Director of Public Prosecutions v Evans
[2022] VCC 1135
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00154
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT EVANS |
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JUDGE: | LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 July 2022 | |
CASE MAY BE CITED AS: | DPP v Evans | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1135 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; DPP v Callick [2019] VCC 2143.
Sentence: 7 years and 10 months imprisonment/ Non-parole period of 5 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
1Trent Evans, you have pleaded guilty to one charge of Culpable Driving Causing Death which carries the maximum penalty of 20 years imprisonment.[1]
[1] Crimes Act 1958 (Vic) s 318(1).
2You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
3Culpable Driving is a standard sentence offence, which carries a standard sentence of 8 years.
4Culpable driving is also a category two offence. This categorisation is not particularly important in this case, as your counsel, Mr de Kretser, very properly conceded that the seriousness of your offending requires me to impose a term of imprisonment with a head sentence and non-parole period.
Circumstances of Offending
5The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
6On 27 February 2021 at about 2:45 to 2:50 pm, you were driving a black 2006 Mercedes Sedan westward along Barkly Avenue, Burnley.
7As you passed through the intersection of Gibdon Street and Barkly Avenue, you failed to negotiate the curve and crossed into the left-hand lane, rotating in a clockwise direction and striking a timber power pole on the footpath.
8The pole snapped off at ground level. The vehicle rolled onto the driver’s side roof and came to rest on its wheels.
9The front seat passenger, Rex Willox, died at the scene due to multiple injuries sustained in the collision.
10Passers-by came immediately to your aid and that of Mr Willox. It appears that Mr Willox was already dead at that time. You told those who attended, and repeated to the police, that you had been drinking and that you were the driver of the car. You said that you drove, as you are sober, or the more sober of the two of you. You took responsibility for your actions. When you were cautioned by police, you stated to the effect that you were not worried because you had told the police the truth.
11You underwent a preliminary breath test which indicated the presence of alcohol.
12You provided a blood sample which returned a blood alcohol reading of 0.13%. You spent three days at the Alfred Hospital.
13You made a no-comment interview.
14At the time of the offence, you were the holder of a full and current Victorian Licence.
15Barkly Avenue is a flat road with no visibility issues. Speed signs displayed the 60km/h speed limit. The road was dry and the weather was fine.
16Police collision experts examined the scene. It has been estimated that you were driving at approximately 112km/hr at the point of the loss of control. The critical curve speed calculated for the centre of the right-hand curve on Burnley Avenue was approximately 91 km/hr.
17I find that you were under the influence of alcohol at the time of the collision.[2]
[2] Sentencing Act 1991 (Vic) s 89C.
18Mr Willox’s sister declined to make a victim impact statement, but only because she felt that she would struggle to find the words to express her grief at the loss of her brother. I find those words in themselves to be an eloquent summary of the loss that she feels because of your criminal conduct.
Standard Sentence Principles
19I turn now to a consideration of the standard sentencing scheme:
(a) The scheme provides for a standard sentence of 8 years on Charge 1;
(b) I must set a minimum term of 70% of the sentence unless I consider that it is not in the interests of justice to do so;
(c) The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;
(d) Objective factors exclude consideration of matters personal to you as an offender or to a class of offenders. Rather it is determined wholly by reference to the nature of the offending;
(e) In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.
In this way, it is an additional factor to consider in the sentencing process;(f) Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences; and
(g) This does not limit the matters which I must or may take into account in determining the appropriate sentence. Nor is it intended to affect what is known as the instinctive synthesis process. The standard sentencing scheme may be considered as a guidepost in the sentencing consideration. However it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration.
Objective Gravity and Moral Culpability
20I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
21Little need be said about the gravity of your offending. It is sufficient to say that you were driving at just under twice the legal speed limit in a built-up area. Moreover, you did so when your blood alcohol content was well over double the legal limit. It is also enough to repeat again the opinion of the medical expert Dr Sungaila: as a consequence of your level of intoxication, you were incapable of exercising proper control over the car you were driving. So much is reflected in the indictment to which you have pleaded guilty.
22The speed at which you drove and the alcohol in your system at the time you drove each constitute very serious breaches of the criminal law in their own right. However, when they are combined, they make the objective seriousness of your offending very grave indeed. Furthermore, the consequences of your actions resulted in the death of your passenger. I accept that the decision to drive was made spontaneously.
23Taking these factors into account, the Crown submits that your offending sits at the mid to high range of objective seriousness.
24You have previous infringements for a number of speeding offences dating back to 1995 and convictions for drink-driving offences in 2003, 2004 and 2005. On the last occasion, you were convicted in the Albury Local Court with high-end drink-driving. You received a suspended sentence.
25Although they are relevant to your offending, I do accept that your prior convictions are somewhat dated. I also accept that you did not drive a car between 2005 and 2016. Nevertheless, from your previous exposure to the legal system, you were fully aware of the consequences that flow from drink-driving and speeding and, of your responsibilities as a driver.
26These matters must be taken into account in my assessment of your offending, even if it is only to a limited extent.
27I will return to a further consideration of your moral culpability after I have outlined the submissions made by Mr de Kretser on how your psychological vulnerabilities should impact the sentencing process.
Personal Circumstances
28You are 45 years of age, being born in March 1977.
29Your father worked as a builder and your mother worked at a newspaper. You have one older sister. Some aspects of your childhood were difficult. You perceive that you did not receive the emotional support that you required. Your father was often away from the family home and your sister left home when you were young due to a conflict with your parents.
30You do not have a close relationship with your sister. Your relationship with your parents has improved in recent years and they have and will support you during your time in custody and upon your release.
31You were a hard worker as a teenager, working in cinemas, and got some work experience in a newspaper.
32You excelled in your academic studies and were Dux of your school in year 11.
33After leaving school, you started a cadetship with a newspaper. You excelled in journalism, winning a Rotary Award for best news story in 2005 whilst you worked for Channel 7 in Melbourne, and then in 2014 you were a runner up in those awards for a story you produced for Channel 7 Queensland. You have worked in numerous newsrooms across Australia; in regional areas and cities as a newsreader, reporter and producer. You have worked as a journalist for local papers and for the Herald Sun.
34Between 2010 and 2017 you worked for Seven Network in Queensland as a journalist/producer, producing and reporting on stories that went live to air and managing staff. Although you found the work rewarding, you also found it very stressful working in a high-pressure environment.
35In 2016 you suffered a mental health crisis and spent nearly 2 weeks as an inpatient at the Nambour General Hospital. You were treated with antipsychotic medication. You had difficulty with your speech and became paranoid. Your life became unstable. You travelled back to Melbourne to stay with your parents before returning to Queensland.
36You returned to work in November 2016 and remained under the care of a psychiatrist and psychologist. You were able to work for a while but then resigned from your job in 2017 when you were unable to cope with its demands.
37You returned to Melbourne and worked for a local paper group as a reporter but you had lost the role in television media which had provided you with structure and purpose. You found that your new role was not part of a team and was isolating. You lost your job in early 2018 and became homeless.
38You began drinking alcohol during your teenage years on social occasions. In 2017, you developed Hepatitis A and you stopped drinking until the day of the incident.
39You used amphetamines occasionally during your early twenties. You were introduced to methylamphetamines in 2007 but did not use them again until 2018. You also have a history of GHB usage in 2017 and 2018. This history of drug use is important to what happened next in your life.
40From November 2018 to 2021, your life hit what you thought was its nadir. You engaged with Anglicare homeless support service to access general amenities such as showers, laundry and meals. You were referred to Alfred Mental Health Services in 2019. In these years you were at times assaulted and suffered the vicissitudes of life on the streets. You were using methamphetamines at this time, which the medical records note in 2019 and 2020 contributed to observations of your agitation and psychosis. You presented to hospital on numerous occasions in 2018 / 2019 after you had been assaulted.
41You were however fortunate to meet social worker, Sarah Ward in 2018 through Anglicare. Ms Ward has remained your perhaps closest, strongest and most constant support to this day over these years. She reports that at first, you presented as highly anxious and fearful through the shock and chaos of your homeless predicament. You lacked insight regarding your mental health and your substance abuse.
42As I have already said, prior to May 2021, you spent periods of homelessness or in crisis housing at various motels and boarding houses. Ms Ward and Anglicare were instrumental in arranging stable accommodation for you through Launch Housing.
43Finding stable housing, and undertaking psychological counselling with Mr Grech and alcohol / drug counselling with Ms Burnett, led Ms Ward to write of your turnaround:
… he has developed a complete understanding of the gravity of the charges and the dire consequences for Mr Willox’s family. This has been a difficult and brutal process for Mr Evans however he has demonstrated a high degree of honesty and self reflection and has expressed acceptance of his fate and the penalty that will be imposed by the court. Quite pointedly, he has spoken at length about the remorse he feels and has openly expressed that he will never forgive himself for the permanent loss, grief and sadness his actions have brought about for others.
44You used methylamphetamines after 27 February 2021 and you were charged for breaching your bail by drug use. In November 2021 you were fined $300 without conviction.
45You are supported in the community by friends, your parents and in particular (as I have noted) by Ms Ward. I have read the references provided by your parents, your friends,a former work colleague and references of Ms Ward and Lucy Burnett, AOD counsellor. It is apparent that after the sentence you face, you will have solid support in the community. It is also apparent that you have time and again demonstrated significant remorse for your offending.
46I am satisfied that, based upon these expressions, the insight observed by Dr Pandurangi and the letter of apology to Rex Willox’s family, you are remorseful.
47I received the report of Dr Pandurangi dated 20 June 2022. Dr Pandurangi prepared an earlier report (which I have not read); took a history from you on 1 June 2022 and reviewed a vast amount of material the depositions and extensive medical records.
48Dr Pandurangi observed that you have a reasonable insight into your predicament. He noted that he suffered lifelong anxiety and stress and difficulty in sustaining age-appropriate intimate relationships. He noted history where you have felt ostracised since your schooldays.
49Dr Pandurangi concluded that you suffer from a moderate personality dysfunction, and will require psychological treatment in the foreseeable future. Dr Pandurangi also concluded that you suffer from post-traumatic stress disorder as a result of the collision in which Mr Willox was killed and polysubstance abuse in remission. Dr Pandurangi noted an earlier diagnosis of anxiety disorder and depression but concluded that it was not supported by the information supplied.
50Dr Pandurangi was asked to provide an opinion about the relationship between your mental state (being a mental disorder) and your offending. Dr Pandurangi noted your alcohol consumption on the morning before the collision and blood alcohol reading after the collision, and Dr Sungaila’s conclusion that you would have had lost your tolerance to alcohol after abstaining for three years until the day of this offending. Dr Pandurangi concluded on the question asked at [68] of his report:
some aspects of his personality dysfunction such as poor or impulsive decision-making, or being unable to appreciate the potential consequences of his actions which were accentuated by an intoxicated state, would have contributed to this offending.
51Mr de Kretser relies on this observation to engage principle 1 of Verdins.[3] He relies on the diagnosis of your personality dysfunction and PTSD to submit that you are likely to experience prison as more onerous compared to others who do not suffer from these conditions. He further relies on Dr Pandurangi’s observation that the availability of general psychological treatment which is a mainstay of managing personality dysfunction and post-traumatic stress in a prison setting is inconsistent and likely to depend upon which prison you are held.
[3] R v Verdins & Ors [2007] VSCA 102.
52I shall return to the question of Verdins after I have considered the rest of the submissions made on your behalf.
Sentencing Submissions
53Mr De Kretser who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:
(a) The plea of guilty was entered at the earliest available opportunity, and has significant utilitarian value. You were cooperative with police upon arrest and you made admissions at the scene;
(b) You have exhibited remorse for your offending. Remorse is demonstrated by your guilty plea, cooperation with authorities and disclosures made to professional support, family and friends;
(c) Dr Pandurangi noted that you expressed guilt associated with the incident and that you have reasonable insight into your offending. You have experienced sleep disturbance due to nightmares related to past assaults and the car accident;
(d) The plea was during the COVID-19 pandemic.[4] The courts have stated that recognition must be given to those who plead guilty and have their matters finalised during the currency of the pandemic. The recognition must take into account of the restrictions on movement in prisons, the use of isolation as a strategy to limit the spread of the virus, the reduction in courses available and work for prisoners, the reduction or cessation in contact visits, and the fear of catching the virus in the close prison environment;
(e) Based on Dr Pandurangi’s report, and the matters outlined by Ms Ward and Ms Burnett, principles 1, 5 and 6 of Verdins should operate to mitigate your sentence;
(f) Your risk of reoffending has decreased since you gained insight into your mental health. Further, you have good network of support of family and friends and a good work background. As such, your prospects for your rehabilitation are good;
(g) The widespread media scrutiny of your offending has made your time in prison more anxious. This has increased the burden of your imprisonment. To a lesser extent, Mr de Kretser submitted that your future job prospects would likely be diminished by the publicity; however, I pointed out that you had already stepped away from your career in journalism years earlier;
(h) This is your first time in prison. You were placed in isolation upon reception and had a building fear and anxiety of mixing with the prison population; especially in light of the media scrutiny your case received. Your anxiety is heightened by your mental health issues; and
(i) Ms Ward provides solid evidence of your insight remorse and determination to make good your rehabilitation on your return to the community.
[4] Worboyes v The Queen [2021] VSCA 169 at [39].
54Ms Churchill, who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.
55Ms Churchill submitted that the objective gravity of your offending is high. Ms Churchill referred to the photographs tendered on the plea to show the extent of damage to the vehicle and to highlight the reality of the collision.
56Ms Churchill further submitted that your moral culpability is high. The Crown does not concede the application of the first principle in Verdins. Rather the Crown submits the collision was caused by the combination of high speed and your incapability of driving because of your high alcohol intake.
57The Crown concedes that the following matters are relevant to mitigate your sentence:
58The Crown concedes the application of principles 5 and 6 in Verdins should operate to mitigate the sentence I impose upon you;
59Ms Churchill submitted that your plea of guilty was made at an early time and that you have demonstrated remorse. The sentence I impose should recognise the utilitarian benefit of your plea and it was made during the pandemic;
60The Crown further concedes that your prospects for rehabilitation are favourable.
61I was referred to a number of comparable cases. In particular, the Crown points to the sentence imposed by Judge Hampel in DPP v Callick[5] as the most similar to your circumstances.
[5] DPP v Callick [2019] VCC 2143.
Analysis
62I am satisfied that the submissions made on your behalf should each be taken into account to mitigate your sentence; with the exception of the submission as to the operation of the first principle in Verdins.
63The first principle of Verdins requires me to be satisfied that:
The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.
64In my view, Dr Pandurangi’s opinion does not provide me with a sufficient degree of satisfactionais to either how, or the extent to which the aspects of your personality dysfunction, namely poor or impulsive decision-making and an inability to recognise the consequences of your actions ‘would have’ (my emphasis) contributed to your offending. Rather, I am satisfied that Dr Sungaila’s opinion; namely, that a blood alcohol reading of 0.130%, and the loss of tolerance from your abstinence from alcohol for three years, meant that you were incapable of having proper control of the car that you drove. Then, your high alcohol reading, combined with the speed at which you drove provides the overwhelming reasons for the cause of your negligence and your moral culpability for this serious offending. There is simply insufficient information before me to determine the extent to which, if any, your personality dysfunction and the matters raised by Dr Pandurangi contributed to the offending and other matters such as the decision to drink in the first place and then the decision to take the car out and the decision as to which of the two of you should drive.
65In the circumstances, I consider your moral culpability is high. I have not completely dismissed the submission that your personality dysfunction contributed to the peripheral questions I have posed, this but it is impossible to measure the extent of its influence.
66Objectively serious offending of this nature must be met by principles of deterrence and denunciation. I will take into account specific deterrence, but, as I have noted, your prior convictions for drink-driving were at least 16 years old at the time of your offending.
67It follows from what I said a few minutes ago that your sentence must be mitigated by your early plea of guilty, your remorse and insight into your offending, the fact that the plea was made during the Covid pandemic, the operation of principles five and six in Verdins and your prospects for rehabilitation.
68In relation to Verdins, I am satisfied that as a result of your mental health issues, your time in prison will be more onerous or burdensome when compared to the general prison population.
69I have looked at the comparable cases provided by the Crown and I have especially looked at Callick. In the end, the sentence I impose upon you must take into account the objective circumstances of your offending and the matters personal to you. I should not be overly influenced by the decisions in other cases.
70I have taken into account the factors applicable to the imposition of a standard sentence. As I have noted, the standard sentence is only one of the factors that must be taken into account.
71In the end, I have decided that the sentence I impose should be less than the standard sentence provision; albeit only very slightly less. In my view, this sentence I impose must give some weight to the mitigating factors and in particular the Verdins factors to which I have referred. I have decided that the interests of justice are better served by imposing a non-parole period of less than 70%. Again, my decision to impose a non-parole period of less than 70% is designed to give you the opportunity to spend a slightly longer period than 30% of your overall sentence on parole if you are afforded the opportunity of release after serving your non-parole period. My decision takes into account the mitigating factors that I have outlined together with the fact that this is your first period of imprisonment, and that the Verdins principles and plea during COVID must be given real, and not simply a perfunctory, acknowledgement.
Orders
72Accordingly, I make the following orders:
73On the charge of culpable driving, you are convicted and sentenced to 7 years and 10 months (94 months) imprisonment. I order that you serve 5 years and 2 months (62 months) before you are eligible for parole.
74I order that you are disqualified from holding a licence for a period of 4 years.
75I reckon the pre-sentence detention of 18 days as already served.
76The 6AAA declaration is that but for your plea of guilty, I would have sentenced you to a period of 10 years and 3 months , with 7 years and 3 months to serve.
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