Director of Public Prosecutions v Galea
[2016] VCC 1269
•26 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00612
CR-15-00613
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN GALEA |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 August 2016 | |
CASE MAY BE CITED AS: | DPP v Galea | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1269 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Judd | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr P. Kilduff | Haines & Polites |
HIS HONOUR:
1 Jayden Galea, on 20 June 2016, a jury found you guilty of one charge of dangerous driving causing death on Indictment E12236054.2. Prior to trial, you had pleaded guilty to Charge 1, theft of a motor vehicle, and Charge 2, failing to render assistance after an accident, on Indictment E12236054.1, as well as Charge 1, theft of a Myki coin cassette, and Charge 2, criminal damage on Indictment E12236054. The maximum penalty for each of the charges on each of the indictments is 10 years' imprisonment. You admitted your criminal record that contained findings of guilt in respect to relevant driving offences.
2
The facts upon which the charges are based can be briefly stated. Sometime after 6 pm on 27 June 2014, you stole a Holden Commodore Sedan registered number ODD961, from a private address in Sunbury. Shortly prior to 5 am on 28 June 2014, you, together with Richard Powel, Jessie Donka and
Brenton Old, travelled to the Macedon Railway Station in the stolen Commodore Sedan. At the railway station, you used a petrol powered demolition saw to cut into a Myki machine and stole the coin cassette from the machine. The use of the demolition saw woke nearby residents and police were despatched to the railway station.
3 On becoming aware of a police divisional van entering the railway station car park, you drove your co-offenders away and out of the car park, eluding the police. The police activated their lights and sirens and pursued you south along Railway Crescent and then generally in a south-westerly direction along Blackwood Road into bushland until at the intersection of Forbes Road, you attempted to make a left hand turn to travel south in Forbes Road, when you lost control of the Commodore Sedan. The car struck two trees before rolling one and a half times and coming to rest on its side.
4 Brenton Old was unrestrained in the vehicle and suffered serious head injuries and died at the scene of the collision. As police approached the Holden Sedan, you fled the scene into nearby bushland. You were arrested at 4 pm on 28 June when you gave yourself up to police at the Gisborne Police Station.
5 Your speed along Railway Crescent was within the speed limit and on Blackwood Road, which is a 100 kilometres per hour speed zone, the speed of your vehicle exceeded the speed limit by 10 kilometres per hour or so. Immediately prior to commencing the turn into Forbes Road, you were driving at a speed of between 80 and 84 kilometres per hour. At a result of your steering, the motor vehicle began to yaw and at the commencement of the yaw, it was travelling at a speed of between 71 and 76 kilometres per hour. After the vehicle had struck two trees, the car rolled and when it did so, it was travelling at a speed between 28 and 33 kilometres per hour.
6 In the words of Doctor Detective Acting Sergeant Mehegan, the collision re-constructionist called at trial:
“The vehicle has yawed off the road to the right while turning left and the reason for that is the vehicle has turned left and attempted the left turn at a speed which is too high for that corner.”
7 You were interviewed under caution and made a “no comment” record of interview.
8 Tendered as Exhibit A on the plea was the Victim Impact Statement of the father of the deceased. Its contents revealed a man who has resolved himself to the fact of his son’s death.
9 At the time of committing the instant offences, you were on bail in respect to charges of contravening a Family Violence Intervention Order. This is an aggravating circumstance of your offending. On 12 July 2014, you were remanded in custody in respect to the family violence matters.
10 On 28 April 2015, his Honour Judge Tinney sentenced you to an aggregate sentence of 15 months' imprisonment, together with a Community Correction Order for a period of 30 months with conditions in respect to Indictment E106666260 that contained eight charges; namely, three charges of criminal damage and one charge each of causing injury intentionally, causing injury recklessly, making threats to kill, false imprisonment and reckless conduct endangering persons, as well as the related summary offences of contravening a Family Violence Intervention Order. His Honour declared pre-sentence detention of 346 days as part of this sentence. (See Exhibits B and C, being Prosecution Opening for Plea, indictment and related summary offences and record of orders made in the criminal jurisdiction County Court – Victoria.) The sentence of imprisonment imposed by his Honour Judge Tinney lapsed on
17 August 2015.
11 You had been admitted to bail in respect to the instant offences, but you were remanded into custody on the day of verdict being 20 June and have remained in custody since that time and accordingly, you have spent 67 days by way of pre-sentence detention, not including today, for the instant offences.
12 Tendered as Exhibit 1 on the plea, was a bundle of documents which included your Corrections Victoria sentence remand report, a report dated
30 March 1999 from Education Victoria, a report from the Department of Education and Training dated 5 September 2003, a report dated 15 May 2014 from Stepping Up Consortium, an audiology report from ISIS Primary Care dated 10 September 2003, a neuropsychological report from Dr Linda Borg dated 3 June 2014, and a neuropsychological report from Ms Susan Carey, clinical neuropsychologist, dated 10 August 2016. As well included in the exhibit at the request of your counsel, Mr Kilduff, were his outline of submissions together with two authorities, Stephens v R [2016] VSCA 121 and DPP v Sismanoglou [2016] VSCA 87.
13 As to your background, you were born in Melbourne. You have an older brother and younger sister. Your parents remain together and you described yourself as having had a good upbringing with strong family support. Prior to your offending, you were living with your parents and siblings in your family home. You left school after completing Year 9, but are illiterate and innumerate. You have worked as a plasterer, bricklayer’s labourer and from time to time, you have assisted your father in his tow truck business. Your longest period of employment is 12 months when you worked as a bricklayer’s labourer. You have been in receipt of a disability support pension since 2013.
14 There is some conflict between the various reports that form part of Exhibit 1. In the report from Education Victoria dated 30 March 1999, you were assessed when aged eight years of age as being in the fourth percentile in respect of intellect and as being in the borderline intellectual disabled range. You were reassessed by the author of the 1999 report in 2003 when you were aged eleven as being in the seventh percentile and described as performing within the borderline range. At about the same time, you were assessed by an audiologist who found you to have a mild auditory processing disorder. In November, December 2005 and February 2006, when you were about the age of fourteen, you were assessed by a speech pathologist who opined:
“Jayden is a fourteen year old boy in Year 9 whose severe expressive and receptive language skills appear to be inadequate for him to be able to function appropriately at school and cope with curriculum. Jayden struggles in the classroom without support.
Jayden’s language difficulties are ongoing and without assistance, he will continue to have extreme difficulty coping in the classroom environment. It is expected that these difficulties will be ongoing and that as academic and social expectations increase, it will become more difficult for future teachers to provide the additional support that Jayden needs.”
15 In the “Stepping Up” report of May 2014, you reported to the author of that report that you had smoked cannabis since the age of fourteen or fifteen and that at seventeen you commenced to smoke methylamphetamine; as well, you were an abuser of alcohol.
16 In 2013, you were injured in a motor vehicle collision. I was informed that you broke your back, but there was no detail provided as to what that meant. You were wheelchair-bound for some time and I was informed that any weight bearing on your spine causes you pain. There is reference to this collision and consequent injuries in the two neuropsychological reports.
17 Dr Linda Borg in her report of 3 June 2014, opined:
“In terms of prognosis, it would be expected that the longer Mr Galea remains abstinent from using drugs, there may be some improvement in his attention, speed of thinking and subsequent short term memory. However, Mr Galea will have residual cognitive deficits given the pre-existing nature of a number of his difficulties, especially in relation to reading and writing.”
18 The consistency in reporting on you from your early childhood till 2014, demonstrates that your disability is static and will be lifelong.
19 When seen by Ms Carey in July this year, you reported to her that you had not smoked cannabis for years and the same applied to any abuse of methylamphetamine. Whilst you reported that you had experimented with LSD and magic mushrooms, you maintained that at the time of interview, you drank very little and had made an assessment that you simply could not handle alcohol. When assessed by Ms Carey, she found that you fell in the borderline range of intellect. However, in her opinion, she did not regard you as having an intellectual disability, but rather that your performances and history are most in keeping with a reading and verbal learning disability. Further, she opined:
“It is unlikely that Mr Galea’s reading disability, verbal learning impairment or other cognitive deficits contributed to his offending behaviour.”
20 She further opined that you “did not present as a person with an impulse control of inhibition control disorder”.
21 Ms Carey opined that you were a low risk of reoffending from a cognitive perspective.
22 You have the support of your parents who will provide stable accommodation for you, upon your release from prison and if combined with employment, the two should assist in your rehabilitation and reduce your risk of reoffending.
23 Of concern, is the conviction on Charge 7, when you appeared before his Honour Judge Tinney. That was a charge of conduct endangering person in December 2013, which involved the use of a motor vehicle. The factual foundation for that charge is set out at paragraph 9 in the Prosecution Opening for Plea Hearing, Exhibit B.
24 You are twenty-four years of age. To my mind, it is of little importance as to whether you suffer from an intellectual disability as opposed to a reading and verbal learning disability. Your disability is permanent and will inhibit your progress through life. I must take this disability into account when sentencing you.
25 You have relevant prior findings of guilt in respect to driving offences and a disturbing number of subsequent convictions for prior offending, one of which includes recklessly endangering a person as a result of your driving. To my mind, your prospects of rehabilitation are bleak.
26 You pleaded guilty at an early stage to all charges, save the charge of dangerous driving causing death. Accordingly, you are entitled to the benefit that flows to you from those pleas, being that it is some evidence of remorse and that it has utilitarian value. In respect to the conduct of the trial, the facts surrounding your offending were not in dispute. The question for the jury was simply whether, on the totality of the evidence the Crown had made out its case against you.
27 By reference to Exhibit 2 on the plea, a reference from your aunt and the contents of the report of Ms Carey, it is plain that you feel the death of your friend, Mr Old, acutely and that this has had an effect upon your mood.
28 In respect to the charge of dangerous driving causing death, I regard your offending as being a serious example of that crime. Having been interrupted stealing money from the Macedon Railway Station, you fled from police. Whilst it is true that you did not drive at excessive speed during the course of that pursuit, you were able to get a break on the pursuing police vehicle. There is no evidence as to your familiarity or otherwise with Blackwood Road or its intersection with Forbes Road. However, the roadway itself was a typical country road, being tarmac with gravel shoulders and wide enough to allow two vehicles to pass. It was dark. You put all of the occupants of the Commodore Sedan at risk.
29 In sentencing you, I am cognisant of the sentences imposed upon your co-offenders, Ms Donka and Mr Powel.
30 By these sentences, I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedence, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
31 On Charge 1, dangerous driving causing death on Indictment E12236054.2, four years' imprisonment.
32 On Indictment E12236054.1, on Charge 1, theft of a motor vehicle, one months' imprisonment. On Charge 2, failing to render assistance after an accident, six months' imprisonment.
33 On Indictment E12236054 on Charge, 1, theft of a Myki coin cassette, I sentence you to two months' imprisonment. On Charge 2, criminal damage, I sentence you to six months' imprisonment.
34 I order that two months of the sentence imposed on Indictment E12236054.1 and two months of the sentence imposed on Indictment E12236054 be served cumulatively upon one another and on the sentence imposed on Indictment E12236054.2.
35 This results in a total effective sentence of four years and four months’ imprisonment and I set a period of two years and six months’ imprisonment as being the term of imprisonment that you must serve before you will become eligible for parole.
36 Pursuant to s.6AAA of the Sentencing Act 1991, in respect of Indictment E12236054.1, but for your plea of guilty I would have sentenced you to 12 months' imprisonment. In respect of Indictment E12236054, but for your plea of guilty, I would have sentenced you to 12 months' imprisonment. I would have ordered six months of the sentence imposed on Indictment E12236054 to be served cumulatively on the sentence imposed on Indictment E12236054.1, which would have resulted in a total effective sentence of 18 months' imprisonment and I would have fixed a non-parole period of nine months' imprisonment in that respect.
37 I declare that you have spent 67 days by way of pre-sentence detention not including today. Now in respect to any interference with licence, is there a mandatory minimum?
38 MS JUDD: I just don't have the Sentencing Act with me. I'm sorry, Your Honour.
39 HIS HONOUR: That's all right.
40 MS JUDD: It's something that I should have looked at.
41 HIS HONOUR: It's something that I have a memory of, that's why I asked the question.
42 MS JUDD: Yes, I did look at it at the time of the plea and I didn't think there was a mandatory minimum, but as I say, I don't - - -
43 HIS HONOUR: Please be seated Mr Galea. Just pardon me for a moment. Under s.61(6)(A), in the case of a first offence, that is, for breaching the duty of a driver under that section, it is a disqualification for a period of four years, at least four years, on a first offence. I will hand down that legislation to be checked please.
44 MS JUDD: Yes, Your Honour.
45 HIS HONOUR: Thank you.
46 MS JUDD: I must admit, I was initially looking at the Sentencing Act provisions - - -
47 HIS HONOUR: Yes.
48 MS JUDD: - - - in relation to the - - -
49 HIS HONOUR: Dangerous - - -
50 MS JUDD: - - - trial offence.
51 HIS HONOUR: Yes.
52 MS JUDD: But this is of course much more pertinent.
53 HIS HONOUR: Yes.
54 MS JUDD: If I could hand that back.
55 HIS HONOUR: I order that any licences or permits to drive a motor vehicle in the state of Victoria be cancelled and that you be disqualified from obtaining any licence or permit to drive in this state for a period of four years. I have signed that disposal order.
56 In respect of the sentences in terms of cumulation and the like, are the mathematics correct?
57 MS JUDD: Yes, Your Honour.
58 HIS HONOUR: Are there any other matters that need to be dealt with?
59 MS JUDD: No, Your Honour.
60 HIS HONOUR: Would you remove the prisoner please. I would like to thank counsel for their assistance in this matter. I will stand down until the next matter is ready.
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