Director of Public Prosecutions v Garland (a pseudonym)

[2023] VCC 85

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUGUST GARLAND (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2023
DATE OF SENTENCE:	2 February 2023
CASE MAY BE CITED AS:	DPP v Garland (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 85

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence upon guilty verdict

Catchwords:              Sentencing – conduct endangering life – 18-year-old offender – early guilty plea – strong family support – not organized or planned – reckless split-second decision – no connection to antisocial or criminal behaviour – cooperation at the scene – young offender not suitable vehicle for general deterrence – genuine remorse – no relevant criminal history – low risk of reoffending – proven rehabilitative progress – good prospects of rehabilitation

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

Sentence:Adjourned undertaking for two years with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr N. Rogers SC	Office of Public Prosecutions
For the Accused	Ms D. Price	Sally Wilson Legal

HIS HONOUR:

1August Garland,[1] you have pleaded guilty to one charge of engaging in conduct that recklessly endangered life and that arises out of you speeding on your motorcycle alongside or at the same time as your friend Isaac Smith on 21 March 2022.  I will not repeat the full circumstances. 

[1] A pseudonym.

2In summary, you rode and pulled up alongside Mr Smith, he nodded to you and you both understood that you would both speed.  You did.  You were some distance in front of him when he lost control of his bike and hit a tree and because of that collision, died.

3Engaging in conduct that places another person in danger of death is a serious offence.  It attracts a maximum penalty of 10 years, or other monetary penalties. It is to be understood as being a mid-level serious criminal offence.  It is not insignificant. In law it means is that you, by your conduct, have objectively created danger to another person’s life. 

4You were reckless about doing so in that you realised it was likely there would be some danger and that it was not a fanciful possibility that somebody would die because of that danger.  It is not suggested and it is not said that you physically caused harm to Isaac, nor is it said that anything you did directly caused harm to him, but rather, by racing with him, as you did, there was an indirect relationship with what happened.

5The law regards this offence as being very broad.  It covers a wide range of things that people might do, driving is one of them. I appreciate, however, that in the circumstances, what you did was not organised, it was not planned.  You did not have any intention to create harm to anybody, or danger to anyone.  You were reckless about it.  It was a split second decision and it was not connected in any way with any other kind of antisocial or criminal behaviour. That is significant. 

6I just want to make a comparison that if this was an organised meet-up between you and others to race or drag on the streets in public. Or perhaps others had gathered around to watch, we would be in a different position.

7It is very significant that at the time you stopped, you returned to where Isaac was.  You did what you could to assist.  You stayed at the scene.  I note police did not arrive and question you until about an hour later, so you were there all that time.  I do not want to understate either the importance of your decision and the maturity you expressed in doing so, or how horribly you must have felt during that time.

8I accept that what you did on the day after the collision was a genuine reflection of your character and having heard your apology today through your counsel, who very carefully and sensitively dealt with the issues in your case, I am willing to accept that that apology is heartfelt and genuine. I trust that it will be understood by those with whom you have not been able to speak to over the past year, because of what happened and because of the rules that apply to people who have been charged prohibiting them contacting witnesses and others.

9Your cooperation is demonstrated by your conduct at the scene, the attitude you took to police, the admissions you made, that you did not try to hide anything. Also, you pleaded guilty and offered to plead guilty to what you did early on and have maintained that. You have not tried to hide it; you have told your boss; you have told your family. They are here in support of you and others, who are not here, support you. 

10All of that, when wrapped up together, paints quite a different picture to what this court sadly sees regularly in these kinds of cases. In other cases, people not only have behaved dangerously, but are then dishonest about it, covering it up, challenging things that they should not challenge and take a bad attitude and approach to others.  You do not fall into that category and you are to be commended for that.

11Personally, you have developed some insight about your own needs and when things have gotten on top of you and you are not going well, you have had followed good advice and had the good sense to go and seek help from your GP. You have a obtained a mental health care plan, taken referrals, even if that has not yet resulted in access to services.  It is a tragedy that, in a well-resourced state like Victoria, mental health services are not available for somebody in your situation in a timely fashion.

12I accept that, however, with your family support, your good sense and the work that you have been doing, the risks of you developing more serious conditions, losing your way and possibly getting into further trouble have been avoided. That is very good, well done. I take seriously the risk that you faced of developing a serious post-traumatic stress disorder.

13That may sound easy to say and you may feel like that is something you have already gotten on top of, because you have lasted the past 10 months. But can I warn you not to lose sight of the fact that you need some treatment.  You need to see a professional to work on that, to make sure that a disorder of that kind does not develop.  It is still possible that it could, even this far down the track.  The fact that your name is on a list; that you are going to see a counsellor, I think, is very important.

14I have received the report of Ms Fleming, psychologist, who has assessed you. She has expressed opinions about the importance of your own conduct, your youth, the maturity you have developed over the last 10 months because of what happened, the insight that you have, the importance of your support networks and that this event happened when you were only 18 years and two months old.  The view she takes of you, which I accept, is that you are at a low risk, if everything goes as planned, of getting into further trouble with the law.

15In terms of your ability to move on from this and make a pro-social and good life for yourself and for those whom you love, is pretty favourable. I find that you have excellent prospects of growing into a mature, responsible, hardworking family person and I congratulate you for staying focused on that.

16The law in Victoria is clear that, when imposing a penalty for an offence, the Court must take into account not only what you did and what is good for you and those around you, but also the need to send a message to others who might be in your situation.  In my view, that is achieved in part because you were interviewed and charged and have faced court. Now, over almost a year, that process has effectively required you, although you have done it willingly, to talk to others about what happened and take responsibility, to engage in treatment, to take this all very seriously and I accept that you have.  Sometimes people do not and in part, the court must respond by punishing them, to show that people must take it seriously.

17I find that there is not a need in this case to use you as somebody that must be punished in that way in order to send a message to others.  The message arising out of your case is that, if a rider or a driver does something that indirectly causes harm to another by way of endangerment, if they do the right thing, the courts will respect that. In my humble opinion, that does the work of what we usually call general deterrence.  That is, deterring others by the orders that will be made against you.

18I accept that you are not a high risk, nor a moderate risk, but a low risk and I accept that there is no need for me to impose restrictive orders against you in order to protect the community from your bad behaviour.  I accept that this was an unprecedented and an out of character lack of judgment on your part.

19I accept that two other purposes of my sentence, which is to denounce what happened and to punish you justly can be achieved by making orders other than highly punitive ones.  I acknowledge that you were barely above the age to which the Children's Court applies, when you offended.  You are now only a year and a day beyond that category. Children who offend in this way are sentenced according to principles that encourage reintegration with family and school, whatever that might be, or work, to ensure that whatever happened does not happen again. It is aimed at making good out of a bad situation. The higher courts in Victoria have said that when young offenders, who are just over the age of 18, are to be sentenced, then we should not forget those principles. That is so even though the adult sentencing principles apply.

20So I am going to make orders that support you and your family, make sure that this does not happen again and to ensure that, as best as I am able, you get the mental health treatment that you may need to ensure that you do not need further orders.

21In all of the circumstances, I will ask you to sign a good behaviour bond.  I will do that by also recording a conviction.  As you heard me discuss with your counsel, our laws are such that if there is no further offending, or of this kind, in about 10 years' time, you may find that your record is cleared. You have good lawyers and they can give you advice about whether there is anything you should do about achieving that outcome. For the next 10 years at least, you will have a conviction against your name.  Do not be tempted to hide it.  If you apply for jobs or visas to travel and things like that, disclose it and explain it.  Provide whatever material you need, so that you are not in more trouble for sweeping it under the carpet.

22I will discuss the conditions of that bond in a moment, but on the question of whether or not I should make orders against your driver licence, I am not minded to do so.  I do not have to.  Some charges do require a court to remove your licence.  You are fortunate that this is not one of those charges.  If you were to drive badly and be careless, or even just disobey the laws about driving, you might well lose your licence for that, but assuming you do not, you will not lose it for this.  In so deciding, I bear in mind the need for your licence, as you move out of home and create a family for yourself. Perhaps down the track you can offer support to your family by being a responsible driver and contributing to your family in that way.

23As to the condition of the bond, the standard conditions will be that you must be of good behaviour.  So, no other offending.  If you do, then the police will get in touch with the court and bring you back and I can resentence you on this offence.  Assuming you do not get into further trouble, then you will not be notified to come back and once you have signed the promise today, the bond, you will not need to return to court.  If you are required, you will get a notice and you will be told.

24It was suggested and I agree that there be a condition that ensures that you keep your focus on your mental health and I will read that now. That as a condition of the bond, Mr Garland must engage with a medical practitioner and mental health practitioners as referred under a mental health care plan and provide confirmation of same to the informant, or their delegate, by 1 November this year.  I hope that that gives enough scope for there to at least be some meetings with a counsellor and whilst I am not suggesting there has to be an expensive or extensive report, because of course, that will be a therapeutic relationship, what I envisage is merely a confirmation that you have maintained your focus, that you have attended and that you are engaging.

25I propose to make the bond for 2 years, with conviction, to be of good behaviour and to engage in that mental health care plan.  There are no other punitive conditions.

26I thank the parties for the sensitive and comprehensive way in which they have dealt with this matter. Thank you, Mr Garland and your family.  I trust that everything goes well for everybody.

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