Director of Public Prosecutions v Leishman

[2018] VCC 1137

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-01063

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY LEISHMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 July 2018
CASE MAY BE CITED AS:	DPP v Leishman
MEDIUM NEUTRAL CITATION:	[2018] VCC 1137

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr W. Barker

HIS HONOUR:

1Darcy Thomas Leishman, you have pleaded guilty to one charge of carjacking, one charge of negligently causing serious injury, and one charge of intentionally causing injury.  Those crimes carry a maximum penalty of 15 years, ten years, and ten years, respectively. 

2You have also pleaded guilty through your counsel to four uplifted summary matters, which I do not think I need to go into the detail of here.  On each of those, you are to be sentenced for one month.  They are to be concurrent. 

3On the charge of refusing a preliminary breath test, you licence will be disqualified for the minimum term of four years.  I can indicate, in respect to that charge, that bearing in mind you were unfit to be interviewed, I do not regard it as of high significance, but the fact of the matter is you did refuse to do it.  Those matters can just be taken into account in that way.

4You are now 25 years of age.  You pleaded guilty at a reasonably early opportunity and you must get the benefit of that plea of guilty.  You have expressed appropriate remorse and I accept that.  You also must get the utilitarian benefit of that plea of guilty.

5Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having have been made, I advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

6I have, as you know, sentenced you before back in 2011.  At that time, I sentenced you for intentionally causing serious injury and armed robbery on a cognitively impaired victim.  That was serious offending and in the end I gave you five years with a non-parole period of two years and six months. 

7I am told that you were ultimately released on parole and there were subsequent matters which would have appeared to have occurred prior to the sentence that I imposed.  I was reluctant, at that point, to impose such a significant sentence on one so young, as you were 18.  But you come before me again for serious offending with that prior conduct as clearly an impediment. 

8The offending can be described in very brief terms.  As I said, you are now 25; you were 24 at the time of the offending and at the time of it, you were on bail, which relates to a summary matter. 

9On 14 September at approximately 2017, around about 2.25 pm, you had been at the Moe police station and were seen on CCTV.  At approximately
2.20 pm on that date the victim, a Navita Gilmore, had been sitting in her partner's blue car while he went into Woolworth's to purchase milk.  The keys were in the ignition so she could listen to the radio while she waited. 

10You walked to the driver's side door of the motor vehicle and stood there for approximately 30 seconds before opening the door.  She asked you what you were doing and you replied, "Be quiet, shut up", as you sat down in the driver's seat.  She attempted to unfasten her seatbelt and was able to release in the end, as I understand it.

11You started the ignition of the motor vehicle and began to drive it.  You did not hold a motor vehicle driver's licence, she screamed for help and opened the passenger side door.  She became very scared and feared for her life.  She jumped out of the vehicle and landed on the hard paved parking area.  The motor vehicle continued to drive and the tire ran over her left ankle; that gives rise to the charge of carjacking and the charge of negligently causing serious injury.

12You then drove down Anzac Street in Moe while she lay on the road screaming for help.  She felt extreme pain in her ankle.  Emergency services arrived and conveyed her to the Latrobe regional hospital, where it was found she had an open fracture of left-medial malleolus, bruising on her left ankle and grazing on her left calf and ankle.

13You drove to the intersection of Waterloo Road and Mervyn Street, where you left the car and absconded.  At approximately 3.30 pm, you attended - this is roughly an hour or so later - at a service road in Moe. You entered a property, pulling your hooded jumper over your head.  You walked to the side of the house, then to the front door and left the property. 

14You loitered in the area before attending a property at 44 Alexander Road.  That was the address of Mr Hanson.  Mr Hanson was home at the time.  You attempted to put your own key into the front door but were unable to open it.  He opened the front door to speak to you, saying, "Can I help you?"  You replied, "Sorry, mate, I thought it was my place." 

15He, thinking something was wrong, told you that you should go out the front and speak to a number of onlookers.  You then handed him your key.  He believed that you were not making any sense and advised you he was going to place you under citizen's arrest.  He then went to ring emergency services.  You then punched him to the nose at least three times.  He fell to the road and was assisted by people standing near his house; that gives rise to Charge 3 of intentionally causing injury. 

16You left; emergency services attended and took Mr Hanson to hospital.  He had a fractures to his nasal bones and the bilateral process of maxilla as well as a 20 mm laceration to his upper left lip. 

17At approximately 3.40 pm, police officers observed you and you were arrested and conveyed to Moe police station.  You were requested to undertake a preliminary breath test and, as I have indicated, you refused.  Significantly, you were at that point in time assessed by a mental health clinician as being unfit for interview. 

18As I understand it, the injuries to Mr Hanson involved the insertion of a plate and whilst this is not a serious injury charge, it is certainly, in my view, not to be regarded as insignificant.  The injuries are serious to the victim, Ms Gilmore and, again, whilst I have seen worse, it is certainly not to be regarded as trivial. 

19The consequences of your actions are eloquently described in the victim impact statements which have been filed.  I have also had the opportunity of a brief discussion with Mr Hanson in terms of how he feels about this.

20Carjacking is, in fact, a relatively recent charge to come into existence and when one thinks about the consequences of it, it is not surprising that it has been passed.  She said, "When this man came into the car and I realised he was not a friend of my boyfriend, I felt fear like I have never felt before.  While I'm writing his, the memory has made me break into a sweat which I can't control.  My victim support worker is helping me write this.  It all happened so quickly.  I mean, the man tried to start the car.  I opened the car door very wide to call for help but no one came.  In my panic, I couldn't undo my seatbelt.  When I finally got out of the seatbelt, I jumped from the car which was, by then, moving.  The back wheel ran over my left foot and the man drove off in my boyfriend's car.  I was in such shock at first that at first I didn't feel too much pain.  Police an ambulance came and I was taken to hospital." 

21She then describes her physical injuries which, of course, is to consequences of Charge 2, "Since then, I've had two surgeries on my foot, which was broken.  The first operation put four screws in my foot.  The second operation, two screws were removed and I still have two screws in my foot and it's still not healed properly.  My surgeon says that in 12 months if my foot still doesn't feel right, I might need another operation to remove the screws that are left.  I have limp and my foot is sore and doesn't feel right.  I have constant pain in my foot and take strong pain medication.  I feel the pain more at night when I'm trying to sleep and get sharp pains in my foot every day.  I know that something's not right and I've told my doctor and my surgeon."  They are the physical injuries.

22So far as the carjacking is concerned, "The biggest problem I have since this happened is the anxiety.  I have panic attacks now and break into a sweat when I talk about what happened.  I feel frightened when I see men wearing a hoodie as the man who did this to me was wearing a hoodie.  I don't sleep well at night; I have nightmares and I take medication to help me sleep.  I've lost my appetite and I've lost weight.  I see a psychologist and my doctor regularly to help me with my anxiety and panic attacks."

23She went on to say inter alia, "Since this happened to me, my whole life has changed.  I'm now in constant pain, I don't know if my foot will ever been totally healed enough for me to work as a hairdresser.  I know I'm not the same person I was before this happened.  I'm sadder and more anxious.  I don't like having to rely on my boyfriend so much but I have to.  I wish this had never happened to me."

24The man whose nose and face you broke pointed out that he still suffers from headaches and neck and shoulder, breathing difficulties, upper jaw discomfort and problems with sensitivity in his teeth.  He says that every day is just an endless battle with just simple tasks.  He does not go outside much anymore and does not interact with friends or family.  Sleeping has become difficult. 

25He said his life has taken a downhill slide ever since and he just wants to shut himself away from it all and try to make any sense and question everything he does.  He says that he is now trying to get psychological and professional assistance for all this but clearly, whatever there may have been in terms of pre-existing conditions, your totally unprovoked assault on a person who is, in all probability, just simply endeavouring to help you is inexcusable and serious.

26The offending has to be, in my view, regarded as serious.  It clearly calls for the application of general deterrence.  In your situation, specific deterrence.  Denunciation is important, as well as punishment and, in your situation, albeit such a young age of 25, with the way in which you have conducted yourself in very serious ways, there has to be an element of community protection involved in all this. 

27Insofar as the offending itself is concerned, your counsel has put submissions before me about eh seriousness of it.  It is a bit difficult with carjacking because it is a relatively new offence.  But I think the victim impact statement of Ms Gilmore explains very clearly why it is an offence and a very serious offence.  The terror for a woman to be caught, or anybody to be caught in that situation, not knowing what was going to become of them, having to do some sort of kung fu roll out of her own - or her boyfriend's moving motor vehicle is just terror and she describes it as terror. 

28Insofar as her injury is concerned, she is going to have to live with that for a very long period of time, as she already has, and the consequences of this are very serious.  There is always a situation where you can imagine worse examples.  It is a situation where had you struck her, of course, and caused any injury, you would have been charged with aggravated carjacking which carries 25 years and it can be a bit of a double edged sword. 

29You may well have received the benefit in facing these two charges rather than an aggravated hijacking.  But in any event, they are not the worst I have ever seen but I certainly don’t regard any of these three offences as being at the lowest end.  It is, as I have said, I think serious offending. 

30It was put in the course of the submissions, and your counsel subsequently did not pursue it, that somehow or other you had a post-traumatic stress disorder which had a material effect in how all this occurred.  I am not going to go into great detail here about what has occurred, but I simply say this, that it became clear to me this morning that having dealt with you before, that the report that had been filed from Mr Cunningham about you having a post-traumatic stress disorder did not reconcile with my memory of what he had to say seven years ago when I was sentencing you. 

31I have now been given that report and I have now read my previous sentencing remarks.  As I indicated to your counsel, in this situation, whatever course could have been taken, that I am not prepared to accept that a new diagnosis of post-traumatic stress disorder.  I do accept though, from his earlier report, that you do suffer from depression, that you do suffer from anxiety, and they are ongoing difficulties for you. 

32I take into account that psychologically you are, and have been and probably will remain so, fragile.  Insofar as all this offending is concerned, as I have indicated, the way it was all carried out, there is no suggestion that you were not on some drugs.  You apparently deny through your counsel that you are on methamphetamine.  It is clear that when I sentenced you previously, you had been, and as I indicated here, it struck me as more a methamphetamine reaction than anything else.

33I note with some interest that in the report of Mr Cunningham that, in fact, was what your girlfriend thought too.  Whether that be true or not, I do not know, and it does not aggravate your situation.  What it does mean is I am not prepared, as I indicated, to use that second report in the fairly dramatic way which was suggested.  Dr Cunningham does not point out in that report that he had previously examined you and I am very concerned about it.

34Be that as it may, that is not your fault and it is not to be used to aggravate the situation.  It is just that what was, initially at least, understandably, heavily relied upon by your counsel; it does not exist, in my view.

35You history is unfortunate indeed.  As I have sentenced you before, you participated in Koori Court, as I have said during the course of the plea.  When you were in Koori Court some years ago, you participated with a lot of courage and you were dealt with by the elders and you faced the elders and you were able to acknowledge what you had done.  I had high hopes for how you would be able to deal with the rest of your life after that even though I had to impose a significant sentence. 

36Your background can be put in simple terms.  You were born in Queensland and you were raised with a stepbrother and older sister.  You have a younger sister, and between the age of three and 15, you only had telephone contact with your father.  I understand you now have some contact with your stepfather.  Your mother did not work and was apparently heavily drug dependent.

37You were beaten as a child; repeatedly, it would seem.  And at the age of 12 you were on the streets.  You said you wanted to leave in any event.  You, by the age of 12, were simply surviving.  You stayed with your boxing coach for a small time before you were placed in foster care.  You were then in care for an extended period of time; it is a bit hard to work out quite - went on with all that but I accept that you have been put in those positions, put in residential unit and the like, and in my experience, residential units at Traralgon or wherever they might be do not produce well-balanced adults and that is for sure.

38Your mother apparently stopped using drugs after she was incarcerated.  You then ran away from home again after an assault, went up to Deniliquin, and were there in touch with your - whether it was your father or your stepfather, I cannot quite work out. 

39At the time of that last hearing with you, there were people who were endeavouring to assist you and an Aboriginal elder who you had lived with.  People spoke on your behalf.  Nicki Le Sage who knew you well, who I know well, spoke very well on your behalf and, as I said, there were high hopes held.

40You claim that you had not been using amphetamine leading up to all this, whether that be true or not, I have no idea.  You have been in adult custody now for over 300 days, 91 days of which is Renzella time. 

41The report of Dr Cunningham says that gaol may well make your conditions worse.  As I said, gaol is no place for anybody to be but I am not accepting his diagnosis in the circumstances that exist here and I understand it is not being persisted with.

42You do have the support of a partner.  You have a small child - I am not quite sure what the circumstances with that all are.  You, as I have said, are still a young person and your counsel has pointed out a number of significant matters on your behalf, well aware of the principles in Bugmy in terms of disadvantaged backgrounds and I accept totally that with a background such as yours and the dislocation, the Koori aspects of being dislocated and the violence are things that one does not get over in five minutes. 

43However, the situation is that there must be an element of community protection in all this and you are just going to have to come to terms with the consequences of drug use and any such offending.  You were seen by Mr Cunningham back in 2011, had elements of paranoia and the like and that is all unfortunate, but I just hope that in terms of a parole period you are able to be given sufficient support.

44Insofar as the last report was concerned, I was somewhat fascinated to see that Dr Cunningham said, "He has not been appropriately diagnosed.  I was hoping to engage him with treatment services.”  Yes, well that is pretty obvious, I would have thought. 

45In any event, as I say, I am not holding that against you and I indicated I had high hopes for you some years ago and I certainly have not lost those high hopes.  You are at an age where there still can be a rehabilitation on your part, as you have got the support.  You have got, I am told from the Bar table, at least employment available upon your ultimate release and, realistically, it is going to be a matter between you and the parole board and what happens when you are ultimately released. 

46The prospects of your rehabilitation have to be guarded and the risk of your reoffending if you use drugs is going to have to be high, and they are all matters that you are going to have to deal with, Mr Leishman, and I cannot do much about.

47But taking all those matters into account and the helpful – though I argued with him - submissions of your counsel, I sentence you as follows, and what I do, as I may have said, regard as serious offending. 

48Charge 1, four years.  Charge 2, three years.  Charge 3, two years.  One year of charge of Charge 2, one year of Charge 3, cumulatively upon each other, and upon Charge 1.  That gives an effective head sentence of six years and I give, in fact, a minimum term of four years.  I have taken into account your plea of guilty in the way that I believe I have outlined.

49I say that but for you plea of guilty, pursuant to s.6AAA, you would have been sentenced to imprisoned for a period of nine years with a minimum term of six.  I have endeavoured to take in account that this is all in the one course of conduct.  But it seems to me that the three crimes are very different in nature and there has to be a degree of cumulation for the injury to Ms Gilmore and obviously has to be a cumulation for the injury and suffering caused the gentleman who was just really trying to help you.

50All right, no other - yes, pre-sentence detention, 223 days.  Two, two, three.

51MR MOORE:  That completes the matter, Your Honour.

52HIS HONOUR:  That is it?

53MR BARKER:  Yes.

54HIS HONOUR:  Yes.  No other orders?  No, all right.  You take him.  All right, I withdraw the 464, I thought I would just - yes, all right.  It has already been profiled, I am now told; I did not realise that so that will be eliminated.  All right, yes, you can move him now, thank you.  All right.  Yes, good luck, Mr Hanson.  Thanks, gentleman.

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