Director of Public Prosecutions v Lazzaro
[2024] VCC 973
•1 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00349
Indictment No. N10003815
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN LEE LAZZARO |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 20 May 2024 | |
DATE OF SENTENCE: | 1 July 2024 | |
CASE MAY BE CITED AS: | DPP v Lazzaro | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 973 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of causing injury intentionally – one charge of conduct endangering persons – one charge of possessing a drug of dependence – six uplifted summary charges involving two charges of driving a vehicle on a highway without a licence; one charge of failing to stop a motor vehicle when requested by a police officer; one charge of driving a motor vehicle with more than the prescribed concentration of alcohol present on your breath; one charge of failing to immediately stop your vehicle after being involved in an accident; one charge of failing to immediately render such assistance as you could following a motor vehicle accident ꟷ pleas of guilty
Legislation Cited: Crimes Act 1958, s16; s23; Drugs Poisons and Controlled Substances Act 1981, s73(1); Criminal Procedure Act 2009; Sentencing Act 1991; Road Safety Act 1986, s18(1)(a), s64A; s49(1)(b); s61(1)(a), s61(1)(b); s61(4)
Cases Cited:Worboyes v R [2021] VSCA 169; DPP v Hillman [2024] VSC 100; DPP v Lindemann [2024] VSC 220; Bugmy v R (2013) 249 CLR 571; DPP v Herrmann (2021) VSCA 160; Marrah v R [2014] VSCA 119; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309; Phillips v R [2012] VSCA 140;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Pirrie | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M Walker | Melinda Walker Criminal Law |
HIS HONOUR:
1On 20 May 2024, you pleaded guilty to the following offences:
Charge 1 – that you at Campbellfield in Victoria on 1 January 2022, without lawful excuse, intentionally caused injury to Basim Alameddine.
The offence of causing injury intentionally is contrary to s18 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – that you at Campbellfield in Victoria and divers other places in Victoria on 2 January 2022, without lawful excuse, recklessly engaged in conduct, namely driving a motor vehicle erratically and at excessive speed, that placed or may have placed persons in danger of serious injury.
The offence of conduct endangering persons of serious injury is contrary to s23 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
s87P(f)(iii) of the Sentencing Act 1991 provides that the offence under s23 of the Crimes Act 1958 is a “serious motor vehicle offence” if that arose out of the driving of a motor vehicle when under the influence of alcohol and/or drugs. s89 (1) of the Sentencing Act provides that a person found guilty of a “serious motor vehicle offence” must have any licence to drive a motor vehicle cancelled and be disqualified from obtaining a further one for a period of time that court specifies. s89(2)(c) of the Sentencing Act 1991 provides that it applies to s87P(f)(iii) and directs that the period of cancellation be not less than 12 months.
Charge 3 ꟷ that you at Brunswick in Victoria on 2 January 2022, possessed a drug of dependence, namely Cannabis-L.
The offence of possession of a drug of dependence – Cannabis-L – is contrary to s73(1) of the Drugs Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 5 penalty units.
2Six summary charges were transferred to this court from the Magistrates’ Court pursuant to s145 of the Criminal Procedure Act 2009. On 20 May 2024, you agreed to have those matters heard in this court and pleaded guilty to the following offences:
(a) Charge 5 – that you at Campbellfield in Victoria on 1 January 2022, did drive a motor vehicle on a highway – namely Campbell Street – without being the holder of a driver’s licence or permit authorising you to drive such motor vehicle, and without being exempt from holding such licence permit under the Regulations. Such offence is contrary to s18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 10 penalty units or up to one month’s imprisonment;
(b) Charge 6 – that you at Campbellfield in Victoria on 2 January 2022, did drive a motor vehicle, knowing that you had been given a direction to stop the motor vehicle by a police officer. Such offence is contrary to s64A of the Road Safety Act 1986 and carries a maximum penalty of six months’ imprisonment and/or a fine not exceeding 60 penalty units;
(c) Charge 7 – that you at Brunswick in Victoria on 2 January 2022, did drive a motor vehicle on a highway, namely Sydney Road, without being the holder of a driver’s licence or permit authorising you to drive such motor vehicle, and without being exempt from holding such licence or permit under the Regulations. Such offence is contrary to s64A of the Road Safety Act 1986 and carries a maximum penalty of 10 penalty units or up to one month’s imprisonment;
(d) Charge 8 – that you at Brunswick in Victoria on 2 January 2022, did drive a motor vehicle with more than the prescribed concentration of alcohol present in your breath, being any concentration of alcohol whatsoever (alleged reading 0.022). Such offence is contrary to s49(1)(b) of the Road Safety Act 1986 and pursuant to s49(2A)(ii) of the Road Safety Act 1986, carries a maximum penalty of eighteen months’ imprisonment or a fine not exceeding 180 penalty units in accordance with s49(2A)(ii) of the Road Safety Act 1986.
An offence contrary to s49(1)(b) of the Road Safety Act 1986 also attracts a cancellation of a driver’s licence and a disqualification from obtaining such a licence for a certain period. Considering this offence is a subsequent offence, the minimum period of disqualification is twelve months (see s50(1) and (1A) of the Road Safety Act 1986 and Schedule 1 – Column 3);
(e) Charge 16 – that you at Campbellfield in Victoria on 1 January 2022, being the driver of a motor vehicle, and where owing to the presence of such motor vehicle an accident occurred whereby a person was injured, did fail to immediately stop such motor vehicle. Such offence is contrary to s61(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of eight months’ imprisonment or a fine of 80 penalty units in accordance with s61(1)(a) of the Road Safety Act 1986;
(f) Charge 17 – that you at Campbellfield in Victoria on 1 January 2022, being the driver of a motor vehicle and where, owing to the presence of such motor vehicle, an accident occurred whereby a person was injured, did fail to immediately render such assistance as you could. Such offence is contrary to s61(1)(b) of the Road Safety Act 1986 and carries a maximum penalty of eight months’ imprisonment or a fine of 80 penalty points in accordance with s61(1)(a) of the Road Safety Act 1986.
The circumstances of your offending
3Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening for Plea”, dated 17 May 2024.[1] The Court was informed by your counsel that there was no disagreement in relation to the matters set out in such document.
[1]Exhibit 1
4I will not refer to all of the matters set out in such document, but do refer to the important aspects pertaining to your offending:
· You were born in October 1976 and was 46 years old at the time of the offending. You are now 47 years of age.
· At the time of the offending you were unlicensed and driving a silver 2009 Holden Commodore sedan, with Victorian registration ZCD 578, which was registered in your name.
· The victim (“complainant”) in relation to your offending, on 1 January 2022, is Mr Basim Alameddine (“Alameddine”), who was 45 years at the time of the offending.
· At approximately 12.17pm on 1 January 2022, you drove your Holden Commodore to Alameddine’s home address situated in a block of units at Church Avenue, Campbellfield (Summary Charge 5 – unlicensed driving).
· You and Alameddine were together in the carpark of the units when an argument took place between you and Alameddine. A witness, Mark Noom (“Noom”) overheard the argument between you and Alameddine, which went for five to fifteen minutes, but did not hear what the argument was about, but noted Alameddine called you a “dog” before you left.
· At the completion of the argument Noom saw you get back in your car and leave the carpark at approximately 12.57pm, driving south along Reserve Avenue.
· At approximately 12.59pm, Alameddine left his address, riding a motorised scooter (“the scooter”) along Reserve Avenue, before turning right into Campbell Street, where he continued along the wrong side of the road, that is, the northern gutter edge.
· As Alameddine passed the bus stop opposite 7 Campbell Street, you, who were driving west, steered your Holden Commodore vehicle to the right and onto the incorrect side of the road. You then manoeuvred your vehicle to strike the scooter ridden by Alameddine with the right side of the Holden Commodore, mounting the gutter in the process (Charge 1 on the Indictment – intentionally causing injury).
· Photographs were taken of your vehicle after the collision, the place where the collision occurred and debris of the scooter found after the collision.[2] Also, CCTV footage of the seconds leading up to the collision, the actual collision and immediately after the collision, was tendered.[3]
[2]Exhibit 4
[3]Exhibit 3
· Alameddine was thrown from the scooter and ended up on the northern grass nature strip, where he remained until he was located by a witness, Mr El-Jordi, at approximately 1.04pm.
· You stopped momentarily after striking the scooter ridden by Alameddine and unsuccessfully attempted to dislodge the scooter from the front bumper of your vehicle by reversing a short distance. You then continued to travel east, with the scooter lodged under the front of the vehicle and made no effort to check or stay at the collision scene (Summary Charge 16 – failing to stop after an accident) and no effort to assist the injured Alameddine (Summary Charge 17 – failing to render assistance after an accident).
· You continued to drive along Campbell Street with the scooter lodged on the bumper, which scratched and scuffed the road surface as you drove. You ultimately approached the intersection of Campbell Street and Sydney Road (Hume Highway), stopped again before reversing a short distance and drove into the carpark of a reserve, at which time the scooter had dislodged from the vehicle.
· Mr El-Jordi, who was the first person at the scene of the collision, telephoned Emergency Services, after which time paramedics arrived and Alameddine was conveyed to The Royal Melbourne Hospital.
· The injuries suffered by Alameddine consisted of:
ꟷ a right-handed subgaleal haematoma and subarachnoid haemorrhage
ꟷ a right lower lobe consolidation with loss of volume, left basal atelectasis with atelectasis or consolidation in the right upper lobe (lung injuries)
ꟷ a laceration to the spleen that extended to the splenic capsule, with at least two components, with the larger measuring 23 millimetres
ꟷ a fracture to the right side of the sacrum (lower spine)
ꟷ subcutaneous contusions (bruising) on both posterior flanks and hernias to the abdominal wall fat and a Richter hernia of the transverse colon.
· Alameddine was discharged from The Royal Melbourne Hospital and then attended the Caulfield Acquired Brain Injury Rehabilitation Centre on 15 January 2022, where he remained for about two weeks after the collision. On discharge, Alameddine required further occupational therapy, interventions to optimise independence with functional transfers and mobility with and without aids, and to optimise independence with personal activities of daily living with or without aids, and to resolve his post-traumatic amnesia and facilitate a to return to baseline cognition. He also required ongoing physiotherapy intervention to optimise his mobility, undergo balance training and outdoor gait retraining.
· Dr Doorendranath Gaya of the Victorian Institute of Forensic Medicine has written two expert reports on such injuries suffered by Alameddine, such reports dated 6 September 2022 and 1 March 2023. Dr Gaya has noted that Alameddine had:
ꟷ a number of injuries that were in keeping with blunt trauma
ꟷ sustained multiple soft-tissues injuries
ꟷ fractured his nose and a pelvic bone (sacrum)
ꟷ had a mild to moderate tear of an abdominal organ (spleen)
ꟷ developed post-traumatic amnesia in the immediate aftermath of his closed head injury, which was still evident on the day before his discharge from hospital
ꟷ required intubation over several days because of his depressed level of consciousness to protect his airway and assist his breathing
ꟷ required inpatient rehabilitation to assist with his mobility, recover from post-traumatic amnesia and to optimise return to his personal activities of daily living.
· Dr Gaya opines in his supplementary report that:
“Mr Alameddine had existing cognitive issues as a result of his ABI (acquired brain injury) prior to the collision i.e. his pre-morbid state. Assessment of his cognition in the aftermath of his closed head injury identified significant worsening compared to his pre-morbid state, hence the diagnosis of PTA secondary to significant concussion.”
(Emphasis added.)
· Various investigations were undertaken by detectives from the Major Collision Investigation Unit and, in particular, a collision reconstructionist, Detective Leading Senior Constable, Michael Hardiman, who stated that:
“Based on the available physical evidence located at the collision scene, it is my opinion that the scooter was in the northern gutter, outside the bus shelter on Campbell Street, when it was impacted to the rear by an unknown vehicle, likely to be a Holden Commodore (based on the CCTV footage). The vehicle was travelling in a westerly direction and was completely on the incorrect side of the road when it impacted the scooter and rider. At impact, the vehicle was travelling at no less than 28 km/h”
· Based on the identity details given by Noom, who saw and overheard the argument between you and Alameddine, a media statement was issued requesting assistance into your whereabouts.
· On 2 January 2022, a member of the public reported seeing your damaged vehicle and at approximately 4.30pm your vehicle was sighted by highway patrol members travelling southbound on Sydney Road past Barry Road. At that time, you took off at a fast rate of speed, after which police airwing commenced observations of your car at 4.38pm and maintained those observations up until your arrest at approximately 5.12pm.
· When under observation, you drove recklessly through numerous residential streets in Brunswick that placed road users and pedestrians in danger by driving at a speed in excess of the posted speed limits. You were observed overtaking vehicles across solid lines and on blind bends, reversing in an unsafe manner in order to avoid deployed stop sticks and failing to stop and/or give way at intersections (Charge 2 on the Indictment – reckless conduct endangering persons of serious injury).
· At approximately 5.04pm, you stopped the vehicle and got out of it, and as you did so, you looked up and observed the airwing unit overhead.
· You immediately got back into your vehicle and drove into the underground carpark of the Aldi supermarket situated in Sydney Road, Brunswick. You parked the vehicle and secured it prior to entering the supermarket, where you bought food items and removed your hat before exiting the store and attempted to slip past the police members that were positioned outside the front (Summary Charge 7 – unlicensed driving and Summary Charge 6 – failing to stop your motor vehicle when directed by a police officer).
· You were arrested by police and searched, which revealed that you were in possession of a small plastic deal bag containing a small quantity of cannabis (Charge 3 on the Indictment possessing a drug of dependence ꟷ cannabis).
· An evidentiary breath test and oral fluid test were conducted at the Fawkner Police Station, the results of which revealed the presence of 0.022 grams of alcohol (Summary Charge 8, exceeding the prescribed alcohol limit).
5You were interviewed by detectives from the Major Collision Investigation Unit in relation to the collision and failing to remain. In your record of interview you stated:
(a) in respect to the dangerous driving/intentionally causing serious injury that you “dropped [your] cigarette and [you] went to pick it up and in the process of picking it up [you] hit something and, [you] kept driving.”;
(b) regarding failing to remain: “[You] just kept driving [you were] like …. shock”;
(c) regarding evasion and failing to stop: “Because [you] don’t have a licence”;
(d) regarding reckless conduct endangering serious injury: “It’s poor, it’s no good I dunno it’s stupid”.
6You were remanded in custody on 2 January 2022 and up to, but not including 20 May 2024 (the date of the plea), you had been in custody 869 days.
7Counsel for the prosecution also noted that a disposal order and forfeiture order is sought, both of which are not opposed.
8Counsel for the prosecution set out a chronology in the prosecution opening, which I set out hereunder:
CHRONOLOGY
Filing Hearing
3 January 2022
Committal Mention
9 May 2022
Committal Case Conference
14 July 2022
Committal Case Conference
31 August 2022
Committal Case Conference
5 October 2022
Committal
31 January 2023
Committal
8 March 2023 ꟷ committed
Initial Directions Hearing
12 April 2023
Further Directions Hearing
8 June 2023
Case Assessment Hearing – County Court
18 July 2023
Bail Application
18 September 2023
Final Directions Hearing
17 October 2023
Further Final Directions Hearing
14 December 2023
Trial
7 February 2024 – vacated and accused arraigned
Your criminal record
9Counsel for the prosecution tendered your criminal record, dated 16 May 2024.[4] I note the following:
[4]Exhibit 2
(a) on 5 April 1995, at the Preston Magistrates’ Court, you were convicted and fined $600 for assaulting police/person assisting police; convicted and fined an aggregate $400 for using indecent language in a public place and refusing or failing to state your name and address, and convicted and discharged of being drunk in a public place;
(b) on 14 February 1996, at the Preston Magistrates’ Court, you were convicted of using indecent language in a public place, attempted theft of a motor vehicle, attempted burglary, possessing a regulated weapon and carrying and regulated weapon, and were sentenced to a community-based order for twelve months to perform 200 hours of unpaid community work;
(c) on 18 December 1996, at the Heidelberg Magistrates’ Court, you were convicted and fined $50 for supplying liquor to a minor;
(d) on 10 April 1997, at the Heidelberg Magistrates’ Court, you were convicted of unlawful assault and sentenced to a community-based order for six months to perform 75 hours of unpaid community work and fined $500;
(e) on 30 July 1997, at the Preston Magistrates’ Court, you were convicted and fined $500 for breaching the community-based order made on 14 February 1996. Such order was cancelled and no further action was taken;
(f) on 21 February 2008, at the Heidelberg Magistrates’ Court, you were convicted of exceeding the prescribed alcohol limit within three hours of driving a motor vehicle and fined $650, with your licence cancelled and you were disqualified for twelve months after renewing such licence. You were also convicted and fined an aggregate fine of $250 for possessing and using cannabis;
(g) on 31 March 2009, at the Heidelberg Magistrates’ Court, you were convicted of recklessly causing injury and resisting police, and sentenced to an aggregate forty-two days’ imprisonment, with such sentence wholly suspended under the then s27 of the Sentencing Act1991, with an operational period of two years;
(h) on 26 August 2010, at the Melbourne Magistrates’ Court, you were convicted and fined $100 for possession of cannabis, together with a conviction and fine of $100 for failing to answer bail;
(i) on 5 May 2011, at the Broadmeadows Magistrates’ Court, you were convicted and fined $250 for being a known thief loitering in a public place;
(j) on 7 July 2011, at the Broadmeadows Magistrates’ Court, you were convicted of possessing and using cannabis and sentenced to an aggregate fine of $400, together with $69.70 statutory costs;
(k) on 4 November 2011, at the Broadmeadows Magistrates’ Court, you were again convicted of possessing and using cannabis and sentenced to an aggregate fine of $500;
(l) on 3 July 2012, at the Broadmeadows Magistrates’ Court, you were convicted and sentenced to an aggregate fine of $500 for resisting police and possessing cannabis;
(m) on 18 November 2013, at the Broadmeadows Magistrates’ Court, you were convicted for unlicensed driving, exceeding the prescribed alcohol concentration within three hours of driving a vehicle, driving a vehicle causing loss of traction, exceeding the 40-kilometre speed limit, using an unregistered motor vehicle on a highway and forge mark-uniquely identifies vehicle and failure to answer bail, and sentenced to an aggregate two months’ imprisonment, which was wholly suspended to the then s27 of the Sentencing Act 1991. Your licence was cancelled and you were disqualified for thirty-six months from obtaining a further licence. You were also fined an aggregate sum of $900, together with $110.40 statutory costs;
(n) on 19 April 2016, at the Broadmeadows Magistrates’ Court, you were convicted of burglary, committing an indictable offence whilst on bail; driving whilst disqualified; theft of a motor vehicle and possessing cannabis, and sentenced to a Community Correction Order for twelve months, commencing on 19 April 2016, with special conditions that you undergo treatment and rehabilitation in relation to drug use, offending behaviour and road trauma awareness programs;
(o) on 31 August 2016, at the Broadmeadows Magistrates’ Court, you were convicted of sexual assault and sentenced to one month’s imprisonment, followed by a Community Correction Order for eighteen months. Such order commenced on 30 September 2016, with special conditions that you perform 100 hours of community work, be supervised by the Secretary, and undergo assessment and treatment in relation to drug and alcohol use, together with mental health assessment. Furthermore, you were ordered to undergo any offending behaviour programs as directed by the Secretary. Also, you were excluded from attending the Broadmeadows Shopping Centre for the duration of the Order;
(p) on 9 May 2017, at the Broadmeadows Magistrates’ Court, you were convicted of obtaining financial advantage by deception and sentenced to a Community Correction Order for a period of six months, with special conditions of performing forty hours of community work, with it being noted that such order was in addition to the existing Community Correction Order;
(q) on 29 August 2017, at the Broadmeadows Magistrates’ Court, it was proven that you breached the Community Correction Order made on 19 April 2016 and the Community Correction Order made on 29 August 2016. You were convicted and the original orders were varied for you to undergo a further Community Correction Order for twenty-four months, with special conditions involving supervision, treatment and rehabilitation in relation to drug and alcohol, together with a mental health assessment. You were further required to attend offending behaviour programs as directed by the Secretary and excluded from attending the Broadmeadows Shopping Centre;
(r) on 10 April 2018, at the Broadmeadows Magistrates’ Court, it was proven that you breached the Community Correction Order made on 9 May 2017. You were convicted and sentenced to a further Community Correction Order for six months, commencing on 12 April 2018, with special conditions involving unpaid community work of nineteen hours;
(s) on 14 June 2019, at the Melbourne County Court, you were found guilty of attempted armed robbery, criminal damage, assaulting an emergency worker on duty, unlawful assault, two charges of theft, possessing a controlled weapon without excuse, committing an indictable offence whilst on bail and possession of a drug of dependence, and ultimately sentenced to a term of imprisonment of one year and 10 months, with an non-parole period of eleven months. At that time, you had been remanded for 236 days which was declared;
(t) on 9 July 2019, at the Broadmeadows Magistrates’ Court, it was proven that you contravened the Community Correction Orders made on 29 August 2017 and 10 April 2018. Furthermore, you were convicted for the offences of unlawful assault and theft from a shop. In relation to the contravention of the order made on 29 August 2017, no conviction was entered and the matter was adjourned to 9 December 2019, with ongoing treatment orders made. In relation to the Community Correction Order made on 10 April 2018, you were convicted and fined $59.60. In relation to the offending involving theft and unlawful assault, you were convicted and sentenced to an aggregate thirty days’ imprisonment, which was the number of days you had served by way of pre-sentence detention.
Your personal circumstances and background
10Your counsel tendered the following documents:
(a) “Submissions For Plea”, dated 6 May 2024;[5]
[5]Exhibit “A”
(b) report from the psychologist, Ms Daniella Kocic (“the psychologist”), dated 16 May 2024;[6]
[6]Exhibit “B”
(c) bundle of various certificates pertaining to courses undertaken by you in prison:
(i)“6 Hour Ice Effects” program, completed by you on 24 November 2022;
(ii)“Ice and Me” program, completed by you on 29 August 2023;
(iii)Statement of Results for you in relation to the completion of Certificate II in Kitchen Operations, dated 4 April 2023;
(iv)Certificate II in Kitchen Operations, dated 21 February 2023;
(v)“Atlas Remand Program”, undertaken by you;
(vi)“Houses and Homes” program, completed by you on 29 June 2022;
(vii)“Adapt” program, completed by you on 28 March 2022;
(viii)“Take Stock B” program, completed by you on 29 March 2022;
(ix)“Learning for Life” program, completed by you on 22 June 2022;
(x)“Jobs and Careers” program, completed by you on 27 June 2022;
(xi)“Healthy Living” program, completed by you on 23 June 2022;
(xii)“Take Stock A” program, completed by you on 9 June 2022;
(xiii)Statement of Results for Certificate I in Skills for Vocational Pathway, dated 27 May 2022;
(xiv)“Family, Friends and Community” program, completed by you on 28 June 2022;
(xv)“3 Hour AOD & Relationships Program”, completed by you on 7 December 2022.
(xvi)“Cannabis and Me” program, completed by you on 26 March 2024;
(xvii)Harm reduction strategies undertaken in relation to the use of drugs – particularly cannabis;
(xviii)Certificate II in Kitchen Operations, dated 27 March 2023;[7]
[7]Exhibit “C”
(d) the results of urine testing undertaken on 4 July 2022, which reported negative results in relation to amphetamines, buprenorphine, methamphetamine, cocaine, opiates, benzodiazepines and cannabinoids.[8]
[8]Exhibit “D”
11Partly based on some of the documents tendered and partly based on submissions made by your counsel, I note the following:
· You were born in Melbourne and are the eldest of your siblings, who consist of a half-sister aged 43, four maternal half-brothers (one set of twins aged 37 and twenty-eight and one who died aged five years old, as a result of a house fire).
· You informed the psychologist that your parents were together up to when you were about three, and during that time there was “always violence in the family”, which caused your mother to take you to Adelaide eight times in an attempt to escape from your father. You informed the psychologist that he “would always find us”, which, in turn, resulted in the police being constantly at your house, and despite various family violence intervention orders, it never stopped your father from physically assaulting your mother or her partners.
· You informed the psychologist that your mother experienced financial hardship and that you commenced work at the age of 11 to support her. At age 12, you absconded from your mother’s house in Adelaide, “hitch-hiking” to Melbourne to reside with your father, but later moved back to your mother’s house one year later due to your father’s physically-abusive behaviour towards his partner.
· You moved out of your home at age sixteen, residing in rooming houses with frequent relocations. You reported good relationships with your siblings and had a sense of responsibility for their safety due to you being the eldest.
· You were 17 years old when your mother died unexpectedly in her sleep, although you were advised it was due to a drug overdose (this was inconsistent with your belief that she did not use drugs). Your father died of a heart attack while riding a motorcycle and you reflected with the psychologist that, prior to his death, your father had changed his behaviour and you had reconnected. In particular, you detailed the death of your father as a major stressor which contributed to a range of issues which you have continued to experience over the years (financial difficulties, unemployment and drug use).
· Prior to being remanded for these offences, you were residing alone in commission housing in Dallas, where you had been for the past twelve years.
· You reported to the psychologist that, largely as a result of the relationship between your mother and father causing her to move several times, you attended approximately fifteen primary schools in Melbourne and eight in Adelaide, and five secondary schools in Melbourne and three in Adelaide. You attended one primary school for less than two weeks.
· You reported to the psychologist that you had difficulties with reading, but denied any diagnoses around learning, attention or behavioural disorders, or any provision of teacher aide or support, or placement in special education classes. You did report difficulties establishing and maintaining friendships due to your frequent relocations.
· You experienced frequent suspensions and expulsions throughout your primary and secondary school in the context of entering into physical altercations with your peers and getting into fights four out of five days a week.
· You informed the psychologist that you reached Year 10 secondary education and then left to financially support your mother.
· You worked in a butcher’s shop on a part-time basis through secondary school and was offered full-time employment upon leaving secondary school. You remained employed in that capacity for two years, after which you have held employment in various roles, such as forklift driver, warehouse operative, traffic management and gardening roles. In particular, you worked at Nestlé for six years.
· You informed the psychologist that you have not been employed since your father died in 2017 and have been in receipt of Jobseeker (Centrelink payments). You informed the psychologist that you have completed two courses in warehousing and hospitality while in remand and expressed an interest in returning to warehousing work upon release. At the time of the interview with the psychologist you were working in the kitchen area of the prison.
· You informed the psychologist that you have had one historical long-term intimate relationship, commencing when you were aged 17. Such relationship has produced five children, three daughters who are aged 21, 22 and 23 (at the time of interview by the psychologist) and twin sons aged 15. Your relationship with that partner ended approximately ten years ago in the context of such partner being unfaithful to you. There have been several Family Court proceedings and you presently share custody with your partner every second weekend, and despite the relationship ending, you reported you had a positive relationship with her.
· Prior to your remand, you reported being in a current relationship for approximately three years, although you have been in prison for the majority of that time. Your present partner has three children from a previous relationship and you had been in contact with her at the time of the interview with the psychologist.
· You informed the psychologist that you have a close relationship with various family members and your siblings.
· During the interview with the psychologist, you informed her that you were unaware of any difficulty surrounding your mother’s pregnancy or birth, or with you meeting any developmental milestones. Furthermore, you denied any formal mental health diagnoses – however the psychologist noted you reported symptoms of Attention Deficit Hyperactivity Disorder (“ADHD”), such as constant fidgetiness, inability to sit still and struggling to concentrate on tasks. Furthermore, you reported a history of depressive symptoms, such as feeling low for upwards of five days, excessive crying, feeling low and self-isolating. You also reported a history of Post-Traumatic Stress Disorder (“PTSD”), with symptoms such as flashbacks, nightmares, severe anxiety and hypervigilance.
· You have been on a longstanding prescription of 5 milligrams of diazepam (Valium), which you have taken for the last ten years on an as-needed basis. Since being on remand, you have been prescribed 45 milligrams of Mirtazapine (Avanza), an antidepressant for anxiety.
· Following your mother’s death, you informed the psychologist that you attempted to kill yourself with a knife and further detailed additional suicide attempts by drug overdoses and laying on a road, trying to be run over after a relationship ended.
· You did undertaken counselling for about six months when aged 17, when your mother died, but did not find it helpful and have not sought any further counselling as an adult due to the fear of feeling worse.
· You reported a medical history of suffering a head injury – being hit by a car at the age of eight, noting that you went through the windscreen and had a lump on your head until age 12. In particular, you reported frequent collapses during physical altercations at school and approximately ten years ago you reported being hit in the head with a hammer and baseball bat, which rendered you unconscious for an unknown duration. You reported having seizures following that incident.
· You informed the psychologist that you had been hospitalised numerous times due to head injuries, however are afraid of hospital due to losing family members in hospitals and therefore you do not return for follow-up appointments. Although denying being assessed for epilepsy, you reported ongoing issues with short-term and long-term memory and noted you struggle to articulate yourself at times.
· At the time of assessment by the psychologist, you had a dislocated shoulder requiring surgery.
· You informed the psychologist that you have a longstanding history of alcohol and other drug use, identifying self-medication. In particular, you commenced smoking cannabis at age eight and increased your usage at age ten, reporting consistent use throughout your life, smoking approximately 7 grams daily. You advised the psychologist that such cannabis use relaxed you and helped you to “forget what was going on”.
· You commenced using alcohol at age 11 and by age 30 your alcohol use increased to daily in the context of relationship issues. You reported to the psychologist that ongoing heavy use, particularly when your father died in 2017, until your current remand. You were introduced to amphetamines by your father at aged 14, noting that “[d]rugs got us together” and you used amphetamines until aged eighteen, when you replaced it with cocaine and you continue to “dabble” in cocaine now and then.
· Following the death of your father in 2017, you commenced methamphetamine use, initially smoking three to four points a day, increasing to upwards of seven points per day. You consistently used methamphetamine until your current remand and detailed instances of methamphetamine-induced psychosis, characterised by paranoia and visual and auditory hallucinations.
· You informed the psychologist there was a seven-month period of substance abstinence following release from prison in 2019. However, you relapsed due to a friendship circle and aside from the period of your current remand (27 months as at the time you saw the psychologist), you have not had additional periods of substance abstinence.
· Consistent with the various course certificates undertaken by you,[9] you informed the psychologist that you have undertaken numerous drug courses in prison. You noted that the shorter causes are more effective for you and you find yourself participating in group activities.
· You informed the psychologist that you had a prior criminal history going back to 1995, when you were 18, and you noted that the history of your offending occurred in the context of drug use and association with antisocial peers. You also noted that you attended and completed group anger management on two occasions, and last attended such a program at the age of 26, which resulted in you getting into a physical altercation within half an hour of the class commencing. You noted that there was a period of “desistance from reoffending” between 1997 to 2008, brought about, you considered, by a period of stability, in the context of working, being in a positive intimate relationship and being with your children.
[9]See exhibit “C”
The evidence of the psychologist
12Your solicitors arranged for you to be interviewed and assessed by the psychologist. Such assessments took place on 30 April 2024 and 2 May 2024 by way of video conferencing. During such interviews, the psychologist had available various documents supplied by your solicitor, obtained your family history, educational and occupational history, relationship and social history and a mental health and medical history, and an alcohol and substance use history. She also performed a mental state examination and administered various psychometric testing.
13On the basis of such material, she formed certain opinions, all of which were set out in her report dated 16 May 2024.[10]
[10]See exhibit “B”
14In particular, the psychologist noted that you attended both scheduled video conferences punctually and were polite and co-operative. Furthermore, she considered you answered questions to the best of your ability, however there were instances where you struggled to articulate yourself clearly, particularly during times of stress.
15There did not appear to be any perceptual disturbances such as hallucinations, delusions, thought alienation or passivity experiences at the time of her assessments. She noted that you acknowledged current suicidal ideation, however you denied planning your intent to follow through with such thought.
16The psychologist considered you of low-average intelligence, consistent with your attained education level. You did report memory difficulties and it was observed you had difficulty articulating yourself at times, evidenced by stuttering and periods of confusion when trying to elicit specific words. You described your mood as low and you were sometimes teary throughout the assessment, particularly when detailing your childhood traumatic experiences and the details of your offending.
17In particular, the psychologist obtained the following history under the heading of “Circumstances of Current Offending” contained within her report.
“[She notes] the contents of the Summary of Prosecution Opening for Trial1 which outlines [your] offending occurred on 01 January 2022.
[You] detailed [your] psychosocial circumstances in the lead up to the offending. [You were] residing in Dallas alone, and seeing [your] children every second weekend. [You were] in a relationship with [your] current partner, seeing her occasionally. From a financial perspective, [you] reported living off Centrelink, as [you have] been unemployed since 2017, following [your] father’s death.
[You] stated [your] mother’s birthday was on New Year’s Eve and [you were] likely feeling low and sad due to reflecting on her death, and [your] father’s birthday was on 15 January, also contributing to [your] distress. As a result of feeling depressed, [you] reported using a range of drugs such as cannabis, methamphetamine, cocaine, and alcohol, to ‘get rid of all [your] thoughts’. [You] reported [you were] awake for one week prior to the offending, due to [your]drug use.
[You] detailed [your] friendship with the victim, stating [you] have known each other since [you were] age 14. [You] denied attending the victim’s home on the day of the offending, believing it was ‘another guy’, however, [you] acknowledged attending the victim’s home the day prior and denied having an argument with the victim.
In terms of the actual commision (sic) of the offending, [you] reported [you were] driving [your] vehicle, bent down to grab a smoke, and hit something”. [You] realised [you] hit a person which led to panicking and driving away. [You] instructed [you] did not realise who [you] hit until [you were] told by the police. [You] denied the incident was intentional. Alcohol and methamphetamine was present in an oral fluid test.
In the aftermath of the offending, [you] reflected that [you] should not have been driving, due to having no licence at the time. [You] reflected [you] ‘should’ve stopped… should’ve assisted’ the victim. [You were] hopeful [you] could reestablish [your] friendship with the victim.
When asked how [you] could prevent [yourself] from reoffending, [you] stated that having employment would assist [you], and attending rehabilitation to address his AOD use.”[11]
[11]See exhibit “B”, page 6 at paragraphs [66]-[72]
18The psychologist performed a risk assessment relating to your general risk of re-offending and found that your such risk is considered “high” on the basis of your prior criminal history (wherein there was a history of similar offences), poly-substance use, antisocial peer group, vicarious psychosocial circumstances (longstanding history of unemployment and financial difficulties), lack of support and inherent emotional and personal factors which would increase your risks, such as impulsive behaviour, poor problem solving and self-regulation skills.[12]
[12]See exhibit “B”, generally at paragraphs [108]-[113]
19The psychologist went on to express what she referred to as her “psychological opinion”. She states:
“[You are] a 47-year-old male presenting with a prejudicial childhood and adversity. [You have] experienced childhood trauma, instability, disrupted attachments, interrupted education, early onset substance use, and family violence. [Your] functioning within society has been impacted by [your] early life experiences and contributed to [your] maladaptive responses to [your] life stressors and trauma (i.e., polysubstance use, antisocial behaviour, recklessness).
[Your] exposure to traumatic events throughout [your] childhood predisposed [you] to develop Posttraumatic Stress Disorder (PTSD) characterised by high levels of intrusive symptoms, avoidance, and negative alterations in cognition and mood. Adverse childhood experiences disrupt the development of emotional regulation in children and can impact their ability to regulate themselves and manage their emotions and impulses.
In addition, [your] presentation encompasses additional symptoms now considered to warrant a separate, more complex and severe disorder which stems from repeated and protracted incidents of abuse, as experienced by [you]. Complex-PTSD (C-PTSD) includes the core symptoms of PTSD in addition to three disturbances of self-organisation (DSOs) defined as emotional dysregulation, interpersonal difficulties and negative self-concept. [You] would meet criteria for this revised diagnosis, which currently exists in ICD-11.
Although at the time of the current assessment, [you] did not meet the clinical threshold for a diagnosis of PTSD, there is evidence of lifetime symptoms which have met diagnostic criteria in the past. PTSD symptoms fluctuate in intensity and frequency and are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use. [You are] curently (sic) experiencing subclinical symptoms which are likely due to the high levels of avoidance employed, therefore [you are] likely to meet full criteria again in the future dependent on internal and external stressors.
[Your] clinical presentation encompasses depressive symptoms which appeared to have developed in the context of [your] mother’s death, the breakdown of [your] intimate relationship, and [your] father’s death which contributed to recurrent depressive episodes. [Your] Major Depressive Disorder (MDD) is characterised by low mood, lack of motivation, fatigue, anxiousness, and sleep disturbances. It appears [your] MDD is an ongoing concern that warrants psychological intervention, particularly as it appears exacerbated in the custodial environment.
In the absence of effective coping strategies, [you have] self-medicated [your] distressed and unprocessed grief with drugs, particularly developing Alcohol, Cannabis, and Stimulant (Amphetamine-type) Use Disorders. [Your] polysubstance use appears to have been perpetuated due to a sense of escapism from negative feelings.
[Your] chronic substance use increases [your] already heightened baseline levels of impulsivity, risk-taking and behavioural disinhibition (i.e., a lack of self-control or restraint). These factors increase the risk of criminal misconduct and can be seen as present within [your] offending. At the time of the current assessment, [your] substance use disorders are considered to be in sustained remission (>12 months), in a controlled environment (custody).
Through [your] ongoing substance misuse and antisocial peer group, it is inferred that [your] criminal attitudes and beliefs condoning violence were likely adopted and reinforced. Over time, the use of violence has normalised as an acceptable means of resolving conflict. It appears that [your] engagement in criminal activity was influenced by [your] peer associations, use of substances, and symptoms associated with trauma. [You exhibit] difficulty regulating [your] emotions and is prone to resorting to physical aggression. The untreated nature of [your] MDD, and in particular, [your] C-PTSD, means [you are] more likely to react aggressively to situations based on [your] threat perception, which is already heightened due to [your] trauma history.
Taking into consideration [your] history, the circumstances leading up to the offending, and [your] functioning at the time of the offence, several factors likely contributed to [your] offending behaviour. [Your] exposure to adverse childrearing experiences impacted [your] mental health functioning within society and predisposed [you] to have a higher susceptibility and lower threshold for perceived threats, psychological distress, and emotional dysregulation. Additionally, [your] early exposure to family violence likely normalised and predisposed [you] to an increased susceptibility to model this behaviour as a form of intergenerational violence (i.e., a perception that ‘violence solves problems’).
It did not appear that [your] C-PTSD directly contributed to [your] offending behaviour, however, [your] longstanding, untreated trauma, grief, and depression were the precipitants to [your] polysubstance use, which aided in the commission of [your] offending behaviour.
[Your] abuse of substances at the time of the offending would have further affected [your] judgement, and decision-making, and amplified [your] behaviour, increasing [your] risk of impulsivity, aggression, and poorly considered actions. It is likely that [you] would have exerted more control over [your] behaviour had [you] not been using substances in the period preceding the offending period.
Overall, there are a number of factors outlined which are linked to [your] offending behaviour and impaired functioning. [Your] mental health has caused a level of impairment which has affected [your] functioning; [your] untreated mental health issues, including C-PTSD and MDD, mean [you have] a reduced capacity for self-management, that is, [you have] not developed adequate and adaptive coping mechanisms to regulate [your] behaviour, thoughts, or emotions in a proactive manner. Instead, [you have] relied upon drugs to alleviate the mental pain. These factors are however amenable to treatment and can be mitigated through psychological intervention.”[13]
(Footnote omitted.)
[13]See exhibit “B” at paragraphs [114]-[126]
20The psychologist also opined that any imprisonment would likely weigh more heavily on you than on a person without the conditions which she has earlier described. In particular, in people with C-PTSD, there is the potential for significant mood fluctuation and the volatile environment of prison can further exacerbate the symptoms profiled and the risk of decompensation. Furthermore, she was of the opinion that your psychological profile places you at a higher risk of inappropriate or disproportionate response due to poor emotional regulation and a lack of healthy coping mechanisms, which can result in unintentional sanctions and a higher vulnerability to experience issues with other offenders or with staff.[14]
[14]See generally exhibit “B”, page 12, paragraphs [129]-[131]
21The psychologist also noted that you demonstrated only partial insight into your offending behaviour. She comments that you identified precipitants in your offending (that is, reflection on your parents’ deaths, feeling depressed and low and drug use), however you were avoidant in discussing specific details, particularly regarding seeing the victim on the day of the offending.
22Ultimately, it was her opinion that, while you did not attempt to deny your involvement in the offence or minimise the consequences of your conduct, you took limited responsibility for your conduct, attributing most of your behaviour to your substance use.[15]
[15]See exhibit “B”, page 7, paragraphs [77]-[78]
Matters in mitigation of your sentence
23Your counsel submitted that the objective gravity of your offending conduct is “serious” and that general and specific deterrence play a significant part in the instinctive synthesis. Furthermore, your counsel conceded that your offending calls for the imposition of a sentence that involves your confinement, with the caveat of taking into account the various mitigating matters in the plea. It was submitted that it was open for a sentence of imprisonment to be imposed which allows for a release back into the community with support and supervision, remained within range. In particular, it was submitted that such a course can be achieved by way of either a head sentence and non-parole period or, alternatively, a combined sentence involving a term of imprisonment, followed by a lengthy Community Correction Order.
24In particular, your counsel also accepted that you have relevant prior convictions, noting that you first appeared before the courts in 1995 at the age of 18, in relation to charges arising from being intoxicated. She noted that, since that time, you have undergone periods of imprisonment, suspended sentences and a number of community-based orders.
25She further notes that you underwent your first period of imprisonment in 2016 and were again imprisoned in late 2018 for an attempted armed robbery and other related offending. You were sentenced on 14 June 2019 to a total effective sentence of one year, ten months and fourteen days, which, after a declaration of 236 days of pre-sentence detention, you were released on parole on 16 April 2020. You completed the parole period on 3 September 2020 without incident.
26Your counsel made the following particular submissions:
(a) Your plea of guilty
Your counsel submitted that although your plea of guilty was not that early in a “time sense”, such plea must be seen in the context of the circumstances leading up to the plea. Your counsel noted that you were initially charged with intentionally causing “serious injury” in circumstances of gross violence. The “serious injury” which was relied on by the prosecution was a traumatic brain injury brought about by the collision.
The issue arose at the committal hearing as to whether Alameddine had suffered a serious injury, given that he had pre-existing cognitive difficulties as a result of a traumatic event not connected to the subject offending. Medical opinion from Dr Gaya, to whom reference has been made earlier, conceded that material which he was shown would suggest that there were some pre-existing cognitive difficulties.
The Court was informed that the prosecution then accepted that, rather than intentionally causing serious injury in circumstances of gross violence, one charge of intentionally causing injury was more appropriate.
Again, your counsel submitted without dispute that you, through your solicitors, made a number of offers to resolve the matter before such offer was accepted by the prosecution. In particular, the Court was informed that your counsel made an offer to plead guilty to intentionally cause injury after the case assessment hearing on 8 June 2023 – such offer being rejected and the matter then set down for trial on 7 February 2024. A further offer was made to resolve on 22 January 2024 on the same basis as that offered in June 2023. The offer was accepted on 2 February 2024 and the matter set down for a plea hearing after a short-form arraignment on 7 February 2024.
Your counsel submitted that your plea of guilty represents significant utilitarian benefit – that is to say, such pleas of guilty obviate the need for resources to be spent on a trial and avoids the necessity for witnesses to give evidence and relive the circumstances of your offending. Furthermore, your counsel submitted that such pleas of guilty are acknowledgement of your offending conduct.
Counsel also referred to Worboyes v R,[16] wherein the Court of Appeal (consisting of Priest, Kaye and T Forrest JJA) stated in part:
[16][2021] VSCA 169 at paragraph [39]
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”
As I understand the submissions of counsel for the prosecution, it was submitted that there clearly was utilitarian benefit by the resolution of the matter. Furthermore, in the absence of any Court of Appeal decision to the contrary, the principles enunciated in Worboyes would have application.
Under a consideration of these matters, I do accept that the plea of guilty, although it cannot be considered an early one in time, must be considered in the context of the negotiations between the parties. In all the circumstances there has been clear utilitarian benefit by your pleas and furthermore I consider that, given the date when you were prepared to plead guilty, the principles enunciated in Worboyes still had some application.[17] These matters will be taken into account in mitigation of your sentence;
[17]I refer to the decision of DPP v Lindemann [2024] VSC 220 wherein Hollingworth J discusses the relevance of Worboyes to pleas made in that case in June 2023. In all the circumstances I consider there should be some limited weight given to the application of Worboyes. See also: DPP v Hillman [2024] VSC 100 at paragraphs [75]-[76]
(b) Application of Bugmy v R[18]
[18](2013) 249 CLR 571
Your counsel submitted that your:
“… prejudicial childhood and social deprivation during [your] formative years are more than matters of historical significance and it is well accepted law that the effects of such deprivation and social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences.”
(Footnote omitted.)
Reference was made to the High Court decision of Bugmy. I refer to Bugmy and, in particular, I refer to paragraphs 40 and 43 to 44, which state:
“[40]… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
...
[43]The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44]Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
(Emphasis added.)
I also refer to the Victorian Court of Appeal decision of DPP v Herrmann.[19] In that decision, the Court of Appeal (consisting of Maxwell P, Kaye, Nyall, T Forrest and Emerton JJA) explained that, in Bugmy, the High Court expressed, in two different ways, the potential relevance of childhood deprivation to the assessment of moral culpability. The first – described as “more general” – was expressed by those words underlined in paragraph 40 above, and the second – described as “more specific” – was expressed by those words underlined in paragraph 44 above.
[19][2021] VSCA 160
I also refer to the Victorian Court of Appeal decision of Marrah v R[20] [and, in particular, at paragraph 16 where the Court (consisting of Redlich and Tate JJA) stated:
[20]2014] VSCA 119
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.”
Seemingly, your counsel seeks to rely on the two different ways expounded in Herrmann as to the application of the Bugmy principle – that is to say , that your moral culpability is reduced as a result of such childhood deprivation. Counsel for the prosecution submitted that Bugmy can be applied to a “limited extent”.
After a consideration of the evidence available to the Court, I do accept that you were raised in a community surrounded by physical violence, both to your mother, her partners and you, after separation from your father. Furthermore, you have been exposed to drug use at a very young age. In all the circumstances, I consider that the principles enunciated in Bugmy have relevance and I accept that your moral culpability is reduced to some extent because of this feature of your upbringing;
(c) Application of Verdins’ principles
Your counsel also submitted that the opinions of the psychologist enlivened the so-called Principles 5 and 6 set out in the matter of R v Verdins; R v Buckley; R v Vo,[21] a decision of the Victorian Court of Appeal. In particular, paragraph 32 of that decision (the court consisting of Maxwell P, Buchanan and Vincent AJA) stated:
[21](2007) 16 VR 269
“Impaired mental functioning, whether temporary or permanent (‘the condition’) was relevant to sentencing in at least the following six ways:
1. …
.2 …
3. …
4. …
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
6.Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.”
In particular, your counsel referred to paragraphs 129 to 131 of the report of the psychologist.[22] Counsel for the prosecution, in his oral submissions, accepted that Principles 5 and 6 as set out in Verdins have “some application”.
[22]See exhibit “B”
After a consideration of all the evidence, I accept that Principle 5 is clearly enlivened by the evidence of the psychologist. It is less clear whether Principle 6 is so enlivened – particularly bearing in mind that you have been incarcerated since 2 January 2022 and there is no direct evidence before the Court you have suffered any “significant adverse effect” to your mental health during such incarceration.
However, it is to be noted that the psychologist did opine:
“… In addition, [your Major Depressive Disorder] and anxious symptoms can further exacerbate [you], and contribute to a deteriorated mental state.”
(Emphasis added.)
In such circumstances, I give some limited weight to the application of Principle 6 being enlivened as a result of the evidence of the psychologist;
(d) Remorse
Your counsel submitted that your plea of guilty, to which reference has already been made, is also some evidence of “remorse” in relation to the subject offending. It is a matter for the presiding judge as to whether a plea of guilty is some evidence of remorse: refer Phillips v R [2012] VSCA 140. After a consideration of all of the evidence, I consider that you have shown little remorse for your subject offending.
In particular, I refer to the following matters:
(i)I refer to the opinion of the psychologist, when she stated, in part, that although you did not attempt to deny your involvement in the offence or minimise the consequences of your conduct, you took “limited responsibility for [your] conduct, attributing much of [your] behaviour to [your] substance use”. I also bear in mind that the victim, Alameddine, had been known to you since the age of fourteen;
(ii)It is perhaps also of significance to note that, when you were assessed for a Community Correction Order, the Corrections officer reported, in part, that you:
“… failed to acknowledge the full extent of [your] actions and their impact on the victim. [Your] responses lacked justification, both prior to and following the offending, being an indication that [you] are not yet ready to take responsibility for [your] offending”;[23]
[23]I refer to the Community Correction Order made on 21 May 2024 and direct that it be tendered and marked as exhibit “F”
(e) Prospects of rehabilitation
It was submitted by your counsel that you remain “worthy of reformation” and the Court can place particular emphasis on rehabilitation as a sentencing purpose. In particular, it was noted by your counsel that you have undertaken a number of courses while in custody, which, so it was submitted, demonstrates your willingness and motivation towards change.[24]
[24]I refer to exhibit “C”, which sets out the various certificates representing courses you have undertaken while in prison
It was further submitted by your counsel that your risk of reoffending is dependent upon you maintaining abstinence from illicit drug use, with a specific focus on treatment and specialised interventions to promote insight into your drug use and to maintain developing alternative coping strategies. Reference was also made to exhibit “D”, which constitutes evidence of a urine test undertaken while in prison on 4 July 2022 which reported negative results in relation to amphetamines, buprenorphine, methamphetamine, cocaine, opiates, benzodiazepines and cannabinoids.
As I have already recorded in these reasons, the psychologist was of the view that your general risk of re-offending was “high”, on the basis of your prior criminal history (which includes similar offences of possession of cannabis in particular), polysubstance use, antisocial peer group, vicarious psychosocial circumstances (longstanding history of unemployment and financial difficulties) and the lack of support and inherent emotional personal factors which would increase your risks, such as impulsive behaviour, poor problem-solving and self-regulation skills.
I also refer to the report of the Corrections officer who examined you for the purposes of the Community Correction Order wherein it was stated that you were at high risk of reoffending, according to the Level of Service/Risk assessment tool.
Clearly enough, for any rehabilitation to have any chance of success, it will involve you overcoming the various matters referred to in the report of the psychologist and, in particular, overcoming your long-term significant drug habits.
After consideration of all of the evidence, I consider your prospects of rehabilitation are “guarded”.
(f) General hardship
Bearing in mind you have been on remand since 2 January 2022, I accept you would have suffered a degree of extra hardship in prison as a result of the consequences of the COVID-19 pandemic. Although your incarceration did not occur when the pandemic was at its worst, I do accept there has been some degree of ongoing hardship as a result of the pandemic – for example, lockdowns after any new prisoner is found to suffer from COVID-19 and, indeed, in general terms, less facilities and less contact with family. I intend to give some limited weight to that issue, which is, as one would expect, diminishing over time;
(g) Charge 3 on the Indictment
Charge 3 on the Indictment involves the offence of possessing a drug of dependence, namely Cannabis-L. Your counsel submitted, during the course of the plea, that on the evidence available to the Court, there can be no issue that the possession of cannabis was for personal use rather than for any trafficking purposes. In response, counsel for the prosecution accepted that the small amount of cannabis found by the authorities on 2 January 2022, was for personal use.
I accept that such drug was for personal use, but do note that there are prior convictions for the possession of cannabis over the previous years, consistent with your history that you have been a frequent user of such drug.
27Ultimately it was submitted by your counsel that, taking into account all matters, including all sentencing principles, a sentence of imprisonment with a supervisory post-release order does not ignore the importance of denunciation, deterrence and punishment in the sentencing process and balances “those considerations against the need to impose a just sentence in all the circumstances on an offender that enhances and encourages rehabilitation for the ultimate benefit of the community.[25]
[25]Reference was made to the well-known decision of Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309
The position of the Prosecution
28Counsel for the prosecution submitted that your moral culpability in relation to the offending, particularly Charges 1 and 2 on the Indictment, was high and the seriousness of the offending was also high. It was submitted that, in all the circumstances, the only appropriate disposition was to sentence you to an immediate period of imprisonment with a non-parole period.
Community Correction Order
29At the conclusion of the plea, the Court ordered that you be assessed as to your suitability for a Community Correction Order. It was made plain to the parties that this was not necessarily the course the Court would take, but, rather, to have a so-called “full hand” when considering an appropriate sentence.
30Such assessment was undertaken by an assessing officer for Corrections on 21 May 2024. In the report of the same date, the assessing officer noted:
(a) that you had been assessed as being of high risk of re-offending according to the Level of Service of Risk Assessment Tool;
(b) that you had had previous involvement with Community Corrections Services, in that you were subject to seven community-based dispositions between 2016 and 2020 and that you contravened all but two of such orders;
(c) that you showed “a lack of remorse” and stated that you “pleaded guilty to hitting a guy,” and that you were not aware of the offences until your arrest.
31The assessing officer ultimately considered that you were unsuitable for a Community Correction Order.
Conclusion
32On 20 May 2024, you were fully arraigned and pleaded guilty to various offences which occurred on 1 January and 2 January 2022.
33In relation to the offending on 1 January 2022, you pleaded guilty to intentionally causing injury to Alameddine (Charge 1 on the Indictment); that you drove a motor vehicle on a highway without being a holder of a driver’s licence (Summary Charge 5); failing to immediately stop your motor vehicle after it was involved in an accident (Summary Charge 16) and failing to immediately render such assistance as you could after the accident (Summary Charge 17).
34In relation to the offending on 2 January 2022, you pleaded guilty of recklessly engaging in conduct, namely, driving a motor vehicle erratically and driving at an excessive speed that placed, or may have placed, persons in danger of serious injury (Charge 2 on the Indictment); that you drove a motor vehicle, knowing you had been given a direction to stop the motor vehicle by a police officer (Summary Charge 6); that you drove a motor vehicle on a highway without being the holder of a driver’s licence (Summary Charge 7) and that you drove a motor vehicle with more than the prescribed concentration of alcohol present on your breath (Summary Charge 8).
35Of these charges, Charges 1 and 2 on the Indictment are the most serious given the inherent nature of such offending, and the prescribed maximum penalties of respectively ten years in relation to Charge 1 and five years in relation to Charge 2.
36Charge 3 on the Indictment involves you possessing a drug of dependence – namely Cannabis-L. It is common ground between the parties that possession of such drug was of a small quantity and was for personal use. Indeed, this is consistent with your history over the years of being a regular cannabis user. Although you have prior convictions for cannabis use (in 2010, twice in 2011, 2012 and 2016, all of which resulted in your being fined). I intend to convict you of that offence and sentence you to a fine.
37In relation to the events on 1 January 2022, I accept that at approximately 12.17pm on that day, you drove your Holden Commodore to Alameddine’s home address, situated in a block of units in Campbellfield. When you drove your vehicle on that day, you were unlicensed to drive a motor vehicle (giving rise to Summary Charge 5).
38When at the carpark at Alameddine’s address, I also accept that an argument ensued between you and Alameddine, as observed by the witness, Noom, and it was stated that the argument went for about five to fifteen minutes, and although not hearing what the argument was about, it was noted that Alameddine called you a “dog” before you left.
39There is no evidence before the Court as to what the substance of the argument was and you assert that you have no particular memory of such argument.
40At the completion of the argument, Noom saw you leave the carpark in your car at about 12.57pm and two minutes later observed Alameddine leaving his address riding a motorised scooter. Alameddine rode his scooter along Reserve Road before turning right into Campbell Street, where he continued along the wrong side of the ride, that is to say, in the northern gutter edge. You were driving west along Campbell Street when you steered your vehicle to the right and onto the incorrect side of the ride, after which your manoeuvred your vehicle to strike the scooter driven by Alameddine with the right side of your vehicle, mounting the gutter (Charge 1 on the Indictment, intentionally causing injury).
41The CCTV footage shows your vehicle in the seconds leading up to the collision, the actual collision and you driving away after the collision.
42In particular, it dramatically displays how you drove your vehicle across the road onto the wrong side of Campbell Street and behind Alameddine driving his scooter, and then striking Alameddine from behind.
43Although appreciating that such offence is intending to cause injury, it is clear from the CCTV footage that you made a clear and deliberate decision to cross Campbell Street to drive on the wrong side of the road and collide with the scooter driven by Alameddine in the same direction as you were then travelling.
44Furthermore, I accept the evidence of Detective Leading Senior Constable Hardiman of the Major Collision Investigation Unit, who is a trained collision reconstructionist that, on impact, your vehicle was travelling at no less than 28 kilometres an hour. On the material before the Court, I consider such offending to be a flagrant example of you intentionally causing injury to Alameddine.
45Alameddine suffered various injuries, including a right-sided subgaleal haematoma and a subarachnoid haemorrhage; right lower lobe consolidation with loss of volume; left basal atelectasis with atelectasis or consolidation in the right upper lobe (lung injuries); a laceration to the spleen that extended to the splenic capsule, involving two components, with the larger measuring 23 millimetres; a fracture to the right side of the sacrum (lower spine) and various subcutaneous contusions – that is bruising and a hernia of the transverse colon.
46He was taken to The Royal Melbourne Hospital for treatment and thereafter attended the Caulfield Acquired Brain Injury Rehabilitation Centre on 15 January 2022, where he remained for about two weeks after the collision. On discharge, Alameddine required further occupational therapy, interventions to optimise independence with functional transfers and mobility with and without aids, and to optimise independence with personal activities of daily living, with or without aids, and to resolve his post-traumatic amnesia and to facilitate a return to baseline cognition. He also required ongoing physiotherapy intervention to optimise his mobility and undergo balance training and outdoor gait re-training.
47In particular, it is to be noted that, although Alameddine had suffered pre-existing cognitive issues as a result of an acquired brain injury, the subject accident involved a worsening of that condition.
48Immediately following such collision, you reversed a short distance to unsuccessfully attempt to dislodge the scooter from the front bumper of your vehicle. Then you continued to travel east along the street, with the scooter lodged underneath the vehicle. You ultimately drove into a carpark at a reserve, at which time the scooter was dislodged from your vehicle. In particular, I consider that there can be no issue that you would have known that such a collision involved the scooter driven by Alameddine and that you struck such scooter, causing it to lodge onto your vehicle.
49I have considered the objective seriousness of this offence to be high and your moral culpability also high, although that is subject to some reduction, as I have already pointed out, pursuant to the principles established in Bugmy.
50This event must be also seen in the context that, according to you, you had known Alameddine since the age of 14. Notwithstanding, you made no effort to stay at the collision scene (Summary Charge 16 – failure to stop after an accident) and made no effort to assist the clearly injured Alameddine (Summary Charge 17 – failure to render assistance after an accident). Such offending, I consider, occurred in circumstances where you were well aware that a collision had occurred and aware that Alameddine was the person on the scooter and aware that Alameddine had suffered injuries.
51Of the evidence before me, there is no clear evidence as to why you undertook such offending and it is probably the case that the event followed on from the argument witnessed by Noom, given the close proximity to such argument. It is to be noted, also, that no Victim Impact Statement was forthcoming from Alameddine.
52The offending which occurred on 2 January 2022 essentially involved police attempting to apprehend you when your vehicle was sighted at approximately 12.30pm on that day. In particular, the police initially observed you driving at 4.30pm and the airwing commenced observations of your vehicle at 4.38pm and maintained those observations up until your arrest at approximately 5.12pm.
53Over that period of time when under observation, you drove recklessly through numerous residential streets in Brunswick that placed road users and pedestrians in danger, by driving at a speed in excess of the posted speed limits, overtaking vehicles across solid lines and on blind bends, reversing in an unsafe manner in order to avoid deployed stop sticks and failing to stop or give way at intersections (Charge 2 on the Indictment – reckless conduct endangering persons of serious injury).
54At the time, you were again driving without a licence (Summary Charge 7 – unlicensed driving) and also committed the offence of failing to stop your motor vehicle when directed by a police officer (Summary Charge 6).
55When you were arrested, a search revealed that you were in possession of a small plastic deal bag containing a small amount of cannabis (to which reference has already been made). Furthermore, an evidentiary breath test and oral fluid test was conducted at the Fawkner Police Station, the results of which revealed the presence of 0.022 grams of alcohol (Summary Charge 8 – exceeding the prescribed alcohol limit). It is to be noted that you have prior convictions in relation to this offence – such convictions being recorded on 21 February 2008 at the Heidelberg Magistrates’ Court and on 18 November 2013 at the Broadmeadows Magistrates’ Court.
56Given your status as an unlicensed driver, you were required to have no alcohol found on your breath.
57Again, I consider the episode of your driving on 2 January 2022 is objectively quite serious, given the period of time that you evaded police when knowing they were seeking to retain you (that is, from approximately 4.30pm to 5.12pm) and during which time you posed a real danger to both pedestrians and other road users. Again, I consider your moral culpability is high subject to the principles espoused in Bugmy.
58You are presently 47 years of age, and as your counsel freely concedes, have a criminal record involving a variety of matters going back to 1995. As already indicated, you have previous convictions for cannabis possession and exceeding the prescribed alcohol limit. You also have previous convictions for unlicensed driving (8 November 2013) and on 31 March 2009 you were convicted of recklessly causing injury and resisting police. You also have convictions for assaulting an emergency worker on duty and unlawful assault (14 June 2019).
59Furthermore, as pointed out by the Corrections officer in her report as to your suitability as to a Community Correction Order, you have been subject to seven community-based dispositions between 2016 and 2020, and you contravened all but two of such orders.
60As I have already recorded, I do accept that you had a dysfunctional childhood, being exposed to family violence, precipitated mainly by your father against your mother, but also against you, over the years. Furthermore, you commenced drugtaking when young and have a longstanding history of alcohol and other drug use, which you have identified you have used for self-medication.
61Given the serious nature of your offending, particularly in relation to Charges 1 and 2 on the Indictment and bearing in mind your poor history of complying with Community Correction Orders, I am of the opinion that it is not appropriate for you be sentenced to a Community Correction Order, either in combination, or alone.
62In relation to Charges 1 and 2, I am going to convict you of each offence and sentence you to various periods of imprisonment. I have already commented on what I believe to be a correct disposition in relation to Charge 3 on the Indictment.
63I also intend to convict you in relation to the two charges of unlicensed driving, although note that the two charges, relating to different days, are very close in time, and I intend to order an aggregate sentence in relation to those two charges.
64I do consider that the offending involving not stopping for police to be a more serious type of charge, as I also consider the charges in relation to your failure to stop at the accident and render assistance. I accept that the charges relating to failure to stop and failure to render assistance, although standalone offences, are somewhat connected in that, if you do not stop, you cannot assist.
65Notwithstanding, given you had known Alameddine for some period of time – since the age of 14 – and having knowledge that he was riding the scooter you ran into, it is relatively-serious offending, not either stopping or rendering assistance. Rather, the evidence would suggest that you were far more concerned with disengaging part of the scooter from your vehicle, causing you to initially reverse and later go into a carpark to remove any debris from the collision.
66I also intend to convict and sentence you to a relatively-small term of imprisonment in relation to the offence of driving a motor vehicle with more than the prescribed concentration of alcohol present. In this respect, you are not entitled to drive with any alcohol on your breath. The prescribed reading was 0.022. Given such offending, you will also suffer the cancellation of any licences you have and more particularly a disqualification period from obtaining any further licences.
67I consider that specific and general deterrence, denunciation and protection of the community are relevant factors into coming to an appropriate sentence. Furthermore, I also take into account the various mitigating factors which I identified earlier in these Reasons for Decision. In coming to an appropriate sentence, I am also conscious of the principle of totality, given the relatively large number of offences over 1 and 2 January 2022.
Your sentence
68Please be upstanding:
(a) in relation to Charge 1 on the indictment you are convicted and sentenced to a period of imprisonment of forty-two months;
(b) in relation to Charge 2 on the indictment you are convicted and sentenced to a period of imprisonment of ten months;
(c) in relation to Charge 3 on the indictment you are convicted and sentenced to a fine of $500;
(d) in relation to Summary Charges 5 and 7 you are convicted and sentenced to an aggregate period of imprisonment of one month to be served concurrently with other sentences ordered this day;
(e) in relation to Summary Charge 6 you are convicted and sentenced to a period of imprisonment of three months;
(f) in relation to Summary Charge 8 you are convicted and sentenced to a period of imprisonment of four months;
(g) in relation to Summary Charge 16 you are convicted and sentenced to a period of imprisonment of four months;
(h) in relation to Summary Charge 17 you are convicted and sentenced to a period of imprisonment of four months;
(i) I direct that eight months of the sentence in relation to Charge 2 on the indictment, two months of the sentence in relation to Summary Charge 6, two months of the sentence in relation to Summary Charge 8, two months of the sentence in relation to Summary Charge 16, and two months of the sentence in relation to Summary Charge 17, be cumulated with the sentence in relation to Charge 1 on the Indictment and on each other.
(j) the total effective sentence is four years and ten months, and I order that the minimum term to be served before being eligible for parole is three years and two months;
(k) in relation to Summary Charge 8, I order that licences held by you to drive a motor vehicle be cancelled, and you are disqualified from obtaining such a licence for a period of 15 months;
(l) In relation to Charge 2 on the Indictment, I order that all licences held by you to drive a motor vehicle be cancelled, and you are disqualified from obtaining such a licence for a period of 24 months;
(m) I declare that you have served, up to but not including today, 911 days of pre-sentence detention, and that such days should be administratively deducted from the sentence ordered against you;
(n) the Court makes the disposal and forfeiture orders sought;
(o) pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty I would have ordered a total effective sentence of six years.
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