Director of Public Prosecutions v Hughes

[2020] VCC 122

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01372

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES HUGHES

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	6 December 2019, 14 December 2020
DATE OF SENTENCE:	21 February 2020
CASE MAY BE CITED AS:	DPP v Hughes
MEDIUM NEUTRAL CITATION:	[2020] VCC 122

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Ms M. Casey	Condello Lawyers

HIS HONOUR: 

1James Raymond Hughes, you have pleaded guilty to one charge of negligently causing serious injury by the driving of a motor car.  That crime carries a maximum penalty of ten years' imprisonment.  You have pleaded guilty to a settled indictment and I take that into account.  You clearly must get the utilitarian benefit of that plea of guilty.

2Insofar as remorse is concerned, I will give you the benefit of the doubt, but I will be having a little bit more to say about that in a moment.  The way the matter has been conducted is hardly conducive to the view that there is genuine remorse, but again, I will deal with that in a moment. 

3You do have prior driving infringement notices and I take little regard to those.  They appear to be nothing out of the ordinary.  As I understand it, you have no matters pending and you have no criminal history as such. 

4For a number of reasons there has now been a delay of some three years since the incident occurred, and again, I will take that into account.

5The circumstances are that I was effectively invited by defence counsel to read the depositions in terms of the original Crown opening and I have done that now on a number of occasions. 

6On the first day of the hearing of the matter, the Crown opening was read in and it was subsequently on the second day of the hearing, amended to a degree and for those reasons, I think it is important that I read in the portions of the evidence from the depositions that I have taken into account in coming to my conclusions.

7You, Mr Hughes, were 27 years of age at the time and the victim was a Mr Lancaster, who was 51 years of age at the time.  You were unknown to each other. 

8At approximately 3 pm on 4 April of 2017, you were driving your Hilux four wheel drive, as I understand it, motor vehicle in a south-easterly direction on the Kangaroo Ground Wattle Glen Road, Kangaroo Ground. 

9Travelling behind you in the same direction was Mr Lancaster who was riding a motorcycle.  Behind him was his friend, Mr Griffiths, who was riding a motorcycle.  Behind Mr Griffiths, in the same direction, was another motorcycle rider who was not known to the first two, a Mr Gioffre.  The road is a standard road.  Each lane is approximately three and a half metres wide and the two lanes were separated by a broken white line and the maximum speed was 80 kilometres an hour.  There is no suggestion here that that speed limit had been breached in any way.  The weather was fine, road dry, and the visibility was good.

10You were observed to apply the brakes of the Hilux with Mr Lancaster one or two car lengths behind you.  He was able to stop in time to avoid a collision but came within a couple of metres and I will be having more to say about that in a moment. 

11There were no vehicles ahead of you.  You then continued around a right-hand bend and approached the intersection of the Kangaroo Ground Wattle Glen Road and Hillview Court.  After going round that bend, Mr Lancaster indicated to the right and started to move towards the right-hand lane in order to overtake you. 

12As he did this, you swerved to the right-hand side but within the extents of the lane, before correcting back to the middle of the lane.  Mr Lancaster then moved further towards the right side of the right-hand lane and increased his speed in an attempt to overtake you. 

13At that time, the original Crown opening said that you sped up, matching the speed of the Suzuki - that was deleted from the Crown opening on the second occasion; as I say I will be reading in all the evidence in relation to it as I understand it - before swerving across the centre line.  It is unknown exactly how far into the right-hand lane you went, but you clearly did.  You collided with Mr Lancaster's bike.  Your front right-hand driver side struck the left-hand side of his bike, jamming his left leg between the vehicle and the motorcycle.  That is the charge.

14As a result of the collision, he lost his balance, falling from the vehicle and onto the road.  The motorcycle continued approximately 100 metres up the road and another vehicle coming the other way had to take evasive action to avoid hitting the motorcycle. 

15You then pulled your vehicle over to the left-hand side of the road and got out of it and went over and spoke to the motorcyclist, saying that it was effectively his fault, and again, I will be dealing with that in a moment.  000 were called, and police attended. Mr Lancaster suffered significant injuries. 

16On the Crown opening, he suffered a spinal bone fracture to the L2 and L3 vertebrae, finger fractures of the left hand, soft tissue injuries to the leg including a sprain to the right ankle, sprain of the band connecting the pelvis to the left outer knee with tissue water accumulation, bruising to the left knee, abrasions on the left shin, temporarily impaired nerve functioning including central cord syndrome with temporary loss of motion and sensation to the limbs and shoulder pain. 

17He also had complication of deep vein thrombosis below the right knee.  As a result of these injuries, he was immobile, as in a boot for four weeks, and required specialist assessments.  I will be reading from his Victim Impact Statement as to the extent of the injuries that he suffered, and they are serious indeed.

18When you were interviewed by police, you effectively denied that you had crossed over the centre line into the oncoming lane, said that you did not recall swerving, but if you did it would not have been intentional, and that you observed a motorcycle behind you, anticipated the motorcycle was going to overtake you, immediately following which, you observed the motorcycle next to the car and there was a collision.  That ties in somewhat with what Mr Lancaster had to say about it.

19The Victim Impact Statement, in short compass, describes what has happened to Mr Lancaster since.  He clearly, and I sentence quite obviously on the basis that you did not intend to actually hit him. He obviously believes that you did, but I make that very clear that is not the basis you are to be sentenced on. 

20He did say how the drawn-out saga of the trial ingrained further the extra trauma which he felt.  He spent seven months in rehabilitation and road-trauma counselling, and had difficulty accepting why; the way this whole process came about. 

21He said:

'My injuries as a result of the offender's actions are as follows:  Partial supra-spinatus tear, left shoulder; transverse spinal fractures, L2/L3; left hip ITB pain related to subluxation; left knee ACL laxity and ongoing pain; right ankle ligament damage and pain, distal phalanx fractures, left digits 3 and 4 along with skin abrasions through the length of the left leg and arm. 

'After working very hard while in Brunswick Private Hospital for 35 days, and post-discharge on thrice weekly regime at the 'The same hospital for the next five months, I managed to return to work. 

However, the left shoulder finally gave-way and I had reconstructive surgery in September of 2018 to reattach the left supra-spinatus and again go through a further nine months of painful and frustrating rehabilitation' - and ongoing as at the time of the Victim Impact Statement - 'in order to return to his employment which is as a brickmaker.'

22He said:

'I do experience lower back pain from time to time and the cold weather is not kind to my once good knee.'

23He suffered significantly on a financial basis because of it as well.  They are the consequences of your actions to that man. 

24Insofar as remorse is concerned, and I will give you the benefit of the doubt, at the scene you were seen to be aggressive and appeared to be blaming the victim.  In your record of interview you denied effectively responsibility for it and said you did not cross the centre line. 

25You then made a payment to the insurance company of the victim, together with a letter that denied liability and that is put to me as evidence of remorse.  I am somewhat doubtful but again, I am not in a position to really dispute that. 

26What is of significance though is that after that payment had been made, a committal was then conducted where clearly it was not to resolve issues.  It was to endeavour, as I read the way the victim and the witnesses were cross-examined, to effectively say some way or other, it was the victim's fault. 

27For example, he was cross-examined about his criminal history, which I found, in these circumstances, somewhat astonishing. 

28That is hardly consistent with remorse and at that point in time, an offer of careless driving was made which the Crown obviously and rightly refused. 

29Then ultimately you did plead guilty to a settled indictment and I have already been through that.  It has become clear from a number of the matters I point out in the factual situation where I have taken that view.  

30The people who were there, the friend, Mr Griffiths, said that he was riding his bike and said:

'I looked up and nearly Gary because the Hilux slammed his brakes on.  Gary nearly ran up the back of the Hilux, then Gary went to overtake the Hilux.  When the Hilux and Gary were side-by-side, I watched the Hilux swerve into the opposite lane and hit Gary on his bike.  I watched the front right tyre of the Hilux hit Gary's front left side of the bike.  The Hilux then corrected itself back into the left lane heading south-east on Kangaroo Ground Wattle Glen Road. 

I watched Gary fight the out-of-control-bike then flew off the bike and took a lot of tumbles before stopping in the middle of the west-bound lane.  The Hilux pulled over to the left-hand side of the road, and the driver' - which is clearly you - 'got out of the Hilux and starting yelling at Gary while he was lying on the road.'

31He said that you said:

'He said to Gary, "What the fuck were you doing?"'

32At that point in time, I think another witness had formed or had the fear that in fact, Mr Lancaster was dead.

33Mr Gioffre who was unconnected to the other bikes, but was riding one himself said:

'As I was coming up to a right-hand bend, I observed a grey Hilux slamming on the brakes when there was nothing in front of him.  This caught my eye and I was thinking, "What the hell is this guy thinking?"  I thought it was completely unsafe.  I think he did this to either force the motorcycle to crash into the back of him or he was just brake-testing, trying to aggravate the motorcyclist behind him.

'I was coming towards the intersection of Kangaroo Ground Wattle Glen Road and Hillview Court, where there's a right bend.  In front of me were the two vehicles however I had a clear view of the entire road ahead.

'As I was halfway through the bend, I observed the Hilux again on the brakes when there was nothing in front of him.  At this stage I saw the Suzuki motorcycle indicate to overtake before he moved to the wrong side of the road.

'As he came to the rear right side wheel of the Hilux, I saw the Hilux swerve within the extent of his lane towards the right, which looked like he was trying to intimidate the rider.  At this point in time, I observed the rider move further to the right-hand side of the wrong lane, where he sped up in an attempt to overtake.'

34This witness, the independent witness, then said:

'I observed the Hilux also accelerate to keep up with the motorcycle.  I then saw the Hilux intentionally swing towards the motorcycle crossing over the centre line.' 

35He then gives a distance, which I am not going to operate on, and he said that clearly the swinging across, in his view, was deliberate.  He said afterwards that:

'The driver of the Hilux pulled over to the left hand side of the road where he got out of his car and was aggressive and trying to intimidate people.  I then went to the driver's side of the Hilux and said, "Are you fucking crazy?  What's your problem?"  He said your response was, "You bike riders are always at fault, always making trouble."'

36Someone intervened at that point in time, and the confrontation concluded. 

37Mr Lancaster himself said that after being behind your vehicle,

'At time, for no apparent reason, the Hilux braked suddenly and I too, braked and spoke through my headset.' 

38He spoke to his friend and then he said,

'The driver of the Hilux braked very hard again.'

39So sudden was this braking, I was forced to the white line in order to avoid a rear-on, but he said that he had seen you staring at him through the rear-vision mirror.

'As I moved to go past him, he looked at me, making direct eye contact through his mirror and swerved to cut my overtaking path off.  I went even further into the other lane thinking I was far enough away that I'd be safe.  It was only Mark yelling into his headset' - that being his friend - 'that saved my life as the front right tyre of the ute came in contact with me and my bike and I managed a little bit of sealed road surface left to use to lean far enough to brake contact with the tyre.' 

40He then goes on to describe his injuries, and I do not think I need to go into that.  The Crown made certain amendments at the committal and because of that I have again gone through the evidence that was given at the committal. 

41The braking-heavily aspect was withdrawn from the Crown opening, but it is my view that whether it be described as heavily or whatever, it was clearly sudden. 

42At the committal when being cross-examined, Mr Lancaster, it was put to him, 'And he braked?  How close did your motorcycle get to his car, the rear of his car?'  Answer:  'Oh, first time, probably within probably a car length, then I dropped back and measured myself to be as close as I could to the white line, and then he braked again.'  'And again, you don't know the reason why?'  And he said, 'No, I don't.' 

43It was then put to  him that it might have been because of the corner.  He said that was possible, but he went on further to say that it had happened twice for no apparent reason and he said, 'I felt unsafe, not frustrated.  When a big - when a Hilux brakes in front of you for no apparent reason twice, and you're on a motorcycle, you don't leave yourself in that position.  You try and take yourself out of it.'

44He also, in cross-examination at the committal, said that:

'As I moved to go past him, he looked at me, making direct contact through his mirror, swerving to cut my over-taking path off.' 

45It was put to him, 'Do you agree there was no mention of you smiling in that?' and it was put to him that his evidence that you were smiling at you looked at him, was something that he had just made up on the spot.

46In short compass, that is realistically the evidence that was here.  There is nothing in the cross-examination that causes me to have any real concerns about the evidence that was given. 

47Obviously the opinions of the various witnesses are not of great significance.  It is the overall factual description they give and what inferences can be drawn from it.  I make it again, very clear, I cannot and do not sentence you for deliberately hitting the motorcycle of Mr Lancaster. 

48It is my view that it is totally beyond dispute that the swerve that you engaged in which gave rise to the collision, was a deliberate and conscious act.  Each of the bits and pieces surrounding that, the staring, the braking, the keeping pace, none of those matters need to be proved beyond reasonable doubt.  They just simply give an indication of the circumstances on which, I am perfectly satisfied, that you swerved deliberately. 

49I think the motivation was probably frustration.  It might have been a personal road-rage or anything; I do not know, but the fact of the matter is that you did, with awful consequences for this man. 

50It was put during the course of the plea that it was some sort of inadvertence.  As I indicated clearly during the plea and I indicated that I had read the depositions and would read them again.  I reject that submission.  There is no inadvertence about this at all.

51You were clearly aware of his presence and then within seconds, your vehicle goes straight across and strikes him. 

52It is, in my view, a very serious example of negligence.  Of course the application of general and specific deterrence is probably less important in your situation.  I doubt that this will happen again.  Obviously there must be an element of denunciation and appropriate punishment.

53The Crown, in the course of the second day of the hearing, made the concession that a combination sentence would be within range.  By that, I take it they mean it would not be an appellable error. 

54I have, having gone through it all again, taken the view that is a very generous concession indeed.  I, of course, am not bound by such a concession, but I do feel to an extent, constrained by it and the sentence I impose will be less than it would otherwise have been because of that concession, particularly in regard to the length of the minimum term which I set.  

55The matter had been adjourned for you to be assessed for a community corrections order while I considered the sentencing options that were available, and I was informed, as I understand the Crown were informed as well, by your representatives, that that assessment need not take place.  I had already indicated that it was either that or a head sentence with a minimum term and accordingly, I will not take that any further.

56It then becomes a question of how long that sentence should be and what the minimum term should be.  A number of matters were put on your behalf and it is an unfortunate set of circumstances indeed. 

57It is put that after the incident, you were concerned about the wellbeing of the victim and made numerous inquiries about his welfare.  Whether that be because of remorse, a sense of guilt, or just a concern for your own position, I do not know.  The fact of the matter is I could not make an adverse finding against you in respect of that, and I simply take it into account in the overall aspects of it. 

58I have before me, a report from Mr Cidoni, the forensic psychiatrist, I have your medical records, I have a number of references.  I do not need to go through each of those in detail.

59The references say that you are a good worker, that you have done your best to be a good parent, you have a step-son and you have a son of your own.  I accept all those matters.  I accept also that you have had grave difficulties since all this occurred with mental health issues, and that you have been doing your best to try and deal with that.  I accept on the basis of all the material that you will have a harder time in gaol than somebody who did not have those problems. 

60Again, the references all speak highly of you, and say that this sort of conduct is out-of-character.  I am not suggesting that this is the sort of, and no-one has, conduct that you regularly engage in, in any way, shape or form.  I am prepared to sentence on the basis this was an, effectively, one-off; a minute or so of madness, but the consequences were grave indeed.

61I accept, as I have indicated I think already, that you have suffered significantly from anxiety and stress since.  I have read each and every one of those references from relatives and from people at work and I take them into account.

62I take into account the medical records which confirm the mental health issues and ongoing difficulties that you have had since it occurred.  I also take into account the report of Dr Cidoni. 

63There are matters in there which I think are of significance, and I do not think I need to go into those in open court.  The circumstances are that I direct that that report remain on the court file. 

64Clearly the contents of it are known to myself, they are known to your representatives and they are known to the Crown.  You clearly, as a child were abused, and I will simply leave it at that. 

65Mr Cidoni has the view, which I accept, that going through your childhood history, that you have symptoms of, if not the actual circumstance of post-traumatic stress disorder. 

66Your conduct on this day consisted, as I understand that, with the - it can be impulsive actions.

67You, as he pointed out, at the time of the report, are 30, with a five year old son and a 13 year old step-son.  You have an older sister with a history of depression.  Your father left the family home at an early age and at one stage indeed, you suffered a fractured jaw form a confrontation with him.  You had difficulties at school and behavioural difficulties resulted in you being suspended several times for smoking and talking back at teachers. 

68You left your original school in Year 7 and left secondary school half-way through Year 8.  You were a cabinetmaker, completed a roof-tiling apprenticeship, and from the age of 19, have worked in concreting and had qualifications that have been recognised as Certificate III level.  You have worked as a leading hand for a commercial concreting company and a year prior to the offending, you were working very long hours. 

69I have seen that in some of the reports and they were very long hours indeed, and may well have contributed to your mental state on this particular day, which was perhaps exemplified by the comments you made at the scene. 

70After the offending, he points out that you have had time off work because of stress.  There was a marital separation of some months and difficulties have arisen there.  Obviously there were other difficulties involved in the marriage, which again, do not need to be gone through in open court. 

71I can sentence you on the basis there is no ongoing real difficulty with alcohol, whilst there may have been dabbling in the past there is also no difficulties with substance-abuse. 

72You made it clear to him that you have had low-mood after particularly leaving the family home, erratic sleep with days without sleep, reduction in appetite, indeed have lost something in the order of 18 kilograms since the offending occurred.  He describes the high anxiety and what are verging on, but are not, panic attacks. 

73In terms of your various conditions, he says, 'I do not believe that they caused or contributed to the offending behaviour.  In my opinion, Mr Hughes's conditions will undoubtedly make imprisonment more arduous for him than a person who does not have these conditions. 

74‘In my opinion this will adversely affect his mental health with a significant increase in his anxiety and deterioration in his depression and in my opinion, a significant risk of self-harm and suicide.’  I take that into account, not in terms of moral culpability, but certainly the later elements of Verdins. 

75He goes on to say at the end:

'In my opinion, there are positive prospects for rehabilitation and a reduced risk of reoffending.'

76Accordingly, in those circumstances I accept Mr Cidoni's expert opinion that there are good prospects for your rehabilitation.  You still have strong family support.  You have a family to go to.  Ultimately you will have an occupation to pursue and you have children to look after.  All those factors are positive in your ongoing rehabilitation. 

77The risk of you reoffending, I would hope, would be very low, certainly in this sort of way. 

78That is really a matter for you and I think what this comes down to is denunciation of what occurred, of a very serious, in my view, example of negligently cause serious injury and the general deterrence, what you did in deliberately driving at or in the direction of a motorcycle in a vehicle of that size was clearly and obviously very dangerous. 

79The motorcyclist, as pointed out during the committal, is very vulnerable and unfortunately for all concerned that was the consequence of it; again serious injury and ongoing difficulties for that man. 

80I have no choice but to cancel your licence.  I will do that for the minimum period.  Ultimately upon your release obviously you are going to wish to seek employment and to do it for any less than the minimum term of cancellation, in my view, would be not in your interests or in the interests of the community.

81However, taking all those matters into account, I have taken the view that an appropriate sentence must be passed as a head sentence. 

82Because of the concession of the Crown, because of your ultimate plea of guilty and because of the report of Dr Cidoni and the references in particular, I have taken the view that an unusual gap between the minimum term and the head sentence is appropriate. 

83It is a gap which I would not normally impose, but I think that it is a situation where the overall circumstances of the matter, justify doing it, but the head sentence must, of itself, reflect the seriousness of what occurred.  

84Accordingly, any licence to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for a period of two years, and I think that has got to start from today, doesn't it?  I cannot do anything about that.  Yes, so that will start from today and it is as short as I can make it. 

85Insofar as the actual charge itself is concerned, you are sentenced to be imprisoned for a period of two and a half years. 

86Because of the circumstances I have outlined, I direct that you serve the minimum term of one year before becoming eligible for parole.  I direct that seven days be reckoned as having been served under this sentence.

87Just so you understand the ultimate benefit that was received by yourself by pleading guilty in this matter, I say that but for your plea of guilty, had you conducted a trial and lost it and been convicted of this charge, as I have indicated during the plea, you may have been convicted of something even more serious, I would have sentenced you to be imprisoned for a period of four years with a minimum term of three.  There are no other orders I have to make?

88MS CUSTOVIC:  No, Your Honour.

89HIS HONOUR:  I will leave the Bench. 

‑ ‑ ‑