Director of Public Prosecutions v Lewin

[2020] VCC 471

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01273

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK LEWIN

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2020 – 2 March 2020 (Trial); 20 April 2020 (Plea)
DATE OF SENTENCE:	20 April 2020
CASE MAY BE CITED AS:	DPP v Lewin
MEDIUM NEUTRAL CITATION:	[2020] VCC 471

REASONS FOR SENTENCE
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Subject:

Catchwords:              Sentence – fail to stop and render assistance – commit indictable offence whilst on bail – extensive relevant criminal history – close proximity to related offending for which accused was on bail – childhood deprivation and abuse – guarded prospects for rehabilitation – imprisonment only appropriate dispositions

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Mr S. Kennedy	Adrian Paull Criminal Lawyers

HER HONOUR:

1At about 9.00pm on 29 December 2018, Paula and Christopher Kingscott were crossing the intersection of Swanston Street and Sydney Parade in Geelong.  You were driving along Sydney Parade and turned left into Swanston Street. Mr and Ms Kingscott stopped at the traffic island in the middle of Swanston Street and waved you through.  You drove ahead of them up Swanston Street.  They were walking on the footpath alongside the service station on the corner when they saw you stop and reverse back down Swanston Street until you were behind them.  From behind, they heard your car revving loudly.  You then drove forward, to their perception, directly at them striking them both as they crossed the driveway of the service station.

2Paula Kingscott was thrown into the air by the force of the impact and fell to the ground to the left of your car.  Christopher Kingscott was struck by the front right-hand side of the car and rolled over the bonnet to the right.  Both were injured, Ms Kingscott particularly so.  She suffered a double compound fracture of the lower right leg as well as grazing to her face.  As a result, she required surgery and had a rod and screws implanted in her leg.  The plate and screws will probably remain in her leg and she said, in the course of giving evidence, there is continuous pain and discomfort from that and she may need further corrective surgery.  She continues to have treatment for her leg injury, in particularly physiotherapy, hydrotherapy and follow-up surgical appointments.

3Mr Kingscott was not so badly injured.  He suffered a whiplash injury and soreness to his left ribcage area and elbow, where he took the main brunt of the impact, and was left with residual back pain, neck pain and headaches.  He continues to attend physiotherapy on a regular basis.

4As a result of the collision, Ms Kingscott was screaming in fear and pain as she tried to crawl away.  Mr Kingscott was able to get to back onto his feet and was yelling at you to get out of the car.  You stopped briefly as he approached the side of your car and banged on the window before reversing and driving off.

5The sound of the revving of your car, which immediately preceded the impact, the thump of the impact itself and the screams and yells of the Kingscotts attracted the attention of several people nearby.  One of them was a police officer, Acting Sergeant Nicki Drever, who was in her van at the service station.  She did not see you strike the Kingscotts, but heard the impact and got to the corner in time to see you driving off.  She checked on the Kingscotts and, once she was aware that there were other people there to assist them and she had radioed for an ambulance and other backup, she pursued you as you headed up Sydney Parade. 

6She had her lights and siren activated and caught up with you at the corner of Swanston Street and Myers Street but you did not stop.  You turned right into Myers Street.  You eventually came to a stop on Myers Street between Benson Street and Bellerine Street, about 800 metres away, and were then arrested.

7You told Acting Sergeant Drever that you were aware that you had struck people and you acknowledged that you had driven off without stopping to check on their welfare or to render assistance.  You said that you drove off because a man was banging on the window of your car, telling you to get out, but you did not express any interest in or concern for the welfare of the victims, nor did  you express any regret that you had not stopped.

8As a result, you were charged with causing serious injury intentionally, alternatively recklessly, in respect of Paula Kingscott and causing injury intentionally, or alternatively recklessly, in respect of Christopher Kingscott.  You were also charged with failing to stop and render assistance, knowing someone was likely to have been seriously injured.

9Following a trial on 3 March 2020, you were acquitted of all causing injury charges.  You had pleaded guilty, at the commencement of the trial in the presence of the jury, to the charge of fail to stop and render assistance and it is in respect of that that you come to be sentenced.  You also, after verdict, pleaded guilty to the uplifted related summary offence of committing an indictable offence on bail and you come to be sentenced for that also.

10Although I have recounted the events, I make it clear that I sentence you on the charge to which you have pleaded guilty, that is, the offence of fail to stop and render assistance knowing someone was likely to have been seriously injured.  You are of course not be sentenced in respect of the charges of which the jury acquitted you.

11You gave evidence at your trial.  Your defence was that you had accidentally, not deliberately, struck the Kingscotts and you had driven away in a panic when Mr Kingscott banged on the window of the car and called on you to get out.   You said that you had driven past the service station and missed the driveway turning into it.  You then reversed, intending to enter the driveway, and you mistakenly put your car into neutral instead of forward and tried to accelerate, giving rise, you said, to the car revving, which a number of witnesses and the Kingscotts gave evidence they had heard.

12You said that you had looked down at the gearbox to change gear and you accelerated before looking up.  Your evidence was that you did not see the complainants before your car collided with them.  It was, however, abundantly clear that you were aware that you had collided with them.

13You were not, it would appear, impaired by alcohol and, although later testing showed that you had some drugs in your system, it is not suggested that you were impaired or so impaired by drugs as to be incapable of controlling the car or as in any way providing, more importantly, any defence to the charge of driving off.  The blood analysis that was later conducted after your arrest detected methadone, nordazepam and a compound of cannabis.

14Each of the Kingscotts has filed victim impact statements.  Although they are obviously resilient people doing their best to get on with their lives, they suffer, Ms Kingscott particularly, from the continuing residual, physical effects of their injuries.  Not surprisingly, both are troubled by intrusive memories and are often frightened or nervous while on the road or when they hear loud car noises.  They also recounted the wider effect of their injuries on their daily lives and the impact that has had on them and their families.

15Failing to stop and render assistance is an offence against s 61(3) of the Road Safety Act 1986 (Vic). That requires the driver of a motor vehicle to stop and render such assistance as they can if, as a result of an accident involving their motor vehicle, a person is killed or suffers serious injury and the driver of the motor vehicle knows or ought reasonably to have known that an accident had occurred and had resulted in a person being killed or suffering serious injury.

16By your plea of guilty, you have acknowledged that the collision with the complainants caused the serious injuries sustained by Ms Kingscott and that you knew, or ought reasonably to have known, that the accident had occurred. You were therefore obliged to stop and render such assistance as you could.

17The maximum penalty for this offence is a measure of its seriousness, that is level 5 imprisonment of 10 years or a level 5 fine of 1200 penalty units.  It is callous and cowardly to leave people who are injured and to fail to face your responsibility for injuring them. People who commit such an offence must understand that such conduct calls for denunciation.  Deterrence is also an important sentencing factor.

18It was conceded in your case that imprisonment was the appropriate sentence and that is particularly so having regard to your extensive criminal history generally, your extensive criminal history relating to driving offences and the fact, of which I am now aware, that you were on bail at the time, for an offence involving appalling driving, evading police and ramming a police car, for which you are currently serving a sentence.  That means that deterrence, both general and specific, as well as denunciation are particularly important in this sentencing mix.

19You have an extensive criminal history which began as far back as 1994.  On a number of occasions, you have been dealt with for charges like, or which have some similar features, to those for which you come to be sentenced today.  Your driving history includes: four charges of drive whilst disqualified and one of driving whilst authorisation suspended, three charges of failing an oral fluid test within three hours of driving and one of driving whilst in excess of a prescribed concertation of alcohol.

20You were convicted on two occasions of driving in a manner dangerous, on two occasions of careless driving and on three occasions of failing to stop a vehicle on police direction. I have already noted, most recently you were convicted and sentenced to an aggregate term of imprisonment of 115 days for recklessly cause injury and drive whilst disqualified.

21That offence occurred on 27 November 2018, so approximately only one month before this offence.  On that occasion, you drove at a stationary police vehicle, missing police, collided with the front wheel arch of the police car and then sped away.  That does indeed make this offence, committed approximately only one month later, of real concern and it requires the need for a sentence that marks both general and specific deterrence.

22You are now 44 years of age and you have had spent much of your adult life serving terms of imprisonment. That in itself indicates that there must be something in your background or circumstances that has led to you embarking upon this history of repeated offending.

23The psychological report provided by Ms Sankaran identifies a history of what Mr Kennedy in his submissions described as a sad childhood replete with parental neglect and abuse.  In addition, you suffered significant physical and emotional trauma when you were injured and burnt as a result of being in a shed that was set alight by some children when you were only 12 and you carry the physical and emotional scars of that still today.

24You were also the subject of protracted sexual abuse when you were a child, something, which although you had not ever wanted to bring to the attention of the authorities, you report has, not surprisingly, had a significant effect on your view of life and unhappiness in life. It sadly seems that you, like so many other victims of child sexual abuse, have a history of significant substance abuse, criminal offending and failed relationships.

25Ms Sankaran describes you as a fragile and dysfunctional individual with an uncertain future who, not surprisingly, faces the possibility of significant depressive symptoms later in life. She recommends significant therapeutic intervention to assist you in being able to cope better with the difficulties that life dealt up to you as a child.  No child should have to put up with what you endured and have struggled to be able to overcome in adult life.

26The fact that you suffered these multiple forms of neglect or abuse in your childhood is known to have a continuing effect on a person in their adult years and I take that into account as a significant mitigating factor.  Nonetheless, it must be said that your prospects for rehabilitation would be described at best as guarded.

27I consider that your moral culpability here is high: you deliberately left the scene, you were on bail for ramming a police car and leaving the scene only one month earlier and you did not express concern for the victims when apprehended by the police; the overarching concerns that you expressed to the police being about yourself.

28You were remanded in custody as a result of this and have remained in custody ever since.  You were sentenced, for the offences committed in November 2018, to a total effective term of imprisonment of six months' and you are still serving that sentence.  It is due, as I understand it, to expire in early June.  That means that you have served now a total of 347 days in pre-sentence detention attributable to this offending for which I now come to sentence you.

29I do not consider that it is appropriate to impose any concurrency between this sentence and the sentence that you are currently serving and, as I have said, the circumstances of the earlier offence make this one of more concern and make the need for both general and specific deterrence an important consideration. But I do bear in mind that this is a charge of failing to stop and render assistance, not a charge relating to drug use or causing injury.

30In all those circumstances, I consider the appropriate sentence is one of a term of imprisonment with a period of partial cumulation for the charge of committing an indictable offence whilst on bail and that is what I propose to do.  I do not consider in the circumstances that a combination sentence is appropriate.  I propose to impose a term of imprisonment on you without adding a community correction order.

31Having regard to the sentence that I have fixed as being appropriate, I do not consider it appropriate either to fix a non-parole period.

32Mark Lewin, on the charge to which you have pleaded guilty of failing to stop and render assistance, Charge 5, you are convicted and sentenced to be imprisoned for a period of nine months.

33On the related summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month and I direct that 14 days of that be served cumulatively on the sentence on Charge 5.

34That makes a total effective sentence of nine months and 14 days.

35I declare that you have spent 347 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

36All licences held by you are cancelled and you are disqualified from obtaining a further licence for a period of four years.

37I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of 15 months' imprisonment.

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