Director of Public Prosecutions v Julian

[2021] VCC 1625

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 21-01340

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMERSON JULIAN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bendigo
DATE OF HEARING:	18 October 2021
DATE OF SENTENCE:	19 October 2021
CASE MAY BE CITED AS:	DPP v Julian
MEDIUM NEUTRAL CITATION:	[2021] VCC 1625

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Dangerous driving causing serious injury – s 319(1A) – Lower end of seriousness - Early plea of guilty – Evidence of remorse – Young and inexperienced motorcyclist - First offender with outstanding charges – Speeding – Accused not intoxicated – Complications in medical treatment resulted in the death of the victim – Low risk of reoffending

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited: R v Mills [1998] 4 VR 235

Sentence: Community Corrections Order for a period of 18 months – 100 hours unpaid community work – Licences cancelled and disqualified from obtaining a licence for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr M. Habib	Docherty Legal

HIS HONOUR: 

1Emerson Alan Julian, you have pleaded guilty to one charge of dangerous driving causing serious injury, contrary to s319(1A) of the Crimes Act 1958.  The maximum penalty for that offence is five years imprisonment. 

2You pleaded guilty following contested committal proceedings that were conducted when you were facing the charge of dangerous driving causing death.  Following the examination of relevant medical evidence at the committal and negotiations between the parties, the matter resolved on the basis of the charge now before the court.  In my opinion, whilst your plea was not at the earliest possible stage in the proceedings, it is nevertheless an early plea of guilty entered during the COVID-19 restrictions that have caused significant disruption to the administration of criminal justice in this State.  Your plea is a high value plea of guilty and I accept that it is also evidence of remorse for your offending.  I have taken your plea into account in your favour in mitigation of sentence.

3You have no prior convictions but a number of serious driving charges alleged to have been committed by you whilst on bail for this charge are listed for mention in the Magistrates’ Court at Bendigo on 4 November 2021. 

4I have received in evidence, without objection from your counsel, a summary of your offending in relation to these outstanding charges, and whilst I am not able to make any factual findings in relation to them, it would appear that in February and March 2021 you participated as a driver in what are known as ‘burnouts’ in the presence of a number of other people.  I accept that the fact that you engaged in such conduct whilst on bail is relevant to my assessment of your prospects for rehabilitation.  But the fact remains that you are to be sentenced by me as a first offender in relation to an offence that occurred almost two years ago. 

5The prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

6On Thursday 12 December 2019 at approximately 2.34 pm you were riding your Kawasaki motorbike in Wood Street, Long Gully in Bendigo.  At the time you were the holder of a motorcycle learner’s permit which had been issued on 25 September 2019, less than three months earlier.  The victim of your offending, Mr Orazio Longano, a 77 year old gentleman, was crossing Wood Street opposite the IGA supermarket.  The area is a busy commercial district with many road users and pedestrians. 

7A number of witnesses observed you to be riding the motorcycle at an excessive speed of up to approximately 80 kilometres per hour.  The speed limit in the area is 50 kilometres per hour.  Mr Longano, who was not on a pedestrian crossing, was walking across the road and you collided with him, causing him to be thrown into the air.  An analysis by the Victoria Police Collision Road Construction and Mechanical Investigation Unit ascertained that at the point of impact your motorcycle was travelling at between 45 and 55 kilometres per hour. 

8Mr Longano suffered the following injuries in the collision: an L1 to 5 transverse process fracture of his spine, left five to seven non-displaced rib fractures, pelvic fractures, a thin subdural haematoma with non-displaced occipital bone, and a comminuted left proximal tibial fracture. 

9Mr Longano experienced a number of complications during his medical treatment. He tragically suffered a bladder perforation during the course of a procedure which resulted in his death on 6 January 2020.  Whilst it is clear that the collision set in train the injuries that led to Mr Longano’s death, the collision was not the substantial and operating cause of it, and you are not to be sentenced for causing Mr Longano’s death.

10You were interviewed by investigating police on 14 January 2020 and provided an account to them of how the collision occurred.  It is clear from your answers in the interview that you were travelling at an excessive speed and were unable to avoid Mr Longano as he crossed the road. 

11I have received in evidence seven victim impact statements prepared by Mr Longano’s family and a witness to the collision, and it is tragically clear that his death has had a profoundly traumatic effect upon them all.  He was an industrious and much loved man who lived a full and rewarding life.  In arriving at the appropriate proportionate sentence in this case I have taken into account the words contained in the victim impact statements, conscious as I must be that you are not to be sentenced for causing Mr Longano’s death and the tragic impact of it.

12Road trauma causes immeasurable damage to individuals, their friends and family and our society generally, and this sentence must be calculated to deter others from offending in this manner.  However, in my opinion, your offending falls at the lower end of the seriousness for offences of this type.  You were a young and very inexperienced learner motorcyclist who, whilst riding at an excessive speed, made a serious error of judgment in relation to Mr Longano’s presence before you on the roadway and this caused the collision.

13I now turn to your personal circumstances - 

14You were born in Melbourne in December 2000 and are now aged 20.  You were 19 at the time of your offending.  You are the eldest of three sons born to your parents who separated when you were 16.  You reside with your mother and two younger brothers here in Bendigo.  You grew up in various locations including New Zealand, and you completed Year 12 at Bendigo Secondary College in 2018.  You are from a loving and supportive family.  You are now employed as an apprentice carpenter and I have received in evidence a positive character reference from your employer stating how highly regarded you are at work. 

15I have also received in evidence a psychological report of Ms Carla Lechner detailing your background and psychological profile.  You do not suffer from any mental illness, although Ms Lechner is of the opinion that your alcohol use may be problematic.  Ms Lechner is also of the opinion that you are an emotionally and socially immature young man, and this opinion is supported by a reference from your mother which was also tendered in evidence.  Ms Lechner concludes that your prospects of rehabilitation are good, and I accept that this is an accurate assessment. 

16Whilst you are facing further driving charges you are now well aware that irresponsible and illegal conduct as the driver of a motor vehicle is not the appropriate way to gain social acceptance.  I also accept that you are remorseful for your offending.  Furthermore, I do not accept that specific deterrence is now a prominent consideration in your case. 

17It is plain that the principles enunciated by the Court of Appeal in R v Mills [1998] 4 VR 235 are engaged in your case and you are a young offender for the purposes of the Sentencing Act 1991.  Furthermore, based on the evidentiary material relied on in your case it is also clear that you would be at significant risk in an adult prison environment, and it was accepted by the prosecution that imprisonment is not an appropriate sentence in your case.  I am also of the opinion that a sentence of detention in a youth justice centre is not required to meet the purposes for which this sentence is to be imposed.

18I have had you assessed for suitability for a Community Corrections order and you have been assessed by Corrections Victoria as suitable for that disposition.  Corrections Victoria assessed you as a low risk of reoffending, which is consistent with the evidence that I have referred to. 

19In the result the sentence of the court is as follows –

20On the charge of dangerous driving causing serious injury you are convicted and sentenced to a Community Corrections order for a period of 18 months on the core conditions provided for in the Sentencing Act. 

21I further order that you undertake 100 hours of unpaid community work during the period of the order and that you undertake offending behaviour programs as directed by Corrections.  Do you agree to entering such an order?

22OFFENDER:  Yes.

23HIS HONOUR:  All licences held by you are cancelled and you are disqualified from obtaining a licence in the State of Victoria for a period of 18 months.  You will need to sign the order now.

24Are there any further orders required, Mr Cordy?

25MR CORDY:  Although it’s not formally an order, Your Honour, does Your Honour propose to make a 6AAA declaration?

26HIS HONOUR:  I am not required to because the CCO is not more than two years.

27MR CORDY:  I understand that.  Yes.

28HIS HONOUR: That is what is provided in s6AAA of the Sentencing Act.  Yes, thank you, that order has been signed and a copy will be provided to you.  Mr Julian, you are required to attend at Corrections Victoria as provided for in that order. 

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