Director of Public Prosecutions v Gilbert
[2024] VCC 347
•21 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02359
Indictment No. N10674318
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ROY GILBERT |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2024 | |
DATE OF SENTENCE: | 21 March 2024 | |
CASE MAY BE CITED AS: | DPP v Gilbert | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 347 | |
REASONS FOR SENTENCE
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Catchwords: Theft of car, dangerous driving causing serious injury, fail to render assistance. Summary matter: unlicensed driving. Crossed over onto the wrong side of road and up onto footpath striking a 27-year-old female jogger who was on the footpath. No effort to provide any assistance at all. Large impact with life altering injuries. Victim not back to work 2 years after the incident. Gilbert 31 years of age at time of offending in March 2022. 33 years of age at time of sentence. Lengthy and relevant criminal history. Many past convictions for unlicensed driving and car theft and numerous endangerment type offences connected with illegal use of car. Two prior convictions for fail to stop after accident. – Guilty plea. - Worboyes v The Queen [2021] VSCA 169. Bugmy v The Queen [2013] HCA 37
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Gurry (plea) Ms O. Sparrow (sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Bloemen (plea) Ms A. Watters (sentence) | Chester Metcalfe & Co. |
HIS HONOUR:
1 Mark Roy Gilbert, you have pleaded guilty to three charges on the indictment, as well as one related summary offence. The indictment charges are theft of a car, dangerous driving causing serious injury and fail to render assistance to Ms Radi, the seriously injured pedestrian struck by your car. The related summary matter is a charge of unlicensed driving for of course, you were unlicensed on this day.
2 The maximum penalties are correctly set out in the prosecution plea opening which has been filed before me.
3 You have admitted a lengthy prior criminal history. Your counsel conceded it was of relevance to my task and plainly, that concession was correct. After all, you have a number of prior instances of endangering members of the public when illegally driving cars, as well as failing to stop after an accident, not to mention numerous prior convictions for car theft and unlicensed driving. I will come back to that criminal history a bit later in these reasons and the relevance of it to my task.
4 The prosecutor, Ms Gurry, opened this matter to me last Friday in accordance with a written summary of prosecution opening for plea dated 5 March 2024. Mr Bloemen, who appeared for you, informed me that this was an agreed summary. For that reason, there is little point in my setting out all the agreed facts. The document does that and I will sentence pursuant to it, together with the photographs, and such other material as was raised in the course of the plea. For instance, the expert report in relation to the collision reconstruction and some cross examination conducted at the committal hearing, in relation to some of those who provided assistance to your victim and who described what you were doing before you left the scene. I raised aspects of the expert report of Yuxing Zhao with the parties, as plainly it was incorporated into the agreed summary and it seemed to me at least, that there was perhaps a level of misunderstanding as to what that report said or stood for, or at least as to some of the language employed within it.
5 I will give only a relatively brief summary so that my reasons and ultimate sentence are comprehensible to anyone who happens to access these remarks.
6 By way then of brief summary, on 31 March 2022, you had no business being behind the wheel of any motor car. You were unlicensed. You always have been. Yet again, you ignored that clear impediment to driving. Yet again, you drove in such a manner as to place others at risk. Earlier that very day at Heidelberg Magistrates' Court, you had been admitted to an adjourned undertaking for an offence of receiving stolen goods. That undertaking had conditions, including to be of good behaviour. Within hours, you were yet again behind the wheel of a stolen car. Regrettably on this occasion, it was not just the creation of some hypothetical or even actual risk posed by your driving. You ran completely off the road in broad daylight, crossing onto the wrong side of the road where you struck a young woman who was completing a charity run in aid of Oxfam. It was broad daylight about 4:23 pm. Dry, sunny, perfect conditions. There was nothing in the road design or the vehicle condition or the conduct of any other road user or the victim contributing to your conduct.
7 This all occurred in a 50 kilometre per hour zone in Chenies Street in Kingsbury. This was a built-up residential zone. The road you were travelling on curved slightly to the left and there was a traffic island separating the two lanes. The collision scene was on a section of Chenies Road where the footpath becomes a bridge, with a metal railing spanning the Darebin Creek. You completely failed to take that left-hand bend. As I have said, you drove onto the incorrect side of the road and mounted the footpath and struck your victim, Ms Radi, who was jogging on the footpath. You hit her square on. Your vehicle collided into the metal railing.
8 Ms Radi was seriously injured and obviously so. It is really quite amazing you did not kill her. Other drivers and some local residents came to assist. Your reaction at the scene almost defies description. You did not just slink off. You got out of the car and displayed no interest at all in your victim’s predicament. None. Incredibly, you showed more interest in removing ‘your’ car from the scene. I say ‘your’ car, but it was a stolen one.
9 Unbelievably, you tried to pick her up, but this was not by way of providing assistance to her. You were trying to move her. You admit, by your plea, not providing any assistance. As we know now, she had a number of fractures, including a lumbar spinal fracture.
10 You were trying to start the car, which you did and then endeavouring to reverse it off the footpath. You looked spaced out. At one point, you pestered one of those who was assisting your seriously injured victim, asking that person, Mr Kazantziois, to assist you to move your car. He described at the committal the state of play, how he thought her life was ending and the chaos at the scene with her screaming and you trying to get him to help you move the car. He described your lack of interest in
Ms Radi's predicament, though in a far brief and more direct manner saying at page 643 of the depositions, this is at the committal, 'I just want to state he did not give a single shit about the woman that (sic) was on the ground'. See pages 643, 645 and 647.
11 This was really quite incredible behaviour. As I say, it was not even your car, Mr Gilbert. It was a stolen one. You were half in and out of the car at one point, trying to back it away. At another point, you tried to lift it from the front bumper bar. When in the car, at one point, you were accelerating the engine at such a rate as to produce smoke and move it back slightly and you shattered the mudguard into pieces in doing so. At the scene, you were swearing and yelling and looking frantic, panicked and agitated. You were seen to be talking on the phone and repeatedly mentioning your brother. I interpose, you do not have a brother. You collected some items and walked away whilst talking on your mobile phone.
12 People were screaming out for you not to leave the scene. You ignored them and left, with Ms Radi, your victim, lying on the footpath seriously injured. You had done nothing at all to in any way assist her or those who were assisting her. Your conduct at the scene in the wake of an obviously seriously injured pedestrian, injured as a result of your conduct, simply beggars belief.
13 An ambulance arrived, as did the police. Your victim was taken to hospital.
14 The investigation commenced. Descriptions of your appearance and clothing worn were provided by those at the scene. CCTV footage was obtained which showed you walking from the scene.
15 The car was a stolen one, stolen on 28 February. It had fraudulent plates affixed to it, though I am not dealing with you for that conduct or indeed for the initial theft. You may not have been responsible for affixing the false plates and the theft is laid on the basis of your driving that stolen car on this day with the requisite state of mind as to it being stolen.
16 A short time after the collision, you contacted your ex-partner by phone and asked her to collect you from the vicinity of Kingsbury Drive. She did so. You were taken to a nearby shopping centre. CCTV footage from that nearby shopping centre showed you wearing an item of clothing matching the clothing worn by the driver. Additionally, someone who had witnessed the collision had attended at that shopping centre, recognised you at the shopping centre as the driver and rung Triple 0.
17 You were arrested on 5 April 2022 and charged. No interview was conducted as you were COVID positive. You were arrested wearing the shoes that matched the shoes visible on the CCTV footage that had been obtained.
18 The summary sets out the reconstruction evidence. The summary was probably poorly worded and set out timings, almost as though it was a range of timings. For no reason, the summary flipped the way in which the timings had been set out in the expert report to read that ‘the car travelled without any driver input for between 0.6 of a second and 4.6 seconds’. In fact, the report specified the vehicle cruising without any input between 4.6 and .6 of a second and the .6 was the first driver action. Your counsel’s written submissions dealt with the contention that there was hence, a range of timings between .6 of a second and 4.6 seconds and that the lowest number being .6 of a second was the extent of your inattention in this case. That is, that the court could not be satisfied beyond reasonable doubt of the longer period specified. Well, that flew in the face of the actual summary itself which mentioned distances and speeds, as well as the photographs contained within it which came from the report of the expert. It flew entirely in the face of the expert report upon which that summary was based and which was footnoted in the summary. The prosecutor's sentencing submissions were closer to the mark. The Crown had never in settling the matter made any concession as to such a small degree of inattention and took issue with your counsel’s written submission on that point.
19 Mr Bloemen asked for the matter to be stood down. It was, he conferred with you and then the plea proceeded. Had he wished to, I would have permitted evidence to be called on the plea. I would even have entertained the more dire step of an application to change your plea, had there been any suggestion that the plea had been entered in anticipation of that .6 second inattention being an agreed position between the parties. But that was never the position at all, as was made plain.
20 In fact, sensibly, having conferred with you and having re-examined the expert report, Mr Bloemen came back to court and got on with the plea. It was plain to him that his written submissions in this area were flawed. He correctly withdrew any reliance on the last paragraph on page one and the first three lines of the second page.
21 We are not dealing with inattention for .6 of a second. There was in fact no input at all from the driver of that vehicle, you, from 4.6 seconds out from the collision zone until the first action described. The car which had been travelling at around 51 kilometres per hour slowed over the course of the following 56 metres and there was only input from you, the driver, a metre shy of impact with the railing. So you only turned the vehicle when on the footpath. There was 56 metres without any input and then there was a turn to the left, not the right. There was no evidence of any braking at all.
22 This collision had nothing to do with the ‘disastrous mis-correction or sharp turn to the right’ mentioned in that withdrawn portion of your counsel’s submissions. As to the speed at impact, nothing at all hangs on the impact speed. Your counsel put a range of speeds in his submissions. The expert report specified 34 kilometres per hour. As I say, nothing hangs on the speed. The speed was the speed and whatever speed it was, your car caused the serious injuries. Dangerousness in this case was in no way based on the speed that you were travelling.
23 DNA matching yours was found on the steering wheel and on a bottle of vodka located in the abandoned vehicle.
24 I will turn to the impact of your crimes in due course. For the present I deal with the immediate impact. Ms Radi was taken to the Royal Melbourne Hospital and treated for multiple systems trauma as described in paragraph 43 of the summary. So left and right hip fractures, left L5 spinal fracture and right pubic bone fracture, left pelvic fracture and left ankle abrasions, right hand nailbed injuries, as well as scalp laceration and grazes.
25 She remained in hospital for some 21 days and underwent extensive medical treatment, including surgery on her pelvis and plastic surgery on her hand. She was told at the time of her May 2022 police statement that she would need 12 to 18 months of rehabilitation and that she may suffer from lifelong effects. Well, she is still receiving multiple treatments almost two years after the collision. There are a raft of pelvic floor issues with incontinence, constipation, coccyx pain and chronic pelvic pain. She experiences daily constant pain. She continues to receive ongoing physiotherapy for lower back and bilateral shin pain as well. Her impact statement goes into far greater detail and I will come back to that in one moment.
26 You have remained in custody since your arrest.
27 Attached to the agreed summary is a chronology of this matter. A two-day contested committal was conducted in December 2022 and you pleaded not guilty as was your right. There was then some toing and froing in this court. In fact, a section 198B hearing took place on 20 June 2023, where your counsel cross examined an expert on the issue of the DNA recovered from the vehicle. That went to the issue of proof of identity or presence at the scene. A plea offer representing the ultimate settlement position had in fact been put a couple of days earlier and was accepted in late September. Then the matter was listed for a summary jurisdiction application. That application was withdrawn a few days before the listed date in early December of last year.
28 On 5 December 2023, I was presiding over that hearing and you were arraigned, pleaded guilty and your counsel then applied for the plea to be adjourned to mid-2024, to enable the obtaining of a neuropsychological report. Sensing the need for far swifter finality for all concerned, if possible, I refused that request and stood the matter down to see when you could actually be seen by an expert. That bore fruit because I was told by your counsel that a cancellation had been received by
Loretta Evans, who could see you on 7 February and that the report that she would prepare would be available for the plea in mid-March. Hence the case was adjourned to last Friday, being 15 March rather than going off to June. The plea was conducted on 15 March. No report has been filed, nor the earlier report which prompted the obtaining of that fresh report from Ms Evans. I do not speculate as to the reasons for the
non-filing of that material. All it means is that there is no evidence in support of the existence of any acquired brain injury, or any psychological conditions impacting at all upon this sentencing task.
29 As to that chronology which I have set out in some detail, I want to make it plain, it was your right to proceed in this way, but I must say, this matter really could have been finalised a good deal earlier. It did not. So be it.
30 I should also say that I would have sentenced you on Monday of this week, but you advised that you had a long-awaited day procedure for a hernia repair and I was persuaded to put the matter off until today to permit you then to undertake that procedure.
31 So much then for what is only a brief summary of the agreed summary in this matter. As I have already said, I will sentence pursuant to the more detailed agreed summary dated 5 March 2024, as well as those additional matters raised on the plea.
Impact
32 I have mentioned the impact statement of Ms Radi that was filed in this matter. It was marked as Exhibit B.
33 I will not go into the full detail of the impact statement in these my reasons. There is no point in me doing that. Indeed, she read it aloud the other day. I have also read that impact statement again since the plea, together with the two expert reports.
34 I will mention just some of the matters raised within that impact statement. I did seek to clarify what seemed apparent to me from reading it; that there were many aspects of the impact statement which hinted, to me at least, at it having been prepared far closer to the events in question and that was in fact confirmed by the parties. I was given some updates from the prosecutor and your counsel was explicit in stating that he had no need for any of that updated information to be placed before me in a more formal fashion. Had Mr Bloemen required that to occur, well it could have been done either by the calling of Ms Radi on those topics or, more likely, by the obtaining of an updated written victim impact statement or addendum.
35 Let me turn then to some of the things that she has described. Well, she fears she will never be the same again. She speaks of the experience that she suffered in hospital. She describes occasions of waking up and nearly forgetting about the collision but then of course being reminded of it by the pain that she experiences. She was out running for a good cause and she was settled in life and had great expectations. Settled in a relationship with a rewarding career as an accredited exercise physiologist. She was an active person, a runner, a camper. She described her life essentially being on hold. She has had a number of significant physical issues including incontinence and pain and there is pain in the pelvic region. She has been scared by intimacy. She felt like she had become a child again with all the indignities of other adults caring for her including her mother and her partner, and she found that to be humiliating. She has struggled psychologically and why would she not, for she has had to adjust to a very different life with something of a dark cloud hovering over her future. She has not been able to return to work. I interpose, that is still the position as of today. Her work as an exercise physiologist consultant ceased. Her clients had to transfer off to other consultants. The physical impacts are described at length. She loved running and tennis and her job, and then she could not do any of these things owing to you, and she is left with a myriad of physical issues. She was on crutches and then in a wheelchair. That at least has resolved. When she wrote the impact statement, the injuries were yet to stabilise and she said there would be further specialist support for long term rehabilitation, reviews, and pain management and that is what has taken place. It is ongoing as the reports make clear. She describes having numb fingertips and she had, at some points, needed some help showering and rising from the toilet.
36 She could not sit longer than 30 minutes or get comfortable in bed and she still has those issues, though the TAC ‘stumped up’ for the cost of a special bed. The fact is though that she cannot use another bed for more than a couple of nights. In the course of the plea, she rejected my offer to sit down when reading her lengthy victim impact statement and that was owing to her physical issues and discomfort, and once she had read her impact statement, she had to, on occasions, stand up in the body of the court and move around.
37 She describes in her statement being constantly cold and she speaks of the many appointments that she has had to attend. Of how she wakes up in pain and goes to bed in pain. She lost her sense of independence amidst all of this. She describes earning everything that she had gained in life and describes being in a fight, she believes, for the rest of her life to maintain it. She speaks of the grief of loss of intimacy with her partner and she is reminded each day of your crime when she sees the scars on her body, the scars at the various incision sites. Her young life has been consumed by rehabilitation rather than the joy that she had previously experienced. As I have said, running, tennis, camping, all the things she enjoyed are off limits for now. She was not able to be an auntie in any meaningful way to her young nephew at the time of the birth and in the period shortly after, and she describes the stressors upon the relationship with her partner, who after all, has had to adjust to a new life himself.
38 There is also the up-to-date material that I have referred to from her treating physiotherapist and from a specialist pelvic physiotherapist commenting on the physical issues and the treatment that has been required in the past and which lies ahead. The laborious process including weaning off crutches, and the wheelchair and the gym program. She required ongoing treatment for lower back pain and shin pain and the aggravation of her conditions by some of the exercises. She will likely have ongoing shin pain affecting her walking and running tolerance, likely ongoing issues with sacroiliac and bilateral hip pain. That pain significantly limits her sitting tolerance which is imperative for return to what was her pre-injury work. She is also predisposed to early onset osteoarthritis. There is the pelvic floor dysfunction spoken of in the other report at paragraph 1. That report sums it up thus:
'Several areas of her life have been impacted. She has been unable to work since the injury because of a significantly reduced ability to sit due to coccyx and pelvic pain, bladder urgency and urge incontinence. These same symptoms have also impacted Sian’s ability to engage in social and recreational activities.'
39 The author comments on the likelihood of ongoing pain and dysfunction. It is likely to continue and it will need to be managed. Pregnancy will throw up some issues and would also heighten the risk of deterioration. She can at least now independently shower and toilet, though she needs to use a special step. There are still significant issues in pain management and Ms Radi uses a TENS machine a couple of times a day on her lower legs.
40 No doubt Ms Radi has found it hard to put it all into words and that is because the alteration in her life and future prospects has been so dramatic. She really is now a different person with different expectations and it is you who have altered the course of her life, and in an instant.
41 I have only touched upon a few aspects of what is within her impact statement and those additional materials placed before me. I take into account the more complete document as well as the verbal update and those two expert reports placed before me.
42 The impact of a crime is one of a large number of matters that the court is required take into account. There are, of course, many other matters that I must have regard to, including the various matters in mitigation which have been placed before me by Mr Bloemen in the course of the plea that he conducted on your behalf. I must guard against the impact of your crimes swamping consideration of these other important sentencing factors in this case. I am, though, required to take into account the impact of your crimes, and I do. It has been profound. The impact of your crimes for which she is your victim has been and will continue to be very significant indeed. You have, in an instant, altered the trajectory of her life. Her life really will never be quite the same.
43 Let me turn then to the plea in mitigation that was conducted by Mr Bloemen.
In mitigation
44 He he relied upon a 20-page set of written submissions for the plea dated 6 March 2024. The last several pages set out various other examples of other sentences imposed in the past by other judges for other crimes. He accepted that those other cases were of limited assistance. He filed a handful of written exhibits being an old Department of Human services report from 2006, as well as a more recent letter from Liberty Disability Services and one from the Vacro ReLink program. There was also a letter from your mother and sister filed the day before the plea and hence, that letter (Exhibit 5), was not addressed in the previously filed written submissions. Finally, there was a summary of some 2014 offending which was marked as Exhibit 6.
45 Either by reference to that written material or in the oral submissions made in the course of the plea, Mr Bloemen informed me of your personal background and by that I mean, as he described it, your life history, things such as your family, educational, employment, health, drug use, relationship, and mental health history. He addressed me in detail as to your prior criminal history as well as to the time that you had spent on remand.
46 He made some submissions to the court as to your prospects of rehabilitation. He also made some submissions as to the role of totality of sentence. He made submissions as to the level of objective gravity of the offending as well as the relevant sentencing purposes in play in this case.
47 In a comprehensive plea conducted on your behalf, Mr Bloemen relied principally upon the following matters in mitigation:
· Your guilty plea, with the heightened benefit owing to the global pandemic backlog, (Worboyes[1]);
· Your disadvantaged background (Bugmy[2]).
[1]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
[2]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
48 He conceded the inevitability of a head sentence and of a dimension requiring the fixing of a non-parole period.
Prosecution
49 The prosecutor, Ms Gurry, had filed some very detailed written sentencing submissions marked as Exhibit C. I enquired of your counsel and it was then apparent that the Crown sentencing submissions were quite uncontroversial, dealing as they mainly did with matters of established sentencing principle. The main issue in dispute, at least in the written materials, had completely evaporated given your counsel’s sensible withdrawal of any reliance on the suggestion of this collision arising from inattention for .6 of a second. The prosecutor dealt with matters of aggravation present in this case as well as features of aggravation that were absent. In a way it mirrored the approach of your counsel. Each party made submissions as to where the offending sat on the spectrum of offence seriousness and the reasons why it did.
50 Ms Gurry dealt with your level of culpability and in her written submissions addressed some of the matters in mitigation. The prosecutor pointed to your highly relevant criminal history. This was, she said, a serious enough example of dangerous driving causing serious injury. The fail to render assistance was a serious offence. She submitted that this was a collision where you must have been on notice as to the fact of a collision with a pedestrian and the fact of serious injuries being occasioned. It was not, for instance, a setting where there might have been some glancing blow at night with some doubt dwelling in your mind on these topics. The prosecution placed before me various LEAP summaries of some of your prior offending as well as the sentencing remarks of Judge Lyon. The Director in this case was calling for a head sentence with a non-parole period, but so much had been readily conceded by your own counsel on the plea.
51 I will come back a bit later to consider the various submissions made by the parties.
Background
52 Let me turn firstly to your background. I have no reason not to accept the submissions and material placed before me as to your personal background. Your counsel was relying upon your disadvantaged background in the manner contemplated by a line of authority often referred to by us lawyers as the principles from the case of Bugmy. These Bugmy and Herrmann[3] submissions are now very common, and they are almost always based on self-report to counsel, or self-report to a psychologist. Very often there is a most unsatisfactory or shaky evidentiary foundation. That is not the position in this case at all.
[3]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
53Here, I have some contemporaneous material in the Department of Human Services report from 2006 which drew information from the Department of Human Services file in relation to departmental involvement in the preceding decade arising from child protection concerns.
54You were born in May of 1990 and you are now 33 years of age. So, you are turning 34 in a couple of months.
55As I have indicated a moment ago, I am prepared to act on the account of your personal and family background which has been placed before me. For that reason, I do not see any need to restate it all back to you. It is as obvious to me, as it was to Judge Lyon who sentenced you in 2020, that your early background was one of significant disadvantage.
56You are one of two children. You have a younger sister. Your father had serious anger issues and issues with alcohol, as well as criminal leanings. In fact he recruited you, a child, into participating in crimes with him. You and your mother suffered physical abuse at your fathers’ hands. Your mother was also a drug user. It is plain enough that you were physically and psychologically abused in your developmental years. You were beaten and educated in criminal ways. You witnessed domestic violence directed at your mother. Your parents’ relationship was an on again/off again affair and notifications were received by child protection authorities. You were subject to interim protection orders as a child. The family home was no safe haven for you, that is abundantly clear. You were introduced to drugs by your own father at a depressingly young age. Your father served prison sentences including a lengthy one from 2005 to 2011 at the end of which he was then deported back to the UK. Of course, the damage was well and truly done by then in your developmental years.
57You had the fragmented schooling described on p6 of the defence outline and ultimately you completed what was the equivalent of Year 10 in a youth justice facility. You had sporting interests and also some proficiency in sport but again your father, when on hand, was a corrupting influence, as is described in p7 of the defence outline.
58You have few skills and you have had only very limited employment over the years.
59You had a long-term relationship with Courtney, one which lasted 12 years or so. You are separated now but have four children ranging in age from 15 down to 11 and your mother and sister's letter speaks of the nature of that relationship.
60Alcohol and drugs have been problematic for close to 20 years. That is a pretty stark thing to say to a person who is only 33 years old. Page 8 in the outline sets out the history. You have had I am told some past issues with anxiety and depression as well as a history of head injuries. Those things can have no real role in my task, as for whatever reason, your counsel has decided not to place any expert material in support of those matters despite obtaining reports. You are a recipient of NDIS assistance though I am not really told why. There are the two letters before me, one from the NDIS supervisor, and one from Vacro ReLink, and also of course, that letter from your mother and sister that I have mentioned.
61Part of your background and life history is regrettably a lengthy list of appearances before the courts over the entirety of your adult life. Virtually every year since reaching adulthood you have appeared before the courts, the exception most recently being 2019 and 2021 but of course, in those years, you were either on remand in the lead into the April 2020 sentencing exercise or thereafter serving that sentence. There was period of 755 days of pre-sentence detention.
62It is a highly relevant criminal history, in that you have time and time again, driven in a dangerous or risky fashion. You have failed to stop and you have failed to obey police directions. You have endangered members of the public either with risk of death or serious injury. It is, as you know, a very bad driving criminal history. Most recently you, as a passenger, encouraged the driver of a stolen car to get away from the police. You were dealt with by Judge Lyon in April 2020 for the aggravated instance of recklessly exposing an emergency service worker to risk. There were also other offences. You received three years and 11 months with a non-parole period of 32 months. I was told you did not get parole and served out the entirety of the sentence being released in October of 2021. You had then committed the receiving offence by December of that same year and you got the adjourned undertaking on the very day of this offending that I am dealing with.
63I see no need then to set out the full details of your criminal history in these, my reasons. The document itself does that and it will not change. You have a long list of convictions for many styles of offending, not just the matters that I have mentioned. I have mentioned already the sentences imposed by Judge Lyon. I have those sentencing remarks marked as part of Exhibit D.
64In December 2016 you received a prison term in combination with a community correction order for, amongst other offences, fail to stop a car on request as well as a consolidation of many other driving and dishonesty offences. You breached that community correction order. In July 2014, you were imprisoned for theft of a car and conduct endangering life as well as failing to stop after an accident. The summary of that offending, or at least some of it, is before me in Exhibit 6 which has been filed by your counsel. On 26 November 2012 you were imprisoned for conduct endangering serious injury and again, fail to stop after an accident. In March 2011 you were imprisoned for conduct endangering serious injury and fail to obey a police direction as well as a large consolidation of other matters. You also received a community correction order which again you breached.
65I have before me various summaries of past offending either in Exhibit D or defence Exhibit 6, though I do recognise the limitations of that sort of material. There can be differences between a LEAP summary and the way the matter is ultimately placed before the actual court. Mr Bloemen conceded though that this material gave a sense of the nature of the conduct. Indeed he drew the comparison between the driving in this case and the pretty outlandish, deliberate and prolonged driving captured in the Robinson summary for the 2014 conduct endangering life and fail to stop.
66You have seemingly breached every community correction order ever given to you.
67I have mentioned only some of the driving offences in your prior history. There are many others, including multiple unlicensed driving. If I add to those a couple of drive whilst disqualified offences, I counted, give or take, one or two, 29 or so but nothing hangs on the precise number. There are upwards of 10 car thefts. Again, nothing hangs on the precise number. There are countless other dishonesty offences.
68You have never been a licensed driver. You seemingly have driven pretty much whenever you feel like it irrespective of your lack of licence and experience. You drive stolen cars routinely. You endanger members of the public and on this occasion you really were remarkably lucky not to have killed a completely innocent member of the public. It is something of a miracle that Ms Radi was not killed. She was not even on the road. She was on the footpath.
69You have been sent to prison on a number of occasions including sentences of a dimension where a non-parole period has been fixed. As I have said, you have also been given opportunities by way of a community based disposition, such as a community correction order, and you have breached them.
70 I make it plain to you that you do not fall to be sentenced a second time for any of your past offending. You received those past sentences and served them. Your past criminal history does not in any way aggravate this offending or, for that matter, remove the need for the imposition by me of proportionate responses.
71 I must pass proportionate sentences for this offending.
72 I do however have to make judgements as to your level of culpability, your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight that must be given to protection of the community. You, I am afraid, are a real menace and I must protect the community from you.
73 Now I have set out only some of the detail of your background placed before me. As I have said, there is much greater detail in the written submissions and there is some very compelling material in the old Department of Human Services report from 2006. That is a contemporaneous document drawing from other contemporaneous documents. You were 16 years of age then when that was written, but that material includes descriptions of the reasons for the original Department of Human Services notification in 1996 with a serious assault committed upon you by your own father, and that was because he did not like the way that you had brushed your hair. You were 6. You were regularly abused physically and emotionally. You were called a 'dog' by your father. The family home was assessed by those who are experts in this area as being violent. Your later preparedness to commit crimes with your father was driven by your fear of him. In fact, he was your co–offender in many of those past matters that were dealt with in the Children’s Court and that is spoken of in that report. I only know about some of those matters from that report, but they are correctly not listed in the formal criminal history given the age of those matters and your status as a child at the time of that offending. I do not take them into account as they are not allegeable matters.
74 As I said earlier, Mr Bloemen was relying upon the principles derived from the case of Bugmy. These principles have been restated and even expanded upon in many cases since, including the case of Herrmann in our Court of Appeal. Mr Bloemen was relying upon these principles in the general fashion described in that case law. I asked him and he was explicit in that regard.
75 The application of these principles does not depend upon proof of some causal connection, and in fact that sort of thing is actually very difficult to establish. Nor do they depend upon proof of profound disadvantage.
76 I am left in no doubt at all that your background was very much unenviable. I am satisfied that there was a level of dysfunction and instability in your early life. You were exposed to violence and perhaps with the exception of your grandparents, you had the complete absence of any positive role models in your early years. You had the extraordinarily bad role model presented by your own father in those developmental years. Drugs and violence and crime were just a normal part of life. The Department of Human Services report suggests that your father viewed you as a peer, not as a child, a child for whom he had a role in demonstrating and shaping values.
77 It is plain to me that your early life did not prepare you for adult life at all. It is little wonder that you have turned to drugs and to crime when those, whose role it was to guide and instil decent moral values did quite the opposite. Yours was clearly a most unenviable background. I give it full weight in the way in which that term is employed in the case law that I have mentioned (Bugmy and Herrmann) but also in the case of Sabbatucci[4] and, more recently, as discussed in cases such as Newton[5] and Dhal.[6] I take your background into account as far as I am able to including as giving rise to some reduction in your culpability.
[4]Sabbatucci v The Queen [2021] VSCA 340
[5]Newton (a pseudonym) v The King [2023] VSCA 22
[6]Dhal v The King [2023] VSCA 289
78 The fact is that an offender’s circumstances and experience during their childhood and formative years, it must be considered in sentencing, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences and they can explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect into account when sentencing is the mark of a humane society.
79 These cases do though stress that social disadvantage will not attract the same weight in every case or in the same way. The weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, though none is required, but also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, including deterrence, community protection and rehabilitation (see the case of Terrick[7]). Well, your background is not just some matter of historical curiosity. Our backgrounds leave their mark and yours most certainly has. No one in their right mind would choose such a background as you had, and of course you had no choice in it. However, it did not lock you in to committing crimes such as these. You have, and have had, a choice. You keep making the wrong choices.
[7]DPP v Terrick [2009] VSCA 220
80 You have been given chances over the years by the courts and you have not taken them.
81 You are now almost in your mid–thirties and show no signs really of turning away from crime. No signs of being deterred. This was serious offending where community protection and general deterrence must loom large in my task. There are limits to the application of these Bugmy type principles. I do though apply them to my task.
Guilty plea
82 Let me turn now then to some of the other matters raised on the plea.
83 Firstly, your guilty plea. It was not a plea at the earliest or even an early stage. As your counsel submitted it was ‘neither early nor late’. It is still of importance. There was a two-day committal where your then counsel, not Mr Bloemen, cross–examined a number of the people who were at the collision scene, some of whom were doing what it was your duty to do; assisting your seriously injured victim.
84 At least your victim was not cross examined. You were testing the evidence that could put you at the scene as was your right. What was achieved by the committal is debatable. You pleaded not guilty and you were then committed to this court. You then, through counsel, engaged in an unusual exercise where a plea offer was made on 18 June of last year but then a s198B cross–examination of the DNA expert took place a day or two later. Again, that was a process where you were challenging or at least testing evidence providing a link to your presence at the scene. The timing seemed to me to be a bit odd, to be offering a plea and then conducting that cross-examination, but this was a choice made by your counsel. Then, some months were gobbled up post settlement with what really was a completely forlorn application to remit this matter for plea in the Magistrates' Court. An application which was abandoned days out from the early December listing.
85 As I said earlier, this case really could and probably should have settled a good deal earlier, though the fact is it was undoubtedly your right to run a committal hearing and plead not guilty and then to cross–examine the DNA witness and then apply for the remittal of the matter.
86 The matter did settle on 19 September 2023 and in a setting where the Crown did not proceed with one of the charges. That offer was made on 18 June of last year so that is the date that I treat as being significant, not the later date when that offer was accepted.
87 You have at least taken responsibility for your crimes by pleading guilty and nothing in that chronology alters that fact. It does have a role to play when I come to consider the issue of remorse, as I soon shall.
88 As a result of your guilty plea, the time, the cost, and the effort of a jury trial in this court has been avoided. All of the witnesses have been spared the experience of giving evidence in this Court. Ms Radi has never been subjected to any cross–examination.
89 You have facilitated the course of justice and you must be rewarded for doing so. That is the law.
90 This matter settled in September of last year but as against that June offer, at a stage when the backlog in this court was close to being brought under control. I am speaking of the backlog arising in the global pandemic. It had not been entirely cleared when you made the offer or even when the offer was accepted by the prosecution.
91 We are surely close to the point in time now, if not at that point, where any future decision to plead guilty will not be met by any heightened sentencing benefit derived from the Court of Appeal decision of Worboyes and the subsequent cases applying that decision. I wait for some Court of Appeal guidance on that topic. The fact is we have now moved beyond the global pandemic and more importantly, the pandemic backlog in this court has now actually been cleared. It is a matter of fact and record for that matter, that we are operating in this court at pre-pandemic levels, as the Chief Judge announced to the profession in October of last year. This case however settled before that announcement, and your offer to plead was made earlier still and, one would expect, was made in contemplation of there being some Worboyes type allowance.
92 I do accept it is appropriate to give some heightened benefit to your guilty plea in line with the principles derived from that case. I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.
93 I take these various matters into account in mitigation.
94 I turn then to the issue of remorse.
Remorse
95 Your counsel’s submissions were silent as to remorse. That was pretty understandable given the chronology. I asked him about this given the late filed letter from your mother and sister which had something to say on this score. Mr Bloemen recognised that the chronology of the matter before the court was not helpful. There was no police interview nor any report from you to any expert witness spelling out the presence of remorse. You ran that contested committal I spoke of and then had the s198B application in this court. You were testing or challenging your presence at the scene as the driver. Such things as mentioned by your mother and sister had to be seen against that backdrop.
96 Mr Bloemen was explicit in submitting that he made no submission to the court as to the existence of any genuine remorse in this case. I had a sense from what Mr Bloemen said as to discussions that he had had with you, and from my own observations of you on the plea, that you were in the course of this case, brought face to face with the gravity of your conduct upon the reading of the impact statement by Ms Radi. It was no easy business to hear this young woman describe what you had done to her life. I certainly do not have any sense of your revelling in the offending. You have pleaded guilty. A guilty plea is usually, though not always, indicative of some remorse. I will imply some limited remorse in this case and take that into account in your favour.
COVID burden
97 Mr Bloemen had made no submissions to me as to any past increased custodial burden arising from the prison authority’s response to COVID-19. There was some mention in your mother and sister’s letter of some issues experienced, but that was not an appropriate evidentiary foundation, it gave no sense of any duration or degree and it did not accord with my memory of the limitations and when they were lifted by the authorities. I asked questions on that topic at the tail end of the plea, as I really wanted to know whether it was in any way being relied upon. The short answer is that it was not being relied upon as you entered custody just as the major limitations were being removed. Your counsel did however remind me that you were not interviewed as you had tested positive for COVID and you would then have likely entered custody with a period of quarantine or isolation. I take that into account, but beyond that, I was not asked to conclude that there was actually any increased burden here posed by the response to COVID-19.
Rehabilitation
98 I turn now then to your prospects of rehabilitation. Sensibly, your counsel was not slinging around extravagant adjectives to describe your future prospects. He submitted the court could only be guarded.
99 I will be relatively brief. The signs are not at all good despite the supportive statements in the two letters, one from the NDIS and one from Vacro ReLink. I note Mr Nicholas, your NDIS supervisor, was named in the adjourned undertaking that was imposed on the day that you actually committed this offence. I do not ignore either letter or, for that matter, your mother and sister’s letter, but nor can I ignore that this offending took place within months of release from a lengthy prison sentence for another serious driving offence, albeit not as the actual driver, and against the background of a man with the pretty terrible driving history.
100 You were dealt with by a court on the day of this offending and put on an adjourned undertaking to be of good behaviour and within hours you were behind the wheel of a stolen car and engaged in this serious criminal conduct. I do accept from your mother and sister’s letter that you are far more than just the person who has committed these serious offences. No doubt there are some qualities on display, they see them and they speak of them. No doubt you do struggle to adjust to life upon release from prison. No doubt you do still struggle with the issues arising from that disadvantaged background that I have described.
101 You are though, a mature man who seemingly cannot be deterred. You drive when you feel like it. You drive stolen cars and you drive them in all manner of dangerous fashions. You have a most disadvantaged background but that does not explain this offending at all. You are also a long-term user of a variety of drugs and have breached virtually every court order imposed upon you, in the adult courts at least. You are not some silly teenager out on their first criminal outing. You have been offending consistently throughout your adult life and, regrettably, show no signs of stopping. You received a sentence of close to four years in 2020 for serious offending. As I say, you were not the actual driver though you were complicit in the reactions and conduct of that driver. Well, here you were, less than six months post release, driving a stolen car yet again, whilst unlicensed and, yet again, driving so deficiently that you are back in the dock of a court, not just for having endangered others as you have in the past, but for having this time, seriously injured a pedestrian. That crime of dangerous driving causing serious injury was of course bad enough, even had you stopped. Even had you done everything in your power to assist Ms Radi or to assist those who were assisting her, but how on Earth might a driver in that setting behave in such a manner as you did? Getting out and being more worried about your stolen car than the person who is lying seriously injured, screaming on the ground. It was just so callous and unfeeling. I would hope that the sentence that you have served to date on remand, and that which lies ahead, may play some role in deterring you in the future but the chronology of offending is not too encouraging in that respect. I hope that I am wrong, but as presently viewed, it is my assessment that you have poor prospects of rehabilitation with a sizeable risk of reoffending and in a similar way, and by that I mean with dishonesty offences, driving and endangerment offending.
The Offences
102 Let me turn back to the offences briefly. The agreed summary describes your offending. I am not going to re-state all the agreed facts again. I turn now then to some general statements as to the dangerous driving causing serious injury.
103 Dangerous driving causing serious injury or death is an inherently serious offence. The cases demonstrate that there can be sizeable differences in the moral culpability of an offender. The offence can encompass a very wide range of conduct. Of course, it can include a death and where it does, of course, there is the greater maximum penalty in play for that offence. Well, I am dealing with a serious injury and of course the lower maximum penalty applies. I said on the plea that for close to 20 years, judges in this court and in the Court of Appeal some years back had been very critical of the five year maximum penalty then provided for the crime of negligently causing serious injury, and that penalty was doubled to reflect the fact that so many of the seriously injured people under that provision had received sometimes catastrophic injuries in motor vehicle collisions. Yet here we are with a provision dealing specifically with dangerous driving causing serious injury, which has a five-year maximum penalty. Nonetheless, that is the maximum penalty and I must apply that five year maximum penalty to my task and have regard to that.
104 Whether causing death or serious injury, every instance of the offence necessarily will involve a serious breach of the proper management or control of a vehicle so as to be dangerous to others. Dangerousness in this respect involves a serious breach creating a real risk of death or serious injury. The driving must therefore have a feature which subjects other road users to some risk over and above the risks ordinarily associated with road use. This offence is not concerned with momentary ‘carelessness’ or minor mistakes, even the best drivers occasionally lose attention for a moment or make minor mistakes and the offence does not capture that sort of conduct.
105 You have admitted the elements of this offence but as inherently serious as the offence of dangerous driving causing serious injury is, I still need to engage in an assessment of the gravity of this instance of the offence (Lombardo[8], Peers[9] and also Woldesilassie[10]).
[8]Director of Public Prosecutions v Lombardo [2022] VSCA 204
[9]Peers v The Queen [2021] VSCA 264; 97 MVR 379
[10]Woldesilassie v The Queen [2018] VSCA 1332
106 That task will be informed by the extent of the risk which the driving created, as well as the potential harm should the risk eventuate.
107 The gravity of dangerous driving causing death or serious injury will be heavily influenced by the offender’s moral culpability and the objective dangerousness of their driving.
108 An offender will have a lower moral culpability if the collision occurred because of the momentary inattention or misjudgement or where, for instance, there might be external circumstances such as the poor road design at an intersection that might have contributed to the collision.
109 So one useful question to ask is, 'What degree of care, and in particular, what degree of alertness to risk, was reasonably to be expected of the driver in the circumstances?'
110 A 2002 New South Wales decision of Whyte[11] is often cited as providing a list of features that might aggravate the gravity of driving offences causing either death or serious injury. Those features set out within that case are not exhaustive. They might include things such as:
[11]R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
·the extent and the nature of the injuries inflicted;
·the number of people put at risk;
·the speed;
·the degree of intoxication or of substance use;
·erratic driving;
·competitive driving or showing off;
·the length of the journey during which others were exposed to risk;
·ignoring warnings;
·escaping police pursuit;
·sleep deprivation;
·failing to stop.
111 But the decisions of Stephens[12] and Weybury[13] spell out that moral culpability is not assessed by listing all the aggravating features that could in theory be present but were not, and then asserting that the instant case cannot therefore be regarded as serious, or even very serious, because of the absence of some of those factors.
[12]Stephens v The Queen [2016] VSCA 121
[13]DPP v Weybury [2018] VSCA 120
112 The dangerousness and your moral culpability fall to be assessed by reference to all of the conduct and all of the circumstances of this case.
113 Well, staying on the road surface is a pretty fundamental requirement of driving a car. You had no business being on the road at all. You were not licensed. Your experience to drive a car had not been ticked off. It never has been. You were driving a stolen car and driving is probably not an apt description given the length of absence of driver input here and the way this car moved on this day.
114 You had been placed on an adjourned undertaking to be of good behaviour hours before. For whatever reason, you made no effort to follow the road. For whatever reason, you were paying no attention at all and went across the road entirely to the wrong side. You then mounted the kerb and you mowed down a pedestrian who was on the footpath. Your inattention was not for a fraction of a second. I do accept that it can be contrasted with the protracted and reckless conduct spelt out in the Robinson summary marked as Exhibit 6 relating to some of your other driving in the past. However, your inattention here was serious. It was not someone drifting off or zoning out and not seeing a red light or stop sign and going through it. As I said on the plea, you really might as well have been sitting in the back seat of the car for all the control you were exercising over this vehicle, as in, none.
115 You had no business being behind the wheel of a car. You drove in a residential area without any inputs for four seconds. This was for about 56 metres. You totally failed to make any move to keep the car on your side of the road, instead travelling at 50 kilometres per hour with decreasing speed across the other lane and up onto the pedestrian footpath of the bridge. There was a steering input a metre out and no braking. Ms Radi was not even a player in what was taking place on the road. She was not a road user at all. She was not running or walking across it. She was not even on the road. She was on the footpath. It is a pretty extraordinary act of dangerous driving causing serious injury. Self-evidently, a serious enough example of that crime. The injuries themselves of course have been life altering for her.
116 That offence has then concluded.
117 Your conduct in failing to render assistance was really quite extraordinary, as I said earlier in my remarks. Your moral culpability for that offence is high indeed. It is not mitigatory that others provided assistance for your victim (see the case of Bankal[14]). It was your duty to do what you could to assist. You knew you had struck a pedestrian. You must have known she was seriously injured or likely to be. You got out. You could see her. You did not just silently slink away. You tried to pick her up but that was not to assist her. You tried to reverse the car away repeatedly. Rather than assisting her, you were focusing on self-protection and saving your own skin. Rather than assisting her in any way, you even distracted one of those who was trying to assist her, asking for her helper to stop doing what he was doing and assist you free up your stolen car. It really was incredible conduct.
[14]Bankal v The Queen [2019] VSCA 171
118 As Mr Kazantziois said, though not with these words, you really could not have cared less about her. You were on the phone, trying to move the car, and then moving items from the car and then leaving despite requests that you remain at the scene. This conduct was that of the man who had driven so dangerously. The mature man who was unlicensed and driving a stolen car. The mature adult with a terrible driving history including for failing to stop after an accident on no less than two occasions. You really had no regard at all for your victim’s welfare. You were only concerned as to your own predicament and you left to avoid apprehension and liability for your crimes.
119 The dangerous driving causing serious injury, as I have said, is a serious enough example of the offence committed by a man with that terrible criminal history and lack of response to court orders. The fail to render assistance is in my view a serious example of an inherently serious offence which has a much higher maximum penalty. It would no doubt be an aggravating feature had this occurred on a dark night and you had walked off leaving your victim to her own fate with no one else in attendance. That is not what happened here but it is not mitigatory that others provided assistance. It was your duty to stay at the scene. It was your duty to do what you could do to assist and this offence was, as you heard, subject to a massive increase in penalty some years back when the maximum penalty went from two years to 10 years.
120 We will never know if you were in any way affected by drugs or alcohol or even the reasons for the inattention. I must not speculate as to the presence of alcohol or drugs. Your leaving the scene of course meant that the blood tests that would have been mandatory could not be performed. What I do know is you were unlicensed and you were driving a stolen car. Plainly, you were endeavouring to avoid any criminal liability for that conduct and of course for the impact with a pedestrian. I have said already, there is a callousness to your leaving the scene in the manner which you did. I have scarcely mentioned the car theft or the unlicensed driving. You are a repeat offender. You just keep offending and that is so despite such sentences as have been imposed. Your moral culpability is high despite such allowances as are made on a Bugmy basis.
Purposes
121 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. Your prospects are, in my view, poor. Rehabilitation must take something of a back seat in my task. I do not ignore it. It is just that the other purposes of sentencing are of such significance in this case.
122 I am required to punish you justly and proportionately. Punishment is an important sentencing purpose in this case.
123 I must also denounce your conduct. Again, that is of importance. This was dreadful driving but your response once you had struck a pedestrian was worse still. Unlike the driving conduct, that later conduct was deliberate and considered, albeit it with some level of panic. What a terrible thing to have done. I must strongly denounce your conduct.
124 I turn then to community protection. It is of real importance in this case. It looms large in my sentencing task and that is surely obvious. You are a real menace to the community and the community must be protected from you. However, it is fundamental that a sentence must be proportionate to the crime, and that a disproportionate sentence may not be imposed to extend the period of protection of society from the risk of recidivism on the part of an offender. An extension of a sentence merely by way of preventative detention is impermissible. The principle of proportionality precludes such an approach as that. However, the exercise of my sentencing discretion, having regard to the protection of the community, amongst other factors, is perfectly permissible. That is because protection of the community is relevant to the fixing of the appropriate term (see Veen (No.2) [1988] HCA 14).
125 Deterrence is also of real importance here. I must try to deter you, as well as others, from offending in this way in the future.
126 Specific deterrence relates to the need to deter you. That is of obvious importance here. Past sentences have simply not deterred you. I must try again.
127 Then there is the principle of general deterrence. The prosecutor referred to the case of Neethling[15] but could have as easily selected from any number of other cases to demonstrate the importance of general deterrence in this sort of matter. General deterrence is an important purpose of sentencing when dealing with offences such as dangerous driving causing serious injury and failing to render assistance. Most of us are drivers. All drivers must understand the importance of driving appropriately. They must understand the risk to others, and indeed the risk to their own liberty, if they engage in dangerous driving. The message must be very clear. Drivers can and will of course have collisions. Whether they are at fault or not, whether they are ultimately judged to have a criminal element to them or not, drivers must all understand the critical importance of stopping and of rendering such assistance as they can. I must send a clear message about the need to stop and to render such assistance as can be provided. It is a statutory duty and it is non–negotiable that a driver must do these things.
[15] DPP v Neethling at [30], cited in Director of Public Prosecutions v Weybury (2018) 84 MVR 153 at [22]
128 Well, I must endeavour to deter future offenders.
129 I have to pay regard to the impact of the crimes and the maximum penalty for each offence. I have spoken already of the very sizeable impact in this case.
130 I have to pay regard to current sentencing practices. That is not a single controlling factor at all. I have looked at the Sentencing Advisory Council online statistical material for Charges 2 and 3. I have looked also at the Judicial College of Victoria case summaries as well as the selection of sentencing outcomes referred to in your counsel’s submissions, as well as in the chart attached to the Crown submissions. Some of those cases I should say involve dangerous driving causing death which of course has a much higher maximum penalty.
131 I was not at all assisted by these other cases. As was conceded, there were many differences between them. Differences in offence gravity and personal circumstances of the offender. Differences in plea, the stage of the plea, the levels of impact, the conduct, and the objective gravity.
132 Sentencing statistics are of very limited use, if any.
133 Other sentences imposed upon other offenders for other crimes do not operate as precedents to be followed unless somehow they are able to be extinguished. They are not precedents at all. They are simply examples of other sentences imposed on other offenders for other crimes. There is no such thing as one correct sentence.
134 I have looked at the cases of Bankal and Stewart[16], decisions out of our Court of Appeal. They are of some value in setting out matters of principle as well as some statements as to the seriousness of failing to stop, or render assistance, and the frequency of sentences of between three to four years for such an offence (see paragraph 38 of Bankal). I note also the aspect of Stewart with a base sentence imposed for the fail to stop charge and then the sizeable cumulation in relation to the dangerous driving causing serious injury sentence. I am not suggesting these cases or any of the others are on all fours with yours. I do note however the enormous number of very impressive matters in mitigation in Stewart’s case as set out in paragraph 10, matters that literally dwarf the mitigatory matters in this case. As I have said though, the actual outcome in that case does not in any way dictate the outcome in this case. It provides an example, amongst many others, of the very sizeable prison sentences on offer for this style of conduct.
[16]Stewart v The Queen [2018] VSCA 55
135 As is usually the position there are many differences in each direction where I go through those various cases. Many and varied matters both in aggravation and mitigation.
136 Well, I am sentencing you for your crimes. That is not a mathematical task. It is not a statistical task or one where the outcome in this case is driven by what has happened in other cases or by average outcomes or by trends that might be disclosed in the statistics. What I must do is have regard to the actual features of these offences as well as your personal matters. So the individual features, both of aggravation and mitigation, in this case.
137 Your offending is serious. Your driving record is terrible. You really cannot expect any leniency when brought before a court for serious driving offences given the prominence of denunciation, general and specific deterrence and community protection in this sentencing task.
Totality and cumulation
138 Prison is a disposition of last resort. It is conceded that a prison sentence of a sizeable nature is unavoidable here, given the seriousness of the offending and the need for cumulation.
139 I take into account the principle of totality of sentence. I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have four charges to deal with. Three of those are on the indictment before me. I have the unlicensed driving which is before me as a related summary offence. Of course, there is the temporal connection here in that the offences occurred on the same day. You chose to drive unlicenced, you were driving a stolen car and hence we have the charge of theft. You then drove dangerously and caused these serious injuries. You then left the scene. So four different crimes with differing elements and impact. Your response in leaving the scene and not providing assistance involved a serious crime indeed and one which I believe has a higher level of moral culpability than is possessed by Charge 2, the dangerous driving causing serious injury. There is no basis at all for total concurrency here and nor does your counsel for one moment suggest that there is. Plainly, the decision to drive a stolen car was one taken by you in advance of the deficiencies we see in the management and control of that car. You were unlicensed. Then there is the calamitous driving but that ended and then we have your quite extraordinary conduct in failing to render assistance in the manner that you did. That is a quite separate offence with separate elements.
140 I believe there must be substantial cumulation in this case in relation to the sentences imposed on Charges 2, dangerous driving causing serious injury, and Charge 3, the fail to render assistance.
141 I have had a serious question in my mind as to which of Charges 2 and 3 should command the base sentence, and I raised that matter in the course of the plea. That is how serious the fail to render assistance is in this case. It seems almost counterintuitive given that Charge 2 has produced the serious injuries and the impact that has been described at length by Ms Radi. However, that was an act of dangerous driving satisfying that criteria by virtue of your inattention. It was not deliberative. That offence has a five-year maximum penalty.
142 Charge 3 has a far higher maximum penalty, 10 years, and it involved a conscious decision by you to act in the way that you did with such a callous disregard for the person you knew you had struck with that car. In the circumstances, that will be the base sentence as it was in the case of Stewart.
143 I have taken a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.
144 I will be required to fix a non-parole period owing to the size of the head sentence which I will soon pronounce. I must not take into account the possibility of your early release on parole. The Adult Parole Board will make their own decision as to whether you can be released on parole. That has nothing to do with me. Indeed, I must have no regard to that possibility.
Licence orders
145 I am required to make some orders disqualifying you from obtaining any licence or from driving.
146 I am going to exceed the mandated minimum periods for Charges 1 and 2, but in doing so I recognise that those periods will have no impact upon you at all as they will be completely subsumed by the mandatory minimum period of eight years which is required in relation to Charge 3, a mandatory minimum period which I will not exceed.
147
On Charge 1, I cancel any driver's licence or permit and you are disqualified from obtaining any driver's licence or Learner permit for
12 months from today's date.
148 On Charge 2, dangerous driving causing serious injury, I cancel any driver's license or permit and you are disqualified from obtaining any driver's licence or Learner permit for four years from today's date.
149 On Charge 3, fail to render assistance, I cancel any driver's license or permit and you are disqualified from obtaining any driver's licence or Learner permit for the mandatory minimum period of eight years from today's date.
150 The sentences I will impose can in no way place Ms Radi back in the position that she was in on that sunny day in late March of 2022 when she had been jogging happily along the Darebin Creek trail in the course of this charity run. They are not designed to. Her life has been altered owing to your crimes and there is really nothing I can do about that. I must take into account the impact, as well as the various matters both in aggravation and mitigation and then pass appropriate sentences. There will probably be no comfort at all provided to her or to her family and friends by the sentences which I will now impose but I must now pass the appropriate sentences in my judgment.
151 If you would stand up please, Mr Gilbert.
Sentence
152 On Charge 1, theft of the car, you are convicted and sentenced to
12 months' imprisonment.
153 On Charge 2, dangerous driving causing serious injury, I convict and sentence you to three and a half years' imprisonment.
154
On Charge 3, fail to render assistance, I convict and sentence you to
four years and three months' imprisonment.
Summary matter
155 On the related summary matter of unlicensed driving, I convict and sentence you to three months' imprisonment.
Concurrency
156 The base sentence is therefore the four years and three months imposed on Charge 3. I direct that:
· four months of the sentence imposed on Charge 1 (the theft);
· two years of the sentence imposed on Charge 2 (dangerous driving causing serious injury); and
· one month of the sentence imposed on the unlicensed driving matter;
is to be served cumulatively upon the base sentence and upon each other.
Total Effective Sentence
157 It follows then that the total effective sentence is six years and eight months' imprisonment.
Non-parole period
158 I fix a period of five years and two months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
159 You have already served 716 days of this sentence by way of pre‑sentence detention and that is to be entered into the records of the court pursuant to s18 of the Sentencing Act.
Section 6AAA
160 I have told you that I have taken into account your guilty plea and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to eight years' imprisonment. I would have fixed a non‑parole period of six and a half years in that setting.
161 Grab a seat then for the moment, I will just see if there is anything else – any other matters I need to deal with, Ms Sparrow?
162 MS SPARROW: Nothing arising, Your Honour.
163 HIS HONOUR: Ms Watters?
164 MS WATTERS: No, Your Honour.
165 HIS HONOUR: I will get the transcript back of my sentencing remarks and once I do I will revise them and make them available to the parties. It is a matter of how quickly they come back but I will revise them when I get them. Ms Watters, are you going to go down and see your client downstairs and discuss with him what has occurred here today and his rights in relation to it?
166 MS WATTERS: I will, yes, Your Honour.
167 HIS HONOUR: Okay. Look, that completes the matter then. So all right. Mr Gilbert, Ms Watters will come down and have a chat to you about what has happened here today and your rights in relation to what has occurred. So she will see you downstairs. So Mr Gilbert can be removed please. Thank you.
168 I will sign those orders in Chambers.
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