Director of Public Prosecutions v Favento

[2024] VCC 86

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01061

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN FAVENTO

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2024
DATE OF SENTENCE:	7 February 2024
CASE MAY BE CITED AS:	DPP v Favento
MEDIUM NEUTRAL CITATION:	[2024] VCC 86

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Legislation Cited:      Drugs, Poisons and Controlled SubstancesAct 1981 (Vic) s. 73(1)(c); Sentencing Act 1991 (Vic) S.5(2)(daa), S.5(2)(db); Crimes Act1958 (Vic) s. 23, s.24

Cases Cited:Papachristodolou v The Queen [2017] VSCA 284; R v Verdins & Ors [2007] VSCA 102; R v Whyte (2002) 55 NSWLR 252.

Sentence: Total effective sentence of 5 years and 6 months imprisonment, with a minimum of 3 years and 8 months imprisonment to be served before becoming eligible for parole. S6AAA: 7 years imprisonment with a non-parole period of 4 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mx Connor Rattray	Office of Public Prosecutions
For the Accused	Mr Sean Kelly	Stary Norton Halphen Lawyers

HER HONOUR:

1Jayden Favento, in the early hours of 11 December 2023 you were involved in a high speed motor vehicle collision. Your partner, Victoria Winsor sustained serious injuries. In the hours prior to this collision your driving also endangered Steve Cauchi who was driving a highly visible safety vehicle designed to manage traffic and ensure the safety of road workers and other motorists. Drugs were subsequently located in your vehicle.

2You have pleaded guilty to:

·        1 charge of conduct endangering persons, which carries a maximum penalty of 5 years imprisonment;[1]

·        1 charge of negligently causing serious injury, which carries a maximum penalty of 10 years imprisonment [2]; and

·        1 charge of possession of a drug of dependence (methylamphetamine), which if possessed for the purpose of trafficking carries a maximum penalty of not more than 400 penalty units and/or imprisonment of 5 years.[3]

[1]Crimes Act 1958 (Vic) s. 23

[2]Crimes Act 1958 (Vic) s. 24

[3]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s.73(1)(c)

3You have also admitted your prior criminal history.[4]

[4]Exhibit B

4Late on the evening of 10 December 2023 you were driving your vehicle around the western suburbs of Melbourne with Ms Winsor.[5] She sent a “snapchat” photo of your dashboard, which depicted that your vehicle was travelling at approximately 200kph. This is an uncharged act.

[5]        Amended Summary of Prosecution Opening for Plea dated 17 September 2024.

5Approximately two hours later in the early hours of 11 December, Mr Cauchi was working on Derrimut Road, Hoppers Crossing, driving slowly in his “Impact Protection Vehicle”. His “IPV” is fitted with flashing lights and a large warning sign on top. Mr Cauchi was in the right hand lane, of the two southbound lanes with his flashing lights on, alerting approaching traffic to reduce their speed to 40kph due to roadworks. He heard a vehicle approaching loudly from behind. He looked to his left and saw a car pass at such a high rate of speed that it shook his 5.5 tonne truck. He blasted his horn to warn his colleagues mowing the lawn on the median strip ahead and contacted a colleague operating another traffic vehicle some 200m away, to warn them of the danger.

6Dash cameras captured your vehicle travelling at an unspecified high rate of speed, in close proximity to the vehicle driven by Mr Cauchi. It is not alleged that you departed from your lane during this passage of driving. The Crown case for this charge is related to this short passage of your driving that night only. It does not extend to your later driving. The conduct forms the basis for the charge of reckless conduct endangering serious injury.

7Later that same morning, you were driving at a high rate of speed along the Princess Highway in Werribee and turned into Synnot Street in a westerly direction. Synnot Street is a sealed, two-way, four lane roadway with parking bays bordering each side of the road. It is in good condition, with opposing lanes separated by a broken painted white line with solid white painted fog lines defining the outer edges of the roadway.

8You entered the intersection with Duncans Road on a green light, but at such speed that your vehicle became airborne and landed on the western side of Synnot Street. Witnesses observed sparks emitted from the undercarriage of your car. You collided with a power pole, splitting it near the base and causing powerlines to fall to the ground. Your vehicle continued to rotate, colliding with the footpath and a tree, splitting the tree at ground level. Your car came to rest at the southwest corner of the intersection with Pine Avenue and Synnot Street, Werribee. This driving constitutes the second charge, that of negligently causing serious injury.

9You and Ms Winsor were taken by ambulance to hospital.

10After the collision, scales, deal bags, cash and a notebook were located in your vehicle. The quantity of methamphetamine in your car (2.76g) was slightly less than a prima facie trafficable quantity. Due to the presence of items which indicate that you possessed the drugs for other than personal use alone, I am satisfied on the balance of probabilities that you possessed the methamphetamine for trafficking of that drug. Therefore the maximum penalty for this charge will be 5 years imprisonment.[6]

[6]Drugs, Poisons and Controlled SubstancesAct 1981 (Vic) s. 73(1)(c)

11An expert in collision reconstruction, Detective Sergeant Ray Hay assessed the collision scene and calculated that your vehicle was being driven at a minimum speed of 167kph approximately five seconds prior to impact.[7]  

[7]Statement of Detective Sergeant Robert Hay dated 11 January 2024 at [18].

12Methamphetamine, amphetamine and GHB was detected in your blood stream after the collision. Dr Jason Schrieber from the Victorian Institute of Forensic Medicine concluded that the concentration of methamphetamine found in your blood was on a high and biologically significant level at which “significant impacts on driving were expected”. He further opined that the presence of methamphetamine created “an appreciable risk such that [your] driving would have posed a risk to the public”, and that “use of the illicit drug methamphetamine at this level would have prevented you from having proper control of a motor vehicle.”[8]

[8]Report of Dr Jason Schrieber dated 14 December 2023 [6.3-6.6].

13As a result of the collision, Ms Winsor received ongoing treatment and care for multiple rib fractures; numerous and complex pelvic fractures requiring extensive surgery; spinal fracture; extensive compound fractures to the legs and feet accompanied by extensive vascular and nerve injury nearing complete amputation and requiring extensive surgery; left arm and hand fractures requiring surgery; bilateral pulmonary contusion and right pneumothorax; and cardiac contusions.

Ms Winsor remained in hospital until her discharge on 19 February 2024.

14A report from Barwon Health Rehabilitation Services dated 5 December 2024, authored by Tamara Jennings outlined that Ms Winsor sustained multiple severe injuries as a result of the collision. Following her acute admission she was referred to the Service’s acquired brain injury rehabilitation team, and required assistance from a range of allied health care professionals as an outpatient. Whilst Ms Winsor can complete her personal care tasks independently, she requires special equipment and takes longer due to her physical disabilities and cognitive impairment. She cannot stand at the kitchen bench to prepare food due to her lower limb fractures and deformity. She cannot do heavier household tasks such as cleaning or gardening. She is unable to drive. She now uses a manual wheel chair but cannot propel herself long distances, so is unable to walk her dogs or go to the shops. Her injuries are very significant and complex and will likely require further surgery.

15A report dated 23 April 2024, and authored by Clinical Neuropsychologist Dr Therese Clark, details the personal impact upon the victim of the traumatic injuries she sustained during the collision, in the context of her complex pre-existing psychosocial history and previous diagnoses. Dr Clark concluded that the symptoms continuing to be experienced by Ms Winsor suggested that she had sustained a traumatic brain injury which exacerbated her pre-morbid weakness. That pre-existing condition could not be excluded from contributing, at least in part to her presentation after the collision.

16The prosecution rely upon these reports as evidence going to the ongoing impact that your offending has had upon Ms Winsor. They submit that this impact includes “psychiatric injury sustained as a result of the offending”.[9]

[9]Supplementary prosecution submissions on sentence dated 24 January 2025, [7].

17The prosecution does not allege that any traumatic brain injury should be viewed as forming part of the Court’s consideration of the “serious injury” arising from charge 2, but they do submit that the impact of the offence on the victim[10] and whether the injury resulted directly from the offence[11] are relevant sentencing considerations. Mx Rattray for the prosecution clarified that they do not urge the Court to find a causal link between the victim’s psychiatric condition and the offending, rather to have regard to the traumatic effect of the collision upon her.

[10]Sentencing Act 1991 (Vic) S.5(2)(daa)

[11]Sentencing Act 1991 (Vic) S.5(2)(db)

18At the plea hearing, I understood that defence did not take issue with a conclusion that the victim “suffered significant mental impact” as a result of the offending, but wished to make further submissions on the point.

19Given that the plea hearing was cut short when the video link to the prison was unexpectedly cut, I gave the parties the opportunity to file further written submissions. In their “supplementary submissions” your counsel outlined that you do not accept that your offending has caused the victim to suffer a traumatic brain injury (TBI) or any other specific mental health diagnosis. Counsel submitted that I must be satisfied beyond reasonable doubt that Ms Winsor suffered from a TBI, and that your offending was causative of that traumatic brain injury.

20Whilst I am satisfied that your offending specifically caused the various traumatic physical injuries outlined above, I accept that I cannot be satisfied beyond reasonable doubt that your offending alone caused or contributed to the cognitive impairment from which Ms Winsor now suffers. I will instead take into account, in a general sense, the impact that the collision and the recovery that Ms Winsor has had from the extensive injuries she sustained, the impact that has had upon her mental health and general wellbeing.

21Victoria Winsor made a Victim Impact Statement, the relevant parts of which were read aloud in Court. She describes the extensive physical and emotional toll that your offending has had upon her life. She has had to endure chronic pain, multiple surgeries and endless rehabilitation. She finds life a struggle and cannot work in a trade, nor pursue her ambition to become a veterinary nurse.

22The Court of Appeal in Papachristodolou v The Queen[12] stated that the objective gravity of the offence of negligent driving causing serious injury is to be assessed  by reference to both the degree of departure by the offender from the standard of reasonable care expected of an ordinary driver, and the seriousness of the injuries occasioned by the driving[13].

[12][2017] VSCA 284 [34].

[13]R v Whyte (2002) 55 NSWLR 252.

23Driving a vehicle at 167 kph in a 60 zone, and at a fast rate through a road work zone, with such a significant cocktail of drugs, in your system represents a significant departure from the standard of reasonable care to be expected of an ordinary driver. That is demonstrated by the collision you were involved in on this occasion. Whilst your driving lacks the hallmarks of the most serious examples of this offence type because it occurred at night when there were limited other road users, you were not prohibited from driving at the time, nor were you driving a stolen vehicle, or in the context of a police pursuit, it is still a significant departure from the standard expected from drivers on our roads.

24The victim’s injuries are very significant, affecting much of her body,  and will have a life-long impact upon her. Whilst very serious however, they fall short of the most serious types of injuries, such as paraplegia, which are encompassed by this offence type. Considering all of these factors I conclude that your offending falls within the high range of objective seriousness for these types of offences.

25The Crown have confined your offending during the endangerment offence, to the short period as you passed by Mr Cauchi and his vehicle. You remained within your own lane. Your speed and self-induced intoxication are aggravating features and I conclude this offending for this charge falls somewhat under mid range of objective gravity for that charge.

26You are now aged 27, and were 26 at the time of your offending. You are the youngest of three children, and raised by your mother in Geelong. Your parents separated around the time of your birth and you only had sporadic contact with your father. You have not had contact with him in recent times.

27You lived with your mother until you were 16, when you began living with your partner. You continue to maintain a close relationship with your mother and siblings. Members of your family supported you in Court and will continue to do so while you are in jail, and upon your release.

28You were expelled from school at the beginning of year 8. You commenced but did not complete a plumbing apprenticeship. You hold a forklift licence, and a Certificate III in construction and training with heavy machinery.

29You have been variously employed in construction, warehousing, welding and as a forklift operator. You were not employed at the time of your offending.

30You were in a long term relationship with a woman 20 years your elder until August 2023. She was not a drug user, and you enjoyed a period of stability at this time. That relationship ended after you relapsed into drug use and began your relationship with the victim in this offending.

31You were introduced to alcohol by your father at the age of 10. You used cannabis from 13 and first tried methylamphetamine at aged 16. The later became a significant addiction in 2023.

32Four references from your mother, brothers and former partner were tendered on your behalf. They are aware of your offending and offer insight into your character and the positive steps you have taken since the collision. They speak of the period before your offending when your relationship broke down and you relapsed into drug use. You have told them of your deep regret for the pain you have caused the victim, together with your desire to use your time in custody productively to complete various courses, and engage in work. They confirm their ongoing support for you upon your release.

33You have tendered various certificates of achievement confirming your completion of programs in prison.

34You have no prior forensic mental health history.

35You were psychiatrically assessed by Associate Professor Rajan Darjee for the purposes of this plea[14]. A/Prof Darjee noticed some evidence of ADHD since early childhood; personality difficulties, and a substance misuse disorder/dependence since adolescence and present at the time of your offending. Other symptoms he concluded were primarily caused by your drug intoxication, and have diminished since your incarceration.

[14]Report of A/Prof. Rajan Darjee dated 20 January 2025.

36Associate Professor Darjee diagnosed post-traumatic stress disorder which was caused by this collision but notes that the ongoing nightmares and flashbacks you were experiencing have diminished over time. Some depression and anxiety precipitated by your subsequent guilt, relationship breakdown and imprisonment continues. He opined that you expressed what appeared to be genuine guilt, remorse and regret for your offending. Coupled with your statements to Justice Staff as outlined in A/Prof Darjee’s report, I accept that your remorse is genuine.

37A/Prof Darjee also notes that your history demonstrated that when you have substantially reduced your substance use, have stable and positive relationships and your mental health is relatively stable you have not reoffended. If you can return to a similar stable environment upon your release from custody I accept that  you are less likely to seriously reoffend.

38A/Prof Darjee observes that being in custody and having limited access to substances has improved your mental health[15]. However he notes that you have not received comprehensive multi-disciplinary mental health treatment and support in custody. He expressed the opinion that your various mental health conditions will make prison more burdensome for you than for other people without such conditions. Mr Kelly therefore submits that limb 5 of Verdins[16]  is enlivened in your case. Having regard to the progress you have made in the custodial setting, and the full contents of A/Prof Darjee’s report, I conclude that whilst imprisonment will impose an additional burden upon you due to your level of impairment, yours’ will not be a significant additional burden. As such I do not accept that the principles in Verdins case ought operate to mitigate your sentence.

[15]At [46]

[16]R v Verdins & Ors [2007] VSCA 102.

39The primary contributing factor to your offending was your acute intoxication and you do not seek to advance that your mental health is mitigatory in any way.

40You entered an early plea of guilty, albeit in circumstances where you faced a very strong prosecution case. However in doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your plea of guilty into account.

41You have a relevant prior matter for reckless conduct endangering serious injury, from December 2015 when you were 18 years of age. I am informed that this involved driving a stolen motor vehicle.  There has been a significant intervening period where you have no recorded offending.  I accept that this was a period during which you remained abstinent from drugs. I do not accept the prosecution characterisation of your prior history as “lengthy”.

42I have taken into account the relevant sentencing principles referred to in s.5 of the Sentencing Act 1991 (Vic). Given your acute intoxication, the seriousness of your offending, in the context of your relevant prior criminal history, community protection is a significant sentencing consideration in your case. This also somewhat increases the weight to be place on specific deterrence in your case. Whilst not a young offender, you are still relatively youthful, and you have demonstrated significant periods in your life when you have been able to abstain from drugs, and remain offence free. If you can again remain abstinent, I consider that your prospects of rehabilitation are reasonable. However given the impact of road trauma caused by substance abuse such as yours has on the community, and the seriousness of your offending in the context of your prior history, general deterrence in your case remains a relevant and significant sentencing consideration.

43Mr Kelly accepts that no sentence other than one involving a head sentence with a non-parole period is appropriate given the seriousness of your offending.

44Mx Rattray made specific reference to the case of Harrison v The Queen[17] where the Court of Appeal considered that current sentencing practices, as at 2015 failed to reflect the objective seriousness of examples of that offence which fell into the upper bracket of such offences. They also referred the Court to Sentencing Advisory Council  statistics, Papachristodoulou[18] and more recent jurisprudence referred to therein.

[17][2015] VSCA 349.

[18]Ibid.

45The two driving offences are separate and distinct, but occurred on the same night, and are similar in character. The drugs charge, whilst separate offending, is contextual to the offending. The principal of totality requires significant concurrency between the sentences I will impose.

Sentence

46Jayden Favento I sentence you as follows:

47On charge 1 (Conduct endangering) you are convicted and sentenced to 18 months imprisonment.

48On charge 2 (negligently causing serious injury) you are convicted and sentenced to 4 years and 9 months imprisonment. This is the base sentence.

49Nine months of this sentence is to be served cumulatively upon the base sentence imposed in respect of charge 2.

50On charge 3 (possession of a drug of dependence) you are convicted and sentenced to 3 months imprisonment. This term is to be served concurrently with the base sentence imposed on charge 2.

51That is, the total effective sentence is 5 years and 6 months imprisonment.

52I order that you serve 3 years and 8 months before being eligible for parole.

Pre-Sentence Detention

53Pursuant to s 18 of the Sentencing Act 1991, the period of 226 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court records.

Section 6AAA Declaration

54Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of  7 years imprisonment with a non-parole period of  4 years and 9 months.

Ancillary Orders

55I make the forfeiture  and disposal orders sought by consent.

56I find that your offending was committed whilst you were under the influence of a drug, and your intoxication contributed to your offending. I direct that this finding be notified to the Secretary of the Department of Transport.

57I cancel your drivers’ licence and disqualify you from driving a motor vehicle for four years from todays’ date.