Director of Public Prosecutions v Kerrigan
[2017] VCC 1551
•18 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-01123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MATTHEW PAUL KERRIGAN |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2017 | |
DATE OF SENTENCE: | 18 October 2017 | |
CASE MAY BE CITED AS: | DPP v Kerrigan | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1551 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Milesi | Mr E Thompson |
| For the Accused | Mr I. Crisp |
HIS HONOUR:
1 Matthew Paul Kerrigan, you have pleaded guilty to one charge of negligently causing serious injury and one charge of possession of a drug of dependence. In addition you have pleaded guilty to a number of related summary offences, they are driving a motor vehicle under the influence of a drug, fraudulently altering a prescription, three charges of attempting to obtain Oxycodone by fraudulent prescription, and 13 charges of making false representations to medical practitioners in order to obtain prescriptions for Oxycodone and Diazepam.
2 The facts of your offending are set out in Exhibit A of the prosecution plea opening. I incorporate that document into these reasons for sentence and I sentence you on the basis of the facts set out therein. Your counsel conceded that I could treat that document as an agreed statement of fact.
3 Very briefly stated, in late May to early July of 2016 you attended at various doctors in Sunbury, Romsey and Lancefield to obtain prescriptions for both Diazepam and Oxycodone. You failed to tell each doctor that you had previously been prescribed such medication. You fraudulently altered one of the prescriptions you so obtained and sought to use it on three occasions to obtain Oxycodone.
4 On 4 July 2016 you had taken a cocktail of prescription drugs, Diazepam, Nordiazepam, Temazepam, Oxazepam, Oxycodone and Citalopram. At about 5.15 pm that day you drove your Holden utility east on Dalrymple Road, Sunbury. You were under the influence of the prescription drugs you had taken. You acknowledge that you were incapable of having proper control of your motor vehicle.
5 As your vehicle approached Riddle Road in an 80 kilometre speed zone, you were travelling at 102 kilometres per hour. You crossed onto the wrong side of the road and collided head on with a Mazda sedan being driven west on Dalrymple Road by Bethany Wragg. Ms Wragg sustained serious life threatening injuries as a consequence including severe traumatic brain injury, lung contusions, knee lacerations and ulnar nerve neuropathy. She was in intensive care for six weeks in an induced coma. She was subsequently transferred to a rehabilitation unit for five months. She suffers severe cognitive impairment and although she has subsequently made some improvement, still suffers from impaired cognitive and physical capacity. She is unable to live a normal life. She requires constant support and supervision. Her family has been devastated by her injuries. Her father read to the court her mother's victim impact statement, Exhibit B. Her parents and three siblings' lives have been changed forever. They understandably experience anxiety, a sense of loss and ongoing emotional strain. Her mother has had to leave employment to look after Bethany who had previously been a vibrant, happy 21 year old with sporting and musical talents about to complete her nursing degree. I take the contents of the victim impact statement into account in sentencing you.
6 You have admitted a prior criminal record. In 2003 you received a traffic infringement notice for speeding. In 2004 you received another traffic infringement notice for exceeding prescribed concentration of alcohol. In January 2004 you appeared at Broadmeadows Magistrates' Court on various traffic matters and lost your licence for a month. In June of 2004 you were back before the Bacchus Marsh Magistrates' Court on a speeding charge, other minor offences and had your licence cancelled.
7 Later that same year, that is in September of 2004, you were before the Broadmeadows Magistrates' Court on charges of driving while your licence was suspended and driving without a registration label and you were fined. In 2011 you received a traffic infringement notice for exceeding the speed limit by more than 35 kilometres per hour. In 2011 on 31 March you were before the Broadmeadows Magistrates' Court on a charge of having exceeded the prescribed concentration of alcohol in your blood with a blood alcohol limit reading of .091. And apart from being fined you lost your licence for 18 months.
8 In 2012 on 26 June you were before the Sunshine Magistrates' Court on driving while disqualified, stating a false name, and some other minor offences. Again lost your licence and fined $1,000. In September 2012 you were back at Sunshine for driving while disqualified yet again and fined. Finally on 21 November 2014 you were before the Broadmeadows Magistrates' Court on a charge of unlicensed driving and lost your licence for a month.
9 As a result of the motor car collision you sustained several injuries. You suffered a fractured sternum, broken tailbone, you re-broke your fractured left index finger, you have apparently perforated your bowel and you suffered from amnesia and memory disturbances.
10 I turn to matters personal to you. You are now 32 years of age being born on 18 December 1984. Your history is set out in Exhibit 1, your counsel's outline of submissions, and in the psychological report of Alison Hicks, Exhibit 2, together with the psychiatric report of Dr Das, Exhibit 3. You grew up in a supportive family, the middle of three boys. You were educated to Year 10 level before then being expelled from school. You completed a carpentry apprenticeship and worked in the building industry thereafter. You were a site manager with Tribeca Homes before setting up your own business for some five years. You apparently began using drugs and abusing alcohol and that business failed. You developed depression and anxiety and started abusing prescription drugs. Of recent times you have worked as a site manager for Infinity Constructions. You have two children now eight and nearly six, your relationship with Elise commenced in 2009 and terminated two years ago. She continues to support you and gave evidence at your plea.
11 The psychological report of Ms Hicks, Exhibit 2, raises some concerns as to your psychological state. Ms Hicks states:
"It is evident through his family dynamics and interactions that Mr Kerrigan has developed a pervasive pattern of instability in his interpersonal relationships and self-image. He has failed to develop the ability to form deep, meaningful emotional connections and to articulate his emotional needs. He often feels victimised and becomes highly defensive towards people he interacts with. He shows recurring patterns of difficulty in taking responsibility for his actions often blaming others. Mr Kerrigan experiences intense overwhelming emotions which he is not able to communicate in an assertive and effective manner, resulting in an aggressive communication style. He resorts to violent acts and impulsive risk taking behaviour such as driving under the influence. The coping skills that Mr Kerrigan employs once in a heightened state of arousal include polysubstance use, suicidal ideation and threats, distraction and withdrawal. At times he has expressed concern for the victim's well-being which could be interpreted as the beginnings of remorse. He lacks the complete insight to show an empathetic level of remorse that would be typically expected."
12 Ms Hicks' diagnosis is that you suffer from alcohol use disorder, in early remission, sedative and hypnotic and anxiolytic use disorder, opiate use disorder. She says that you have an antipersonality disorder and borderline personality disorder.
13
You appear however to have made some psychological progress of recent times. For six weeks between July and September this year, you were an
in-patient at the Melbourne Clinic and treated for post-traumatic stress disorder, major depressive disorder, opiate addiction, and benzodiazepine addiction. You were able completely to cease use of opiate medication and increase your antidepressant medication. Dr Camilleri reports in Exhibit 5, that you made significant improvement whilst at the clinic.
14 Your ex-partner Elise Krywan gave evidence at your plea confirming Dr Camilleri's view. She described your depression subsequent to the motor vehicle collision and said that after your discharge from the Melbourne Clinic, you were much improved. She confirmed your cessation of opiate pills and said you were physically better and coping better. She described your genuine remorse for the consequences of your crime. Her uncle, Shane Lamb also gave evidence of the remorse you have expressed for Ms Wragg's injuries.
15 Your counsel relied on several factors in mitigation of sentence. Firstly, your pleas of guilty. I accept that your plea was indicated at an early stage and by pleading guilty you have spared the community the cost of a criminal trial and the witnesses and family of your victim the need to ensure a criminal trial. You are entitled to a reduction to the sentence I would otherwise impose to reflect those pleas of guilty. Further, as your pleas are accompanied by what I accept is genuine remorse for your conduct, you are entitled to a substantial reduction to the sentence I would otherwise impose. I accept that you have a number of personality traits and psychological issues that will make your time in custody more onerous for you than it would for someone without your issues. And I take that hardship into account in sentencing you.
16
You have had a solid work history and have the support of your family and
ex-partner. You have taken large steps to improve your physical and psychological health. Despite your concerning prior criminal history, it is my view that you have reasonable prospects for future rehabilitation.
17 Mr Crisp urged the court to impose a combination sentence, that is a term of imprisonment and a Community Corrections Order. He accepted however in discussion that such a disposition is simply not open for your offending. He then urged the court to set a longer than normal parole period to reflect your prospects for rehabilitation.
18 Your offending is extremely serious. You drove a motor vehicle under the influence of prescription drugs. You had been illegally obtaining such drugs for such time leading up to the collision. You failed to keep a proper look out, drove over the speed limit and failed to keep your vehicle on the correct side of the road. The consequences of your crime are horrendous. You have a concerning and relevant prior criminal history. Your counsel properly conceded the seriousness of your offending.
19 I am obliged to give effect to all of the matters contained in s.5 of the Sentencing Act. General deterrence is an important sentencing consideration in this case. Those who drive in the way you did need to know that stern sentences will be imposed. In addition, your driving history demonstrates that you need to be specifically deterred from re-offending in the future. I must express the community's denunciation of your offending. As I said during your plea, I regard your conduct as an upper mid-level of the example of the offence of negligently causing serious injury. I assess the seriousness of your crime and your culpability accordingly.
20 The maximum penalty for the offence of negligently causing serious injury is 10 years' imprisonment. This clearly indicates how seriously parliament views behaviour such as yours. The community will not tolerate human lives being ruined by acts of gross negligence of the sort you engaged in. Driving motor vehicles under the influence of drugs is the subject of an extensive publicity campaign. Everyone knows the dangers that can occur when drugs and sometimes alcohol and motor cars are mixed. The community expects that those who do seriously injure others whilst under the influence of drugs and driving negligently will be sternly punished. This case is a tragedy for all concerned. It is a tragedy for your family who are going to watch you spend time in gaol, and it is a tragedy as I have said for Bethany Wragg and her family.
21 The Court of Appeal has provided some guidance to this court in the assessment of the seriousness of your offending in the case of Gorladenchearau [2011] VSCA 432. At paragraph 25 of that judgment Maxwell P said,
'"As this court pointed out in Towle, the sentencing court's assessment of the dangerousness of a person's driving in informed by the extent of the risk which it created. The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which will result if it does. What was said by this Court in De Montero is pertinent. The degree of risk of danger arising from the driving informs the characterisation of the driving. That is to say the degree of turpitude of the driving will vary according to the gravity of the risk created by the driving.'"
22 Clearly with your excessive speed, drug use and negligent driving, your culpability must be seen as I said as upper mid-level range. Everyone on that road was put at extreme risk by your driving. But for your demonstrated remorse and your pleas of guilty and the personal circumstances to which I have referred, you would have received a substantially higher sentence than the sentence I am about to impose. The collision has changed many lives and the lives of many people. The ripple effect of your crime is horrendous. Many people are hurt physically and emotionally by gross negligent conduct. The Court of Appeal provided further guidance to this court in the decision of Harrison and Rigogiannos [2015] VSCA 349. The court said at paragraph 2:
"In the hierarchy of driving offences negligently causing serious injury sits above dangerous driving causing seriousness and below dangerous driving causing death. The maximum penalty is 10 years' imprisonment. It was increased from five years' imprisonment in 2008."
23 In the cases considered, the conduct fell within the upper range of seriousness for that category of offending though short of the worst imaginable case. I pause to say those cases involved a higher level of culpability than yours. In those cases each of the appellants drove with a high degree of negligence with a blood alcohol reading greatly in excess of the legal limit and at a speed far exceeding the applicable limit. The victims in each case suffered extensively and profoundly serious injury. The court had regard to the fact that having pleaded guilty, each appellant was entitled to be sentenced in accordance with current sentencing practices and the appeal was determined on that basis.
24 The court said at paragraph 12:
"We have concluded that current sentencing practices for offences at the upper end of seriousness is inadequate and needs to be uplifted. Inevitably such a change will have a flow-on effect on sentencing for mid-range and low-range offences of negligently causing serious injury."
25 After analysis of other decisions relating to cases of a similar kind, the court said:
"In our view the comparable cases set out above do not indicate that the sentence here imposed was outside the range reasonably available to the sentencing judge. In that case sentences of four years had been imposed. The cases referred to demonstrate that offences of negligently causing serious injury by driving where the degree of negligent falls within the upper range of seriousness attracts sentences of around four years' imprisonment. The sentence imposed could not be said to be manifestly excessive. It was consistent with current sentencing practices and fell well within a sound exercise of the sentencing discretion. In our view the objective gravity of this offence was such that if the sentencing judge had not been constrained by current sentencing practices, the sentence imposed would have been quite inadequate."
26 Dealing with the adequacy of current sentencing practices, the Court of Appeal said at paragraph 88:
"The features of negligently causing serious driving by driving which the present case exemplify - extreme negligence, a high risk of collision and the consequent risk of very serious injury - are all too common. Often however sentences have not been higher, and may have been lower, than those imposed upon the appellants in the case before them. That circumstance together with the increase of the maximum penalty for the offence, raises the question whether the sentences imposed for the most serious instances of negligently causing serious injury are disproportionately low, and fail to give effect to the legislative intent as reflected in the maximum penalty.
A motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold. To punish the offender and to deter drivers from driving irresponsibly. The maximum penalty fixed by parliament for an offender is a key indicator of objective seriousness."
27 At paragraph 113 the court continued.
"In our view, current sentences for negligently cause serious injury by driving does not reflect the increased maximum penalty for the offence. In our view current sentencing practices for negligently causing serious injury in the upper category of this offence is plainly inadequate. The increase of a maximum necessarily implies that there should be some increase in the sentences actually imposed. Judges should no longer remain fettered by previous pattern of sentencing. They must give effect to parliament's decision to increase the maximum penalty which provides an indication as to the seriousness on which it should be viewed. Sentencing courts should no longer consider themselves constrained by existing sentencing practices. The sentence imposed in the cases to which we have referred should not be viewed as setting any limit on the sentence that maybe imposed in such a case. In particular the court should not treat four years as a ceiling for this offence. Sentences for mid-range and lower end instances of negligently causing serious injury by driving will also need to increase in order to obtain appropriate sentencing relativities. By way of guidance, had the sentencing court in the present case not been constrained by current sentencing practices, we consider that a sentence of six or seven years would have well been within range given the seriousness of the offending."
28 Last week the High Court determined that the approach of the Victorian Court of Appeal giving emphasis to current sentencing practices was erroneous. The case of Dalgliesh [2017] HCA p.41. This court of course has previously been bound to follow the Court of Appeal approach and have regard to current sentencing practices established by sentences imposed in other cases. The High Court said at paragraphs 8 and 9 of its decision:
"The appeal to this court is concerned with the significance accorded by the Court of Appeal to consideration referred to in s.5(2)(b) of the Sentencing Act in determining the question before it."
29 Section 5(2)(b) is current sentencing practices.
"In this regard it may be said at the outset that the terms of 5(2) are clear such that s.5(2)(b) states the fact that it must be taken into account in sentencing an offender. That fact is only one factor and it is not said to be the controlling factor. The Court of Appeal was correct to conclude that current sentencing practice did not reflect the objective gravity of the offences. The Court of Appeal's acceptance that the range so indicated must apply to the present case was not warranted by need for reasonable consistency in the administration of criminal justice. This is because the range was seen to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence and the moral culpability of the offender. The view of the Court of Appeal that this amounted to an error of principle was clearly correct. The High Court said the decision of Ashdown v The Queen was founded on the assumption that if an offender pleads guilty in the expectation that he or she would be sentenced consistently with current sentencing practices. The Court of Appeal's concern to avoid this perceived unfairness to the respondent did not warrant the adoption of the bifurcated approach taken by the court. The only expectation which an offender can have at sentence is the imposition of a just sentence according to law."
30 The High Court said at paragraph 84 that the earlier decisions of the Court of Appeal in Victoria binding this court to rely upon current sentencing practices should not be followed.
31 It follows that the range of sentences previously determined in this State for negligently causing serious injury are just one factor that needs to be considered in arriving at an appropriate sentence and is not indicative of what the sentence should be. The proper sentence for the top of the range negligently causing serious injury offence is about seven years as I referred to previously. Your offences is not as serious as the cases referred to, however is nonetheless an upper mid-range example of the offence. I have had regard to the prior sentences and current sentencing practices but having regard to all the factors in this case have concluded that nothing other than a substantial term of imprisonment can be imposed in this case.
32 The sentences of the court are.
33 On Charge 1, the charge of negligently causing serious injury you are sentence to be imprisoned for five years.
34 On Charge 2, the charge of possession of a drug of dependence you are sentenced to be imprisoned for one month.
35 On the summary charges, Charge 5, driving under the influence of a drug, you are sentenced to be imprisoned for two months.
36 On Charge 7, fraudulently altering a prescription drug you are sentenced to be imprisoned for one month.
37 On Charges 8 and 9, attempting to obtain Oxycodone from a pharmacist, you are sentenced to an aggregate term of one month.
38 On Charges 10-24, the 13 charges of falsely obtaining a prescription for a drug of dependence, you are sentenced to an aggregate sentence of three months.
39 The sentences imposed on Charge 2 and all of the summary charges are to be served concurrently. That is an effective three months' imprisonment to be served cumulatively upon the sentence imposed on Charge 1. That is a total effective sentence of five years and three months. I order that you serve three years and three months of that sentence before being eligible for parole. I declare five days of the sentence I have just imposed has already been served by way of pre-sentence detention.
40
I make an order declaring that Charge 1 was committed under the influence of drugs contributing to the offence pursuant to s.89C of the Sentencing Act 1991. On Charge 1 and on the summary Charge 5 of driving under the influence of a drug, any licence you have to drive a motor vehicle is cancelled and you are disqualified from driving a motor vehicle for six years from today's date.
41 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed a total effective sentence of six years and six months with a non-parole period of four years and nine months.
42 I make an order pursuant to s.464 of the Crimes Act for you to provide a forensic sample for the DNA database. I am obliged to inform you they are entitled to use reasonable force to obtain the sample so it is in your interests to cooperate. And I think I make a forfeiture order sought by the Crown as well.
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MR MILESI: Thank you Your Honour.
HIS HONOUR: Any other orders required?
MR CRISP: No Your Honour.
MR MILESI: No sir.
HIS HONOUR: Would you remove the prisoner please. I'll come back when the next court is ready.
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