit.
36 In terms of the duration of your driving, I am satisfied that it was relatively limited. As I earlier described, you quickly departed in the context of an aggressive approach by a group of males, one of whom struck the vehicle as you drove off. You then essentially did a lap of Kay Street and the adjoining streets, before approaching the group including Ms Spence. There is no suggestion of you endangering individuals whilst you did this lap, which took approximately 55 seconds. Upon returning to the location where the group including Ms Spence were, as shown by the CCTV footage, your driving, insofar as it endangered others, was of a brief duration.
37 However, as accepted by your counsel, once you returned to the group of individuals on Kay Street, you engaged in aggressive driving by deliberately driving towards the group. Having viewed the CCTV footage and considered the photographs extracted from the footage, it is clear that the road upon which you were driving was wide and would have enabled you to clearly avoid this group. However, you deliberately drove your vehicle at 40 kilometres per hour in the direction of the group without braking, leading to the serious injuries sustained by Ms Spence.
38 Notwithstanding your realisation that you had impacted Ms Spence, you failed to stop the vehicle and drove away – another relevant factor when assessing the gravity of your conduct and your culpability, in relation to Charge 1.
39 I accept that in the hours leading up to this incident, both you and those in your group had been the subjects of aggression from others at various locations in Traralgon, and that you had sought repeatedly to retreat from these incidents. You and your companions left one venue so as to avoid confrontation with Ms Spence's ex-partner. You left a second venue after your female companions had been in a physical altercation where one had been assaulted. You sought to intervene to break up a further fight involving Ms Spence. You were physically assaulted by another male, and when police intervened, you left that area with your companions in the Mercedes. You only returned to the area upon the insistence of Ms Spence, in order to retrieve her mobile phone. After assisting Ms Saliba in attempting to retrieve that phone, upon approaching a group of individuals where Ms Spence was then located, you were threatened and pursued by a group of aggressive males. The CCTV footage clearly shows, in my view, threatening and aggressive behaviour by these males as you retreated to the vehicle and left the scene, whilst one of the males struck the vehicle as you drove away just a minute or so before you hit Ms Spence. I accept that the circumstances, as I have described them, would have been frightening to say the least, and that in no way could you be described as an aggressor up to this point. I also accept that you decided to return to where the group was located on Kay Street, as members of your party were still there – namely Ms Spence and the owner of the vehicle that you were driving, Ms Saliba. Furthermore, notwithstanding your realisation that you had impacted Ms Spence with the vehicle, I accept that there may well have been good reasons not to immediately stop, given the prior acts of aggression towards you by the males. In that regard, I note that upon police attending the scene shortly afterwards, numerous males were observed to be behaving in an aggressive and threatening manner towards police.
40 However, the fact remains that you simply should not have been driving at the time, given your probationary status and your admitted consumption of alcohol. On your own account, your ingestion of alcohol resulted in impaired judgment or decision making, which in this case has had extremely serious consequences. Whilst the duration of your driving, as I have described, was relatively limited, you had up to one minute before the point of impact to consider alternative actions. In particular, whilst doing a lap of the local streets, you passed the Traralgon Police Station, providing an opportunity for intervention by authorities. Furthermore, upon returning to the scene where the group were located, you had the option of manoeuvring the vehicle in such a manner on a relatively wide road, so as to avoid any prospect of impact with individuals. Instead, whilst affected by alcohol, notwithstanding your probationary driver status, you deliberately and aggressively drove towards the group. Your actions put other individuals at substantial risk, and unfortunately caused serious and long-standing injuries to your victim, Ms Spence. Whilst, as I have stated, there may well have been good reasons not to immediately stop, you could have contacted the police, and stopped driving a safe distance away, instead of driving back to your mother's address.
41 The prosecution submitted that your offending essentially fell into the mid‑range of seriousness. Your counsel did not submit that your moral culpability was in any way diminished by virtue of any impaired mental functioning.[11] In all the circumstances, therefore, and being cognisant of the need to avoid simply categorising any given case into a particular range of seriousness,[12] your moral culpability for this offence, in my view, could not be described as low – in my view it is significant. In all the circumstances, in my view, the objective gravity of your offending is significant. Whilst the contextual matters to which I have referred diminish the objective gravity of your offending, in my view it sits above a low level example and remains a serious and concerning example of the crime of dangerous driving causing serious injury.
[11]R v Verdins (2007) 16 VR 269
[12]DPP v Weybury [2018] 84 MVR 153 at paragraphs [33] and [34]
42 In relation to Charge 2 on the indictment, reckless conduct endangering persons, for the reasons I have explained, your level of culpability is significant, and the objective gravity of your conduct is serious. As I have explained, I have taken into consideration in relation to an assessment as to the gravity of Charge 1, the danger which your driving caused to others. Accordingly, there is a need for care not to doubly punish you in relation to Charge 2 on the indictment. In my view, this was really one action on your part – by driving towards the group as you did, you placed others in danger and almost immediately thereafter, you caused serious injury to Ms Spence.
43 Likewise, in relation to the summary charge of driving whilst exceeding the prescribed concentration of alcohol, I have taken into consideration this aspect when assessing the gravity of Charge 1 on the indictment, dangerous driving causing serious injury. There is a need therefore to avoid doubly punishing you in relation to this offence. However, as I have now stated, it is of concern that as a probationary driver with a zero per cent requirement, you ignored this legal obligation and returned a reading of 0.095 within three hours of driving the motor vehicle.
44 Finally, in relation to the summary charge of failing to report an accident to police where a person was seriously injured, I have also considered this issue when assessing the gravity of the dangerous driving causing serious injury charge. There is a need to avoid double punishment accordingly. In my view, there is a distinction in relation to this charge, however. Having not stopped after the incident, you could nevertheless have subsequently taken steps to report the incident to police, either in person, given the proximity of the Traralgon Police Station or by phone at some time thereafter. Whilst the context in which your offending took place to an extent explains your failure to stop, your failure to subsequently report to police the existence of the accident is without a reasonable explanation in my view. As a probationary driver, you should have been well aware of your legal obligation to bring to the attention of police the existence of an accident where an individual had been seriously injured.
Personal Circumstances
45 You are now 24 years of age. You were 22 at the time of the offending. You live with your mother in Traralgon, and until relatively recently you have been employed as a bricklayer.
46 I accept that throughout your young life, you have experienced significant personal difficulties. Your parents separated when you were three years of age. Following that separation, you remained in the care of your mother, and over the next decade you had virtually no contact with your father, a man who has apparently suffered with heroin addiction for many years and has served various terms of imprisonment.
47 You apparently proceeded through primary school relatively well, though some potential learning difficulties were apparently identified, and you received some speech therapy, reading recovery and a surgical procedure took place in relation to an issue with your tongue, which was rectified but left you with some communication problems.
48 It appears that a number of developments took place from about the age of nine, resulting in emotional upheaval on your part and resulting behavioural issues. From the age of nine, your mother formed a relationship with a violent alcoholic who became a malignant presence within the home. Your mother's relationship was apparently somewhat unstable, no doubt adding to a difficult home environment.
49 You had experienced some learning difficulties it seems throughout your primary school, and it had been suggested that you repeat a year; however, your mother and grandparents decided against this and you continued to progress through to Year 9 when you were asked to leave school. You briefly attended a second high school before dropping out altogether. After a significant period of estrangement from your father, you reconnected with him in your early teens. You apparently became upset upon learning that your father had another child, given that he had been absent in your life for so long. At around the age of 12, you also endured the emotional difficulties associated with the death of a young neighbour of a similar age, with whom you had been very close.
50 In the lead up to your final discontinuance of education as a young teenager, you started associating with other disaffected young people, and started using cannabis. Rather than attending school, you would apparently spend most of the day at a nearby drug house with others.
51 In your mid-teens, you came to Melbourne to live with your father. He had other children with whom you ultimately developed a close relationship. Your father and his new partner were in the grips of drug addiction, which resulted in you having to take on a caring role for your young half-siblings in what presumably was a rather chaotic environment. In the years that followed, you would intermittently reside with either your father or your mother for periods of six to 12 months.
52 To your credit, since the age of 15 and a half, you have consistently obtained employment in the area of bricklaying, initially through a connection with your father. In that regard, I have considered a positive character reference from Michael Underwood, dated 13 September 2020 (part of Exhibit 2), confirming that Mr Underwood employed you for approximately four years and found you to be a dedicated and hardworking young man.
53 As I have stated, you commenced using cannabis from the age of 15, and soon after progressed to methamphetamine use. You informed an assessment officer from Corrections in relation to a Community Correction Order assessment, the details of which I will later refer to, that you 'went hard'[13] on methamphetamine, ultimately ceasing use of this substance at about the age of 20. You have, however, continued your use of cannabis. Further, when speaking with the Corrections assessment officer, you disclosed having a problem with alcohol approximately two to three years ago, at which time you would drink daily until you passed out.
[13]Mr Kyle Mills, Extended Pre-Sentence Assessment Outcome Report (21 October 2020)
54 Notwithstanding your personal difficulties, it is to your credit that you have an extremely limited criminal history. However, your one court appearance relates to driving conduct, and therefore is a relevant matter for the purposes of sentencing. On 4 May 2018, at Heidelberg Magistrates' Court, you received a without conviction financial penalty for the charges of careless driving, fail to give name and address following an accident where property was damaged, and various learner driver offences.
55 In terms of your more recent circumstances leading up to your initial plea hearing on 16 September 2020, I was informed that you continued to reside with your mother, Samantha Stockdale. Your mother provided a character reference (Exhibit 3), outlining the degree to which you have been helping your grandparents with various daily activities, and have greatly assisted your grandfather in his attendances at the Alfred Hospital, in relation to his terminal lung cancer. Your grandmother, Pam Stockdale, also provided a positive character reference, outlining various aspects of your background, and confirming the substantial assistance which you have been offering to her and her husband during their difficult recent experiences. A number of other positive character references were tendered on your behalf, and I accept that you are extremely well regarded by those that know you well, notwithstanding the difficulties in your life.
56 In the weeks following your offending, you made contact with an outreach support worker from Headspace, and you continued to work with Headspace for some six sessions, where you received support and counselling in relation to your substance use issues. I have read and considered a letter from Jess Lawrence from Headspace, dated 21 January 2020 (Exhibit 3), which outlined your contacts with this organisation. According to Jess Lawrence, during your contact you had significantly decreased your polysubstance use. I have also considered two letters from addiction counsellor Mike Carroll from MC Counselling (undated but provided at your hearing on 30 October 2020 - Exhibit 5, and at today's hearing, Exhibit 6), detailing that you self-referred to this organisation on 21 September 2020 and subsequently attended weekly counselling sessions in relation to drug addiction issues. These contacts are to your credit and show your genuine motivation to deal with your underlying drug related issues. In particular, the most recent letter from Mike Carroll is most encouraging – whilst in recent times you have not remained completely drug or alcohol free, you have improved psychosocial skills, you have demonstrated a genuine shift in your behaviour and attitudes, your consequential thinking has improved, you have shown a vocational interest in one day working with addicted individuals, you have been able to identify your triggers for your drug use and associated behaviours, and it seems you have benefitted from your parents reuniting and the impact on home life. There is even some prospect it seems of employment with your father in the future as a bricklayer, depending upon, of course, your physical recovery from your hand injury. Given the problems associated with the recent hand injury in an alcohol effected context, this letter in particular provides a degree of hope in relation to your future progress.
57 I accept, in all the circumstances, that notwithstanding significant obstacles in your life, to your credit you have remained largely offence-free, you have managed to obtain a skill and significantly, until October last year, at least, maintained substantial employment as a bricklayer. You have maintained healthy and, it seems, strong connections with family and friends, all of which is to your credit. You have, however, developed problematic behaviours in relation to drug and alcohol use. Significantly of course, alcohol played a significant role in your offending.
Other Sentencing Considerations
58 The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and gravity of your offending and your culpability and degree of responsibility for it, and the impact of your offending on your victim, Ms Spence. I have also had regard to your previous character as just outlined.
59 I have also taken into consideration your plea of guilty. As conceded by the prosecution, you should be given the full benefit of an early plea of guilty. I accept that at all relevant times you indicated a willingness to plead guilty, and that the delays associated with your earlier plea from January 2020 being vacated was a product of you acting on legal advice rather than any issue taken by you with your responsibility for your offending. Indeed, a review of your police interview indicates your acceptance of responsibility from a very early stage. Your matter formally resolved to a plea of guilty in June last year, your case having been accepted into the Emergency Case Management Protocol at the County Court, in the midst of the COVID-19 pandemic. Your plea of guilty has facilitated the administration of justice in extraordinarily difficult times. Your plea has obviated the need for a trial with its associated delays and costs, not to mention the inconvenience and trauma experienced by witnesses who would otherwise have to be cross-examined. Particularly given the lengthy delays and other impediments associated with the COVID-19 pandemic, your plea of guilty has significant utilitarian benefit, warranting a significant and observable discount on sentence.
60 Furthermore, I accept that your plea of guilty is reflective of genuine remorse on your part, warranting a further sentencing discount. Throughout your police interview, there are multiple instances of your articulation of remorse. Indeed, in the minutes after your offending, you were observed by Mr Fowler in the vehicle to break down in tears, saying, 'Fuck, I just killed Taylah…I can't live with this guilt.' Many of the character references to which I have referred also speak of your genuine remorse for your offending. You also expressed remorse during your assessment for suitability regarding a Community Correction Order. Your remorse decreases the need for any sentence to reflect the sentencing principle of specific deterrence, and your acceptance of wrongdoing in this manner also speaks to your prospects of rehabilitation.
61 You are young man, aged 24, only 22 at the time of the offending. I have taken into consideration the principles applicable to the sentencing of young and youthful offenders. The community rightly has considerable interest in the rehabilitation of young offenders, particularly those with little criminal history, and it is right to give appropriate recognition to the need to facilitate your rehabilitation, given your youth. However, as previous sentencing decisions have made clear, the principles applicable to sentencing of youthful offenders must be tempered in cases such as this. Instances of dangerous driving causing serious injury are frequently caused by young offenders who are often of good character with no or limited prior convictions, and who show genuine remorse. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of significant importance, and youth must therefore be given relatively less weight.[14]
[14]DPP (Vic) v Neethling (2009) 22 VR 466 at paragraphs [54] and [55]
62 On a related issue, I have also considered your prospects of rehabilitation. You are, as I have stated, a young man who has shown some degree of promise in relation to prosocial indicators, such as employment and connection with family, with associated altruistic endeavours. It is to your credit that you clearly maintain the love and support of those around you. You have an extremely limited criminal history although, as I have stated it is of some concern that your one prior matter relates to poor driving behaviour and your inability to comply with your legal obligations as a driver. As evidenced by the letters from Headspace and MC Counselling, you have demonstrated an ability to obtain appropriate interventions in relation to your drug and alcohol issues. However, clearly in some respects this issue remains problematic.
63 For the purposes of considering an appropriate sentence in your case, I ordered you to be assessed by Corrections for the purposes of your suitability in relation to a Community Correction Order. In that regard you were assessed on both 29 September and 20 October 2020. A risk profile was obtained, indicating that you represent a medium risk of reoffending in the view of Corrections. The most prominent risk factor related to alcohol and drug problems. In that regard, you indicated to the assessing officer from Corrections on 20 October 2020 that you were involved in an incident on
11 October 2020. On that day, having consumed alcohol and being intoxicated, you were 'mucking around', using your words, and punched a window with your right hand, which resulted in damage to tendons, nerves and an artery in your arm, requiring hospitalisation for some days at Dandenong Hospital, during which time you had surgery.
64 At your further plea hearing on 30 October 2020, I was provided with a letter from occupational therapist Grace Ghalayini from Monash Health dated
30 October 2020 (Exhibit 4), detailing the nature of the injury to your hand as a result of this incident, which required plastic surgery on 13 October 2020, a post-operative splint, and ongoing hand therapy to ensure future mobility
65 In your earlier contact with Corrections on 29 September 2020, you indicated that you currently drink one weekend in a month, and during these sessions you will consume half a bottle of straight whiskey. You also then indicated that you continue to use cannabis at approximately three grams per day. The assessing officer concluded that it is of concern that you continue to drink alcohol and, whilst under its influence, make poor decisions. With respect, as highlighted by the recent incident with your hand, I agree with this concern. Particularly, given the role of alcohol in the offending, it is of concern that whilst awaiting sentence, you have apparently consumed alcohol to such an extent as to cause yourself significant injuries. As I have outlined, thankfully, you have sought professional assistance with MC Counselling since this incident, and whilst you have not been abstinent, I accept that you have made positive changes in relation to your underlying drug and alcohol issues, which provide some basis for positivity regarding your prospects of rehabilitation, notwithstanding this troubling alcohol related incident with your hand.
66 On a practical level, your recent injuries will no doubt represent a significant impediment to any further work as a bricklayer in at least the short term. However, given your youth, background, and relative lack of criminal history, recent rehabilitative endeavours, and continued family support, I do regard your prospects of rehabilitation as being reasonably good, provided you continue to obtain appropriate specialist intervention in relation to your substance abuse issues.
67 In formulating an appropriate sentence in your case, I have also taken into consideration the hardship that would be caused through any sentence of imprisonment, in light of the unprecedented COVID-19 pandemic and its consequences on the custodial setting. As is now well-known, the prison setting has not been spared from the consequences of COVID-19. For the majority of last year, face-to-face prison visits were suspended and there were significant restrictions upon prisoners' freedom of movement, activities and rehabilitative programs. Prisoners also lived with the understandable anxiety in relation to the consequences of COVID-19 entering the prison system, and the health of prisoners.
68 Whilst COVID-19 did enter the prison system, the situation has clearly improved in recent times. However, offenders entering the prison system must still quarantine for a period of some 14 days. Whilst prison visits have now resumed, there remain various restrictions and limitations, particularly in relation to face-to-face activities and programs. Clearly, the situation is still unpredictable and somewhat volatile, as it is in the broader community.
69 A mitigatory allowance is therefore warranted in relation to the hardships attendant upon a custodial sentence, including in particular the understandable anxiety to both you and your loved ones due to the potential consequences of COVID-19.
70 In your case in particular, I am satisfied that any sentence of imprisonment would be more onerous for you due to your relatively recent hand injury. I am satisfied that your injury would increase the burden of imprisonment, given your physical fragility and vulnerability in a custodial setting, and the increased challenges in relation to obtaining appropriate medical and physical rehabilitation. A sentencing allowance is warranted, consistent with the authorities dealing with the burden of imprisonment due to injury.[15]
[15]R v Van Boxtel [2005] 11 VR 258
71 The incident giving rise to the charges to which you have pleaded guilty occurred on 14 April 2019, some 22 months ago. Finalisation of your case has been impacted upon through the delays associated with the COVID-19 pandemic. I acknowledge that the delays associated with this case have no doubt weighed heavily upon you, warranting some mitigation in penalty.
72 In formulating an appropriate sentence in your case, I have had regard to current sentencing practices as one of the many sentencing factors to be taken into consideration. In that regard, previous sentencing decisions have highlighted the seriousness in particular of the offence of dangerous driving causing serious injury, and that a custodial sentence will usually be expected to satisfy the need for general and specific deterrence, community protection and just punishment.
73 In the decision of DPP v Weybury,[16] the Court of Appeal referred to the earlier decision of DPP v Neethling (2009)[17], which highlighted that, in relation to the offence of dangerous driving causing serious injury (together with the offence of dangerous driving causing death), general deterrence must be given considerable weight in sentencing, a significant term of imprisonment is likely, variations in the moral culpability of the offender must be considered, and a custodial sentence will usually be appropriate, except in cases where the offender's level of moral culpability is low.
[16]DPP v Weybury [2018] 84 MVR 153 at paragraph [22]
[17]DPP (Vic) v Neethling (2009) 22 VR 466
74 Given the nature of your offending, there is a need for the sentence imposed to reflect the prominent sentencing principal of general deterrence – other members of the community must be deterred from engaging in such serious and dangerous behaviour. Your conduct must be denounced. Whilst any penalty must also reflect the sentencing principle of specific deterrence, I am satisfied that this principle has less application in your case, given your youth and relative lack of criminal history. Particularly given your relative youth, any penalty imposed must, to the extent appropriate, facilitate your rehabilitation. Given the nature of your offending, any penalty must adequately reflect the sentencing principle of community protection.
75 For the reasons that I have outlined, there is a need to not doubly punish you in relation to these charges, given the overlap in criminality as I have described. There is also a need, notwithstanding the different charges to which you have pleaded guilty, to impose a penalty which reflects the sentencing principle of totality.
76 Your counsel submitted that, in all the circumstances, a Community Correction Order, preferably on its own, but in the alternative, in combination with a sentence of imprisonment, would appropriately reflect the various sentencing factors and principles applicable in your case. Clearly, as has been articulated in previous sentencing decisions, a Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, and I accept that a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording best prospects for rehabilitation.[18]
[18]Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191 at [55]
77 Having given this matter careful consideration however, and notwithstanding the powerful plea in mitigation presented by your counsel, Mr Norton, I have come to the conclusion that a sentence involving a period of imprisonment followed by a carefully tailored Community Correction Order is the only appropriate sentence which adequately reflects the sentencing factors and principles to which I have referred. Acknowledging your relative youth, family supports and rehabilitative prospects, in my view, the nature and severity of your offending coupled with your level of culpability, together with the serious impacts of your offending on Ms Spence, leads to the requirement of a sentence of imprisonment being imposed.
78 In light of the mitigatory features of your case, and consistent with the principle of parsimony, the length of the term of imprisonment will be reduced and somewhat modest. In my view, whilst a sentence of imprisonment is warranted, it would simply be counterproductive for you to serve a significant sentence of imprisonment, given your youth and recent albeit somewhat precarious, recent rehabilitative efforts. In my view, the community's protection, and ultimately your rehabilitation, is best advanced through your release from prison relatively soon, onto a carefully structured Community Correction Order.
Sentences to be Imposed
79 As I have stated, in my view, the conduct forming the basis of Charges 1 and 2 on the indictment essentially form, to a large degree, components of the one continuous action on your part. It is therefore my intention to impose an aggregate sentence in relation to these charges. In relation to Charges 1 and 2 on the indictment, these offences being founded on the same facts or being part of a series of offences of the same or similar character, you are convicted and sentenced to an aggregate sentence of five months' imprisonment, followed by a Community Correction Order. The order will commence upon your release from prison and will operate for a period of 18 months.
80 In addition to the mandatory conditions attaching to all Community Correction Orders, there will be a number of additional conditions. For the duration of the order, you will be required to be under the supervision of a community correction officer. You will be required to undergo assessment and treatment, including testing for drug use or dependency. You will be required to undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed. You will be required to undergo any mental health assessment and treatment, that may include psychological, neuropsychoglical, psychiatric treatment in a hospital or residential facility, as directed. I will return to the conditions of the Community Correction Order and the order itself in a moment.
81
In relation to Charge 1 on the indictment, dangerous driving causing serious injury, any licence held by you is cancelled and you are disqualified from obtaining another for a period of 18 months, this period commencing from
14 April 2019.[19]
[19]The date upon which a s51 notice was served on the accused pursuant to the Road Safety Act 1986
82 In relation to the related summary offences – in relation to driving whilst exceeding the prescribed concentration of alcohol, you are convicted and fined $450. In relation to that charge, any driver's licence held by you is cancelled and you are disqualified from obtaining another for a period of 6 months, effective from 14 April 2019. Pursuant to s.14A of Schedule 1B of the Road Safety Act 1986, upon relicensing you will be subject to an alcohol interlock requirement for 6 months.
83 In relation to the charge of failing to report an accident, as explained during the course of the earlier plea hearing, I regard this offence as a serious matter, and too serious in the circumstances of your case to avoid a conviction being recorded. In relation to this charge, you are convicted and sentenced to 14 days' imprisonment, to be served concurrently or at the same time as the aggregate sentence imposed in relation to the charges on the indictment. In relation to this charge, any driver's licence held by you is cancelled and you are disqualified from obtaining another for a period of four years from 14 April 2019.
84 Finally, pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have imposed a total effective sentence of 2 years and 6 months' imprisonment with a non-parole period of 1 year and 6 months.
85 Mr Bywaters, in relation to the sentence I have imposed, what that essentially means is that you are going to be serving a sentence of imprisonment. That sentence will operate for 5 months. The 14 days imposed on the failing to report charge runs at the same time, so it does not extend that period.
86 Upon your release, you will be subject to a Community Correction Order for 18 months. Now, there are a number of conditions attaching to that order, and I can only impose the Community Correction Order if you agree to follow the terms of the order. And you can only agree if you understand what is involved. So, I am going to read to you the conditions and explain the consequences, should you breach the order, and then I am going to ask you if you will consent to undertaking the order.
87 So, the order will run for 18 months, it starts upon your release. You will need to attend at the Morwell Community Correctional Services within two clear working days after the order commences.
88 There are a number of mandatory conditions attaching to the order. They are that you must not commit another offence punishable by imprisonment during the order. You must comply with any obligation or requirement prescribed by the relevant regulations. You must report to and receive visits from the authorised person. You must report to the Community Corrections Centre, as I have said, within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of any change to your address or employment. You must not leave Victoria without first getting permissions from Corrections. And you must obey all lawful instructions from and directions of the authorised representative. So, they are the mandatory conditions.
89 The additional conditions, which I have already read to you, I will just repeat, are as follows. You must be under the supervision of a Community Corrections officer for 18 months. You must undergo assessment and treatment, including testing for drug abuse or dependency. You must undergo assessment and treatment, including testing for alcohol abuse or dependency. And you must undergo any mental health assessment and treatment that is directed by Corrections.
90 Those conditions run for the duration of the order. If you breach any of those conditions, by way of example, committing an offence punishable by jail or not complying with any of these conditions without having a reasonable excuse, you can be dealt with for breaching the order. Any breach will most likely be brought back before me. You can be punished in relation to breaching the order, which can carry a jail term. Most significantly, perhaps, you can be re-sentenced in relation to this matter and jail terms can be imposed. Do you understand what is involved in undertaking a Community Correction Order?
91 OFFENDER: Yes, Your Honour.
92 HIS HONOUR: And knowing those conditions and the consequences should you breach it; do you agree to comply with the order?
93 OFFENDER: Yes, Your Honour.
94 HIS HONOUR: I do not want to hear in the future as an excuse, 'Look, I just didn't quite understand what was involved in the Community Correction Order', so if you do not understand, now is the time to say, and I will give you a chance to speak with Mr Norton, should you wish; are you confident that you understand what is involved?
95 OFFENDER: Yeah.
96 HIS HONOUR: Yes, all right.
97 OFFENDER: Yes, Your Honour.
98 HIS HONOUR: Mr Norton, I take it you have had a chat to you client pre-emptively about what is involved?
99 MR NORTON: Yes, Your Honour.
100 HIS HONOUR: Yes, all right, thanks. All right, thanks. The order - are you right-handed, Mr Bywaters
101 OFFENDER: Yes.
102 HIS HONOUR: Yes, are you able to sign with that?
103 OFFENDER: (Indistinct words).
104 HIS HONOUR: All right, thanks. All right, we will now have the document taken back to Mr Bywaters. If my associate and Mr Norton, if you could accompany and assist?
105 MR NORTON: Thank you, Your Honour.
106 HIS HONOUR: Just while it is happening, Mr Devlin, are there any issues arising out of the sentence? You were muted, but I lipread 'no'.
107 MR DEVLIN: Sorry, I keep on pressing that button, but the answer is 'no', Your Honour.
108 HIS HONOUR: Yes, all right, thanks.
109 MR NORTON: If it is convenient, I might just go to the dock now.
110 HIS HONOUR: Yes, thanks. Mr Norton, if it assists, I am content, if you want me to, to leave the Bench to allow you some privacy with your client?
111 MR NORTON: I would appreciate that, Your Honour.
112 HIS HONOUR: Yes, of course.
113 MR NORTON: There is the issue with literacy that had been referred to previously.
(Short adjournment).
114 MR NORTON: Thank you for that opportunity, Your Honour.
115 HIS HONOUR: Yes, thanks. Yes, thanks, I will sign that. You can take a seat, Mr Bywaters. I have signed that order. Yes, are there any other matters that I need to attend to? Mr Devlin, first?
116 MR DEVLIN: Not from the prosecution, sir.
117 HIS HONOUR: Mr Norton?
118 MR NORTON: No, Your Honour.
119 HIS HONOUR: Yes. All right, thank you. If Mr Bywaters can be removed please? Thank you. Thanks.
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