Director of Public Prosecutions v Castven
[2020] VCC 1283
•20 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 19-01813
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN ANTHONY CASTVEN |
---
JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 10 July 2020 |
DATE OF SENTENCE: | 20 August 2020 |
CASE MAY BE CITED AS: | DPP v CASTVEN |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1283 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
For the Accused | Mr C. Mandy SC with | JAB Lawyers |
HIS HONOUR:
1Dean Castven, once again this court is called upon to sentence a young man with bright prospects, by one episode of appalling driving, caused serious injury to another member of the community. These cases are tragic for all and always give rise to difficult sentencing considerations. Some like this one are harder than others. So it was, early on Saturday morning, 1 December 2018,
Frederick Ksiazko drove north along Melaluka Road, towards the Bellarine Highway. He was a 77 year old, fit, and healthy retired man. He was wholly independent, managing his life in domestic affairs, having lost his wife after years of marriage. Mr Ksiazko drove along Melaluka Road, stopped at the intersection, the Bellarine Highway, waiting to turn right onto the Bellarine Highway. You, Dean Castven, were then a 21 year old man working as a concreter. You were expected on site in Ocean Grove at 7 am on that Saturday morning. It was your first day on that site.2You left your parents' home in Grovedale, driving your new Ford Mondea. You drove through the suburbs and onto the Bellarine Highway to the intersection of Bellarine and the Moolap Station Road. You were heading in an easterly direction. The data from your car's computer put you turning onto the Bellarine Highway at 6:51 and 56 seconds. Plainly, you were running late and were not going to make it to the worksite at Ocean Road by 7 am. The collision was over 12 kilometres from your worksite. Once on the Bellarine Highway, you accelerated rapidly, bringing your speed up to 140 kilometres an hour by 6:52 and 36 seconds, all within forty seconds of coming onto the highway. This aggressive driving continued as you accelerated to 148 kilometres per hour, as you approached the intersection of the Bellarine Highway and Melaluka Road. Other road users on the Bellarine Highway described your speed as flying and your driving as scary.
3As you approached Melaluka Road, the lights facing you were red. A witness who was already stationary at the lights, waiting to turn right into Melaluka Road, saw you in his mirrors approaching at an excessive speed. He had time to check the lights applicable to you and saw that the lights were well and truly red. He said 'I immediately thought this guy is not going to stop'. As soon as he checked the lights, he saw you as 'a white flash coming through the intersection, running the red light'.
4Mr Ksiazko had commenced to make his turn from the Melaluka Drive, travelling with the green light across the four west facing lanes of the Bellarine Highway and then into the east facing lanes, a not insubstantial distance in what is a major intersection. A driver on the Bellarine Highway facing west and stationary at the lights saw Mr Ksiazko's vehicle move across the front of him and onto the eastbound lanes. He could see you approaching at a fast speed and knew you were not going to stop at the red light and that there was inevitably going to be a high speed impact with Mr Ksiazko's car. He said Mr Ksiazko had no chance to take any evasive actions and it was likely that Mr Ksiazko did not see you coming, much less expect, someone would come through a red light. What is clear is the red light you faced was red for you for some time before you got to the intersection. Also, you did not slow for the red light, but as was described by the witnesses, you ran the red light. You only slowed your car when you saw that Mr Ksiazko was in the intersection and you appreciated that you were going to collide with his car at high speed.
5It was put on your behalf that by the time the lights turned red for you, at your speed, you knew you could not stop in time. I accept that by the time you appreciated the light was red, it was too late to stop. But that does not diminish your criminality by much, if at all. You were, like all drivers, required to drive at the speed limit and in a way that enabled you to stop at red lights. Your breach of these basic requirements of safe and responsible driving was a very serious breach. The applicable speed limit at the intersection was 70 kilometres per hour. You were driving at twice that speed. Your conduct was simply dreadful.
6The police reconstructionist calculated your speed as travelling between 101 and 113 at impact and most likely 109 kilometres per hour. Your counsel conceded, you were driving at excessive speeds up to and through the intersection. Further, it was not in issue that you were driving along the Bellarine Highway at the speeds discovered by the interrogation of the computer in your car. That is, up to 148 kilometres per hour, a very short distance from the intersection. Remarkably, after your car came to rest, you were immediately able to get out of your car and check on the other driver. He was unconscious and trapped. Others who were helping wisely thought it better if you waited a distance away and you did. Mr Ksiazko was transported first to the Geelong Hospital and then airlifted to the Alfred Hospital.
7The injuries that he sustained were summarised in the prosecution opening as follows.
(a)Traumatic brain injury.
(b)Extensive skull and facial bone fractures.
(c)Chest trauma, including bilateral lung collapse with blood. Multiple rib fractures and a breastbone fracture. Left brachial plexus, that is nerve damage to the network of nerves in his shoulder, arm and hand. Right kidney laceration and right adrenal haemorrhage. Pelvic fractures, right ankle fractures and thrombosis. Following the collision, he lost 10 to 12 kilograms of weight and was fed through a nose tube. He suffered post-traumatic stress disorder amnesia, with an inability to retain any new information and sadly, he believed that his wife and brothers were still alive. Mr Ksiazko remained in the Alfred Hospital, receiving treatment for those injuries for eighteen days before being transferred to the Epworth Hospital rehabilitation facility.
8It goes without saying, these are serious life threatening injuries inflicted on a 77 year old man. Consequences for Mr Ksiazko and his family have been profound. His daughter wrote in her victim impact statement the following. 'December 1st 2018 is a day my family and I will never forget. She explained how the collision and her father being in hospital in the ICU affected her capacity to work in the job that she had. She said due to the seriousness of the incident, she was forced to take time off to be by her father's side in the Melbourne Hospital ICU bed. It created for her an anxiety, such that she was wondering whether her father was going to pull through and how this would impact upon her and her family.
9She described the experience by the bedside in the ICU as traumatic, travelling up and down from Geelong to Melbourne. She spoke of the effect upon her husband's small business. She says:
'Through the months and months that my dad spent in hospital, we went through a range of emotions with every day being different to another. I was forced to relive the death of my beautiful mum, time and time again, due to my dad's confusion and unable to remember with his state of post-traumatic stress disorder amnesia. This broke my heart over and over again explaining that my mum, dad's wife was deceased and how she had passed away'.
10She spoke also of the difficulty and how overwhelming it was that her father's oldest and only surviving sibling, who was described as a mother figure, had brought him to Australia from Poland. How she in a nursing home, was praying for her brother, but she herself died in January 2019 while her brother, the victim, was in the Epworth at Richmond. This was a very sad experience seeing someone confused and having to receive the assistance of his neuropsychologist to tell him about his sister's death. He had a right of attending his sister, a mother figures funeral. That funeral, was stripped away from him by reason of what occurred. She speaks of the stress of the collision and the injuries to her father, bringing stress within the family.
11She speaks of her father missing important events, such as Christmas and Easter with his family. He missed his first great grandson's first Christmas and first Easter, events that he always looked forward to. She concludes:
'Life is never going to be the same. I am incredibly grateful that my dad is alive, but he is not the same man he used to be. The relationships I have with members of my family are fractured and my dad is a shell of the man he used to be. Physically and mentally my family and I are the ones who are left to pick up the pieces, the broken pieces and build life again'.
12The Sentencing Act makes it clear that the impact of a crime on the victim and their family is a matter I must consider. Also, in my assessment of the gravity of your offending, I am required to consider both the extent and nature of the serious injury you caused by your negligence and the nature of your negligence, in particular, the level of risk involved. So much has been stated by the Court of Appeal in this state, for the guidance of Sentencing Judges in imprisonment driving cases, such as Towle[1], Stephens[2] and Harrison[3], as to the extent and nature of the injury that was caused.
[1]Towle [2009] VSCA 280
[2]Stephens [2016] VSCA 121
[3]Harrison [2015] VSCA 349
13As I have said they were plainly serious and have had significant and permanent effect on Mr Ksiazko. He is not the man he was. However, the prosecution indicated at your plea that he has recovered somewhat, fortunately for him. There are examples of catastrophic injuries in other cases that come before this court. This is not at that level. As to your negligent driving, driving at the speeds you did and through a red light is grossly negligent driving creating enormous risks for all other road users. The risk is obvious, that is, at those speeds, any collision would have caused serious injury at least. The fact that you should not have been driving at all, having only a month or so before been disqualified for the earlier criminal breach of your responsibilities a probationary driver, which was not to drive if you had any alcohol in your system.
14This fact that you were a disqualified driver increases or aggravates your criminality. I note, however, it is a separate summary offence and I will not double punish you for that. Nonetheless, you should not have been driving on that day. It was explained that you did have arrangements for others to drive you, but they fell through. What occurred was that you put your priority of not being too late for work above the safety of fellow members of your community. This was not some momentary episode. Your grossly negligent driving was for a significant period of time, down a major road with a number of intersections, in a suburban area of Geelong leading to a busy shopping complex, near the intersection where the collision occurred. On any measure, yours is a very serious example of the offence you have pleaded guilty to, negligently causing injury. The prosecution described it as a high end offence.
15Your moral culpability is very high. This crime has a maximum term of 10 years imprisonment, which is elevated by our Parliament from five years in 2008. The Court of Appeal in the important decision of Harrison, noted that there appeared to be an inadequate recognition by Sentencing Judges of what Parliament intended in increasing the maximum term. In Harrison, the Court of Appeal indicated sentences for negligently causing serious injury ought to be elevated over what was then the current sentencing practices of Judges.
16That said, the maximum term and the gravity of your offending are factors, imprisonment factors, in an overall process of individualised sentencing. There are other important factors which mean in your case, a fine sentencing balancing must be negotiated. Your counsel sensibly conceded that ordinarily, a sentence of imprisonment would be inevitable. This is plainly so. Indeed, ordinarily a sentence of many years would not just be warranted, it would be expected. However, your counsel submission was that a sentence of imprisonment should not be imposed due to your unique and exceptional personal circumstances. The submission had two key interconnected features. The first relating to your physical health and the second to your mental health. Before moving to analyse these important issues, that is, the issues of your current physical and your current mental health, I will briefly outline your background.
17In many ways it is unremarkable and alligns with many of the young offenders who fall to be sentenced for serious driving offences. You are now 23, born and raised in the Geelong area. Your family environment was and still is, loving and nurturing. You lived with your hardworking parents and your older brother. All of whom were deeply shocked and remain very anxious as to your fate. You were well settled through your school years, enjoying sport and friends. You completed VCAL in Year 12 with the focus on civil construction. You have a good work history, in particular with Cormack Concreting. You still work with that company. These matters are to your credit. You have only one incident of offending being the drink driving matter that I have already referred to. I should add that two ecstasy or MDMA tablets were found in your possession immediately following the collision. You have pleaded guilty to the offence of possession of a drug of dependence. You told the neuropsychologist Ms Kerry that before the offending, you drank daily, but since the collision, you abstained for some months before resuming at a much more moderate level. You also indicated that you had used drugs since your mid-teens, but at a moderate level and social situations. To your credit, as part of your bail program, you attended 12 alcohol and drug counselling sessions. You have put drug use behind you. Ms Kerry assessed you as below average intelligence, with some weaknesses in attention and taking in information. There were no indications of any cognitive, or indeed any neuropsychological problems arising from the collision, more importantly, from the organic brain ill health that I will move to shortly.
18I have read the letters, helpful letters from family, friends, all attesting to your many good qualities and good prospects. I have noted that you took up voluntary work in an op shop, did a driver awareness course and the drug and alcohol counselling that I spoke of. These are all to your credit in terms of mitigation. In summary, you are a hardworking young man, with bright prospects.
19Given your underlying good qualities, it is not surprising that your response to what you did and the effect on the victims has been genuine and deep remorse and contrition. You feel devastated that you caused the serious injuries to the victim and fear to his family. You are ashamed and apologetic. It haunts you. Without hesitation, I accept your remorse is genuine. You would, if you could, turn back the clock, not so you would not be in the position you are in at the moment, but so the victim and his family would not have to suffer. You feel you have let your parents down. You have gone from being a fairly carefree young man, with life's opportunities in front of you, to a sadder, more anxious and burdened young man. I will elaborate further on your mental health shortly. But as has been said many times in cases of this kind, the court must be wary not to over emphasise the previous good character, the good prospects, and the remorse of an accused.
20Those factors, while always important, are often present in crimes of this kind. They cannot outweigh the high need for general deterrence directed at young drivers with good backgrounds. So too, is it often the case that there is a deterioration in the mental health of an accused. The understandable reaction of such a life changing set of circumstances is the onset or exacerbation of depression, anxiety, and post-traumatic stress disorder. These ailments are often significant aspects of an offender's reaction to what has occurred and the likely punishment that they face.
21The expert's psychiatric report from your treating psychiatrist, Dr Baker, and some of the admissible parts of your treating counsellor's report, explain that in your case, your reaction has resulted in a significant deterioration in your mental health. You now have major depressive symptoms and syndrome. You have anxiety and post-traumatic stress disorder. You have flashbacks and as I said, are haunted by what has occurred. You are under treatment, including medication for your mental illness. As I have said, you have changed from a carefree disposition, to one with depression, anxiety, and the impact of trauma. These are conditions arising since and because of your offending. The extent and nature of these mental illnesses does not mean, in my view, that the community would be concerned if you were used as a deterrent example to others, who may be minded to drive as you did.
22Rather, your now fragile mental health is relevant to whether prison would be too onerous or would make your condition deteriorate if you were incarcerated. Your psychiatrist holds serious concerns for your mental health and spoke of the increased risk in suicidal thoughts. I note your mental health was badly affected by the tragic suicide in April of 2019 of your best friend. This has left a mark. However, the real issue with respect to your mental health is the anxiety that has arisen by reason of the physical illness, that is a brain cyst, and more acutely the fear of being in custody with that condition. As was made clear in your counsel's written and oral submission, the principal basis for arguing that gaol ought not be imposed was your ill health and the consequence of that if you are to be incarcerated.
23I turn to that issue. It was discovered post the offending that coincidentally you have a cyst on your pineal gland, which is a gland deep in the centre of your brain. The expert opinion based on the multiple MRI scans is that your cyst is haemorrhagic, that is, at some point or points, there was intracystic bleeding. Initial MRI scans in May of 2019, revealed a lesion that measured 24.1 millimetres by 18.2 millimetres. An MRI in October revealed it had shrunk to 21.9 millimetres by 16.5 millimetres. Given that there was no evidence of hydrocephalus, or obstruction of other structures of ventricles, the conservative treatment that was indicated was continued. This is the well accepted approach as surgery in that area of your brain poses a far greater risk than any benefits to be gained by removal. Your local neurosurgeon Mr Hall, was of that view, as is your current treating neurosurgeon Mr Russell.
24Later scans in January 2020 and April 2020, revealed a very slight increase in the size of the cyst, but some new fluid consistent with a small haemorrhage. Dr Russell wrote in April 2020, 'Given that there has been minimal significant change, I am still redescent to perform surgery'. However, Mr Russell emphasised the need to very closely monitor your condition, given the further bleed indicated that the cyst was not dormant. Close monitoring involved the continuation of three monthly MRI scans. A further MRI was done on 29 June 2020 and Dr Russell reported that the MRI 'shows stability of the lesion and no evidence of hydrocephalus'.
25It was again stated that while the imaging remains stable or indicates stability, the plan was for conservative treatment and monitoring by repeat MRI imaging. It was noted that you complained of worsening headaches in the month leading up to that MRI. A second opinion was sought as to the headaches and an ophthalmological review due to mild photophobia. There has been over a period of time since the cyst was discovered, no hospital attendances either by emergency or otherwise.
26What I deduced from all the expert neurosurgical reports is that you have a stable, but haemorrhagic pineal cyst which is certainly not dormant and thus requires close monitoring by regular scans. This illness is concerning for you. However, you have been able to continue with your work though on medical advice, you have stopped playing basketball and other contact sports. The most important aspect of this physical problem are the risks that arise if your condition deteriorates or becomes unstable. To put it more precisely, as best I understood the medical material, if there was a haemorrhage or an enlargement of the cyst, this could lead to hydrocephalus or fluid on the brain and blocking of ventricles. These conditions or outcomes would require immediate and sophisticated neurosurgical intervention available only in the large Melbourne hospitals. These matters lead to the key relevance of your condition to the sentencing task.
27As was made clear many years ago, in the New South Wales case of Eliasen[4] and with reference to the then unchecked virus HIV, and by other state appellate courts such in South Australia in The Queen v Smith[5] and Victoria in the matter of The Queen v Van Boxtel[6], what is made clear is that offender's ill health is always relevant to sentencing. As was said in Smith and adopted in Van Boxtel:
'Ill health was a factor tending to mitigate punishment, only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health'.
[4]Eliasen (1991) 53 A.Crim.R. 391
[5]Smith (1987) 44 S.A.S.R. 587
[6]Van Boxtel [2005] VSCA 175
28This general approach has been the approach in Victorian courts for many years. However, I also add that in the case of Smith, Chief Justice Keane said the following which has also been cited many times, in particular by
Justice Callaway in Van Boxtel. What Justice Keane said, by way of introduction is the following:'The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment, because of the condition of their health'.
29Dr Russell was asked to consider the risks you faced if you were imprisoned. He provided the broad context as to whether there had been impingement on your daily life to date and as I have noted already, there has been and
Dr Russell reported, little impediment. However, Dr Russell's view was that should you have another bleed or an obstruction, this 'may cause rapidly aggressive obstructed hydrocephalus and potentially loss of consciousness within a matter of hours, leading to death within 24 hours, if not managed appropriately'. Certainly, if he attended an appropriate neurosurgical facility within a reasonable timeframe, i.e. within one to two hours of such a bleed or deterioration, then treatment is usually quite straight forward and unlikely to result in any permanent neurological deficit. Having said this, a delay of even six hours could result in death or severe permanent disability.30It was put that imprisonment created significant heightened risks, that the emergency scenario would eventuate. First, in the harsher and now more stressed environment of prison, with you as a first time and more naive prisoner, there were risks of an assault that could precipitate a bleed or instability leading to the emergency problems identified by Dr Russell. Second, without proper monitoring, you may overnight or in a lockdown, deteriorate without the prison authorities being aware and thirdly, complaints about headaches may not be taken as seriously as they should in your case by prison guards and officers.
31It was made clear by Dr Russell that in the worst case scenario, you would need immediate neurosurgical intervention at one of the handful of large hospitals in Melbourne, able to provide that level of treatment. Currently in Geelong, you are nearby hospitals, but none that could provide the treatment you would need. A transfer to Melbourne would always be the case. There are two factors that require consideration. The first is whether your medical problem and the risks could be adequately managed by the prison authorities. The second is the significant psychological burden upon you of the worry that you may deteriorate in prison and not receive proper treatment by way of transfer to the appropriate neurosurgical unit in one of the large Melbourne hospitals, notwithstanding what Corrections might say they could do.
32As to the first matter, the prosecution sought out information from the prison authorities. The evidence secured was in the form of an affidavit from
Ms Jennifer Hosking, the Acting Assistant Commissioner, Sentence Management Division of Corrections Victoria. Ms Hosking pointed out all new prisoners undergo medical and mental health assessments with assessing clinicians obtaining information from the prisoner, from the medical notes brought with the prisoners and from contacting the prisoner's treating doctors.33These assessments informed placement which could include placement in a prison hospital unit, Port Phillip, or Ravenhall, where at least hourly overnight checks are made. It was pointed that cells have alarms that if pressed, should bring prison officers to see what is wrong. Further, given you are currently treated by a neurosurgeon, Dr Russell, you would likely be referred to the neurosurgery unit at St Vincent's Hospital for ongoing consultations and treatment. It was made clear that should any admission to hospital be required, an ambulance would be called, and you would be likely taken to St Vincent's Hospital or another appropriate hospital in Melbourne. I am of the view that it is part of Corrections, or the state's duty of care, that a medical emergency for a prisoner is treated as just that, an emergency with rapid deployment of Ambulance Services.
34Corrections have a principle of equivalence, meaning a prisoner receives the same care and medical attention as would be provided in the community. However, I do understand your concern remains as to whether your particular kind of medical emergency, a brain bleed, would be detected rapidly enough. Through my experience in the criminal justice system, I am only too well aware that assaults occur in prisons. Prisons are by their nature and probably by design, harsh places. Thus, I am cognisant that you have a fear of the more serious consequences that were before you if you would be assaulted. This would be an ongoing burden to you.
35I also appreciate your counsel's submission. The complaints of headaches may not always meet sympathetic responses from some prison officers, and you fear that your medical issues may be fobbed off. I also well appreciate that your already fragile mental health would be further stressed by the anxiety that you will not get the necessary speedy emergency treatment when you need it. The fear of a bleed and its consequences, if not treated, would make prison appreciably more onerous for you. In my view, both matters identified in Smith and Van Boxtel, are present in your situation. That is, one, imprisonment will be a greater burden because of your state of health and of more weight, secondly, there is a serious risk of imprisonment having a gravely adverse effect upon your health. In that regard, the adverse effect is primarily is on your mental health, but I also consider the risk of the physical deterioration if the cyst becomes unstable and bleeds.
36That brings me back to your counsel's submissions which remain unchanged, notwithstanding the evidence or the affidavit from Corrections. The submission remained that the onerousness of prison on you, given your acute neurological problems, was at a level that a term of imprisonment would be in practice too harsh, and almost cruel. It was, in effect, put that your circumstances were rare and so compelling that the almost inevitable sentence of imprisonment for the serious offence of this kind, ought not be imposed. Rather, it was put, all sentencing purposes could be met by a firm and lengthy community corrections order. I had you assessed and not surprisingly, you were found to be suitable for a community corrections order. Your counsel's secondary submission was that if some gaol was absolutely necessary, that it be short and combined with a community corrections order.
37The prosecution contended otherwise, submitting that given the high end seriousness of this offending, the permanent impact on the victim and the need for denunciation, and in particular general deterrence, the appropriate sentence was one of imprisonment with a head sentence and non-parole period fixed. The prosecution submitted that the evidence from Corrections made it clear that there was a comprehensive system to attend to the medical and mental health of Victorian prisoners, which included initial assessments at appropriate classifications, liaison with external specialists and the utilisation, if necessary, of hospital treatment. Further, it was noted that there could be close monitoring of prisoners with acute conditions.
38The prosecution went on. 'Corrections is called upon to manage prisoners with a wide range of medical issues, some of which are acute, and some of which are potentially fatal'. 'Should you be imprisoned', the prosecution submission went on, 'then all medications, reports and other information would be sought and assessed by Justice Health'. The prosecution pointed out that on the basis of Dr Russell's reports, your situation is stable, and the question of future deterioration seems to be a matter of possibility rather than probability. The prosecution's concluded view was put fairly in my view in these terms. 'In the whole of the circumstances, the court might properly take into account the heightening anxiety of you about your possible medical deterioration, over and above the normal unease of any first time prisoner as being a moderating factor. Such an approach would more properly fall within the instinctive synthesis process of the sentencing task. As was made clear in Smith and Van Boxtel, an offender's ill health is but one factor amongst many.
39There are in this case many factors and a heightened tension between those favouring mitigation and mercy and those requiring punishment and deterrence. What is clear is that right minded members of our community find it almost incomprehensible that someone would drive at such high speeds and through a red light, with almost no regard for other road users. When serious injury is caused, the community expects the courts to be firm in its punishment and thus consistent in the message of deterrence.
40Imprisonment, when it looms for a young and otherwise decent person, seems a bleak and harsh penalty and it is. But grave as it always is, to imprison such a person, there comes a point when because of what was done, that there are no other options. In this case, there are powerful mitigating factors unique to you that I have taken into consideration. I will not repeat them, but they have shifted considerations close to the imposition of a non-custodial sentence, but in my view, a sentence of imprisonment must be imposed.
41Those mitigatory matters have been given very considerable weight and without them the appropriate sentence would have been many years of imprisonment. However, a prison term must be imposed. I have given anxious consideration to whether a term of imprisonment and a community corrections order is the appropriate sentence. Your rehabilitation, indeed, permanent reform, is highly likely to occur because of your own motivation. You have learnt a very hard lesson and will live with it likely lifelong.
42You have done a driver awareness course, you are under an appropriate specialist mental health treatment program and have regular counselling, you are medicated. These are all factors, but not decisive ones with respect to a community corrections order. What is decisive is that I am of the view that a sentence longer than would allow for a community corrections order, is required. As such, I intend to allow for a period of potential parole. Whether and when you are granted parole, is for others, not the courts. The powerful mitigatory matters impact on the whole of the sentence, but in particular, the non-parole period which in my view is as merciful as justice allows. As I have said, the mitigatory matters, especially with respect to your physical health and the inter-related matters of your mental health have meant a sentence of many years is now less than it otherwise would have been.
43Your plea of guilty means your sentence is less than otherwise it would have been. It is also further evidence of your deep remorse. The COVID-19 pandemic means prisons are generally much more onerous. There are no visits. A matter of real weight, especially to you and your circumstances. Also, lockdowns are longer and more frequent. Anxieties are heightened about the virus getting in and spreading in the necessarily close quarters of prisons. However, to date, by the strict management and the restrictions that I have spoken about, this has been avoided by and large to this point. I have taken into account the added onerous burden on you, of the consequences of the COVID-19 pandemic. For these reasons and doing the best I can, I impose the following sentence.
44For committing the crime of negligently causing serious injury, I impose a sentence of imprisonment of two years and six months. The crime of possession of drug of dependence, you are convicted and fined $250. For the summary offence of driving whilst disqualified, you are convicted and fined $750. In respect of the term of imprisonment, I impose a minimum non-parole period of one year and two months. I note that you spent one day in custody and this period of time having been reckoned - I declare that it is part of the sentence that I have just imposed. I will ensure this declaration is entered into the records of the court, so that prison authorities know that you have done one day of the sentence I have just imposed.
45Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and six months, with a minimum term of three years and six months. Your licence must be affected. Your licences are cancelled, and you are disqualified for driving for two years and six months. Are there any other orders required?
46MS SKVORTSOVA: Not from me, Your Honour.
47HIS HONOUR: Mr Moore is there anything else required?
48MR MOORE: No that completes the matter, Your Honour.
49HIS HONOUR: Thank you very much. What I say is not so much part of the sentence, it is really just to assist you the best I can. Your family, Mr Castven, will be assisted by your lawyer, that is why we allowed her to come and she will see you. But the system here is still and remains the case, perhaps even more acutely, that someone in your position cannot spend the time that they might otherwise like to spend and family like to spend with in their last moments, because things go wrong.
50So what occurs is you will be taken by the prison authorities now to downstairs. Your lawyer will see you and then speak to your family. Do you understand? Thank you. If you would go with the prison ‑ ‑ ‑
51MR MOORE: Your Honour.
52HIS HONOUR: Yes.
53MR MOORE: I'm sorry.
54HIS HONOUR: Sorry?
55MR MOORE: Sorry, Your Honour, I did overlook one matter, I am reminded that there is a disposal order for ‑ ‑ ‑
56HIS HONOUR: Yes. There will be a disposal order in respect of the drugs. Thank you. That is the only matter. Thank you, If you would head with the prison authorities now. I thank counsel for their very considerable assistance over a protracted period of time, the dignity of everyone involved. Thank you.
57MS SKVORTSOVA: As Your Honour pleases.
‑ ‑ ‑
0
4
0