Director of Public Prosecutions v Guilford (a pseudonym)
[2024] VCC 1438
•2 September 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERAN GUILFORD (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 2 September 2024 |
CASE MAY BE CITED AS: | DPP v Guilford (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1438 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Culpable driving causing death – negligently causing serious injury – youthful offender – offender diagnosed with ADHD and reduced cognitive processing – offender drove at excessive speed and was unlicensed – alcohol present. |
Legislation Cited: | Children, Youth and Families Act2005; Sentencing Act1991 |
Cases Cited: | DPP v Hill [2012] VSCA 144; DPP v Neethling (2009) 22 VR 466; R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43;; Laz v R [2022] VSCA 160 |
Sentence: | TES of 6 years, NPP of 3 years |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
For the Accused | Ms C. Marcs | Stephen Andrianakis & Associates |
HER HONOUR:
1Kieran Guilford[1] you have pleaded guilty before me to one charge of culpable driving cause death, and one charge of negligently causing serious injury. The facts underlying your offending are as follows.
[1] A pseudonym.
2At the time of the offending you were 16 years of age and living with your parents in Chirnside Park. You had no driver's licence, but did hold a learner's permit. The victims in this matter were the passengers in your car and your friends, Elijah Snow[2] and Tyler Sanic.[3] Both boys were also 16 years of age.
[2] A pseudonym.
[3] A pseudonym.
3The fatal collision occurred on 1 April 2023, at which time your parents were overseas. On Friday 31 March 2023, you spent part of the day driving around in your father's Ford Focus, driving in the afternoon with Elijah to the Cellarbrations liquor store at Lilydale where you bought alcohol.
4You were recorded in a Snapchat video leaving the store with a slab of alcoholic drinks and six other pre-mixed alcoholic drinks. You picked up a friend and the three of you went to your home.
5Text messaging from Elijah’s home indicated you were driving the car with no parents, for example, there was a text, 'His parents are gone so he took the car as well as he is a good driver, it's fine'.
6That evening you drove to the basketball stadium to watch Tyler play basketball and drove back to your house with Elijah. Tyler drove two other friends in a separate car with his mother supervising all to your house, and once back there you and your friends drank alcohol, played darts, listened to music and watched TV.
7At about 2 am on the 1st of April 2023, you, Tyler and Elijah decided to go for a drive in your father's car, but did not tell anyone else at the house that you were leaving.
8The collision occurred on Edward Road in Chirnside Park. The road has a bitumen surface with painted line markings, runs in a north-south direction, and is a two lane two-way undivided road with a single lane in each direction, with a speed limit of 60 kilometres per hour. It is lined by nature strips and residential houses. At the time of the collision, there were several empty parked vehicles on the east side of Edward Road.
9The road was damp at the time of the collision, but conditions were clear and there were overhead street lights operating on the east side of the road. At
2.05 am, the car being driven by you collided into a parked vehicle causing other parked cars in front to hit each other, at which time Elijah was in the right passenger seat sitting directly behind you, and Tyler was sitting in the front passenger seat. All three of you were wearing seatbelts.10Police reconstruction revealed that between the houses at 280 Edward Road and 178 Edward Road, the Ford Focus was travelling at an average speed of 202 kilometres per hour over 20 seconds, increasing to 203 kilometres per hour. Data obtained from the airbag control module of the Ford Focus recorded that five seconds before the collision, it was travelling at 200 kilometres per hour, and between 4.6 and five seconds before the deployment event, it speed remained relatively constant between 199 and 200 kilometres per hour, with the car under near maximum acceleration pedal depression.
11It also showed that in the five seconds before the deployment, you applied braking only very momentarily between three and 2.6 seconds before the collision, and that from 1.8 seconds until the collision, you accelerated up to
100 per cent maximum acceleration at the time of the collision.12The Focus hit the rear of a stationary Toyota van with such force that it caused the Toyota to rotate about 90 degrees onto the footpath. The Focus also rotating with its rear and crashing through a wooden fence outside
124 Edward Road. Both cars came to rest facing west to the Toyota, with its entire bonnet and the engine of the Focus inside its rear cabin.13Immediately a fire broke out in the engine bay of the Focus, and nearby residents used multiple fire extinguishers and tried to put out the flames, and you were described by one witness as trying to talk when you eventually became alert, complaining of pain and asking for your mother.
14You were eventually extracted with the assistance of police from the driver’s seat and other neighbours assisted neighbours assisted in moving Tyler from the car as the front of the Focus stayed on fire.
15You were eventually extracted with the assistance of police from the driver's seat, and other neighbours assisted in moving Tyler from the car as the front of the Focus stayed on fire.
16Fire Brigade members then attended as the fire continued to burn and spread to the rear of the Toyota. Smoke from the fire filled the Focus and made it difficult to determine if anyone else was inside the car. Then a police office, resident and CFA member saw Elijah’s body in the rear footwell. He was taken out of the car and first aid was performed on him, including CPR by police members, CFA members and then Ambulance Victoria paramedics. Despite their efforts, Elijah was declared deceased at the scene.
17You were taken by ambulance to the Royal Children's Hospital where a blood sample was taken from you, and was analysed to contain .085 grams of alcohol per 100 millilitres of blood.
18Medical examination of Elijah’s body revealed this death was caused by multiple injuries sustained in the collision, including extensive injuries to the body with no unexpected signs of trauma. He suffered fractures to the face, temple, left parietal and occipital bones, there was air in his liver and heart, there was fracture separation and distraction through the lumbar spine, and fractures of the right tibia, first right rib and left wrist.
19Tyler followed the following serious injuries, an upper lumbar spinal fracture, significant soft tissue injury at L1-2, with intervertebral disc fracture and herniation, compression of the nerves stemming from the lower end of the spinal cord, skin and soft tissue injuries, a right scalp laceration to the skull bone, bruising over the abdomen, chest and upper and right forearm, small bilateral upper lung pneumothorax's, that is air space around the lung, lung contusions, displaced right 11th rib fracture, liver laceration, right elbow fracture, and other more minor injuries.
20At 8 o'clock that night, Tyler underwent spinal surgery, which included a
T12 to L4 posterior spinal instrumentation, with bone graft fusion and decompression, as well as surgical repair of the right scalp laceration. He spent five days in hospital before being discharged on 6 April 2023.21Tyler was reviewed by Dr Patrick Elias on the 24th of May 2023, and Dr Elias noted he was making good progress with normal lower limb power and sensation, and his right elbow fracture was healing well. Removal of the metal instrumentation took place some months later, and it was on this I was hoping to receive some information but I do not have it.
22Doctor Michelle Kaye, a forensic paediatrician at the Victorian Forensic Paediatric Medical Service, noted that Tyler’s spinal injuries required the insertion of metal rods and screws with bone grafting to stabilise the bone and soft tissue injuries to avoid additional spinal cord or nerve root injury. She believed the long term outcome for Tyler was uncertain, but opined he was likely to have a degree of spinal stiffness and may suffer chronic back pain. She described his spinal injuries as substantial and protracted medically.
23No faults, failures or conditions were identified in the Focus vehicle which could have added to the collision.
24In relation to the effects of alcohol, Dr Jason Schreiber, a forensic physician at the Victorian Institute of Forensic Medicine, wrote a report to the effects of alcohol upon you, that, firstly, it had the potential to significantly impair your driving. That in addition to the effect of alcohol on your driving skills, your possible age-related inexperience at driving would have further compounded your inability to control the car while intoxicated, and that alcohol at this level in relation to driving and the known effects of it had created an appreciable risk, such that your driving would have posed a risk to yourself and the public.
25On 27 April 2023, you attended Knox police station with your father for an interview, but exercised your right to remain silent. The charges against you were put by the prosecution on the following basis, that your driving, resulting in the death of Elijah and serious injury to Tyler, was grossly negligent and fell greatly short of the standard of care a reasonable person would have exercised in the circumstances, and involved a high risk of death or serious injury based on the speed you were travelling prior to the collision, the fact you were intoxicated and your lack of experience.
26A committal hearing was heard 5 February 2024, essentially involving
cross-examination of police expert witnesses. You were committed to stand trial and pleaded not guilty. Ultimately, on May 15, 2024, at an application for sentence indication hearing you pleaded guilty before that application commenced.27The plea is not one given at the earliest opportunity, nevertheless, in my view it can be regarded as a relatively early plea, and examination of prosecution witnesses was very much limited.
28The maximum penalty for culpable driving is 20 years imprisonment. The maximum penalty for negligently causing serious injury is
10 years imprisonment. As you were 16 years of age at the time of the collision, and are currently 17 years of age, you are a child within the meaning of s3 of the Children, Youth and Families Act 2005. You are also a young offender within the meaning of s3 of the Sentencing Act 1991.29This court may impose any sentence the Children's Court may impose under the Children, Youth and Families Act, save for a term of detention in a
Youth Justice Centre; see s586(1) of the Children, Youth and Families Act. However, it must first be satisfied that those sentencing dispositions are adequate. I make it clear that in the circumstances of this case, I have found they are not.30If the court proposes to impose a term of imprisonment or detention in a
Youth Justice Centre, it must then do so pursuant to the provisions of the
Sentencing Act. Charge 1 is a category A serious youth offence, according to s3 of the Sentencing Act, therefore, in sentencing pursuant to the
Sentencing Act, this court must not make a Youth Justice order, unless exceptional circumstances exist; see s32(2)(c) of the Sentencing Act.31Because you were under 18 years at the time of the commission of this offence, the standard sentence of eight year's imprisonment does not apply in your case.
32I now turn to your personal circumstances. You are now 17 years of age, the second of three children born to your parents. According to the psychological material tendered on your behalf, you have always enjoyed a good relationship with your parents, whom you have described as supportive and loving. You had some difficulties at school. You were diagnosed with ADHD in Grade 4, and there appear to have been behavioural problems, such that you were expelled from high school for fighting, swearing and failing to participate in court.
33You had difficulty engaging in home learning during COVID, spending most of the days working with your father during that time, then attending Ranges Technical School to Year 10, and obtaining ultimately full time employment as an electrical apprentice, which work you currently hold as a second year apprentice.
34You were prescribed Ritalin on the diagnosis of ADHD, but suffered some side effects of it, and so continued use after your parents became concerned about those side effects.
35You have been attending on psychologist, Bronwyn Meaker, on a regular basis since 4 May 2023 in the aftermath of the fatal collision. In her report dated 22 April 2024, Ms Meaker described you as presenting emotionally young for your age, and also presenting with concentration, focus and processing difficulties, which led her to suspect you suffer from ADHD, the suspicion being confirmed on provision of a psychological diagnosis of that condition in you which was carried out in 2017.
36She noted that you had discontinued Ritalin, which she described as 'due to his parents not having an understanding of the benefits of such medication for ADHD, and the concern it could have on his health due to the discovery of a small hole in the heart'.
37Ms Meaker noted literature relating to ADHD to the effect that the emotional maturity level of children and teenagers with ADHD may be well below that of their non-ADHD counterparts. This, she said, has a direct impact upon one's decision making ability. Ms Meaker described you as grief stricken and remorseful, and taking responsibility for your offending, which you continue to live with on a daily basis.
38She noted that a term of imprisonment during your crucial years of development will most likely negatively affect your development. She also diagnosed you as suffering a major depressive disorder in the wake of the accident, as well as an adjustment disorder.
39I also received a report from neuropsychologist, Laura Scott, which was dated 11 July 2024. Ms Scott reported that neurological testing revealed a
full IQ score of 70 which placed you in the range of mild intellectual disability, she noting you had a confirmed history of development delays which could not be accounted for solely by reported early hearing difficulties of symptoms of ADHD. This was the first time you had been diagnosed with such a condition.40She found you also met the criteria for ADHD, and found also that your psychological state at the time of the testing was poor. She noted, as did Ms
Meaker, that you had demonstrated suicidal ideation in the months
post-accident, had in fact made plans but desisted because of the effect it would have upon your family.
41Seeing Ms Meaker's report, she found that the symptoms that you reported were consistent with post-traumatic stress. She stated,
'Intellectual disability and ADHD are neurodevelopmental disabilities. Both conditions would have present at the time of the offending'.
42Ms Scott believed you would have been exhibiting the symptoms of neurodevelopmental disability, mild intellectual disability and ADHD at the time of the offending. She noted that while early childhood IQ assessment did reveal globally cognitive function problems, the scores were not in the range for intellectual disability at the time, and that testing had not been revealed until recently, meaning that cognitive disability services had not been able to be attended to.
43When specifically asked about a nexus or a connection between these conditions at the time of the offending and the offending behaviour, Ms Scott described you as a young man with multiple developmental disabilities 'whose thinking and behaviour is immature for his age due to these conditions'. She stated, 'Unfortunately, the extent of his disability was not fully understood at the time of offending, nor was the level of support he required'. I digress here, in that at the time, for understandable reasons, your parents had gone overseas and believed it was safe to leave you at home with drop in assistance. Sadly, that was not sufficient at the time, but, of course, no blame can be laid in relation to that.
44She stated, 'As a result, his capacity of independence was over estimated, and he was left alone at home for a week with distant supervision'. She stated,
'It was in the context of reduced support that he made several poor choices without apparently considering the likely consequences of his actions. This lack of planning is consistent with his impaired planning and organisational skills seen on testing'.
45
Ms Scott described your thinking as rigid and inflexible, with a tendency to become stuck on a given plan and struggling to shift to a new option, which means it would be difficult for you to think flexibly through the different outcomes of your choices, for example, the choice to drive without proper supervision.
Ms Scott stated,
'He either failed to consider or did not appropriately weigh the risks of choosing to drive on a learner's permit with passengers at night and after drinking. While teenagers in general are at risk of making risky decisions, teenagers with developmental disabilities like [Kieran] are particularly vulnerable due to their reduced comprehension and reasoning skills'.
46Ms Scott said this also had application to your decision to drive at very high speeds, stating,
'Whilst this may seem an obvious risk to a neurologically intact person, a person with an ID may not readily appreciate the severe risk in this situation'.
She further stated,
'His ID causes reduced cognitive processing, and his ADHD can reduce the risk of rapid escalation and impulsive choices in the moment, examples socialising at night with friends without parental supervision'.
Ultimately, she stated,
'Taken together, his would be at higher risk than his peers of making decisions in the heat of the moment that fail to adequately account for the risks of choices, like driving at speeds exceeding 150 kilometres per hour'.
47She said you may also be likely to take bigger risks than your peers, that is driving faster than others would, 'due to his own cognitive impairments and poor ability to regulate his emotions and behaviour. He was also a novice driver, and his lack of experience , as well his very slow rate of learning would mean he would require extra support to be aware of the risks of driving at such high speeds'. She noted that those impairments could be exacerbated by the effects of alcohol.
48Ms Scott said you experience significant psychological harm as a result of this accident, stating, 'He was already vulnerable due to his development disabilities and his prior exposure to trauma'. She noted that as a result of the offending, you had been exposed to significantly social isolation and exclusion, and noted a declining mental state with an exacerbation from an adjustment disorder through to major depressive disorder. She noted in the six months prior to this hearing, you were placed on antidepressants with some success.
49Mr Scott wrote that you told her that while previously the prospect of being placed in custody or detention was worrying you, you now didn't really care or worry about it. She stated,
'His mental state resulted in significant withdrawal and declines in his confidence and functional level. He had previously demonstrated a strong emotional reaction to the event, and significant guilt and remorse. It is concerning that on current testing, he reported emotional blunting and reduced anxiety about the prospects of going to gaol. This loss of emotional reactivity is most likely a symptom of the growing seriousness of his mental illness. I strongly suspect he has also developed PTSD, though psychiatric opinion is needed to clarify this diagnosis'.
50It was Ms Scott's view that while your symptoms of neurodevelopmental disability were not likely to deteriorate due to incarceration, your risk of victimisation was increased.
51She also believed that your mental health might continue to deteriorate in custody, Ms Scott expressing particular concern over your suicidal ideation following the accident, progressing to the point of making plans to suicide, although there were in the end no actual attempts. It is her believe that if you are sentenced to a lengthy period in custody, you would be at risk of such ideation. She also stated,
'Given his globally impaired level of cognitive function and his symptoms of ADHD, he may be at great risk of impulsive suicidality than other prisoners'.
52Ms Scott also expressed concern about the lack of supports in custody that you require, particularly given your additional needs. She also stated that if sentenced to a period in custody, it was strongly recommended that you be referred to custodial mental health services.
53Ms Scott also expressed concern from a cognitive perspective, your impairments due to mild intellectual disability and ADHD were likely to increase the risk of future offending if they remained untreated, which is, of course, far more likely if you are placed in an adult custodial environment.
54It was certainly clear from the psychological material that you continue to suffer from grief and extreme remorse for your actions, and have developed concerning accompanying mental conditions, like a major depressive disorder and possible post-traumatic stress disorder.
55I received a host of references from family and friends. It is quite clear you come from a loving, law abiding and supportive family and community. I note that while you have been able to find support and comfort in certain areas of your life, such as your football club, you have also been subjected to what one of your friends described in her reference as constant bullying, involving 'horrifying lies and comments'. That character witness also noticed that a few weeks after the accident, she and other close friends were about your mental health and concerned about your suicidal thoughts, or even as she said suicide.
56As I have said, I am satisfied you are part of a close-knit, law-abiding family, and a close-knit sporting and social community. I hasten to add because I know it's extremely painful for your family to hear the psychological material that I have read out, that, in my view, no blame at all can be attached to your parents in the decision that they made to go overseas for that one week. It was to be expected that in that time, given that you were working, you had a fairly strong dial in framework, that it was thought to be an appropriate arrangement. As it turns from the neuropsychological material, there were more difficulties inherent than had been suspected, which I do accept did have a causal connection to some extent to the offending that occurred.
57You have strong protective factors in your life, in particular, your immediate family, your parents and your sister. As against this, however, I received the victim impact statements of Elijah’s family, his sister, Willow,[4] his mother,
Ramona Snow,[5] his father, Theo Snow,[6] his grandmother,Mrs Brenda Field,[7] and his friend, George Towns.[8] Those victim impact statements painted an eloquent and tragic picture of the ongoing devasted and grief suffered by all of them. Elijah was clearly a lovely deeply loved young man whose premature of death has brought with it a world of pain and mourning. For this family, every day involves a reminder of the loss of a brother, son and grandson which can never be made up for.[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
58There is the loss of Elijah himself, and there is grief around all he has missed out on, and sadly all Elijah’s family will miss out on because he his no longer in their lives. Willow Snow wrote,
'It feels impossible to have a fulfilling time when my mind is plagued with grief', and, 'I feel like a shell of the girl I used to be'.
59Ramona Snow wrote,
‘[Elijah] was enthusiastic, happy and full of life, then gone'. She also wrote, 'It's an impossible task to summarise how [Elijah’s] death has affected me. There are so many emotions, but there is always a hollowness and sorrow that lives within me, also moments of absolute shock and disbelief that I will never see my son again'.
60Theo Snow wrote,
'Even if there happens to be an okay day or happy moment, it is always followed with sadness and guilt. The thought of getting on with things and having a normal moment seems so wrong'.
And he also wrote,
'Life is now a constant sadness at the fact that we miss our [Elijah] and he is no longer with us'.
61Mrs Field wrote,
'The emotional sadness and grief my family feels as they so desire to physically touch, love and listen to [Elijah] and share his daily activities concerns, hopes and dreams of the future, they are unable to do this. It breaks my heart'.
62In his victim impact statement, Tyler wrote about the physical pain he suffered due to the injuries, that he missed school for an entire term because he could not sit down without pain, he had not been able to play sport since the incident, he was unable to work for six months as a basketball referee because he could not run. He was worried because he wanted to leave school to get a trade but did not know if this could happen because of his injuries, and he was concerned he may never be able to play football again.
63His mother, Monika,[9] wrote of the terror she felt on hearing the news that her son had been so badly injured in the car accident. She wrote,
'I remember seeing him in the emergency department and being told that he had broken his back an wondering what that would look like for the rest of his life. I remember the fear I felt when they took him to surgery and the anxious wait when the surgery took six hours instead of the two it was supposed to take'.
[9] A pseudonym.
64She spoke of the weeks and months following when she felt sick all the time, had trouble sleeping, worried about Tyler every time he left the house, the interruptions, the fact that she started a new job and had to take leave without pay to care for Tyler, had to withdraw from a trimester at university, stating,
'I am more anxious and have an underlying feeling of fear whenever [Tyler] leaves the house. I worry about him all the time and constantly ask if he is okay'.
65She said, 'I am always on edge waiting for the next phone call. It is exhausting'.
66I also note that you received serious injuries in this collision, abdominal and bowel injuries and a lung contusion, those injuries requiring serious surgery by way of a laparotomy, and that you remained in hospital for two weeks as a result of those injuries. It appears, however, you have recovered well from them.
67The prosecution submitted that the objective gravity of this offending was very high. The prosecutor, Mr O'Toole, pointed to the extraordinary speed travelled by you just before the collision, that is 200 kilometres per hour in a speed zone of 60 kilometres per hour. He pointed out that driving at that speed was not momentary, and the seriousness of this was added to by the fact that you were under the influence of alcohol and not licensed to drive.
68He also pointed to your decision to drive the car the previous day without supervision. The prosecution conceded the mitigating factors of youth, remorse, previous good character, and to some extent what is called extra curial punishment. That is punishment received outside the court before being sentenced.
69However, the prosecution disputed that exceptional circumstances applied in your case, such that a term of detention in a Youth Justice Centre could be imposed.
70Mr O'Toole submitted that mitigatory factors, such as age, guilty plea, absence of prior convictions and good prospects of rehabilitation, together with extra curial punishment and mental health considerations, were commonly called upon in mitigation in sentencing of young offenders, but sentencing of this kind residing of the kind of appeal in the case of DPP v Hill [2012] VSCA 144,
'Numerous appellate decisions have considered sentences imposed on young offenders with a good family background, unblemished work records and no prior convictions who have convicted of culpable driving. Such cases have emphasised that mitigatory factors of this kind do not ordinarily outweigh the important emphasis which must be placed on deterrence and enunciation in sentences for offending of this nature'.
71Mr O'Toole submitted that general deterrence was an important sentencing consideration, notwithstanding your youth, again citing the Court of Appeal in Hill,
'Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be recorded as irrelevant because of their youth'.
72Mr O'Toole also relied on authority to the effect that the primary of youth in the sentencing exercise may on occasion be displaced by general deterrence, in particular referring to DPP v Neethling [2009] 22 VR 446 where the court stated,
'It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred her. Ultimately, it was submitted that the gravity of the offending the requirement for general deterrence, denunciation and punishment meant that a term of imprisonment with a non-parole period was required'.
73In response, the defence conceded you had driven at excessive speed over time, and in circumstances where you were unlicensed, inexperienced and had drunk alcohol, but Ms Marcs on your behalf submitted that while the offending was serious, it was a consequence of gross negligence, which she described as abysmal judgment, not a premediated act or part of a ongoing course of criminal conduct.
74She submitted you had strong prospects of rehabilitation, and, therefore, your youth, particularly as a first time offender, should be the primary consideration of the court.
75Ms Marcs referred me to the three propositions in R v Mills [1998] 4 VR 235 at 241, which are that youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court, secondly, that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, and, thirdly, that a youthful offender should not be sent to an adult prison if this can be avoided, especially if they are beginning to appreciate the effects of their past criminality. This is based on a fear that a young person placed in such an environment will be himself criminalised by older prisoners. In such cases, a short period of imprisonment may also be justified.
76Ms Marcs also referred to a passage from Azzopardi v R, where His Honour Mr Justice Redlich – sorry, that was [2001] 35 VR 43 at paragraph 44 – where His Honour Mr Justice Redlich concluded,
'The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.
77Ms Marcs also placed some reliance on the psychological material as to your maturity, which was particularly marked because of your untreated ADHD condition. She relied upon the neuropsychological findings of a mild intellectual disability as well, and the remarks by Ms Scott as to the effect this would have had on your decision-making.
78She also cited the judgment of His Honour Chief Justice Young in
Attorney-General v Schmill,'I think it should be remembered that in the long run, the community is better served and better protected if a young offender is rehabilitated and lead away from a life of crime, than if after a short or long gaol sentence imposed to satisfy a public climate for retribution he is taught the ways of the criminal'.
79This is a particularly difficult sentencing exercise. The speed at which you drove, as I made clear on the plea hearing, was utterly horrifying. I am satisfied that in driving at such a speed, a calamitous or tragic outcome was all but inevitable. The tragedy resulting from that driving cannot be overstated.
80But I am also deeply troubled by the findings of the neuropsychological report in particular. It has revealed a hitherto undiagnosed mild intellectual disability, and the continuation of the ADHD condition, which was unfortunately untreated at the time.
81I do accept Ms Scott's opinion in answer to the question was there a nexus between any conditions at the time of the offending and the offending behaviour? Ms Scott replied in the affirmative. I have already cited from the relevant portions of that report.
82I do accept there are special conditions in your case. Whilst on the one hand, I do regard the offending as incredibly serious, and your moral culpability as high, there is, in my view, some reduction because of your inherent neuropsychological difficulties.
83However, and I am also deeply concerned about Ms Scott's opinion as to the effect of imprisonment or detention of any kind upon you long term. Again, she is concerned about a progression, as I have said, of suicidal ideation, potential victimisation in custody, and I was also concerned at her comment,
'Furthermore, he is at risk of institutionalisation as he has already a reduced level of function in daily life. He is likely to become used the highly structured prison context, and may face considerable struggles with community
re-integration'.
84These are weighty factors to be taken into account when sentencing a child, and yet despite the explanation given for your decision to drive at the speed you did, it was still staggeringly high, and so staggeringly dangerous, and the results of it so utterly catastrophic that I cannot be satisfied that even the imposition of the maximum term available for placement in a Youth Justice Centre, that is four years in this case, is sufficient.
85The question of the factors I have talked about in sentencing a child was considering by the Court of Appeal in Laz v R [2022] VSCA 160, a decision of Their Honours Mr Justice T. Forrest, and Her Honour Justice Kennedy JJA. That too was a case of culpable driving causing death. It involved a police chase, together with theft and drug possession offences.
86In that case, Their Honours found the offending was objectively very serious indeed, constituting extremely dangerous driving over a prolonged period of time and leading to tragic consequences. In that respect, it is on all fours with the case here.
87The court, however, pointed to the important mitigatory factors, included in that case the driver's youth, her prospects of rehabilitation, high level of remorse and limited criminal history. I should note, you have no previous or subsequent criminal history.
88That accused person also received a greater weight for her early plea of guilty, which was given a COVID-19 environment. Their Honours sought to balance these competing considerations by the imposition of what they described as a relatively low non-parole period. In my view, this is an appropriate approach to take in the case before me.
89In my view, notwithstanding the personal disabilities which have been found to exist in you, and which to some extent I am satisfied did play into the decisions you made to drive in the appalling way you did on that night, that is and thus do comprise exceptional circumstances, a term of imprisonment exceeding the four years available for a Youth Justice Centre placement should be imposed.
90However, recognition of those factors should be made by way of a lower than normal minimum term. Again, it is my respectful recommendation that the minimum term be considered by the Adult Parole Board and a transfer made so that it is served by you in a Youth Justice Centre.
91I therefore, and I repeat sentence you as follows, on the charge of culpable driving, five years imprisonment. On the charge of negligently causing serious injury, two years imprisonment. I order that one year of the sentence imposed on Charge 2 be sentenced cumulatively to the sentence imposed on Charge 1, giving the total effective sentence of six years, and I order that you serve three years of this sentence before becoming eligible for parole.
92I declare that had you not pleaded guilty, I would sentence you to a term of imprisonment of six and a half years and ordered that you serve a minimum term of four and a half years.
93I must disqualify Mr Guilford from obtaining a licence – what's the minimum period?
94MR O'TOOLE: Yes.
95HER HONOUR: What's the minimum period?
96MR O'TOOLE: Twenty four months is the minimum period.
97HER HONOUR: You are disqualified from all learner's permits or any other permits that you hold to drive are cancelled. Are you disqualified from further obtaining a licence for a period of 24 months. Is there anything else that I need to attend to?
98MR O'TOOLE: No, ma'am.
99HER HONOUR: Thank you very much.
100MR O'TOOLE: The court please.
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