Director of Public Prosecutions v Guillemain

[2017] VCC 326

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01932

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYMELEE GATHINA GUILLEMAIN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 March 2017
CASE MAY BE CITED AS:	DPP v Guillemain
MEDIUM NEUTRAL CITATION:	[2017] VCC 326

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR S DEVLIN
For the Offender	MR F SCULLY

HIS HONOUR: 

1Jaymelee Gathina Guillemain, you have pleaded guilty to one charge of dangerous driving causing serious injury, one charge of causing injury recklessly.  The driving occurred on 2 March of 2013.

2The facts of the matter are set out in the summary of prosecution opening.  They are not disputed by your counsel.  I will not in any detail refer to it.  Any reader of these reasons to place the sentence in its factual context can refer to Exhibit 1 to so do.

3Briefly stated, at about 2.40 am you were travelling south east on the intersection of the Princes Highway and North Road to the east and Wellington Road to the west.  You travelled over a crest in the left hand lane of the Princes Highway.  You were looking at a vehicle next to you and did not see another vehicle pull out of a service road into the left hand lane of the highway.  That is the vehicle that you ran into the back of.

4It is agreed that your vehicle was travelling at approximately 116 kilometres per hour.  The area in which you were driving was an 80 kilometre per hour speed zone.  You left a skid mark of approximately 49 metres long before you collided into the rear of Mr Yu's vehicle.  From that I could conclude that about 49 metres prior to the collision you observed the vehicle in front of you and that is why you applied the brakes.  It is not clear to me the distance from the top of the crest to the time that you applied the brakes and thus the amount of time you had to see Mr Yu's vehicle enter the highway prior to you applying the brakes.  As a result of the collision, Mr Yu was taken to the Alfred Hospital in a serious condition and amongst other injuries, which are detailed at paragraph 6 of the opening, he suffered a closed head injury, some lacerations to the scalp and post traumatic amnesia for approximately 12 days.  He was an inpatient at the Victorian Rehabilitation Centre until 11 April 2013 and then approximately three to four months as an outpatient. 

5The back seat passenger in your car, Renor Zuzaku, received injuries including a laceration to his right eyelid, small fractures in the right orbital floor and the right medial wall, bruising and chest pains.  That is the basis of Charge 2.

6At the time, you were 18 years of age and on a probationary driver's licence.  You clearly were not paying proper attention and driving way over the speed limit.  You were initially charged with a more serious charge.  The matter was listed for a contest in the Magistrates' Court but it was then decided by the prosecution to uplift it to this court.  This means that it is approximately four years after the event that the matter is being disposed of. 

7I have read the victim impact statement of Mr Yu, that is dated 15 August 2014.  It movingly sets out the difficulties that your driving has had upon him not only medically but emotionally and financially.  Unfortunately I do not have any more up to date material from him because he has gone back to China and has been unable to be contacted.  You have no other criminal history.

8You went to Year 12 at St John's Regional College in Dandenong.  In the year that this occurred, 2013, you were describing that as a "gap year".  You met your current partner in 2014 and live with him and the two children you have, in suburban Perth.  You have a supportive and caring family which is demonstrated by the number of members of your family who have attended court. 

9On your behalf, your counsel tendered a report from Jeffrey Cummins, a clinical and forensic psychologist.  It sets out your background.  It describes the affect that the accident has had upon yourself.  It recounts your remorse for your behaviour and Mr Cummins's view is that you were very responsible and had insight as to what had occurred. You are moderately anxious and mildly depressed in relation to your legal situation.  His opinion was that you did not require a prescription of anti-anxiety medication or any anti-depressant. 

10A report was filed from Dr Debobroto Gorai who is a consultant neurologist and it sets out the affect that your involvement in the accident has had on you.  A number of references were tendered from various people and I have read and considered those.  As I have said, I have read and taken into account the matters set out in the victim impact statement. 

11You have pleaded guilty and I accept that in the circumstances of the negotiations, it was at the first reasonable opportunity.  That means you are entitled to a discount on sentence at law because it has saved the community the cost and trauma of a jury trial.  It also is a demonstration of acceptance of responsibility by you for your behaviour. 

12There are a number of factors I have to take into account when sentencing you. They are what is called general deterrence; that is, I have to impose a sentence that deters others from similar behaviour, specific deterrence, that is I have to impose a sentence that impresses upon you, you should not behave in this way again, my denunciation of your behaviour and your prospects of rehabilitation. 

13You must understand that if you had killed anyone in this accident, you would be spending a considerable amount of time, no matter your age, in an adult gaol.  Apart from the fact that you would have killed someone, either a passenger in your car of Mr Yu.  Fortunately, that did not occur.  I am unable to make any assessment or Mr Yu's contribution to the accident because of the difficulty of the parties informing me of the distance between the top of the crest and the service lane.  So I am unable to conclude whether he was not showing proper care when he entered the service lane or not.  What I am certain of is that you were not paying proper attention and you were going way, way too fast. 

14I take into account your age, you are a young person, you have been put through the trauma over a period of four years of the legal system, that in itself is a punishment.  I take into account your plea of guilty.  I do not consider that specific deterrence is an issue here as I am satisfied you have excellent prospects of rehabilitation.  The delay in the matter is a considerable sentencing mitigatory factor, it has been hanging over your head for approximately four years.  However, during that time, you have been able to demonstrate that you have rehabilitated yourself.  There is no further driving.  You are raising a young family, you are living in Perth, you are in a settled domestic situation. 

15Taking all those factors into account I have decided to accede to the plea of your counsel on which the prosecution do not disagree with,  that is, to place you on a community corrections order.  I do so for a period of two years.  I initially was going to impose a supervision order but Corrections recommend that that not be done because of your low risk of reoffending.  I am going to impose a conviction.  Your driving here was a serious breach of the motor traffic laws; it had serious consequences for the driver of the other car and the passenger in your car.  You escaped scott free physically from the accident.  That was just sheer luck; you could have had severe brain injuries.  Think about how you would be then. 

16The period of the order is for two years.  I will impose no other conditions.  That means that if during the next two years you commit a breach of that order by reoffending, you will be brought back before me and I would have to think of a different sentencing option which would necessarily include a period of time in adult gaol.  So can I suggest to you that you continue the lifestyle that you are currently leading.  Cope with what has occurred as best you can, drive a car responsibly particularly if you have two young children.  Imagine what would happen if you were driving down the highway and someone like yourself ran into the back of you with your two young children in the car and one or both were severely injured or killed.  It is a very easy thing to happen, it happens every weekend in this State - horrific injuries or deaths from avoidable car accidents.  Fortunately, there is no suggestion of any alcohol or drugs being used by yourself and it is solely down to your inattention and your speed. 

17As I have said, I have declined to sign an order for a blood sample to be taken for forensic purposes.  Any other orders I need to make?

18MR DEVLIN:  Your Honour, I believe I am right in submitting that pursuant to s.89 you must impose a disqualification period and then I think it's agreed 18 months is the minimum period.

19HIS HONOUR:  Does that work in WA too?

20MR DEVLIN:  All licences will be cancelled and it will affect her driving in WA.

21HIS HONOUR:  All right.  So you lose your licence; all licences will be cancelled and you are disqualified from obtaining your licence for a period of 18 months.  That is the minimum period.  I do not have any discretion with that.  So you must not drive for 18 months.  If you were to drive, not only would you be dealt with by a court for that, you would be brought back before me for breaching the community corrections order that I have just imposed.  Anything else,

Mr Devlin?

22MR DEVLIN:  The only thing, Your Honour, and I am not sure myself, is that with the plea, is Your Honour required to provide a s.6AAA?

23HIS HONOUR:  I don't think so.  I've had this discussion many times, probably with you as well as everyone else and my view is that if I am not imposing a term of imprisonment, it is not a matter I have to do but I make it clear to you, madam, that many people are gaoled, even upon a plea of guilty for this type of offending and but for the delay, your age and your steps in rehabilitation, you probably would have been gaoled.  Thank you.  We will get you to sign the orders so just take a seat while that is being done.  You can come up to the Bar table here and sign the document if you want to.  You will take your client through the usual conditions and ask her if she consents to it being made and signing it.

24(Community Corrections Order signed and acknowledged.)

25You can come back here.  You do not have to go back in.  As soon as I adjourn the court, you are free to go.  Adjourn the court until 10 o'clock tomorrow please.

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