Director of Public Prosecutions v Chenevier

[2017] VCC 48

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01913

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN CHENEVIER

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 February 2017
CASE MAY BE CITED AS:	DPP v CHENEVIER
MEDIUM NEUTRAL CITATION:	[2017] VCC 48

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 C. Hollingworth
For the Accused	Mr L. Polak

HIS HONOUR:

1Damien Anthony Chenevier, you are to be sentenced for the indictable offence of dangerous driving causing serious injury.  The maximum sentence is five years imprisonment. 

2You are also to be sentenced for the following summary offences:  driving whilst a prescribed illicit substance, methylamphetamine, was present in your blood, which attracts in the circumstances here, a maximum fine of 1200 penalty units, unlicensed driving, which attracts a maximum penalty of 25 penalty units or three months imprisonment, driving an unregistered vehicle with a maximum ,fine of 25 penalty units,  fraudulently using registration plates, the maximum penalties being a fine of 60 penalty units or six months imprisonment,  driving an  unroadworthy vehicle, with a maximum penalty of five penalty units.

3You pleaded guilty to these offences before me on 13 December 2016.  When interviewed by police on 12 November 2015, you made important admissions.  You pleaded guilty at the committal hearing on 28 November 2016 and the matter was then listed for plea hearing in this court.

4At that plea hearing,  which ran at Geelong County Court on 13 December and 23 January 2015, Ms Flynn for the Crown tendered a written summary of prosecution opening, photographs depicting items seen to be present in the driver's footwell of the motor vehicle you drove and the victim impact statements of Rose Gallia and Julie Klemke. 

5Mr Polak, for you, tendered a scaled plan of the scene of collision, a police photograph of its aftermath, the psychological report of David Ball dated
5 December 2016 and letters of character reference by your partner, father and sister.

6The circumstances of your offending are comprehensively set out in the Crown opening which is Exhibit A.  My own summary may therefore be shorter. 

7On 23 July 2015, at about 9 am, you were driving your red Holden station wagon west along the Hamilton Highway in Fyansford, near Geelong.  You were following Rose Gallia who was driving a white Holden Sedan.

8She was approaching a T-intersection with Friend in Hand Road,  intending to turn right.  The highway at that point is a single lane with double white lines, at or near the intersection.  There is a bitumen verge to the left of westbound traffic which,  to my eye, would allow a carefully driven vehicle to pass a slowing or stationary vehicle to its left.

9The speed limit is 100 kilometres per hour.  It is not said that you were driving in excess of that.  You told police that you had been travelling 50 to 80 metres behind Ms Gallia.  Julie Klemke was driving her Nissan Utility in the opposite direction east, along the highway toward the same intersection.  Her three year old daughter was with her.

10Rose Gallia slowed to make her turn, indicating to turn right.  She stopped to wait for oncoming traffic, which at least included Julie Klemke,  to pass.  Despite this, you failed to see her or recognise what she was doing until too late.  You swerved left at the last moment; but collided with her left rear, forcing
Rose Gallia into the path of the oncoming Nissan.  That struck heavily the passenger side of Rose Gallia's car.  Paragraphs 9 and 10 of the Crown opening state:

"As a result of the collision, Gallia suffered three fractures to her pelvis, a punctured lung, a bruised lung and a number of broken and fractured ribs.  Her spine was broken and plates and screws have been inserted to assist with repairs to her spine.  She also suffered a tear in her aorta".

"Klemke and her three year old daughter were conveyed to Geelong Hospital with minor injuries".

11Brian Collis was driving at some distance behind you.  Part of his police statement is as follows:

"I got up to a speed of 100 Ks and had just flicked the cruise control on and I noticed a red Commodore wagon which was 800 metres in front of me.  I saw a white station wagon about 50 metres ahead of the Commodore.  The white wagon was stationary, signalling to do a right hand turn into Friend in Hand Road.

I observed the Commodore continuing to proceed at approximately 100 Ks towards the back of the white wagon.  It seemed to be excessive speed considering it was so close to the back of another car.  I was expecting to see the Commodore brake heavily, but it didn't and just continued at full speed without brake light signals.  The red Commodore then hit the back of the white wagon, which catapulted the white wagon across the road, into the path of an oncoming 4WD vehicle which had been hit head on".

12Paragraph 14 of the Crown opening states:

"The collision scene was photographed and measurements were taken.  Leading Senior Constable Andrew Goff inspected the accused vehicle and noted a large amount of items in the driver's footwell of the vehicle.  The items appeared to be parts from the vehicle's interior heating and vents system".

13All four tyres of the vehicle were found upon inspection to be un-roadworthy.  However, no skid or tyre marks were found to indicate attempt at braking. 

14A blood sample was taken from you at Geelong Hospital.  Analysis revealed a positive reading for methylamphetamine at .28 milligrams per litre.

15The role or contribution of the drug within your system  was the subject of dispute at the plea hearing.  Paragraph 17 of the Crown opening is as follows:

"The accused drove the motor vehicle in a manner that was dangerous, due to the unsafe condition of the vehicle, including the items present in the interior of the vehicle and also because the accused was impaired by a blood methylamphetamine level of 0.28 milligrams per litre. Whilst the nature of that impairment was uncertain, whether it be a stimulated state or a rebound fatigue state, either is very likely to have rendered the accused incapable of reacting to a stationary vehicle in front of him".

16Mr Polak made clear on your behalf, that, whilst pleading guilty to dangerous driving causing serious injury, you do not accept and challenge the proposition that the drug played any role in that.  In this regard, the Crown relied upon the expert evidence of Dr Sanjeev Gaya, contained in his depositional and further explanatory statement of 12 December 2016.  It also relied upon the 23 January 2017 statement of Dr Morris Odell. 

17I find that you were badly inadvertent in not recognising what Ms Gallia was doing.  The un-roadworthy condition of your car and road and weather conditions do not explain it.  The presence of car parts in the footwell was dangerous and provides some possible or partial explanation.  The Crown carries the burden of showing, beyond reasonable doubt, that the presence of methylamphetamine in your system was a causal factor.  It chose not to call either Dr Gaya or Dr Odell. 

18I have found the evidence of their statements to be brief, somewhat cryptic and incomplete.  In my view, requisite forensic explanation related to the circumstances of this case was missing.  While strong suspicion may exist, the evidence fails to persuade me, to the high standard required, that your drug use, some days prior on your statement in police interview, played a causal role.

19What remains is the objectively shown circumstance that your inadvertence was a serious failure in the proper driving and management of your vehicle.  That, without any legitimate explanation, caused the collision and Ms Gallia's serious injuries. 

20There is no recent medical evidence before me of Rose Gallia's level of recovery or ongoing difficulties.   However, her victim impact statement states the following as to physical injury and treatment. 

"Thoracic column break, six hour operation.  Spinal fusion with the insertion of four plates and eight screws in the 7-10 region.  Ongoing physiotherapy and hydrotherapy.  Fractured ribs, both sides, torn aorta, punctured lung requiring drainage.  Multiple pelvic fractures with a non-weight bearing period of ten weeks.  Electric wheelchair - three months.  Mobility scooter - ongoing.  Head of trauma, leg trauma, nerve damage, swellings require ongoing drainage, bending and kneeling is restricted".

21Her statement also speaks of emotional and psychological effects and of impact upon her life and family. 

22The victim impact statement of Julie Klemke speaks of pain, bruising and soft tissue damage.  There was  surgery to drain  hematoma in her upper thigh and after effects of that such as nerve damage.  There are ongoing symptoms to hip, back and shoulder.  There has been psychological impact, impact upon employment and leisure and family life.  Their daughter suffered bruising and has had nightmares.  Ms Klemke has been treated for depression and anxiety.

23I am not complete.  There has been serious victim impact, particularly upon your primary victim, Rose Gallia.

24You are a 38 year old man.  You live with your partner in Whittlesea, also near Geelong.  Psychologist, David Ball, seems to make the point that your personal and psychological history relies significantly upon self-report.  Your upbringing presents as not remarkably or unusually deprived.  It was, to quote Mr Ball, "largely functional".

25You went to school until Year 11 and left home at 16.  You stated that you were an only child until 15. You have two younger step-sisters.  You did not really know your natural father and do not appear to have developed a close relationship with your step-father.  After school, you have maintained a relatively stable work history, predominantly in labouring and construction work.  You have not worked for about 18 months.  You have a five year old son.  There is Family Court litigation about access. 

26Perhaps most significant to your present situation, you began using cannabis and alcohol in mid-teenage.  Substance abuse appears to have continued and you have used methylamphetamine since 28.  Such substance abuse has adversely effected your life.  Mr Ball diagnoses, "Severe alcohol, cannabis and stimulant use disorders".  These are said to be in early remission, albeit, on your own report.  Mr Ball states you to be of lower end average intellect.  There is no diagnosable longstanding mental illness.  You feel depressive symptoms, reactive to your present predicament.  You expressed regret and remorse to Mr Ball for what you have caused your victims.

27Your criminal history is significant and relevant to this offending.  Between May 2000 and January 2015, there are on my reckoning nine court appearances.  Drug and particularly driving offences are predominant.  Included  are offences of driving whilst disqualified, driving in excess of the prescribed concentration of alcohol, albeit, at a low reading,  in 2009, reckless conduct endangering life.  The circumstances of that were provided to me earlier today.  There are two subsequent matters,   driving with an illicit substance present in your blood, committed in November 2015,  and then in March 2016 driving while suspended, together with exceeding the speed limit of 60 kilometres per hour.  These are of limited relevance.

28As I have stated, this was a dangerous and poor piece of driving.  You caused serious injuries and victim impact.  You have a substantial driving record and the summary offences before me further suggest low regard for your responsibility as a car driver.  I see the sentencing purpose of deterrence to be particularly important in a case like this.  That is, both generally and specific to you.  I have decided that the proper sentence must include a component of imprisonment.  Your sentence should be the combination of that and a community corrections order.

29I take into account mitigating and/or moderating factors.  They particularly include the following.  1)  Your plea of guilty and cooperation.  I accept that you are remorseful. 

302)  To some extent, the circumstance of your offending.  For example, I should find lesser criminality in a case of substantially inadvertent failure, rather than more considered disregard of readily apparent danger.  The case of Stephens v R, 2016, VSCA 121, raised by the Crown was different in that regard.  That case also considered a sentence for the more serious offence of dangerous driving causing death.   My finding  that the presence of methylamphetamine in your system had no causal connection to your failed driving  also reduces the criminality of your offence.  I still see that you took such a drug and drove within days, thereby risking, or at least having no regard to the risk of this effect, stands as a background factor to your offending on the day of collision.  In saying this, I have been careful to avoid double punishment.  You are also to be sentenced for the summary offence of driving, with that illicit being present in your blood.

313)  Your driving record is not good;  however, I do not discount your prospects for rehabilitation.  For example, the character evidence tendered speaks well of you and states your remorse.

32The structure of your sentence entails consideration of what the appropriate total sentence should be.  That has been my purpose.  A factor related to this is that not all of the summary offences require a custodial sentence.  My overall sentence should be seen in this regard.  This was raised in discussion with counsel earlier today.

33You have been found suitable for a community corrections order as part of my sentence.  After considering and balancing what I see to be the relevant matters, I sentence you as follows. 

34On the indictable offence of dangerous driving causing serious injury, you are sentenced to 12 months imprisonment, together with a community corrections order of two years duration.  The usual terms apply.  There are the following additional terms.  That you perform 300 hours of unpaid community work;   50 hours of treatment and rehabilitation will be credited against that.  That there be supervision, that there be treatment and rehabilitation conditions related to drugs and related to alcohol, that there be other programs as directed, aimed at the specific nature of your offending.  That should include a road trauma awareness program.

35On all of the summary offences, but for the offence of driving a vehicle in an un-roadworthy condition, you are sentenced to a community corrections order of two years duration, with the same conditions as that I have just described.  The second community corrections order is to run concurrently with the first community corrections order imposed on the indictable offence.

36For the summary offence of driving an un-roadworthy vehicle, you are fined $300.  Had you not pleaded guilty, I would have imposed a sentence of
18 months imprisonment and a community corrections order of three years duration.  Take a seat please.  There is a s.464 order is there?

37MS HOLLINGWORTH:  Yes, Your Honour.

38HIS HONOUR:  Yes, well I will make that order. 

39MS HOLLINGWORTH:  I'll hand up the draft orders.

40HIS HONOUR:  That's not opposed are they?  The reasons are that - as in many offences, there is evident forensic benefit in any future investigation of offending like this.  That proposition is emphasised by the extent of your prior history.  I note that the order or the application is not opposed.  I will sign the order now.  Yes, is there anything else I need to do?

41MS HOLLINGWORTH:  Your Honour, the only other remaining matter is licence disqualification.

42HIS HONOUR:  What does the section say about that?

43MS HOLLINGWORTH: Section 87 and 89 of the Sentencing Act, "Dangerous driving causing serious injury is a serious motor vehicle offence" and that is pursuant to s.87 and then pursuant to s.89, "The court must disqualify the accused from obtaining a driver's licence or having one for not less than
18 months".

44HIS HONOUR:  Yes, well I impose it.  A disqualification or a period of that length.

45MS HOLLINGWORTH:  Thank you, Your Honour.

46HIS HONOUR:  Did you get that?

47ASSOCIATE:  No.

48HIS HONOUR:  Eighteen months disqualification as well.  Now it is a matter of ‑ ‑ ‑

49MR POLAK:  It's probably duplicitous, but I think it's six months in relation to drive with a substance, illicit substance.  There's a ‑ ‑ ‑

50HIS HONOUR:  Six months disqualification?

51MR POLAK:  Yes.

52HIS HONOUR:  If I just disqualified for 18 months, does that cover it?

53MS HOLLINGWORTH:  As I'm aware, Your Honour, there's ‑ ‑ ‑

54HIS HONOUR:  The minimum period is 18 months for the - for under section ‑ ‑ ‑

55MS HOLLINGWORTH:  For the actual dangerous drive.

56HIS HONOUR:  Yes.

57MS HOLLINGWORTH:  Your Honour can then also give six months on the driving with drugs in the system ‑ ‑ ‑

58HIS HONOUR:  Well I could, yes.

59MS HOLLINGWORTH:  ‑ ‑ ‑ but then it would run concurrent.

60HIS HONOUR:  I could give more than 18 months, but I mean he's going to - this man's going to prison for 12 months.

61MS HOLLINGWORTH:  Yes.

62HIS HONOUR:  Then he's going to be ‑ ‑ ‑

63MS HOLLINGWORTH:  Off the road.

64HIS HONOUR:  ‑ ‑ ‑ hopefully assisted in his rehabilitation by a community corrections order.  I do not think in those circumstances I should go beyond the 18 months.

65MS HOLLINGWORTH:  Thank you, Your Honour.

66HIS HONOUR:  Yes, the minimum is 18 months.

67MR POLAK:  Yes.

68HIS HONOUR:  Is that right?  You agree, yes right.

69MS HOLLINGWORTH:  Yes, Your Honour.

70MR POLAK:  I believe - yes.  Yes it is.

71HIS HONOUR:  Well that's what I am imposing.  Good, thank you.  Well I do not think I need to read out both - there are two orders he needs to sign, they are in exactly the same - they are exactly the same, so I will just read out one, I think. 

72Both in relation to the indictable charge and four of the summary offences, as well as imprisonment, I am imposing a two year community corrections order, which begins upon your release from prison.  The usual terms of these, that you do not commit another offence for which you could be imprisoned during that time.  That you comply with something called Regulation 17 of the Sentencing Regulations, which as I understand it means that you may not attend any program or appointment, effectively alcohol or drugs or in possession of illegal drugs.

73You must report to and receive visits from Community Corrections.  You must report to Community Corrections, the relevant office in Little Malop Street, Geelong, within two days of your release.  You must let a Community Corrections officer know within two clear working days of a change of address or job.  You must not leave Victoria without first getting permission to do so and you must obey all lawful instructions of Community Corrections.

74The additional terms are to perform 300 hours of unpaid work over the two years.  Fifty hours of treatment and rehabilitation, satisfactorily undertaken can be counted as hours of unpaid work.  You must be under the supervision of Community Corrections.  You must undergo assessment and treatment, including testing for drug abuse as directed. 

75You must undergo assessment and treatment, including testing for alcohol abuse as directed.  You must participate in programs or courses that address factors related to your offending as you are directed.  I am going to ask you to sign two orders in exactly the same terms.  Do you understand the terms and conditions of the order?

76OFFENDER:  Yes, Your Honour.

77HIS HONOUR:  Yes and do you agree to it being made?

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  All right, well I will get you to sign both community corrections orders. 

80MR POLAK:  The intention of the two orders is a total of 300 hours.

81HIS HONOUR:  They run concurrently.

82MR POLAK:  Yes.

83MS HOLLINGWORTH:  Yes.

84HIS HONOUR:  That covers it, yes.  I have said that in my sentence. 

85MS HOLLINGWORTH:  Just the avoidance of - Your Honour, it may be prudent to also order that there's six months licence loss on the charge relating to driving under the influence, but that is to run concurrent because that's a statutory minimum as well.

86HIS HONOUR:  I see.

87MS HOLLINGWORTH:  But that runs concurrently with the 18 months.

88HIS HONOUR: All right, as to licence, under s.89 is it of the ‑ ‑ ‑

89MS HOLLINGWORTH:  Yes, Your Honour.

90HIS HONOUR: ‑ ‑ ‑ Sentencing Act, disqualification period is 18 months. Under what section of the Road Safety Act is it?

91MS HOLLINGWORTH:  That, Your Honour, is under - I'll just look that up, Your Honour.  It's 49, Your Honour.

92HIS HONOUR: Under s.49 of the Road Safety Act.

93MS HOLLINGWORTH: Road Safety Act.

94HIS HONOUR:  The disqualification period of six months.  They will run concurrently, that is together.  The total period is 18 months.

95MS HOLLINGWORTH:  Thank you, Your Honour.

96HIS HONOUR:  Now I know - I think there are some people here who have come here in support of Mr Chenevier.  Is that right or not?

97MS HOLLINGWORTH:  I think there is, Your Honour.

98HIS HONOUR:  Yes.  Yes, I'm sorry, I'll give you - you may speak to him for a short time before he's taken into custody.  It must be short.  If you could supervise that Mr Polak, I'm obliged to stay on the Bench whilst that happens.  Thank you, Mr Polak for your assistance.  Thank you, Ms Hollingworth.

99MS HOLLINGWORTH:  Thank you, Your Honour.

100(At this stage the court proceeded with another matter.)

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