Director of Public Prosecutions v Elmer
[2022] VCC 1694
•30 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 20-01756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ELMER |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2022 |
DATE OF SENTENCE: | 30 September 2022 |
CASE MAY BE CITED AS: | DPP v Elmer |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1694 |
REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:Community Corrections Order – 2 years; 200 hours unpaid work, assessment and treatment for drugs, programs to reduce reoffending. Fine of $2000, 4-year licence disqualification.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Stewart | |
For the Accused | Mr J. Lavery |
HIS HONOUR:
1Michael George Elmer, you have pleaded guilty to one charge of failing to stop after a motor vehicle accident and one charge of failing to render assistance after a motor vehicle accident.
2In addition, you pleaded guilty to two related summary offences, one charge of careless driving, and one charge of unlicensed driving.
3The facts of your offending are set out in Exhibit A, the summary of prosecution opening for plea. I was advised by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.
4Very briefly stated, on Wednesday 13 March 2019 at about 9.36 pm, you were driving a B-double truck in a north easterly direction on the Hume Highway near Glenrowan at a speed of between 100 and 110 kilometres per hour. It is a 110 zone.
5You failed to keep a proper lookout. You were distracted from the road ahead and came up behind an historical, amphibious army vehicle called an Alvis being driven at about 80 kilometres per hour, also in a north easterly direction.
6You saw the Alvis at the last minute, braked hard leaving 20 metres of tyre marks and collided with the rear of the Alvis, knocking it off the road where it rolled several times down an embankment and into a paddock, finishing some 30 metres from the road.
7The driver of the Alvis, Mr Graham Arkle, was thrown out of the vehicle through a roof hatch. He sustained extensive severe injuries including a broken leg, shattered pelvis, a fractured sternum, eight fractured ribs, fractured vertebrae, de-gloving of the groin and perineum and injury to his left knee.
8After the collision he lay injured for one hour and 40 minutes, unable to move until he was located by the police. You failed to immediately stop your vehicle. You advised a truck driver friend by radio that you had, 'just choofed someone' and asked him to stop. You pulled up your vehicle at a gravel parking area 4.2 kilometres from the scene of the collision. Your friend also parked his truck at that location.
9After some discussion with him you rang the police, who arrived at your location at 10.10 pm. They saw the tyre marks and debris of the collision scene at about 11.16 pm and located Mr Arkle. He was airlifted to the Alfred Hospital in a critical condition.
10You were interviewed by police on 15 March 2019, and you told police you looked down to get something or to scratch your leg and the next moment, 'boom, I was on him'. You could not remember seeing any tail lights and had no idea what happened to the vehicle you hit after the collision.
11The right tail light of the Alvis was not illuminated at the time of the collision, nor was it fitted with a seat belt.
12You have admitted a prior criminal history in Victoria, you were convicted at Broadmeadows Magistrates' Court in March 2007 of possess amphetamines and exceeding the drive work time and log-book entry offences.
13In October 2012 you were convicted of dishonesty offences and again possession of amphetamines.
14In August 2015 you were convicted at Wangaratta Magistrates' Court of possession Stanozolol, an anabolic steroid, using methamphetamine, careless driving, failing to give name and address and unlicensed driving. You were fined an aggregate of $1,500.
15Your Road Safety Act history describes this offending as including a charge of leaving the scene of an accident. Your counsel informed me that this offending involved a minor collision between two trucks. You spoke to the other driver, then left the scene before providing your details to the owner of the other truck.
16You also have a conviction in March 2015 for driving with drugs in your blood and/or oral fluid. Your licence was cancelled, and you were disqualified from driving for six months.
17In 2012 you were convicted of failing an oral fluid drug test, losing your licence for six months. You have speeding prior convictions from last century.
18In New South Wales you have convictions for possession of prohibited drugs in 1994, 2007, 2008 and 2012.
19In 2018 you were convicted for being a solo driver who failed to rest as required, and for driving a vehicle with an illicit drug present in your blood. You were disqualified from driving for six months from 22 October 2018. It follows that you should not have been driving on 13 March 2019. You have however only been charged with unlicensed driving as at that time.
20Victim impact statements were tendered by Graham Arkle, his daughter Joeline O'Connell, his son-in-law Clint O'Connell, his daughter Roxanne Zeigler, and his wife Josephine Arkle.
21Those victim impact statements demonstrate the horrific long-term injuries that Mr Arkle has suffered that have shattered his life and the lives of his family. His daughter Joeline summed it up by saying, 'We all feel devastated that one car crash can take away so much from so many'.
22You are not being sentenced for causing Mr Arkle's extremely serious injuries. Those injuries are the result of your careless driving, but you are not facing any charge for causing them. Your indictable offences relate to your failure to immediately stop and failing to provide assistance to Mr Arkle.
23I accept your counsel's submission that your offences represent lower-level examples of these offences. You did stop your vehicle within a matter of minutes. You did contact police. The injuries sustained by Mr Arkle were such that you could not have provided any real assistance to him. However, you would have been able to locate him sooner and he would have been spared the extended time lying injured, unattended in the paddock.
24Personal History.
25You are now 59 years of age being born in Beechworth in April 1963. Your father was a truck driver however unfortunately died when you were 14. You had lost your mother when she died when you were only three years of age. You have no siblings. You left school after completing Year 8 level and found employment with your uncle's transport business and so you have been a professional truck driver for over 40 years and your prior criminal history can be seen in light of that activity.
26You have been with your partner for some 30 years and you have two daughters, one 22 with two children of her own, and one 15 who is still at school and lives with you and your wife in Beechworth.
27You have not driven since March 2019 because it was a condition of your bail that you not drive. You live in Beechworth, as I said, but have obtained work as a fitter with a Wangaratta tractor repairer and you are driven to and from Wangaratta with a fellow employee. Your wife works in food services with Albury and Wodonga Health.
28Your counsel relied upon the written submissions he made upon the Sentencing Indication hearing, Exhibit 1 on your plea.
29I take into account in sentencing you your pleas of guilty. By pleading guilty you have saved the community the time and expense of a criminal trial and Mr Arkle the trauma of giving evidence at that trial.
30Your pleas of guilty evidence your remorse for your actions and your acceptance of responsibility for those actions. You are entitled to a reduction in sentence to reflect those pleas of guilty. The value of those pleas of guilty is greater because of the effect COVID-19 has had upon our legal system. Your pleas have a greater utilitarian value.
31Secondly, I take into account the delay that has occurred in finalising this matter. You had serious charges hanging over your head for three and a half years. When the prosecution withdrew the allegation of dangerous driving causing serious injury, the matter resolved. During that period, you found gainful employment, settled your life into a life that will not involve you driving trucks again.
32Your counsel submitted that a properly constructed community corrections order would properly recognise all sentencing considerations in your case. I accept that your prospects of rehabilitation are good. You have started the life that does not involve driving, you have employment, and you have family support.
33In the leading decision of The Queen v Boulton[1] the Court of Appeal gave guidance to judges of this court as to the way in which community correction orders can be used. At paragraph 2 the court said:
The community corrections order is a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously. The community corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of reoffending by promoting the offender's rehabilitation.
[1]The Queen v Boulton [2014] VSCA 342
34At paragraph 108 of that judgment the court said:
In addition, imprisonment is often seriously detrimental for the prisoner and hence for the community. The regimented institutional setting induces habits of dependency, will lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation with convicted criminals operates as a catalyst for renewed criminal activity on release.
Self-evidently, such consequences are greatly to the community's disadvantage.
35At paragraph 131 finally, the court said:
It follows from what we have said that a community corrections order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, such as for example, aggravated burglary, intentionally causing serious injury, some form of sexual offences involving minors, some kinds of rapes, and some categories of homicide. The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offending, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, which afford the best prospects for rehabilitation.
36In my view, those statements have application in your case. The prosecution submitted that a sentence involving a term of imprisonment was required to be imposed on your failing to stop charge, and that a combination sentence of a term of imprisonment and a community corrections order was within range for your offending.
37I have given that submission serious consideration. I am however finally unable to conclude that imprisonment is the only option in your case. I cannot impose a term of imprisonment unless I am satisfied that imprisonment is the only available option. In my view, the principles set out in Boulton have clear application in your case.
38I have been particularly concerned to recognise that the injuries, serious as they sustained by Mr Arkle, should not dictate a gaol term in this case, because you are not charged with causing them.
39I have had you assessed for your suitability to undergo a community corrections order and you have been found suitable for such an order. Significantly, you were found to be of low risk of reoffending.
40The sentences of the Court are:
41On Charges 1 and 2 of failing to stop after an accident and failing to render assistance after an accident, you are Court of Appeal to undergo a community corrections order for two years.
42The conditions of that Order are that you are to perform 200 hours of unpaid community work. You are to undergo assessment and treatment for drugs. You are to undertake programs to reduce reoffending. The hours involved in the treatment and courses can count against the unpaid community work hours.
43You are to report to Wangaratta Community Corrections Services at 119-121 Murphy Street, Wangaratta within two days. I would recommend that you go tomorrow.
44On the summary charge of careless driving, you are fined $1,000 and on the charge of unlicensed driving you are fined a further $1,000.
45On both indictable charges I order that any licence you hold shall be cancelled and you are disqualified from obtaining a licence for four years from today.
46Pursuant to s6AAA of the Sentencing Act 1991 I indicate that but for your pleas of guilty I would have imposed a term of imprisonment and a community corrections order for your offending.
47Are there any other orders required, Ms Stewart?
48MS STEWART: Nothing further, Your Honour.
49HIS HONOUR: All right. Now, Mr Elmer, do you consent to such an order? What we will do is send the community corrections order to Shepparton Court, have you sign it and have it returned to me. Do you understand? I cannot hear – all right, thank you. You need to understand this. If you do not comply with that order or you commit any other offence during the course of the next two years, you will be brought back in front of me for resentencing and you do not want that to happen. Do you understand?
50OFFENDER: Yes, I do.
51HIS HONOUR: All right, thank you. Well, the order will be sent to you shortly and the registrar will come and see you and have you sign the Order. All right, thank you, I can terminate the link.
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