Director of Public Prosecutions v Fox

[2017] VCC 1986

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 17-00640

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN FOX

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	19 December 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v Fox
MEDIUM NEUTRAL CITATION:	[2017] VCC 1986

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry
For the Accused	Mr A. Dickinson

HIS HONOUR:

1Martin Fox, on 19 December 2017 you pleaded guilty to two charges on indictment number No.G11358186.1.  The charges were:  Charge 1, negligently cause serious injury to Patrick Rice.  This charge has a maximum penalty of 10 years' imprisonment.  Charge 2, resisting an emergency worker in the execution of his duty.  This charge has a maximum penalty of five years' imprisonment.

2You have consented to two related summary matters being heard at this hearing, pursuant to s.145 of the Criminal Procedure Act.  You pleaded guilty to the following related summary charges, Charge 10, which is failing to stop and render assistance and report the accident to the police when Mr Rice was seriously injured.  This charge has a maximum penalty of 240 penalty units or not less than four months or greater than two years imprisonment for a subsequent offence, which it is in your case.  You have a prior conviction for this relevant offending on 13 April 2012.

3And Summary Charge 12 - driving whilst disqualified.  This charge has a maximum penalty of 240 penalty units or two years' imprisonment for a second or subsequent offence.  In you case, this is the eleventh occasions where you have been found guilty of driving whilst disqualified or suspended.

CIRCUMSTANCES OF OFFENDING

4The circumstances of your offending.  The victim of your driving offences was Patrick Rice.  You were known to each other.  On the evening of 20 May 2016 Mr Rice, his partner; Lisa Furlong, his mother-in-law; Moureen Furlong and his disabled son, Haydon, attended at Traralgon RSL  This group had dinner and a couple of drinks.

5At approximately 10.30 pm you attended at the Traralgon RSL.  You joined
Mr Rice and the Furlong family group.  At approximately 11.30 pm you left the Traralgon RSL with the Furlong family members and Mr Rice in a car that you were driving.  You drove the car to your home at 91 Gordon Street in Traralgon and went inside the house.  You told the group you would be back shortly to drive them home.

6Twenty minutes elapsed and you did not return to the car.  Mr Rice, who was cold on the outside due to the ambient temperature in Gippsland on a May evening and warm on the inside due to substantial alcohol intake approached your front door.  You and Mr Rice argued and there was some pushing and shoving between the two of you.  Mr Rice left your premises, the Furlong group and Mr Rice began walking back to the Traralgon RSL in order to get a taxi to take them home.

7Not content with these people leaving your home and the car in which you had driven them earlier, you decided to drive after them.  It was put on your behalf your behalf you drove after the family so you could honour your promise to take Haydon home.  I do not accept that explanation for your re-attendance by motor vehicle in the vicinity of the RSL club.

8In relation to the offending I rely on the words of the prosecution opening, which is Exhibit A, to set out the circumstances of those offences.  Firstly, it is the Charge 1, negligently cause serious injury, the related summary offence of failing to stop and render assistance as it is described and the related summary offence of drive whilst disqualified.

9You drove the Holden Cruise down Grey Street.  On seeing Mr Rice you stopped the vehicle on the road near him at the corner of Norman Street.  Both you and Mr Rice then proceeded to talk.  This quickly led to the resumption of the verbal argument that had commenced at your premises.  During the argument Mr Rice was leaning into the front passenger window of the car.  You have reversed the car whilst part of Mr Rice's body was still leaning inside the car.  This caused Mr Rice to fall over on the road, resulted in him fracturing his left ankle.  You then proceeded to drive forward away from the incident.  At this point the wheels of the car ran over the left femur of Mr Rice.  This caused a fracture to the leg of Mr Rice.

10You actions in suddenly reversing the vehicle when Rice was leaning into the front passenger vehicle and then driving forward before taking steps to determine whether he was clear of the path of the wheels of your vehicle was criminally negligent.  You drove off in the vehicle without making an attempt to stop or to check that Mr Rice - or call police to report the collision.  You then drove back to your residence and parked the vehicle in the rear of the yard behind a shed.  You then went inside the residence.  At the time of the driving you were disqualified from driving.

11On Saturday 21 May 2016 at approximately 12.03 am police attended the scene of the accident and observed Mr Rice lying on the footpath.  A short time later the ambulance attended and conveyed Mr Rice to the Latrobe Regional Hospital for further medical assessment and treatment.

12In relation to Charge 2, which is resisting an emergency in the due execution of his duty, a summary is as follows:  Police attended your residence at
91 Gordon Street in Traralgon a short time after the incident.  Police located the vehicle that you had been driving in the rear of the yard behind the shed.  Sergeant Britton and a Constable McNeil went to the front and back doors and knocked on those doors in an attempt to speak to you.  You did not answer the door.

13Approximately 20 minutes of trying to engage with you, Sergeant Britton forced entry through the rear door of the premises.  Ms Strahan, your carer, and two American pit bull terrier dogs stood between you and Sergeant Britton. 
Ms Strahan was obstructing police by her actions and verbal abuse and was removed from the premises by the police.

14You were holding the two dogs who were barking aggressively at the attending police officers and Sergeant Britton deployed OC spray to neutralise the two dogs.  You reacted to that situation aggressively and Sergeant Britton then deployed the OC spray to subdue you.  You resisted the instruction of the police to turn around and be handcuffed.  It took three police officers to place the handcuffs on you.

15You were arrested and interviewed by the police and in you record of interview you stated as follows; (1), that you had an argument outside 91 Gordon Street, Traralgon with Mr Rice on the evening in question; (2), Mr Rice walked off up Norman Street towards Grey Street; (3), that you got back into your vehicle and drove around the block; (4), that you stopped at the corner of Grey Street and Norman Street because Rice had walked out in front of your car; (5), Rice lent into the window of your car and attempted to hit you; (6), that you then drove off at approximately five to six kilometres per hour, in an attempt to get Rice out of the car; (7), you then looked into your review mirror and observed Rice on the ground and; (8), (This is you saying this)  You got out of the car and started abusing Rice before getting back into it and driving home.

16The conduct of this case has had a tortured path.  You conducted a committal hearing on 29 March 2017.  There have been a number of directions hearings in the course of 2017, finally resolving to a plea of guilty on the present charges on 23 November 2017.  In total you have served 394 days pre-sentence detention on these charges, not including today.

VICTIM IMPACT STATEMENT

17I will deal now with victim impact on Mr Rice.  Mr Rice went in for surgery on
21 May 2016 to have a rod and pins put in place to secure his left femur.  He sustained a fractured left femur, fractured left ankle, two large grazes on the top and side of his forehead, large bruise on the left side of his stomach, extensive swelling on the upper-left thigh and a graze to his left knee and left ankle.

18On 25 May 2016 Mr Rice was transferred to the Nicholson Rehabilitation Unit where he received ongoing rehabilitation.  He was discharged from the Latrobe Regional Hospital on 3 June 2016.

19Mr Rice was due to start a new job in Broome in the coming days after the collision and due to these injuries he was unable to work for a period of three months.  He is a qualified diesel mechanic.

20Mr Rice prepared a victim impact statement the 25 November 2017, it was Exhibit B on the plea.  Mr Rice did not want his victim impact statement read out in open court.  I note that he was unable to assist his partner with the care of Haydon for a long period of time after this event.  He lost income due to his inability to work.  He has nightmares about a car hitting him and is sick of doing his rehabilitation.

YOUR PERSONAL CIRCUMSTANCES

21I return to your personal circumstances.  At the time of these offences you were 36 years old, you are now 38.  The bare facts of your early life speak of tragedy, neglect and evoke a sadness of Dickensian proportions.  You grew up in Preston. You did not know your father.  Your stepfather committed suicide. Your mother was an alcoholic who was overtly and overly violent toward you.  At the age of seven you started running away from home.  By eight years of age you were placed in foster care by the authorities.  You had numerous foster care placements until, finally, at the age of 13 you had a settled placement.

22As a direct result of your disrupted home life you had a troubled schooling.  Despite all the odds against you, you remained in education at the Collingwood Alternative School until you were 15 years old.  At the age of 15 you commenced work in the demolition industry.  You were young, fit and proud of your physique.  You came under the watchful eye of Long-John McCubbin at his boxing gym.  Your life appeared to be improved, you had a job, a sport and some personal support was in place for you.

23One fateful day you employment took you, as a 15 year old, to a demolition job at Government House, Victoria.  A propane gas bottle exploded, killing a fellow worker and inflicting burns to 93 per cent of your body.  You spent 14 months in hospital being treated for your horrific injuries from this industrial accident.  Since a very young age you have carried the obvious physical disfigurement and the social scars of continual rejection and exclusion.  As you have told your counsel, "I scare children when I walk down the street".

24It was submitted you do not drink alcohol but have sought refuge in, the use of cannabis and methylamphetamine, to help you deal with your difficulties.  Nevertheless, you have managed to build a significant criminal history.  You have six separate court appearances relating directly to driving offences only.  I note, one of those offences on 13 April 2012 at Latrobe Magistrates' Court was for leaving the scene of an accident.  This offending extends back some 20 years.

25In the criminal offending or your criminal history you have had 12 prior court appearances stretching back to 1997.  In total you have ten prior convictions for drive whilst disqualified or being suspended.  You have prior convictions for intentionally cause injury, reckless conduct endangering serious injury on three occasions, recklessly cause serious injury, intentionally cause serious injury and kidnapping.  In relation to the last two of those charges your longest sentence was for nine years with a non-parole period of seven years. This was imposed on 25 September 2002 at the Melbourne County Court.

26Your last sentence was imposed on 30 October 2014 at the Latrobe Magistrates' Court.  The sentence was for reckless conduct endangering serious injury.  The facts, as I understood them to be, were that you were driving your car at a police officer when he tried to intercept you.  The sentence was for two years with a non-parole period of 18 months.

27You were just out of prison, on my calculation, when you committed these offences.  Since 2002 you have spent more time in custody than you have as a free man.  Your life is quickly becoming a wasted life.

SENTENCING CONSIDERATIONS

28Sentencing considerations.  The basic purpose for which a court may impose a sentence are just punishment, deterrence; both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.

29I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seek to ensure, as far possible, that you as an offender are rehabilitated and reintegrated into society.  I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statics for those sentences.

30I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases are distinguishable from your case, as indeed they are from one another.  Of course, current sentencing practices is only one of the factors I am required to take into account when fixing your sentence.

31You have pleaded guilty to the charges before the court.  Your plea was finalised at a relatively late stage and after conducting your committal hearing, which required your victim and other witnesses to give evidence.  However, your plea does have utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.

32Your plea allows for the perseveration of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process setup to protect the community.  Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept your plea of guilty to these charges indicates and demonstrates some remorse on your part.

33You have served a total of 394 days pre-sentence detention, not including the day of your sentence; today.  Mr Dickinson, on your behalf, submitted that the appropriate sentence for all the offences before the court was time served.

34The objective gravity of the charge of negligently causing serious injury by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused by that driving.  In your case you were aware of the close proximity of Mr Rice to your vehicle when you reversed in order to get him away from you.  The action of reversing when Rice was so close to your vehicle was a high level of negligence.  When that car movement is followed by a forward movement, which results in running over Mr Rice's leg, compounds the level of negligence.  Rice was close to your vehicle and on the ground when you drove forward over him.

35It was put on your behalf that you had to get away from Mr Rice and in the agony of the moment made these movements with your car.  I reject that submission.  You could have got out of the car, as you did after you ran over and injured him to abuse him, and removed yourself from any perceived danger from Mr Rice.

36Whilst I accept that there is no speed or breach of traffic lights or alcohol involved in your driving, the driving you did engage in on this occasion was negligent driving in the mid to upper range for this offence.

37In this case, the injuries to Mr Rice were less serious than the worst of injuries imaginable.  But nonetheless, they were very serious.  In cases where the driving is in the upper range or toward the upper-end range of negligence, it is not appropriate to finesse or distinguish between levels of serious injury.

38The charge of resisting an emergency worker is a separate and distinctive offence in this case.  Your last sentence was for offending directed at a police officer in the execution of his duty.  This offending by you in this case requires a sentence that satisfies both general and specific deterrence and denunciation of your actions.  I am mindful in the cumulation orders not to breach the principle of totality when sentencing you.

39In respect of summary Charge 10, you have a relevant prior conviction.  This means the sentencing appropriate to this charge includes a conviction with the consequential orders for the disqualification period for your driving.  The failure to report is less serious in this case because you were known to the victim and hence your detection was always assured.  And there were other persons present to ensure immediate medical treatment was obtained for Mr Rice.

40In summary Charge 12, you have ten relevant prior convictions.  I have not factored the consequences of this offence into the sentence for Charge 1 on the indictment.  To do so would result in double punishment.  I have sentenced you for driving whilst disqualified, together with the appropriate cumulation to reflect general and specific deterrence in your case.

41I assess your prospects of rehabilitation as low, given your persistent criminal behaviour to now.  I set a parole period, which if released will give you close supervision and some prospect of re-entering society and remaining on a non-criminal and a non-violent path in the future.

42Would you stand, please.

43In respect of Charge 1, negligently cause serious injury, you are convicted and sentenced to three years and nine months' imprisonment.  That is the base sentence.

44In respect of Charge 2, resisting an emergency worker, you are convicted and sentenced to one year imprisonment.  Six months of that term is cumulative upon the base sentence.

45In respect to summary Charge 10, which is failing to report the accident, you are convicted and sentenced to six months' imprisonment.  Two months of that sentence is to be served cumulatively upon the base sentence and the sentence in Charge 2.

46And summary Charge 12, driving whilst disqualified, you are convicted and sentenced to nine months' imprisonment, and four months of that sentence is to be served cumulatively on all the other sentences.

47That is a total effective sentence of four years and nine months' imprisonment.  I fix a non-parole period of three years and six months' imprisonment.

48But for your plea of guilty I would have sentenced you to six years and three months' with a non-parole period of four and a half years.

49I declare that you have served 394 days pre-sentence detention.  Further, on Charge 1 on the indictment all licences you hold are cancelled and you are disqualified for a period of four years from this date.  On summary Charge 10, all licences are cancelled and you are disqualified for a period of eight years from this date.

50Do you understand what I have just said?  So your total sentence, your head sentence as you would know it to be, is four years and nine months', and your non-parole period is three years and six months.  You have served 394 days of it, you understand?

51OFFENDER:  So not - not six years, Your Honour?

52HIS HONOUR:  Sorry?

53OFFENDER:  So four years is my top, sorry?

54HIS HONOUR:  No, no, four years and nine months is the top.

55OFFENDER:  Yep.

56HIS HONOUR:  All right, and the non-parole period - if you get parole.  The earliest you can get parole is three years and six months.

57OFFENDER:  Yep.

58HIS HONOUR:  But you have served 394 days of it.

59OFFENDER:  Yeah, (indistinct words.)

60HIS HONOUR:  All right, thank you.  Remove the prisoner.

61MR MCHENRY:  As Your Honour pleases.

62OFFENDER:  All right.

63HIS HONOUR:  Thank you.

64OFFENDER:  I'll take that (indistinct words.)

65HIS HONOUR:  I think that finishes the circuit matters.

66MR MCHENRY:  Yes, Your Honour, it does.  Thank you.