Director of Public Prosecutions v Henry

[2017] VCC 246

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01682

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE HENRY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 March 2017
CASE MAY BE CITED AS:	DPP v Henry
MEDIUM NEUTRAL CITATION:	[2017] VCC 246

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Godleman
For the Accused	Ms S. Kermath

Pages 1 - 9

 

 

HIS HONOUR:

1Wayne Henry, on 18 July 2015, you drove from where you lived in the Tyers area to the Shepparton area to attend some birthday celebrations.  You first went to an uncle's 50th birthday party at Euroa.  When there, you came across your mother.  It seems you do not have a good relationship with her and catching up with her or being in the same place as her, threw you out a bit. 

2You decided to leave that place and you drove to a cousin's premises in Prentice Road, Orrvale.  Orrvale is an outer suburb of Shepparton.  When you arrived at that party you said to those holding the party, you could now have a drink.  You went up to the shed where others were enjoying each other's company.  It seemed you arrived around about 7 pm.  What you drank was Wild Turkey Bourbon with lemonade.

3Sometime around 10.30 pm, another cousin arrived at the party.  She was with her then boyfriend.  You spoke to his female cousin and her boyfriend, mainly about cars. 

4I just pause for a moment to note that what I have been told, that the female victim of this matter is in court.  There is no disrespect to her that I do not refer to her by name in the reasons.  It is just that these reasons get published and we found it a little easier for people if we do not name them and we just call them by who they are.  All right, it is not disrespect, it is rather respect.

5You spoke to this female cousin and her boyfriend, mainly about cars.  You have a long-standing interest in cars.  You had driven to the Shepparton area in your powerful vehicle.  Later in your interview with police, you described the car as heavily modified in order to improve its performance so you could race it at Calder Park, amongst other racetracks. 

6The engine was a 5.7 V8 engine, producing 280 kilowatts of power.  There are extractors, differential gears, strengthened gearbox and a custom air intake to produce more volume of air.  You told the police the vehicle was very fast and you had driven it at drag meetings at speeds of over 170 kph for 400 m. 

7You are well-aware of the power of your car.  You have experience in driving the car in the proper setting of racetracks as well as on the road, where you normally do the right thing when driving that car.  But when speaking to your female cousin and her then boyfriend, you urged them to go in your car so you could show them, particularly the male, how fast it could go. 

8They were initially not interested but ultimately, they agreed.  The male victim sat in the front passenger seat and the female cousin sat in the rear.  You were described as driving sensibly until you got to Channel Road.  Channel Road in Orrvale, near Shepparton, is a road that does curve and is not interrupted by intersections.  It is ripe for the irresponsible to drive too quickly.

9Once you were on the road, you sped up until the vehicle was going at about 100 kph.  The maximum speed along Channel Road and certainly at the place where you had the collision was 80 kph.  It was not long after you had got to that excessive speed that the passengers were saying to you, "Slow down, don't do this, don't do this", and, "Watch out for the corner."

10As you approached the bend in the road at a high speed, you went off the edge and into a deep ditch.  The vehicle then hit the last line of trees before somehow popping back up onto the road.  Shortly after the collision, there were flames coming from the bonnet. 

11The female victim attempted to open her door but it was jammed.  The male victim, who was in front passenger seat, got into the rear and kicked the passenger window out, enabling both of them to somehow escape the vehicle.  They then helped you get out through the rear window as well.  The police arrived a short time after the collision and the vehicle was then engulfed in flames. 

12You were taken to the Goulburn Valley Hospital, where you told police that you had a few drinks or bottles of Wild Turkey with lemonade because you do not remember much else.  You were assessed as having then - or blood was taken from your system and it was assessed and you had a blood alcohol concentration of .109.

13A reconstruction of the collision indicated you were travelling a minimum speed of 115 kph when it left the road. 

14The female victim was taken to the Goulburn Valley Hospital and was airlifted to Melbourne, where she remained for two weeks undergoing surgery on three occasions and at that time, there was a prospect for further surgery.  She suffered multiple rib fractures, a subcutaneous emphysema, a collapsed lung and abrasions.  She also had a grade 2 laceration of her spleen and a grade 1 laceration of the liver.  Her injuries were described by a forensic medical practitioner as life-threatening.

15The male victim's injuries were that he was left with an incomplete fourth rib fracture, an undisplaced fracture of the breast bone, an undisplaced fracture of the lower part of his sternum, a collection of blood tissue around the pelvis and a severed small bowel.  He had, in his spine at the L2, a chance fracture; a serious matter.  He also had a fracture of one of this toes.  These were reviewed, that is the male victim's injuries were reviewed by a forensic medical practitioner who stated, in her opinion, the injuries were life-threatening.

16Your record of interview was frank and you cooperated, although you did not have a complete memory of the events.  You conceded that you had been drinking and that you had offered to show the male victim how fast your car could go.  You said, as to your remorse, that you feel pretty ashamed and, "It's gutted me to think what I have done.  I wish I could take back that night and change it and absolutely remorseful for what I've done, that's for sure.  It was so bloody idiotic."  Your cooperative attitude has remained and you have pleaded guilty to the two charges of negligently causing serious injury.  

17On any assessment - and I am required to assess the gravity of the offending - on any assessment, this is a serious example of the crime of negligently causing serious injury.  In this case, there was deliberate showing-off of a high-powered car to get to a speed well in excess of the speed limit.  The risk was elevated by the curve in the road that approached.  In addition, the alcohol in your system, that is twice the legal limit, was indicate of the sheer stupidity involved. 

18These matters are precisely the things that the road authorities have spent much time, money and campaigns; the message has been clear for decades, "Do not speed", and, "Do not drink and drive."  Courts, likewise, have endeavoured to consistently uphold the message that driving in this fashion, affected by alcohol, causing serious injuries to others will not be tolerated.  Stern sentences involving incarceration are to be expected.  I will return to these matters shortly. 

19In my view, your moral culpability, another matter I must assess, is high.  You are an experienced driver and one who knows in what circumstances you can extend your powerful car and that is on the racetrack and that alone. 

20The female victim provided a victim impact statement, indicating that she finds it difficult, if not impossible, to travel in a car with someone else without panic attacks and reliving the dreadful images.  She became withdrawn and depressed and had grief. 

21After the incident, she lost her partner, her career and, once again, things did not go well for her and she lost her daughter.  She has seen practitioners because of ongoing post-traumatic stress disorder.  She does say that she does not believe that you did what you did deliberately but nonetheless, it was a horrific accident and one that has caused significant adverse impact to her. 

22I was told that the male victim, who did not provide a victim impact statement, has recovered from his serious physical injuries.

23As to your circumstances, you have just turned 39.  You were brought up in the Dromana area.  Your experience at secondary school was difficult; you remained until Year 11 and then got work in a shop, followed by working in the construction industry, working at Mackay or insulation works, and finally at BlueScope Steel. 

24However, your enduring interest in cars saw you regularly helping out at Fast Auto Care in Somerville.  Over the years, you became very close to the proprietor of that business.  After helping out the proprietors when they had some difficulties with staff, you then decided to leave your job at BlueScope Steel to become an adult apprentice in the auto care business. 

25You did well, impressing with your hard work.  There are plans, or were plans, for you to take over the business as the proprietors were heading towards retirement. 

26I have, this morning, been provided with a letter, for Mr Peter Tatsis and I will ensure that that is marked as an exhibit in the plea.  Mr Tatsis is someone who's known you for some time, also living in the area that you do, around Frankston and Tyers, and he has known you mainly through your work at Fast Auto Care. 

27What has occurred, it seems, is that there has been a falling out with those as Fast Auto Care and what plans you had in respect of the business, taking over the business had fallen to one side but Mr Tatsis, having been impressed with your work performance, took you on and you had been working as a sales representative for him since January or February of this year.  He says that you are an impressive salesman and business is blooming for him.  He does understand the seriousness of the charges.  He said that you seemed to - or your wife told Mr Tatsis that you had not been as happy in work for years as you have with this job. 

28You and your wife have been together for 18 years, since almost teenage years.  You have two children, one, 16 and one, eight.  Your wife continues to support you despite these offences.  I have read her compelling letter and I take it into account.

29You have been, over the years, troubled by drinking too much as you dealt with the stresses of taking on an adult apprenticeship and moving, at that point, towards taking over a business.  Also, of course, the commission of these crimes have caused you very significant stress, you felt overwhelmed and suicidal at times. 

30You reported feeling worthless and hopeless and letting everyone down.  There is no question you have expressed remorse and self-reproach and do wish to make positive changes in your life and rectify mistakes.  Those matters are very much to your credit as is your very solid work history to date. 

31You have on prior criminal matter, which unfortunately was for drink driving in 2007 and it is plain you should have learned a lesson at that point.  I note it is some years before the commission of this offence but as I say, it should have seen you never drink drive again. 

32You have endeavoured to deal with your psychological burdens by attending a local psychologist, who provided a very helpful report to me.  It is clear that you will need further help into the future but you are motivated to make things right again. 

33I take into account your plea of guilty, which means that your sentence will be significant less than it otherwise would have been.  As stated and I repeat, you are genuinely remorseful and contrite. 

34Your counsel urged that I not imprison you, but place you on a community corrections order.  The prosecution submitted that the only just and appropriate sentence was one involving imprisonment.  This was so, given the need for weight to be given to denunciation and general deterrence. 

35The Court of Appeal in this State has, in recent times, made it plain that there needs to be proper recognition by stern sentences of the seriousness of the crime of negligently causing serious injury by driving. 

36Yours, as I have said, is a concerning example of that offence, that places your offending into a category where notwithstanding all the minatory matters, a community corrections order would not meet all sentencing considerations. 

37Grave as it always is, I have come to the conclusion that the only sentence that could properly meet all sentencing considerations is a term of imprisonment.  I keep well in mind that there are two victims who are seriously injured.  As the authorities make clear, there is a need for some recognition of each of the victims by a measure of accumulation. 

38Nonetheless, I keep well in mind that your sentence needs to be proportionate to your criminal conduct, no more and no less.  I have taken into account all the factors in mitigation, not just giving them lip service but take them into account and I have formed the view that you will, in all likelihood, fully rehabilitate.  Thus, I have allowed time for potential parole as to if and when you are granted parole, that is a matter for others, not me.

39Doing the best I can, for committing the crime of negligently causing serious injury to the victim, you are sentenced to two years' imprisonment. 

40For committing the crime of negligently causing serious injury to the male victim, you are sentenced to two years' imprisonment. 

41I order that nine months of the sentence to be imposed on Charge 2 be cumulative upon Charge 1.  That gives a total effective sentence of two years and nine months or 33 months and I order that you serve 15 months before being eligible for parole. 

42Had you pleaded not guilty and been found guilty of these crimes, I would have imposed a total effective sentence of five years with a minimum of three. 

43I am required by law to cancel your license and disqualify you from driving.  The term that that will be, will be the minimum that is required by law of 24 months. 

44There is a summary offence that is also a part of this and that is that you had an excessive amount of alcohol in your system.  In respect of that, you are convicted and fined $500 and you will get three months to make payment for that.  Is there any other orders required?

45MR GODLEMAN:  Your Honour, I believe on the last occasion, an application was made for a forensic sample?

46HIS HONOUR:  Yes.

47MS GODLEMAN:  I just raise that out of completeness, Your Honour.

48HIS HONOUR:  Yes.  What do you say about that?

49MS KERMATH:  Your Honour, my client is 39, he has not - it is a different sentence, Your Honour, it is not like drug trafficking or - it is a matter for you.

50HIS HONOUR:  I decline to make the order.  The seriousness of the offence is concerning and ordinarily it would lead to that but given Mr Henry's background and the like, I am not persuaded it is necessary to make an order pursuant to s.464ZF and I decline to make that.

51COUNSEL:  As Your Honour pleases.

52HIS HONOUR:  Is there anything further?

53MS KERMATH:  No, Your Honour.

54HIS HONOUR:  Mr Henry, this courtroom's not set up for you to spend any time with those that care for you and you for them; I am sorry about that.  It is not you would not obey and behave properly but many others do not and we just have to have one way it works so that prison authorities can deal with it.  Now, your lawyers will go and see you downstairs, your partner can not, but they will very quickly get some information to your partner about how it is that you and she can communicate in the next few days.  It is not easy but that is just the way it has to be, do you understand?

55OFFENDER:  I do.  Thank you, Your Honour.

56HIS HONOUR:  Thank you.  If you would go with the prison authorities, please.  I thank the parties for their considerable assistance and the dignity of everyone involved.

57COUNSEL:  As Your Honour pleases.

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