Director of Public Prosecutions v Linton
[2021] VCC 693
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01176
Indictment No. J12488090.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON KELVIN LINTON |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2021 | |
DATE OF SENTENCE: | 28 May 2021 | |
CASE MAY BE CITED AS: | DPP v Linton | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 693 | |
REASONS FOR SENTENCE
Subject: Criminal Law
Catchwords: Sentence – Negligently causing serious injury – Causing injury recklessly – Drive while exceeding prescribed concentration of alcohol – Breach alcohol interlock condition – Early pleas of guilty – Serious offending – Very high blood alcohol concentration, excessive speed and inattention – Relatively serious injuries caused – High moral culpability – Alcohol and drug abuse – Verdin’s principles 5 and 6 engaged – Reasonably good employment history – Strong family support – Problematic prospects of rehabilitation – Extensive prior criminal history
Legislation Cited: Road Safety Act 1986 s 49(2A)(b)(ii), s50AAD, s50AAA – Crimes Act 1958 ss15, 18 and 24 – Sentencing Act 1991 s 5(4)
Cases Cited:Harrison & Rigogiannis v The Queen (2015) 49 VR 619 – Veen v The Queen (No 2) (1988) 164 CLR 465 – Gorladenchearau v The Queen (2011) 34 VR 149 – Rodriguez v DPP (Cth) (2013) 40 VR 436
Sentence: Total effective sentence of imprisonment for 5 years and 2 months with 38 months’ non-parole period
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T N Bolton | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Swiney | James Dowsley Associates |
HIS HONOUR:
1 Brandon Kelvin Linton, you have pleaded guilty to an indictment containing two charges of negligently causing serious injury (‘NCSI’) (Charges 1 & 2) and one charge of causing injury recklessly (Charge 3). You have also consented to have this Court deal with one transferred related summary offence of drive while exceeding the prescribed concentration of alcohol (Summary Charge 8) and one transferred related summary offence of breach alcohol interlock condition (Summary Charge 15). You have pleaded guilty to these two summary charges.
2 The maximum penalty for NCSI is 10 years’ imprisonment or 1200 penalty units. The maximum penalty for causing injury recklessly is 5 years’ imprisonment or 600 penalty units. The maximum penalty for drive while exceeding the prescribed concentration of alcohol in the circumstances of this case is 12 months’ imprisonment or 120 penalty units.[1] The maximum penalty for breach alcohol interlock condition is 4 months’ imprisonment or 30 penalty units.[2]
[1] Road Safety Act 1986 s 49(2A)(b)(ii) (‘RSA’).
[2] RSA s 50AAD(1)
The Facts
3 The prosecution filed a summary of prosecution opening for plea dated 18 February 2021[3] which your counsel told me I can treat as a statement of agreed facts.
[3] Exhibit P1.
4 At the time you committed these offences, you held a Victorian probationary driver licence which was subject to an alcohol interlock condition.[4] This condition meant you were only legally permitted to drive a motor vehicle fitted with an alcohol interlock device.[5]
[4]RSA s 50AAA.
[5] RSA s 50AAD.
5 On Friday 17 November 2017 at approximately 6pm, you attended the Kinglake Hotel with friends and used your Kinglake Hotel members’ card to purchase a number of alcoholic drinks. You left the hotel at 7:10pm with three men believed to be Reece Diamond, Robert Martin and Dean Wood.
6 At 7:47pm, you returned to the Kinglake Hotel with this group in a silver 2000 Mercedes-Benz C240E sedan (‘the Mercedes’). You and the others were obviously intoxicated. Hotel staff noted your behaviour and reported your group’s conduct to the hotel’s owner and licensee, Mr John Holmes. He spoke to you and saw you were drinking cans of alcohol which were not purchased at the hotel. He asked you to leave the hotel.
7 At 8:10pm, you and the others in your group left the hotel and walked back towards the Mercedes. You appeared to have an argument with Mr Diamond, who threw a set of car keys at you and you picked them up off the ground.
8 Mr Holmes watched your group from the veranda of the hotel. Closed circuit television shows you got into the driver’s seat and Mr Martin got into the front passenger seat, while Mr Diamond and Mr Wood got into the rear passenger seats. At 8:15pm, you drove the Mercedes from the hotel car park.
9 You drove in a north-westly direction along Whittlesea-Kinglake Road between Kinglake and Kinglake Central. The road was clearly signposted with an 80 kph speed limit.
10 By 8:20pm, you had driven four kilometres north-west of the Kinglake Hotel on the Whittlesea-Kinglake Road and was in Kinglake Central. Whittlesea-Kinglake Road at this location is a two-lane carriageway divided by continuous double white lines with one lane for each direction of traffic.
11 As you were approaching the intersection with Extons Road, you attempted to negotiate a left-hand bend. Owing to excessive speed, the Mercedes partially crossed onto the incorrect side of the continuous double white lines. A Hyundai Santa Fe Wagon (‘the Hyundai’) was travelling in the opposite direction, with a young family of five, the Martin family. The Hyundai was being driven at the speed limit and on the correct side of the road.
12 Your vehicle was approximately one metre over the continuous double white lines and on the incorrect side of the road when it side swiped the Hyundai. This caused the Hyundai to suddenly stop and spin 180 degrees. It eventually stopped with the front of the vehicle facing south. The force of the collision ripped the rear driver’s side wheel from the vehicle.[6]
[6] There is no separate charge before me in relation to this damage.
13 Your vehicle continued in a north-westly direction before striking an embankment, causing the Mercedes to roll several times before coming to rest on its driver’s side on a grassed area on the northern side of the road.
14 The collision was later reconstructed by Detective Sergeant Dr Jenelle Mehegan of the Victoria Police Major Collision Reconstruction and Mechanical Investigation Unit. Dr Mehegan opined your vehicle was travelling at a minimum speed of 139 kph when it struck the Hyundai. Your counsel accepted this was the speed at which you were driving at that time.
15 Members of the public assisted you and other injured persons at the scene and contacted emergency services. You were trapped in the driver’s seat of the Mercedes. All occupants of the Mercedes were taken to hospital by road or air ambulance. You were taken to the Alfred Hospital.
16 At the time of this incident, you were living on the Whittlesea Kinglake Road in Kinglake Central with your wife and two children. The point of collision was apparently not near your home.
17 At 1:20am on the 18 November 2017, a medical practitioner took a blood sample from you. The blood sample was later analysed and indicated a blood alcohol reading of 0.172 grams per 100 millilitres of blood.
18 At 5:25am, a further full blood sample was taken from you. This blood sample was later analysed and indicated a blood alcohol reading of 0.097 grams per 100 millilitres of blood.
19 Dr Jason Schreiber, a forensic physician employed by the Victorian Institute of Forensic Medicine, conducted an analysis of the two blood alcohol readings and estimated that at the time of the collision your blood alcohol reading was 0.265 grams per 100 millilitres of blood (Summary Charge 8). You counsel accepts this was your blood alcohol concentration at the relevant time.
20 The other three occupants from the Mercedes were taken to the Royal Melbourne Hospital (RMH) and treated for their injuries.
21 According to Dr Schreiber, who reviewed hospital records and other medical reports in relation to Mr Diamond (Charge 1), he received the following injuries:[7]
(a) Spinal bone fractures (left transverse process L2-4 fractures).
(b) Complex (comminuted) fractures in the left thigh bone (femur) which required specialist orthopaedic surgery under general anaesthesia with open reduction and internal fixation of the thigh bone fracture using a metal intramedullary rod implant.
(c) Open injuries, either laceration or incision, including on the chest wall, which required treatment by cleaning (debridement) and repair.
[7] His report dated 25 September 2020 is part of exhibit P2.
22 Following initial treatment at the RMH for four days, Mr Diamond was transferred to the Epworth Rehabilitation Hospital in Hawthorn for ongoing rehabilitation on 21 November, where he remained for 14 days until 5 December 2017.
23 Transport Accident Commission follow-up reviews on 4 October and 29 October 2018 revealed ongoing problems with Mr Diamond’s hip, including weakness of hip muscles, intra-pelvic tension to the right foot and poor hip control, requiring physiotherapy and pain killers.
24 Mr Diamond’s pain persisted until at least 24 December 2017 when he was prescribed ‘strong pain killers’. He continued to have physiotherapy until some time after 11 January 2019, some 14 months following the offending. No further update on Mr Diamond’s condition has been provided.
25 According to Dr Schreiber, who also reviewed hospital records and other medical reports in relation to Mr Martin (Charge 2), he received the following injuries:[8]
[8] His report dated 25 September 2020 is part of exhibit P2.
(a) Complex (comminuted) open nasal bone and septal fractures for which he required specialist plastic surgery under general anaesthesia with cleaning (debridement), washout, bone fracture reduction and fracture repair.
(b) Frontal process fractures of both upper jawbones (maxillary bones).
(c) Multiple soft tissue injuries including blood collection, lacerations, abrasions and bruising on the head, face and limbs.
(d) Organ injuries, including impaired brain functioning, and temporarily involving the lungs.
26 Mr Martin stayed in hospital for two days and was discharged on 19 November 2017.
27 In his report, Dr Schreiber referred to a review by Christopher McEwin of the Transport Accident Commission dated 6 December 2017 which noted an ongoing need for pain killer, antibiotic and sleep medication. Mr Martin was confident in his recovery, disclosed that his memory was ‘a bit off’ and that he had ‘dreams’ but that he had depression in the past. No further update on Mr Martin’s condition has been provided.
28 Following his review of Mr Diamond’s and Mr Martin’s medical records, Dr Schreiber opined they both suffered serious injury. By your plea you accept this is so. The category of serious injury is agreed to be ‘substantial and protracted’, rather than ‘endangers life’.[9]
[9] Crimes Act 1958 s 15.
29 According to Dr Schreiber, who also reviewed hospital records and other medical reports in relation to Mr Wood (Charge 3), he received the following injuries:[10]
[10] His report dated 25 September 2020 is part of exhibit P2.
(a) Fractures including lumbar spinal bone fractures (left L1-L3 transverse processes) which were managed conservatively in hospital after a decision had been made not to perform surgical repair.
(b) Multiple soft tissue injuries including lacerations and abrasions.
(c) A collapsed left lung.
30 Mr Wood remained in hospital for two days and was reviewed in the plastics wound clinic on 30 November 2017, at which time his wounds were healing well, and his sutures had been removed. No further update on Mr Wood’s condition has been provided. His injuries do not amount to serious injury as defined in the Crimes Act 1958.[11]
[11] Section 15.
31 You had to be cut from the wreckage of the Mercedes by SES officers. You were found pinned in the car with your arm between the headrest and the chasey. I was told by your counsel you suffered no significant injuries.
32 The Mercedes was mechanically inspected. No faults were identified which may have caused or contributed to the collision.
33 At the time of driving, your driver licence was subject to an alcohol interlock condition. No such device was fitted to the Mercedes (Summary Charge 15).
34 On 22 December 2017, you were interviewed at the Kinglake police station where you gave ‘no comment’ answers.
Victim Impact
35 No victim impact statement was tendered in this case. Nonetheless, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[12]
[12] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
36 I have no information regarding whether or not the persons injured by your appalling driving have fully recovered. Clearly, they all suffered pain and discomfort and Mr Diamond had ongoing sequalae for at least 14 months afterwards.
Offence Seriousness
37 NCSI is a serious offence carrying a maximum penalty of ten years’ imprisonment. The objective gravity of the offending comprised by Charges 1 and 2 is to be assessed by reference to both the degree of negligence you demonstrated and the seriousness of the injuries you caused.[13] Your counsel conceded this is ‘serious offending’.
[13] Harrison & Rigogiannis v The Queen (‘Harrison’) (2015) 49 VR 619, 629 [44] (Maxwell P, Redlich and Tate JJA).
38 As to the degree of negligence you demonstrated, I consider it was of a very high degree. The objective features of your driving demonstrated a very great falling short of the standard of care required in all the circumstances. In my opinion, your offending falls in the upper range of offences of this kind.
39 Your driving was appalling and involved conduct which was generally intentional rather than inadvertent.[14] I accept your decision to drive was relatively spontaneous and not pre-planned to any great extent.
[14] See ibid 638 [82].
40 Your blood alcohol concentration (BAC) at the time of driving was over five times the prescribed concentration of alcohol applicable to a driver with an unrestricted licence. Since you hold a probationary driver licence, your prescribed BAC at the time was 0.00 grams per 100 millilitres of blood.[15]
[15] See Victoria Police, Notice of Immediate Suspension of Licence or Permit dated 16 September 2018 (exhibit D4). The wording of Summary Charge 8 also demonstrates this.
41 The speed of the vehicle you were driving was estimated to be 139 kph in an 80 kph speed zone, almost 60 kph (or 75%) above the permitted speed limit.
42 Added to this, you were driving near dusk on a rural road when your car crossed over continuous double white lines by approximately one metre onto the incorrect side of the road and sideswiped an oncoming vehicle. In my opinion, this demonstrates your intoxication was such you were not able to maintain proper control of your vehicle, as you must have realised.
43 Next, you have a number of prior convictions for road traffic offences including exceeding the prescribed concentration of alcohol, failing to have proper control of a motor vehicle, careless driving of a motor vehicle, failing to keep left of a dividing line and exceeding the speed limit. Your prior criminal history demonstrates that you have ‘manifested in [your] commission of the instant offence[s] a continuing attitude of disobedience of the law’.[16] This ‘illuminates [your] moral culpability … in the instant case’ and demonstrates your ‘dangerous propensity’ to disobey the road laws.[17] Accordingly, it is necessary in your case to give significant weight to specific deterrence and protection of the community.
[16]Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[17] See Ibid.
44 Finally, at the time of the collision you were driving a motor vehicle which did not have an approved alcohol interlock device fitted, in contravention of the conditions attaching to your probationary driver licence. In this regard, I observe you also have a prior conviction for driving in breach of an alcohol interlock condition.[18]
[18] Compare the list of circumstances summarised by Maxwell P in Gorladenchearau v The Queen (2011) 34 VR 149, 156 [23] (‘Gorladenchearau’).
45 The observations of Maxwell P in Gorladenchearau v The Queen (‘Gorladenchearau’)[19] are, in my opinion, apposite in this case. His Honour said:
Objectively, the appellant’s driving – over the speed limit and well over the permitted blood alcohol limit – created a high risk of harm. The risk was that, in his intoxicated condition and at excessive speed, the appellant would not (be able to) keep a proper look out and would be unable to deal safely with any sudden eventuality. The magnitude of that risk was revealed by his complete failure to see the red light as he approached it, over a distance of almost 300 metres.
As to the extent of the potential harm, the appellant’s inability to maintain a proper lookout meant that, when he was approaching any intersection, it was likely that if the risk eventuated, very grave harm would be caused. Both these matters – the degree of risk and the extent of likely harm – made the appellant’s driving extremely dangerous, whether he realised it or not.[20]
[19] (2011) 34 VR 149.
[20] Ibid 157 [26]–[27] (Ashley JA and Ross AJA effectively agreed in a separate joint judgment).
46 In your case, the magnitude of the risk was revealed by your driving over continuous double white lines onto the incorrect side of the road and sideswiping the oncoming vehicle. The extent of likely harm is self-evident and was realised by the serious injuries you caused to the victims of Charges 1 and 2.
47 In Gorladenchearau, Maxwell P observed it is the experience of the courts that cases of NCSI by driving have a ‘shocking similarity’. The critical features of the offending which recur are ‘speed, inattention, intoxication (alcohol or drugs) and (often) prior convictions for driving offences’.[21] This is obviously very relevant to your driving on this occasion, which manifested all of these commonalities, except driving while drug (as opposed to alcohol) affected.
[21] Ibid 160 [43]; Harrison 647 [122].
48 The objective gravity of your offending conduct is somewhat lessened, when compared with other cases of this type, because, thankfully, your driving was not protracted. You managed to travel only about four kilometres before coming to grief.[22]
[22] See eg Harrison.
49 Nonetheless, overall, I assess your moral culpability as being of the highest order, albeit, short of a worst case.
50 As to the seriousness of the injuries you caused to Mr Diamond and Mr Martin, as the descriptions above demonstrate[23] their injuries were quite serious, particularly in the case of Mr Diamond, although I accept they are not catastrophic in the sense of involving lifelong significant impairment.
[23] See above paras [20]–[27].
51 The Victorian Court of Appeal in Harrison & Rigogiannis v The Queen (‘Harrison’)[24] concluded that current sentencing practice (‘CSP’) for ‘NCSI involving driving in the upper category of this offence is plainly inadequate’.[25] Consequently, the Court determined:
[24] (2015) 49 VR 619.
[25] Ibid 622 [12], 650 [137] (Maxwell P, Redlich and Tate JJA).
judges should no longer remain fettered by the previous pattern of sentencing. They must give effect to Parliament’s decision to increase the maximum penalty, which provides an indication as to the seriousness with which it should be viewed.
…
Sentencing courts should no longer consider themselves constrained by existing sentencing practice for offences of NCSI by driving which fall within the upper range of seriousness (as exemplified by the cases under appeal).[26]
[26] Ibid 650 [138] & [140] (citations omitted).
52 For the reasons I earlier detailed, I am of the opinion your offending involves driving in the ‘upper category’ of this offence.
53 In Harrison the Court provided guidance to sentencing judges unconstrained by the previous CSP in cases falling in the ‘upper category’ of this offence as follows:
By way of general guidance, had the sentencing courts in the present cases not been constrained by CSP, we consider that sentences of six or seven years would have been well within range, given the seriousness of the offending.[27]
[27] Ibid 651 [141].
54 The circumstances of your driving and the injuries suffered by the victims bear a number of similarities to those pertaining in the two appeals before the Court of Appeal in Harrison. However, by reason of your personal circumstances I consider sentences of imprisonment somewhat less than those suggested in Harrison are warranted in your case on Charges 1 and 2.
55 Turning to the recklessly causing injury offence, it is comparably serious for similar reasons. By your plea to this charge you have admitted you foresaw that injury probably – not possibly – would result from your driving in the present circumstances, which in fact caused injury.[28] By driving with that foresight you displayed indifference as to whether or not injury would occur as a result.[29] Moreover, while Mr Wood’s injuries fell short of being ‘serious’ they were quite significant and far from trivial.
[28] R v Campbell [1997] 2 VR 585, 586 (Phillips CJ), 592–3 (Hayne JA and Crockett AJA); DPP Reference No 1 of 2019 [2020] VSCA 181.
[29] See R v Nuri [1990] VR 641, 643(Young CJ, Crockett and Nathan JJ).
Personal Circumstances
56 You were born on 7 October 1992. You were 25 years of age at the time of committing these offences and you are now 28 years old.
57 You are the eldest in a sibship of three. You have a younger biological sister and a half-sister. Whilst growing up you had a close relationship with your sister, you have experienced conflict in recent years which largely results from of your sister’s mental health issues and your mutual substance abuse.
58 Your parents separated when you were five years old. Although your mother initially had custody of you and your sister, you were mostly raised by your maternal grandparents as your mother returned to full-time work. You said your mother used you and your sister as ‘pawns’ during your parents’ divorce, and you were unable to see your father for some time.
59 You said your mother was not a great mother until your youngest sister was born. Both you and your biological sister were exposed to domestic violence. You frequently tried to intervene to protect your mother from your stepfather, but your mother would often side with your stepfather and turn against you. You reported several physical altercations with your stepfather, culminating in you leaving the family home around the age of 13 or 14. Despite this, you maintain a relatively good relationship with your mother and your mother currently has care of your two sons.
60 You lived with your father from age 8 to 10 years, and again when you were aged 14. You described developing your independence as your father worked long hours and you caught the bus to and from school and cooked your own dinner once you returned home.
61 In adolescence you moved in with a friend’s family because your father would not tolerate your cannabis use. Owing to your substance abuse, you and your father have not had contact in the past couple of years.
62 You told Ms Carla Ferrari, a forensic psychologist engaged by your legal representatives who assessed you on 3 March 2021,[30] both of your parents struggled with alcohol abuse during your childhood. You were involved in multiple motor vehicle accidents due to your mother’s intoxication. One incident was particularly traumatic, and you retain vivid recollections of it. Your mother ceased drinking approximately 15 years ago. You were unsure whether your father ceased his alcohol use but recalled a significant reduction in his alcohol use the last time you were in contact.
[30] Her report dated 8 March 2021 is exhibit D2.
63 Your relationship with your family has been strained in the past, partly due to your substance use and offending. You are hopeful you can reconcile once you are released from custody.
64 You were bullied at school for being overweight and experienced attention problems and difficulties with literacy. You recalled being an insecure and anxious child. You described yourself as the ‘class clown’. You said you had a few close friends who were ‘the troublemakers’.
65 You were ‘asked to leave’ your first secondary school when aged 14. There was a period after you moved out of your mother’s home when your school attendance became infrequent because of instability in your home life.
66 You skipped Year 10 when your school recognised you performed better in practical subjects and accelerated you into the VCAL stream. You completed Year 11 VCAL in the first semester then left mid-year to pursue a landscaping apprenticeship with your uncle. The apprenticeship only lasted three months because your uncle was, in your opinion, rigid and inflexible. You said your uncle visited you in custody and apologized for his behaviour towards you. Your relationship has been repaired.
67 You worked as a mechanic for six months with a friend of your father’s. You then completed 18 months of bricklaying apprenticeship. You left your first employer because you were being underpaid and your second employer went bankrupt.
68 You then worked as a truck driver for several years with an interruption in 2014 when you lost your license. You returned to the same employer for a short time in 2015 after being released from custody. You then worked full-time as a carpenter for your father. You continued working for your father until December 2018 when you had conflict over your continuous substance abuse. You said this has been your longest period of unemployment.
69 You have been on Centrelink Jobseeker benefits for several years.
70 You have been in a 10-year relationship with your fiancée, Allyson. You have two children aged 5 and 8. The children are currently being cared for by your mother whilst Allyson addresses her mental health issues.
71 You described a history suggestive of your partner having postnatal depression. You have struggled emotionally, physically, financially and needed support over the past six years. You feel a sense of guilt that you were unable to support your partner with the children as you were working, and that she had no help managing the household or caring for two young children whilst trying to cope with her mental health issues.
72 You recalled missing the birth of your second child during your first period in custody, which was an eye-opening experience for you which caused you to reflect on the wider impacts of your behaviour and how difficult it was for your partner to go through the birth alone and unsupported by you.
73 At the time of the present offending in November 2017, you were concerned for Allyson, who was suffering with severe depression and struggling with daily activities looking after your children. You felt guilty and helpless owing to the combined pressure of supporting Allyson and working full-time for your father. Aside from these stressors, you reported to Ms Ferrari that you felt overall your life was improving. You had been in steady employment since being released from custody in 2015, your mental health seemed ‘relatively positive’ and you were trying as best you could to support your family.
74 You and Allyson experienced a trial separation from September or October 2020 so you could each address your emotional and drug problems. During the separation, you had a casual relationship.
75 Since being in custody, you have maintained telephone contact with your children and have a strong bond with them both. The first time you were incarcerated, one of your sons suffered significantly from your absence. He lost confidence and became quite anxious.
Drug and Alcohol Abuse History
76 You admitted to Ms Ferrari hazardous use of alcohol from late adolescence, saying it ‘gave you confidence’ and reduced your anxiety symptoms. You were unable to estimate how much you would consume but acknowledged it was excessive, drinking from when you got home from work until you went to sleep. You told Ms Ferrari you ceased drinking alcohol immediately following the collision giving rise to the present offence.
77 You reported smoking cannabis from the age of 14 until you were incarcerated in 2014. You relapsed following the present offending, owing to an inability to cope with your deteriorating mental state. You reported using an ounce per day on average, though you said this has reduced in the past two years.
78 You denied using any other illicit substances apart from some experimentation with methylamphetamines, which you reported trying a few times when you were about 18 or 19 years old. You did not continue its use owing to the adverse effects it had on you. However, you reported you relapsed into using cannabis following the present offending and, as the seriousness of your predicament started to dawn on you, your drug use escalated into daily methylamphetamine use of up to a gram ‘just to function’. You described being unable to get out of bed on some days.
79 You have completed alcohol and other drugs counselling as part of two previous community correction orders. You have also completed a safe driving course in relation to driving offences in 2015. Clearly, these rehabilitative programs did not deter you from drinking and driving at excessive speed and in a grossly negligent manner on the present occasion.
Mental Health
80 You gave Ms Ferrari a history of depression and anxiety issues and you indicated that you have experienced episodes of depression which have led to suicidality. You have never sought treatment for your mental health issues, but you reported psychiatric in-patient admissions in 2013 and 2020, the most recent being on Christmas Eve 2020 which involved a suicide attempt whilst you were under the influence of methylamphetamines. You described to Ms Ferrari a worsening of your depressive symptoms as a result of the present offending with suicidal ideation. You also reported currently your suicidal ideation has increased since being in custody.
81 You denied ever taking medication for depression or anxiety. You reported no other medical issues
82 Ms Ferrari administered the Depression Anxiety Stress Scale (DASS). Your results indicate severe levels of depression, anxiety and stress which Ms Ferrari opined ‘would benefit from intervention to prevent any further decompensation’.
83 Your profile on the Millon Clinical Multiaxial Inventory, Fourth Edition (MCMI-IV) was of ‘questionable validity’ which Ms Ferrari opined was ‘likely to be related to [your] severe depression and anxiety at the time of test-taking’. Whilst she said your results should be treated with caution as they were reflective of your present ‘deteriorated mental state’.
84 Ms Ferrari opined:
Overall, there is presence of severe clinical symptoms and personality vulnerabilities which make Mr Linton more vulnerable to impulsive, poorly considered emotional responses, and a tendency to self-medicate these symptoms in the absence of any appropriate coping mechanisms.
85 Ms Ferrari diagnosed the following ‘clinical disorders’ were present in your case:
· Major depressive disorder (‘MDD’), recurrent (severe) with anxious distress;
· Post-traumatic stress disorder (‘PTSD’), which appeared to be at a subclinical threshold at present and, accordingly, would not meet the full criteria for diagnosis;
· Alcohol use disorder (severe), in full remission;
· Alcohol intoxication at the time of committing the present offences;
· Cannabis use disorder (severe);
· Stimulant use disorder, amphetamine-type substance (severe); and
· Borderline personality traits.
86 Your MDD and borderline personality traits, together with subclinical PTSD, are the most significant mental conditions for present sentencing purposes. At the time of her assessment, Ms Ferrari considered your MDD symptoms were severe, and you described a gradual worsening of your mental state since the offending. You are currently experiencing suicidal ideation in custody which is worsening in frequency and intensity. Moreover, you expressed helplessness and hopelessness for your future which Ms Ferrari opined are ‘risk markers’ for your future suicide risk.
87 Your counsel submitted that Verdins principles five and six are engaged in your case.[31] While I consider your present mental health symptoms are to some degree reactive to your present predicament, on the basis of Ms Ferrari’s report[32] I accept Verdins principles five and six are engaged in your case. This requires some moderation of the sentences I would otherwise have imposed.
[31] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA). See also Brown v The Queen [2020] VSCA 212.
[32] See Ex D2 particularly at [114]–[115].
88 Ms Ferrari considered your ‘general risk of reoffending’ to be ‘moderate’ on the basis of your prior criminal history, untreated mental health conditions and your history of chronic substance abuse. This means specific deterrence and protection of the community must be given real weight in sentencing you for the present offending.
89 Moreover, while I am prepared to assume you are presently abstinent from alcohol and other drugs in a controlled environment, your prospects of rehabilitation are dependent upon you receiving treatment for your underlying mental health conditions and, most importantly, you remaining so once you are released from custody.[33] Accordingly, I must adopt a cautious approach to your prospects of rehabilitation, which I assess as being problematic. On the positive side, the support of your partner, children and mother and your reasonably good employment history are protective factors present in your case.
[33] See Ms Ferrari’s Report (Ex D2) [112].
90 You appear to be genuinely remorseful for you offending conduct and Ms Ferrari considers you are willing to engage in rehabilitative programs designed to address the criminogenic factors present in your offending behaviours.
Prior Criminal History
91 You have an extensive prior criminal history involving seven appearances between February 2012 and April 2015. The offences include armed robbery, drug offences, possess prohibited weapon, resist police, recklessly causing injury, alcohol-related offences, contravene CCO, driving offences and a street offence. Of particular relevance to the present offending are exceed prescribed concentration of alcohol, fail to have proper control of vehicle, careless driving of a motor vehicle, breaching alcohol interlock condition, fail to keep left of dividing line, exceeding speed limit, using unregistered motor vehicle on highway and a number of other driving offences dealt with between 2014 and 2015.
92 Clearly, your prior criminal history also requires specific deterrence and protection of the community to be given significant weight in my sentencing synthesis.
93 I was told by your counsel you are currently in custody for unrelated matters involving allegations of family violence. This is irrelevant for present purposes. You were on bail for the present matters until I remanded you in custody at the completion of the plea hearing on 16 March 2021. You have 73 days (not including this day) of presentence detention referable to the present offences.
Mitigating Circumstances
94 You pleaded guilty to these offences at the earliest forensically reasonable opportunity in light of the issues surrounding your identification as the driver and the prosecution’s consideration of appropriate charges in light of the victims’ injuries.[34]
[34] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
95 I accept your pleas have utilitarian benefit, particularly in the COVID-19 environment, and have saved the victims the trauma of giving evidence. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
96 I accept you are remorseful for your conduct. Ms Ferrari described you as being ‘plagued with guilt and remorse’.[35] You are also undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you and your family, as the contents of your letter attests.[36] In your letter you show some insight into the reasons behind your offending on this occasion and a willingness to address the underlying causes of your criminal behaviour. However, while you are thankful the victims’ injuries were not worse than they were, you do not express any victim empathy or apologise to any of them for your appalling conduct.
[35] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
[36] Undated letter from Brandon Linton (Ext D3).
97 Being 25 years of age at the time of committing these offences, you were a youthful offender. However, in cases of this nature youthfulness does not receive the same weight as it does in other cases.[37]
[37] See DPP v Neethling (2009) 22 VR 466, 477 [55] (Maxwell P, Vincent JA and Hargrave AJA); Harrison 645–6 [115]–[118].
98 The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[38]
[38] The Queen v Madex [2020] VSC 145 [52].
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[39]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[40]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
[39] DPP v Bourke [2020] VSC 130 [32].
[40] Glen Brown v The Queen [2020] VSCA 60 [48].
99 However, there is no evidence before me to indicate you will suffer any particular additional custodial hardship over and above that of the average prisoner as a result of COVID–19.
100 There has been significant delay in this case. The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[41] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[42]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[43]
[41] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[42] (2013) 40 VR 436.
[43] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
101 So far as your rehabilitation during the period of delay is concerned, you have continued to work during this period, and you have developed increasing insight into the reasons that cause you to offend. However, whilst you have apparently been abstinent from alcohol since committing the present offences, you have not undergone any rehabilitative programs or, for example, attended Alcoholics Anonymous meetings.
102 So far as delay akin to punishment is concerned, since committing these offences you have had the prospect of a significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you and your family significant stress and anxiety. I take these effects of delay into account in your favour.
103 Of course, I also have regard to the fact Verdins principles 5 and 6 are engaged in your case.
Application of Sentencing Principles
104 The basic purposes for which a court may impose a sentence are just punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
105 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
106 General deterrence and denunciation of your conduct must be of primary importance in sentencing you for these offences.[44] Specific deterrence and protection of the community must also be given real weight. Moreover, I can only adopt a cautious approach to your prospects of rehabilitation.
[44] See eg Pollard v The Queen [2010] VSCA 156 [32] (Maxwell P and Weinberg JA).
107 I must avoid imposing double punishment on you in respect of the related summary charges which have informed my assessment of the objective gravity of the indictable charges before me. Nonetheless, there is some added criminality involved in you driving whilst considerably over the prescribed concentration of alcohol, even for a fully licenced driver, and for driving a car without an alcohol interlock device being fitted, albeit only for the approximately four kilometres from the hotel carpark to some point before the collision.
108 I consider sentences of imprisonment to be immediately served are the only sentences on all charges appropriate to achieve the purposes for which the sentences are imposed.[45]
[45] See Sentencing Act 1991, s. 5(4).
Mr Linton
On Charge 1 (negligently causing serious injury to Mr Diamond) you are convicted and sentenced to imprisonment for three years and nine months.
On Charge 2 (negligently causing serious injury to Mr Martin) you are convicted and sentenced to imprisonment for three years and six months.
On Charge 3 (recklessly causing injury to Mr Wood) you are convicted and sentenced to imprisonment for 18 months.
I direct that 12 months of the sentence imposed on Charge 2 and five months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other. This makes a total effective sentence of imprisonment for five years and two months.
I order you serve a minimum of 38 months’ imprisonment before becoming eligible for parole.
I declare 73 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
On the transferred related Summary Charge 8 (drive while exceeding prescribed concentration of alcohol) you are convicted and fined $500.
On the transferred related Summary Charge 15 (breach alcohol interlock condition) you are convicted and fined $300. This will be referred to the Director of Fines Victoria for collection and management.
Pursuant to s 89(1) of the Sentencing Act 1991 (‘the Act’), on Charges 1, 2 and 3 all licenses and permits you hold under the Road Safety Act 1986 (‘RSA’) are cancelled and you are disqualified for a period of four years effective from today. Pursuant to s 89C(1) of the Act, I find those offences were committed while you were under the influence of alcohol which contributed to the offences.
Pursuant to s 50(1) of the RSA, on Summary Charge 8 all licenses and permits you hold under the RSA are cancelled and you are disqualified for a period of five years effective from 16 September 2018 (the date of the Section 51 Notice).
Pursuant to s 6AAA of the Act, I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 7 years’ and I would have fixed a minimum non-parole period of 5 years’ imprisonment.
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