Director of Public Prosecutions v Carter, Trent
[2010] VCC 1706
•12 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-09-02013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT CARTER |
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JUDGE: | HER HONOUR JUDGE RIZKALLA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 May 2010 | |
CASE MAY BE CITED AS: | DPP v Carter, Trent | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1706 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Pitcher | OPP |
| For the Accused | Ms E. O'Dea | Patrick Dwyer |
HER HONOUR:
1
Trent Carter, you have been presented before me on two indictments. The
first indictment has two charges. Charge 1, culpable driving causing death of Troyden Robert Boyd. Charge 2, negligently causing serious injury of Anthony Borg.
2 The incidents from which these charges arose occurred on 24 December 2008, when you and two friends were travelling in a red 1997 model Hyundai belonging to Anthony Borg from the night club, the Dallas Bar at 189 King Street, Melbourne. In the course of that journey, you were driving, you hit another vehicle coming through the intersection of Lonsdale and William Streets.
3 The second indictment relates to an incident that arose some three months or so after the first, on 27 March 2009 around 10.30 pm. Again, you had been at the Dallas Bar in King Street. You had been drinking. After leaving that bar, you were involved in assaulting another young male who had been ejected from the bar. On that indictment, you pleaded guilty to one charge of causing serious injury recklessly. You also consented to uplifting a summary charge of possessing a controlled weapon - that is, a knife - which apparently you had on you and you had used earlier that day when you were fishing. You also plead guilty to that charge.
4 There was one plea hearing in relation to both these matters and the circumstances that are submitted on your behalf incorporate both. I propose to deal briefly with the facts that relate to each of the indictments separately and then come to a consideration of those matters that were put on your behalf.
5 As I said, on 24 December 2008, you travelled with two other men from the Craigieburn area to the Dallas Bar in King Street, Melbourne. On the journey into the city, in the vicinity of the Flemington Road exit from CityLink at Parkville, apparently the driver's side rear tyre of the vehicle blew out. As there was no spare tyre being carried in the vehicle, the journey was continued into the city with the vehicle being driven on the flat tyre. At the point that the tyre blew out, you apparently swapped driving with Borg, who had been driving, and took over on the basis that it seems that it was accepted by all of you that you were the more experienced driver, despite the fact that you did not have a licence and, in fact, only had L plates.
6 You then drove into the city, parked in King Street opposite the bar and went into the nightclub with the other two men. In the early hours of 24 December around 5.30, you left, got into the driver's seat. Boyd was in the front seat passenger and Borg, who was in fact the owner of the vehicle, was in the rear seat. Neither of those two men were wearing seatbelts. Again, you started to drive the vehicle, knowing that you had a flat rear tyre.
7
You travelled along King Street, turned left into Bourke, then again into William Street, travelling in a northerly direction to the intersection of
Lonsdale Street. You collided with another vehicle at that intersection, a taxi, and the driver, who was the sole occupant of the vehicle, was, in fact, fortunately not hurt.
8 It is clear on the evidence that you went through the intersection against a red light. The impact caused your car to rotate anti-clockwise and travel across the intersection before colliding, passenger side first, with the tram safety zone barrier on the eastern side of William Street. The vehicle sustained extensive damage and that is shown in the photographs tendered on the plea. In fact, the other vehicle also sustained considerable damage.
9 As a result of the collision, Troyden Robert Boyd was thrown through the front passenger side window onto the roadway, where he sustained extensive internal injuries and a serious head injury. He died at the scene shortly after, despite emergency medical treatment from ambulance paramedics who attended. Borg, who was in the rear of the vehicle, was trapped there after the collision and suffered an open wound and a left femur fracture which required emergency surgery.
10 It would seem that you were extremely agitated after the collision and you blamed the other driver immediately. You did, however, remain at the scene until police and emergency services arrived. At that point, police noted that you smelt of alcohol on your breath and a PBT was administered, which was positive. You were arrested and blood was then taken within a three hour period and analysed.
11 It is the Crown case and not challenged that you had a blood alcohol level of at least 0.178 per cent at the time of driving. That is calculated on the basis of the preliminary breath test minutes after and the analysis of the blood sample taken within the three hour period. Those figures were utilised by medical experts to arrive at the alcohol reading at the time of driving. It is asserted by the Crown that this level of alcohol would have adversely affected your ability to drive to the extent that you would have been incapable of having proper control of the vehicle. There was also some indication of low level cannabis, but it was not suggested by the Crown that that in fact would have affected your driving ability.
12 It is relied upon, as part of your negligence in driving, that knowingly you used cannabis close to the time of the driving and continued, in any event, to drive. Further, you drove through a red traffic light and to do so, you passed a stationary vehicle on the left which had already stopped for the traffic light applicable to you. You denied, initially, that the light was red and it was your contention that at the time, you thought that you had an amber light applicable to you and therefore were able to enter that intersection. As the Crown submitted at the plea hearing, it is quite plain, on the evidence, that the light had been red for some period of time, approximately 28 seconds, and that your observations or perceptions were so affected by what you had to drink that you did not understand that at the time.
13
Further, your vehicle was travelling at approximately 62.4 km/h in a
50 km zone. While that speed itself is not excessive, it is beyond the speed limit for that area and you were aware of that because you indicated so in the record of interview. Your vehicle did not slow at all when you entered the intersection. You did not apply the brakes and you did not take any evasive action prior to impact. It is likely you were, in fact, totally unaware of the impending collision because of your impaired perception due to the alcohol you had consumed at the time. You also had no headlights on, although other vehicles on the roadway did, and it was still dark, the sky just becoming light at that time.
14 Part of the negligence alleged was the fact that you were driving a vehicle that you knew had a shredded tyre, to the extent that it was effectively being driven on the wheel rim. You had done so earlier that night and you had, in fact, intended to continue to drive in that condition until you got home.
15 It is also an aspect of your driving that night that you did not have a motor vehicle licence, you only had a learner's permit. That required you not only to be under 0.05, but to have zero blood alcohol level. You also conceded you knew that. You also need to have a driver supervising you who was fully licensed and in a position to supervise and you did not.
16 Consequently, it has to be said that all these circumstances are clear evidence of negligence and it is on the basis of those collective circumstances that the Crown bring this charge against you. That is, that you drove negligently, failing unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances. That incorporates all those matters which have been delineated in the summary submitted by the Crown (Exhibit A) and which I have referred to in brief here.
17 Further, it was relied upon as a separate head of negligence that you drove whilst under the influence of alcohol to such an extent as to incapable of having proper control of the vehicle. Both bases are relied upon in this case.
18 As I said earlier, as a result of this collision, your friend, Troyden Robert Boyd, died. Your other friend, Anthony James Borg, was seriously injured with a broken leg and other injuries that left him requiring hospitalisation and surgery. Those, in brief, are the circumstances of the first indictment. In my view, as the Crown submitted, the circumstances represent a serious departure from the standard of care required from drivers to other road users, including their passengers.
19 Whilst your counsel submitted that this was a case which was not at the higher range of the circumstances that fall within culpable driving, in that there was no massive speed involved or gross departure in driving, such as often is the case, whereby vehicles travel across the wrong side of the road into oncoming traffic at very high speed, I cannot accept his characterisation, given the matters to which I have referred. Particularly the flat tyre, your own level of drinking, the fact you had no licence, that you went through a red light passing a stationary vehicle are all, in my view, matters which bring this into the category of serious offending.
20 Going to the second indictment, as I said, some three months after this accident, you were again at the Dallas Bar, drinking. When you left, apparently another male, the victim, was ejected. He had gone down the street to a phone booth and according to you, as he walked past, he called you a "fucking dog." It was a person in fact unknown to you but you followed him, apparently on the basis of that remark, determined to remonstrate with him. You hit him once in the head with your right fist. He immediately ran across the road to nearby police and was taken to the emergency department of the Royal Melbourne Hospital. In fact, that one punch caused a fracture to his nose, a bruise to his left forehead and he was advised to have follow-up plastic surgery.
21 You did again, on this occasion, remain at the scene and you were immediately arrested and when you were searched, you were found to have a small knife in your pants pocket. As I said, the explanation for that was that it had been used by you for fishing earlier that day.
22 In the record of interview, you indicated to police that you had in fact hit him once to the head, that you had been drinking. You accepted you had the knife and you accepted you hit the victim pretty hard because you were pretty angry at the comment he had made to you. Again, photos were tendered, showing the effect of that punch on the victim.
23 I have been tendered a number of victim impact statements in relation to both these matters, in particular the first indictment; nine statements in all, including statements from the victim's parents, family and friends. I have also been tendered a victim impact statement from the victim in relation to the assault on the second indictment and I take these into account as is appropriate in the legislation. I just want to refer briefly to some of those matters.
24
Troyden's parents submitted a victim impact statement, his mother writing that statement. She submitted a moving tribute to her son on behalf of herself and his father. She went through the details of his character, from the day he was born until his death. She records a broken heart and pain at the loss of a child which cannot be relieved, she recognises, no matter what the courts might do. He was 22 years old when he died on Christmas Eve. He had a young daughter and a fiancé at the time he died. She notes the way the
first anniversary of his death was spent and the struggle they have had to keep the family going.
25 Sarah Boyd, his younger sister, submitted a tribute to her brother, recording how she has been devastated by his loss, particularly given the loss of her brother, Benjamin, some years before. That has made it all the more difficult. She tells of the emotional loss her sons have felt because of the closeness they had with their uncle. In fact, her eldest son, Jai, has had to undergo counselling to help him deal with the loss. She feels cheated by his death and feels her boys have been robbed of their uncle and their father figure. It is her wish that by helping the TAC campaign, his death will have some meaning in generating the awareness of the futility of this type of death.
26 His grandparents submitted a statement, again detailing the feeling of loss that this death has cause to them and the whole family and the sense of helplessness they both feel in not being able to help the family or to have done something to avoid this tragedy.
27 Troyden's uncle, Graham Tzchechy, submitted a statement expressing his pain at the death and the loss that he feels the young daughter of the deceased will have, not having a father for her life to come.
28 His fiancé, Jayleen Hood, submitted a statement detailing the effect on herself - the loss of her partner and the loss of the father of her daughter. She has suffered significant psychological and emotional trauma. She has been unable to work for periods, she suffers sleeplessness and anxiety. She recognises she needs to seek professional help but is at present unable to do so.
29 Four of his friends also tendered impact statements in recognition of the effect of the loss of his life on them. Those statements are a telling reminder that the loss of a young life does not just affect immediate family but has a ripple effect on encompassing all of those who knew the deceased. It is a testament to the deceased, their views expressed in those statements.
30 In relation to the second indictment, the victim of that assault also filed a victim impact statement detailing the physical and psychological injuries he suffered as a result. Apart from his physical injuries, he suffered financial loss and an inability to work for three months. He also suffers ongoing fear at what has occurred.
31
In terms, then, of the plea of guilty that you have made in this matter, you are entitled to full credit in this sentence for your plea of guilty. As your counsel rightly pointed out, you did not seek to lead the scene of either of the offences. You have, by your plea, saved the victims and their families and friends from the ordeal that a criminal trial process would have produced. You are entitled to full credit for that. You have saved the time and cost of the trial to the
State of Victoria and I accept that your plea of guilty is a reflection of genuine remorse on your part and acceptance of responsibility for your actions. As I say, I propose to give you full credit in sentence for that plea of guilty.
32
I come now to deal briefly with your personal circumstances. In the plea, your counsel tendered a report from Mr Cummins, a clinical psychologist. He notes in that report, which was dated January this year, that you are 22 and that when he saw you, you told him that you were in a relationship with a
Ms Tracey Menzies, who is 23, and that that has been a relationship for some six months. She has a young daughter with whom you have a good, supportive relationship. He noted that in fact this is your first steady relationship.
33 Your own parents separated when you were about four months old and you were raised by your mother, who moved to numerous addresses throughout Victoria. Your mother's first de facto, who was with her until you were about 14, was quite abusive toward you and, as a consequence, you in fact went in and out of foster homes between the ages of 13 and 15. You first met your biological father when you were 14.
34
Your mother is now in another relationship and has been for the past
ten years. She is involved in nursing the elderly, she has never been in trouble with the law and you are very close to her. She is, in fact, a reformed alcoholic and ceased drinking when you were about 17 or 18 and has, herself, suffered from depression for some period of time. She has been very supportive of you in the recent past and you have a better relationship with your current stepfather, who is a plasterer with whom you have worked in the past. He has little use for alcohol and has no criminal history. You have little or no contact with your biological father at this stage. — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —.
35
When you were quite young, you were apparently diagnosed with Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder. For years, you were on various medications. At about 14, you started work. You did
six years of sheet plastering work and you worked on trawlers in Queensland. At the time of this accident, you had in fact been working as a glazier with the victim of the first charge, Troyden Boyd, working with his father.
36 As Mr Cummins reports, you have felt overwhelmed and depressed about the circumstances of this accident whereby you have caused the death of your closest mate, your work mate, and serious injury to your friend, Anthony Borg. You suffer depression as a result of the incident and clearly that had an impact on the behaviour in relation to the second presentment. In fact, for some months after the accident, before the second incident, you reported to Mr Cummins that you were effectively self-medicating with alcohol, drinking in excess of one slab of VB stubbies per day, seven days a week.
37 After that incident and your arrest, you have apparently reduced your dependency on alcohol; you have realised the effect it is having on you. It was Mr Cummins' view that you had probably developed a post traumatic stress disorder, that you were severely depressed in response to this incident. He notes that you accept it is inevitable that you will serve custodial sentence as a result. He was of the view that you should and will require psychological and psychiatric treatment as a result of these matters but he recognised that you did not feel open to being able to discuss them at the present time. He found you reasonably immature and still having difficulty developing a comprehensive insight into your current functioning.
38 As for your alcohol history, it is plain you started drinking very early and you were a reasonably heavy daily drinker for years before this accident. Typically, you reported consuming between six and 12 stubbies of beer every night at the time preceding the accident. You had also started smoking cannabis at the age of around 13 or 14. You continued that up until the time of the hearing, using cannabis to assist with sleeping at night. You have also used amphetamines, methylamphetamine and cocaine from about 16 years of age up until about 21 but you had apparently stopped that prior to the accident. You did admit that you occasionally used amphetamines on special occasions. You have never had any drug rehabilitation or education.
39 As your counsel pointed out, in terms of both incidents, you appropriately made full admissions and as I said, that is to your credit and it goes also to your plea of guilty.
40 I was referred to a number of authorities by your counsel in terms of sentencing statistics and cases which, it was submitted, might be of use in terms of similar circumstances to your offending. It was recognised, however, by both counsel, that every case must be dealt with on it own facts and circumstances, taking into account, as is appropriate, cases that have been dealt with in the Court of Appeal in this State of similar offending.
41 It was your counsel's final submissions that you are a young person who was in the process of emerging from a troubled background, that you were clinically depressed now as a result of the accident and struggling with your own guilt and that you have a long path ahead of you and will need assistance to rehabilitate. It was submitted that the court should take the view that the head sentence imposed should be one which allows for a low minimum term to be served and that the second indictment should be wholly or significantly concurrent with the sentence on the first.
42
The Crown, in its admissions on sentence, admitted that this was a serious example of the charge of culpable driving and that general deterrence and protection of the community must play a significant role. Again, I was referred to a number of recent authorities in the Court of Appeal, effectively on the basis that there were indications in recent cases that stern punishment must be meted out by courts for these offences. It was submitted that some cumulation must be done between the two indictments and indeed, between the two counts on the first. I was directed to s.16A(3)(C) of the
Sentencing Act, which directs that sentences imposed on offences committed on bail must be cumulative unless otherwise directed. I propose, in fact, to order some cumulation of that second presentment.
43 Further, it was submitted that, as far as the Crown were concerned, their view was there had been no remorse shown by your conduct after the collision because of the charges on the second indictment and the way you behaved, continuing to drink at the same nightclub, and behaving in a violent manner as a result.
44 The Crown's final submission, in terms of the range, in relation to these matters was, on the culpable driving, submitted there should be an effective eight to ten year sentence. On the recklessly cause serious injury, one and a half year sentence and that there be cumulation between them, which would result in effective sentence in the vicinity of ten and a half years with a minimum of seven and a half.
45 In terms of your counsel's submissions, it was submitted that those sentences were far too high and that the statistics would indicate that the most common sentence had an average of around five years and therefore that should be the range of sentence imposed.
46 I also note that you have served 16 days pre-sentence detention in relation to the second indictment, which will make a total of 49 days to take into account in relation to both.
47 The Crown seek an order under s.464ZF of the Act and I propose to make that order in relation to provision of a saliva or blood sample.
48
I should also note that, as a result of the culpable driving charge, under
s.89 of the Act, your licence must be cancelled and you must be disqualified for a period of not less than 24 months. It was the Crown's submission that any disqualification period should extend beyond the period that you are directed to serve as a minimum term in custody and I accept that submission.
49 Consequently then, I move to sentence as follows. On the first indictment, Charge 1, culpable driving, you will be convicted and sentenced to a term of imprisonment of six years. On Charge 2, of negligently causing serious injury, you will be convicted and sentenced to a term of 18 months; 12 months is to cumulate on the first. So that is an effective seven years on that presentment.
50 On the second indictment, on the charge on recklessly cause serious injury, you will convicted and sentenced one and a half years' imprisonment. On the summary offence of possession of a weapon, one month's imprisonment to be concurrent. That is an effective one and a half year sentence on that indictment.
51 I direct that nine months of the second indictment be cumulative on the first so that is a total effective sentence of seven years and nine months and I fix a minimum of five years before you are eligible for parole.
52 I reckon, as served, 49 days of that sentence.
53 I also make an order under s.464ZF, based on the seriousness of the charge, your lack of opposition and the social utility of such a database. You need to be warned that if you withdraw consent for the taking of a sample, reasonable force can be used to do so.
54 I also direct your license is cancelled and you are disqualified for a period of three years, commencing four years from this date - that is, 12 May 2015.
55 Under s.6AAA, had you not pleaded guilty, I would have imposed an effective sentence of ten years with a minimum of eight years.
56 Yes, thank you, you may take the prisoner away.
57 MR PITCHER: As Your Honour pleases.
58 MS O'DEA: As Your Honour pleases.
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