Director of Public Prosecutions v Lennon
[2016] VCC 1190
•16 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01426
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES BRIAN LENNON |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2016 | |
DATE OF SENTENCE: | 16 August 2016 | |
CASE MAY BE CITED AS: | DPP v Lennon | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1190 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Ellis | OPP |
| For the Accused | Ms C. Burnside | Mark Halse Barrister & Solicitor |
HER HONOUR:
1 On 7 March 2014, the Labour Day weekend, you, James Lennon, went camping with a group of friends. On Saturday 8 March 2014, the group decided to move to a property known as, “The Springs”, a 320 acre rural property on Woods Point Road, St Clare. Your step-father is a co-owner of the property.
2
Your group arrived at “The Springs” between 1 and 2 pm and spent the afternoon riding motorbikes, four-wheel driving, collecting firewood and just generally socialising. You told police you did not start drinking until about
5 pm and by about 7pm had had 5 cans of a vodka mixer. Others had started drinking earlier. There was no mobile phone reception where the group had set up camp and at around 7 pm, a number of people decided to go with you to a higher spot where you, being familiar with the property, knew it was likely there was telephone coverage.
3 You got into your vehicle, a V8 turbo charged ute. It was, as the evidence revealed, a vehicle you, as a probationary licence holder were not permitted to drive except for work-related purposes. By your plea, you acknowledged that you were aware of that and that you knew you were not authorised to drive it other than for work, let alone off road and for recreational purposes.
4 The ute has a single cab and flat tray back. There were no side panels on the tray. Fixed on the tray, but not so as to obscure your view through the rear window, were a toolbox and a portable fridge. An unsecured plastic Esky was also on the tray.
5 Two young women got into the cabin with you and a young man and another young woman sat on the tray. One of the young women in the cabin asked you if she could join the others on the tray and you assented. She got out of the cabin and joined the other two on the tray. You took off but before you had gone far, the male on the back called you to stop. You did so while he asked another young man if he wanted to join them. That young man declined and you took off again when told to do so by the male on the tray. Another ute, this one without passengers on the tray, and a motor bike with a driver and pillion passenger followed you.
6
You drove uphill along a four-wheel drive track. The male on the tray,
Mark McLaren, was sitting on top of the toolbox. Tarryn Rankin, the young woman who had moved from the cabin to the tray, was sitting on the tray between Mr McLaren’s legs. Ebony Dawson was sitting, perhaps initially, to the left of Ms Rankin; later, it would appear from the photographs that have been tendered, in front of Ms Rankin, closest to the rear of the tray.
7
As you drove up the four-wheel drive track, the motorbike came up beside you, so close that you and its driver high-fived through the open window of your car. You, and others estimated your speed to be between 50 and
60 km/h.
8
It was about 800 m to the gravel road at the top of the hill. At the point where the track joined the road, your vehicle began bouncing around and the esky began sliding off the tray. To hold on, Tarryn Rankin grabbed the esky with one hand and wrapped her other arm around Mark McLaren’s leg. She wrapped her legs around Ebony Dawson to stop her from slipping.
Mr McLaren was using what he described as all his strength to hold on the bar at the rear of the cabin. Your friends in the ute behind could hear Ms Rankin and Ms Dawson screaming and saw them sliding all around the back of the tray.
9
You continued to drive along the left shoulder of the road. The road was bumpy and had potholes. You accelerated up the hill and right around a corner. You were going too fast for the conditions. Witnesses describe the rear of the vehicle drifting or spinning out to the left as you rounded a bend. Ebony Dawson slid and Tarryn Rankin let go of Mark McLaren to try and prevent Ms Dawson from falling from the vehicle. Ebony Dawson and
Tarryn Rankin were thrown from the left side of the tray as the ute slid. A
50 m skid mark in the gravel shoulder was still visible the following day.
Mr McLaren called you to stop and you came to a halt about 50 m further up the road.
10
A preliminary breath test was conducted about an hour later and revealed the presence of alcohol. A breath test conducted later that night, more than
three hours after the driving, revealed at that stage a blood alcohol content of .060. It is estimated that your blood alcohol content at the time of the preliminary breath test was closer to .082. As a probationary licence holder, you were not permitted to drive with any alcohol in your system at all. That is, you were required to return a .00 reading at any time you were in control of a motor vehicle.
11 As a result of your driving in this manner, Ebony Dawson suffered a life-threatening head injury, fractures to her T6 and 7 vertebrae, jaw and shoulder and lacerations, including to her face and internally to her liver. Tarryn Rankin suffered a broken left ankle, a broken bone in her right foot and sustained numerous cuts, including a significant laceration to her head as well as extensive bruising. Mark McLaren was not injured, saved from falling by his ability to grab and hold onto the bar.
12 This is the conduct that gives rise to the two charges of dangerous driving causing serious injury and one of reckless conduct endangering a person to which you have pleaded guilty. The nature of the charges makes it clear you are to be sentenced for the dangerousness of your driving and the consequences of that. It is not suggested that you intended the victims to come to any harm. The gravamen of the offence is that your driving involved a serious breach of the proper management or control of a vehicle which created a real risk that anyone on the tray would be killed or seriously injured. In the case of Ms Dawson and Ms Rankin, they were indeed seriously injured.
13 The basis of the dangerousness of the driving causing serious injury and of the conduct endangering Mr McLaren is the combination of driving with a blood alcohol content well in excess of the .00 limit applicable to you and with three passengers unrestrained on the back tray of a ute with no side panels.
14 Although you told the police, when interviewed, that you were unaware there were passengers on the back tray of the ute until told the two young women had fallen off, and it was asserted in the defence written submissions that you were unaware that there were people on the back of the tray until told they had fallen, there is a considerable body of evidence in the depositional material that points to your awareness of the presence of people on the back of the ute before you took off, whilst you were driving and before they fell. The agreed statement of facts included some of that evidence. Although the defence submissions initially asserted that you appeared not to know there were people on the back of the ute until the two young women fell off, that contention was expressly abandoned.
15 It follows from that that this is not a case where the dangerousness of your driving or the nature of your conduct in risking causing injury arises merely from a failure to check your rear-vision mirror before driving off to ensure that there were no passengers on the back of the ute. Rather, your culpability is to be measured by an acceptance that you were aware that you had three passengers on the back of the ute and that you drove as you did up the hill on an off-road track and onto a soft shouldered gravel road knowing that they were there and unrestrained. By unrestrained, that is not just no seat or seat belt but no grip or hand-holds, other than the bar at the rear of the cabin, no side panels and nothing to protect people on the tray if the car was driven as this was, over rough terrain, including gravel rocks and potholes in a manner that caused the rear to slide out and at a speed over those hazards that flung the passengers around.
16 Your culpability also falls to be measured by an acceptance that you knew your vehicle was one too powerful for the holder of a probationary licence to drive unless specific exemption had been granted and that you knew that driving as you did, off-road for recreational purposes was not included within the terms of that exemption.
17 Because of the remoteness of the location, it took a considerable time for police and emergency services to arrive, to stabilise the victims and to transport them to hospital.
18 Ms Dawson was ultimately taken to the Alfred hospital. She was placed in an induced coma for a number of weeks. CT brain scan results indicated what was described by the medical experts as "an extremely severe brain injury." Neuropsychological and neurological reports reveal that she has now stabilised; she is unlikely to make any further progress. Although she can walk, talk and is independent in personal activities of daily living, for example, personal hygiene, dressing and feeding herself and some domestic activities, she has suffered significant, permanent cognitive impairment. She will never be able to complete the childcare course she was undertaking or return to work in that field. She will forever need supervision and support to assist with basic tasks such as budgeting, preparing meals and transportation. She does not have the memory or sustained concentration to undertake what are described as complex tasks such as cooking without supervision or someone to help organise her. She will never regain full field-vision in her right eye. She can no longer drive. Although some of the memories she initially lost have returned, she has suffered significant retrograde and post-traumatic amnesia.
19 As the poignant victim impact statement, presented by her parents at the plea hearing reveal, probably the most profound loss is that of her pre-injury personality. The neuropsychologist, Mr Drury, reported her frontal lobe damage is such that she has limited insight into the nature of her behaviour. She has much less emotional control and regulation, making it difficult to execute appropriate behaviour when necessary.
20 In your second police interview, you were dismissive of and in fact disputed the assertion of the interviewing police that Ms Dawson needed 24 hour care. You said that you had seen her out drinking and had heard that she had been out at parties. Before you leap to any assumptions about her capacity or judge her, you should consider this; it comes from the report of the neuropsychologist, Mr Drury. Speaking of the difficulty that Ebony Dawson experiences in executing appropriate behaviour when necessary, he said,
"This is consistent with a well-recognised characteristic of such [frontal lobe] damage, whereby there is a discrepancy between ‘knowing’ and ‘doing’, insofar as she is capable of having some awareness of appropriate behaviour but cannot actually apply that behaviour consistently in the heat of the moment. … She is being well supported through current neuropsychology counselling and occupational therapy, backed up by reinforcement from her carers, and hopefully she is making some gradual improvement in behavioural responses. Nonetheless, self-moderating her behaviour will most likely remain a challenging issue for her."
21 In dealing with the future prospects Mr Drury said,
"She is keen to return to work if possible, and at this stage she is considering working as a teacher’s aide. Her cognitive and behavioural deficits are marked, and I am not confident that she would have sufficient abstract reasoning skills or adequate behavioural control to work with children unless a) her duties were largely supernumerary to other employees who are in a position of responsibility and b) she worked in a situation where she would not be required to make any significant decisions and could work at our own pace. She would also have difficulty retraining for future employment unless the duties were repetitive. She does not have the capacity to return to her diploma studies. I would regard any future employment as being supportive in nature, as I do not consider her likely to be competitive on the open employment market."
22 In dealing with her capacity to manage her own life, Mr Drury said,
"She would require an advocate to assist her in any decision-making … as she does not have sufficient cognitive capacity to make rational and responsible decisions independently in relation to such issues."
23 I am not going to repeat anything that her parents said in those profound and moving victim impact statements. That is not to devalue them but the distress was obviously great in delivering them and I do not want to add to their pain. But as I hope these reasons make clear, I have clearly taken them into account.
24
But I hope you, Mr Lennon, have listened carefully to what Ebony's parents said in their victim impact statements and that you develop more compassion for her and for her parents, a greater understanding of the limitations that she and they will live with for ever as a result of this. Everything that her parents said in their victim impact statements has been borne out by the reports of
Mr Drury and the neurologist, Professor Davis.
25 Fortunately for Tarryn Rankin, she appears to have made a full physical recovery from the injuries that she sustained. I was particularly struck, in reading her statement, by the way that she tried, when she was lying injured on the ground herself, to comfort and care for Ms Dawson, and by her selfless conduct, when she must have, herself, been in considerable pain in seeking to ensure that the paramedics who arrived on the scene attended to Ms Dawson before her. She sounds a remarkably brave young woman.
26 It is clear and it was acknowledged by Ms Burnside in the course of her plea that subject to considerations personal to you, denunciation, just punishment and deterrence are significant sentencing factors.
27 Although you are a young person, this is a crime, unfortunately - or this type of offending is unfortunately particularly prevalent in your cohort; that is, young men with alcohol in their system with a driver's licence, a powerful car and doing foolish, stupid, mad things in a moment of madness that have profound and lifelong effects, not only for themselves, but for others. Therefore, denunciation, just punishment and deterrence must all play a significant role.
28 You are now 22 years of age. At the time of the offending you were 19. You held, at the time, a probationary licence and the probationary period did not expire until 11 July 2016. That means that you had held your licence for less than nine months at the time.
29 You have lived in the Yarra Ranges area for most of your life. You report a good relationship with your mother, your father, your twin sister and each of your mother’s two subsequent partners, who you describe as your two step-fathers. Your first stepfather, with whom it seem you spent most of your formative adolescent years, is your employer and you have remained living with him following the breakup of your mother’s relationship with him and her subsequent re-partnering which led to her moving out of the Yarra Ranges area. As I have already noted, he is also a part owner of the property where this occurred. He provided a testimonial on your behalf; he describes you as caring and respectful, taking pride in your work, producing high quality work and as being very highly motivated. Other testimonials describe you in a similar way and describe you as polite, respectful and a good young man to be around. You are clearly, therefore, held in high regard by those around and who know you.
30 You appear to be of average intelligence. You left school young, it would appear, at about the age of 16 at the end of year 10 and have had a good and stable work history ever since then. You have worked with your step-father as a sandblaster since leaving school at 16. You have no criminal convictions.
31 A psychological report from the psychologist, Mr David Williams, was relied upon. It did not initially contain anything to suggest that Mr Williams was aware of the County Court practice note or the expert witness code of conduct. A supplement to his report has now been provided which attests that he has read practice note No.2 of 2014; that is the one regarding expert evidence in criminal trials. He certifies that he has made all enquiries he considers desirable and appropriate and that no matters of significance which he regards as relevant have been withheld.
32 It is of concern to me that the opinions of Mr Williams are based on acceptance of an assertion of a version of facts, namely that you were unaware that there was anybody on the tray of the ute, until told the two young women had fallen off. That is at odds with the agreed prosecution summary and the concessions now made on your behalf. There appears to be no attempt by Mr Williams to confront you with the agreed summary or for he, himself, to grapple with the difference between what you told him and what the agreed summary revealed. Mr Williams expresses the view, based on this now disavowed version of events, that you made an error in decision-making by not looking in your rear-view mirror, rather than behaving without regard to the health and welfare of others. Even if the factual foundation for his opinion were on all fours with the facts on which I must sentence you, it seems to me that that is not a matter that is within his expertise as a psychologist. Rather he is expressing a view as to fact-finding which is outside his expert domain and fair and square within mine.
33 Indeed the whole tenor of the report reads more like a plea put on your behalf, than a considered, objective, evaluation by an expert applying identified diagnostic tools or tests in order to make assessments and expressing opinions based on them.
34 In the circumstances, apart from the biographical material referred to in the report, I consider that very little weight can be given to the expressions of opinion in it.
35 You have written letters of apology to the two victims. Mr Williams refers to them and relies on them as evidence of remorse and a demonstration of your capacity for empathy and insight. I am not sure whether you are simply not well able to articulate empathy for the victims and express a genuine remorse in the sense of acknowledging full responsibility for your behaviour and seeking to atone or whether your feelings of remorse have not gone beyond feeling sorry for yourself and the position you now find yourself in.
36 I accept that in a case such as this, had you sought to contact the victims of the families straight after the events or at any time before you wrote the letters which were provided to them, that may not have been of any comfort to them and that the advice that is generally given to people in your situation by the police as well as by their legal advisors, is not to make contact; certainly not to make direct contact. Therefore I do not make any findings adverse to you from the fact that there was no contact until late in the piece.
37 But I am concerned about the fact that there was, in what you said to the police on each of the two occasions when you were interviewed and in what you told Mr Williams and indeed, what was put on your behalf on the plea, a level of blaming or of seeking to shift responsibility onto the victims of this offending and a degree of minimising of your behaviour. Particularly by the continued references to being unaware that there were people on the back of the ute and by characterising your responsibility as limited to failing to properly check your rear-view mirror before driving up the hill, and by your references to the level of intoxication of the victims.
38 You cannot, of course, be punished if indeed you lack remorse or empathy for the victims. Evidence of remorse, genuine remorse in the sense attributed to that term by the Court of Appeal in Barbaro and Zirilli is relevant to an assessment of the weight to be given to your plea of guilty and to a consideration of your prospects for rehabilitation. As I have said, I am not sure whether the way you have expressed yourself is simply an inability to articulate your true feelings or whether it is a reflection of the lack of remorse or empathy.
39 You have pleaded guilty and have thereby clearly accepted your legal responsibility and by that plea of guilty, you clearly have facilitated the course of justice. Not only the three victims, but all of the young people who were witnesses to the events of this evening and all of the older people in the group who were also camping on that property and who were drawn into the events of that evening and provided assistance to the victims during that long and difficult wait for police and emergency services to arrive, have been spared the ordeal of giving evidence in a trial. That in my view, carries considerable weight.
40 Although there was a contested committal, I accept the pleas which were ultimately accepted, were to charges other than those which had originally been laid against you and, therefore, that I should treat the pleas of guilty as being offered at the first available opportunity after the evidence had been tested at committal and these pleas were offered and accepted in resolution of all outstanding charges. However, I am not satisfied however on the materials before me and having regard to your continued assertions up until the time of the presentation of the plea before me that your culpability was limited to your blood alcohol reading and your failing to check your rear-view mirror, that the plea of guilty is also evidence of genuine remorse in the sense that that is described in Barbaro and Zirilli.
41 In addition to the considerable discount that his nonetheless available for your pleas of guilty, you are entitled also to have taken into account in your favour your youth, you were only 19 at the time and only 22 now; the absence of any previous or subsequent convictions; your very good work history; and your family support, all of which point to your having good prospects for rehabilitation.
42 I was told of the social ostracism and the expressions of opprobrium from friends and colleagues and I accept that you found the impact of that to be difficult. I do not consider any of that, though, to be extra curial punishment at a level that should, in any way, reduce the sentence otherwise appropriate to be imposed. In a sense, the social isolation or ostracism, the expressions of opprobrium from former friends and colleagues and within the community is indeed a reflection of what is seen to be a community response to driving of this matter. It reflects, in a sense, what is said as to the need for a sentence to reflect community standards and to take into account denunciation, just punishment and deterrence.
43 In my view, no sentence other than one involving a component of imprisonment immediately served is appropriate, having regard to the nature of the driving, the number of victims and the seriousness in particular of the injuries sustained by Ebony Dawson. The need for denunciation and general deterrence are simply too high in my view to justify a sentence which does not involve a component of imprisonment.
44 Although I consider your prospects for rehabilitation to be good, having regard to the matters I have mentioned, your absence of other convictions, your family support, your good work history, your acknowledgement of legal responsibility by your please of guilty and the, no doubt, continued memory that you will carry of the consequences of this evening of madness, nonetheless, there must be a term of imprisonment immediately served. But having regard to your youth and those matters that I have just identified that count in your favour, I am of the view that the appropriate sentence is a combination of a term of imprisonment and a community correction order. You are entitled to the benefit of a certain release date and to having some part of the punitive component of the sentence served in the community.
45 There is always a level of artificiality in structuring a sentence with more than one charge. Having regard to the need to have each sentence reflect appropriately, the wrong-doing for each particular victim but at the same time, to ensure that I can form the principles of totality so that the overall sentence reflects the overall offending. So the way I have decided to deal with that is this: so far as the first charge that, relating to Ebony Dawson is concerned, I am imposing a combination of a term of imprisonment and a community correction order.
46
So far as the other two charges are concerned, involving Tarryn Rankin and
Mark McLaren, I am imposing a term of imprisonment only; it is a lesser term, each of them are of a lesser term than the term of imprisonment imposed in respect of Ebony Dawson but the community correction order is part of the combination sentence only in respect of Charge 1. That, I hope, will reflect the different degrees of harm and the different degrees of culpability in each of those sentences.
47 James Brian Lennon, on the three charges to which you have pleaded guilty, you are convicted. On Charge 1 of driving in a manner dangerous causing serious injury to Ebony Dawson, you are sentenced to be imprisoned for a period of ten months and to be placed on a community correction order.
48 On Charge 2, you are convicted and sentenced to be imprisoned for a period of six months and I direct that one month of the sentence on that charge be served cumulatively upon the sentence on Charge 1 and the partial cumulation order I am about to make on Charge 3.
49 On Charge 3, the charge of reckless conduct endangering serious injury, you are convicted and sentenced to be imprisoned for a period of three months and I direct that one month of that be served cumulatively upon the sentence on Charge 1 and the partial cumulation order on Charge 2.
50 That makes a total effective sentence of one years' imprisonment. In addition, on Charge 1, you are ordered to serve a community correction order for a period of two years. That order will commence upon the completion of the imprisonment term and ends two years from that date. The conditions of that community correction order are these: you must attend at the Lilydale Community Correctional Service within two clear working days of the completion of your term of imprisonment. You must not commit any other offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol at any time when you attend corrections or attend to any corrections requirements and you must submit to drug and alcohol testing if require to do so.
51 You must report to and receive visits from the secretary or delegate. You must let a community corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the secretary or delegate and you must obey all lawful instructions from and directions of the secretary or delegate.
52 In addition to the core conditions, there are these additional conditions. First, that you must perform 200 hours of unpaid community work over the period of two years as directed by the regional manager. If you fail to comply with this condition, the secretary of the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act and you must be under the supervision of a community corrections officer for a period of two years. Do you understand the effect and conditions of this order?
53 OFFENDER: Yes, Your Honour.
54 HER HONOUR: Do you consent to it being made - do you consent to the order being made?
55 OFFENDER: (No audible response.)
56 HER HONOUR: Ms Burnside, do you or your instructor want to go down - - -
57 MS BURNSIDE: I will just explain - yes.
58 HER HONOUR: I will also have that taken down so it can be signed. Just before that is done, there are further orders that are required to be made. In respect of all three charges, I order that all licences and permits held by you are cancelled and that you are disqualified from obtaining any licence or permit for a period of two years from the date of your release. That is, the two years will run in parallel with the community correction order. It follows from that - you must understand that you will be disqualified from driving for the whole of the period of the community correction order and that if you are found driving whilst disqualified, that is an offence punishable by imprisonment which would breach your community corrections order, do you understand that?
59 OFFENDER: Yes.
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