Director of Public Prosecutions v Chambers

[2013] VCC 2007

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00246

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAOMI CHAMBERS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2013
CASE MAY BE CITED AS:	DPP v Chambers
MEDIUM NEUTRAL CITATION:	[2013] VCC 2007

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ruddle
For the Accused	Mr G. Casement

HIS HONOUR:

1Naomi Leigh Chambers, you have pleaded guilty to two charges of negligently causing serious injury.  That charge carries a maximum penalty of ten years' imprisonment.  You have also pleaded guilty to two uplifted summary charges, one of them driving in a manner dangerous, which carries a maximum penalty of two years, and one also of driving whilst authorisation to drive suspended.  That also carries a maximum penalty of two years.  You are 34 years of age and you pleaded guilty at the earliest reasonable opportunity.  I accept that there is appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.  There was a significant delay in the matter proceeding, in excess of a year, and I also take that into account. 

2The lead-up to the circumstances of the offending that I have just discussed in some detail with counsel are that you have prior findings of guilt and convictions for driving matters.  On what is in front of me, though, they commenced in December 2007, fraudulently use registration plate.  You then have drive whilst your authorisation suspended, use heroin.  You then have exceed speed limit by 25 in 2009; later in 2009, exceed speed limit by 35.  You then have an irrelevant shoplifting.  Then on 6 August 2010, drive whilst authorisation suspended.  13 September 2010, fail to give way to vehicle in a roundabout.  13 September 2010, drive whilst authorisation suspended.

3The matter on 6 August 2010, you received a one-month suspended sentence.  The matter on 13 September 2010, you also received a one-month suspended sentence which, on my calculation, was operative at the time of this offending.  More significantly than those perhaps is that on 14 February 2011, some four or five months prior to this offending, you were placed upon suspended sentences for drive whilst authorisation suspended, drive a motor vehicle impaired by a drug and careless driving of a motor vehicle.  Those suspended sentences purport to be of one month each.

4As I have now discussed with counsel, on the face of your record, it appears to me that those suspended sentences for driving a motor vehicle impaired by a drug and careless driving could not have been imposed lawfully.  The fact remains, however, that you would have been told by the magistrate that you were on suspended sentences for that type of offending and would have been made very much aware of the potential consequences and dangers of driving in such a manner.  Accordingly, whilst those sentences stand until otherwise set aside, I sentence on the basis that your state of mind was that you were in such a situation.

5In those circumstances, on 21 July 2011 you were driving a station wagon in Hyde Street in Spotswood.  Witnesses saw you driving.  You approached the rear of their vehicle at speed.  The driver of that vehicle described your driving as follows: "I really noticed how bad she was driving.  The only way I could describe it is like a formula one driver swerving from side to side, trying to warm up the tyres.  I saw her twice while she was behind me.  She swerved onto the other side of the road.  If I didn't know better, I thought she was playing chicken with the other cars coming the other way towards us."

6He pulled over and let you pass.  The people in the car observed you hunched over the steering wheel with what they thought was an appearance of struggling to drive.  As you passed their car, you crossed onto the wrong side of the road and into the path of an oncoming vehicle, which had to swerve to avoid hitting with you.  They called triple O.  You were followed to the intersection of Douglas Parade and North Road in Newport, where you went through a red light.  They lost sight of you as you drove south along The Strand in Williamstown.

7Approximately 15 minutes later on the same day you were driving in the same manner, it would appear, along Douglas Parade in Spotswood between Craig Street and Simcock Avenue.  You collided with a legally parked truck facing north.  Your vehicle mounted the nature strip and collided with four victims standing behind the truck.  It is the driving up until that point of time which gives rise to the manner dangerous.  Mr Peter Marshman, Mr James Blacklock, Mr George Lawrie, Mr Adam Young, Ms Chantelle Dews and Mr Rob Lane were all standing on the footpath and nature strip.  The six were employees of Transpacific and were undertaking a safety systems audit check on a truck. 

8Mr Marshman was struck and bounced up over the bonnet and into the windscreen before falling onto the ground beside the car.  As a result of the collision, he received multiple cuts to his right hand, bruised ribs and hip.  He was taken to hospital by ambulance and released later that day.  He was unable to work for a week and had to return to the hospital to have glass removed from his hand.  Mr Blacklock was struck and he too bounced up over the bonnet and into the windscreen of the car, falling onto the ground beside Mr Marshman.  That gives rise to Charge 1.

9Mr Blacklock was knocked unconscious and drifted in and out of consciousness waiting for the ambulance.  He has no recollection of the accident.  As a result of the collision, he suffered a punctured lung, multiple broken ribs, a fractured right-eye socket, two broken fingers on his right hand and cracked vertebrae.  He was taken to hospital by ambulance, where he stayed five nights and had surgery on his right hand.  He had ongoing problems such as a cerebral artery aneurism, which required surgery.  He was unable to work for more than three months and returned to work at a reduced capacity.  I have before me the victim impact statement from him, which describes articulately the consequences both physical and psychological that your driving on that day has had on him.

10George Lawrie was struck and carried by the car until it stopped, where he fell beside the driver's door.  That gives rise to Charge 2.  He was knocked unconscious, but came to shortly afterwards, stating that he could not feel his right leg.  As a result, he suffered two fractured bones in his right leg, which required surgery to insert metal plates, and fractured knuckles in his left hand.  He was conveyed to hospital by ambulance, where he stayed two nights.  He was unable to work following the incident and underwent physical therapy three times a week.  He will require ongoing treatment.   Again, I have a victim impact statement from Mr Lawrie, which I take into account.

11Mr Young was the last person struck by the vehicle, after attempting to pull
Mr Lawrie out of the way.  He was sent flying through the air.  He suffered pain, a blood nose and multiple cuts to his knees and face.  He couldn't walk  on his right leg for a week and suffered pain to his lower back.  He was taken to hospital by ambulance and released later the same day.  Some time later he attended the hospital later, where he had surgery on his lower back and was unable to return to work for ten weeks.  The others weren't struck but witnessed the scene.

12The injuries are serious indeed, albeit there are only two counts that relate to serious injury.  Police attended the scene and spoke to you, where you produced a driver's licence.  You told the police that "I was home and thought I'd clear my head, so I went for a drive".  You also stated that you'd had some heroin and Xanax last night "from a friend", one hit worth two points.  We discussed the circumstances of your licence at that point in time and the experience you had only a few months earlier.  Blood tests were done and the result was .08 milligrams of alprazolam, .02 milligrams per litre of diazepam, .03 milligram per litre of methadone and .02 milligram per litre of EDDP, which I understand to be a metabolite of methadone.

13According to Dr Morris Odell, the level of diazepam was low compared to usual therapeutic levels and the level of alprazolam was towards the high end of the usual therapeutic range.  The effects of those drugs can be that they act in a way to reduce or slow down processes of the nervous system in a similar way to alcohol that results in a reduction in performance of complex tasks such as required in driving.  Effects can include an increase in reaction time, impairment perception, reduction of judgment and concentration, drowsiness, incoordination, instability, slurred speech and memory problems. 

14All of that information is provided by the manufacturers of those drugs and they caution specifically against driving or operating machinery whilst taking them.  The matter has proceeded on the basis that you were aware of that and indeed, whilst I'm not informed of the drug, you were certainly aware of the potential consequences of driving whilst drug impaired.  It is the driving in that condition which gives rise to the particulars of negligence that have been outlined by the Crown.  At the crash scene there were no brake marks and you did not appear to be stopping or trying to swerve out of the way to avoid the collision.

15The victim impact statements from Mr Blacklock. Mr Lawrie and Mr Young, as I have indicated, clearly outline the dreadful ongoing consequences that this sort of conduct can cause.  The concept of going for a drive to clear your head from the effects of drugs is a fairly extraordinary one.  You are no stranger to driving offences and were under suspended sentences, on the face of it, for two acts of driving whilst unauthorised.  The unauthorised driving does not cause the accidents, but does indicate a disregard for the road laws.  This is a situation where I think the moral culpability in the overall circumstances has to be regarded as high.

16The application of general deterrence is important and, in your situation obviously, specific deterrence.  So I am sure this sentence will act effectively in that regard.  It is the sort of offending which the community is outraged by and must attract appropriate punishment.  A significant sentence is inevitable and nothing to the contrary was seriously submitted.  In my view the offending, bearing in mind not only the nature of it but the amount of victims involved, was such at a community based order of any description was well outside the range. 

17It was put to me about your childhood and there is no reason for me not to accept that from the Bar table.  You were, as I am told, on the streets since you were about 13.  You had drug use for an extended period of time.  You have worked, over years, in prostitution and also in the making of adult movies.  On the understanding that your prior history doesn't start until you're 27, that is a remarkable effort.  You were living on the streets from about 13 and you met a man, I am told, called Glen Sellers, who was abusive both physically and emotionally was a heavy drug user.  I am told from the Bar table that you were driving on this day to pick him up, but that is not what you told the police.

18In your early 20s you had three children.  In recent times you have been able to get custody of those children.  They are 14, 13 and 12 years of age.  It is not suggested that exceptional circumstances exist in this matter but, without going into the history - which wouldn't have got us anywhere, I don't think - in this particular matter I accept that from your point of view an active custodial sentence will be difficult for you, bearing in mind the recent timing in which you were able to get those children back with you. 

19You have been engaged with DHS.  I am told, again from the Bar table, that over recent months you have been able to avoid or eliminate drug use.  You have got accommodation in Williamstown, which a significant sentence will - so I am told - cause you to lose.  You are in new relationship and you have had the commonsense to prepare yourself for an extended period of imprisonment. 

20As I have indicated, this is the sort of offending where general deterrence becomes very important.  The prospects of your rehabilitation are entirely up to you.  The risk of you re-offending is clearly dependent upon, I would have thought, your capacity to avoid the use of drugs, whether prescription or otherwise.  In those circumstances I think it is a situation where I can give you an opportunity for longer parole than might otherwise be the case, but the sentence must remain one which reflects the seriousness of what you did.  Other people who are in a drug-affected state who think that they can just go for a drive have to be deterred.

21These situations are difficult where there are multiple victims and I have discussed with counsel the circumstances regarding the two who come within the manner dangerous charge.  I have given a slightly higher sentence in regard to Charge 1, because in my view the injuries are more serious, though to the people involved that is probably a fairly ridiculous differentiation.  I understand that, but obviously I am bound by sentencing principles

22Taking into account all those matters, and particularly the question of totality, the fact that - from what I can gather - you have never been incarcerated before, on Charge 1 you are sentenced to imprisoned for a period of three and half years; on Charge 2, three years; on the charge of manner dangerous, eight months; on the charge of driving whilst authorising suspended, two months.  I direct that nine months of the sentence imposed on Charge 2, two months of the sentence imposed on manner dangerous and one month of the sentence imposed on driving whilst authorisation suspended be served cumulatively upon each other and upon the sentence imposed upon Count 1.  That gives an effective head sentence of four years and six months.

23I am aware of the Crown range that was given in the matter.  Having given it thought, I think the moral culpability is such and the injuries are such that that range is insufficient; however, insofar as the minimum term is concerned, I direct that you serve a minimum term of two years and three months before becoming eligible for parole.  I direct that five days be reckoned as having been served under this sentence. 

24On each of the charges of negligently causing serious injury, any licence to drive is disqualified for a period of two years.  On the manner dangerous, disqualified for a period of six months.  That is to be served cumulatively upon the negligently cause serious injury disqualifications and gives a disqualification period of two years and six months, which will commence today.  Is that how it works?

25MS RUDDLE:  Yes, Your Honour.  That's correct.

26HIS HONOUR:  Can I say this.  Insofar as s.6AAA is concerned, but for your plea of guilty - and this can be a difficult proposition because I suspect that there would have been at least one more negligently cause serious injury charge in a trial - you would have been sentenced to be imprisoned for a period of seven years with a minimum term of three years and six months. 

27Are there any other orders I have to - - -

28MS RUDDLE:  No, that's everything, Your Honour.

29HIS HONOUR:  All right.  I've declared the PSD, haven't I?

30MS RUDDLE:  Yes, five days.

31HIS HONOUR:  Yes, adjourned.

32(Short adjournment.)

33HIS HONOUR:  Sorry, I hate bringing people back. No, there's nothing dramatic to it.  I just hate bringing - after they've been sentenced it's just cruel.  What's happened is, that according to the computer, you can't make licence disqualifications cumulative.

34MS RUDDLE:  I don't believe that's correct, Your Honour.

35

HIS HONOUR:  No, the computer won't do it, right?  So that being the

case - - -

36MR EDNEY:  I see.

37HIS HONOUR:  The computer says "no".  I agree with you, right, but the computer says "no".  I can't post-date a sentence; I wouldn't be prepared to do that.  So what I'm looking at doing is making the disqualification on each of the negligently cause serious two years and six months and then the manner dangerous disqualification concurrent.

38MR EDNEY:  Yes, Your Honour.  Because there is a presumption in favour of concurrency in s.89(d) of the Sentencing Act.

39HIS HONOUR:  Exactly.  So if I do that, the end result is exactly the same without someone disputing this in two years' time or something.

40MR EDNEY:  Yes, Your Honour, and you have the power to give her two years, six months.

41HIS HONOUR:  That's right.  Two years is a minimum.

42MR EDNEY:  It's a minimum, yes.

43HIS HONOUR:  So you're all right with that?

44MR CASEMENT:  Yes, I'm okay with that, Your Honour.

45HIS HONOUR:  You understand?  I realise she's not in court, but I just think it's an act of cruelty to bring people back for that sort of thing.  All right.  Sorry about that.

46MR EDNEY:  May it please the court.

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