Director of Public Prosecutions v Holmes
[2023] VCC 2224
•4 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00946
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY HOLMES |
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JUDGE: | Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2023 | |
DATE OF SENTENCE: | 4 December 2023 | |
CASE MAY BE CITED AS: | DPP v Holmes | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2224 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous driving causing serious injury – failing to render assistance – youthful offender – life-threatening injuries – injuries at mid-range of seriousness – Bugmy – whether combination sentence appropriate.
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991; Crimes Act 1958.
Cases Cited:Lee v The Queen [2021] VSCA 156; Pan v The Queen [2020] VSCA 42; DPP v Wilson [2020] VCC 1177; DPP v Tate [2021] VCC 1194; DPP v Truong [2022] VCC 1774; and Sahhitandan v The Queen [2019] VSCA 115; Stewart v The Queen [2018] VSCA 55; Bankal v The Queen [2019] VSCA 171; Wassef v The Queen [2011] VSCA 30; Tokay v The Queen (2014) 69 MVR 24; Neskovski v The Queen [2022] VSCA 86; Panouraksia v The Queen [2021] VSCA 259; and DPP v Knight [2023] VCC 612; DPP v Maranis [2018] VCC 188; DPP v Boomsma [2017] VCC 1649; R v Mills (1998) 4 VR 235; Bugmy v The Queen (2013) 249 CLR 571; Lennon v The Queen [2017] VSCA 85.
Sentence: 3 years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Office of Public Prosecutions |
| For the Accused | Mr T Sullivan | May Lawyers |
HIS HONOUR:
Zachary Holmes, you have pleaded guilty to one charge of dangerous driving causing serious injury, and one charge of failing to render assistance. The circumstances of your offending are set out in the agreed Summary of Prosecution Opening (17 October 2023, Exhibit P1).
Circumstances of offending
At around 12.48 pm on 24 August 2022, you were driving a 2004 Ford Falcon sedan, registered to your mother, on Camms Road in Cranbourne. You turned north onto the South Gippsland Highway. Your then partner, Jenna Pace-Bordman, was driving in the same direction separately in a Volkswagen Jetta.
Clairmont Avenue intersects with the South Gippsland Highway approximately 600m north of the intersection with Camms Road. At this location, the highway consists of a dual carriageway constructed of a bitumen surface separated by a raised grassed median. A gap in the median at the intersection allowed for traffic to both enter and exit from Clairmont Avenue. The speed limit at this section of the highway is 80 km/h. You were driving at approximately 130 km/h.
As you were heading north towards the intersection, Stephen Wyatt, who was travelling south, was preparing make a right-hand turn into Clairmont Avenue. Mr Wyatt was 66 years old, working as a delivery driver, and driving a 2002 Toyota Hiace van registered to his employer.
As Mr Wyatt commenced his turn, the driver of the vehicle behind Mr Wyatt’s saw two cars travelling towards them, at “way faster than normal speed”. One of those cars was yours; the other was your partner’s. No doubt seeing the Toyota turning in front of you, you applied your brakes – which reduced your speed to approximately 105-109 km/h – skidded across the wet bitumen, and slammed into the passenger side of Mr Wyatt’s van. I have viewed CCTV footage of this incident tendered by the prosecution (Exhibit P2).
The impact caused the Toyota to tumble nearly thirty metres along the road, before landing on its passenger side outside a COVID-19 testing clinic.
Ms Pace-Bordman had pulled over into Clairmont Avenue. You got out of the Ford, ran to her car, jumped into the passenger seat, and the pair of you accelerated away. Ms Pace-Bordman has been charged, in the summary stream, with assisting your escape.
Witnesses, including the driver of the vehicle behind Mr Wyatt’s van, ran to assist him. Mr Wyatt was not responding and his face was turning blue. The witnesses smelt petrol, and so they climbed up onto the top of the van, opened the driver’s door and pulled Mr Wyatt out through the door.
While an ambulance was being called for Mr Wyatt, you were fleeing the scene, first being driven by Ms Pace-Bordman to her sister’s house, and then being driven by the sister to your father’s house in Werribee. At one point during this drive you called the police and said you were going to turn yourself in, but hung up when you thought the police you were trying to track your location.
Eventually, at around 6.15 or 6.30 pm, your father contacted the Cranbourne Police Station and arranged for you to hand yourself in. You handed yourself in around two hours later, at 8.15 pm.
Meanwhile, Mr Wyatt was being taken to the Alfred Hospital where he was admitted with extremely serious injuries to his spine and other parts of his body. The injuries were life-threatening. Mr Wyatt spent about five weeks in the intensive care unit, before being discharged for rehabilitation at the Eastern Private Hospital. At that stage he still required ongoing treatment, including spine, orthopaedic, cardio thoracic and endocrine surgery follow ups. He also required haematology follow up for the deep vein thrombosis developed during his stay in hospital.
Victim impact
Mr Wyatt prepared a victim impact statement which was read aloud by the prosecutor. The statement describes some of the serious and ongoing emotional, physical, financial and social impacts that Mr Wyatt has suffered as a direct result of your offending. These include:
a.the loss of his ability to work;
b.the fact that he is no longer able to provide and care for his wife, who suffers from a disability;
c.the fact that he cannot walk very far, lift heavy items or kneel or bend without pain;
d.the loss of his enjoyment in recreations such as golf;
e.social isolation; and
f.the loss of his hopes for an enjoyable retirement after 50 years of hard work.
I acknowledge the very serious impact that your offending has had on Mr Wyatt and his family, and take that into account.
Maximum penalties
The maximum penalties that apply to your offending are as follows:
a.Five years’ imprisonment for the offence of dangerous driving causing serious injury contrary to section 319(1A) of the Crimes Act 1958; and
b.Ten years’ imprisonment for the offence of failing to render assistance contrary to section 61(3) of the Road Safety Act 1986.
There are also minimum mandatory licence disqualification periods for each of the offences:
a.18 months for charge 1: Sentencing Act 1991, ss 87P(d) and 89(2)(a); and
b.Four years if a conviction is recorded for charge 2: Road Safety Act 1986, s 61(6)(a).
16. Current sentencing practice
In sentencing you, I am required to have regard to current sentencing practice. The Prosecution Submissions referred to a number of comparator cases for each charge:
a.For dangerous driving: Lee v The Queen [2021] VSCA 156; Pan v The Queen [2020] VSCA 42; DPP v Wilson [2020] VCC 1177; DPP v Tate [2021] VCC 1194; DPP v Truong [2022] VCC 1774; and Sahhitandan v The Queen [2019] VSCA 115; and
b.For failing to render assistance: Stewart v The Queen [2018] VSCA 55; Bankal v The Queen [2019] VSCA 171; Wassef v The Queen [2011] VSCA 30; Tokay v The Queen (2014) 69 MVR 24; Neskovski v The Queen [2022] VSCA 86; Panouraksia v The Queen [2021] VSCA 259; and DPP v Knight [2023] VCC 612.
In addition, your counsel referred me to DPP v Maranis [2018] VCC 188; and DPP v Boomsma [2017] VCC 1649. I have had regard to all of these decisions. Of course, every case is different, and current sentencing practice is neither a controlling factor, nor a yardstick. Nevertheless, what I take from these decisions is that:
a.General deterrence will often be the primary sentencing consideration for driving offences involving the death or serious injury of another person;
b.Just punishment and denunciation are also important considerations;
c.A custodial sentence will typically be appropriate for offences of this kind, except where an offender’s moral culpability is at the lower end of the range of seriousness;
d.An offender’s moral culpability is reduced where an accident is caused by momentary inattention or misjudgement; and
e.Drivers who fail to render assistance can usually expect the imposition of a substantial term of imprisonment.
Objective gravity and moral culpability
I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability. Counsel for the defence submitted that your offending should be regarded as “mid-range” for both charges. In relation to the dangerous driving charge this was on the basis that:
a.While serious, Mr Wyatt’s injuries were not at the highest end of seriousness;
b.Your driving was not at the highest level of dangerous; for example, it had not caused your vehicle to cross into the opposite side of the carriageway or to mount the footpath; rather, you had struck a vehicle that had turned, through a give way sign, into your path, and that a driver such as Mr Wyatt is not entitled to think that every other driver will be travelling at the speed limit; and
c.Your moral culpability was reduced because you had tried to avoid the collision through both braking and steering.
In relation to the failing to render assistance charge, this was on the basis that:
a.Ms Pace-Bordman had encouraged you to flee (and, but for that, you might not otherwise have done so);
b.You were aware that there were other persons present – including a person at the COVID-19 testing clinic who may have been a nurse – who would be able to render assistance to Mr Wyatt; and
c.You telephoned the police during the drive to your father’s house, and eventually handed yourself in.
In relation to these submissions, the Crown:
a.Agreed that Mr Wyatt’s injuries were not at the highest end of seriousness;
b.Submitted that it was the speed of your driving that made it so dangerous, including to drivers turning in front of you who might – as a result of that speed – misjudge the amount of time there was available to complete the turn (as Mr Wyatt had presumably done);
c.Accepted that a case where there was no attempt to avoid a collision would be worse (and might also constitute a more serious offence);
d.Submitted that there was no evidence that Ms Pace-Bordman was responsible for your decision to flee (noting that the CCTV footage clearly shows you running from your car towards her car almost immediately after the collision, and then getting into that car);
e.Agreed that it would be worse if a driver failed to render assistance in circumstances where there was no other assistance available; and
f.Submitted that – given you were driving your mother’s car and had been seen by a number of witnesses – your decision to hand yourself in may simply have been a case of you bowing to the inevitability of your apprehension.
Nevertheless, the Crown agreed that your offending was mid-range in relation to both charges. I agree with the Crown’s position in relation to the six matters above. Insofar as your counsel’s submissions sought to shift some of the blame for the collision to Mr Wyatt, I reject them. It was the dangerousness of your driving that caused the collision, and which caused the injuries to Mr Wyatt. Nevertheless, I accept the submission of the parties that your offending was in the middle range of seriousness for both offences.
Personal Circumstances
In addition to an outline of submissions, your counsel called evidence from your older half-sister, Tamara McDonald, tendered two character references (Exhibit D3), and referred me to two reports by the Department of Justice and Community Safety:
a.Youth Justice Bail Service Report (dated 13 September 2022, Exhibit D1); and
b.Supervised Bail Progress Report (dated 27 February 2023, Exhibit D2).
You are 21 years of age. Your parents were together for 18 years, separating 6 years ago. You are one of three children of your parents, and one of seven of your mother’s (your four half-siblings are all older than you).
Your childhood was marked by constantly moving house, periods of homelessness, parental substance abuse (alcohol and methylamphetamine), family violence and a lengthy history with Child Protection.
According to your sister, you never had a male figure to guide you. Two of your older half-brothers have extensive criminal histories and have been subject to periods of incarceration.
You are now the father of two young children with Ms Pace-Bordman, with whom you maintain involvement.
In December 2019 you were found guilty in the Dandenong Children’s Court of armed robbery, theft and unlawful assault (without conviction), and placed on probation for approximately six months.
You have completed nearly half of an apprenticeship as a roofing installer, and hope to complete that qualification. You have worked since being released on bail, including at Limestone Australia. Your counsel tendered a reference from the manager of Limestone Australia, David Durack, who speaks highly of you.
You have a long history of illegal drug use, including methamphetamine. Your counsel tendered a reference from your sister Jasmine Boulter. Both Tamara and Jasmine report that more recently you have been relatively clean, and Tamara testified that this was motivated by your desire to work and to have access to your children.
Subsequent to the incident you were charged with the breach of an intervention order as a result of being at Ms Pace-Bordman’s home, and with the possession of methamphetamine. You were fined in the Magistrates’ Court for both of these offences.
While on bail for these offences you attended 17 out of 19 of your scheduled Youth Justice supervision appointments, being excused on one of the occasions of non-attendance in order to appear in Family Court proceedings.
Sentencing Submissions
Your counsel accepted that your offending warranted imprisonment, but submitted that given your age, plea of guilty and prospects of rehabilitation, a sentence of imprisonment combined with a multi-year CCO was also within range. In support of this primary submission, your counsel submitted that:
a.For the reasons I have already discussed, your offending was at the mid-range of seriousness.
b.Your offending was the result of an over-reaction to an argument with Ms Pace-Bordman, with whom you had a tempestuous relationship, such that you were seeking to get away from her.
c.You are a young offender, such that rehabilitation would usually be a more important sentencing consideration than general deterrence: R v Mills (1998) 4 VR 235.
d.You were raised in an environment which was characterised by lawless behaviour, which reduced your capacity to understand that lawless behaviour was wrong, thereby reducing your moral culpability: Bugmy v The Queen (2013) 249 CLR 571 at [44].
e.You have good prospects of rehabilitation, based on your employment history, compliance with your bail conditions and family support.
f.For reasons raised during the hearing, the burden of imprisonment may fall more heavily on you.
The prosecutor submitted that a combination sentence was out of range, and that I should impose a custodial sentence with a minimum non-parole period. In support of these submissions, the prosecutor submitted that:
a.A non-custodial sentence is only appropriate when both the moral culpability and gravity of the offending are low, and that this is not the case here.
b.Although you are a young offender, offences of this kind are frequently committed by young offenders of otherwise good character and with good prospects for rehabilitation. The tendency of young drivers to drive dangerously means that general deterrence remains of great importance and youth must be given relatively less weight in the sentencing process: Lennon v The Queen [2017] VSCA 85.
c.You endured a difficult childhood, and this must be given weight in the sentencing process. However, the material before the court is not sufficient to enliven Bugmy so as to reduce your moral culpability for your offending, and there is no evidence that you had a diminished capacity to understand the wrongfulness of your conduct.
Sentencing factors
Youth and prospects for rehabilitation
I take into account your youthfulness and good prospects for rehabilitation. This means, among other things, that there is no strong need for specific deterrence in this case. However, I note that in offending of this type, these factors do not necessarily diminish the importance of general deterrence.
Difficult upbringing
I give weight to your difficult upbringing, including on the basis that your moral culpability is somewhat reduced by your exposure to lawless behaviour and poor role models, which may have diminished your capacity to apprehend the wrongfulness of your conduct. However, it is has not been suggested to me – and I do not find – that your upbringing specifically contributed to or explains your offending.
Plea of guilty and remorse
The prosecution accepts that you pleaded guilty at an early stage. A plea of guilty is of utilitarian value in that it avoids the need for a trial, and it attracts a sentencing discount accordingly. It was also submitted, and I accept, that the plea, being entered at a time when the courts were still labouring under the backlog created by Covid-19, should bring a greater amelioration of sentence than otherwise.
Orders
I have formed the view that the sentencing purposes of general deterrence, just punishment and denunciation require that I impose a term of imprisonment of significantly more than 12 months. This means that it is not open to me to impose a term of imprisonment in combination with a community correction order.
I make the following orders:
a.On charge two, you are convicted and sentenced to two years and six months’ imprisonment.
b.On charge one, you are convicted and sentenced to one year’s imprisonment.
c.I order that six months of the sentence on charge one be served cumulatively with the sentence on charge two, making a total effective sentence of three years’ imprisonment.
d.I fix a period of two years’ imprisonment before you are eligible for parole.
e.I declare 43 days’ pre-sentence detention to be reckoned as time-served.
f.On charge 2, I order that any Victorian driver’s licences held by you be cancelled and that you be disqualified from obtaining one for a period of four years.
g.On charge 1, I order that your licences be cancelled and that you be disqualified from obtaining one for 18 months, to run concurrently with the disqualification imposed in relation to charge 2.
But for your plea of guilty, I would have:
a.Imposed a sentence of four years’ imprisonment on charge two;
b.Imposed a sentence of two years’ imprisonment on charge one;
c.Ordered that one year of the sentence on charge one be served cumulatively with the sentence on charge two, making a total effective sentence of five years; and
d.Fixed a non-parole period of three and a half years.
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