Director of Public Prosecutions v Cairns (a pseudonym)

[2018] VCC 662

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

AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Dale CAIRNS (A pseudonym)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Ballarat
DATE OF HEARING:	7 May 2018
DATE OF SENTENCE:	11 May 2018
CASE MAY BE CITED AS:	DPP v Cairns (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 662

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms R. Maxwell
For the Offender	Mr M. Brennan

HIS HONOUR

1Dale Cairns,[1] you have pleaded guilty to one charge of culpable driving, three charges of theft, one charge of dangerous or negligent driving whilst being pursued by police, one charge of conduct endangering persons and one charge of failing to stop and render assistance.

[1] Dale Cairns is a pseudonym.

2In addition, you have pleaded guilty to three summary offences of failing to stop after an accident, unlicensed driving and dangerous driving.

3The facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporated into these reasons for sentence and I sentence you on the basis of the facts set out therein.  There is therefore no need to comprehensively deal with those facts.

4Very briefly stated, however, on 19 September 2017, you were driving a stolen Hiace van in the Ballan area.  You had previously stolen a pair of number plates in Geelong and attached them to the vehicle.  Sally Patterson,[2] then 16 years of age was a passenger in your stolen car.

[2] Sally Patterson is a pseudonym.

5At about 2.10 pm, a police vehicle sought to intercept you.  You sped through Ballan, driving at times on the wrong side of the road and around corners to avoid interception.  The police followed you with lights and sirens activated.

6You travelled along to the Western Highway heading west at about
130 kilometres per hour.  You attempted to overtake a large B-double semi-trailer on the left hand side in the emergency lane.  The van you were driving struck a stationary VicRoads truck parked in that emergency stopping lane ripping open the van and killing your passenger.

7Two VicRoads employees were inside the cabin of the stationary truck.  Sally Patterson was thrown out of the van by the collision.  Photographs, Exhibit B, particularly Photos 38 to 36 demonstrate the horrific damage to the van as a result of the collision.

8You kept driving before stopping the van and running off.  You went to a nearby house and stole a motorcar and drove into Ballarat.  You were speeding and driving on the wrong side of the road.  You were involved in a collision with yet another vehicle in Gillies Street.

9Again, you failed to stop and drove off.  You were 17 years of age and unlicensed.  Police located you and arrested at about 4 pm.  You were taken to Ballarat hospital where a blood test confirmed that you had methylamphetamine and amphetamine in your blood at levels that rendered you incapable of having proper control of the motor vehicle.

10When interviewed, you made no comment.

11You have admitted an extensive prior criminal record.  You have appeared regularly in the Ballarat Children's Court since 2011.

12On 10 October 2011, at the age of 11, you were before that court on assault, theft and criminal damage charges.  And again, in November 2011, you were dealt with the theft offences.  In 2012, you were dealt with the criminal damage and received a bond to theft from a shop.

13In 22 November 2014, you were again before the court on eight charges of burglary, eight charges of theft, graffiti, assaulting police, resisting police and you were released on a 12 month youth supervision order.

14On 13 January 2015, you were released on a bond for intentionally damaging property.

15On 10 November 2015, you were yet again before the Children's Court on seven charges of theft of a motor vehicle, aggravated burglary, theft, burglary and possession of cannabis.

16On 19 January 2016, you were sentenced to 12 months detention in a youth justice centre for offences of dishonesty, handling stolen goods, proceeds of crime, robbery, burglary, aggravated burglary, theft of a motor vehicle, criminal damage by arson, reckless cause injury, resisting emergency workers on duty, unlicensed driving and two charges of burglary.

17On 20 May 2016, you were sentenced to 45 days detention for the theft of a motor vehicle.

18Finally, on 26 September 2016, you were sentenced to four months detention for three charges of burglary, dealing with proceeds of crime, theft, obtaining property by deception, tampering with a motor vehicle and acting prejudicially to the good order of a gaol.

19You were released from detention in November 2016.  Your criminal record is staggering for one so young.

20Victim impact statements were filed on behalf of Sally Patterson's family and friends.  Her death has shuttered the lives of many people.

21Sally’s mother struggled to read her victim impact statement at court.  She said that her heart and soul are numb, her life is changed forever.  She cannot understand how you could leave Sally on the side of the road if you cared for her.

22She is haunted by nightmares and described the ordeal of Sally's funeral.  Sally is described as a kind-hearted loving person who was much loved by many.

23She correctly points out that if you had just pulled over, no one, including you, would be living this nightmare.  She has been suicidal and mourns all the milestones she will be unable to share with Sally.  Her younger daughters are lost and upset without their sister and they have all required counselling.

24Sally’s father, is also devastated obviously by Sally's death.  She was his baby girl.  He suffers from anxiety and panic attacks and he is treated for depression.

25Sally's grandmother, outlines her feeling sick, angry and disbelief at Sally's death.  She does not sleep and does not want to go out.  She sees the pain the whole family endures.

26Close friends filed victim impact statements setting out their grief and their sense of loss at Sally's death and they say she will always be in their hearts.  They feel anger and sadness.

27Sally's cousin read her victim impact statement.  She cannot get the image of a life without her cousin out of her mind. She grieves for Sally's parents and also mourns for the things Sally will never experience.

28Sally was clearly a vibrant, happy, young girl much loved by all who knew her.  The ripple effect of your crime is enormous.

29Mr S,[3] was in the VicRoads truck you hit.  He suffered minor physical injury and ongoing emotional injury.  He will never forget what happened and as a father of young daughters, empathises with Sally's parents.  He is often reminded of the collision.

[3] Mr S is a pseudonym.

30I take the victim impact material into account in sentencing you.

31Turning to your personal circumstances, you are now 18 years of age, born
6 January 2000.  You were 17 at the time of your offending.

32Your parents separated when you were four years of age and you have had no contact with your father since.  You experienced an impoverished and traumatic childhood and had a lengthy involvement with Child Protection and the Department of Human Services.

33You were removed from your mother's care when you were five and placed in foster care, then residential care until you were 12.  In 2012, you were returned to your mother's care.  You had learning issues at schools.  You were expelled several times and finally at the Year 7 level.

34You subsequently attended some alternative education programs on a sporadic basis but since being in youth detention, you have renewed your education, apparently successfully at the Parkville Youth Justice Centre.

35Not surprisingly, you commenced using illicit drugs at a young age.  Of recent years, you have been abusing ice methylamphetamine.  Your escalating criminal record is typically of drug related offending and as your drug use increased, your criminal conduct escalated.

36You were completely out of control regularly committing serious offences, regularly appearing before the Children's Court and always failing to take advantage of the therapeutic sentences you received.

37By 2015, you had exhausted the leniency of the Children's Court and commenced being detained.  You had absolutely no regard for the law and had become a genuine threat to the community acting as a complete outlaw.  You were stealing cars, using ice and committing offences whilst on bail.  You were a disaster waiting to happen.

38Turning to sentencing principles.  Your offending is of such seriousness that the law requires you to be dealt with by this court.  The sentencing principles contained in the Sentencing Act, s.5 apply to your culpable driving offence. However, the principles set out in s.362 of the Children, Youth and Families Act 2015 apply to all other offences to which you have pleaded guilty.

39Although, general deterrence is not a factor for those offences, I am obliged, as far as practical, to have regard to the need to strengthen and preserve your relationship with your family, take account of the desirability of having you live at home, have regard to the desirability allowing your education, training and employment to continue with interruption and disturbance.

40I will pause to say you would probably do that best in custody.

41I need to minimize the stigma that you will receive as a result of the court determination.  I have got to take account of the suitability of the sentence I am about to impose to you as a child.  I need to ensure that you are aware that you must bear responsibility for any actions you have against the law and I need to protect the community from your violent or wrong acts.

42I have had regard to all of the s.362 factors and principles in sentencing you.

43So far as your culpable driving is concerned, as I said on your plea, your offending represents a high level example of the offence of culpable driving.  Your counsel conceded as much.

44Firstly, it had occurred in the context of a police pursuit.  You chose to flee at speed rather than stop as required.

45Secondly, you had a young passenger on your car.

46Thirdly, you were driving a stolen vehicle.

47Fourthly, you were under the influence of methylamphetamine.

48Fifthly, you drove at excessive speed and in a grossly negligent manner.

49Sixthly, you demonstrated a complete lack of contrition by failing to stop, running away and committing further offences in an attempt to save yourself.

50Finally, you were unlicensed and should not have been driving at all.

51Clearly, general deterrence is the principle sentencing factor in culpable driving offences.  Community is totally traumatised by the carnage that occurs on our roads.  Those who behave as you did, need to clearly understand that lengthy terms of imprisonment will be imposed on persons who kill others with a motor vehicle.

52The court can only hope that the sentence imposed on you will cause other young drivers to refrain from speeding, driving under the influence of drugs and taking stupid risks whilst driving.  To deter others is to save other parents and friends the devastation you have caused Sally's family.

53There is also a clear need to deter you specifically from future offending.  Your prior dreadful criminal record shows that you have not been deterred from serious offending by the past sentences you have received.  I must finally express the community's denunciation for your offending and protect the community from you.

54I do take into account in sentencing you, in your favour, your pleas of guilty.  I accept that those pleas were entered at an early stage.  You have saved the community the time and cost of a criminal trial and significantly, you have spared the witnesses and Sally's family, the trauma of a criminal trial.

55You are entitled to a reduction of the sentence I would otherwise impose for your offending to reflect those pleas of guilty and I am obliged to state the effect of that reduction.  I will turn to that topic subsequently.

56I take into account your age.  You were a child when you offended and are still youthful.  I accept that you are cognitively, socially and emotionally immature.  You are immature and your lack of life experience contributed to your offending.  You are not without hope for rehabilitation especially if you remain drug free and continue to further your education.

57The reports, Exhibit 4 tendered the test of your commitment to learning.  It reads, the report, Exhibit 4 is headed under overview,

"Dale has made significant progress with his classes and engagement with school in this term.  Dale should be commended on his sense of self-awareness and his efforts to communicate with the teachers and the staff.  Dale has shown commitment and ambition in tasks he undertakes in class, finishing projects he starts and taking on extended tasks".

58It is to be hoped that with maturity will come social responsibility and respect for the law.  You have family support as indicated by the references in Exhibit 7 and the persons in court to support you.

59I take into account your remorse.  Although, you failed to stop and ran away from your offending, you subsequently expressed remorse for your crime to witnesses on the day and to Ms Lechner when she interviewed you.  You expressed grief at causing the death of another person.

60You wrote to the court expressing remorse in Exhibit 5.  You said you wanted to complete your education and live a law abiding life.  You said,

"I would like to change my life for good.  No more crime, no more drugs, get a job and a house and be able to stand on my own two feet for the first time.  In my time here, I had been able to think about the impact I have had on so many people and realise I have a lot of work to do to repair the damage I have done."

61I take into account, in a general way, you were disrupted and deprived of childhood.  Your childhood disruption with your out-of-home care, lack of appropriate role models, lack of appropriate supervision and exposure to violence and drug abuse, left you a dangerous, a damaged and a vulnerable youth.  You really never had a chance.

62I take into account your mild cognitive disability.  Your IQ is 63.  You have a limited ability to process complex information, to reason and to make appropriate judgments and to anticipate and evaluate consequences.

63Your counsel filed written submissions, Exhibit 1, on your plea.  In those submissions, he urged the court to impose a period of detention in a youth justice centre.  He was unfortunately operating on the false belief that the court could impose a four year term of youth detention.  That is not the case.

64The Children and Justice legislation amended Youth Justice Reform Act 2017, increased the three year while in a youth justice centre to a maximum of four years commencing on 30 November 2017.  After your offending.

65In any event, your offending is simply too serious for such a disposition.  Despite the matters urged in mitigation, nothing other than a substantial term of imprisonment is appropriate for your offending.

66The Court of Appeal at this State has emphasised the importance of general deterrence in culpable driving charges, even in cases of young offenders.

67In a case called Hill which I referred during the course of your plea, the court referred to Justice of Appeals Vincent's statement in an earlier when he says this,

"There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court.  The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind the maximum penalty of 20 years imprisonment is fixed, the same as of manslaughter.  Time and time again the Court has emphasised the importance of general deterrence as a sentencing consideration in these types of cases.  Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred, there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that results in the death of the victim in this case, that it will simply not be tolerated by the community and will be likely to result in the imposition of very substantial terms of imprisonment. General deterrence is a powerful sentencing consideration in relation to this type of behaviour."

68Subsequently, the court referred to another case of Gany, and said,

"Serious driving offences frequently involved offenders who are of generally good character, who have excellent prospects for reformation."

69And I pause to say clearly not you.

"No-one likes sending these people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public.  In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.  Denunciation and general deterrence must be at the forefront of the sentencing synthesis."

70In the case of Tran, Justice of Appeal Callaway, in dealing with the issues of youth and culpable driving, said,

"The applicant, who was 20 at the time of the offence, pleaded guilty to one count of culpable driving causing death. The form of culpability was negligence. There were mitigating factors in addition to his youth which led this court to reduce a sentence of seven years with a non-parole period of five to a sentence of five years’ with a non-parole period of three.  General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in some cases for leniency on account of the offender's youth.  Even if a custodial sentence is warranted, as is almost always the case, those factors will still have a bearing on the kind of sentence to be imposed but it is not to be forgotten that a life has been lost."

71The court finally went on to refer to the case of Toombs.  The offender was 17 at the time that the offences to which he pleaded guilty.  He had stolen a motor vehicle, he had engaged in reckless conduct with other people in the car.  Despite his youth, the court affirmed the sentence of six years imprisonment on the capable driving count causing death and cumulated other charges.

72The courts said in Hill,

"Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth."

73Finally, in the R v Williamson (2009) case, the Court of Appeal expressed similar sentiments again.  The court dismissed an appeal against a sentence of nine years of imprisonment with a six year and a half year minimum and said,

“Ultimately, the most important factor in favour of the appellant is his youth. The sentencing judge paid particular attention to that factor, and said he gave it as much weight as he could.  Reckless conduct, such as that engaged in by the appellant, is altogether too common amongst the young.  His obvious immaturity, and failure to appreciate the consequences of his actions, may explain but do not, in any way, justify his conduct.  There is no doubt that sentences for culpable driving have increased over recent years. The community rightly expects that conduct of this type will be met with stern punishment."

74It follows that your age is less significant in relation to your culpable driving offence.  General deterrence is the dominant sentencing consideration.

75I have, however, significantly reduced the sentence I am about to impose to reflect your youth and as far as possible the other factors urged in mitigation.  I have significantly reduced the sentences to be imposed for the other offences you committed to reflect the s.362 principles I have previously referred to.

76That said, your prior history and the nature of your offending dictates that terms of imprisonment must be imposed with modest cumulation appropriate to reflect the principles of totality.

77The sentence I am about to impose should in no way be seen as a reflection of the value of Sally Patterson's life.  No sentence could ever do that.  The court acknowledges the devastation these crimes have caused her family and friends.  No parent should have to deal with the death of their child, particularly in circumstances such as this.

78Would you stand up, please?

79On all charges, you are convicted.

80On Charge 1, the charge of theft, you are sentenced to six months' imprisonment.

81On Charge 2, the theft of the number plates, you are sentenced to three months' imprisonment.

82On Charge 3, dangerous negligent driving whilst being pursued by the police, you are sentenced to six months' imprisonment.

83On Charge 4, conduct endangering persons, you are sentenced to nine months' imprisonment.

84On Charge 5, culpable driving causing death, you are sentenced to seven years' imprisonment.

85On Charge 6, failing to stop and render assistance, you are sentenced to 18 months' imprisonment.

86On Charge 7, theft of the Hyundai, you are sentenced to six months' imprisonment.

87On the summary offences of dangerous driving, you are sentenced to one month imprisonment.

88Failing to stop after an accident, seven days.

89And unlicensed driving, three months' imprisonment.

90In addition, on Charges 1 and 2 of the summary offences, your license is cancelled and you are disqualified for 12 months in respect of those charges.

91I order that two months of the sentences on each of Charges 1, 3, 4 and 7, together with four months of the sentence imposed on Charge 6, be served cumulatively upon the sentence imposed on Charge 5 which I declare to be the base sentence.

92All of the summary offences sentences are to be served concurrently with the sentence imposed on Charge 5.

93That is a total effective sentence of eight years' imprisonment.

94I propose to set a larger than usual parole period to foster your rehabilitation chances.  I order that you serve five years of that sentence before you are able to go for parole.

95I declare that 235 days of the sentence I have just imposed has been served by way of presentence detention, excluding today.

96Having regard to your youth and vulnerably, I make a recommendation to the Adult Parole Board. I recommend that they make an order pursuant to s.471 of the Children, Youth and Families Act 2005 that you be transferred so part of your sentence or all in a Youth Justice Centre.

97Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed an effective term of imprisonment of ten years with a non-parole period of seven.

98I am obliged to impose periods of disqualification in respect of all or most of the charges you have been convicted of.

99For Charges 1 and 7, you are disqualified from obtaining a license for two years.

100On Charge 3, two years disqualification.

101On Charge 4, you are disqualified from obtaining a driver's license for seven years from today's date.

102And on Charge 6, you are disqualified from obtaining a license for four years.

103I make the disposal order sought by the prosecution.

104Could you remove Mr Cairns please?

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