Director of Public Prosecutions v Jacobs

[2016] VCC 1731

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01618

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABBY RACHEL JACOBS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2016
CASE MAY BE CITED AS:	DPP v Jacobs
MEDIUM NEUTRAL CITATION:	[2016] VCC 1731

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 G.Hayward
For the Accused	Ms M. Walker

Pages 1 - 7

 

 

HIS HONOUR:

1Abbey Rachel Jacobs, you can stay seated for the time being.  You pleaded guilty to an indictment charging you with reckless conduct endangering persons, with causing serious injury negligently, another offence of reckless conduct endangering a person.  Those offences occurring on the 25th and
26 February, either side of midnight. 

2Also you had pleaded guilty to an offence of attempting to pervert the course of justice on 11 April 2016, and an offence of theft of two manila folders on the same date. 

3You have also pleaded guilty to three related summary offences.  An offence of exceeding the prescribed concentration of alcohol, that offence having occurred in connection with your driving, the subject of Charges 1, 2 and 3 on the indictment.  On 26 February 2015, the alcohol level to which you have admitted was 0.210 grams of alcohol per 100 mL of blood.  You have also pleaded guilty to harassing a witness in connection with Charge 4 on the indictment by threatening the witness not to speak to police, and also committing an indictable offence whilst on bail, namely the offence of theft.

4You have no prior convictions.  The prosecution tendered and read to the court a summary of prosecution opening, which is Exhibit A on the plea hearing.  I am not going to read that document again, but I incorporate it in its entirety in to these reasons for sentence.  It describes how, late on the evening of
25 February 2015, with Shane Garretty and Christine Whitmore in your motor vehicle, you drove along the Princes Freeway between Moe and Traralgon at a speed which reached 217 km/h. Later, after midnight, on
26 February 2015, you drove that same vehicle on the Princes Highway towards Moe at a speed which, shortly prior to the collision which caused the serious injury to Mr Garretty, reached speeds of 185 km/h, or perhaps more.

5The danger that you put Ms Whitmore and Mr Garretty in during those two episodes of driving was significant.  The offences are aggravated by the fact that you had drunk a considerable quantity of alcohol that night, and should not have been behind the wheel in any circumstances.

6The injury was a serious one, to Shane Garretty. He has lost his spleen, as well as suffering a fracture to one of the disks in his lower spine.  You yourself have suffered as a result of the driving on that night and the collision that occurred, and I will come to deal with that in more detail when I come to deal with the circumstances personal to you.

7So far as the attempt to pervert the course of justice is concerned, that is a very serious offence, it carries a maximum term of imprisonment of 25 years. It is an offence which is often difficult to detect, and it strikes at the heart of the criminal justice system.  It requires sentences which have capacity to deter others from committing offences of that kind.  Whilst there are many more serious examples of that offence, I do regard this still as a serious offence.

8No victim impact statements were provided, but given the effect the collision had on you, it may be supposed that the effects upon Mr Garretty and indeed upon Ms Whitmore, from their involvement in the collision, would have been significant.  You have suffered post-traumatic stress disorder since that collision, and a number of other serious psychological consequences.  Offending of that kind is bound to have a significant effect upon your victims.

9Turning to matters personal to you, your counsel provided me with a written outline of defence submissions, and a chronology.  There was a handwritten chronology, which was also useful in identifying the sequence of events that had occurred both before and after the events of the 25th and 26 February of last year.

10Your counsel also provided me with submissions in relation to the Verdins principles.  A confidential psychological assessment report dated 8 March 2016 provided by Julia Simmons, a psychologist, and a more up-to-date report from Gina Cidoni, psychologist, which deals with you current mental impairments, all of which seem to have arisen since the collision on 26 February of last year.

11Looking at your background history, it is apparent that you had a upbringing, and many opportunities in life, that you did well at school, that you have the capacity to engage in tertiary education, and indeed were engaged in tertiary education.  You also seem to have a good work ethic. And whilst difficulties have arisen, in particular since the events of the 25th and
26 February 2015, if you are able to deal with the psychological issues and the alcohol issues that have arisen following that serious accident, then I regard your prospects of rehabilitation as good.  But there remains a significant question mark over that assessment, given the extent of the psychological issues that have seem to have plagued you since 26 February of last year.

12You have the support of your parents, and your family.  That will stand you in good stead.  However, it seems to me that there is still a lot of work for you to do, and a lot of help that you will need, in order to recover from the effects of your own actions in the events of the 25th and 26 February last year.

13Ms Cidoni describes your mental health as "very reduced", where depression and anxiety has emerged.  The depression is severe, and you have suicidal thoughts, and you acted on these three times to the point at least when she wrote that report, with major depressive episode.  She says that anxiety is present with maladaptive coping and evidence of reduced psychological resources in the face of problems and stressors.  "Acute distress relating to her circumstances was evident.  She experiences post-traumatic stress disorder". 

14I think the offending in April of this year, involving the attempt to pervert the course of justice has to some extent be seen in the context of your psychological state during that period, which clearly was substantially reduced at that stage.  However, as I say, it is still to be regarded as a serious offence which requires the court to impose a sentence that has the capacity to deter others.

15It is very much to your credit that you have pleaded guilty at the first available opportunity.  You gain the utilitarian benefits of the plea of guilty, that is saving the court the time and the expense of a trial, and of course the witnesses the inconvenience and stress of having to come along and give evidence.  The pleas of guilty, I think, are to be regarded as evidence, or some evidence, of remorse, and I have no doubt that you are remorseful for your conduct, particularly that on the 25th and 26 February of last year.

16You do, and have, accepted responsibility for your offending behaviour, and I will give you a full measure of discount for your pleas of guilty. 

17You have no prior convictions.  The psychological assessments do require me, I think, to give effect to the Verdins principles, in particular principles 5 and 6, which are concerned with the difficulties your mental impairments will cause you in serving your sentence.  It will be harder for you to bear the burden of imprisonment than a person without those mental impairments.  And there does seem to be a significant risk that your mental health will deteriorate further during your period of incarceration.

18As I say, I think, although guarded, your prospects of rehabilitation are good, and that you have every prospect of putting this all behind you, and resuming a good work history.

19The plea on your behalf was concerned with persuading me that I could impose a sentence of imprisonment along with a community correction order, and that the length of the term of imprisonment would be such that that would be an available option to me.  The prosecution on the other hand has submitted that the seriousness of the offending conduct is such that that would be a sentencing error.  And that a sentence that would exceed two years, is required. 

20The prosecution, and indeed also your counsel, provided me with references to various authorities, and copies of the case of Harrison and Rigogiannis v The Queen [2015] VSCA 349, and today I was provided with a copy of DPP v Oksuz [2015] VSCA 316.  Those submissions and references to the cases were designed to assist me to identify current sentencing practice. Those submissions have been helpful. 

21I make it clear that I do not regard it as being available to me to impose the kind of combination sentence, that is, a combination between imprisonment and community correction order, that your counsel submitted was open to me.  It seems to me that the offences are too serious in nature to enable me to do that. 

22However, I certainly am required to, and will, reduce the sentence that I would otherwise impose by reason of your mental impairments, in accordance with Verdins principles 5 and 6, as I have already indicated.

23I am also required to have regard to the totality principle, and to ensure that there is a degree of concurrency as between the sentences that I impose, so as not to impose an unduly harsh sentence upon you.  I am required to impose no more as substantial a sentence than is required to meet the competing sentencing considerations.

24Those require me to give proper effect to the need to denounce conduct of this kind, to punish you adequately, to deter you from further offending, and in particular with offences of this kind, to deter others from engaging in conduct of the kinds that are reflected in the indictment and the related summary offences.  Doing the best I can to balance those requirements against the need to facilitate your rehabilitation,  I am ready to impose sentence upon you, would you please stand?

25Dealing first with the offences on the indictment.  In respect of each of those offences I convict you.  On Charge 1, I sentence you to imprisonment for a period of 15 months.  On Charge 2, I sentence you to imprisonment for a period of two years and six months.  On Charge 3, I sentence you to imprisonment for a period of 15 months.  On Charge 4, I sentence you to imprisonment for a period of 15 months.  On Charge 5, I sentence you to imprisonment for a period of one months.

26In respect of each of Charges 1, 2 and 3, I order that your licence to drive a motor vehicle be cancelled, and that you be disqualified from driving or holding a licence to drive a motor vehicle for a period of two years, and that will commence today.  

27In respect of the summary offences, Charge 9, that of exceeding the prescribed quantity of alcohol, I fine you the sum of $2,000 and disqualify you from driving or holding a driver's licence for a period of 21 months.  That too will commence today.

28On Charge 4, summary offence of harassing a witness, I convict you and sentence you to a period of two months. 

29On Charge 5, of committing an indictable offence whilst on bail, I convict you and discharge you. 

30The sentence of two years, six months on Charge 2 is the base sentence, and I order that three months of the sentence on Charge 1 and nine months of the sentence on Charge 4 on the indictment be served cumulatively upon one another, and upon the sentence of two years and six months that I have imposed on Charge 2.

31That makes a total effective sentence of three years and six months imprisonment, and I order that you serve a period of two years before you become eligible for parole.  I note that there is a relatively short non-parole period, and that is designed to reflect, along with what I regard as a lower sentence than I would otherwise have imposed, head sentence, is designed to reflect the mental impairments that have befallen you since the events, the subject of Charges 1, 2 and 3 on the indictment.

32I declare 174 presentence detention as time to be reckoned as served on the sentences that I have imposed, and deducted administratively from the time you will actually have to serve, and I order that that fact be noted in the records of the court.  I make the order for the provision of a forensic sample in accordance with the draft with which I have been provided, and that will involve you being approached by an authorised officer whilst you are serving your sentence to provide a scraping from the inside of your mouth.  If you provide that sample in that way, that is the end of the matter.  If however you fail or refuse to provide the sample in that way, then the officer will be authorised to take blood and may use reasonable force.  I am quite sure you will not put the officer to that trouble.

33But for your pleas of guilty, I would have sentenced you to imprisonment for a period of five years with a non-parole period of three years.

34Are there any other orders I need make?

35MR HAYWARD:  No Your Honour.

36HIS HONOUR:  Yes, all right, thank you.

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