Director of Public Prosecutions v Johnson

[2016] VCC 1351

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR-16-00668

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW JOHNSON

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Wangaratta
DATE OF HEARING:	8 September 2016
DATE OF SENTENCE:	12 September 2016
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1351

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:             Dangerous driving causing serious injury

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton & Clements & Fitzgerald v The Queen [2014] VSCA 342

Sentence:                  2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr J Lavery Mr G Clancy	Geoff Clancy

HIS HONOUR: 

1Andrew Johnson, you have pleaded guilty to one charge of dangerous driving causing serious injury.  This offence carries a maximum penalty of 5 years’ imprisonment.

2You are now aged 24, having been born on 13 May 1992.  At the time of the offending you were just four days short of your 23^rd birthday. 

3You have a criminal record about which I will go into more detail shortly. 

4The circumstances of your offending are as follows: 

5On Saturday 9 May 2015 you were driving your black Holden Commodore sedan along the Baddaginnie-Benalla Road, heading west towards Baddaginnie.  The car had automatic transmission and you had owned it for about two and a half years. 

6The Baddaginnie-Benalla Road is a straight, flat stretch of road where the speed limit is 100kph.  At the time the road was damp from a recent light rain but not such that water was pooling on the road. 

7You were driving at or around the speed limit of 100 kph. 

8Zachary Wignell and Jack Robinson were travelling in the opposite direction to you in Mr Robinson's red Holden Commodore station wagon which Mr Wignell was driving. 

9As your car approached Mr Robinson's car you accelerated and deliberately lost traction to the rear wheels of your vehicle.  Your car began to fishtail across the road, with the arcs of the fishtail becoming greater.  Your car began to cross the centre line of the road. 

10You then completely lost control of the car.  The rear of your car swung out across the centre of the road and into the path of Mr Robinson's car. 

11Mr Wignell slammed on the brakes and then partially released the pressure on the brakes to allow him to control Mr Robinson's car and keep it from skidding. 

12Mr Robinson's car, which had remained in the left hand lane, collided with your car.  The front of his car hit the right hand side of your car just behind the driver's seat.  The force of the impact caused extensive damage to both cars.

13Shortly before the collision a witness had heard a noise from the road which had made him look up.  The noise was a car revving or a change in engine noise.  The sound was higher in pitch than previously.  After the collision you said to this witness that … "it's my second car in two weeks".

14Mr Wignell was trapped in the wreckage of Mr Robinson's car.  His legs were pinned and emergency service workers took 40 minutes to cut him free.  He was taken then by ambulance to Wangaratta Hospital. 

15He suffered multiple fractures in both feet, both ankles and a toe.  He also suffered bruising and cuts to his face.  He continues to suffer significant pain and injury and it is likely that he will have permanently reduced function and ongoing problems with both ankles.  This will affect his mobility and activity with the need for further surgery in the future.  A further consequence has been his loss of employment and emotional reaction. 

16Mr Robinson was also taken to hospital but was discharged around 4 pm. that day.  He continues to suffer night terrors and driving anxiety, even as a passenger. 

17You attended the Benalla Police Station on 21 May 2015 and made various admissions, including that you had accelerated at the time and lost control of the car and were not being careful or responsible enough. 

18Investigators observed that your car was in third gear instead of ‘drive’ shortly after the collision. 

19Your car had been given a roadworthy certificate on 5 March 2015. 

20Dr Janelle Mehegan, a crash reconstruction expert, investigated the circumstances of the collision and formed the view that the only explanation for the car's behaviour was "excessive acceleration" by the driver. 

21This matter was listed for trial by jury to commence on 7 September this year, that is, last Wednesday.  On that day discussions were held and you indicated an intention to plead guilty.  You were arraigned the following day.  I accept that your plea of guilty involved a reasonable concession on your part and can be taken into account as responsible and having assisted the administration of justice.

22I now turn to your personal circumstances. 

23As I noted earlier, you are now aged 24, you were 22 at the time of offending and you do have a criminal record comprising one appearance in each of the Benalla and the Wangaratta Magistrates' Courts in 2011 at the age of 19. 

24Your first appearance was in April at Benalla where, for careless driving and improper use of a vehicle you received a $350 fine without conviction.  Some seven months later, you appeared in Wangaratta where, for handling stolen goods and breaching a probation driver condition you received, again without conviction, a six-month good behaviour bond. 

25Your personal history is otherwise unremarkable.  You proceeded through primary and secondary school before leaving after completing Year 10.  Thereafter you have maintained regular employment including working at a local sawmill for the past two years.  You are favourably regarded by your employers. 

26You received injuries yourself as a result of the collision, including fractured ribs and damage to your liver and a kidney.  Fortunately these have resolved and you have no permanent injury. 

27You have also incurred significant financial disadvantage as a result of the collision.  You have debts of over $23,000 through car loans and other personal liabilities   You had a second car which had been involved in a collision only a few weeks before the current incident.  I understand that you have been charged with, and are pleading guilty to, a charge of careless driving as a result of that other car collision. 

28In mitigation I accept the following matters: 

·    your plea of guilty, both for its utilitarian value and its expression of remorse;

·    your own injuries suffered and financial disadvantage;

·    your expressed remorse and shame at the consequences to your victims;

·    your driving was not aggravated by excessive speed, drugs or alcohol;

·    you have maintained a history of regular work;

·    you are a youthful offender; and

·    you have the support of your family. 

29Your conduct in driving in the manner in which you did was obviously extremely foolish and quite stupid.  To do what you did, accelerating to lose traction at a relatively high speed in the circumstances, on a relatively narrow country road with large trees close to the edges and with another vehicle rapidly approaching from the other lane, was manifestly dangerous.  It is extremely fortunate that no-one was killed.

30You have developed a telling history of irresponsibility in the management of driving a motor car.  You have committed a prior offence for careless driving involving ‘burnouts’ and now this current matter, and I am told you face another charge of careless driving which involved a collision.

31That subsequent matter is not regarded as a prior matter for culpability in the current proceedings but can be considered as context to your prospects of rehabilitation.  This sentence should reflect appropriate denunciation and be a guide to you of what you can expect if you do not change your habits before your irresponsibility with a car results in killing an innocent member of the community.  

32The consequences of this incident to the victims, in particular Mr Wignell, should not be forgotten.  A young man has been permanently affected by injury which is going to impact on his future enjoyment of life and possibly his employment opportunities. 

33Balancing as best I can the authorities and principles contained in the Sentencing Act 1991, including general and specific deterrence, the gravity of the offence, the denunciation of the offending conduct, the effect upon the victims, and principles of mitigation and rehabilitation in the context of your personal circumstances, I have determined that a sentence of imprisonment remains a serious consideration to achieve the purposes for which the sentence is imposed.  The issue which has concerned me is whether some time in immediate custody is necessary.

34In his helpful submissions, your counsel Mr Lavery placed emphasis on the decision of the Court of Appeal in the case of Boulton, Clements & Fitzgerald v The Queen.[1]  The case of Boulton recognises that a community correction order is by its nature punitive and may be appropriate even for cases of objectively grave conduct involving serious offences.  It can provide substantial general and specific deterrence and is likely to be a particularly important sentencing option in the case of a young offender where there may be perceived conflict between the need to punish the offender and the importance, both to the community and to the offender, of rehabilitating the offender. 

[1] [2014] VSCA 342

35The court observed:      

"The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.  The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide".[2]

[2] Ibid at [114]

36The court went on to say that in considering also s.5(4C) of the Sentencing Act,

"... the sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"[3]

[3] Ibid at [121]

37Given the particular circumstances in this case, I do not conclude that imprisonment is the only option.  I consider that the sentencing purposes can be achieved by a sentence that does not involve your immediate confinement.  A Community Correction Order for an extended period, with supervision, punitive aspects of unpaid community work and programs directed to your rehabilitation would, in light of the particular extenuating circumstances of this case, fall within appropriate sentencing range. 

38You have been assessed positively for suitability for a Community Correction Order and that is the sentence I intend to impose. 

39Mr Johnson, could you please now stand.

40On Charge 1 of dangerous driving causing serious injury, you are convicted and ordered to serve a Community Correction Order for a period of two years. 

41The Community Correction Order commences today and ends on 11 September 2018. 

42The corrections centre you will attend is the Wangaratta Community Corrections Service at 119-121 Murphy Street, Wangaratta and you must attend there within two clear working days after the commencement of the order and that is by 4 pm. this Wednesday 14 September 2016.

43All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:

·    you be under the supervision of a community corrections officer,

·    you perform 200 hours of unpaid community work as directed by the regional manager, and

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager, and I particularly recommend a road trauma awareness program. 

44I believe you have already had the mandatory terms of the Community Correction Order explained to you but it is necessary that I emphasise what they are again for you now.  The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force,

·    you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community corrections centre, such things as not attending drug-affected or alcohol-affected,

·    you must report to and receive visits from a community corrections officer

·    you must report to the community corrections centre, that is the Wangaratta centre, within two clear working days of the order starting, and as I have already indicated, that is this Wednesday 14 September, 

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change. 

·    you must not leave Victoria without first getting permission to do so from a community corrections officer, and

·    you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.

45Do you understand and agree to those conditions, Mr Johnson?

46OFFENDER:  Yes, Your Honour.

47HIS HONOUR:  If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Wangaratta Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

48However, importantly, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me.  One of the options open to me is to cancel the Community Correction Order and then re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months.

49Do you understand the consequences of breaching your Community Correction Order?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR: I will ask you to sign the correction order shortly. Before that, I just need to make a few further directions. Pursuant to s.89(1) of the Sentencing Act I further order that your driver's licence is cancelled and that you are disqualified from obtaining any such licence for a period of 24 months from today. 

52At the plea hearing the Crown sought an order, to which you consented, for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.     

53I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that, Mr Johnson?

54OFFENDER:  Yes, Your Honour.

55HIS HONOUR:  Are there any other matters, counsel, with respect to Mr Johnson?

56MR CLANCY:  No, Your Honour.

57HIS HONOUR:  The CCO order will be passed to you now through your counsel, and if you understand and agree to the conditions you can sign it and I will countersign. 

58Mr Johnson, just stand for a moment.  These orders are not necessarily an easy option, particularly for someone who is working full-time as you are.  It will impose significantly on the time you otherwise would be able to spend in recreational activities.  The 200 hours of work are obviously a very important condition of this order and it means you will have to make those attendances and again, they will be something that from time to time are going to inconvenience you a lot.  You have got to maintain them.  Breaching conditions such as not turning up, or not advising of any issues you have with those orders, can build up to amount to a breach which will bring about a breach proceeding and you will be back before me again.  There are not too many offences that do not carry a term of imprisonment attaching to them as a possibility of the offending, particularly driving whilst unlicensed or whilst suspended, so do not be tempted to do that because that can breach the order and you will be again back before me.  You have got to really show some responsibility now and the reason that I have imposed this order is that I think that you can act responsibly and I accept that what has happened in this case has been a big wake-up call to you. 

59I hope you can keep it going with the order and comply with it. 

60OFFENDER:  Thank you, Your Honour.

61HIS HONOUR:  Nothing else?

62MR O'DOHERTY:  No, Your Honour.

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