Director of Public Prosecutions v Kelsey
[2023] VCC 1973
•31 October 2023
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01800
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTY KELSEY |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 16 August 2023, 18 August 2023 | |
DATE OF SENTENCE: | 31 October 2023 | |
CASE MAY BE CITED AS: | DPP v Kelsey | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1973 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence
Catchwords: Negligently cause serious injury – driving offence – driving under the influence – mental health – plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Harrison v The Queen (2015) 49 VR 619; R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; Mashayamombe v The King [2023] VSCA 60; DPP v Barry [2017] VSCA 344
Sentence: 5 months imprisonment, CCO for a period of 20 months, and a fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr R. Morgan | Peter Baker & Associates |
HER HONOUR:
1Kristy Kelsey, on 16 August 2023 you pleaded guilty on indictment N10079090 to one charge of negligently causing serious injury and the related summary charge of driving whilst having a Prescribed Concentration of Alcohol of .05 or above.
2Negligently causing serious injury has a maximum penalty of 10 years' imprisonment or 1200 penalty units. The maximum penalty for driving whilst having a Prescribed Concentration of Alcohol of .05 or above is a fine of not more than 20 penalty units for a first offence.
3After the initial plea hearing I remanded you in custody and ordered a variety of pre-sentence reports. The court has received a report from Forensicare authored by Senior Forensic Psychologist Dr Bonnie Albrecht, a report from Monique Dicesare from Corrections and also a report from Peter Walker from the Mental Health Advice and Response Service. I have taken the contents of these reports into account and can confirm that you have been assessed as suitable for a community correction order.
Circumstances of Offending
4The agreed factual basis for your offending is set out in the summary of prosecution opening for plea dated 8 May 2023 and marked as Exhibit A on the plea.
5Your offending relates to one continuous episode of driving which took place on 4 March 2021 between Gisborne and Ravenswood South. This is a distance of about 80 kilometres. Your negligent driving eventually resulted in a collision with another vehicle which occurred at around 7.30 pm at Ravenswood South.
6At the time of your offending, you were working as a personal care attendant and living in Tarneit.
7On 3 March 2021, the day prior to the collision, you worked a shift from 2 pm to 5 pm at one of your places of employment. You then worked a shift at another employer from 9 pm until 6 am the following day, which was the day of the collision.
8After finishing your shift at 6 am, you drove to your home 40 minutes away where you say you slept for about six hours. Your phone activity shows your phone was inactive for only a little over 4.5 hours.
9You then drove to Sunshine, about 30 minutes away, and worked a shift between 1 pm until 4.30 pm.
10You had worked a total of about 40 hours in the three days preceding the offending.
11After this shift, you returned home for a short period of time where you said you had consumed about 1.5 glasses of wine.
12You left your home to head towards Bendigo to visit a friend in hospital. You were driving your vehicle, a white Holden Cruze. You brought with you a coffee you had made at home as you were starting to feel tired.
13At about 6.30 pm, you were observed by another driver driving along the Calder Highway in Gisborne at a speed estimated to be around 100 to 110 kilometres per hour. The speed limit in this area is 110 kilometres per hour.
14This other driver observed your vehicle drift over the left edge line and almost hit the barrier on the entrance ramp before swerving across lines, crossing the right edge line and almost colliding with the wire rope barrier.
15This driver called Triple 0 to report your driving. He saw your car weave in this manner, crossing in and out of the lane, for some distance before he exited the freeway. Police were unable to locate your vehicle at the time.
16At about 7.30 pm, you drove from the direction of Harmony Way and crossed the Calder Highway at Ravenswood South. At this point, the Calder Highway becomes a divided highway with two lanes of traffic for each direction. This intersection has a reduced speed limit of 80 kilometres an hour.
17In the centre median prior to the north bound lanes, there are two large 'give way' signs which were applicable to your direction of travel.
18Another driver was travelling in the same direction as you and observed you fail to give way according to the signs. You crossed into the north bound lanes of the Calder Highway and into the path of another vehicle driven by Colleen Walker.
19Ms Walker had left Woodend at about 6.30 pm in her white Mercedes and was driving home to Bendigo. At the time of the collision, her vehicle was travelling at about 80 kilometres per hour.
20Ms Walker had little time to react and your vehicles collided. Ms Walker's vehicle was forced off the left side of the highway and collided with a light pole before finally stopping in a grassy ditch. Ms Walker was seriously injured and unable to get out of the car. This is Charge 1 – negligently cause serious injury.
21Emergency services arrived after the collision. Police members found you sitting in the driver seat of your car. Both yourself and Ms Walker were transported to Bendigo Hospital for treatment.
22You were treated for a broken leg and wrist and a sample of your blood was taken at 9.31 pm. This sample was later tested at the Victorian Institute of Forensic Medicine and was found to contain a Blood Alcohol Concentration of 0.202 per centum, an amount over four times the legal limit. This is summary related Charge 5 – driving whilst having a Prescribed Concentration of Alcohol of .05 or above.
23On 5 May 2021, you voluntarily attended Castlemaine police station for interview. You made a number of comments about the offending;
(a) You admitted to police that the vehicle you were driving was yours and that it would have been the same vehicle that was observed driving erratically at Gisborne;
(b) you provided little detail about your journey after you departed Tarneit except that you intended to get another coffee in Castlemaine or Harcourt and you may have exited the Calder Freeway;
(c) you told police that you only had two glasses of wine that day and you did not understand why your blood alcohol concentration was so high;
(d) you also said you had worked an excessive amount of hours and had very little sleep, and you were feeling the effects of other stressors in your life including university and relationship breakdowns;
(e) you told police that you had used medication to try and sleep properly earlier in the day because you had been feeling tired and you had another shift to work in the afternoon in Sunshine;
(f) despite this, you emphasised that you had not been feeling more tired than usual and that coffee was a normal part of your routine balancing university and hospital work.
24Ms Walker was examined by Dr Jack Pang at Bendigo Hospital. Due to the collision, Ms Walker sustained multiple injuries including: a comminuted right distal radius fracture; A5 cervical spine fracture; right sacral ala facture; right acetabular fracture.
25Ms Walker underwent surgery involving an open reduction and internal fixation of the right distal radius fracture which also required bone grafting. Ms Walker was discharged from hospital on 12 March 2021. Her right arm was in a below elbow cast and she was advised not to weight bear on this arm for six weeks. She was further advised not to weight bear on her right leg due to the acetabular fracture.
26On 14 May 2021, Ms Walker was admitted to hospital for worsening breathlessness. After further investigations, including blood tests and a CT angiogram, large bilateral pulmonary emboli (blood clots) were found in her lungs. Associate Professor Mark Savage, consultant physician and Director of Medicine at Bendigo Health, considered that these clots were highly likely to be a consequence Ms Walker's immobilisation following the accident.
27Ms Walker was kept overnight in hospital whilst the clots were treated via blood thinning injections. Following her discharge from hospital she was required to take oral blood thinners for three months. Ms Walker attended for review as an orthopaedic outpatient throughout March, April and June 2021. She attended 24 physiotherapy sessions between April and August 2021, and treatment for her injuries ceased in November 2021.
Victim impact
28Ms Walker provided a victim impact statement which she read in court and this was marked Exhibit B on the plea.
29She described the immense physical, emotional, and psychological impact of your offending and the toll it took on her family.
30Ms Walker says the seconds after her car was hit were the most frightening of her life. The sounds, smells and sensations of that experience continue to haunt her and impede her ability to drive.
31Following the collision, she was unable to work for over three months and her husband had to take seven weeks off work, from his relatively new job, to care for her. Other members of her family had to significantly change their work schedules as Ms Walker was unable to provide her usual support in her son's business and childcare to her grandchildren.
32The discovery of blood clots in her lungs was a further emotional and physical setback and Ms Walker is now faced with a lifetime increased risk of blood clots. She continues to experience pain and discomfort from her injuries which limits her physical activity. Ms Walker particularly misses her ability to interact with her grandchildren in the way she did before.
33Ms Walker's Mercedes was written off and was unable to be replaced with a car of the same value and quality, causing a loss of about $10,000.
34I take into account the impact of your offending on Ms Walker when sentencing you.
Nature and Gravity of Offending
35Negligently causing serious injury, particularly when it occurs in the context of driving under the influence of alcohol, is considered to be very serious offending.
36Following the Court of Appeal decision in Harrison, assessing the objective gravity of an instance of negligently causing serious injury requires consideration of the degree of negligence displayed by the offender and the seriousness of the injury suffered by the victim or victims.[1]
[1] Harrison v The Queen (2015) 49 VR 619.
37Your counsel submitted that several factors lessened the objective gravity of this particular example of the charge. In particular that it did not occur in a built-up or residential area and the absence of illicit drugs, excessive speed or 'hoon' driving.
38Despite the presence of a high alcohol reading, it was submitted that there was no evidence to refute your claim that you had consumed only about 1.5 glasses of wine, albeit that you thought they were probably larger than a standard pour. A lack of food in the days leading up to the offending may have meant what you consumed had a greater affect than you anticipated. Though you were fatigued, earlier that day you appropriately recognised that you needed to sleep and you did sleep for approximately four to six hours.
39It was submitted that these factors distinguish your offending from more serious examples such as where a person has consumed large amounts of alcohol over several hours prior to driving or where they had been awake for over 24 hours under the influence of substances. These circumstances were relevant in the cases of Mashayamombe and Barry relied upon by the prosecution.[2]
[2] Mashayamombe v The King [2023] VSCA 60; DPP v Barry [2017] VSCA 344.
40Further, whilst conceding the victim's injuries were appropriately classed as serious, it was submitted that they were toward the lower end of other examples which fall within the meaning of 'serious injury'. These include injuries resulting in brain damage, amputation, quadriplegia or paraplegia and those which pose an immediate threat to life.
41In my view, as submitted by Mr Cordy for the prosecution, a key factor that increases the degree of your negligence is the duration of time you had to contemplate that you were not in a proper state to drive. This elevates your offending above cases of momentary inattention which nonetheless result in injury or even death.
42It was clearly apparent to you on the day of the collision that you were tired and needed sleep. Whilst I accept you did make an effort to sleep, the benefit gained was likely offset to some degree by your subsequent consumption of alcohol. The choice to consume alcohol prior to driving with the knowledge that you were already fighting fatigue further increases your negligence in choosing to drive. This is particularly so when the distance you had to travel was not insignificant.
43Whilst I accept you were not drinking over an extended period of time, it is evident from your blood alcohol reading that you consumed significantly more alcohol than you thought or you were not in a physical state to offset the consequences of the amount of alcohol you did consume.
44Even if you genuinely believed you were fit to drive upon leaving Melbourne, by 6.30 pm your driving had deteriorated to the point that it prompted another road user to call Triple 0. It did not become apparent to you at this point that you should no longer be driving, and you continued towards Bendigo for another hour before you ultimately collided with Ms Walker's vehicle.
45The speed limit and other signage around the relevant intersection had been changed several years earlier due to recognition of the dangers of fast-moving and merging traffic in this area. The 'give way' signs you ignored at the time of the collision were large and clearly visible. The signs would have been apparent to any person concentrating appropriately. The visibility and road conditions at the time were good.
46I accept that the immediate injuries suffered by Ms Walker are on the lower level of seriousness compared to other injuries resulting from offending of this nature. However, the blood clots Ms Walker eventually developed as a result complicate an assessment of their seriousness. In the case of Mashayamombe,[3] the Court considered it worthy of note that the victim's injuries, though in themselves not immediately life threatening, likely would have gone on to have fatal consequences without medical intervention.
[3] Mashayamombe v The King [2023] VSCA 60.
47I agree with your counsel that absent in your case are some serious aggravating factors such as excessive speed and 'hoon' driving. In assessing all of these factors, I accept that your offending is serious but not the most serious example of offending of this nature.
Personal Circumstances
48You are currently 41 years of age and you were 38 at the time of the offending.
49You were born and raised in Bendigo. Your mother was just fourteen to fifteen years old when she became pregnant with you. You have two younger sisters and four half siblings.
50Your father was a heavy drinker. He was physically, emotionally, and sexually abusive to you and others in the household. You describe experiences of having a gun put to your head whilst grieving your grandmother's death and your father threatening to kill himself if you ever disclosed that he was abusing you. Your mother tried to shield you from the worst of his behaviour, sometimes by locking you and your siblings in your rooms for your protection.
51Regrettably, you are not a stranger to the court environment, albeit from a different perspective. As a teenager you participated in proceedings in relation to your father's abuse for which he was subsequently acquitted. You believe your involvement in this process fractured the family and led to your parents' separation. Around this time, you ran away from home to live with your grandmother and subsequently moved a number of times between her home and other acquaintances. Following the outcome of the court proceedings, you felt suicidal and driven to engage in reckless and self-destructive behaviour.
52You attended schools around Bendigo until midway through Year 11. Having previously been a fairly popular student, you were alienated by your peers after your father was accused of assaulting one of your friends. You first learned of this in a meeting with the school counsellor which prompted you to disclose your own abuse. Your participation in the proceedings against your father disrupted your schooling and you remember being removed from class to speak with police and participate in various parts of the process.
53After leaving school you went on to complete various TAFE certificates related to hospitality but you eventually found hospitality did not suit your lifestyle and parenting responsibilities. Eventually you took an interest in the health and aged care sectors and you completed several certificates related to aged care. You later began a Diploma in Mental Health which you did not complete.
54At the time of the offending, you were persisting with difficulty through nursing studies which you commenced in 2020. You were also doing shift work at two jobs as a personal care assistant.
55In the year prior to your remand in August, you had been working as a support worker with Amicus Community Services, an organisation which provides disability, aged care, and other support services. You report that you were let go from your employment the day prior to being remanded.
56You have been in a relationship with your current partner, Jeff, since 2020. Prior to your remand you had begun living together and you are currently expecting your first child from this relationship which is due in March 2024. Due to various health conditions which make conceiving more difficult, this pregnancy has come as a surprise to you.
57You describe your other significant prior relationships as toxic and at times mutually abusive. You recall confiding in a former long term partner that you had been drugged and raped by a friend which resulted in an increase in possessive and jealous behaviour. You were in an 'on and off again' relationship for 21 years with the father of your son who was born in 2003. Though you realised the relationship was detrimental, you remained in it to provide stability for your son.
58Throughout your life you have engaged in sporadic use of various illicit substances and in periods of binge drinking. In your thirties, you began using methamphetamine following pressure from your long term partner at the time. You report last using it in early 2021. At the time of your most recent psychological assessment by Dr Albrecht, you denied having issues with alcohol though you felt you may have been developing a problem at the time of the offending. Ms Cidoni noted that you have a history of abusing alcohol and prescription drugs and you have attempted to overdose a number of times. I will return to your mental health and psychiatric history in more detail shortly.
59As a child you recall being frequently unwell and being in and out of hospital. At 16 you were diagnosed with endometriosis and you have since had 11 surgeries for this condition. As an adult you continue to be treated for several thyroid and endocrine related illnesses.
60You have experienced several periods of estrangement from your family since your childhood. Your relationship with your mother has often been strained, having been complicated by how you both coped with your father's behaviour and your involvement in the court proceedings. You no longer have contact with your father despite intermittent pressure from your mother to reconnect. You found your father's most recent attempts to contact you to be distressing and traumatic and you have no interest in further contact. You currently feel supported by your mother, partner, and your son.
61You have no prior criminal history and this is the first time you have spent in custody which has, no doubt, been a salutary and difficult experience, particularly in your circumstances being in the first trimester of pregnancy.
62The court received two testimonials, one from Amanda Pavlich and the other from Kim Benton. Ms Pavlich speaks of your contribution to your community by way of volunteer work in coaching basketball for 'out of home' Aboriginal youth. Ms Benton was both your team leader at your past work and she is also a friend. She speaks of your commitment to providing care for those you work with and describes you as a fantastic and reliable worker. I accept that you are a person of otherwise good character and whilst noting that often people charged with this offence are similarly of good character, I have placed what weight I can upon this factor as a matter in your favour.
Psychiatric history
63Prior to your plea hearing, at the request of your solicitor you were assessed by psychologist, Gina Cidoni, and a report was produced dated 29 June 2023.
64The report notes that you were diagnosed with depression as a teenager and commenced anti-depressants, though you continued to experience manic episodes and suicidality.
65You attempted suicide several times as a teenager and continued to self-harm as an adult, particularly in the context of relationship breakdowns. In 2017, you were involved in a single-car motor vehicle accident whilst you were manic and alcohol affected, although I was told today that in fact that was not the case, though you escaped without serious injury.
66You were eventually diagnosed with Borderline Personality Disorder (BPD), Bipolar disorder and Post-Traumatic Stress Disorder. Ms Cidoni identified that you displayed symptoms associated with these conditions such as emotional instability, fear of abandonment, self-destructive behaviour and unstable relationships.
67Ms Cidoni was of the opinion that at the time of the offending you were affected by the combined effects of unresolved relationship trauma, recent emotional trauma and other acute stressors which impaired your decision making and emotional regulation. Your capabilities in these areas were further diminished by alcohol which you are susceptible to using as a maladaptive coping mechanism.
68Her opinion was that you require regular and comprehensive psychological and psychiatric treatment which may include medication, trauma informed therapy and CBT (cognitive behavioural therapy). In her view, imprisonment may exacerbate anxiety, emotional dysregulation and impulsivity associated with borderline personality disorder and custodial mental health care may be inadequate to address your symptoms.
69A further psychological report was ordered following your plea hearing to further explore the impacts of your mental state and upbringing on the offending. This report was prepared by senior Forensicare psychologist, Dr Bonnie Albrecht, and is dated 25 October 2023.
70Dr Albrecht noted you had a traumatic childhood with few stable familial and social supports and this likely led to your early displays of reckless and self-harming behaviours. Without exposure to healthy coping mechanisms, you developed a reliance on maladaptive strategies such as self-harm, alcohol and substance misuse and attempts at suicide.
71Dr Albrecht's opinion was that neither diagnoses of bipolar or borderline personality disorder adequately described your experiences and presentation and these are possibly better encapsulated by the notion of 'complex trauma'. Complex trauma impacts a person's sense of safety, identity, trust in others, relationships, mental functioning and coping strategies.
72Dr Albrecht opined that over time your experiences of trauma and abuse, which continued into your adult relationships, impacted your intrinsic self-worth. This led to a compulsion to seek acceptance and atonement through the role and identity of care giver. Your commitment to this identity frequently came at the cost of your own self-care and wellbeing. She identified that you are susceptible to being overwhelmed by stressors when trying to maintain the high standards set for yourself in your caring, academic and other responsibilities. Despite attempts to better yourself, when faced with these stressors you frequently return to familiar maladaptive coping strategies such as alcohol and self-harm. The conflict in your identity caused by the offending has led to multiple attempts at suicide and episodes of self–harm.
73Dr Albrecht considered your compromised endocrine functioning may be a further contributing factor as hyperthyroidism can disrupt sleep and cause fatigue, irritability, and agitation. Dr Albrecht considers your functioning is affected by an interplay between these conditions and your mental health and this is exacerbated by stress.
74Dr Albrecht felt unable, in the absence of further psychological and medical examination proximate to the offending, to establish a direct link between your diagnosed conditions, complex trauma and the offending. Nonetheless, she was of the view that your 'trauma-related and psychosocial sensitivities' contributed to your prioritisation of other commitments over your wellbeing and in that way are indirectly linked to your offending behaviour. Further, they led you to adopt detrimental coping strategies in response to the multiple stressors you were experiencing at the time. Your decision making was further impacted by the alcohol and medication you were using as a coping response.
75Dr Albrecht opined that coordinated mental health care in the community upon release is required. This should be part of a holistic approach involving your GP, mental health clinicians and endocrine specialists. These interventions will be particularly important in the context of your pregnancy and childbirth which will be high risk periods for destabilisation.
Application of Verdins and Bugmy principles
76Although, in the opinion of Dr Albrecht there is not a direct link between your mental health diagnoses and your offending, I accept that your experience of childhood abuse, significant trauma and disruption have very likely led to you being diagnosed with borderline personality disorder, bipolar affective disorder, as well as adjustment, depression and anxiety related difficulties. Further, I accept the opinion of Dr Albrecht that your description of mood in the days prior, and tearfulness prior to the accident, suggest that your coping capacity was overwhelmed, and that you had little true insight or appreciation of the impact of exhaustion and distress on your functioning. Furthermore, second to the underlying social and identity related sensitivities described, you lacked adequate skills to set limits or seek meaningful assistance to manage your various stressors or obligations. In the context of such overwhelm your ability to think slowly and rationally was impacted and you relied on your best-known coping approach to manage stress which was substance use.
77I also accept Dr Albrecht's opinion that your presentation is best encapsulated as complex trauma and that together with your diagnosed conditions, these factors are indirectly related to your offending. In this sense there is some realistic connection or some causal nexus between your mental impairment and your offending. Further, I accept that these diagnoses exist independently from your substance or alcohol abuse issues. In the circumstances, it is my view that the principle 1 in Verdins and the more general expression of the application of the principles in Bugmy are enlivened in your case. That is, I accept that having been exposed to sexual abuse, instability, family breakdown and ongoing trauma, your moral culpability should be viewed as less than the culpability of an offender whose formative years have not been marred in that way.
78I consider that your mental health issues and diagnoses together with your experience of childhood abuse and instability has indirectly led you to have poor coping skills and has impacted your ability to make considered and rational decisions around your offending. Given that you remained distressed throughout your journey, I find this reduction of moral culpability remained in operation at the time of the accident. In the circumstances of your case, it is my view that your moral culpability is reduced to a degree such that I should somewhat moderate general deterrence. In doing so I am mindful of the need to avoid doubling up on the mitigatory effect of Bugmy and Verdins principles.[4]
[4] R v Verdins [2007] VSCA 62; Bugmy v The Queen [2013] HCA 37.
Plea of guilty and remorse
79Your plea of guilty illustrates that you have taken responsibility for your actions and demonstrates your desire to facilitate the course of justice. You have always indicated an intention to plead guilty and you did so at an early stage in the proceedings.
80Your early plea of guilty has utilitarian benefit and has also spared Ms Walker from giving evidence about what has been a traumatic and life altering event. I accept that your plea of guilty has increased benefit in the context of the COVID-19 court backlog which, though now easing, was still a relevant consideration at the time your matters entered the court process. In the circumstances, I propose to allow a significant discount for your plea of guilty.
81Further, I note your cooperation with police in voluntarily attending the police station for interview. Though you gave some no comment responses, you also made several admissions when you had the right to remain silent.
82Both Ms Cidoni and Dr Albrecht considered you to be remorseful and distressed by the effect of your offending on the victim and those around you. Your distress at what you have done has been compounded by your intrinsic desire to help rather than harm others. You made comments to Dr Albrecht, Ms Cidoni, Ms Benton and Corrections which indicate you feel guilt for the physical and mental pain inflicted on Ms Walker, in particular for the injuries she has suffered.
83The Court also received a letter of apology from you dated 9 October 2023. In this letter you expressed deep regret over your 'awful decision' to drive in the manner you did on the day of the offending and the impact this decision has had on Ms Walker and her family. You said that you had three options, that was; to declare bankruptcy over the $32,000 amount sought by Ms Walker's insurance, however you negotiated the amount of $15,000 which you elected to pay upfront by taking out a personal loan. At your plea, your solicitor tendered a copy of an email from APIA dated 31 January 2023 which confirms this payment was made. Other comments you made echoed Dr Albrecht and Ms Cidoni's reports in stating that your offending contravened your innate values and that you had been working hard to atone for what you had done by reforming yourself and serving others.
84In sentencing you, I consider in your favour your early acceptance of responsibility and expressions of genuine remorse.
Prospects of rehabilitation
85Both Corrections and Dr Albrecht have assessed you as a medium risk of re‑offending. I note that you have completed numerous courses whilst in custody and have certainly made good use of your time on remand. Further, I accept you have significant family support from your mother, your current partner, and your son. In addition I have read your letter of apology which reveals what I consider to be genuine remorse and a real desire to change. Further, you are now 19 weeks into pregnancy which has heightened your motivation to address mental health and personal issues that led you to offend. You have undertaken some counselling the community via the Anna Centre and through Dean Curtis. You will have the support of the Restart program and I intend to provide a mechanism for you to have ongoing supervision and support from Corrections.
86Your lack of prior history, genuine remorse, and the presence of numerous protective factors such as family and work, combine in your case to satisfy me that your prospects of rehabilitation are good.
Sentencing principles
87General and specific deterrence and denunciation are prominent sentencing considerations for offending of this type.
88The law aims to address the significant road toll and carnage on the road by the courts sending a message to road users that if they drive when they are fatigued and affected by alcohol they will be severely punished. That said, in your case given the findings I have made with respect to your moral culpability, general deterrence should be moderated to some degree.
89In my view, specific deterrence is of less importance in this sentencing exercise. It is apparent from your numerous expressions of regret, your engagement in programs, your remorse, the injuries you sustained, your time in custody on remand and your absence of prior convictions that the seriousness of your offending has been brought home to you in a forceful way.
90I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have had regard to the current sentencing practices for negligently cause serious injury. I have also had regard to the principles of parsimony and proportionality.
91I have considered the sentencing statistics for negligently cause serious injury. I note the limitations with statistics in general, however I have considered them to have some utility in arriving at my ultimate disposition. Further, I have considered the comparable cases helpfully supplied by the prosecution. Each case obviously turns on its own facts. Cases where lengthy terms of imprisonment were imposed usually involved a high degree of negligence, high moral culpability of the offender and very serious injuries were inflicted. However as I have said, each case must be dealt with according to the factors unique to it.
Disposition
92Ms Kelsey, you have been assessed as suitable for a community correction order and I propose to order that you perform such an order in combination with a custodial term.
93In relation to the charge of negligently cause serious injury, you are convicted and sentenced to five months' imprisonment. In addition, you are placed on a community correction order for a period of two years and six months. The conditions of this community correction order include:
(a) 200 hours of unpaid community work over that two year, six month period;
(b) assessment and treatment for mental health;
(c) assessment and treatment for alcohol dependency;
(d) programs to reduce re-offending.
94I will offset 100 hours of community work against the treatment.
95In addition to the conditions I have imposed, there are standard conditions that you must comply with. The first and foremost is that you are not to commit any offences punishable by imprisonment during the two and a half year period of the community correction order. You need to report within two working days after your release to your nearest Corrections office, which is Ballarat Corrections.
96You are required to advise your supervising Corrections office of any change of address of where you are living or working within two clear working days, and it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission.
97Ms Kelsey, if you reoffend you will breach the correction order. You will also breach the correction order if you do not comply with the conditions I have imposed and the standard conditions I have just advised you about.
98I can only place you on a correction order if you agree. Do you understand what is involved in the community correction order?
99OFFENDER: I do.
100HER HONOUR: And do you agree to undertake such an order?
101OFFENDER: I do.
102HER HONOUR: In terms of your driver's licence the prosecution have sought a finding under s89C of the Sentencing Act that the offence was committed under the influence of alcohol which contributed to the offence. I intend to make such a finding.
103Further, pursuant to s89 of the Sentencing Act, having committed a serious motor vehicle offence I cancel your licence and disqualify you from obtaining another for a period of 24 months. I will back date this period to – I understand it was 4 March 2021, is that correct?
104MR CORDY: 4 January 2022, Your Honour.
105HER HONOUR: Sorry, okay, 4 January 2022.
106MR CORDY: Yes.
107HER HONOUR: Thanks – when you were served with a notice prohibiting you from driving.
108Pursuant to 6AAA of the Sentencing Act had you not pleaded guilty but been found guilty the sentence I would have imposed is two years' imprisonment with a 14 month non-parole period.
109In relation to the summary related offence of driving in excess of .05, you are convicted and fined $250. On this offence your licence is cancelled and you are disqualified from obtaining a licence for a period of 20 months which is to run concurrent.
110Now, it is 74 days agreed as pre–sentence detention?
111MR CORDY: Yes, Your Honour.
112HER HONOUR: Yes. So – – –
113MR CORDY: That licence disqualification should also be backdated, Your Honour, to 4 January 2022.
114HER HONOUR: Thanks, Mr Cordy. So in relation to the licence cancellation for the summary related offence, I order that that be backdated to 4 January 2022.
115Now in relation to pre–sentence detention, I order that you have served 74 days by way of pre–sentence detention and that will be reckoned as time already served under the sentence.
116The total sentence is therefore, five months' imprisonment, and a two and a half year community correction order.
117Ms Walker, I hope you understand the sentence I have imposed is not to devalue in any way what you have been through because I have no doubt this has been a life changing event for you and certainly has interrupted what was a very active and happy life that you had and it no doubt has caused you a good deal of misery. So I do fully acknowledge that and take that into account.
118Ms Kelsey, I hope that you are able to make use of the extra time that you have got in custody and that you participate in the programs I have given you by way of the community correction order.
119I do not think we need to get you to sign the order given that you have acknowledged that you will abide by the conditions of the order, or that you understand it and that you agree to do it. So what we will do though is send a copy to Mr Morgan and Corrections will also get a copy. So when you get released you have two report within two working days of your release to Corrections, okay.
120OFFENDER: Okay.
121HER HONOUR: All right. So thanks everyone, thanks, Mr Morgan and Mr Cordy, for your very thorough submissions. They were both of great assistance to the court.
122MR CORDY: As Your Honour pleases.
123MR MORGAN: Thank you, Your Honour.
124HER HONOUR: So we will adjourn the court, thanks.
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