Director of Public Prosecutions v Comport
[2024] VCC 36
•2 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COREY COMPORT |
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JUDGE: | JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2023, 15 December 2023 | |
DATE OF SENTENCE: | 2 February 2024 | |
CASE MAY BE CITED AS: | DPP v Comport | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 36 | |
REASONS FOR SENTENCE
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Subject:Sentence Culpable Driving
Catchwords: Reckless culpable; Intoxication; Grave example; Mild intellectual disability; Mental illness; Bugmy principles; Verdins principles Standard sentence offence; Category 2 offence.
Legislation Cited: Sentencing Act (1991) Vic
Cases Cited:Bugmy.v The Queen [2013] HCA 37; Muldrock v The Queen [2011] HCA 39; R v Verdins [2007] VSCA 62; R v McKee & Brooks [2003] VSCA 16.
Sentence: 9 years imprisonment.
Non parole period 5 years and 8 months. PSD is 451 days. Licence disqualified for 5 years.
6AAA 11 years with a 9 year non- parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Ms Alysha Byrne |
| For the Accused | Mr D De Witt | Mr Angus Cameron |
HIS HONOUR:
1Corey Comport, at approximately 3:25 pm on 30 August 2022 you caused a fatal collision, through your reckless and drug affected driving, taking the life of 44 year old Nirvair Singh.
2Nirvair Singh was a much loved husband and father to two young children, and a much loved son, brother, brother-in-law, friend, and business partner. He was in the prime of his life. He was in the early stages of developing a construction business. He was a talented and well-known Punjabi singer. He was the centre of his wife’s world, and his children’s, and his family and friends. He was relied upon by so many, in a multitude of ways.
3The laughter, love, warmth, and strength he provided to his family and friends has been taken by your actions. His loss has left an immeasurable void in the lives of so many.
4Mr Singh was driving appropriately and within the speed limit in his Toyata Kluger along Bulla Diggers-Rest Road at the time of the collision. He was wearing his seat belt. The speed limit was 80 kmh. You were driving unlicensed, in fact you had never held a licence, at a speed of 168kmh, whilst being incapable of having proper control of your vehicle due to the influence of drugs.
5You collided with the rear passenger side of a Jeep travelling in front of you, driven by Richa Chandok, forcing that vehicle into the path of the oncoming Toyota driven by Mr Singh. The collision resulted in the death of Mr Singh and injuries sustained to your passenger Ms Portelli, and the driver of the Jeep Ms Chandok, who has also made a victim impact statement in the matter which I will refer to later.
6A blood sample taken from you two hours after the collision showed the presence of GHB, Methylamphetamine, Ariprazole and Ketamine.
7Your driving conduct in the lead up to the fatal collision and your drug use provide relevant context for assessing your moral culpability.
8You were consuming methylamphetamine over the course of the evening of 29 August. You were driving the Kia vehicle at 7 a.m. as noted by your passenger Ms Portelli. Around half an hour or so prior to the collision you were apparently involved in some type of conflict at an address in Sunbury and you left in a hurry, driving at excessive speed.
9You were observed driving erratically in the Diggers Rest, Bulla and Sunbury area in the lead up to the collision. At around 3:10 you were speeding and overtaking in a dangerous manner on Sunbury Road.
10At around 3:18 you were observed by police travelling at approximately 168 km/h on Wildwood Road, Bulla. Police attempted to intercept you over a 3 minute period, activating lights and siren. You did not stop, and the pursuit was abandoned. You were observed turning left and accelerating harshly down Loemans Rd.
- Fail to stop at police direction; summary charge 11.
11Witnesses confirmed your; excessive speed, dangerous overtaking and erratic cutting back in too close to vehicles to avoid oncoming traffic, overtaking four or five vehicles whilst on the wrong side of the road, overtaking up a hill whilst blind to oncoming traffic. One witness described the driving as suicidal and crazy.
12Ms Chandok was on her way to pick her son up from school in her Jeep when she noticed you speeding up behind her, tailgating her. Not long after, she felt and heard the impact with her Jeep, the airbags in her vehicle deployed, and her car was propelled sliding into the east bound lane colliding with Mr Singh’s Toyota.
13You were travelling in excess of 160kmh in the seconds prior to colliding with the Jeep, slowly increasing to 168 kmh. Your accelerator pedal was held at a consistent pressure of 99% and the engine throttle at 100%. In the 2.2 seconds prior to collision the Collision Avoidance warning system was activated in your vehicle. No braking was activated in that period.
14The Kia you were driving rolled and injuries were sustained by your passenger Ms Portelli. Ms Chandok was transported to the Alfred Hospital for treatment of her painful injuries. You were assessed by paramedics at the scene. You denied being the driver of the Kia. At that stage you told Ms Chandok you were sorry. You admitted smoking methamphetamine to police. At the Alfred Hospital you maintained that you were not driving the vehicle, instead stating that Ms Portelli was driving.
15You were taken to Southbank Police Station where you were deemed unfit for interview.
16You were remanded in custody and have remained in custody since that time.
Objective Gravity of Offending
17You have pleaded guilty in the Koori Court jurisdiction to culpable driving and the relevant summary offences of failing to stop at police direction.
18Culpable driving carries a maximum penalty of 20 years imprisonment.
19The maximum penalty for failing to stop on police direction is 6 months.
20This is a very serious example of culpable driving involving a significant degree of sustained recklessness.
21General deterrence is a very important consideration in cases of culpable driving. Examples of culpable driving by recklessness are typically in the higher range of gravity.
22I consider the following to be relevant to my assessment of the gravity of your conduct and your moral culpability:
i) Your driving conduct as observed and as evidenced by the investigation reflects a high degree of reckless driving and driving whilst under the influence.
ii) The speed at which you were traveling was outrageous, the impact was severe and not only caused death but injured and endangered others.
iii) You were operating under the effects of multiple substances that can produce unpredictable and dangerous effects.
iv) The collision followed an extended period of dangerous driving where others were placed at risk, and during which a police pursuit ensued which was abandoned due to your high speed, erratic driving, and failure to stop. This matter goes to your moral responsibility.
v) You were driving unlicensed. You have never been licensed to drive.
vi) You have relevant prior matters which highlighted to you the dangers posed by driving in such a manner, including a prior conviction for reckless endangerment whilst in charge of a vehicle. This goes to your subjective responsibility.
vii) You were subject to a CCO at the time.
viii) The devastating impact upon the victims and their family and loved ones is something I must take into account.
23It is conceded by your Counsel that this is a grave example of the offence of culpable driving.
Victim Impact Statements
24A number of victim impact statements were tendered on the Plea. Most were read aloud to the Court by the maker or by the prosecutor.
25The combined effect of these statements was extremely moving and powerful.
26The enormity of the loss, the enormity of the grief and its impacts is immeasurable, beyond words and devastating.
27The impacts are far reaching. A family has been shattered. The shock waves sound out beyond the immediate family to siblings and their partners, in-laws, friends, business partners.
28I make special mention of Harpreet Kaur, Mr Singh’s wife, and her bravery, composure and dignity in the delivery of her statement, along with the bravery of her young sons in writing their statements, heart wrenching to read, so eloquent in their simplicity and depth of feeling.
29The impact is immense. Ms Kaur feels as though laughter has gone from her life forever. She has to deal with a loss beyond words and the profound grief whilst at the same time having to support her young sons as best she can through their grief and confusion. She has to continue the fledgling construction business, a notoriously precarious and difficult industry, whilst sitting alongside the empty chair that was once occupied by her husband.
30The empty chair is a trigger too for the children. Their pain leaps off the page of their statements. They miss their father enormously and always will. They carry the pain of knowing that his love can never be replaced. Riaz writes of the bewilderment, the shock, the immense sadness, crying and sobbing alone every night. There is a drawing in Gitaz’ statement that I would reproduce in these reasons for sentence if I could. It depicts more than mere words or the time I have to deliver them can bear. ‘I love you Daddy’ he writes, desperately.
31I will not summarise all statements tendered herein. They remain on the record.
32They express the devastation at the loss of a much loved husband, son, father, brother, brother-in law, friend.
33They inform the Court of the agony, the emotion and the profundity of the loss. The void left by the passing of a charismatic, funny, loving and caring individual. The songs that won’t be sung. The brotherly moments gone. Those of a son and his mother.
34There is the sheer disruption to lives. Family re-locating from India. Leaving work and lives there because they are needed here. Business pressures. The impossibility for all of resuming a normal social life.
35All gone. The loss seemingly harder to deal with because this was no accident. It was caused by reckless conduct.
36I also note the impacts to Ms Chandok as expressed in her statement. Ms Chandok has suffered great pain and ongoing difficulties particularly in relation to her legs and the need for compression stockings. It has also affected her professionally and socially. She experiences nightmares and significant psychological distress as a result of your culpable driving.
37I am satisfied that you feel appropriate shame and devastation for the consequences of your actions.
Personal Circumstances
38Yours has been a difficult life and there are circumstances personal to you, particularly in relation to your cognitive profile and experience of mental illness that are relevant to sentence.
39You are a proud Barkindji man who was diagnosed with an intellectual disability at 12 years of age. You have also suffered schizophrenia for several years.
40You have strong family support from parents and siblings, and they have supported you through this court process.
41Your father works in fencing and provides a positive role model, as does your mother, who works as a cleaner, visits you every weekend and provides close support to your siblings. You are close with both parents.
42You have three siblings, Kaine, Jesse and Dianne. Exhibit 1, Mr De Witt’s written submissions, sets out some background and detail in relation to each of your siblings that I note but won’t reproduce herein.
43Your parents weren’t always doing as well as they are now. They struggled with their own alcohol and substance use throughout your formative years.
44Your parents separated when you were two years of age. You lived between your parent’s households until you were 8. I was told that you agreed to live with your father at that point, however you actually wanted to remain with your siblings.
45You resided with your father till the age of 13. It was not a suitable environment for a child at that time.
46You were exposed to drug use and excessive alcohol abuse on a regular basis. You describe the house as frequently filled with strangers engaging in drug use and alcohol consumption.
47You moved frequently, which impacted schooling and forming friendships. Your circumstances were deprived due to your father using resources to fund drug and alcohol consumption rather than provide for you.
48You experienced significant distress returning to your father after visits to your mother. You were diagnosed with separation anxiety by the Royal Children’s Hospitals Mental Health Service at one point.
49You were sexually assaulted by a stranger at aged 10. You kept this to yourself for several years.
50You were also diagnosed with ADHD at aged 10 and anxiety at 11.
51At 12 you began binge drinking alcohol.
52You were also diagnosed with an intellectual disability by the Royal Childrens Hospital at that age.
53You returned to live with your mother at 13 when your father was incarcerated.
54Cannabis use commenced at 13. By 13 you had left school and commenced running away from home and sleeping rough.
55Your history is typical unfortunately of many individuals who come before this Court.
56Your unstable and traumatic home environment, your exposure to negative influences therein, your cognitive difficulties, the constant moving schools, and the trauma of sexual assault has shaped you in many ways.
57School was a negative and difficult experience, you left, you gravitated toward substance misuse at a tender age, and by 13 you effectively had few positive adult supports or guidance.
58These factors reduce your moral culpability for the drug problems that have persisted throughout your childhood into your twenties. To the extent that drug misuse operated in the lead up to your offending some modest reduction in moral culpability flows.
59Your childhood experiences have shaped your responses throughout your young life. They are relevant to an assessment of whether impulsivity and recklessness connected with the offending has its genesis in profound childhood disadvantage and exposure to trauma and negative behaviours.
60Your cognitive profile and mental illness are also relevant to an assessment of moral culpability.
Drug use
61You first used methamphetamine at 16.
62I was told that within a short period of time you were dependent upon it. By 17 you were a daily user combining use with alcohol and other substances. You fell in with other users, some older, and criminal activity followed.
63There is a significant family history of vulnerability to substance use, including siblings and parents. I was told that your maternal grandmother passed after overdosing on amphetamine.
64Despite your struggles you have shown a capacity for employment including recycling work with your grandfather, general labouring, and cleaning up of building sites.
65Most recently you have worked with your father building sheds.
66You discovered your Aboriginal heritage through your paternal grandmother when you were 15. You have connected with your Barkindji heritage since then. You have been keen to explore your culture and develop your connection to it. You have been active in discussions with the ALO and other Aboriginal men in custody. You have tried to reach out to your extended family to learn more of your history. You have participated in NAIDOC events. You have engaged in cultural artwork.
Participation in Koori Court Sentencing Conversation.
67It is recognised that participation in a Koori Court plea is more onerous and confronting than participating in a conventional plea hearing.
68That was apparent in your case.
69It was a very emotional process. You were tearful and distressed throughout. You were respectful and I was satisfied through the process that you demonstrated deep, genuine remorse.
70You engaged in the process and spoke with Uncle Jim and Uncle Trevor about your offending, and your culture.
71You participated fully. It was far from easy. And I take your participation into account with mitigatory effect.
Mental health/ Cognitive functioning and consideration of Verdins/ Muldrock
72I received a number of psychological, neuropsychological and psychiatric assessments and reports in relation to your cognitive profile and mental illness.
73The most recent reports were from neuropsychologist Dr Evrim March dated 14 December 2023 and Forensicare psychiatrist Dr Pratheek Sharma supervised by Dr James Belshaw dated 7 December 2023.
74Your Counsel, Mr De Witt, also relies upon the neuropsychological report of Ms Rachel O’Meara dated 21 February 2020, and a psychiatric report of Dr Prashant Pandurangi dated 29 May 2020. A report of Warren Simmons dated 16 October 2023 was also relied upon on the Plea.
75In his Addendum Submissions dated 29 January, Mr De Witt makes several succinct points based on the materials, which having perused the same I accept and adopt as follows:
i) Historic documents unequivocally establish the manifestation of psychiatric illness and cognitive deficits in your early childhood,
ii) You have been registered with 10 different area mental health services and been subject to two inpatient admissions,
iii) You have attracted numerous diagnoses throughout your life- most commonly Schizophrenia, and you have been subject to involuntary orders including the administering of depot injections
iv) You have an IQ of 72, which is slightly above the range for intellectual disability, however, as Ms O’Meara notes, this was due to slightly higher isolated strengths in some domains and ‘does not negate the clear evidence of significant impairment in intellectual functioning across the remainder of the neuropsychological assessment.’ I accept that your generalised low level of cognitive functioning detrimentally impacts your ability to think clearly and make calm and reasoned decisions and appropriate judgments.
v) Your early life experiences would have resulted in a range of entrenched deficits including difficulties in emotional regulation, general mistrust of others, impulsive behaviour and disregard for others.
vi) I accept that the combination of symptoms associated with cognitive deficit, psychiatric illness, and entrenched deficits as a result or early life experiences, and drug relapse and intoxication – would have contributed towards your decision to drive and the manner of your driving.
76Mr De Witt concedes that yours is not a case where there is a powerful causal link between mental illness and offending.
77He submits that your collective vulnerabilities impair your judgment and capacity to think clearly and make calm and rational choices. He concedes that voluntary drug misuse would have had the effect of aggravating aspects of these symptoms.
78Due to the existence and operation of matters relied upon, apart from intoxication, Mr de Witt submits that these factors would have contributed to your driving and that accordingly, some moderation should be given to your moral culpability.
79Ms Malobabic has also provided helpful Addendum submissions that join issue with this aspect of Mr De Witt’s Verdins submission.
80Ms Malobabic relies upon extracts from the report of Dr Sharma, the report of Mr Simmons and the neuropsychological report of Dr March in support of the prosecution’s ultimate submission that there is insufficient nexus between mental illness and cognitive functioning, and the offending, in a causal or explanatory sense, so as to justify a reduction of moral culpability.
81The prosecution takes similar issue with a submission that limbs 4 and 5 of Verdins have application.
82On a different topic, the prosecution submit that your background does not warrant a meaningful reduction in moral culpability of the kind contemplated in Bugmy.v The Queen [2013] HCA 37.
Analysis
83Your case shares features with many similar cases before this Court. There is a constellation of factors in your life which have contributed to making you who you are, as there are for all of us. Many of those factors are not of your choosing and are beyond your control.
84I accept that childhood experiences have shaped you leading to poor social and educational outcomes, probably impulsivity and difficulty in emotional regulation, but also a vulnerability to substance misuse, manifesting at a young age.
85You are not absolved from responsibility for driving whilst intoxicated, however your addiction and relapse is substantially less blameworthy than for someone from a stable secure background, who was not exposed to what you have been exposed to in your formative years.
86Your cognitive profile is not something you can change.
87Further, I accept that trauma as a child, and the effects of trauma, in particular sexual abuse, continues to affect your experience and responses.
88You suffer Schizophrenia, this you cannot change, but you can manage it by complying with medication.
89In order to adequately understand your personal circumstances and your offending, these factors need to be understood holistically. It is the relationship between these factors, and their effect upon one another, which best explains your criminality.
90Put another way, it is the combination and interplay of all of these factors, and more that could be mentioned, that has shaped you, your behaviours and responses. It is in combination that these factors shape the story of your life, who you are and why you have behaved in this reckless way.
91In that sense the whole, or the combination, is greater than the sum of its parts.
92In a case such as yours it is an impossible task to determine what contribution mental illness and cognitive factors have made to the offending in a causal or explanatory sense in isolation.
93So too, on an analysis of Bugmy mitigation.
94Or indeed a consideration of Bugmy factors and the principles drawn from cases such as R v McKee & Brooks [2013] VSCA 16.
95The relevant parts, in isolation, are reduced as to their effect.
96Accordingly, I am unable to measure a meaningful reduction of moral culpability due to Verdins considerations.
97I am able to conclude that when I assess your moral culpability in light of all of the relevant factors in combination, notwithstanding your voluntary substance misuse and its significant role in the offending, that you are not as blameworthy as an individual whose judgement and capacity to think clearly and make calm, rational choices is not impaired by the constellation of formative and behavioural factors that constitute your circumstances.
98It is an intuitive, logical and perhaps obvious conclusion that moral responsibility for an individual such as yourself, given the combination of relevant factors, is less than for an individual who has not been shaped and influenced by these factors.
99In your case specific deterrence remains a significant factor, particularly given your prior matter to which I have referred already.
100I consider that the Muldrock principles have some application in your case. Based upon the opinions of Ms O’Meara, Dr Sharma, Dr March and Mr Simmons and my acceptance that your functioning lies in a low range, borderline at best, I consider that some moderation commensurate with those findings is appropriate.
Period in Custody
101Both the prosecution and defence submit that limbs 5 and 6 of Verdins are enlivened based upon the opinion of Dr Sharma at paragraphs 43-46 and 71. I have no difficulty accepting the application of these principles.
102Your sentence is moderated due to the hardship in custody arising from these infirmities and the effect of custody upon them.
Guilty Plea and Remorse
103You are entitled to a significant discount for your plea of guilty.
104You pleaded guilty at an relatively early stage and I accept that it is reflective of genuine remorse and a willingness to facilitate the course of justice.
105At the time you entered your plea there was greater utilitarian value attaching to it than was available prior to the pandemic.
106References and reports speak to your remorse in ways which I find compelling. These reports were consistent with my observations of you during the Sentencing Conversation.
107The prosecution accepts you have demonstrated genuine and deep remorse, shame and regret.
Covid 19
108Your time in custody has included periods where the pandemic related restrictions have made the experience of custody more onerous, and I take that into account.
Standard Sentence Provisions
109The offence of culpable driving causing death is a standard sentence offence. The standard sentence is 8 years.
110I have had regard to the standard sentence as a legislative guidepost. My intuitive synthesis of relevant sentencing factors, including my assessment of the gravity of the offending and the mitigation available to you, has led me to a sentence for culpable driving that exceeds the standard sentence, for the reasons set out herein.
111I have accepted your Counsel’s submission that the circumstances personal to you that are explanatory of the offending warrant a substantial disparity between head sentence and non-parole period.
112Notwithstanding my application of this finding the non-parole period I have determined appropriate does not fall below 60% of the head sentence. Justice does not require me to reduce the non-parole period further.
Prospects of rehabilitation
113You are only 24 years of age. You have shown you can be a useful worker. You have good family support.
114You will have NDIS support into the future. You have conducted yourself well in custody, working as a billet, you have a single cell, and you are engaging with cultural pursuits.
115Your interest and connection to your Aboriginal heritage and culture is genuine and positive. It will be a positive factor in your rehabilitation, providing purpose and a network of positive support.
116Notwithstanding these signs of progress towards rehabilitation I am somewhat guarded as to your prospects given your antecedents and my findings as to your cognitive profile.
117You are engaging well with services that are available to you and that is to your credit.
Disposition
118Notwithstanding my assessment of subjective responsibility as compared to others in different circumstances who may engage in such reprehensible conduct –and my application of Muldrock principles to some degree - this remains a crime for which general deterrence and denunciation are significant considerations.
119A significant jail term must follow. You have faced up to that prospect which is to your credit. I sentence you as follows:
120Charge 1: 9 years imprisonment.
121Summary charge 11: 3 months imprisonment. This sentence is to be served concurrently. That makes a total effective sentence of 9 years imprisonment.
122I set a non-parole period of 5 years and 8 months.
123Pursuant to s 18 Sentencing Act (1991) I declare you have served 451 days as pre-sentence detention.
124Pursuant to s 6AAA were it not for your pleas of guilty I would have sentenced you to a period of 11 years with a 9 year non- parole period.
125You are disqualified from obtaining a licence for a period of 5 years.
126I make the finding that you were driving a vehicle whilst intoxicated.
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