Director of Public Prosecutions v Forrester

[2023] VCC 1699

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

AT SHEPPARTON

CRIMINAL DIVISION

CR-23-00191

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON GAVIN FORRESTER

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Shepparton
DATE OF HEARING:	1 August 2023
DATE OF SENTENCE:	8 August 2023
CASE MAY BE CITED AS:	DPP v Forrester
MEDIUM NEUTRAL CITATION:	[2023] VCC 1699

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – Guilty plea.

Catchwords:              Sentence – Koori Court Jurisdiction - Culpable driving causing death – Related summary offences - Plea of guilty – Genuine remorse – Dysfunctional and deprived upbringing – Application of Bugmy principles - Substance abuse – Cultural engagement - Good prospect of rehabilitation - General deterrence – Genuine remorse – Need for specific deterrence reduced.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R vBrown [2018] VSC 742; DPP v Hill [2012] VSCA 144; DPPvReid [2020] VSCA 247; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:Total effective sentence 8 years imprisonment with a non-parole period of 4 years 10 months; 492 reckoned as already served; In accordance with s 6AAA of the Sentencing Act 1991 (Vic) but for the plea of guilty the sentence imposed would have been 12 years and 6 months with a non-parole period of 7 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	A. Moore	Office of Public Prosecutions
For the Accused	J. Barreiro	Angus Cameron Lawyers

HIS HONOUR:

1I acknowledge that the Court sits today on the lands of the Yorta Yorta and Bangerang people. I pay my respects to their Elders, knowledge holders and respected persons, past, present and emerging.

2Tyson Gavin Forrester, you have pleaded guilty to one charge of culpable driving, causing the death of Raygen McDonald, and to summary charges of driving as a learner without an appropriate supervisor, driving an unregistered vehicle, and driving a vehicle without any registration plates displayed. All this arose from a collision on 3 April 2022.

Summary of offending

3The agreed basis for your guilty plea is set out in the prosecution opening dated 3 July 2023, and I summarise that as follows.

4By the late hours of Saturday night 2 April 2022 you had been using methylamphetamine and were affected by that drug, yet you were driving a Falcon sedan around Shepparton.

5At around 11:45 pm, having purchased fuel for the car at the service station on Numurkah Road, you were seen to drive off alone.

6However, by about 12:50 am, early on Sunday 3 April 2023, Waylon Kells saw you doing burnouts in the Falcon near the corner of St Georges Road and Vaughan Street with a passenger in the front seat.

7By your plea, you accept that the passenger was Raygen McDonald, a 19-year-old young woman who you had known for some years and who was living at a unit on Vaughan Street close by.

8An hour later, at about 1.40am, you were driving south on Central Kialla Road near number 860. Ms McDonald was seated, not wearing a seatbelt, in the front passenger seat.

9That stretch of sealed road consists of two lanes, in good condition. It was dry and the weather was fine. There was no road-side lighting, so it was dark and a 100 kph speed limit applied.

10As you approached a dark patch and a slight depression in the road, you were travelling at a minimum of 166 kilometres per hour. You hit the depression at high speed, causing the under-carriage of the car to strike the road surface about 26 metres later as the car bounced after the dip.

11A reconstruction expert called this a ‘bump steer’, equivalent to you suddenly steering the car to the left or right, causing the car to lose control. As the expert stated, this would not have happened if you were not going so fast.

12After a further 28 metres or so, marks on the road show that you had, in fact, lost control. The car careered a further 88 metres across the opposing lane and into trees on the other side of the road. On impact, it was torn apart into three pieces.

13Having extricated yourself from the driver’s seat, you were found a couple of minutes later about 500 metres down from the collision scene by a taxi driver. She picked you up and was taking you back towards Shepparton when you said, “I’ve got to get the girl out.” You were clutching your arm to your chest and had blood all over your face, head and neck.

14She stopped near the wreckage and called 000. You waited in the taxi until the emergency services arrived and treated you.

15Police found Ms McDonald trapped in the wreckage in a paddock 50 metres from the initial collision. She was fatally injured and had died at the scene.

16You admitted to Police that you were the driver of the vehicle and they arrested you. You were seriously injured, so the ambulance took you to the Goulburn Valley Hospital and you were later airlifted to the Alfred Hospital in Melbourne for treatment.

17At about 2.43am, hospital staff took a sample of your blood and later analysis showed you to have, at that time, 0.79 milligrams per litre of methamphetamine in your blood. An expert toxicologist observed that this was highly likely to significantly impair and adversely affect your ability to drive. Further, they stated that your risk-taking behaviour – driving at such high speed – can be linked to the effects of methamphetamine.

18In the circumstances of your speeding and the effect of drugs in your system, as you have admitted by your plea, you were incapable of having proper control of your car. And so it is that you are responsible for Ms McDonald’s death (charge 1, culpable driving).

19I note that a mechanical expert examined the wreckage and, based on what was available, was not able to identify any faults with the car that might have contributed to your loss of control.

20At the time of the collision, you were a holder of a current Victorian Learner’s Permit and were not driving with an experienced driver supervising you (summary charge 2). The registration on the Falcon had expired on 13 January 2019, so it was unregistered (summary charge 11), and the registration plates on the car were for another vehicle (summary charge 12).

21It is an utter tragedy that by your choices on that day, and your driving, that you have caused the death of Raygen, your friend. It is a connection and a burden you will bear for the rest of your life.

22More so, Ms McDonald’s family have suffered a terrible loss. They have described the impact of your offending in their victim impact statements (Exhibit 1).

23Raygen’s mother, Adele, wrote of the unbearable sadness and despair which has been inflicted on her family. She said Raygen was a passionate, strong, and intelligent girl, and a remarkable daughter. Adele is reminded of Raygen, and her future, dreams, and aspirations everywhere she looks. In her grief, Mrs McDonald has been unable to work and has delayed her plans for further education. She feels constantly overwhelmed and has not been able to engage emotionally with family, patients and friends as much as she would like. Graciously, she stated her wish for you to learn and grow from this tragedy, and to educate others on the horrific impact of dangerous driving.

24Raygen’s father Mark wrote of his feelings of helplessness. Helplessness to ease the pain and suffering of his family, or even to overcome his own grief. He has stopped pursuing his interests, particularly those he used to enjoy with Raygen. His heartbreak and guilt have impacted on his relationship with his family.

25Raygen’s eldest sister Zoe, in a poem, wrote of the deep connection between sisters and her physical and psychological pain in Raygen’s absence. She has stopped driving and working and is depressed and physically frail.

26Raygen’s brother Jesse wrote of his sadness, anger, frustration, disappointment, and regret. He is devastated by the fact he will never be able to see or hug his little sister again.

27Raygen’s younger sister Mia wrote of her profound loneliness without Raygen. Her faith has been shaken and she is confused. She has required intensive counselling and other treatment.

28Raygen’s aunt Crystal wrote of her pain at the loss of her niece and the devastation experience by her son, who cried for a week.

29None of Raygen’s family should have had to suffer what they have.  As is too often the case, you did not set out this night, at any time, with the intent to cause harm to anyone, but the consequences of your choices have been immense.  

30While I expect the proceedings in court and the comments that I make will do little to lessen their pain, I thank Raygen’s family for their courage and honesty.

Procedural history

31Four days after the collision, on 7 April 2022, you were released from hospital into police custody, but were found to be unfit to be interviewed.

32The next day, 8 April 2022, you were fit to be interviewed and in response to police questions, you made no comment. However, you have not contested your committal to this court and you agreed to plead guilty at an early stage in the proceeding, confirmed on 13 February 2023.

33Your plea shows that you accept responsibility for what you did, and that you have facilitated the course of justice. Your settling of the case has a real benefit not only for all involved, who have been spared the burden of a trial, but also the cost to the community as a whole.

34This is more significant at this time because of the pandemic and how it has created a backlog of cases. Your plea means the Court can allocate resources to relieve the pressure on those who are still awaiting trials. I will reduce your sentence for this reason in a way that makes this clear.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39].

35Importantly, at your request, your case has been heard in the Koori Court Division of the Court. This is significant. In doing so, you have agreed to be brought before the Elders of your community and to take part in a sentencing conversation with them.

36During that conversation, you were confronted with your actions and the harm you have done, not only to Ms McDonald and her family, but also the shame you have brought.

37I observed, during the conversation, that you did not shy away from the difficult words that were spoken to you. You accepted what was said.

38You stood and faced Raygen’s family and offered them a detailed apology. You did not blame anyone but yourself and accepted the terrible mark you have left on their lives. You wrote that the 12-year friendship you had with Raygen was irreplaceable and that, no matter what sentence is ordered today, it would be nothing compared to the loss of Raygen’s life.

39I accept that by taking part in the sentencing conversation in all these ways, you have acted honourably, you have spoken from your heart, and you have shown respect and true remorse for what you have done.

Personal circumstances

40During your plea your counsel relied on reports about you from two experts:

(a)   Jeffrey Cummins, clinical and forensic psychologist, report dated 11 May 2023 (Exhibit A)

(b)   Dr Evrim March, clinical neuropsychologist, report dated 28 June 2023 (Exhibit B)

41You were born on 4 August 1997. At the time of this offending you were 24, and you are now 26 years old.

42The start of your life was with your parents, living there until you were six or seven years old, when they separated. Your memory of that time was that your home was one full of violence. After the separation, over time, you lived alternatively with your mother and your father.

43While your father worked at times, he has had problems with alcohol and other drugs. You do not speak with him and do not see any reconciliation between you in the future.

44When she was younger, your mother also had similar problems. She has been living in Queensland for years now and you speak with her daily by phone. You have not received any in-person visits during your remand.

45You have five brothers, and all of them have been in trouble with drugs. One brother lives in Queensland with your mother and the other three are in custody – currently at Ravenhall where you are.

46During your formative years, Child Protection Services were constantly involved with your family. Their records (Exhibit F) say that you and your brothers were repeatedly exposed to serious domestic violence. You were subjected to relentless verbal abuse, sometimes you were locked in a room, you were left unattended in unliveable conditions, and sometimes without food.

47In your early teens, you were placed in foster care. While in residential care, you were badly abused by another boy there. After this, you were discharged from care and returned to live with your mother. You have never received any relevant mental health treatment for this traumatic experience. I accept that your circumstances in custody will make that very challenging, if you do.

48Overall, your education was highly disrupted due to having to change schools regularly. You changed primary schools, you recall, about six times, and high schools about five. You did most of your schooling in Shepparton, although you spent two years in high school in Bundaberg when you were with your mother.

49You left school after passing year 10. You have no trouble reading, but struggle writing and filling-out forms, for example. You have worked as a labourer and at other times have been supported on Centrelink payments, and at times been homeless.

50Sadly, at age 12, you were introduced to cannabis. You smoked daily until at around 16, when you became dependent on methamphetamine. Mr Cummins observed that it is very likely that you self-medicate with drugs to escape from many ugly and traumatic childhood experiences. You have not had access to private drug rehabilitation programs, and those you were required to complete on previous court orders have not been very successful.

51I note, however, that you have not lost hope. Nor have things always gone badly, which is to your credit.

52Between 2017 and 2019, you were in a positive relationship and you were able to avoid drugs for a time. Unfortunately, when that relationship did not work out, you relapsed.

53Your criminal history reflects your early years spent in a home where drugs were commonplace and then your dependency on cannabis and methamphetamine from too early an age. While your history of offending goes back to 2014 when you were 17, it does not feature violence towards others or any serious offending. This is your first sentence of imprisonment.

54Since your arrest, you have been productive with your time in custody. You have engaged with your cultural art and cultural studies, as seen in the expressive paintings you have shown to the court (Exhibit D). You have also completed several courses including an occupational health and safety course and one on drug and alcohol use and recovery (Exhibit C). Your aim, upon return to the community, is, as you wish, to become a youth worker, so that you may provide advice and assistance to young people who come from difficult family backgrounds and socio-economic disadvantage, similar to your own.

55You have not ignored the offending that has put you in prison. You have spent time to write an apology to the McDonald family, which I accept were your own words. You also wrote to the court expressing your grief for what happened (Exhibit E). Mr Cummins observed that you appear to be genuinely ashamed and apologetic for what you have done.

56It is also not to be ignored that you sustained serious injuries from the collision, including fractures and lacerations to your chest, spinal bone, ribs on both sides, left forearm, both legs, right knee, right ankle, left shin, left heel, and left frontal scalp. You still have ongoing pain in both feet and your left arm. You find it hard to lift things using your left arm. These will have served as a reminder to you of this terrible night.

57As for your mental health, Dr March concluded that your ability to understand words, to use visual information to solve problems, and to remember things in the short term, is very limited for someone of your age. While, thankfully, you have not suffered a traumatic brain injury of any substantial severity, your depressive symptoms probably have led to a degree of these cognitive impairments.

58You were prescribed medication for your mood when you were about 19 and directed to engage with treatment for your mental health under a court order. The psychiatrist diagnosed you with anxiety and PTSD then, the latter being related to your dysfunctional and deprived upbringing. Whilst in custody at Ravenhall, you have been prescribed an antidepressant but have found little benefit from it so far.

59Mr Cummins confirmed that you suffer from Complex PTSD, with symptoms of disrupted sleep, flashbacks, nightmares and moderate depression related to adverse childhood events and the fatal collision. Dr March observed that your lack of memory of being in the car, the collision itself and the events after the collision, is likely due to psychological trauma, and as is commonly seen, your brain working in the background to shield you from horrific memories.  

60You told Mr Cummins that you were concerned that you do not currently have the psychological stability and strength to openly discuss unresolved trauma, your relationship with your father, or the collision with a psychologist. However, you have not ignored the importance of doing so and more recently, you told Dr March that you would be willing to engage with a psychologist. You are on the waiting list to be allocated one.

Sentencing issues

61As to sentencing, culpable driving carries a maximum penalty of 25 years' imprisonment and a standard sentence of 8 years.  It is a Category 2 offence under the Sentencing Act, meaning that a term of imprisonment must be imposed and not one combined with a community correction order unless very limited exceptions apply – it was not suggested that any do.

62In arriving at your sentence, I have had regard to the guidance given by both the maximum penalty and the standard sentence, both being important factors among other considerations.[2]

[2] RvBrown [2018] VSC 742, [65]–[68].

63As to the seriousness of culpable driving, I have recalled the comments in DPP v Hill[3] where the Court of Appeal said of youthful offenders found guilty of culpable driving the following:

‘Driving is an ‘adult responsibility’. That responsibility involves the necessity to make adult decisions and choices, and an awareness that a failure to do so will result in the same consequences that apply to mature adults. Those who have the privilege of holding a drivers licence must ensure that they make decisions carefully and responsibly, because the failure to do so may have catastrophic consequences, including the death of others.

...

‘Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.’

[3] [2012] VSCA 144, [45]…[51].

64In the more recent case of DPPvReid,[4] the Court recognised also, that while general deterrence must play this important role, a sentencing judge must not lose sight of significant other matters, including age, background, your rehabilitation and the particular significance of your guilty plea such as in this case.

[4] [2020] VSCA 247.

65I have also had regard to your dysfunctional circumstances as you were growing up, particularly in your formative years, and how those experiences have come to be expressed in your addictive and risky behaviours. As has been recognised,[5] these are not aspects of your life that you can simply put aside or that the community can expect you to simply change once you come before a court for sentence. They are deeply entrenched and will require deep and consistent effort on your part over the coming years. They are relevant, therefore, to assessing your moral culpability and I take this into account.

[5] Bugmy v The Queen (2013) 249 CLR 571.

66I accept that you are truly remorseful and that your participation in the Koori Court process was genuine and represents real progress on your part down the path of rehabilitation. Many come before the Court with merely a promise to change. You have demonstrated that promise has, in fact, begun to be translated into action. I also find that, for the same reasons, less weight need be given to deterring you specifically from further such offending.

67As for your future, I accept that you are likely to keep pursuing and expressing your culture and heritage both in custody and upon your release. Your interaction with Elders here in this Court demonstrated the solid steps along that path that you have taken.

68I sentence you as follows, if you would stand please:

(a)   On Charge 1, culpable driving, you are to be imprisoned for 8 years;

(b)   On charge 2, being a learner driver unsupervised you are to be convicted and discharged;

(c)   On summary charge 11, during an unregistered car you are to be convicted and discharged;

(d)   On summary charge 12, driving with false plates you are to be convicted and discharged.

69The total effective sentence is 8 years.

70I fix a non-parole period of 4 years 10 months. You will understand that this is not an automatic release date. You must apply for parole and prove yourself to the parole board, which consists of judges and other senior community members, before you will be approved for release into the community. If at any time during your parole, if you are granted it, you re-offend or do not comply with the parole conditions, which can be very strict, the parole board can take you back into custody immediately and you may not get credit for any time that you have spent in the community until that time.

71I declare that you have served 492 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

72In accordance with s 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed a total sentence of 12 years 6 months with a non-parole period of 7 years and 6 months.

Ancillary orders

73As for ancillary orders as defined by section 87P of the Sentencing Act, your case involves a serious motor vehicle offence, as defined, and in accordance with section 89, I cancel any driver licence you hold and disqualify you from obtaining one for a period of 4 years from today.  

74In accordance with 89C of that Act, I find that your driving on this night occurred while you were under the influence of a drug, methyl-amphetamine.

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