Director of Public Prosecutions v Gioutsos
[2017] VCC 695
•31 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS GIOUTSOS |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April and 26 May 2017 | |
DATE OF SENTENCE: | 31 May 2017 | |
CASE MAY BE CITED AS: | DPP v Gioutsos | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 695 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Manning | Office of Public Prosecutions |
| For the Accused | Mr N. Goodfellow | Patrick Dwyer |
HER HONOUR:
1 Nicholas Gioutsos, you have pleaded guilty to one charge of failing to stop after an accident. The maximum penalty applicable to that offence is 10 years’ imprisonment and you have also pleaded guilty to one charge of failing to render assistance after a motor vehicle accident, the maximum penalty applicable also 10 years’ imprisonment. These crimes arise out of events which took place on 10 February 2015.
2 It is not necessary for me to recount in great detail the facts of this matter, it having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case, in my opinion, are most serious and disturbing.
3 I turn to a summary of your offending. On Tuesday, 10 February 2015 at approximately 7.50pm, there was a collision on Plenty River Road outside 31 Plenty River Drive, Greensborough, opposite its intersection with Pamburra Court.
4 A vehicle driven by you collided with a 9 year old boy who was riding his bicycle, causing the boy serious injuries. It was accepted by the prosecution and therefore by me you were not at fault in relation to the collision. I must, and do, sentence you on that basis and I note in court the presence of the parents of Liam who are understandably very upset and distraught regarding their son and the sequelae of this collision, but I must proceed on that basis as accepted by the prosecution.
5 You have, however, after the collision failed to stop and failed to render assistance and they are the charges before me.
6 You are 24 years of age at time of sentence and were 22 at the time of this offending. Your victim, Liam Hall, is now 11 years of age and was 9 at the time.
7 You held a full and current Victorian driver’s licence and were driving a motor vehicle registered in your name. The weather was clear and traffic flow light, with a speed limit of 50 kilometres per hour, relevant to that road.
8 At approximately 7.50pm on 10 February, Liam left home on his bicycle after dinner and apparently after he had engaged in an argument with his older brother and was upset by it. It was still light outside.
9 You were driving your motor vehicle along Plenty River Drive, having driven from your nearby residence to Apollo Park Milk Bar, and were on your way home at the time of this incident.
10 Without warning, Liam rode his bicycle from the driveway of a pre-school on Plenty River Drive onto the shoulder of a crest on Plenty River Drive, heading north towards Pamburra Court. Upon entering the roadway, Liam was immediately struck by your vehicle.
11 The force of the impact threw Liam 3 or 4 metres into the air and he landed on your windscreen, causing it to shatter. Your car’s bumper bar and registration plate fell off the vehicle at the scene.
12 Liam was carried on your vehicle for a distance before eventually sliding over the roof of the car and landing on the road, coming to rest approximately 125.8 metres from the point of collision. He was unconscious and lying on the road near the gutter and you continued driving without stopping.
13 A passer-by, Edbrooke, witnessed the collision and saw you did not slow down. He decided to turn his vehicle around and pursue you, and in doing so had to speed up to catch up with you. Edbrooke noticed as you passed through a roundabout, no brake or indicator lights were activated on your vehicle. After Edbrooke passed through the roundabout he caught up with you and flashed his vehicle’s headlights and honked the horn to get you to stop. He did this for approximately 20 to 30 metres.
14 You had slowed down due to the traffic on the road by that stage, but continued driving. The prosecution, it seems, accepts you were not making any attempts to flee.
15 You slowed and pulled over to the side of the road underneath the Greensborough bypass bridge. In total, you had travelled 590.2 metres on Plenty River Drive after the collision before stopping.
16 Your vehicle had extensive damage to it as a result of this collision. Edbrooke approached you and began dialling 000. You said “what’s going on ?” to which Edbrooke replied “we’ve got to get back to the accident”. He said you appeared to be in shock. You asked if the victim was all right and agreed to accompany Edbrooke back to the scene. Edbrooke drove you back to the scene in his own car.
17 Back at the scene you said, “I can’t go out there man” and you remained in your vehicle.
18 Other road users stopped to provide Liam with assistance. When ambulance officers attended they identified injuries that were life-threatening.
19 You then approached police and identified yourself as the driver, saying you had not realised at the time that you had hit anyone.
20 You told police at the scene you had been drinking and that contributed to your confusion and panic. You said you were aware you had hit a child riding a bicycle and you were afraid you might be over the legal alcohol limit.
21 You underwent a preliminary breath test returning a reading of 0.022 per cent breath alcohol concentration. At 10.45pm you underwent a second breath test that returned a negative reading.
22 The victim, Liam Hall, was transported by air ambulance to the Royal Children’s Hospital and was assessed when he arrived as having significant head and neck injuries, and fractured bones. He was in a critical condition.
23 Liam underwent surgery and was taken to the Intensive Care Unit in an induced coma, and remained in that state for approximately two weeks.
24 As a result of the collision, Liam sustained a severe traumatic brain injury, post-traumatic amnesia, distraction injury of the spine, spinal fracture, two fractures in the right leg, contusion of the lung, spasticity affecting his limbs, pancreatitis and he had to be fed through the nose due to difficulty swallowing.
25 Liam was at the Royal Children’s Hospital from 10 February to 20 May 2015. By the time of his discharge he was able to move in a wheelchair or with a walking frame. Doctors advised he should make a good physical recovery, but that he had a severe brain injury and could have memory, learning or behavioural problems in the future. The full effects of his injuries in terms of his cognitive and emotional ability will not be known for several years.
26 By July 2015, Liam was still walking with a limp and had a 1.5 centimetre leg length difference. He had made an excellent recovery from his head injury.
27 At home, Liam required and received speech therapy, physiotherapy, occupational therapy and neuropsychological treatment.
28 Liam underwent a gradual return to school, resuming full-time attendance by December 2015, with the assistance of an aide. He continues to suffer behavioural issues as a result of the collision and continues to see a psychologist.
29 Mr Goodfellow acknowledged this incident had a significant adverse impact on not only Liam, but also Liam’s family. That is an understatement, but again I state you have not been charged with causing Liam’s injuries and therefore I must not sentence you on that basis.
30 When interviewed by police, in a record of interview, you made admissions to your offending. You said it happened quickly, within seconds of driving from the milk bar. You said you could not even brake at all, you just hit him. You just kept going “cause … I was just in too much shock, I think.” When asked if you could have pulled over or stopped at an earlier point you said:
“Yeah, I could have but I didn’t kind of thing (sic) because I was way too much in shock for that… Just couldn’t believe it happened kind of thing and, like, yeah, is the kid all right, kind of thing… .”
You said you did not hear the witness honking his car horn at you, or remember any other cars around you at that point. You were aware a driver in an accident had a responsibility to stop and remain at the scene.
31 I discussed with your counsel other answers in your record of interview, including lack of reference to ice use at the time and in that regard I will refer to the report of Ms Cidoni in due course. I am mindful, of course, there is no suggestion your driving was adversely impacted by either alcohol or ice use.
32
You were arrested and interviewed on the day of the offending, being
10 February 2015. At a committal mention on 7 April 2016, you failed to appear and a warrant was issued for your arrest. You were arrested on that warrant on 15 April 2016 and bailed to 6 May 2016. At a contested committal on
9 December 2016, the matter proceeded by way of a straight hand-up brief. You indicated your intention to plead guilty to the charges.
33
You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. I accept you have also made admissions to your offending at the time you were spoken to by police on
10 February 2015. Witnesses have been spared the ordeal of having to give evidence upon your trial and the community has been spared the time and cost of a trial. In particular, you have saved Liam from the need to give evidence or being part of the trial process.
34 I also take into account in your favour, you intimated early your intention to plead guilty to these charges, although note with some concern, you have failed to appear at court on 7 April 2016. It would appear, however, you were located shortly thereafter.
35 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
36 You do not have any prior criminal record. You do, however, have a significant number of driving matters for which you have received infringement notices on a number of different dates since you obtained your licence at age 18 and you are now, as I have said, 24. The prosecution referred to an extract showing demerit points and various infringements between 13 April 2012 to 10 February 2015, with the latter an infringement on that day but not related to the matters for which I am to sentence you, albeit on the same date. You have, according to that document, received eight traffic infringement notices prior to 10 February 2015. All of those infringements, bar one, alleged exceeding the speed limit. That is a very troubling driving record for someone who has had a licence for only a short period of time.
37 Subsequent to 10 February 2015 there have also been infringement notices issued between 16 April 2015 until 2 February 2016, again mainly referable to exceeding the speed limit.
38 Concerningly, you have also been dealt with for other driving offences, as well as dishonesty offences at the Melbourne Magistrates’ Court on 26 February 2016, sixteen days after the offending for which I am to sentence you. The offences involved you driving whilst your licence was suspended and exceeding the 40 kph speed sign by more than 35 kph but less than 45 kph, those offences having occurred on 16 April 2015. Then, approximately eleven days after that, you were charged with driving at a speed dangerous on 27 April 2015, also dealt with at the Melbourne Magistrates’ Court on 26 February 2016. I was advised by the prosecutor you were travelling at 160 kph in a 70‑kph zone, using a hand-held mobile phone, as well as dishonesty offences, various dates of the offending between 23 May 2014 and 7 October 2015.
39 On each of those charges you were convicted and sentenced to a community correction order for 12 months with a number of conditions attached and your licence was cancelled and disqualified for 15 months from 26 February 2016.
40 I also discussed with your counsel in the recent report of Ms Cidoni to which I shall shortly refer, offending on 21 March 2016, yet to be dealt with by the court, as I understood it, when you were apprehended driving in Yarrambat without a licence and found to be drug driving (methylamphetamine).
41 You were due to be dealt with for breach of the community correction order imposed on 26 February 2016 at Heidelberg Magistrates’ Court on 3 May 2017. You also have a pending matter of driving whilst disqualified.
42 These subsequent matters cause me concern when assessing your rehabilitation prospects, as does your demerit point history prior to 10 February 2015.
43 Your counsel, Mr Goodfellow, provided a written outline of submissions which he addressed during the course of your plea hearing, and I discussed various aspects of his submissions with him.
44 Mr Goodfellow submitted that whilst you had not been charged with causing the injuries to Liam, you nevertheless felt guilty about the injuries he sustained.
45 Your counsel agreed that at the moment of impact you were aware you had hit a young person on a bike, and then of course the charges before me occurred.
46 Mr Goodfellow referred to a number of factors that were, however, absent in your offending. You did not speed away or hide the car, and did not take any deliberate steps to avoid detection. I am well aware of those matters.
47 He urged you were not avoiding responsibility for your driving on this occasion by leaving the scene, rather in part it was due to the fear of what you had done. You panicked. That was no excuse, he said, for your offending. You acknowledge that there are responsibilities on all drivers when in a collision.
48 Regarding the gravity of your offending, whilst Mr Goodfellow submitted that your failure to stop was not an attempt to avoid detection or arrest for wrongdoing that summation, in my opinion, that explanation does not adequately address the motivation for your offending in light of other evidence including reference by you at the scene to having a concern regarding your alcohol consumption that may have put you over the limit at the time. Also whether or not you were concerned about your methamphetamine use, referred to by you apparently in instructions to Ms Cidoni, and again I note those instructions were not part of your answers in the record of interview.
49 I agree with the submission made by Mr Manning for the prosecution that there is some ambiguity in the reasons you have given. Ultimately I am unable to make any specific finding as to your motivation for this offending.
50 This is also relevant to discussion I had with your counsel regarding applicability or otherwise of the principles in R v Verdins[1]. Whilst Ms Cidoni referred to possible intellectual disability, and that you had that at the time of this offending, any assessment of the impact on your moral culpability is difficult, given the evidence as a whole. That conclusion, in my opinion, is confirmed by recent correspondence dated 6 April 2017 following your assessment for a justice plan.
[1] (2007) 16 VR 269
51 I turn to the assessment of Ms Gina Cidoni, Consultant Psychologist, and her report of 13 February 2017. I discussed that report at some length with Mr Goodfellow, in particular concerns I had forming concluded views regarding assessment of your moral culpability for this offending. I discussed, amongst other matters, reference by Ms Cidoni to your apparent use of methamphetamine at the time of the offending before me, yet lack of reference by you to her of alcohol use. As I have said, you referred to alcohol consumption in your record of interview but not to ice use.
52 In referring to these matters I am however acutely aware they do not form any part of the prosecution case regarding your offending on this day. However these issues raise concerns when assessing your rehabilitation prospects and in particular conclusions drawn by Ms Cidoni. The transcript of the hearing will reveal that discussion between myself and your counsel.
53 Ms Cidoni referred to some of your background and history. As I have said, 24 at time of sentence, 22 at the time of this offending.
54 You have lived and continued to live with your mother in Greensborough. Your father died in 2006 after a battle with cancer and not surprisingly, the death of your father had a significant impact upon you. You have two older brothers, and described a close and supportive relationship with your family, and also of having stable accommodation. I note, however, the support of your family and stable accommodation did not prevent you from your offending before me, nor any of the infringements prior to or subsequent, as it seems you have always lived with your family, as I understood it.
55 You attended Apollo Parkways Primary School and then St Helena Secondary College until Year 10. You completed a Certificate III in Horticulture, then began working in landscaping, and maintained employment as a landscaper for six years, ceasing work around two years ago at the time of this offending before me.
56 You worked as a construction labourer for a period of time, and you have been unemployed since this collision, as I have said, in 2015. You said you hoped to resume work as a landscaper in the near future, and of moving into the construction industry. You currently receive Newstart allowance.
57 Ms Cidoni also referred to the outstanding offences committed on 21 March 2016, and your contravention of the community correction order imposed in February 2016, and the breach report of 15 November 2016. Ms Cidoni referred to your multiple absences (25) on the community corrections order for unpaid community work and supervision appointments, and offending which occurred on 21 March 2016 shortly after you were placed on the community correction order.
58 According to information available to Ms Cidoni, the breach report indicated your reasons for failing to attend were lack of motivation, confusion and conflicting appointments with Centrelink and job interviews. You did not complete any of the 100 hours of community work. Referring to the charges before me, Ms Cidoni understood that the charges before me pertained to failing to stop after an accident, failing to render assistance, and drug driving (methamphetamine). The latter, I am aware, is not part of the prosecution case.
59 Details were also provided in her report regarding your drug use. You described beginning to use methamphetamine in 2014 and your use escalating following the collision and charges that arose on 10 February 2015. You admitted using methamphetamine during the community corrections order and to the present day. You also described being stressed as a result of your offending, and of having intrusive thoughts and nightmares. You also have difficulty socially due to anxiety.
60 You had not received treatment for your substance abuse, and were waiting for an assessment for a justice plan ordered by the Magistrates’ Court and I discussed that with your counsel.
61 Ms Cidoni’s psychological testing of you indicated you had a full-scale IQ of 71.
62 In her opinion your intellectual functioning was borderline, and your personality testing was indicative of depressed mood, hypomania, antisocial traits and a schizoid trend reflecting bizarre mentation with likely drug-induced psychosis.
63 Ms Cidoni noted that methamphetamine abuse could produce confusion and poor motivation, as could other factors including your low intellect. You could face challenges in logical reasoning, thinking clearly and rationally, exercising sound judgment, and considering the consequences of your actions. In addition, your personality function was distressed and disturbed, your symptoms not unusual in cases where methamphetamine abuse was occurring. Ms Cidoni suspected you were minimising your current usage of that drug.
64 Ms Cidoni observed that, in her opinion, imprisonment in your case would be a greater burden on you (than others) by reason of your reduced intellect, and mental health issues. You presented as extremely vulnerable and impressionable, and if in prison would be at serious risk of self-harm.
65 As I discussed with your counsel, intellectual disability can attract Verdins considerations, and I referred to the decisions of R v Wise[2], also the decision of R v Bux[3], and relatively recently Caldwell and Caldwell v The Queen[4].
[2] [2007] VSCA 266
[3] [2002] VSCA 126
[4] [2014] VSCA 274
66 Mr Goodfellow also referred me during his submissions to Muldrock v The Queen[5].
[5] [2011] HCA 39, at [50]
67 The report of Ms Cidoni, in my opinion, leaves a number of questions unanswered in relation to your intellectual disability and the circumstances of this offending, in particular your moral culpability.
68 In my opinion, any reduction in your moral culpability is limited and minimal.
69 I turn to the report dated 6 April 2017 by Virginia Kavanagh-Ryan, Team Leader Disability Justice North Division. You were assessed to determine whether or not you had an intellectual disability as defined within that correspondence.
70 It was concluded you did not meet the criteria for an intellectual disability and therefore did not qualify for a justice plan. I requested further information be obtained regarding the reasons why you were found to not meet the definition of disability and therefore why a justice plan was not appropriate.
71 The prosecution obtain further information from David Pearce (Exhibit D) which stated the basis for not meeting the criteria for intellectual disability was lack of evidence of significant deficits in both cognitive function and adaptive behaviour. Turning to the report of Ms Kavanagh-Ryan, you did not meet the criteria set out in the first two bullet points of that report and I discussed that with both counsel.
72 Mr Goodfellow conceded when sentencing you, general deterrence was a relevant sentencing consideration.
73 Mr Goodfellow submitted your plea of guilty was indicated at an early opportunity, and as I discussed with him, whilst there appeared to have been some delay in this matter proceeding to conclusion, I accept your plea of guilty was entered early and that you have demonstrated remorse through that plea.
74 Mr Goodfellow submitted your plea also demonstrated remorse and insight and as I have said, I have already referred to that although I have some concerns about his submission you have good prospects of rehabilitation. In my opinion, at best your prospects are guarded.
75 Mr Goodfellow submitted you could be dealt with appropriately for this offending by the imposition of a fine. In my opinion such a disposition would not adequately or appropriately address all sentencing considerations.
76 His secondary submission, without abandoning his primary submission, was that a community correction order, with an incorporated justice plan, would be the appropriate disposition, that submission further amended to which I shall shortly refer.
77 There were three victim impact statements before me. Mr Manning, for the prosecution, referred me to The Queen v Harding[6], relevant to the injuries sustained by Liam, and I am aware given the charges that are before me to the limitations on the admissible material within them. Lasry AJA stated:
“Given that the driving itself [in that case] (and I agree also not before me) was not said to be criminal, it is my view that the post-accident consequences of the injuries are not relevant for the purposes of sentencing for this offence.”
[6] [2008] VSCA 124 [20], [22]-[24]
78 Bearing that in mind, I turn to the victim impact statements tendered.
79 There was a victim impact statement from Liam Hall sworn 24 March 2017. All he remembered was going to sleep the night before. Then waking up in hospital not knowing what had happened. He remembered not being able to speak or walk and that it was hard to eat. He had had lots of therapy and was in hospital for about five months. His ankle still, at times, feels painful and Liam also has scars on his leg and on his face and head.
80
There was a victim impact statement from Daniel Hall, Liam’s father, sworn
26 March 2017. They did not know for two weeks whether their son would live. The long process of rehabilitation then began. Once Liam was out of intensive care, either he or his wife had to be with him twenty-four hours a day.
81 There was a victim impact statement from Christine Hall, Liam’s mother, sworn 27 March 2017. The doctors at the hospital did not think Liam would make it through the night, but when he did he endured a long and difficult road to recovery. They were being told from day one that Liam may never walk or talk again and that his brain injury was so severe he may never recover. These scenarios were heartbreaking.
82 Liam was in hospital for four months. For a time, Liam was in a wheelchair or using a walking frame.
83
Mr Manning, for the prosecution, prepared a written outline of submissions which he addressed during the course of your plea hearing. He referred to the infringement notice of 10 February 2015, the same day as this offending occurred before me. I was advised that speeding incident occurred at 12.06pm from a fixed camera at an address in Ringwood. That fine had been paid on
20 April 2015.
84 Mr Manning referred to the increase in the maximum penalty for this offending from 2 years to 10 years.
85 The Court in Sarikayav v R[7] referred to the obligations upon a driver to remain at the scene after an accident, citing Santamaria JA in Tokay v The Queen[8]:
“The maximum (sentence) is now ten years. That maximum penalty reflects the serious community concern and disapproval of the failure to stop and render assistance. Several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury, and have referred to the fact that offenders must expect a substantial term of imprisonment.”
[7] (2015) 73 MVR 1
[8] [2014] VSCA 285
86 In Tokay, Santamaria JA referred to “the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury”. His Honour also referred to the Second Reading Speech on 5 May 2005 in support of the Bill to increase the penalty from 2 to 10 years’ imprisonment (Tokay, paragraph 25 and footnotes).
87 Mr Manning submitted there was significant weight to be given to general deterrence in cases of this type and I agree.
88
I agree with the factors relied upon by the prosecution bearing upon your moral culpability. They include the knowledge you had hit a child at the time of that collision, that you carried the child on the vehicle for some distance, were unaware of other road users in the area at the time who could render assistance to Liam, your failure to brake or slow down immediately after the collision being aware that you had hit the child, and that you had previously been involved in a motor vehicle collision where details had been exchanged, a matter I also discussed with counsel. I also note the recent assessment of you by
Ms Kavanagh-Ryan.
89 Mr Manning submitted, referable to the decision of Harding, that the extent of the serious injury suffered by Liam was relevant when assessing the seriousness of your offending. There is no doubt Liam’s injuries were serious, significant and life-threatening, those details set out in the prosecution opening (paragraph 32). You were aware of this collision at the time and of the extreme damage caused to your vehicle by it.
90 Referring to your moral culpability, Mr Manning submitted that it fell towards the upper end. While conceding you were suffering a degree of shock regarding this offending, there was other evidence specifically directed to your concerns about your alcohol consumption and that you may have been over the limit. Overall, he submitted any reduction in moral culpability would be limited. I agree, having received the recent report of Ms Kavanagh-Ryan and I have previously stated my assessment of your moral culpability.
91 Mr Manning conceded your plea of guilty was entered at an early stage, and that it demonstrated remorse. I agree.
92 Regarding your rehabilitation prospects, Mr Manning submitted they were at best guarded and, in my opinion, that would be an optimistic prognosis. However, when sentencing you I must seek to maximise your chances of rehabilitation as they may be. Your driving history subsequent to this offending is very troubling. You do not learn, it is not that you cannot learn. He submitted that specific deterrence was also important, particularly given your various driving infringements and subsequent court appearances. I agree.
93 Mr Manning provided two authorities, although conceded it was difficult to find cases analogous to your offending, and that is not surprising. I was referred to R v Mohamed[9] and DPP v Chhatre[10], and have read both those decisions. As I discussed with counsel, it is difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to the offender. Ultimately I must determine the appropriate sentence based on all the relevant material before me, taking into account the gravity of your offending and all matters personal to you and in mitigation of your sentence.
[9][2009] VSCA 158
[10] [2014] VSCA 280
94 Mr Manning, on behalf of the prosecution, initially submitted that a community correction order with a justice plan incorporated within it would be within the range of appropriate dispositions. Whether a term of imprisonment should be imposed with a community correction order was a matter for me. The prosecution submission regarding sentence changed at the hearing on 26 May 2017, following receipt of the community correction report, and intellectual disability assessment and discussions by Mr Manning with representatives of those respective departments. His instructions were then that an immediate term of imprisonment with a community correction order would be within the range. At that hearing, Mr Goodfellow submitted that a community correction order was appropriate.
95 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
96 As I have said there is also the need for specific deterrence when sentencing you, given the number of traffic infringement notices, in particular prior to this offending.
97 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re‑offending. I remain concerned about that.
98 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
99 As I said, I arranged to have you assessed for a justice plan and a community correction order, and received correspondence in relation to both those assessments. I also note further driving offences listed at Heidelberg Magistrates’ Court on 3 May 2017.
100 I also received a report from Mr Oliver Reed, Community Corrections officer regarding your suitability or otherwise for such an order.
101 Perusal of your Corrections file by him revealed your compliance on the previous order had been poor, including thirty absences across order conditions, failing to complete the 100 hours of work and multiple absences from supervision without excuse.
102 You were also to complete a road trauma awareness session on 22 February 2017 but attended late and were refused entry.
103 You struggled with motivation, although said you were now motivated.
104 You were assessed as high risk of re-offending.
105 The author noted his lack of confidence in you completing another community correction order, also the similar offending on the earlier community correction order to this offending and the increase in seriousness of the offending before me (although noting these offences occurred prior to the imposition of the community correction order).
106 Mr Reed considered you were unsuitable for a further community corrections order at this time.
107 I discussed the contents of the report with both counsel, and the transcript will reveal that discussion.
108 I was given further information from Claire Chadwick (Community Corrections officer) that you had attended 11 appointments with Community Corrections Services between 1 March 2016 and 20 February 2017. You failed to attend your initial induction, however upon re-scheduling attended three days later.
109 Notes also that she referred to revealed on 28 April 2016 you reported ice use on a fortnightly basis. It seems you were not directed to assessment/treatment for drug use. I was advised the Magistrate did not impose any mental health assessment/treatment either. It seems the Magistrate did not know or was not made aware of potential mental health issues or drug use when making the order.
110 On 6 July 2016 you saw a duty worker and the note from Community Corrections Services says you did not attend community work because you were lazy.
111 You were late on 5 December 2016 for an appointment.
112 A then ‘significant’ meeting was held with you on 5 January 2017 to discuss your non-compliance with the order.
113 To say that your previous attitude to the community correction order is concerning is an understatement.
114 Taking into account all relevant sentencing considerations in your case, and being mindful in particular that the two charges before me do not refer to ‘causing’ the injuries, I have ultimately determined that a community correction order is the appropriate disposition.
115 The implication of this will, no doubt, be difficult for Liam’s parents to appreciate. I am obliged, however, to sentence according to established legal principles.
116 The decision that I have made today has not been made without reservation and also being mindful, as I am, of the recent submission by the prosecution as to the appropriate sentence following receipt of those most two recent reports.
117 Before I can impose such an order I need to explain to you and ask you whether you consent to such an order being made.
118 The order will be with conviction, and for a period of 2 years from today’s date.
119 The core conditions apply to all community correction orders and apply to you:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
·You must report to the Community Corrections Centre at South Morang within 2 clear working of this order, that is by no later than 4.00 pm on Friday, 2 June 2017.
·You must notify the Secretary, or his or her nominee, ie Corrections worker, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, ie Corrections officer.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
120 But there are a number of other conditions attached to this order, and they apply to you:
· You have to perform 200 hours of unpaid community work over a period of 2 years as directed by the Regional Manager, that is Corrections worker if you like.
· You must be under the supervision of a Community Corrections officer for a period of 2 years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager, ie Corrections worker if you like.
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager or Corrections officer.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager or Corrections worker, if you like.
· You must undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
· Now, listen to this. You must attend for review of your progress and compliance or otherwise with conditions of the order and you are coming back before me in six months' time on Thursday, 2 November 2017 at 9.30am.
· In addition to that, I direct that I be advised by your Corrections officer of any non-compliance with any of these conditions and I will then decide if the matter indeed should be brought back before me.
121 So you have got to be careful, really careful, it is all very well to say, "Gosh, I've had a good day today" but this is a very strict order. You have not complied with a community correction order before. Frankly I am not sure you are going to comply with this one.
122 Mr Goodfellow says you are effectively not being set up to fail so I work on that assumption. So you cannot say, if you breach this order, "Well you know, you knew I didn't do so well on the last one. It's all your fault, Your Honour". It does not work that way. You are aware of that, I hope.
123 OFFENDER: Yes.
124 HER HONOUR: Well, we have got to keep going so just keep listening.
125 I can only impose a community correction order if you agree to such an order being imposed. So I have got to tell you even more about it.
126 If you contravene or breach this order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
127 You can also be re-sentenced on these two charges that are before me and one of the options available includes a term of imprisonment.
128 So you have got to be extra careful for 2 years. It is a long time. That would include things like driving whilst disqualified or while your licence is suspended. You are going to be off the road in a minute for quite some time. I was told your mum does not have a licence. You are going to have to be very careful. You cannot come back and say, "Oh gosh, you know, I had to go down to the chemist to get some medication, it was urgent. I had to drive". No.
129 So you cannot commit any further offences that might incur a term of imprisonment. You have got to be careful. Driving whilst disqualified can incur a term of imprisonment. Speeding I guess, I do not know. But anyway your counsel will tell you. All sorts of things can incur terms of imprisonment. Because if you are, you are back before me you see, and I have to then re-sentence you on these two charges. You have just got to be extra careful, do you follow?
130 OFFENDER: Yes.
131 HER HONOUR: I also advise you if you fail to comply with any direction of the Secretary to the Department of Justice, that is a community corrections officer or worker if you like, as part of this order, you can be fined.
132 Now, that is a lot to take in. Are you are aware of all of that?
133 OFFENDER: Yes.
134 HER HONOUR: Who told you about all that? Your barrister? Mr Goodfellow, I am going to put you on the spot. Have you had a chance to explain all this to your client? I know you did not know what it was going to be.
135 MR GOODFELLOW: No, that is right.
136 HER HONOUR: But you would have known what core conditions are.
137 MR GOODFELLOW: That's right.
138 HER HONOUR: And you would have known that I might have imposed other conditions.
139 MR GOODFELLOW: At the very beginning of proceedings, the nature of imprisonment, community corrections order and so on was explained and I can also ensure, Your Honour, that after we have finished in court, that I will some time go through all of the conditions and the consequences of non-compliance with any of those conditions also with him. So he will leave today - - -
140 HER HONOUR: Well, he says he understands all of these things. I do not want any misunderstanding and coming back later on and saying, "Aha intellectual disability. I didn't quite understand all this." Do you want time to explain it to him?
141 MR GOODFELLOW: I will do that once we have finished in court.
142 HER HONOUR: And before he consents. I mean I do not want him to be consenting and then say, "Gee it was after that Mr Goodfellow told me about this, that and the other and I didn't know it when she asked me".
143 MR GOODFELLOW: No. If he signs the document now, Your Honour, I have confidence that he understands those conditions by virtue of his previous experience with Corrections and the consequences of non-compliance and also conversations we have had since I have been involved in this matter.
144 HER HONOUR: Well, there are two - apart from the community work, he cannot come along say, "I couldn't be bothered" or "I couldn't get there, I haven't got a licence". I mean the fact of life is he is not going to have a licence and for a long time.
145 MR GOODFELLOW: That's right, Your Honour.
146 HER HONOUR: Mum does not have a licence. He cannot come along and say, "Gosh, couldn't get there because I couldn't get into a car or something" you know. This is the do not want to set him up to fail business argument being run.
147 MR GOODFELLOW: Yes, Your Honour.
148 HER HONOUR: This is the order you have urged upon me.
149 MR GOODFELLOW: Indeed, Your Honour, and as I say, I can ensure, Your Honour, that he will leave today in no doubt that he is on a very very short leash. That applies also to the Corrections, the previous allowances given by Corrections regarding non-compliance will not apply from this point onwards.
150 HER HONOUR: He needs to see me in six months' time.
151 MR GOODFELLOW: Yes, Your Honour.
152 HER HONOUR: But if there is any non-compliance with any of the conditions.
153 MR GOODFELLOW: Yes, Your Honour, understood.
154 HER HONOUR: I then get information back from Corrections and depending on what it is, I might get someone back and say, "Now, listen, you have got to be extra careful here". I do not determine whether there is a breach. That is not my job. That is Corrections' job and I think with the DPP. I am not sure who organises all that but I do not decide that a breach occurs, that is not my job. But I want to know how he is travelling so that I can get him back and say.
155 MR GOODFELLOW: Yes, Your Honour.
156 HER HONOUR: Which is what I do with a lot of people, get them back and say, "Hold on, you have just got to watch yourself here".
157 MR GOODFELLOW: Yes, Your Honour.
158 HER HONOUR: Yes, all right. Now, I do not know whether you have heard that discussion or whether you have been listening or not but do you understand the conditions of the order?
159 OFFENDER: Yes. What you just read out?
160 HER HONOUR: Yes, what I just read out.
161 OFFENDER: Yes, yes, I do.
162 HER HONOUR: You do?
163 OFFENDER: Yes.
164 HER HONOUR: Now, do you consent to that order being made in those terms with all those conditions attached to it?
165 OFFENDER: Yes.
166 HER HONOUR: Are you sure? Do you want to talk to Mr Goodfellow or are you right?
167 OFFENDER: No, I agree.
168 HER HONOUR: You agree. You do not want to talk to Mr Goodfellow. No, all right. So you consent to the order being made, do you?
169 OFFENDER: Yes.
170 HER HONOUR: All right. Have a seat. So the formal order, as I have said, is with conviction two years' CCO, all those conditions attached, yes?
171 Now, pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict, in other words if you had pleaded not guilty before a jury if you had been found guilty of these two charges, I would not have imposed a Community Correction Order, rather sentenced you to a term of imprisonment of 4 years with a non-parole period of 2 years 6 months.
172 I think this is right. I note you have not spent any days in custody by way of pre-sentence detention?
173 MR GOODFELLOW: That's correct.
174 HER HONOUR: And I only note that now should I need to revisit this sentence,. It saves me going through all the paperwork. It is there in the last paragraph virtually, all right?
175 The prosecution made application pursuant to s464ZF Crimes Act 1958 for a forensic sample. This was not opposed by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample, and I do so on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample. I have to tell you that.
176 Mr Goodfellow conceded s61 Road Safety Act 1986 imposed a mandatory licence cancellation and disqualification for a period of at least 4 years. I cancel and disqualify you from obtaining a licence for a period of 4 years from today’s date, mindful as I am of R v Lefebure[11] relevant to rehabilitation.
[11] (2000) 31 MVR 131
177 Any other orders sought?
178 MR BALLEK: No, Your Honour.
179 MR GOODFELLOW: No, Your Honour.
180 HER HONOUR: So four years off the road. All right. Well, that is all it is. So can you, Mr Goodfellow, please make sure that Mr Gioutsios understands the need to attend on the first induction day.
181 MR GOODFELLOW: Absolutely, Your Honour.
182 HER HONOUR: Unlike the last time.
183 MR GOODFELLOW: Yes, Your Honour.
184 HER HONOUR: All right. Anything further? No, thank you.
- - -
5
0