Director of Public Prosecutions v Grixti

[2023] VCC 341

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

General List

CR-21-02474

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH SHANE GRIXTI

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JUDGE:	Her Honour Judge Gwynn
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2023
DATE OF SENTENCE:	7 March 2023
CASE MAY BE CITED AS:	DPP v Grixti
MEDIUM NEUTRAL CITATION:	[2023] VCC 341

REASONS FOR SENTENCE
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Subject:Negligently Cause Serious Injury           

Catchwords:              Criminal Law

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited:Harrison & Rigogiannis (2015) 49 VR 619; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Convicted and sentenced to 3 years and 4 months imprisonment with a Non-Parole Period of 2 years and 2 months; 15 days of Pre-Sentence Detention reckoned as served; Licenses cancelled and disqualified for 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott Mr P. Triandos (Sentence)	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Papa Hughes Lawyers

HER HONOUR:

1Kenneth Shane Grixti, you have pleaded guilty on indictment to a single charge of negligently causing serious injury. 

2In sentencing you for this crime, I must have regard to the maximum penalty for the offence you have committed.  The maximum penalty for negligently causing serious injury is 10 years imprisonment.

3This maximum penalty reflects the seriousness with which Parliament regards this offence.

4The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 8 February 2023.  This is an agreed document and it represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to this charge occurred on the afternoon of 2 March 2020, at which time you were 46 years of age. 

The Offending

6On 2 March 2020, at about 4.17 pm, you were the driver of a car that caused a 'nose to tail' collision involving four cars on Taylors Road, Deanside.

7On the day of this collision, road works were being conducted in the vicinity of Taylors Road and Plumpton Road intersection in Deanside.  Taylors Road was normally an 80-kilometre zone between Sinclairs Road and Plumpton Road, however due to the roadworks, had been reduced to a 40-kilometre per hour zone.  Suitable signs had been erected at various stages and over some distance from the accident site.  The signs were clearly visible for drivers travelling in the westerly direction.  Your route took you past this signage. 

8Immediately prior to the collision, you applied the brakes and attempted to steer to the right.  A skid mark was left on the road surface from the front passenger side tyre, angled from the left side toward the centre of the road. 

9The front of your car collided with the rear of the stationary Kia Cerato sedan of Ricky Brewer.  Mr Brewer was 61 years of age and not known to you.

10As a result of the collision, the Kia was extensively damaged as it was pushed forward and collided with the car in front.  Air bags were deployed.  

11The driver in front of Ricky Brewer's car, Alex Fa'alau, sustained a sore neck and glass cuts to his right arm.  The impact pushed his car into the car in front of his vehicle.

12Ricky Brewer was wearing a seatbelt, however, the impact from the collision propelled him within the cabin and his head struck the sun visor mounting, causing a severe head laceration.

13Ricky Brewer was conveyed by ambulance to the Royal Melbourne Hospital where he remained until 25 March 2020.

14Whilst detailed in the Crown document, the impact of the collision caused numerous internal injuries to Mr Brewer which included:  a fracture to the spine causing paraplegia, thoracic aortic injury and artery tear, multiple rib fractures, fractured left humerus with ligament damage, a widening between the fourth and fifth vertebrae, and abdominal injuries including liver and splenic lacerations.

15After his time at the Royal Melbourne Hospital, Mr Brewer was taken to The Austin Health Victoria Spinal Cord Service where he remained until 7 May 2020.  He was then transferred to the Royal Talbot Rehabilitation Centre where he remained until 5 August 2020. 

16As a result of the collision, Ricky Brewer sustained serious life-long injuries and is now paralysed from the waist down.

17Blood samples were taken from you.  The blood samples were analysed by the Victorian Institute of Forensic Medicine.

18An expert opinion and statement was subsequently supplied by Dr Angela Sungaila.  

19In her report she details the drugs found on analysis being:

(a)   Methadone

(b)   EDDP (which was a metabolite)

(c)   Morphine

(d)   Codeine

(e)   Diazepam

(f)    Nordiazepam

20Dr Sungaila was of the opinion that there had been recent use of heroin.  Even if you had been using a regular prescribed dose of methadone, adding heroin or morphine and benzodiazepines would cause inevitable impairment.  This likely impairment is decreased alertness, reduced response to stimuli, drowsiness and sleep.  This, in Dr Sungaila's opinion, is in keeping with you becoming unaware of the need to stop your vehicle until moments before the collision. 

21Dr Sungaila found that 'The most reasonable explanation for the collision in the setting of the presence of a potent combination of drugs in [your] blood is that [you were] unable to maintain proper control of [your] motor vehicle due to impairment by the combination of drugs.'

22Two expert opinions were also provided by Detective Leading Senior Constable Lyndon Walker.  In his first report, he was of the opinion that the 'closing speed' between the car driven by you and the car driven by Mr Brewer is between 88 to 117 kilometres per hour.  Those figures are determined on the Ford weighing 1755 kilograms.

23In his second report, Detective Leading Senior Constable Walker was prepared to adjust those speeds down to a minimum of 84 kilometre per hour if the laden vehicle weight is 1955 kilograms.

24You were spoken to by police at the scene and were cooperative.  There is no evidence that you appeared drug affected.

25You were interviewed by police by appointment on 15 September 2020.

26During the interview, you stated that you were travelling about 50 to 60 kilometres per hour and had seen the other vehicles in front of you, either stationary or moving slowly.  You also stated you had observed the 40 kilometre per hour signs and the roadwork signs.  When asked why you did not stop in time you said you had misjudged it and that the sun was in your eyes.

27When informed that police had results of a toxicology report, you said that you had not used Heroin for over a year and a half.  You said you had been taking Panadeine Forte over the weekend due to recent dental work in addition to being prescribed diazepam and methadone.  I do not propose to make a finding as to whether or not you had consumed heroin as either way, and by your own admission, you had a combination of drugs with sedative qualities in your system.

28The prosecution say that you negligently caused serious injury on two bases:

(a)   A combination of drugs was in your blood impairing you to such an extent to be unable to maintain proper control of your car; and

(b)   You were driving well in excess of the speed limit (with an alleged minimum of 84 kilometres per hour in a 40-kilometre zone).

29This is accepted by you.

Victim Impact Statement and Offence Gravity

30The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

31A victim impact statement authored by Ricky Brewer dated 12 February 2022 was tendered by the prosecution at your plea hearing. 

32Mr Brewer was on his way home from work when you drove into the rear of his vehicle.  Two years later, he says he struggles with numerous activities he took for granted before.  He can no longer walk and cannot lift, shower, dress or prepare food for himself.  Mr Brewer is also concerned for those who have to care for him on a daily basis and that, one day, he is afraid of going into a care facility.  He experiences pain on a daily basis and states 'sometimes I think it would have been better to have died'. 

33It is clear that the impact of your offending has had a profound effect on Mr Brewer and continues to do so on a daily basis over two years post incident.  His victim impact statement was read to the court so you are well aware of how Mr Brewer's life has been affected.

34In the decision of Harrison & Rigogiannis (2015) 49 VR 619, the court conducted an extensive review of sentences imposed for the offence of negligently causing serious injury by driving. It did so in order to determine the then current sentencing practice for that offence in circumstances where the offending was said to fall within the upper range of seriousness. The court found that the offending of each of those offenders fell within the upper range of serious and, had it not been for the constraints of current sentencing practices, the sentences imposed would have fact been inadequate.

35The court in Harrison was critical of sentences for negligently causing serious injury by driving, including those in the upper range of seriousness, as having remained inappropriately clustered at an under four years' imprisonment in circumstances where the maximum penalty had increased from that of five years to 10 years' imprisonment in 2008.

36In Harrison, the court held that on sentencing for negligently causing serious injury by driving the court should not be constrained by existing sentencing practices and should from that point impose higher sentences for those which fell within the upper range of seriousness and, as would naturally follow, the sentences which could be described as mid-range and lower end instances of such an offence would also increase. 

37The court reiterated that the offence of negligently causing serious injury by driving sits above dangerous driving causing serious injury and below dangerous driving causing death.

38Essentially, the court is required to assess the objective gravity of your offending.  The objective gravity of your offending is to be assessed by reference to the degree of negligence displayed and to the seriousness of the injuries caused to the victim.

39The injuries to your victim are obviously and objectively serious.  In addition, your driving clearly placed a number of other road users at risk.

40It is self-evident that your offending is serious.  The prosecution do not contend that you knew you were impaired, rather it is your use of a combination of drugs, awareness of the road conditions and excessive speed that is the basis of your negligence.  

41On your behalf, Mr Kozlowski submitted that when dividing the assessment of the seriousness into the two components of negligence and the nature of the injury, that the negligence is not of a high order.  You were licensed to drive and tried to self-correct.  There is no evidence of you presenting as drug affected and it is not suggested by the Crown that you were aware of any impairment.  His submission was also based on the comparison of other cases where there are features such as high levels of alcohol or drugs, evidence of erratic driving or evidence of very high speed.

42I do accept that your offence was not at the higher end in terms of the degree of negligence.

Plea of guilty

43The Sentencing Act obliges me to take into account the stage at which you entered your pleas.  Your matter resolved after a sentence indication hearing held on 28 November 2022.

44Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings.  A sentence indication can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or otherwise electing to proceed to trial.

45The sentence indication given by me was that, should you determine to plead guilty, then I would impose a gaol term of three years and four months with a non‑parole period in the vicinity of two years on the basis of the information provided to me at that time.

46You accepted that sentence indication and were arraigned on 13 December 2022.

47There is clear value in saving the victims the need to give evidence, and utilitarian value in saving the community the expense of contested proceedings. 

48Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the court's operations remain significantly disrupted and many trial dates wait for a date for hearing.

49In the still recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39 the Court of Appeal said that,

'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'

50In addition, I do accept that you are remorseful for your actions.

51These factors will be taken into account in your favour.

Personal Circumstances

52Turning now to your personal circumstances which were outlined in the Defence Submissions tendered on your behalf, dated 23 November 2022 and also accessible in the sentencing reasons of Her Honour Judge Campton from 24 March 2006.

53You were born in March 1973 and are currently 49 years of age.  

54Your parents separated when you were eight years of age and you went backwards and forwards between them.

55Your father worked as a printer.

56By way of education, you completed up to Year 10 at high school and then undertook a printing apprenticeship.  You worked in the printing industry for a number of years until 2003, when you left your stable employment due to your increasing drug use.  

57You are single and do not have any children.  You have had two significant relationships, the most recent of which ended when you were a much younger man than you are today.

58You currently reside with your mother, who is in poor health, having recently undergone cardiac surgery.  You are your mother's carer and conduct your carer's duty alongside what was your current employment as a landscaper.  

59A letter authored by Dr Danny Aughsteen dated 23 February 2023 has been tendered.  This letter confirms that your mother has had a total knee replacement, suffers from hypertension and has had recent open heart surgery.  She is presently home alone with no one to give her in-home care as you were remanded by me 15 days ago.  You are understandably concerned for your mother's welfare whilst you are undergoing sentence and this adds to the stress of that environment for you.

60Since 2019, you were employed casually as a landscaper. You stopped working in the lead-up to this hearing.

61In terms of your drug use, you commenced using heroin at the age of 25.  You also sporadically used other drugs, including cannabis and amphetamines. 

62You have been prescribed benzodiazepines, Serepax and Xanax and have used them for a number of years.  You say you are no longer using any of these medications, having stopped seeing the doctor who prescribed them to you around May of 2021.  You were obviously prescribed the medications referred to in your interview with police. 

63You are currently on the methadone program and have been for a number of years and, in terms of the last information known to me, were receiving 30 milligrams per day.  

64You say you have not used any illegal drugs for some time and certainly not since this accident.  

Criminal history

65Your prior criminal history does form part of your personal circumstances.

66You have what can only be described as a somewhat extensive criminal record of some 11 court appearances between the years 1993 to 2019.  Your history involves offences of drug possession, violence, dishonesty and driving offences.  I do not intend to recite the entirety of that record. 

67You have received a term of imprisonment on one occasion.  On 24 March 2006, you were sentenced to a total effective sentence of three years and two months  imprisonment with a minimum of 20 months before being eligible for parole in relation to charges of intentionally cause serious injury, aggravated burglary, burglary, threat to inflict serious injury and theft.  

68Relevant to the matter before me is only one previous court appearance.  You appeared at Sunshine Magistrates' Court on 31 October 2017 for careless driving of a motor vehicle, failing an oral fluid test within three hours of driving, possession of heroin, assaulting a police officer, and failing to report to police when owner was not present.  At that time, you were convicted and sentenced to a 12-month community corrections order with 90 hours of community work and therapeutic conditions.  Your licence was cancelled and disqualified for a period of three months.

69Most recently on the record before me, on 29 April 2019, you were sentenced by the Melbourne Magistrates' Court to a 12-month community correction order with 100 hours of community work for one charge of negligently deal with the proceeds of crime.  This would mean that you were subject to this order at the time of your offending on 2 March 2020 which is an aggravating feature to that offending.

70Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance in your sentencing exercise.

71It is also relevant to the assessment as to your prospects for rehabilitation.  You do not appear to have a history of driving offences, nor, in general, a history for breaching court orders.

72You have had no further matters since April of 2019. 

Prospects of rehabilitation

73In terms of your prospects for rehabilitation, as referred to earlier, until your recent remand you resided with your mother and acted as her carer.

74You have a supportive relationship with your father who has been present for all the court hearings before me. 

75You say you have maintained a drug free lifestyle since 2019.

76Tendered on your behalf was a character reference written by your employer Ms Nikki Ashton, dated 20 November 2022.  Apparently, you moved in next door to her in 2019 when you moved in with your mother.  Ms Ashton describes you as initially distant and private but says that she got to know you and describes you as a 'welcome member of our small and close community'.  She describes you as a helpful and friendly neighbour.  As an employee, which you were for a period in excess of two years, Ms Ashton describes you as enthusiastic, loyal and reliable and feedback from customers was positive.

77I am satisfied that, at this time, you present with reasonable prospects of rehabilitation.  I accept the whole experience of this charge and the proceedings has had some role to play as both a sanction and a deterrent. 

Sentencing Principles

78I am required to impact on your licence and accordingly all licences held are cancelled and disqualified for a period of four years as a result of you being convicted of a serious motor vehicle offence.

79Otherwise, the basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

80In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society. 

81I have taken into account the relevant sentencing purposes referred to in s5 of the Sentencing Act.  I have taken into account current sentencing practices for the offence to which you have pleaded guilty.

82In relation to Charge 1, negligently cause serious injury, you are convicted and sentenced to three years and four months imprisonment with a minimum of two years and two months before you are eligible for parole.  Fifteen days will be reckoned as having already been served.

83Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charge.  If not for your plea of guilty, you would have been sentenced to a total effective sentence of four years and 10 months with a minimum of three years and six months before being eligible for parole. 

84Anything I have missed from your end, Mr Triandos?

85MR TRIANDOS:  No, Your Honour.  

86HER HONOUR:  Mr Kozlowski?

87MR KOZLOWSKI:  No.

88HER HONOUR:  All right.  I have got a matter at 10 but I will leave you to speak with Mr Grixti over the link should you wish to do so and that can be accommodated privately.

89MR KOZLOWSKI:  Thank you, Your Honour.  As Your Honour pleases.

HER HONOUR:  Thank you.  Otherwise, I will stand down till 10.  Thank you.- - -