Director of Public Prosecutions v Goodson
[2024] VCC 921
•20 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case Nos. CR-23-00411
CR-23-00412
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON GOODSON |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2024, 6 June 2024 and 20 June 2024 | |
DATE OF SENTENCE: | 20 June 2024 | |
CASE MAY BE CITED AS: | DPP v Goodson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 921 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Reckless conduct endangering life – highly dangerous driving – general and specific deterrence of paramount importance – traffick simpliciter – extensive history of substance abuse – no evidence of enrichment – rehabilitation prospects contingent on remaining drug free and appropriately medicated – professional athlete – late ADHD diagnosis – extensive familial and community support – significant and relevant prior criminal history – delay – residential rehabilitation and therapy during period of delay – hardship to third parties – exceptional circumstances test not met – current sentencing practices – Community Correction Order alone or with a term of imprisonment not appropriate
Legislation Cited: Crimes Act 1958, s22 and s195; Drugs Poisons and Controlled Substances Act 1981, s70, s71AC, s73 and Schedule 11, Part 3; Road Safety Act 1986, s64A; Dangerous Goods Act 1985, s45(2)(b) and s54(5); Sentencing Act 1991, s6AAA and s18
Cases Cited:The Queen v Towle [2009] VSCA 280; Butler v The Queen [2019] VSCA 132; Veen v The Queen [No 2] (1988) 164 CLR 465; Bugmy v The Queen (2013) 249 CLR 571; Russell v The Queen [2021] VSCA 221; Akoka v The Queen [2017] VSCA 214; Verdins and Buckley v The Queen [2007] VSCA 102; Muldrock v The Queen [2011] HCA 39; R v Tsiaras [1996] 1 VR 398; Brown v The Queen [2020] VSCA 212; Haberman v DPP [2020] VSCA 286; R v Wirth (1976) 14 SASR 291; Markovic v The Queen and Pantelic v The Queen [2010] VSCA 105; Mao v The Queen [2022] VSCA 211; Kepkey v The Queen [2021] VSCA 202; Vaness v The Queen [2020] NTCCA 13; DPP v Wesley Ellis [2016] VCC 1246; Kettyle v The Queen [2019] VSCA 220; DPP v Russell [2019] VCC 1909; DPP v Rei-Paku [2017] VCC 1032; DPP v Murphy [2017] VCC 827; DPP v Bellingham [2020] VCC 1078; DPP v Cuschieri [2022] VCC 1716; DPP v Phelps [2017] VCC 1364; DPP v Johnston [2021] VCC 2151; DPP v Taylor [2021] VCC 287; DPP v Ennis [2021] VCC 1367; DPP v White [2022] VCC 285; DPP v Clarke [2019] VCC 528; DPP v Navaratnam [2020] VCC 922; DPP v Audino [2022] VCC 438; Da Costa v The Queen (2016) 258 A Crim R 60; Martinez v The Queen [2019] VSCA 135; R v Bekhazi (2001) 3 VR 321; R v Bell (1999) 30 MVR 115; Russo v The Queen [2021] VSCA 244; Zogheib v R (2015) 257 A Crim R 454; DPP v Harris and Cakebread [2021] VCC 1508; DPP v Harry [2019] VCC 850; DPP v Verdu Tsotras [2020] VCC 1441; DPP v Wight [2022] VCC 398; Boulton & Ors v The Queen (“Boulton”) [2014] VSCA 342 DPP v Apostolopoulos [2016] VSCA 201
Sentence: Sentenced to two years and seven months’ imprisonment with a non-parole period of 19 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | M Cookson | Office of Public Prosecutions |
| For the Accused | Mr P A Dunn KC (pleas) with Ms S Seoud | Stephen Andrianakis & Associates |
HER HONOUR:
Introduction
1Aaron Goodson, you have pleaded guilty to a number of offences you committed on 16 April 2022.
2There were three charges on two indictments:
(a) one charge of reckless conduct endangering life[1] contrary to s22 of the Crimes Act 1958, the maximum penalty for which is ten years imprisonment;
(b) one charge of trafficking methylamphetamine[2] contrary to s71AC of the Drugs Poisons and Controlled Substances Act 1981 (“the DPCS Act”), the maximum penalty for which is fifteen years imprisonment; and
(c) one charge of possession of 1,4 Butanediol[3] contrary to s73 of the DPCS Act (non-trafficking purpose), the maximum penalty for which is one year imprisonment, otherwise five years maximum.
There were three summary offences which you consented to be dealt with by this Court:
(d) driving a motor vehicle knowing you had been given a direction to stop by a police officer contrary to s64A of the Road Safety Act 1986 which, for a first offence, carries a maximum penalty of 60 penalty units or six months imprisonment or both;
(e) possessing an unauthorised explosive contrary to s54(5) of the Dangerous Goods Act 1985, the maximum penalty for which is 100 penalty units;[4] and
(f) dealing with $600 cash suspected of being the proceeds of crime, contrary to s195 of the Crimes Act 1958, the maximum penalty for which is two years imprisonment.
[1]Indictment N10751736
[2] Indictment N10888443
[3]Ibid
[4]Pursuant to s45(2)(b) of the Dangerous Goods Act 1985
Circumstances of offending
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea (“Crown Opening”) dated 8 September 2023.[5] Your senior counsel did not dispute any of the matters in that document.
[5]Exhibit A
4At approximately 1.30am on 16 April 2022, the police radio announced that a white van travelling at 160 kilometres per hour has taken the Dalton Road exit from the Ring Road. You were the driver of that van. It did not have its lights on.
5The police airwing then begin an aerial search for the van which is depicted in footage from the police helicopter played in court.[6]
[6]Exhibit B – Victoria Police Airwing footage dated 16 April 2022
6Police measured the speed of the van at 182 kilometres per hour in a 100 kilometres per hour zone on the Metropolitan Ring Road between Edgars Road and Dalton Road.[7] This commences the conduct which is the subject of the reckless conduct charge.[8]
[7]Exhibit A at paragraph [7]
[8]Ibid
7You exited at Dalton Road travelling at 140 kilometres per hour in a 60 kilometres per hour zone, travelling south in the northbound lanes on the incorrect side of the road. There was no traffic on that part of the road and your headlights were off.
8On Dalton Road, you turned onto Keon Parade, travelling west in the eastbound lanes. The airwing footage depicts Keon Parade as a built up area. It has intersections governed by traffic lights. Police turned on their lights and sirens but you refused to stop. The van you were driving can be seen travelling at a very fast rate of speed through this area, through a red light on the incorrect side of the road.[9] The police radio reported that your headlights were off.
[9]Exhibit A at paragraph [10]
9You turned on Edgars Road and your speed was measured at 180 kilometres per hour as you merged onto the Hume Highway travelling north. You exited the Hume Highway at O’Herns Road and re-joined it on the off-ramp. You travelled north on southbound lanes on the incorrect side of the road at a very fast rate of speed with your headlights off. The police radio described it as well in excess of 170 kilometres per hour.
10Airwing footage captured a police vehicle pursuing you onto the incorrect side of the Hume Highway in the direction of Craigieburn Road but then pulling over and ending its pursuit.[10] The police airwing confirmed that you turned your headlights on[11] not long after this event.
[10]Exhibit B from 1:35:45am to 1:36:12am
[11]Exhibit B from 1:36:30am to 01:36:34am
11You continued to drive on the incorrect side of the road towards ten civilian vehicles, some of which can be seen trying to dodge you in an attempt to avoid a head on collision (this concludes the conduct which is the subject of Charge 1).[12]
[12]On Indictment N10751736
12The airwing footage shows your van taking the exit, again on the incorrect side, off the Hume Highway towards Craigieburn Road, and travelling on a pedestrian/bike track, which runs alongside the Hume Freeway, to Merri Creek.
13The police airwing spotted you outside the van, walking away from it on the track. The police canine unit found you hiding in the reeds alongside the Hume Freeway and arrested you.
14You were interviewed by police in relation to the driving offences on the day of your arrest but made no admissions.
15The prosecution does not allege that you were drug affected at the time of these offences.
16Your van was seized and towed. Inside, police found the items which are the subject of the remainder of the charges[13], being a bag containing three medium and three small lock bags (one of which was empty) with a total of 110.1 grams of methylamphetamine (91 grams of which was pure), three white plastic containers with a total of 58 grams of 1,4 Butanediol (liquid), $600 cash and 6.68 grams of firecracker explosive.
[13]On Indictment N10888443
Victim impact
17No victim impact statements have been tendered.
18You have pleaded guilty to conduct which placed the lives of road users at risk. This is vividly depicted in the police airwing footage. Your driving on this night can only be described as breathtaking. It must have been terrifying for the ten drivers who found you coming towards them on the wrong side of the road at a fast rate of speed. The tenth vehicle can be seen moving to the right side of the lane and coming to an almost complete stop after encountering your van coming towards it.
Personal circumstances
19You are 35 years old. At the time of the offences, you were 33.
20You have five children, to three different mothers. The eldest two of your children have various difficulties[14] and, for the last two years, have been living with you and your mother as their own mother is unable to care for them due to drug abuse.[15]
[14]Exhibit 3 – Report of Dr Mathew Staios dated 11 May 2024 at paragraph [3.3]; a son aged 13 is diagnosed with ADHD and obesity and a daughter aged 12 suffers from anxiety and difficulty regulating emotions with “externalising behaviours”
[15]Ibid
21You come from a sporting family. Your mother was a professional netballer and you father, Dana Goodson, was an international kickboxing champion.
22You had a good childhood, free from exposure to domestic violence, alcohol abuse or criminal behaviour.[16] You have a brother who lives overseas.
[16]Exhibit 3 at paragraph [3.1]
23Sadly, you father died at home when you were 12 years old. I accept this was a very traumatic event for you and that you have missed out on the care, guidance and nurturing which your father would have otherwise provided you. Your mother did not handle the loss of her husband well. It appears she drank to excess and sometimes you were responsible for caring for her. At times, you found her in a state which caused you to believe she too may be dead.
24After your father’s death, you spent considerable periods of time with your maternal grandparents. Your counsellor, Ms Reilly-Browne, reported that the effect of your father’s death and your mother’s difficulties in coping with it, meant that you lost the care, guidance and support of both parents.[17]
[17]Exhibit 4 – Report of Tess Reilly-Browne, Counsellor, dated 3 April 2024, at page 2
25Despite the childhood traumas, at age 18, you became a champion kickboxer in your own right. The submissions filed on your behalf show that you hold Australian, South Pacific and Commonwealth titles. You also hold two World Titles, one from 2013 and one from 2019. The material tendered on your plea suggests you were a professional kickboxer, although it appears that five years ago you were placed on a disability pension.
26Your schooling and your perception of your own academic abilities were negatively affected by testing at age 15, which showed an intellectual disability. Despite this, you say you received no assistance or intervention to address that diagnosis. You repeated Year 10 and finished school in Year 11. You are able to read and write, although at a slow pace.
27Recently, you have undergone neuropsychological testing which suggests you are of low to average intelligence, you do not have an intellectual disability but you suffer from ADHD.[18] Dr Mathew Staios considered the misdiagnosis made when you were a teenager was attributable to poorly managed ADHD and learning difficulties for which you received little assistance.[19]
[18]Exhibit 3 at paragraph [8.1]
[19]Exhibit 3 at paragraph [8.2]
28You are currently in a relationship with a woman who gave evidence on your behalf at the plea. She has five children of her own and a full time job which carries a significant degree of responsibility. She has been very supportive of you and, although you do not live together, you spend a significant amount of time together and she assists you with driving your children to school.
29Mr Ned Vrselja also gave evidence on your plea. He is a commercial builder who owns a Martial Arts gym where you are a volunteer trainer for young people. He spoke highly of you, your kickboxing career, your work as a trainer and your ability to help others with advice on how to do the right thing.
30You spent 20 days in custody on remand following which, on 5 May 2022, you were bailed to a residential rehabilitation facility where you completed three months in-patient rehabilitation and one month as an outpatient.
31Mr Vrselja said that after your drug rehabilitation, you spent nine months intensively training for a fight in which you performed very well but did not win. He said you go regularly to the gym to work as a volunteer trainer. He is very supportive of you. His evidence shows what you are capable of when you put your mind to it.
Prior criminal history
32Your prior criminal history is significant. You have admitted your prior convictions. Between the ages of 19 and 34, you appeared in various Magistrates’ Courts in Victoria 15 times, resulting in 54 convictions or findings of guilt. You have also appeared in the Southport Magistrates’ Court for dangerous operation of a vehicle and failure to comply with a requirement to stop a vehicle.
33Your Road Safety Act 1986 priors include eight traffic infringement notices for exceeding the speed limit and driving a vehicle while exceeding the prescribed concentration of drugs. Your driver’s licence has been cancelled many times.
34You have committed offences involving possession of methylamphetamine and 1,4 Butanediol, burglary, dealing with proceeds of crime, assault by kicking, theft, failing to answer bail, criminal damage and what appear to be hoon-type offences involving the driving of a motor vehicle.
35You have been to prison in December 2017 for 101 days for drug and dishonesty offences and you received a six months wholly suspended prison sentence in January 2011 for affray and intentionally cause injury. You have twice previously been sentenced to a Community Correction Order (“CCO”) and it seems that despite the time in prison, and two rehabilitative orders, you continued to commit offences.
36The offending for which you are being sentenced today represents an escalation of your offending conduct.
The nature and gravity of the offence
Reckless conduct endangering life
37The prosecutor submitted that the offending falls in the worst category of reckless conduct endangering life involving a motor vehicle. He relied on the following features:
(a) you were motivated by a desire to escape from police in order to avoid their discovery of the drugs in the van;
(b) the driving continued for a number of minutes and involved speeds up to 180 kilometres per hour, on the wrong side of the road and running a red light;
(c) your headlights were off for significant portions of the journey;
(d) the offending persisted despite police sirens indicating a direction to stop; and
(e) the offending placed members of the public at a high risk of death.
38In written submissions, your senior counsel submitted that the offences do not fall into the worst category of offending because the traffic conditions were light and no accident occurred. In oral submissions, I was invited to find that it was not uncommon for people to drive on the wrong side of the road when they are being pursued by police, and that you had instructed that you “got off” the highway at the first available exit.
39I reject all but one of those submissions. I accept the submission that the traffic conditions were light. That is visible in the footage, it was 1.30am.
40That no accident occurred was just good fortune. Had there been an accident or collision, that would have been the subject of additional or different charges. I accept that shortly prior to encountering the ten vehicles in contraflow, you had turned on your headlights.
41The aerial footage shows you driving over a considerable distance, on a number of different roads and numerous opportunities to stop, not the least of which was when police put on their lights and sirens in an attempt to compel you to stop but you continued.
42The degree of risk of harm being caused and the extent of potential harm are relevant to the task of assessing where on the scale of seriousness[20] the reckless conduct will fall.
[20]The Queen v Towle [2009] VSCA 280 at paragraphs [62] to [68]
43The driving which is the subject of the charge was protracted, over suburban roads and highways, against a red light and at speeds of up to 180 kilometres per hour, in contraflow to traffic, for a large portion of which your headlights were off. It can only be viewed as deliberate conduct and not a momentary lapse of judgement.
44On Dalton Road, you were travelling at 140 kilometres per hour in a 60 kilometres per hour zone on the wrong side of the road. That part of Dalton Road is a built up area. You drove on the wrong side of the road for a considerable distance, running a red light and crossing two major intersections.
45Even when driving on the correct side of the road, your driving was erratic and dangerous, overtaking vehicles at speeds well in excess of 170 kilometres per hour.[21]
[21]Exhibit B at 1:34:00am
46The most serious aspect of the driving concerns the ten cars you encountered coming towards you while you were on the wrong side of the road at very high speed. Some of the drivers can be seen swerving to avoid a head on collision.
47Your counsel accepted that the motivation for this conduct was to evade police. I take into account that the Court of Appeal has said that such driving:
“…putting the public in danger so as to avoid facing the consequences of criminal activity is to be strongly condemned and severely punished. Furthermore, general deterrence is of prime importance. People tempted to endanger the public in order to evade police must know that when caught they will face stern punishment.[22]
[22]Butler v The Queen [2019] VSCA 132 at paragraph [42]
48The risk of harm was very high. The type of harm was also very serious, you could have killed or seriously maimed one or more people during this horrendous journey. I find that the objective gravity of the reckless conduct is high although not in the worst category as submitted by the prosecutor.
Traffic methylamphetamine
49You were in possession of over 110 grams of methylamphetamine stored in six bags on a single date. The prosecutor submitted that the amount is twice a commercial quantity by purity and less than half of a commercial quantity by mixture[23]. Your senior counsel did not dispute this but submitted there was no allegation of overt signs of wealth.[24]
[23]Exhibit C – Prosecution Submissions on the Plea dated 6 6 June 2024 at paragraph [6]
[24]Exhibit 1 – Outline of Defence Submissions on the Peal dated 4 June 2024 at paragraph [39]
50I accept your counsel’s oral submissions that you were buying bigger quantities due to your addiction to the drug and selling to your friends, and that there is no evidence of enrichment.
51The basis of the traffic charge is that you were in possession of a trafficable quantity for the purposes of sale. The prosecution is unable to establish you were aware of the purity of the drug and therefore you lacked the mental element of commercial quantity trafficking.[25]
[25]Exhibit A [25]
52The definition of trafficking under the DPCS Act includes possession for the purpose of sale.[26] Bearing in mind that a traffickable quantity of methylamphetamine under the DPCS Act is 3 grams,[27] you were in possession of a significant amount of that drug for sale, even if some of it would have been for your own use.
[26]Pursuant to s70 of the DPCS Act
[27]Pursuant to Schedule 11, Part 3 of the DPCS Act
53You were also found in possession of 1,4 Butanediol and $600 which you accept was reasonably suspected to be the proceeds of crime. However, no submissions were made about these offences.
Moral culpability
54Your prior criminal history is relevant to determining your moral culpability.[28] You have been dealt with by Traffic Infringement Notice for exceeding the speed limit by 45 kilometres or more on three occasions, you have received other speeding fines and a loss of licence for exceeding the prescribed concentration of drugs. You have appeared in the Magistrates’ Court at Heidelberg and Broadmeadows for exceeding the speed limit by 45 kilometres or more, driving whilst suspended, driving a vehicle causing loss of traction and making unnecessary noise or smoke, unlicensed driving, driving an unregistered motor vehicle. You have been dealt with interstate for failure to stop on direction by police.
[28]Veen v The Queen [No 2] (1988) 164 CLR 465 at 477 and Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy’) at 580
55I consider your prior criminal history shows a continuing attitude of disobedience of the law and a disregard for road rules and speed limits.
56Your senior counsel submitted that your moral culpability was reduced because you had suffered trauma as a result of your father’s death, mother’s difficulties in coping with that and the misdiagnosis of you as intellectually disabled.
57The prosecutor conceded that, in a general way, your personal difficulties can be taken into account,[29] but submitted that the conduct the subject of the driving charge was so serious that any amelioration or improvement of your moral culpability is modest, at best.
[29]The prosecutor referred to it as “general Bugmy”
58Given the prosecutor’s concession, I accept that your moral culpability is somewhat reduced because you experienced childhood trauma when your father died and afterwards, when your mother was so severely affected by grief that she was unable to properly care for you. I accept that the effects of such trauma may not diminish over time.[30] However, any reduction in your moral culpability can only be very modest.
[30]Bugmy at paragraphs [42] to [44]
59I find your moral culpability remains at the high end because of the deliberate and protracted high speed driving in the context of evading police, having a number of prior convictions for driving and drug offences.
60You have no prior convictions for trafficking drugs. As submitted by your senior counsel, your addiction to methylamphetamine is the key driver for the trafficking offence. Nevertheless, the offence represents an escalation of your offending and I consider your moral culpability to be low to mid-level for this offence.
61You have also pleaded guilty to possession of 58 grams in total across three containers of 1,4 Butanediol. The traffickable quantity of this drug is 50 grams and a small quantity is 10 grams.[31] You have previously been dealt with by way of a fine for possession of this substance.
[31]Pursuant to Schedule 11, Part 3 of the DPCS Act
General and specific deterrence
62Offences involving the driving of a motor vehicle in a reckless manner, contraflow to traffic, at high speed to evade police in order to escape the consequences of one’s own criminal conduct, carry a substantial component of general deterrence.[32] That means a significant component of the sentence I impose on you must incorporate the need to deter others from committing similar offences.
[32]Russell v The Queen [2021] VSCA 221 (“Russell”) at paragraph [18]
63In your case, given your driving history, it is also important to build in to the sentence a component designed to specifically deter you from engaging in such conduct in future.
64You have no prior convictions for trafficking. However, you have priors for possession of methylamphetamine and 1,4 Butanediol. The large quantity of methylamphetamine in five separate bags represents an escalation of offending behaviour and also attracts an element of specific deterrence.
Rehabilitation prospects
65The prosecutor submitted that in light of your prior criminal history and your recent residential rehabilitation treatment, your prospects of rehabilitation are tentatively good, conditional upon you staying drug free and appropriate medication.
66Your senior counsel submitted that your prior offending history occurred in what he termed “packages” or during periods of time in between which there are gaps. For instance, between 2011 and 2015, you did not appear at court. However, you were dealt with for various traffic infringements such as speeding and driving whilst suspended during that part of the suggested gap.[33]
[33]Namely, on 13 April 2024, 22 October 2013 and 18 June 2013
67Your senior counsel submitted that the reason for the gaps of offending was because you were ill equipped to deal with stresses and strains and misbehaved. Given your sporting achievements, it may also be the case that at times when you were training and competing, you committed less or no offences.
68Dr Matthew Staios reported that you have a long substance abuse history. You commenced smoking cannabis at 15 years of age and, at 17, graduated to methylamphetamine which led to daily use and an addiction at age 20. You have had two prior community based rehabilitation programs, a 30-day program in 2020 and the four-month program in 2022.[34]
[34]Exhibit at paragraph [3.0]
69Dr Staios considered that you present with several risk factors which increase your risk of further offending and which have not yet been adequately addressed. These include substance use, maladaptive coping strategies and personality traits, history of early childhood trauma, stresses regarding the needs of several children, the ADHD and your prior criminal history.[35]
[35]Exhibit 3 at paragraph [8.7]
70Dr Staios also considered that the ADHD diagnosis and your addiction to drugs creates the need for treatment by a psychiatrist with a specialisation in both drug addiction and the treatment of adults with ADHD.[36] Dr Staios considered you require a range of therapies which cannot be accommodated by your current online treatment provider.[37]
[36]Exhibit 3 at paragraphs [8.5] and [8.7]
[37]Exhibit 3 at paragraph [8.6]
71The family and social supports you have, your willingness to engage in rehabilitation for drug use and treatment for ADHD, and psychological counselling must also be considered. You have the support of your family, your partner and a large number of others who attended court on your plea or provided references to support you. This is very positive and stands you in good stead to maintain the stability you have recently put in place in your life.
72Your counsellor, Ms Reilly-Browne, has reported that with the correct medication for your ADHD and ongoing therapy, you will be able to turn your life around.
73Your senior counsel submitted you were attending supportive meetings to deal with your drug problem as well as a men’s group every Tuesday evening for further support.[38]
[38]Exhibit 1 at page 6
74On balance, I find your prospects of rehabilitation are dependent on you continuing to abstain from drugs and maintain your therapy and treatment for ADHD. If you are able to do that, your prospects are good. I have moderated and tailored your sentence to accommodate this finding.
Factors in mitigation
Plea of guilty and remorse
75The charges were filed on 5 May 2022 and the matter resolved on 15 March 2023. Between those dates, there were various committal mentions and a committal hearing listed which did not proceed, the first time due to unavailability of witnesses. You were committed to this Court by straight hand-up brief. The first plea date in this Court was adjourned administratively and your plea to all charges was entered formally on 18 April 2024 before me.
76You are entitled to, and have received, a discount in your sentence for your early plea of guilty, which has saved the community the expense of a committal and trial. While it was not at the first available opportunity, I accept that there were delays associated with the need to obtain DNA analysis,[39] and it appears that once that was done you were prepared to enter a plea. By doing that you have facilitated the course of justice.
[39]Exhibit 1 at page 2; the Crown Opening which refers to DNA on the bag containing the drugs and the bags containing the drugs themselves, and DNA on the vehicle including the steering wheel and gear stick.
77I accept your senior counsel’s submission that your plea of guilty is evidence of remorse, and the other evidence of remorse you expressed to those closest to you for the effect of this offending on them.[40] I also accept that it contributes to an assessment of your prospects of rehabilitation.
[40]Exhibit 7 –at page 2; Exhibit 9 – Letter to the Court from Glenn Muscat dated 15 April 2024; Exhibit 11 – Letter to the Court from Ned Vrselja dated 28 May 2024; Exhibit 13 – Letter to the Court from Ross Galanis dated 21 August 2023
The role of your mental health and childhood trauma
78Dr Mathew Staios reported that your father passed away when you were 12 years old at home of a suspected cardiac arrest. As a result, he considered you were exposed to significant instability when your mother began abusing alcohol in response to the loss of her husband.
79
Dr Staios considers you very likely exhibited the symptoms of childhood PTSD, anxiety, displacement and unhealthy attachment to your remaining caregiver.[41]
A combination of factors contributed to the development of an unstable personality structure and substance abuse as a coping mechanism. The ADHD likely acted as an additional risk factor leading to impulsivity and emotional regulation. The lack of support from your primary caregiver compounded these factors.[42]
[41]Exhibit 3 at paragraph [8.3]
[42]Ibid
80Ms Reilly-Browne reported that your father’s death had a significant impact on you. You lost your father’s guidance and support. Your mother’s response was such that you also were unable to rely on her at an important stage of your life.
81Your senior counsel submitted that the disadvantage arising from your father’s death during your formative years played a significant role in shaping your personality and responses to situations.[43]
[43]Exhibit 1 at paragraphs [52] to [55]
82The prosecutor accepted that in a general way I can take into account the childhood trauma you experienced and the misdiagnosis of intellectual disability. I accept that the misdiagnosis itself is probably the result of the childhood difficulties you experienced as your mother was not in a position to properly attend to your educational and other needs.
83I have moderated your sentence somewhat on account of these matters.
Delay
84I accept your senior counsel’s submission that the delay of two years can be taken into account in your favour, as you have had these matters hanging over your head and because you have undergone rehabilitation during this period.[44]
[44]Exhibit 1 at paragraph [56]
85In oral submissions, your senior counsel also said that the period of residential rehabilitation and subsequent therapy you have undertaken can further ameliorate your sentence because the rehabilitation component of such a sentence has already been undertaken or, at least in some measure, it has been addressed.
86Following the plea, your counsel provided a report from Harmony House setting out the reasons for your admission and the terms under which you received treatment. You were diagnosed with Alcohol Use Disorder and Substance Use Disorder (Ice and GHB) under the DSM-V. The report describes it as “entrenched addiction”. The terms of your bail required you to attend the centre which, although not locked, had strict rules and CCTV monitoring with which you complied. Failure to comply included notifications to local police and the informant, for mandated residents like you. Harmony House also enforced an intensive treatment protocol which included attendance at and completion of a 12-step program which itself must have been challenging for you. You have and continue to engage in the 12-step program and in the service to others component required under it.
87I accept the submission made on your behalf. I have further moderated and tailored your sentence on account of this factor in accordance with the principles in Akoka[45] on which your counsel relied.
[45]Akoka v The Queen [2017] VSCA 214 (“Akoka”) at paragraphs [107] to [112]
Verdins
88In written submissions, your counsel did not rely on your ADHD diagnosis[46] as giving rise to the factors set out by the Court of Appeal in Verdins,[47] however, said your intellectual disability does give rise to the principles in Muldrock.[48]
[46]Exhibit 1 [47] to [49]
[47]Verdins and Buckley v The Queen [2007] VSCA 102 (“Verdins”)
[48]Muldrock v The Queen [2011] HCA 39 (“Muldrock”)
ADHD
89In oral submissions, your senior counsel said that you were not an appropriate vehicle for general deterrence because the recent diagnosis of ADHD and the medication regime has caused your partner to observe noticeable positive changes in you. Your counsel also relied on the report of Ms Reilly-Browne.
90Ms Reilly-Browne is a counsellor with a specialty in trauma counselling and adult ADHD. She reports that there are a range of features of ADHD and trauma which have contributed to your “life and relational struggles”. These include poor impulse control, poor working memory and time blindness. Her report does not relate those features to the offending for which you are being sentenced in anything more than a very general way. She cites the opinion of Russell Berkely PhD that the prisons are a quarter full of people with undiagnosed and untreated ADHD who, once medicated, are able to lead constructive lives. She considers you too will be able to turn your life around with appropriate treatment.
91Dr Staios reported that your ADHD is a risk factor (in combination with others) for further offending but did not provide any more detail and did not provide any opinion on how it may have contributed to the offences for which you are being sentenced today.
92The prosecutor submitted that there is no basis for reducing or modifying your sentence on account of your ADHD and general deterrence, as there was no evidence of a connection between the condition and this offending.
93Evidence that you suffer from ADHD is the beginning of the inquiry. It is necessary to have evidence of how the ADHD is likely to have affected your mental functioning at the time of the offence/s or in the lead up to them and how it is likely to affect you in future.[49] Whether general deterrence can be moderated or eliminated as a sentencing consideration in your case depends upon the nature and severity of the symptoms exhibited and the effect of the condition on your mental capacity whether at the time of the offending, at the time of sentence or both.[50]
[49]R v Tsiaras [1996] 1 VR 398 at 400
[50]Limb 3 of Verdins
94Impaired mental functioning may reduce moral culpability if it had the effect of impairing your judgement, your ability to make calm rational choices or to think clearly or in other ways contributing to the commission of the offence.[51]
[51]Verdins at [26]
95The question whether and to what extent your mental functioning “is or was relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court.[52]
[52]Brown v The Queen [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) at paragraph [6]
96If the evidence establishes a causal connection between your ADHD and the offending for which you are being sentenced, I can take the view that your case is not an appropriate one for making an example to others.[53]
[53]Ibid at paragraph [85]
97I have had some difficulty reconciling the written submissions filed on your behalf and the oral submissions. They appear inconsistent. I have read the reports a number of times in an attempt to find a basis for the oral submissions made on your behalf.
98Ms Reilly-Browne reported the following matters which are possibly relevant to your offending:
(a) That the poor impulse control which is associated with your ADHD can contribute to impulsive decisions without you being able to see the repercussions. Drug taking and unplanned pregnancies were the examples she gave in your case.[54]
(b) Poor working memory (and its effects on learning) can cause an ADHD sufferer to make the same mistakes over and over again. In your case this has exhibited in you constantly letting people down and then wearing their disappointment or anger.[55]
(c) Self-medication (with drugs) to relieve untreated symptoms of ADHD.
(d) Poor executive functioning means acting now and reflecting when it is too late.[56]
[54]Exhibit 4 at page 4
[55]Exhibit 4 at page 4
[56]Exhibit 4 at page 5
99Ms Reilly-Browne did not provide any reasoning at all about the likely impact on you of the untreated ADHD at the time of the offending or the impact of the now treated ADHD into the future.
100The Court of Appeal has consistently directed sentencing judges to carefully assess psychological reports and to look for explanations of the basis of the psychologist’s conclusion. Further, that any report tendered should explain how the impairment suffered by the offender might engage one or more of the principles in Verdins’ case.[57]
[57]Haberman v DPP [2020] VSCA 286 (“Haberman”) at paragraphs [34] to [35]
101There is insufficient evidence before me to enable any finding that your ADHD condition can moderate your moral culpability, general deterrence or otherwise moderate your sentence on account of the likely impact of that condition on your experience of a prison term.
Intellectual disability
102Dr Staios’ report refers to an intelligence test carried out when you were 15 years old which showed your Verbal Scale IQ and performance IQ to both be at or under the third percentile but you had not been provided with any assistance following these results.[58] I note your mother’s letter to the Court in which she says you were provided assistance but it was “too little too late”.[59]
[58]Exhibit 3 at page 3
[59]Exhibit 8 – Letter to the Court from Kim Goodson (mother) at page 2
103Dr Staios conducted various tests to determine your current level of cognitive functioning. The results showed that your intelligence was not anywhere near as low as the assessment done when you were 15 years old. However, some results have you in the low average and borderline categories which show that a considerable number of people your age would perform better on that testing. Your performance in some categories were in the average range, and in others within age expected limits.
104Overall, Dr Staios found that your general intelligence fell within the low average and exceeded his expectations. He considered the poor performance when you were 15 to be attributable to your undiagnosed ADHD.[60] Dr Staios did not diagnose intellectual disability.
[60]Exhibit 3 at paragraph [8.1]
105There is no evidence that any mild intellectual impairment you might have has contributed in any way to this offending. There is no evidence to suggest you might not have appreciated the wrongfulness of your conduct on account of any condition.[61] Your election to drive as you did in order to evade police suggests you were well aware of the possible consequences to you of having a large quantity of drugs in your vehicle.
[61]Muldrock at paragraph [54]
106In the absence of any evidence of intellectual disability, and how it might have had a bearing on these offences, I am unable to apply Muldrock as your counsel submitted.
Hardship to third parties
107In written submissions, your senior counsel argued that you would suffer hardship as a result of a term of imprisonment because your family and children would suffer in your absence. In particular, the two eldest children who live with you would suffer greatly. They both demonstrate overt signs of mental health issues and your inability to care for them would make your time in prison more burdensome.
108Dr Staios also diagnosed a generalised anxiety disorder.[62] I accept that a term of imprisonment will be difficult for you as your children will be left without their father during this time. Together with the anxiety disorder, I accept that your time in custody will be more difficult on account of your children’s unique circumstances and your anxiety. I have moderated your sentence on account of this hardship to you.
[62]Exhibit 3 at paragraph [8.4]
109In oral submissions, your counsel argued that I ought also find there are exceptional circumstances which enable me to conclude that the hardship to your children arising from any incarceration warrants a further amelioration of your sentence.
110Your senior counsel relied on the following matters established by the evidence of your mother and your partner:[63]
(a) The children are 12 and 13 years old and have been residing with you and your mother for the last two years. Prior to that they resided with their maternal grandmother, until she passed away. Their mother is unable to care for them as she has drug abuse problems;
(b) The children have trauma issues and behaviours which make them difficult to parent; and
(c) Your partner assists with driving the children to school, she described them as high maintenance and described you as an amazing father.
[63]Exhibits 7 and 8 and oral evidence from each witness
111Ms Reilly-Browne reported that these two children suffered greatly when their grandmother passed away. Your son has ADHD for which he is taking Ritalin. He is struggling with school refusal and has attachment trauma. You and your partner have to attend school during the day to calm him down. His mother is emotionally abusive to him. Your daughter has outbursts of anger often directed to her brother but she is more independent and has a close relationship to her maternal grandfather.[64]
[64]Exhibit 4 at page 3
112Dr Staios reported that your daughter has been diagnosed with anxiety and she has difficulty regulating her emotions leading her to externalising behaviours.[65]
[65]Exhibit 3 at paragraph [3.3]
113The higher courts have consistently said that hardship to a person’s family is rarely a basis for moderating sentence. The reason for that is:
“… hardship to family is considered by the court to be the tragic but inevitable consequence of almost every conviction and penalty recorded in a criminal court. … hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional and where it would be in effect inhuman to refuse to do so.”[66]
[66]R v Wirth (1976) 14 SASR 291 at 295-6, cited with approval in Markovic v The Queen and Pantelic v The Queen [2010] VSCA 105 at paragraph [13] (“Markovic”)
114Family hardship can only be taken into account to moderate sentence where the circumstances are exceptional. I am required to take into account the decided cases where hardship to family members has been established but they did not meet the exceptional circumstances test.[67]
[67]Markovic at paragraph [77]
115Your senior counsel relied on the following circumstances as demonstrating exceptional circumstances:
(a) the mother of the two children is unable to care for them;
(b) they no longer have their grandmother, who was their primary carer and who has passed away;
(c) the children currently live with you and your mother, who spent time in a psychiatric hospital for treatment between 13 May 2023 and 10 June 2023;[68] and
(d) the children are at a vulnerable age and they need their father.
[68]Exhibit 1 at paragraph [17]
116The prosecutor conceded your domestic situation was unusual. However, submitted the combination of circumstances is not exceptional because your mother is available to care for the children and did do so while you were in residential rehabilitation for three months. He also submitted that the children have very positive role models in their lives, such as your partner, and they are very well cared for.
117I have had regard to the types of circumstances which have been considered in decided cases.[69] I have considered both the types of cases where exceptional circumstances have been made out and the types of cases where they have not.
[69]Markovic; Mao v The Queen [2022] VSCA 211 (“Mao”) at paragraphs [45] to [47]; Kepkey v The Queen [2021] VSCA 202 (“Kepkey”) at paragraphs [67] to [68]; Vaness v The Queen [2020] NTCCA 13 (“Vaness”) at paragraphs [40] to [41]; DPP v Wesley Ellis [2016] VCC 1246 (Chief Judge) at paragraphs [17] to [25].
118The test is difficult to satisfy.[70]
[70]Kepkey at a paragraph [70]
119Where children are left with no family to care for them, superior courts have upheld findings of exceptional circumstances and corresponding discounts in sentences. In Vaness, the Supreme Court of the Northern Territory considered a number of cases and said
“Generally, the hardship caused to an offender’s children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment would involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends on the gravity of the offence and the circumstances of the case.”[71]
[71]Vaness at paragraph [41]
120In your case, there is no evidence from the children’s doctor or other professional seeking to establish hardship on the children and detailing the severity and prognosis of their various conditions.[72] There is no evidence that your mother would be unable to care for the children and she has been caring for them for the past two years. There is no evidence from a psychiatrist or from the psychiatric hospital indicating that there is any likelihood of a relapse of the condition which caused her admission in 2023. There is no evidence about the circumstances of their grandfather with whom they have a close and loving relationship and whom they visit on weekends,[73] and no evidence that he could not care for them in the event it was required.
[72]Mao at paragraph [45]
[73]Exhibit 4 at page 3
121I am not satisfied that exceptional circumstances have been made out.
Consideration of CCO together with time served (19 days)
122Your senior counsel submitted that the 19 days together with a CCO are within an appropriate range of available sentences.
123The prosecutor argued strongly that the reckless conduct offence was extremely serious and the case of Russell provided an appropriate “yardstick” for determining where this case fits on the spectrum of offending and what is an appropriate sentence.
124Following the plea, your senior counsel provided additional submissions[74] going to the question whether the circumstances of the offending in Russell can be distinguished from the circumstances of your offending. I have carefully considered those submissions and read the cases cited in the accompanying extract of cases from the Victorian Sentencing Manual.[75] I have also considered a number of other cases in which offenders have been dealt with for reckless driving in the context of fleeing from police. I have considered the individual facts of comparable cases[76] in order to arrive at an appropriate sentence.
[74]Exhibit 15 – Addendum Defence Submissions dated 18 June 2024
[75]Exhibit 17 – Extracts from Judicial College Sentencing Manual regarding Endangerment Offences
[76]DPP v Weybury (2018) 84 MVR 153 cited with approval in Lee v The Queen [2018] VSCA 343 at [31]
125The cases range from terms of imprisonment of 12 months to 6 years for the offence of reckless conduct endangering life in the context of evading police. Not one of them involved the imposition of a CCO either by itself or in combination with a term of imprisonment.
126Current sentencing practice is one of the many factors I must take into account at arriving at a sentence. I have considered the individual facts of the cases provided by your counsel,[77] together with all other matters put on your behalf, in order to arrive at and appropriate sentence.
[77]Russell; Haberman; Kettyle v The Queen [2019] VSCA 220; DPP v Russell [2019] VCC 1909; DPP v Rei-Paku [2017] VCC 1032; DPP v Murphy [2017] VCC 827; DPP v Bellingham [2020] VCC 1078; DPP v Cuschieri [2022] VCC 1716; DPP v Phelps [2017] VCC 1364; DPP v Johnston [2021] VCC 2151; DPP v Taylor [2021] VCC 287; DPP v Ennis [2021] VCC 1367; DPP v White [2022] VCC 285; DPP v Clarke [2019] VCC 528; DPP v Navaratnam [2020] VCC 922; DPP v Audino [2022] VCC 438; Butler v The Queen [2019] VSCA 132; Da Costa v The Queen (2016) 258 A Crim R 60; Martinez v The Queen [2019] VSCA 135; R v Bekhazi (2001) 3 VR 321; R v Bell (1999) 30 MVR 115; Russo v The Queen [2021] VSCA 244; The Queen v Towle (2009) 54 MVR 543; Zogheib v R (2015) 257 A Crim R 454; DPP v Harris and Cakebread [2021] VCC 1508; DPP v Harry [2019] VCC 850; DPP v Verdu Tsotras [2020] VCC 1441; DPP v Wight [2022] VCC 398
127I consider that a CCO alone or with a term of imprisonment is not appropriate. I reject the submission that the case of Boulton[78] is authority for the proposition that such an order can be made in your case. I have taken into account what the Court of Appeal has said about the types of cases to which the court’s observations in Boulton can apply. They include cases where the court is dealing with a first time offender who may have made substantial efforts at rehabilitation prior to sentence.[79] Yours is not such a case.
[78]Boulton & Ors v The Queen (“Boulton”) [2014] VSCA 342
[79]DPP v Apostolopoulos [2016] VSCA 201 at paragraphs [40] to [41], cited with approval in Akoka at paragraph [80]
128Taking into account all your circumstances, together with the seriousness of the offence of reckless conduct and the traffic methylamphetamine, the requirements of sentencing can only be met by a term of imprisonment. I have also carefully considered your efforts at drug rehabilitation. Had you not undertaken that, you would have received a longer term of imprisonment.
129Mr Goodson, I have ordered a shorter non-parole period than I otherwise would have done because of the rehabilitation you have already undertaken and the positive reports tendered on your behalf.[80] They show you have turned a corner, have re-engaged with kickboxing, attending the gym regularly and volunteering to mentor and train young people there. You are attending church and two supportive fellowships, one to address your long substance abuse history and the other a Christian men’s group. If you are able to attend such meetings in prison, your rehabilitation can be strengthened.
[80]I took into account what AJA Croucher said in Kettyle v The Queen [2019] VSCA 220 at [94] about the principes of parsimony and rehabilitation demanding a shorter non-parole period in that case, to ensure the applicant is not crushed by his time in custody and to give him a strong incentive to work towards early release on parole and a substantial period of supervision in the community
130The reports tendered on your behalf show you have made very positive steps which I consider you should be encouraged to continue upon your release. I hope that a long period on parole will provide you with the supervision, support and incentive to maintain the changes in your life permanently.
Sentence
131I will now announce sentence. Would you stand please, Mr Goodson.
132On the charge of reckless conduct endangering life you will be convicted and sentenced to a period of two years’ imprisonment. That will be the base sentence.
133On the charge of traffic methylamphetamine you will be convicted and sentenced to 18 months’ imprisonment.
134On the charge of possession of 1,4 Butanediol you will be convicted and sentenced to three months’ imprisonment.
135On the summary charge of failing to stop on police direction you will be convicted and sentenced to three months’ imprisonment, wholly concurrent with the sentence on the reckless conduct charge. Pursuant to s64A(3)(b) of the Road Safety Act 1986, I must cancel your licence for a minimum of six months. I order that all licences be cancelled and you will be disqualified from obtaining any licence for a period of 12 months.
136On the summary charge of deal with suspected proceeds of crime you will be sentenced to one month imprisonment wholly concurrent.
137On the summary charge of possession of a firecracker you will be fined $100.
138I direct that six months of the sentence imposed on the traffic methylamphetamine and one month of the sentence imposed for possession of 1,4 Butanediol be served cumulatively upon the base sentence and upon each other.
139These orders produce a total effective sentence of two years and seven months’ imprisonment.
140I fix a period of 19 months during which you will not be eligible for release on parole.
141Pursuant to s18 of the Sentencing Act 1991, I declare that 20 days be reckoned as served by way of pre-sentence detention.
Section 6AAA declaration
142Had you not pleaded guilty to these offences, I would have imposed a total effective sentence of 3 years 11 months with a non-parole period of two years and eight months.
143HER HONOUR: Is there anything arising from those orders, counsel?
144MR COOKSON: No, Your Honour.
145MS SEOUD: No, Your Honour.
146HER HONOUR: Custody management issues?
147MS SEOUD: Sorry, I hadn't turned my mind.
148HER HONOUR: I will list the medications that he is on - - -
149MS SEOUD: Yes, I was just - - -
150HER HONOUR: - - - such that I have. I will list the conditions that he is affected by. Is there anything else that you consider I ought to list, given his sporting achievements he is not at risk in prison, I take it?
151MS SEOUD: Not that I'm aware.
152HER HONOUR: Thank you. Do you wish a moment to speak with your client?
153MS SEOUD: I will attend to him in the cells downstairs, if that's more appropriate.
154HER HONOUR: Excellent. Thank you. There is a forfeiture order, Mr Cookson.
155MR COOKSON: Yes, Your Honour.
156HER HONOUR: Any objection to me making that order?
157MS SEOUD: No, Your Honour.
158HER HONOUR: I will make that order. Thank you, you may remove the prisoner now.
159Mr Prosecutor, I understand there is also a disposal order. Is that right?
160MR COOKSON: There's a forfeiture – pardon me, Your Honour.
161HER HONOUR: The disposal order has probably already been made.
162MR COOKSON: Yes. If it hasn't been made, at this juncture I have got no objection to that being done in chambers.
163HER HONOUR: Just a minute. My associate thought there was a disposal order, I will just see.
164MR COOKSON: It may be that there is a separate one for the firecracker and the drugs, which sometimes happens, but those orders are all persisted with, Your Honour, and I don't understand them to be objected to.
165MS SEOUD: No, they're not.
166HER HONOUR: Is there any commencement date on the order of the licence? He may have received, is it a s52 notice?
167MR COOKSON: 51, I don't believe so.
168HER HONOUR: 51.
169MS SEOUD: Not that I'm aware of, no.
170HER HONOUR: All right, thank you. Thank you, you may be excused. I have another matter listed at 10.
171MS SEOUD: As Your Honour pleases.
172MR COOKSON: Yes, Your Honour.
173HER HONOUR: Ms Seoud, if I am requested by prison authorities to provide copies of the reports that were tendered on the plea, is there any objection to me doing that?
174MS SEOUD: No, Your Honour. I can't see a problem with that.
175HER HONOUR: Thank you.
176MS SEOUD: Did Your Honour say that the parties are excused earlier?
177HER HONOUR: Yes, yes, you are all excused.
178MS SEOUD: Sorry, I missed it. I apologise for all of that and if I may - - -
179MR COOKSON: I heard, I just thought I'd stay here until things moved on.
180HER HONOUR: Yes, thank you very much, Mr Prosecutor.
181MR COOKSON: Thank you, Your Honour.
182MS SEOUD: As Your Honour pleases.
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