Director of Public Prosecutions v Jones
[2019] VCC 935
•20 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00165
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY ANDREW JONES |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 June 2019 | |
DATE OF SENTENCE: | 20 June 2019 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 935 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Renzella [1997] 2 VR 88; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Osenkowski [1982] 30 SASR 212; Harrison v R [2015] 49 VR 619; DPP v Dalgliesh [2017] HCA 41
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms E. Strugnell | Victoria Legal Aid |
HIS HONOUR:
Background
1 Zachary Andrew Jones, you have pleaded guilty to three charges of negligently causing serious injury and one charge of reckless conduct endangering life. You have also pleaded guilty to a related summary offence of driving whilst suspended.
2 The maximum penalty for negligently causing serious injury is 10 years’ imprisonment, and the maximum penalty for reckless conduct endangering life is also 10 years’ imprisonment. These maximum penalties reflect the fundamental gravity of your offending. The maximum penalty for the related summary offence of driving whilst suspended is two years’ imprisonment or 240 penalty units.
Circumstances of the offending
3
The circumstances of your offending are set out in the Summary of Prosecution Opening dated 2 May 2019, tendered on your plea hearing and marked
Exhibit B. No issue was taken with that document by your counsel and, accordingly, I will treat it as a document containing the agreed facts.
4
By way of summary, your offending took place in the early hours of Saturday,
9 December 2017. At the time of your offending, you were a probationary licence holder, but that licence had been suspended from 18 October 2017 until 10 April 2018, due to demerit points. Accordingly, you were not lawfully entitled to be driving at this time.
5 On Friday evening, 8 December 2017, you attended a show at the Melbourne Comedy Lounge with one of the victims in this matter, Terrence Stevens, who was then aged 20. You drove Mr Stevens and another male, Thomas Brown, to the show, and whilst there you were drinking beer. You then drove the others back to your home in Bayswater, arriving at about 10.30pm.
6 Also present at your home were friends of your then girlfriend, who were the other victims in this matter, Asyai Luk, Gol Luk and Abiar Nyok. All of you were drinking at your house. You, along with Mr Stevens and Mr Brown, were drinking spirits – either in shots or mixers. The females were also drinking, though in smaller amounts. The six of you passed around a bong and were sharing cones, according to Mr Stevens. I take that to refer to consumption of cannabis.
7
Shortly before midnight, you suggested that the group drive out to get more alcohol, as you had run out. It had also been pre-arranged that you would be taking the females home that evening. You left your home in your 2004 Ford Escape four-wheel drive with Mr Stevens sitting in the front passenger seat,
Ms Gol Luk in the right rear passenger seat, Ms Asyai Luk in the middle rear passenger seat, and Ms Abiar Nyok in the left rear passenger seat. You drove the group north-west on Boronia Road, Vermont.
8 As you travelled along Boronia Road, your driving was such as to cause great fear to the other occupants of your vehicle. CCTV footage obtained by police captured your vehicle travelling at twice the speed of the other vehicles on the same carriageway travelling in the same direction at about 12.15am. According to Asyai Luk, you “kept driving faster and faster”. She observed your speedometer to show a speed of 120 kilometres per hour at one stage. All three of the females were telling you to slow down, but you just kept speeding.
9 Ms Gol Luk indicated that you were rapidly increasing your speed along Boronia Road, and that they were all asking you to slow down because they were frightened. At one point, Ms Gol Luk noticed that your speed on the speedometer was 140 kilometres per hour. According to Ms Abiar Nyok, all three passengers in the back of the vehicle were screaming at you to slow down, but you would not listen.
10 Concerningly, the section of Boronia Road in Vermont that you were then travelling along was marked as a 60 kilometres per hour zone.
11 You approached the intersection of Canterbury Road and Boronia Road, which is marked by a set of traffic lights, and which can be seen from at least a distance of 150 metres. You entered the intersection at high speed and, against a red traffic signal, narrowly avoided a vehicle waiting at the traffic lights in the through lane, passing in one of the left turn lanes. However, your vehicle failed to turn left and instead travelled through the intersection without deviating, mounting the kerb on the north-west corner of the intersection. Your car then became airborne, and the front passenger side of your vehicle hit a double-brick fence before rolling back on its side.
12 Subsequent police reconstruction of the collision showed that your vehicle was travelling at more than 74 kilometres per hour at the time it left the road surface, and that it had already slowed prior to this.
13 Both yourself and all of your passengers were taken to hospital by ambulance.
14 At your plea hearing on 30 May 2019, I was provided with photographs showing the intersection, location of the collision, and damage to your vehicle. As I indicated to your counsel at the plea hearing, you are incredibly fortunate to have survived the collision, and the same comment can be made in relation to your passengers.
15 Subsequent analysis of a blood sample taken from you indicated that, at the relevant time, your blood alcohol concentration was 0.161, and the presence of cannabis was also indicated.
16 According to Associate Professor Morris Odell from the Victorian Institute of Forensic Medicine, the combination of both substances has been shown to be particularly effective in degrading driving skills, and that, in his opinion, you “would have been incapable of having proper control of a motor vehicle”.
17 You were subsequently interviewed by police on 26 January 2018, making admissions to being the driver of the vehicle, but being unable to recall the time between getting in the car and the collision.
18 As a result of your conduct, you suffered minor injuries to your face and arms. Unfortunately, the same cannot be said for the passengers in your vehicle.
19
Terrence Stevens suffered a shattered left radius at the wrist, a shattered left femur and facial abrasions. These injuries required a number of operations and physiotherapy. As at the plea hearing, Mr Stevens, I was told, had started driving again. Today I have been informed that an email has been provided by
Mr Stevens to the prosecution indicating that he is now driving, has a new car and is able to walk without a walking stick which he had previously used for mobility. He had an ongoing hip issue which required exploration and whilst struggling to find employment, was at least in a position where he had the capacity to search for employment. The prosecution fairly conceded that there has been a slight improvement therefore in the condition of Mr Stevens. I was advised that Mr Stevens, and in fact all of the victims in this matter have been the subject of approaches by the prosecution in relation to the completion of Victim Impact Statements, but none were provided to the court. On any view, however, the injuries sustained by Mr Stevens were severe.
20
According to the Summary of Prosecution Opening, the injuries suffered by
Ms Asyai Luk consisted of facial fractures, internal bleeding and organ damage. Again, on any view, these injuries were severe. At your plea hearing, I raised with counsel for the prosecution that the medical material contained in the depositions referred to Ms Luk having sustained a serious life-threatening injury. No issue was taken with this description.
21 Ms Abiar Nyok suffered fractures, dislocation of the spine, fractured ribs, lung injuries and internal bleeding. She is now unable to stand for extended periods. Again, on any view, the injuries sustained by Ms Nyok were severe and serious.
22 In relation to Ms Gol Luk, who is the subject of the reckless conduct endangering life charge (Charge 4), she suffered soft tissue lung collapse and was unable to drive following the collision.
23 Clearly, your offending has had significant and serious health consequences for all of the passengers who were in your vehicle at the time of the collision.
Nature and gravity of the offending and your level of culpability
24 The objective gravity of your offending in relation to Charges 1 to 3 on the Indictment is to be assessed by reference to the degree of negligence involved, and the seriousness of the injury caused.[1]
[1]Harrison v R [2015] 49 VR 619 at 629 (44)
25
In my view, the negligence displayed by you in this case in relation to
Charges 1 to 3 was of a high degree, for the following five reasons.
(i)at the time of the offending, your probationary licence had been suspended. You had no legitimate entitlement to drive;
(ii)at the time of your offending, notwithstanding the legal requirement that you had a blood alcohol reading of 0, your blood alcohol concentration was .161, and you had cannabis detected in your blood. The combination of these substances rendered you incapable of having proper control of your motor vehicle;
(iii)your driving conduct in the lead up to the collision involved speeding to a considerable degree, and ignoring the protestations of your terrified passengers;
(iv)in entering the relevant traffic intersection, you ignored a red light and travelled straight through a left-hand turning lane, narrowly missing another motorist;
(v)at the time your vehicle left the road surface immediately prior to the collision, your vehicle was travelling in excess of 74 kilometres per hour, having already slowed down prior to this.
26
In terms of the seriousness of the injuries caused to your victims, the prosecution did not seek to distinguish between the gravity of injuries sustained by each of the victims, submitting that all are substantial and severe. The prosecution opening contained only limited detail in relation to the injuries sustained to each of your victims. Furthermore, save for an indication that
Mr Stevens is now driving again and clearly improving in his status, I was not provided with any meaningful update in relation to the current status of the victims’ injuries. Nor was I provided with any Victim Impact Statements which might have further clarified this issue. In my view, each of the victims who are the subject of Charges 1, 2 and 3 on the Indictment sustained serious and substantial injuries, which have no doubt had profound impacts on them. I note in particular that Ms Asyai Luk had injuries including organ damage, and her injuries were initially described as life threatening. Nevertheless, given the information provided, it is difficult to distinguish between each of the victims’ injuries. Having considered other similar decisions, I have formed the view that the injuries sustained to your victims, Terrence Stevens, Asyai Luk and Abiar Nyok, represent significant examples of the types of serious injuries resulting from negligently causing serious injury by driving. Likewise in relation to Charge 4, the reckless conduct endangering life insofar as it relates to Gol Luk. Not only was she placed in danger of death because of your actions, she suffered soft tissue lung collapse and was unable to drive following the collision.
27 In all the circumstances, I have formed the view that your conduct that night involved a great departure from the standard of care required of a driver and represents at least mid-range instances of negligently causing serious injury by driving and reckless conduct endangering life by driving, and represents a serious example of those charges. At your plea hearing, your counsel conceded that your conduct represented at least mid-level offending, possibly higher, but not at the high end. I regard that as a sensible concession by your counsel on your behalf, and one that appropriately reflects the seriousness of your offending.
Background and personal circumstances
28 You are currently 22 years of age. You were 21 at the time of your offending. You are the only child of the relationship between your mother, Jane, and your father, a man from Casablanca, Morocco. Your parents’ relationship commenced whilst your mother was working and living overseas. The pregnancy was unplanned, and you were subsequently raised by your mother for a number of years as a single mother. Your father resides in Belgium and you have only met him once when you were 10 years of age. Any contact you have with your biological father is limited to social media connections. You have two paternal half-sisters, aged 18 and 5, both of whom reside in Brussels. You have contact with your elder half-sister via social media.
29 Your mother re-partnered when you were aged 4, and married your stepfather, Jeff Jones, in 2003, when you were aged 7. You considered Mr Jones to be your father.
30
Your counsel described your upbringing as being marked by considerable disruption. To some degree, the information provided on your behalf was conflicting in relation to your upbringing in childhood, however I accept that you have indeed endured disruption in your early years, particularly during the
10-year marriage of your mother and Mr Jones between 2003 and 2013, and in the period subsequent to this.
31
It appears that the relationship between your mother and Mr Jones was punctuated with periods of alcohol abuse, violent behaviour and mental health issues. At the age of 16, you were placed in a residential unit for a period of
3 months, due to concerns by the authorities regarding your safety in the home environment. Subsequent to that, you endured a period of unstable accommodation before moving to a rental in Ringwood for a period of two years until you attained the age of 18.
32 Subsequent to that, and amidst problems in relation to your relationship with your mother, you shared a rental property with your stepfather in Ringwood and worked with him in a take-away business for a period of time. Your mother and stepfather had separated in 2013, when you were aged 17.
33 Your stepfather, Mr Jones, ultimately faced bankruptcy when this take-away business failed, and he essentially absconded to the United Kingdom from where he had originated in late 2016, never again returning to Australia. You have therefore lost contact with the man whom you have regarded as your father.
34 You moved into your own place in Bayswater in 2017 with your girlfriend, Riham, and you were together with her until 9 December 2017, when you engaged in your offending. Your relationship broke down after this offending behaviour. You left that Bayswater property in November 2018, and until your remand in custody, you were living with a friend in Belgrave.
35 Perhaps unsurprisingly given your disrupted background and upbringing, you have had a disrupted education. I was informed that throughout your youth you had variously resided in Wantirna, Park Orchards, Yering, Ringwood, Heathmont and Bayswater. This instability in your home environment has resulted in a disrupted education on your part. In terms of your secondary schooling, you have attended at Billanook College, Geelong Grammar, Assumption College, Taylors College, Morrison’s TAFE and Heathmont College. Many of those placements have ended due to you being expelled, and on occasion it has been suggested that you be tested for Attention Deficit Hyperactive Disorder, though no formal assessment was conducted.
36
Your counsel submitted that despite your educational difficulties you have a strong track record of employment, having worked as a stable hand, cleaner, in hospitality, in retail food sales, as a tree lopper, in concrete polishing and demolition. In 2017, I note you commenced an apprenticeship in carpentry. As at your plea hearing you have been working as a tree lopper on a casual basis. In that regard, I have had regard to a letter from Mr Max Osman from MAX Tree Services dated 18 January 2019, tendered on your plea hearing and marked Exhibit 4. That letter confirmed that you had been employed by MAX Tree Services since 14 November 2018 on a casual basis, and had impressed
Mr Osman in relation to your eagerness and work ethic. The letter also confirms the availability of work for you with this company in the future.
37 You informed your counsel that you had abused alcohol, cannabis and stimulants such as amphetamine since the age of 16, and that this was problematic up to the time of the car crash in December 2017. You reported self-medicating for mental health issues such as depression, anxiety and suicidal ideation, with alcohol and cannabis.
38
You were assessed by consultant psychologist, Ms Gina Cidoni, on
6 March 2019. I have had regard to Ms Cidoni’s report dated 6 May 2019, tendered on your plea hearing and marked Exhibit 5. According to Ms Cidoni,[2] when you were placed in residential care at the age of 16, you were diagnosed with anxiety and prescribed Valium by a community psychiatric team. You had reported suicidal ideation from the age of 18 and between the ages of 16 and 18 you had seen a counsellor at an organisation named Headspace.
[2]Paragraph [29]
39 According to Ms Cidoni, your behaviour deteriorated in your teenage years, possibly in response to your mother and stepfather’s relationship breakdown and your mother’s poor coping. Ms Cidoni referred to your placement in residential care at age 16 and your disruptive education. She also referred to your substance abuse history. Of relevance, Ms Cidoni indicated that personality testing reflected unstable mood with depression and hypomania, paranoid ideation, and PTSD with maladjustment to stressful life events. She opined as follows:
“42. At the time of the MVA, Mr Jones was affected by alcohol and cannabis, causing disturbance of judgment and clear thinking.
43. He has poor mental health where he has not sought counselling since he was age 18 and concerningly he self-medicates with cannabis and methamphetamines.
44. He shows symptoms of attention deficit hyperactivity disorder (ADHD) but his symptoms could also present with stimulant drug use. He has symptoms of post-traumatic stress from the MVA and it is evident this event and sequelae (sic) has had an enormous impact upon him. His remorse was evident.
45. He was encouraged to seek professional counselling to address his behaviour and trauma history and build his coping resources. He would also benefit from seeing a psychiatrist for pharmacological treatment that may reduce cravings for illicit substances.
46.Regarding the impact of imprisonment, this could deteriorate his mental health considerably and further, in view of his presentation he would find this environment more taxing than someone not burdened by his mental health conditions.”
40
Whilst I note that your counsel did not submit that the Verdins’ principles had applicability in your case,[3] either in relation to any mental impairment at the time of the offending or the impact of a term of imprisonment on you, it is evident that you have endured significant disruption and trauma in your upbringing, which has negatively impacted upon you. I have carefully considered the contents of Ms Cidoni’s report, together with the letter written by your mother dated
20 May 2019, with attached medical material regarding her degenerative eye condition, tendered on your plea hearing and marked Exhibit 3, together with a letter from a family friend, Adele Temme, provided to the Court after your plea hearing on 7 June 2019, now tendered and marked Exhibit 6, in obtaining an understanding of your difficult background and general personal circumstances.
[3]Concession made by counsel in oral submissions, in contrast to the written submissions at paragraph [6(e)] on page 6 of the Written Outline of Submissions.
Criminal history
41 Your criminal history, including your driving history, was tendered by the prosecution at your plea hearing and marked Exhibit “A”. In relation to your criminal history, you come before the Court with four prior attendances at the Children’s Court for primarily dishonesty and property offences. I was informed that you completed the Probation Order imposed at the Ringwood Children’s Court on 19 November 2014 for a large number of theft and criminal damage charges. You also have two prior attendances at the Magistrates’ Court in 2015 and 2016, again, for predominantly property- and dishonesty-related offending. Subsequent to your offending in this matter, you received a bond without conviction for what I assume to be a relatively minor assault matter.
42
I have also had regard to your driving history, contained within the documentation tendered and marked Exhibit “A”. Your counsel provided further information in that regard. In summary, prior to your offending, you had your probationary licence suspended on three occasions (17 January 2017,
12 March 2017 and 18 October 2017) through traffic-infringement notices, for speeding and an accumulation of demerit points.
43
Your counsel indicated that you have two subsequent matters to the offending, finalised on 16 January 2019 and 10 April 2019 respectively. In relation to the 16 January 2019 matter, you committed the offences of driving whilst suspended, failing to wear a seatbelt and failing to display “P” plates on
28 November 2017, just one week prior to the current offending. That matter was finalised by way of a financial penalty on 16 January 2019.
44
In relation to the 10 April 2019 appearance, you pleaded guilty to possession of methylamphetamine, possession of a controlled weapon, unlicensed driving and committing an indictable offence whilst on bail, the offence date being
18 March 2019. This matter was dealt with by way of a financial penalty, and your counsel indicated that you had spent 23 days in custody in relation to this matter. I was informed that the magistrate in that matter did not make a declaration regarding the 23 days being served in relation to that matter. I will return to this issue later in my Reasons for Sentence.
45 Whilst your prior criminal history is not overly substantial, it is perhaps reflective of your difficult background and personal circumstances. It is also relevant to an assessment as to your prospects of rehabilitation, and particularly regarding the prior driving matters, the degree to which any penalty imposed should reflect the sentencing principle of specific deterrence given your catastrophic driving behaviour on this occasion.
Mitigatory factors
46 You are currently 22 years of age. You were 21 at the time of your offending. You therefore fall to be sentenced as a youthful offender. One of the great aims of the criminal law is to facilitate rehabilitation of youthful offenders in appropriate circumstances, and I have taken into consideration the relevant authorities regarding the approach to sentencing in this regard. Ultimately, the best protection for the community remains in the rehabilitation of a youthful offender. However, this needs to be balanced against the fact that there is a high prevalence of this type of offending being committed by young people. There is a need for any sentence imposed to deter drivers, particularly young drivers, from driving irresponsibly. Your conduct highlights the fact that whilst a car may be an integral part of all of our lives, a car driven negligently is capable of producing catastrophic consequences for victims. Nevertheless, I will give appropriate weight to your youthfulness as a worthy object of the sentence to be imposed.
47 It was accepted by the prosecution that you entered your plea of guilty at the earliest opportunity in the circumstances. You were interviewed by police on 26 January 2018, but not charged until 23 November 2018. The matter resolved shortly after, at a committal mention hearing on 11 January 2019. I accept that you have pleaded guilty at the earliest opportunity, and your plea of guilty represents an acceptance of wrongdoing and a willingness to facilitate the course of justice. A sentencing discount based on the utilitarian value of your plea is warranted.
48
I am also satisfied that you are genuinely remorseful for your offending. According to psychologist, Gina Cidoni,[4] your remorse for your offending was evident. Your recent employer, Mr Max Osman,[5] indicated in his letter to the Court dated 18 January 2019, that you were remorseful and regretful for your conduct. I was informed at your plea hearing that you have deliberately not sought treatment to remedy some of your scars that are a result of your offending, essentially to serve as a reminder of your wrongdoing. Most importantly, I have read and considered your letter to the Court dated
22 May 2019, marked Exhibit 2 on the plea. In that letter, you are realistic I feel in relation to the inevitability of a term of imprisonment to be imposed upon you for your criminality. Furthermore, it is clear that you are genuinely remorseful for your conduct, and I have taken your letter, together with the other material, into consideration in forming my view in relation to the presence of remorse in your case. Given my finding in this regard, a significant sentencing discount is applicable.
[4]Paragraph [44] of report, Exhibit 5 on the plea hearing
[5]Exhibit 4 on the plea hearing
49 The matters to which I have already referred bode well for your prospects of rehabilitation. Your youth, combined with your acknowledgement of wrongdoing and genuine expression of contrition, suggest that you have positive prospects for rehabilitation. Whilst you have clearly had difficulties in your upbringing, and you have broken the law on multiple occasions prior to your current matter, I nevertheless remain positive in relation to your future prospects. I note in that regard that you have employment awaiting you upon your release from prison, and I also note that you were well supported in Court both on the plea hearing date and your sentencing date. In my view, it is of critical importance that you receive assistance and treatment in relation to your substance-abuse issues, together with your underlying psychological fragility, which has brought you into contact with mental-health providers in the past. It is to be hoped that in the process of reintegrating into the community in the future, you obtain the assistance needed. Whilst your rehabilitative prospects are therefore somewhat speculative given the challenges that lay ahead, I regard your prospects of rehabilitation in all the circumstances, particularly given your youth, as being good.
50 There was some delay in the disposition of this matter, given the chronology to which I have previously referred. No doubt you lived with the spectre of criminal prosecution between January and November 2018, between the date of interview and the date upon which you were charged, in a state of anxiety. I have made some allowance in relation to this aspect of delay. Likewise, I am aware that you spent 23 days in custody prior to the determination of your most recent court appearance on 10 April 2019, and that this period of 23 days was not declared as time served for the purposes of the penalty then imposed. Pursuant to the principles articulated in R v Renzella,[6] I have made a modest allowance for that time served in the construction of your sentence today, to best reflect the justice of the situation.
[6][1997] 2 VR 88
51 Whilst your counsel did not pursue a submission regarding the moderation of any terms of imprisonment by virtue of any of the Verdins’[7] principles, your psychological fragility, particularly given your youth and difficult background, may well mean that you will find a term of imprisonment particularly onerous. I note that such a sentiment was expressed by psychologist, Gina Cidoni, at paragraph 46 of her report.[8] Such a factor is relevant in my view in relation to the imposition of a term of imprisonment, pursuant to the exercise of mercy.[9]
[7](2007) 16 VR 269
[8]Exhibit 5 on the plea hearing
[9]R v Osenkowski [1982] 30 SASR 212
Sentencing purposes
52 The objective seriousness of the offences to which you have pleaded guilty is such that the importance of general deterrence and denunciation is of primary importance in this sentence. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance.[10] There is also a need to specifically deter you from such offending in the future, given your prior driving history. The degree to which specific deterrence features as a sentencing purpose is, in my view, moderated to a degree by virtue of your acceptance of wrongdoing and remorse for your offending. Of course, any sentence I impose must adequately punish you for your criminality and protect the community from such behaviour. As I have previously stated, however, the protection of the community is also served by your successful rehabilitation and reintegration in the community in appropriate circumstances.
[10]Harrison v R (supra) at paragraph [155]
Sentencing submissions
53
It was realistically conceded on your behalf that a term of imprisonment was the only appropriate sentence in your case, given the gravity of your offending. Your counsel submitted that in light of all of the circumstances of your case, in particular your youth and prospects of rehabilitation, a shorter than usual
non-parole period was appropriate. Your counsel referred to a number of previous decisions dealing with the offence of negligently causing serious injury by driving, including the often quoted decision of Harrison and Rigogiannis v R [2015] VSCA 349.In Harrison, the Court of Appeal indicated that previous sentences had inadequately reflected the increased statutory maximum from 5 years to 10 years’ imprisonment, and that accordingly Judges should no longer remain fettered by the previous pattern of sentencing. The tenor of Harrison was that an increase in sentences was called for in relation to offences of negligently causing serious injury by driving which fall within the upper range of seriousness and as a consequence for mid-range and lower end instances of negligently causing serious injury by driving.
54 The prosecution referred me to another decision of the County Court, that is, DPP v Zwiersen [2016] VCC 1060, a sentence of his Honour Judge Gucciardo from 21 July 2016. The prosecution submitted that, Zwiersen was factually similar to your case. Whilst every case has its own unique factual scenario, and relevant considerations, Zwiersen has some similarities to your case, though fewer charges of negligently causing serious injury.
55 Pursuant to s5(2)(b) of the Sentencing Act, I must consider current sentencing practices. In that regard I have considered all of the relevant authorities referred to me in the course of submissions. Of course, current sentencing practices are but one factor to be taken into account in the instinctive synthesis and do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case.[11]
[11]DPP v Dalgliesh [2017] HCA 41.
Cumulation and Totality
56 Your offending involved one single episode giving rise to the four charges on the indictment and the one summary matter. However, the offences involve four distinct victims and differing elements. Terrence Stevens, Asyai Luk, and Abiar Nyok were all seriously injured, and Gol Luk was very much placed in danger of death as a result of your conduct. These were not minor examples of the crime of negligently causing serious injury or reckless conduct endangering life. The victims cannot be reduced to meaningless statistics by a single base sentence for the most serious offence and then concurrent sentences for the rest. They are separate victims and I must adequately recognise that fact. Cumulation is therefore required for the offences, subject as always to the overriding principle of totality. I have taken into consideration the principle of totality in constructing an appropriate sentence in your case, in an endeavour to guard against the imposition of a crushing term on you.
57 Mr Jones would you please stand.
Sentence to be imposed
58 On Charge 1 of negligently causing serious injury, you are convicted and sentenced to 3 years’ imprisonment. This is the base sentence.
59 On Charge 2 of negligently causing serious injury, you are convicted and sentenced to 3 years’ imprisonment.
60 On Charge 3 of negligently causing serious injury, you are convicted and sentenced to 3 years’ imprisonment.
61 On Charge 4 of reckless conduct endangering life, you are convicted and sentenced to 2 years’ imprisonment.
62 I order that 9 months on Charge 2, 9 months on Charge 3, and 3 months on Charge 4, be served cumulatively upon each other and upon the sentence imposed on Charge 1, making a total effective sentence of 4 years and 9 months’ imprisonment. I order that you serve a period of 2 years and 6 months’ imprisonment before becoming eligible for parole. I declare that I have set a lower than usual non-parole period to reflect your youth and positive rehabilitative prospects.
63 Pursuant to s18 of the Sentencing Act, I declare 21 days as the period of imprisonment already served on this sentence, and these days will be administratively deducted from your sentence.
64 Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty, I would have imposed a total effective sentence of 6 years’ imprisonment, with a non-parole period of 4 years.
65 In relation to the summary charge of driving whilst suspended, you are convicted and fined $750.
Other orders
66 As Charges 1 to 3 on the indictment are “serious motor vehicle offences” as defined in s87P of the Sentencing Act 1991, pursuant to s89 of that Act, any driver’s licence held by you is cancelled and I order that you are disqualified from obtaining a further licence for a period of 3 years.
67 Pursuant to s89C(1) of the Sentencing Act, I find that your offending was committed whilst you were under the influence of both alcohol and cannabis, which contributed to the offence.
68 The prosecution have made an application for a forensic sample. This was not opposed by you. I make the order in the terms sought, based on the seriousness of your offending, the order not being opposed by you, and the granting of the order is, in my view, in the public interest.
Alcohol exclusion order
69 By notice of application dated 29 May 2019, the prosecution has applied pursuant to s89DD of the Sentencing Act for an Alcohol Exclusion Order.
70 Pursuant to s89DD(1), if a person has been charged with a relevant offence, the Director of Public Prosecutions may make an application for an Alcohol Exclusion Order. The charges on the indictment are relevant offences in accordance with the definition contained in the Sentencing Act 1991. At the plea hearing on 30 May 2019, the prosecution conceded that the notice provisions contained in the Act had not been complied with, and that accordingly leave of the Court would be required for the application to be determined. Whilst in my view no reasonable explanation was offered in relation to the non-compliance with the notice provisions, given that the matter has now been adjourned for some weeks and the defence have had ample time to prepare for the application, I am prepared to grant leave pursuant to s89DD(2)(c) for the hearing of the application.
71 Pursuant to s89DE of the Sentencing Act, the Court must make an Alcohol Exclusion Order if a conviction is recorded against Mr Jones for a relevant offence, and the Court is satisfied on the balance of probabilities that at the time of the relevant offence, Mr Jones was intoxicated, and that his intoxication significantly contributed to the commission of the relevant offence, and that he has not been previously the subject of such an order.
72 Such an order has a duration of two years as at the date of release. Pursuant to sub-section (4) of 89DE of the Act, subject to any exemptions granted, the order would prohibit Mr Jones from a number of locations and activities which can broadly be described as alcohol-related. Sub-section (5) enables the Court to grant exemptions if the Court is satisfied that there is a good reason and that such an exemption is appropriate in all the circumstances.
73 I have now received and had regard to an amended notice of application for an Alcohol Exclusion Order. Subject to the amendments made in oral argument today, I am satisfied that it is appropriate to make the Alcohol Exclusion Order in the terms sought and I propose to make the order in due course. As indicated the Alcohol Exclusion Order will take effect on Mr Jones' release from prison.
74 Mr Jones, you can take a seat for a moment.
75 Ms Strugnell, have you carefully explained to your client the nature of the Alcohol Exclusion Order and consequences should he not comply with it.
76 MS STRUGNELL: Yes, my instructor has in video conference as well.
77 HIS HONOUR: Yes.
78 MS STRUGNELL: But certainly we've had some discussion about that.
79 HIS HONOUR: Yes.
80 MS STRUGNELL: It does carry a period of imprisonment or a potential (indistinct words).
81 HIS HONOUR: Yes, that's what I'm getting at.
82 MR SHARPLEY: Yes.
83 HIS HONOUR: As long as he understands, upon his release, as I indicated on the plea hearing date, it's an expansive order in my view. It will need to be carefully complied with as I'm sure you and those instructing you, if not already having done so, will explain that to Mr Jones. The 464ZF application is - can that be electronically sent to my associate. It was sent in a PDF form.
84 MR PICKERING: Yes, Your Honour.
85 HIS HONOUR: Is that right, Mr Lavery? It's to come from the prosecution. Yes. It was sent in a PDF form. It needs to be sent in a Word version so that amendments can be made to it.
86 MR PICKERING: Yes. My instructor will fix that, Your Honour.
87 HIS HONOUR: And I'll make that order in chambers. Ms Strugnell, do you want to accompany my associate to - - -
88 MS STRUGNELL: Thank you, Your Honour.
89 HIS HONOUR: - - - your client to have the Alcohol Exclusion Order signed?
90 MS STRUGNELL: Could I at this point, Your Honour, indicate or request that my client has some physical contact with his mother and also his close friends prior to being taken away? (Indistinct words) request but I'll leave it to Your Honour.
91 HIS HONOUR: Yes. Yes. Mr Pickering, do you have anything to say in that regard?
92 MR PICKERING: I don't, Your Honour, that's a matter for - - -
93 HIS HONOUR: Yes.
94 MR PICKERING: - - - the gentleman sitting in the back.
95 HIS HONOUR: Yes.
96 MS STRUGNELL: Thank you, Your Honour.
97 HIS HONOUR: All right, I'll consider that whilst you're getting this matter attended to.
98 MS STRUGNELL: Thank you, Your Honour. Thank you, Your Honour.
99 HIS HONOUR: Can I make an enquiry of the officers in the back of the court. I'm not wanting to put you on the spot. Is there any difficulty with the close family friends of Mr Jones having a moment with him before he's removed?
100 PRISONER OFFICER: That should be all right, Your Honour.
101 HIS HONOUR: Yes, just for a moment or two.
102 PRISONER OFFICER: (Indistinct words) but no touching.
103 HIS HONOUR: Yes. No touching? Yes.
104 VOICE (from body of the court): Unfortunately, Your Honour, it's very strict rules.
105 HIS HONOUR: Yes.
106 VOICE: He can do it but he's - the accused will have to be probably strip searched - - -
107 HIS HONOUR: Yes.
108 VOICE: - - - again when he goes downstairs, so it's - - -
109 HIS HONOUR: Yes. Yes, I understand.
110 VOICE: It's usually not - - -
111 HIS HONOUR: I understand. Yes, I understand. For the benefit of Mr Jones' family and friends, that is the normal course of events in these matters. In the normal course of events, I would leave, I would ask for Mr Jones to be removed before I leave the court. I will grant you the indulgence of at least leaving the court first. I'll ask that you restrict your conversation with Mr Jones just to a very brief one given the operational requirements that have just been outlined. Yes, Mr Pickering, first any ambiguities, issues with the sentence or the orders made?
112 MR PICKERING: No.
113 HIS HONOUR: Yes, Ms Strugnell, any issues?
114 MS STRUGNELL: No, Your Honour, it's very clear. Thank you, Your Honour.
115 HIS HONOUR: Thank you.
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