Director of Public Prosecutions v Knight

[2019] VCC 704

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01065

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILLIE KNIGHT

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2018; 13 February 2019, 11 April 2019
DATE OF SENTENCE:	17 May 2019
CASE MAY BE CITED AS:	DPP v Knight
MEDIUM NEUTRAL CITATION:	[2019] VCC 704

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of Guilty; Negligently causing serious injury: Learner driver without licensed driver speeding and weaving; Use of drugs; young offender; Complex mental health and personality issues; Effect on rehabilitation of homelessness

Legislation Cited:  Sentencing Act 1991 s6AAA: Crimes Act 1958 s319(1A)

Cases Cited:R v Verdins; [2005] VSC 479: DPP V Sutic [2018] VSCA 246

Sentence:  9 months imprisonment followed by 3 year CCO

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M Mahady (On Plea) Ms B. Moleta ( On Sentence)	Solicitor for the DPP
For the Accused	Ms D. Caruso	Chester Metcalf & Co

HER HONOUR:

1Millie Knight, you have pleaded guilty to a charge of negligently causing serious injury to Liam Henkel. 

2The maximum penalty for that offence is 10 years imprisonment.  You will not be receiving anywhere near that long a sentence, but I must take it into account as reflecting the objective seriousness of the potential for this charge.

3This charge arises from your driving of a vehicle on the morning of 2 June 2016, while your then friend, Mr Liam Henkel, was in the vehicle unrestrained in the rear seat. 

4At approximately 6.20 am, you drove a Ford Territory vehicle to the Plenty Road entry to the Metropolitan Ring Road in Bundoora. The traffic was moderate to heavy.  You were observed to drive the vehicle erratically and at high speeds on the “on ramp” and travelled in the emergency lane to overtake other vehicles.  You entered the Ring Road at high speed and weaved between other vehicles, at times braking heavily and swerving, causing other road users to have to move out of the way to avoid being hit by the vehicle you were driving. Towards the end of the “on ramp” merging lane, you lost control of the vehicle and swerved to the left.  The vehicle travelled in an anticlockwise direction as it slid off the road to the left, continuing across the embankment and collided with a large tree.  The impact caused airbags to be deployed inside the front of the vehicle, and there was very extensive damage and distortion to the vehicle, indicating very forceful impact. 

5It was a stolen vehicle, but that is not the subject of a charge against you.

6Your erratic driving was observed by several other drivers before the crash.  You almost collided with a white vehicle.  On seeing your vehicle crash, several other road users pulled over and came to your aid and also contacted 000.  You were found by those witnesses in the driver's seat, conscious and highly distressed and screaming.  You mentioned that Mr Henkel was a passenger, and witnesses opened the back driver's side passenger door and found him lying partially in the rear seats, unconscious and apparently naked from the waist down.

7Emergency Services arrived at the scene soon afterwards.  Paramedics and Metropolitan Fire Brigade members had to remove Mr Henkel from the vehicle, and he was intubated to allow him to breathe, before being transferred by ambulance to hospital in a critical condition.

8Investigation by the Major Collision Investigation Unit found the speedometer of the vehicle showing a speed of 84 to 85 kilometres.  The ignition key was snapped off in the ignition. Analysis by a collision reconstruction expert with Victoria Police indicates that the vehicle was travelling in the left lane at about 103 kilometres per hour, when it first commenced to yaw to the left, due to driver steering input causing loss of vehicle control.  It is estimated it was travelling at about 83 kilometres when it impacted with the tree.  This was in an 80 kilometres per hour speed zone. The opinion of the collision reconstruction expert was that the collision was caused by over steer by the driver- that was you.  Subsequent mechanical examination indicated that the vehicle was probably in a reasonable condition prior to the collision, and did not have any mechanical faults that may have caused or contributed to the collision.

9Mr Henkel was conveyed by ambulance to the Royal Melbourne Hospital where he was admitted to intensive care, and diagnosed as having suffered a severe traumatic brain injury, haemorrhaging, a broken jaw and other injuries.  He was immediately intubated and placed into an induced coma, and remained intubated for six days until his condition improved slightly and he was brought out of the induced coma.  He underwent surgery then to his broken jaw.  On 16 June, that is exactly two weeks later, he was admitted to the Epworth Hospital Brain Injury Rehabilitation Unit to continue treatment. On his admission there he was suffering from post-traumatic amnesia, which lasted for a period of thirty days, and a nerve injury to his left arm.  He was assessed as having suffered a serious brain injury which severely affected his cognitive abilities, including speech, information processing and memory retention.  He remained an inpatient at that rehabilitation unit for a further six weeks. 

10He was then discharged into an Epworth Hospital Transitional Living Centre to receive further treatment and assistance in day to day activities.  At that stage, it was reported that as a result of his injuries sustained in the collision, he required ongoing treatment. However, Mr Henkel was discharged from the Transitional Living Centre on 10 August 2016, due to his behaviour in not following the rules.  There is no further information as to his ongoing rehabilitation needs, nor as to his current health and the status of his injuries.  I was told during the hearing that Mr Henkel has refused to cooperate by submitting to further medical examination.  There has been no victim impact statement provided by him.

11In sentencing you, I must assess the objective seriousness of this offending and your subjective role and personal culpability.  From the description of your driving and the findings of the investigation, there can be no doubt that objectively your driving would meet the criteria for negligent conduct and also no doubt that it caused serious injury to Mr Henkel.  It at least caused him life threatening injury.

12The charge against you is of negligently causing serious injury for which I have said, the maximum penalty is ten years imprisonment. That maximum penalty reflects the objective seriousness with which Parliament regards offences of a nature that come within this charge. This charge and its maximum penalty are not confined to circumstances involving driving or negligence in driving. Indeed, the charge of dangerous driving causing serious injury, under s.319(1A) of the Crimes Act, has a maximum penalty half as high - that is, of five years imprisonment.  I was told that there was considerable negotiation as to the appropriate charge and you have now pleaded guilty to the one carrying the greater maximum penalty, so I must sentence you with that maximum in mind.

13The speed, overtaking in the emergency lane and weaving between vehicles, all being the observations of other drivers, as you drove, reflects a willingness to place other road users in danger.  Amongst the little you apparently recall, you say you recall almost colliding with a white vehicle.  The evidence of the car spinning out of control and colliding with considerable force against a tree, reflects the serious nature of your conduct and its potential for harm.

14At the time you held a learner's permit, but did not have a licence driver beside you.  While there is no evidence as to exactly what drugs were in your system, nor their effect on you at the time, you admit that you had been using drugs heavily in the days before this incident, both methamphetamine and GHB, and it is implicit from medical reports on you, that you were regarded as addicted to such drugs and underwent detoxification through being hospitalised.

15The severity of the injuries you caused and their consequences are also relevant to the seriousness of the offending.  Your counsel submitted that as there is no evidence of Mr Henkel's condition or treatment after August 2016, I could make no finding that he suffers any ongoing consequences from the injuries he sustained in this incident, nor that he has any need for ongoing or future treatment.

16It was also submitted that I should conclude that he was no longer suffering any cognitive impairment from the brain injury by October 2016 when he was interviewed by police, without an independent third person present and as police did not have a forensic medical examiner assess him before that interview. Further, on 7 August 2017, he was sentenced to a term of imprisonment of 185 days and a Community Corrections Order, which it was submitted does not reflect any ongoing impairment restricting his ability to complete community work.  It is submitted on your behalf that the lack of evidence of ongoing impairment or need for treatment lessens the objective seriousness of this offending.

17The prosecution concedes that it has no evidence of Mr Henkel's ongoing treatment after August 2016, nor of his current or the likely future impairment, if any, as a result of the injuries he suffered in this collision.  I can therefore make no finding of the level of any ongoing impairment. 

18In my view, the description of the severity of the initial injuries, the immediate need for intubation and induced coma, followed by surgery, further time in hospital, then six weeks of inpatient rehabilitation and then discharge into a transitional living environment, are sufficient evidence for me to conclude beyond reasonable doubt, that Mr Henkel had not fully recovered when he was discharged from the Transitional Living Centre.

19Further, although he was apparently fit to be interviewed by police without an independent third person present, some two months after discharge from the Transitional Living Centre, that does not mean that he was fully recovered from the effects of his injuries.  Nor does the fact of a sentence including a community corrections order with unpaid work as a condition, mean that he had no physical or cognitive impairments to the performance of community work, once that order started. If he had been very considerably impaired, such a condition may not have been imposed, but it does not in my view establish the likelihood that he had no residual impairment from his injuries at that stage.  It is not unusual for Community Corrections officers to obtain a medical report and decide on suitable work placements based on restrictions imposed by doctors.

20As there is no medical assessment nor account of his condition after August 2016, I cannot make any specific findings as to ongoing impairment or need for treatment.  I am satisfied, however, that he had not fully recovered when discharged from the Transitional Living Centre, and that the nature and extent of the initial injuries, made it likely that there would have been some ongoing impairment and consequences for a considerable period of time afterwards.

21You, yourself suffered injury in the collision.  You were diagnosed with post-traumatic amnesia of about nine days duration, whether solely from a head injury sustained in the collision or contributed to by your drug use.  You claim limited memory of what exactly occurred.  You admit to driving, and told police that you believed Mr Henkel had overdosed and that you moved him to the backseat of the car and were attempting to drive him to hospital.

22For how long or how far you had driven before the crash is unknown.  Why you chose to drive rather than call for help is unexplained.  Examination of your mobile phone shows that you made no attempt to call 000, nor make any other emergency call.  You were not licenced to drive at the time, having only a learner's permit and no licenced adult sitting beside you.

23When interviewed by police on 23 August, being more than two months later, you said that you knew that the Ford Territory you were driving had been stolen, and that it had been in Mr Henkel's possession for several days.  You said that the night prior to the collision you had been with Henkel and several friends of his in that vehicle, and you were dropped in the Kingsbury area.  Then at some point in the early hours of 2 June, you were picked up by Henkel in the Ford Territory.  At what point you say he appeared to overdose and pass out in the driver's seat is unclear.

24It is clear from the description of witnesses and the collision reconstruction experts, that you lost control of the vehicle, having been driving at speed and trying to overtake vehicles, including on their left in an emergency lane.  You apparently over steered the vehicle causing it to leave the road and collide with a tree.  Another aspect of your negligence was that you were driving with a passenger who was not wearing a seatbelt.

25In light of your apparent lack of memory of what occurred, it is not possible for me to determine how much your lack of driving experience contributed, nor the effect of drugs on you at the time.  But neither of those circumstances could be an excuse, because you must have known that you ought not to have attempted to drive in either of those circumstances.

26As for the reason given to police for driving in such circumstances, I have considerable doubt about the reliability of your claim to be trying to urgently get Mr Henkel to hospital, given your apparent amnesia as to other details, and also, in light of a variation on that account given more recently when assessed by Dr Triglia, namely that you might have been taking him to friends. Even were I to accept your explanation to police, that is of trying to take him to hospital, the circumstances do not amount to necessity, because there is no evidence that you even attempted to obtain assistance for Mr Henkel by calling Emergency Services before you got into the driver's seat and proceeded to drive at great speed amongst other traffic.

27However, I also note that there is nothing to indicate that you did something deliberately dangerous, such as deliberately crossing to the wrong side of the road, nor that you were showing off, or racing with other cars, or those types of situations.  I regard your personal culpability as considerably lower than for many instances of this offence, even instances committed in the course of driving and I note the instance in the case of Sutic, to which I will refer later, which I regard as more serious, and your role as less culpable than the offender in that case.

28Objectively, it was in my view in the mid-range of negligent driving, and with an unconscious, unrestrained person on the rear seat,  there was clear prospect of serious injury being caused, which indeed it was.  The definition of serious injury requires injuries in combination either to endanger life or to be substantial and protracted. In my view, the description of the injuries and the treatment required, while Mr Henkel was conforming, places this instance well above the lower range for a serious injury, under both parts of the definition of serious injury, even though it is not known how protracted the effects of the injuries were. 

29Taking into account both the objective seriousness and your personal culpability, I regard this instance of this offence as in the mid-range for offences of this nature.

30You have pleaded guilty to this charge and are entitled to some leniency for doing so.  Your plea was entered on the day fixed for the committal hearing, but before any witnesses were called, and it had not been intended to require Mr Henkel to attend for cross-examination.  Although not at the earliest possible opportunity, I accept that it had long before that date been indicated that you would plead guilty to an appropriate charge, as to which there had been ongoing negotiation.

31Your plea of guilty entitles you to some leniency for saving the community the time and cost of disputed hearings, and saving witnesses the inconvenience and stress of giving evidence.  It reflects that you accept responsibility for your offending.  It is also some objective sign of remorse.  Although there are some remarks in the materials before me to the effect that you did not show much insight into the impact of your offending, and continued to minimise your fault, in light of the evidence about your cognitive impairment after the accident, psychiatric and personality disturbances, I find that it is likely that your reactions have been influenced by your personality and psychiatric and cognitive limitations and in my view, that should not be regarded as detracting from the remorse reflected by the plea of guilty.  You have, I note at times, expressed feelings of guilt and distress about the injuries you caused Mr Henkel. 

32When I impose sentence, I shall state what your sentence would have been, had you not pleaded guilty. 

33I turn now to your personal circumstances.  You are now aged 23.  You were 20 at the time of this offending. 

34Your personal history has been complicated and difficult in several ways. 

35I am told that your childhood was tumultuous and traumatic.  I gather that your father did not live with your mother by the time of your birth, so there was never a close knit family involving both your parents. Apparently both of your parents abused alcohol, and your mother also had significant mental illness, leading to you being neglected from an early age, and you described to Dr Triglia you believing that was from about age three to four when your mother was with a new partner. 

36There were numerous reports to the Department of Health and Human Services over the course of your childhood, including as to your behaviour and incidents at school.  Some extracts from those were tendered before me and indicate that by age 12, you were living with your maternal grandmother, with whom you had always spent weekends, but there was ongoing dispute or discussion and disagreement about with whom you should be living. There were incidents at school, including some provoked by your mother ringing other families and making threats and there was antagonism between your grandmother and mother.  Also, during your first pregnancy while you were still under 18, there was concern that you should not live with the baby's father's family.

37I was told that it is alleged that when you were aged three or four years old, you were sexually abused by your mother's then partner.  You told Dr Triglia that you heard that for the first time in court during the plea hearing before me, in that that was contained in Department of Health and Human Services records.  However, there are not specifics of that in the extracts that I have seen. I do note that Associate Professor Walterfang must have had that allegation as part of your history when he was treating you from after the accident. 

38From about the age of 12, you were mainly raised by your maternal grandmother and she remains a supportive figure in your life, although you have been unable to live with her over more recent years, because it is a condition of her having custody of your older child, that you not live with them.

39Your relationship with your mother was apparently always poo, and you have had no interaction with her for a long while.  Although you apparently have a reasonably good relationship with your father, previous attempts to live with him have failed. 

40I am told that you ceased attending school when aged about 12, only a few weeks into your Year 8.  This apparently related to your mother attending the school intoxicated and causing you embarrassment.  You have had no further schooling or formal education, and although it is not really touched upon in most of the reports I have read, if there is any scope for you receiving some further formal education, it would in my view be helpful, because the age of 12 is too young for people in our modern community to cease schooling.

41I take into account, as I have already referred to, that you gave birth to your first child when you were aged 16.  I am informed that you have never engaged in employment. 

42You appeared before the Children's Court in May 2010 when you would have been, on my calculation, aged 14, or possibly 15.  You were charged with theft of a motor vehicle, intentionally causing injury, assault, burglary, theft and unlicensed driving, for all or which you were placed on probation for a year.  I am told that you successfully completed that probation. I am also told that those charges arose from you having taken and driven your grandmother's car, with friends, and then got into a confrontation and altercation. 

43While that prior offending is not to your credit, it was some six years before the offence which brings you before me, and some nine years ago now. In the context of your tumultuous history, I do not regard that single appearance before the Children's Court as significant.  I consider that despite your unstable and problematical personal history, you do not appear to have a sustained, let alone entrenched, criminal history, and that is a positive indicator for your prospects of rehabilitation.

44While not the subject of criminal charges over the years, I am told that you began using illegal drugs from a very young age and indeed, alcohol also.  You have made several attempts at rehabilitation, although they have ended while you have been in the community, in your relapsing into drug use.  You managed to refrain from drug use during two pregnancies, which I take to reflect that if your motivation is high enough, you can successfully stay clear of such drugs. You are said to have been using heavily at the time of this offending, particularly GHB, as well as methylamphetamine over the preceding twelve months, but in particular, the preceding six months, and that that was occurring in the context that you were leading a rather chaotic life.  You were taking drugs in the company of those with whom you were sharing accommodation, and mixing and that included with Mr Henkel.

45Following the collision, you were hospitalised for many weeks - At first for physical injuries and then, as I will move to shortly, for psychiatric treatment.  Throughout the hospitalisation, you were effectively forced to detoxify, and your substance abuse problems were addressed during the psychiatric treatment I am told that you managed to stay drug free, apart from prescribed medications, for approximately the next eighteen months to two years, until homelessness last September tipped you back into drug use. 

46You are the mother of two children, both of whom are subject to Department of Human Services arrangements, and have not lived with you since well prior to this offending. You have a son now aged six, who attends a special school for autistic children and is in the permanent custody of your grandmother.  That is the grandmother who helped raise you.  You see him, subject to supervision.  It is a condition of the guardianship order that you not live with them.  You also have a daughter, now aged four, who lives with her father's family, and it is some years I gather since you have seen her. I am told your relationship with the father of your daughter was toxic and I gather she lives with his family and not with him alone. 

47You also have a long history of mental health problems.  You were first treated at the age of 12 for depression and anxiety.  You were treated with medication for some years, and had a history of a significant personality disorder, but without admission to psychiatric facilities.

48As a result of the collision on 2 June 2016, you yourself suffered a head injury, resulting in amnesia, and you were admitted to the Epworth Acquired Brain Injury Unit.  While there, you were first seen by Associate Professor Walterfang, a neuropsychiatrist.  He reports that you were felt to have a mild acquired brain injury when assessed on admission to hospital.  A CT brain scan was normal, however, you had nasal and maxillary fractures. When he first saw you, you were still in a post-traumatic amnesia.  He noted that although you had some self-harming ideas prior to his seeing you, you had none when he saw you.  He adjusted and added to your medication for your depressed mood and sleep, at that stage.  He saw you regularly over the next three weeks, and as your physical rehabilitation came to a close, you continued to present with ongoing depression and very high levels of anxiety, with a flare - up in chronic self-harming thoughts.

49You were transferred to the Melbourne Clinic for ongoing inpatient psychiatric care.  Ultimately after a lengthy period on a range psychotropic medications, under the care of Dr Tan there, you were returned to treatment with Professor Walterfang, and that continued until the end of October 2017. 

50Professor Walterfang reports that over the following twelve months, you struggled with two key issues - lack of outreach services and significantly unstable housing.  You continued on medication for depression and anxiety and were attending a psychologist with the aim of assisting with your anxiety and post-traumatic symptoms.  Professor Walterfang considered that your depression and anxiety had worsened as a result of the motor vehicle collision and your mild acquired brain injury.  There was also a reactivation of past trauma as a result of your significantly elevated levels of anxiety.

51Further, in June 2017, whilst staying in a motel as a result of your lack of stable accommodation, you were allegedly sexually assaulted.  That destabilised your mental health, and led to a re-emergence of past developmental trauma, and Professor Walterfang had you admitted as an inpatient at Epworth Camberwell because of concerns for your safety and escalation of self-harming thoughts.  Your housing situation was again seen as critical.

52In subsequent reports, Professor Walterfang states that the likelihood is that the mild acquired brain injury suffered by you in the collision had resolved, and any residual cognitive effects from that are minimal.  He considered it likely that any ongoing cognitive issues are due to your ongoing mood and anxiety disturbance.  While anxiety, depression and substance abuse were pre-existing, he considered they were exacerbated by the alleged sexual assault in June 2017, and that left with you significantly re-activated symptoms from your childhood trauma. 

53When he last saw you in October 2017, you met criteria for major depressive disorder, post-traumatic stress disorder, and generalised anxiety disorder, the severity of each of which was at least moderate. His view was that a custodial sentence would be more problematic for you, as a result of your mental health conditions, as you would struggle to manage anxiety, uncertainty and a loss of control, and would be incredibly hyper-vigilant at the possibility of re-traumatisation.  He also thought it likely that your mood disorder would worsen significantly during a period of incarceration, as it would worsen your chronic depressive disorder.

54In August 2017, you were examined by consultant psychiatrist Dr Lester Walton, primarily to consider whether you were fit to be tried, and whether there was an available defence of mental impairment.  He found you fit to be tried and no such defence, but confirmed from your history, likely blighting of personality development, as well as a proneness to mood disturbance and parallel substance abuse. He found no convincing evidence of brain injury, but thought there was some minor cognitive deficit likely, secondary to mood disturbance. He thought it highly probable that you were troubled by significant anxiety and depression around the time of the offending, although not of the order to give rise to a defence of mental impairment.  He noted the cause of the nine day period of post-traumatic amnesia after the collision may have been influenced by your drug abuse. 

55Dr Walton thought the post collision admission to hospital triggered a detoxification from the GHB you had been using, and the introduction of proper psychiatric treatment.  He considered that your then medication could be simplified, but the types of medications were appropriate, as was ongoing supervision by a psychologist and a psychiatrist.  He considered that the combination of your chronic mood disorder and the underlying personality damage from your childhood, was of an order to warrant some consideration of amelioration of the general deterrent aspects of sentencing.  He, as Professor Walterfang did subsequently, gave the opinion that you would experience incarceration as more onerous than others without these conditions. 

56Dr Tan who supervised your care during admission at The Melbourne Clinic, reported in July 2016 about the relationship between your condition and the motor accident.  Those matters are not of specific relevance to me in this case.  She also outlined your childhood and pre-accident mental health status, and issues and predisposition to your then mental health condition at that stage.

57Her diagnosis was post-traumatic amnesia and cognitive dysfunction post head injury following the car accident.  Also Benzodiazepine and opiate withdrawal after reduction of medications, borderline intellectual capacity, nicotine dependence, and borderline traits of complex trauma and anxiety and depression.  She outlined the proposed ongoing inpatient treatment, and further stabilisation of opiate withdrawal symptoms, and learning and practising non-medication or substance related strategies for managing distress, and learning and practising strategies to cope with information.

58You were to be discharged to Banyule Community Health with the support of a community support worker and social work support to assist your multiple chaotic social stresses.  Dr Tan also thought there would be a need to link you into stable drug free accommodation, and ongoing addiction rehabilitation services with psychological follow up. 

59A neuropsychological report was prepared while you were at The Melbourne Clinic by Dr Fisher.  That noted that because you had detoxified by then - that was some forty-five days after the accident - you had detoxified from illicit substances, and your cognitive engagement was improved, compared with when such an assessment had been attempted while you were at Epworth after the crash. You were considered to be making appropriate effort on the testing.  Overall, you were assessed on intellectual testing to be in the low average to borderline range, with some areas stronger than others.  A number of specific recommendations were made as to how to optimise interaction with you. 

60When discharged from The Melbourne Clinic, you lived for a while with your father, but that did not last.  Lack of stable housing had led to your living in a motel in June 2017, where as I have already said, you were allegedly sexually assaulted, causing another mental health decline for which Professor Walterfang had you admitted to hospital for two weeks.

61In June 2017, you were approved for an NDIS plan with some funding for supports.  I do not have much information about you during the year following that, except that I am told that you remained drug free until almost September 2018 when again homeless. 

62I am told that on 9 September 2018, you were found outside curfew with a small amount of methylamphetamine.  Then, on 2 November, you stole clothes and make-up from a shop, and on 9 November 2018, in the Magistrates' Court, you were sentenced both for the possession of methylamphetamine and the shop theft, as well as for two offences of committing an indictable offence whilst on bail - based on those two offences.  For each of the charges, you were placed on a good behaviour bond with conviction.

63Although bail was revoked as a result of the charge before me, you were apparently mistakenly released from the Magistrates' Court and then re-arrested on 10 December 2018.  You have been in custody ever since, and the total period is 158 days in respect of the charge on which I sentence you, and that will count towards your sentence. 

64Whilst in custody since last December, you have been attending both Alcoholics Anonymous and Narcotics Anonymous when those meetings have been held.  Documents confirming attendances were tendered.  I am told that you have been working in the industry there.  You have been cleaning Qantas headphones and winding cords, you were promoted to level one which was the highest pay level.  You apparently struggled at first to cope with doing that, but found that writing out instructions to yourself assisted you.

65Whilst in custody, you have been visited weekly by your father and his partner, and they have offered you accommodation with them in the Reservoir area, which would be suitable in the short term because it is also near your grandmother and your local doctor, with whom you have good rapport. 

66Also whilst in custody, you have been linked with various support services, including Salvation Army and also with other housing agencies.  You have also been linked with an organisation called 'Inside Access' which helps mothers connect with their children.  You have been prescribed some medications whilst in custody, including to help you sleep, and methadone for pain relief.  I am told that from your childhood, you had a spinal problem which can be painful and was apparently exacerbated in the crash that brings you before me.

67I was told in the February hearing of your plea, that you had applied to see a psychiatrist nearly every day, but that that had not eventuated then.  I have no update on whether you have since been seen whilst in custody by a psychiatrist for any sort of treatment. 

68A further or reviewed NDIS plan for the period 1 August 2018 to 1 August 2019 has been approved.  This provides funding in furtherance of goals, first for you to feel confident accessing the community, and secondly, to find safe and stable accommodation, and longer term goals of finding paid employment, in an area of interest,  to develop independent living skills, and to have support to maintain your relationship with your children.

69During the plea hearing I mentioned, and I repeat now what I still regard as a considerable amount of funding has been approved for  supports to assist with daily activities and community participation.  However, what I find perplexing, is that such funding can be available, but unable to be utilised appropriately, because there is no funding to directly assist in solving what you regard as your second goal, but I regard as has been mentioned by a psychiatrist, as a core ongoing difficulty for you, the obtaining of safe and secure housing. Without stable housing, it is not possible to effectively connect you with appropriate services to assist with your other rehabilitation needs, because they are dependent on your location and access to them.  It is to be hoped that the various services within the prison, with which you have been linked, will be able to coordinate and obtain appropriate, stable and secure housing for you, to enable the NDIS funding to be used appropriately.

70However, I note that most, if not all, of the funded period, will have expired before you are released from prison into the community, for it to be used.  It is to be hoped that a further plan will be approved to commence from 1 August 2019, when the current one expires, and to provide appropriate services to address your underlying problems, hopefully assist you to train for some appropriate work, as well as continue your rehabilitation from drug and alcohol abuse and to address your underlying psychological and personality issues, as well as readjustment into the community.

71I requested a pre-sentence report through Forensicare, and a report was provided by a consultant forensic psychiatrist, Dr Maria Triglia, who interviewed you by video link in March this year when you had been in custody about three months.  Dr Triglia outlines what you reported to her, of having initially found being in prison difficult, but learning to cope.  You were unhappy that your medication had been change, and felt that your memory and ability to coordinate had become worse, and you also felt that your pain management was under treated because of the change in medication. You were using lists to assist you with memory, including with instructions on the work you were doing.  Your moods were still fluctuating.  You were being visited regularly by your grandmother, and your father and his partner, but became depressed about your separation from your children, including not seeing your son on his last birthday.

72Dr Triglia considered that you meet criteria for borderline personality disorder, which likely reflects your adverse early childhood experiences, multiple substance use disorder (currently in remission), and current depressive episodes.  She felt your recurrent mood disturbance is associated with your personality functioning, adversely impacted by substance abuse. At interview, you appeared to be in full remission from what had been worsened depressive symptoms following the crash.  You still had anxiety symptoms, but significantly reduced.  She made recommendations for ongoing treatment of depression and anxiety, both whilst in custody and when released into the community, including follow up from a psychiatrist to monitor your medication, particularly given the complexity of your underlying issues. She felt it important to avoid use of habit forming sedative medication.  She thought you would also benefit from long term psychological counselling to address your personality functioning.  She also thought ongoing participation in NA and AA would be good, and she confirmed that your personality structure, anxiety and depression, would make a period in custody more onerous for you than for someone without those conditions.

73I also requested an extended pre-sentence report as to your suitability for a community corrections order.  You have no history with Community Corrections and the report notes your successful completion of probation under Youth Justice, that probation having been imposed in 2010.  The assessment report comments on a variety of the matters that I have already outlined and will not repeat.  The report did comment on your apparent lack of empathy for the man hurt by your driving.  It also notes that the fact of the NDIS plan is regarded as a protective factor, as funds would be available in building supports for you, and that could be explored during supervision.  You were assessed with reservation as suitable for a community corrections order, with a number of conditions recommended.

74I am obliged to consider current sentencing practice, and I was referred to a recent Court of Appeal case of the DPP v Sutic dealing with negligently causing serious injury, based on driving misconduct.  I have taken into account the considerations in that case, and I have noted the respective sentences on each charge which were not found excessive by the Court of Appeal.  On the specific charge that you are facing, on one count it was three years, two months imposed and on another, two years, four months.  In my view, the driving conduct in that case was worse, and the remorse lower.  I do take into account that the Court of Appeal has expressed the need for overall incremental increase in current sentencing practice for this offence - that is, negligently causing serious injury.

75Your counsel conceded that a term of imprisonment was warranted, but urged me to impose a combination sentence.  That is, a term of imprisonment followed by a Community Correction Order.  Such a combination sentence is only available if the term of imprisonment does not exceed twelve months. 

76The prosecution submitted that a combination sentence would not be within appropriate range, and that a term of imprisonment, with a non-parole period should be imposed. 

77I have already explained that I regard your offence as objectively in the moderately serious range of cases.  It caused life threatening injuries to Mr Henkel, although I cannot make any finding as to whether or not he is still effected by his injuries. I am satisfied that it likely arose more from your chaotic lifestyle, heavy drug use, which of course was a factor in the Sutic case also, but heavy drug abuse further clouding your limited reasoning skills and longstanding anxiety and poor ability to cope with stress.  Those are not excuses, but in my view, they place your offending in the context that it was not only not planned, but your ability to make sensible and rational decisions was likely much lower than for an average person not suffering the background features of psychological ill health, in such circumstances, and was not aggravated by racing or “showing off”.

78Offending of this nature calls for sentencing purposes to include general deterrence, community condemnation of such conduct and just punishment.  General deterrence means that the sentence should send a message to others that such offending will attract serious punishment. 

79The prosecution submitted that protection of the public was also an important consideration here. 

80Your counsel submitted that facilitating your rehabilitation was also important, particularly given your age, that you were a young offender at the time and are still only 23.

81Your counsel argued that I should find that your mental health and cognitive limitations were such that I should modify the application of general deterrence.  That means, give general deterrence less importance because your limitations make this case less of a good case to use as an example for others.  The prosecution argued that because none of the expert reports confirm a likely link between your mental health or cognitive conditions causing or contributing to the offence, there should be no moderation of general deterrence.

82Despite the lack of medical opinion confirming a causal connection, because of your lack of memory, I understand Verdin’s case still to invoke some moderation in general deterrence, if the offender's underlying conditions make him or her less of an appropriate example to send a message to others. 

83I regard your combination of pre-existing conditions of heightened anxiety and depression and personality disorder, together with what is regarded as some cognitive limitation pre-existing, to warrant some modest reduction in the application of general deterrence in this case.

84I also take into account in some moderation of your sentence, that the psychiatric opinions of Dr Lester Walton and Professor Walterfang and more recently, Dr Triglia, are that it is likely that your mental health conditions will make the experience of imprisonment more onerous.  That is, more difficult for you than for a person not suffering those conditions.

85Although Professor Walterfang gave as his opinion that it is likely that your mood disorder would worsen significantly during a period of imprisonment, following the report of Dr Triglia, your counsel did not persist with the submission that had earlier been made, that I should also moderate your sentence because your condition is likely to worsen or be exacerbated due to imprisonment.

86As for protection of the public, urged by the prosecution as important, I consider it clear that you should not be allowed to drive for some time, and certainly not without completing licencing tests.  However, there is nothing to indicate that you have attempted to drive at any stage since this incident, which was almost three years ago, nor that you were regularly driving, albeit unlicensed, prior to this incident.  Although you have one prior conviction for unlicensed driving, it was many, many years earlier.

87I am satisfied that this was an isolated incident, in which you undertook to drive and did so very incompetently, risking harm to your passenger and other road users, as well as to yourself.  However, there is nothing to indicate that you had done this before, as I have said, nor that it is likely to be repeated, nor that you pose general risk to the public.

88You were only 20 years of age when this offending occurred and you are still only 23.  As young offender at the time, your rehabilitation should be an important sentencing consideration because such rehabilitation is ultimately in the best interests of the community, as well as your own.  It is in your own interests, and that of the community, that you be assisted in rehabilitation, to establish yourself as a stable member of the community, remaining abstinent from drug abuse and also addressing your mental health problems.  In my view, that would be the best long term protection for the public from any prospective further harm from you.

89As was conceded on your behalf, a sentence that involves some imprisonment is required to adequately condemn and punish your offending, and to send an adequate message to others that such conduct will attract serious punishment.  However, in my view, taking into account your underlying problems and that the facilitation of your rehabilitation is also an important sentencing purpose, a sentence of less than twelve months to be served in prison, followed by a Community Corrections Order of some length, so that you can re-enter the community under supervision and with treatment and rehabilitative programs, will meet sentencing requirements in the circumstances of this case.

90There will also be a modest community work component, which although I note you have some physical, as well as psychological conditions, should be able to be arranged with suitable modification based on medical advice from your doctor.  In my view, to perform a modest component of community work, will be not only a penalty, and thereby a contribution to the community, but it may also assist you to rehabilitate by exposing you to some work orientated activities and to how to cope with those, and the discipline of attendance.

91Millie Knight, on the charge of negligently causing serious injury to Liam Henkel, you are sentenced to nine months imprisonment, to be followed by a Community Corrections Order to commence on the date of your release from prison and to last for three years.  The conditions on the Community Correction Order are that you are perform 50 hours of unpaid work, but I am going to make that over the whole period, so that it may be deferred while other rehabilitative or treatment conditions are put in place.  Other conditions will be supervision, assessment and treatment as directed for mental health disorders, and for both drug and alcohol problems, with testing.  As it was recommended, I also impose a condition that you be assessed for and attend as directed any programs recommended to reduce offending behaviour.  I also intend to impose judicial monitoring and I intend to fix a date for the first occasion being approximately two months after what I calculate will roughly be the time when you are likely to be released from prison.

92Now in addition, all usual terms of a Community Corrections Order apply.  These will have been explained to you, but I will briefly summarise them now. You are to report to the local Community Corrections office, the closest to where you live and that will be confirmed before your release from prison, once your accommodation has been identified.  I think it was thought that Reservoir was the likely one if you are living in the area of where your father is and your grandmother is also in that area.  But that will have to be confirmed once accommodation is in place.

93So you are to report within two working days of being released from prison.  Throughout the Community Correction Order, you have to keep the Community Corrections officers advised of any change of address of where you are living, and if you were to obtain employment, the address of where you are employed.  If there is any change, you have to notify that within two clear working days of the change.

94You are not to leave the state of Victoria without prior permission of Community Corrections officers.  You are to obey all lawful instructions and directions of Community Corrections officers to allow visits by them and to attend them when they direct you, and above all, throughout the three years of that Community Corrections Order, you are not to commit any further offence which could be punished by imprisonment. Now I remind you that using illegal drugs, using methylamphetamine or GHB or the like would be an offence that could be punished by imprisonment.  Possession or use of those drugs.  So if you are found with such drugs, that could amount to a breach of the Community Corrections Order. 

95Your obligations are to comply with the conditions I have set out, to obey the usual terms and not to commit any further offending.

96If you do not comply or commit any further offending, you may well be brought back to court on a contravention, alleging you have breached the Order, and depending on the circumstances of the breach, depending on how much of the Order you have completed, and on your general circumstances at the time, it is open to the court to cancel the order and re-sentence you on this charge, or to confirm the order or to extend its duration or vary its terms.

97I must also warn you that if you breach the Community Corrections Order, that itself is a separate offence and carries a penalty of up to three months imprisonment.  Now do you understand those terms and conditions? 

98OFFENDER:  Yes

99HER HONOUR:  Do you agree to comply?

100OFFENDER:  Yes.

101HER HONOUR:  All right.  Now coming back to the term of imprisonment, I declare 158 days of pre-sentence detention reckoned served and direct that that be noted in court records.  That, on my calculation, is a little over five months and that will be deducted from your sentence.  It gets deducted administratively.   I can only say approximately when you - it seems to me that you are likely to be released in approximately mid-September, 9th or 10th I think was the date of remand in December.

102MS CARUSO:  Around the 10th ‑ ‑ ‑

103HER HONOUR:  The 10th?

104MS CARUSO:   ‑ ‑ ‑ of August probably.

105HER HONOUR:  I beg your pardon, August.  I am sorry, August, yes.  I did make it nine months imprisonment.  All right, now I have to go on with some further matters. 

106You pleaded guilty.  If you had not pleaded guilty, the sentence I would have imposed is thirty months imprisonment, with a non-parole period of twenty-two months.

107I also make an order in respect of driver's licences.  Any driver's licence or permit that is held by you is cancelled, and you are disqualified from reapplying for 18 months, commencing today.  That will leave you without the ability to apply for a licence for over a year after you are released.  But in the scheme of things and as you only had a learner's permit, I think things have to be taken one step at a time, and in due course, when you are fit to do so, you can apply for the learner’s permit, learn to drive better, and ultimately apply for a licence.

108Now I was also asked to make some ancillary orders.  The first is a disposal order in respect of the small plastic zip lock bag containing crystal substance.  I am not quite sure when that was taken from you, but that is what was handed to me as a disposal order.  I only knew of the - maybe you had it on your person when ‑ ‑ ‑

109MS CARUSO:  It was in the car, Your Honour.

110HER HONOUR:  It was in the car.

111MS CARUSO:  So it was in the back.

112HER HONOUR:  All right, well that ‑ ‑ ‑

113MS MOLETA:  No it was in the front.

114MS CARUSO:  Or the front.

115MS MOLETA:  In the footwell.

116MS CARUSO:  So it was in the footwell.

117HER HONOUR:  If it was in the car ‑ ‑ ‑

118MS CARUSO:  It was in the car.

119HER HONOUR:  ‑ ‑ ‑ at the time of this offence, it follows ‑ ‑ ‑

120MS CARUSO:  It was in the car.

121HER HONOUR:  ‑ ‑ ‑ that it should be - it is a substance that was not likely to be returned to you anyway, or to anyone else, but it should be disposed of.  It links with this offending in a suitable and I have signed that order. 

122Now I was also asked to make a forensic sample order.  That is to enable your DNA to be tested and the results placed on the national database. 

123I am going to make that order and I do so due to the seriousness of the circumstances of the offending.  I limit that order to what they call a scraping from the mouth, or a buccal swab.  I limit it to that because I have been informed that the taking of a blood sample is no longer necessary – an adequate sample can be taken from the inside of the mouth. Now that is a swab rubbed against the inside of your cheek and often you are allowed to take it yourself, under supervision.  But I warn you as I must, that if you resist the taking of that, then authorised officers can use reasonable force to take it from you.  I have signed that order also.  You can take a seat Ms Knight. 

124Judicial Monitoring date - I can be flexible about the timing of it.  I do not have any idea what - is there a problem?

125MS CARUSO:  I apologise, Your Honour.

126HER HONOUR:  I do not have any idea what type of cases I will be sitting on at that approximate time of year, but I was looking towards the end of October and Friday 25 October, I can make it at 9.45 or 10.15.  I have got one already at 10 am that day, but if that is likely to be a problem, it can be changed.  It does not usually have a lawyer representing you at that Ms Knight.  Normally you are reminded of it by your community corrections officer who will be either present or present by video link, and will have provided a report to the court on how you are going, and you are required to turn up in front of me and I will explain what is in the report and check through how it is going.

127I will make it 10.15 am on Friday 25 October.  You come to the court building, you look up my name and find out which courtroom I am in because it will be different from this one, almost certainly.  All right, so we have got Friday 25 October at 10.15.  Now have I left out anything?

128MS MOLETA:  Your Honour, just a forfeiture order was sought for Ms Knight's phone.    

129HER HONOUR:  Well no it was not.  What was handed up was something for Judge Smallwood for a different offender.  Have you got a copy?

130MS MOLETA:  I believe it's been E-lodged, but I can email that to your associate. 

131MS CARUSO:        I wasn't aware of it, Your Honour.  Can I just briefly approach Ms Knight.  It was so long ago, she may not want the phone back.

132HER HONOUR:  Yes, if it's her phone.

133MS CARUSO:  I understand it's her phone, I'll just approach briefly.  Your Honour, I understand that Ms Knight won't have a phone on release and would like her phone back.  It might be that the informant can delete some of the photos that are of concern.  There is a couple of photos of her using drugs in the days before.  That's the only thing that - is the reason for the forfeiture and it has photos of her children and her phone numbers and she's already somebody who is limited in funds.  So that's - Your Honour to decline to make the order and I can discuss with the informant him deleting those photos of concern.

134HER HONOUR:  Ms Moleta is such a discussion possible?  I am happy to just adjourn that part of the ‑ ‑ ‑

135MS MOLETA:  Yes, in the circumstances, Your Honour, I'll seek some further instructions.

136HER HONOUR:  All right.  Yes, all that's been lodged is something for Judge Smallwood and not ‑ ‑ ‑

137MS MOLETA:  I do apologise that I ‑ ‑ ‑

138HER HONOUR:  ‑ ‑ ‑ Ms Knight's name.  It may be the wrong - you may have been dealing with several at the time ‑ ‑ ‑

139MS MOLETA:  Perhaps.

140HER HONOUR:  ‑ ‑ ‑ and the wrong one got emailed.

141MS MOLETA:  That might be the case.  I will say, Your Honour, that a full analysis was completed of Ms Knight's phone and the contents downloaded and that had been provided to the defence.  So the contents have been provided, but in the circumstances, I can seek some further instructions.

142HER HONOUR:  All right, well I'll adjourn to a date to be fixed, that application. There's an oral application from you, but I don't have a draft order.

143MS MOLETA:  As Your Honour pleases.

144HER HONOUR:  I don't know if the phone listed   for some other person in front of Judge Smallwood is the same phone.  It's unlikely to be.

145MS MOLETA:  I do have a copy of the order, but however, I'll seek those instructions Your Honour and if the application is persisted with, ‑ ‑ ‑

146HER HONOUR:  All right, it can be brought back to me.

147MS MOLETA:  ‑ ‑ ‑ we'll advise Your Honour's associate.

148HER HONOUR:  I'm going to be on leave from the end of next week, but if it's emailed in, I'll deal with it either before then or when I get back.

149MS MOLETA:  As Your Honour pleases.

150HER HONOUR:  I'll take it that there's been an oral application, so it can just be adjourned to a date to be fixed and dealt with administratively.  Sorry?

151ASSOCIATE:  (Indistinct words).

152HER HONOUR:  Yes, we've still got to do the community corrections order.  It's got what can't be the right address, '4 Upton Road, St Kilda'.

153MS CARUSO:  That was the Women's Refuge that she was bailed to.

154HER HONOUR:  I've got no address to give for her do I?

155MS CARUSO:  Your Honour I can't remember her dad's address.  I'll just obtain that if that's - or we could leave ‑ ‑ ‑

156HER HONOUR:  Well this is always a problem with these.

157MS CARUSO:  We can leave that address, Your Honour, and then that can be changed with Corrections.  They'll visit her in custody.

158HER HONOUR:  Yes.

159MS CARUSO:  For the pre-release.

160HER HONOUR:  Before her release, yes.

161MS CARUSO:  They have pre-release conferences with clients. 

162HER HONOUR:  Well I'm hoping that it's more than the standard pre-release conference here.  It may only be that from Community Corrections, but the whole - all these other networks who are meant to be arranging housing and having services in place for when she's released.

163MS CARUSO:  Well state trustees has contacted my instructor today, so that's a good indication that they're still ‑ ‑ ‑

164HER HONOUR:  Aware of - all right, now - yes that seems to cover the conditions I stated.  If that could be shown to both counsel to check and then if they find it in order, take it to Ms Knight to sign. 

165MS CARUSO:  Your Honour may I approach with your associate?

166HER HONOUR:  Yes.  All right, I need to sign that order.  Thank you.  I can't for the life of me follow - p.1 of 1 and p.3 of 1.  Computers rule this, but it's Friday afternoon, I don't want to delay matters if the - that gets - will need signing.  It's been signed.  All right, that brings this to a conclusion and I'll ask that Ms Knight - you'll see your client downstairs?

167MS CARUSO:  I'm going downstairs, Your Honour, yes.

168HER HONOUR:  I'll ask that Ms Knight be removed from the court.  Thank you.  There'll be copies for both sides of those orders that have been signed. 

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