Director of Public Prosecutions v Jason Coomber
[2015] VCC 182
•26 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00324
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jason COOMBER |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2014, 13 February 2015 | |
DATE OF SENTENCE: | 26 February 2015 | |
CASE MAY BE CITED AS: | DPP v Jason COOMBER | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 182 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death – Possess registered firearm whilst prohibited – Relevance of diagnosis of narcolepsy – Under influence of methylamphetamine, amphetamine and gamma hydroxybutyrate (GHB) – Lack of speed and alcohol
Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; R v Whyte [2002] NSWCCA 343; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
Sentence: Total Effective Sentence of 2 years and 6 months years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | David Barrese & Associates |
HIS HONOUR:
1 Jason COOMBER, you have pleaded guilty to one charge of dangerous driving causing death and one charge of possessing a registered firearm whilst being a prohibited person. You have admitted a prior criminal history which includes appearances for driving offences.
2 The facts in this case were opened by Mr Fisher, who appeared to prosecute, and are contained in the Summary of Prosecution Opening, Exhibit A.
3 In these sentencing remarks I propose to refer to the passenger of your vehicle as the victim. I do so, not out of any disrespect to the victim, but to preserve her anonymity as these reasons are likely to be publicly available.
4 In brief summary, in the early hours of 15 April 2012, you were driving in an easterly direction along Arthurs Creek Road in Arthurs Creek when you lost control of your car and slammed head on into a tree in scrub on the opposite side of the road. The victim was your sole passenger, and was sitting in the front passenger seat. Both you and the victim were wearing seatbelts. At the point of impact, Arthurs Creek Road was a two-way bitumen carriageway with a single lane in each direction separated by a broken white painted line running down its centre. The road ran generally east to west and was straight for a significant distance leading up to the location of the collision. The road was in good condition. The weather was clear and the road surface was dry at the time.
5 Officers from the Major Collision Investigation Unit attended the scene and, upon examination of the surrounds, revealed no evidence of braking prior to the collision, and nothing to explain why your vehicle had crossed onto the wrong side of the road, departed the roadway, and crashed into the tree. Rolling tyre marks were observed on the grass verge leading up to where your vehicle had impacted with the tree. Subsequent reconstruction of the collision placed your speed in the range of between 62 and 82 kph. As a result of the collision, serious injury was sustained by your passenger, who died at the scene of the accident despite efforts made by several witnesses and advanced emergency services to revive her.
6 You were met at the scene of the accident by uniformed police who attended at about 4:30am. You admitted to being the driver of the vehicle and claimed not to know the name of the passenger. A preliminary breath test was conducted which gave a negative result. A search of the vehicle located a glass crack pipe in the handbag of the victim in the passenger foot well, and a second glass crack pipe in the lower glove box.
7 You were transported by air ambulance to the Alfred Hospital where you received treatment for your injuries. An analysis of a pathology sample provided by you on 15 April 2012 at 6:51am was found to contain, amongst other things, methamphetamine, amphetamine and gamma hydroxybutyrate (GHB).
8 Analysis of the mobile telephone of the victim revealed there were numerous text messages between her and others in the early hours of 15 April 2012, indicating she was attempting to purchase drugs including GHB prior to the collision. The last text message sent from the victim’s phone was at 1:24am. The last message received on the telephone was at 3:33am.
9 Four Victim Impact Statements, Exhibits D through to G, were tendered on behalf of the victim’s mother, father and her cousins. It is clear that they have suffered greatly and continue to do so. The loss of their daughter and cousin, herself a mother to a young child, has impacted on virtually all aspects of their lives. The depth of their grief is easily understood and it can only be hoped that the passage of time will assist to make what has occurred somehow more bearable. The suffering of the deceased's extended family is easily accepted and understood even in the absence of further statements. You will live the rest of your life with the knowledge that your conduct has cost a life. The burden will be a heavy one and it should be so.
10 By way of background, you are now aged 33, having been born on 21 March 1981. Your parents divorced when you were approximately seven years of age, around the same time your brother died in a boating accident. You were present at the accident that caused the death of your brother and report feelings of guilt that you could not save him. Your mother re-partnered and has two children. You lived for a while in Queensland with her before moving six months later to live with your father. You attended school to Year 9 and then commenced a chef’s apprenticeship. After two years of working for a restaurant, the business was sold and you commenced work as a labourer. You ultimately qualified as a carpenter, and established your own business as a sole trader in that capacity for a period of roughly 12 years. At age 20 you and your then-girlfriend were living with her mother. You had been in a four-year relationship when she was diagnosed as bipolar, and, despite psychiatric treatment, she committed suicide at the age of 21. You subsequently became involved in another relationship, from which you have a daughter. That relationship broke down after six years but I am told you and the mother of your daughter are amicable, sharing parenting duties.
11 On your behalf your counsel, Mr Desmond, submitted that I take the following into account by way of mitigation:
(a) that whilst you only pleaded guilty on the first day of the trial, the offer to plead to the current charge was made at the committal hearing and only finally accepted by the prosecution at the trial. Mr Desmond said the early plea offer demonstrates an acceptance of responsibility and a degree of remorse for your action;
(b) that you were not driving with alcohol in your system, or at speed;
(c) that the levels of methamphetamine, amphetamine and GHB in your system were low;
(d) that you are still a relatively young man;
(e) that you have the support of a long-term partner, your parents and your daughter; and
(f) that your prospects of rehabilitation are good, having regard to your engagement with ongoing counselling.
12 Exhibit 7 was two character references from your aunt and family friend. Your aunt described you as hard working, generous and kind, and recounted your early life as being marked with tragedy. She indicated that on numerous occasions you have expressed to her a wish that it was you, and not the victim, who had died in the collision. Your family friend indicated that, in his opinion, the offences for which you are charged are not demonstrative of your character.
13 A mental health social worker, Ms Donna Zander, gave evidence of her involvement with you. I must say that I found that she was somewhat partisan and less than objective at times. She referred to your long history of family trauma, spoke about your history of sleep issues and said that you reported only using alcohol and ice once per month, and then only if it was given to you by friends. She said that you prided yourself over never having to purchase it. Her report was Exhibit 5. Mr Desmond said that no Verdins[1] issues arose for consideration in your case.
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
14 Your girlfriend gave evidence that you were ‘self-medicating’ with ice and ADHD tablets. She said that since the accident you had become withdrawn and did not eat properly, and did not leave the house much. She said you didn’t talk about the accident but that you did express remorse and regret.
15 There was a considerable amount of time taken up during the plea in an effort to establish that you had been and were at the time susceptible to narcolepsy and were in fact an undiagnosed narcoleptic. To this end, expert evidence was adduced from Professor Matthew Norton, of the Alfred Hospital, who said that he specialised in sleep and respiratory disorders over some 20 years and Associate Professor Darren Mansfield who had some 12 to 15 years’ experience in sleep disorder and respiratory conditions.
16 There was also evidence from your father, your girlfriend and your aunt, to the effect that you used to doze off at dinner, take regular naps during the day, fall asleep watching television, and used to sleep walk when you were a child. Ms Zander said that you reported a history of narcolepsy type symptoms and there was evidence that you had been referred for sleep disorders but no formal diagnosis of narcolepsy had ever been made. Whilst it was asserted that you sometimes fell asleep ‘at the drop of a hat’ and had fallen asleep at the wheel whilst waiting for the traffic lights to change, there was no report that you had ever had an accident whilst falling asleep at the wheel and none of the witnesses expressed any concern about driving with you. In fact your girlfriend said that she often travelled with you in the car and that she always felt safe and that you never said you were concerned about driving and the risk of falling asleep. During the course of the plea, which extended over two days, I noticed that you appeared, on occasions to be asleep, or at least not concentrating.
17 Mr Desmond conceded that you were not suffering from a narcoleptic episode at the time of the accident. In other words, that your condition was not causally connected to the accident. I asked your counsel on a number of occasions to clarify the use to which a finding of narcolepsy might be put to by me if, as was conceded, it was not being suggested that narcolepsy was an operating causal reason for the accident. I was referred to a decision of the full bench of the NSW Court of Appeal in R v Whyte.[2] This was a Crown appeal against a sentence of two years and three months with a non-parole period of 12 months imposed on a charge of aggravated dangerous driving occasioning grievous bodily harm (not death). The Court gave a guideline judgement in these terms: ‘A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.’ The Chief Justice commented that ‘a long period of binge drinking and significant sleep deprivation was not, as the trial judge found, mitigated by susceptibility to narcolepsy’. The Court identified ‘Degree of sleep deprivation’ as an aggravating factor. The Court found that the particular sentence was manifestly inadequate but in the exercise of discretion decided not to interfere with it.
[2] [2002] NSWCCA 343.
18 Of significance to your matter was the acceptance of the finding by the sentencing judge that the driving was not mitigated by a susceptibility to narcolepsy. This was the same view I proffered at the very beginning of the plea in mitigation. I still do not understand how any finding that you were prone to narcolepsy could mitigate you moral culpability for this accident consistent with your plea of guilty to the charge.
19 Having regard to this view, I do not propose to detail the medical evidence as I am satisfied that it is of little if any relevance to the sentencing exercise. If I was required to come to a view about your diagnosis, I would on the balance of probabilities come to the conclusion that you were at the time suffering from atypical narcolepsy.
20 I am satisfied that the accident occurred in the early hours of the morning. Whether that was at 4.00am or some relatively short time before is of little consequence. I am reasonably satisfied that the accident occurred no earlier than 3.33am. That was the last ‘read’ of a message on the deceased’s mobile phone. It is highly unlikely that some person other than the deceased would have ‘read’ the message, or that the deceased was in a state where she might have done so a long time after the accident. You had not slept for at least two nights, and had, according to Ms Zander, used an unspecified quantity of ice the evening before. To use the words of Ms Zander you said you were using ice and drinking alcohol throughout the night. As for the Saturday night, you told her you had taken a ‘quick puff’ on the night of the accident. You failed to say anything to her about also taking GHB which was found in your blood and which Dr Odell said that, as it metabolizes rapidly, it is clear that it would have been taken in the hours preceding the accident. You also said nothing to her about drinking alcohol, whereas you did say to the first of the person arriving at the scene that you had had something to drink and that you should not have been driving. You also expressed some concern about the police arriving. Dr Odell said that each drug on its own would have rendered you incapable of proper control and that ‘it is inconceivable that [your] driving skills were not adversely affected … at the time of the collision’. Whilst not being an expert, Ms Zander also agreed that your drug taking would have impacted on your ability to drive a car.
21 The combination of drugs and sleep deprivation do not permit a finding that yours was a momentary lapse of attention such as to found a conclusion that your moral culpability was low. On the contrary, as you yourself acknowledged at the scene, you should not have been driving. I find you moral culpability to be high.
22 The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community, in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
23 The offence of dangerous driving causing death is a serious one carrying a maximum penalty of 10 years’ imprisonment. A sentence requiring immediate custody will usually be appropriate unless the offender has a low level of moral culpability. As I have said, yours is a case which does not fit into this category.
24 The combination of drugs and motorcars notoriously produce tragic consequences. Here a young woman has lost her life. No one is to blame but you. Despite extensive publicity, the message that drugs and/or alcohol do not mix well with cars, young people continue to dice with death. General deterrence remains the most significant sentencing message.
25 I wish to make clear to the victim's family before announcing sentence that the sentence does not, and could never, reflect the value her life. My task is to sentence a man, not value a life. I appreciate this is a cruel reality but it is what the law requires of me.
26 I take into account your plea of guilty. I accept that you are remorseful. It is a shame that your feeling of remorse did not extend to reaching out to the family of the victim. I understand that might have been difficult whilst the matter was unresolved. It was suggested this may have been as a result of legal advice. Compassion for the suffering of others in circumstances such as these is not automatically inconsistent with protecting legal rights. For the reasons I have already stated, the two maters ‘disputed’ on this plea are not of any relevance to the sentencing considerations and I do not take them into account. If you did know that you had a tendency to fall asleep at the wheel, a fact which has not been established to my satisfaction, then you should not have driven in the early hours of the morning after being sleep deprived and using narcotic substances. If anything, such conduct would have been an aggravating feature. Mr Desmond submitted that yours was an ‘undiagnosed’ condition. I take this to mean that there was no formal diagnosis, but I do not think it could have been suggested that you were not aware of the tendency. You suffered serious injury in the accident and by all accounts your life has been significantly impacted by this tragedy.
27 I have carefully considered the guideline judgement of the Court of Appeal in Boulton[3] and have come to the view that only a custodial sentence will properly meet the requirements of the present case. I do propose to impose a shorter than usual non-parole period to reflect your prospects of rehabilitation and that you have suffered physically and mentally as a result of your offending.
[3]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
28 Would you please stand, Mr Coomber.
29 You are convicted on both of the charges and sentenced as follows. On the charge of dangerous driving causing death to 2 years and 6 months’ imprisonment. On the charge of possessing a registered firearm whilst being a prohibited person to 1 month imprisonment. I make no order as to cumulation. The Total Effective Sentence is 2 years and 6 months years’ imprisonment.
30 I direct that you serve 15 months of that sentence before you become eligible for parole.
31 Under section 89 of the Sentencing Act1991 I am required to cancel your licence and disqualify you from obtaining one, and I propose to do so for a period of 3 years.
32 I make the disposal and firearm forfeiture orders in the terms of the drafts.
33 I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent. I am obliged to tell you though that notwithstanding that you have consented to the procedure, if you resist the taking of the sample, reasonable force may be used.
34 Section 6AAA Sentencing Act requires me to state the sentence, being the total effective sentence, and non-parole period that would have been imposed but for your plea of guilty. Had you pleaded not guilty and been convicted by a jury, I would have sentenced you to 3 years and 6 months’ imprisonment with a non-parole period of 2 years.
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