Director of Public Prosecutions v Lipshut

[2017] VCC 245

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00977

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN STEWART LIPSHUT

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	6,7,8 February & 13 February 2017
DATE OF SENTENCE:	16 March 2017
CASE MAY BE CITED AS:	DPP v Lipshut
MEDIUM NEUTRAL CITATION:	[2017] VCC 245

REASONS FOR SENTENCE
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Subject:  Dangerous driving causing death;
  Trafficking in a drug of dependence.
Sentence:                  Three years' imprisonment.  Twenty months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson with Ms S. Pillai
For the Accused	Ian Hill QC Ms G. Morgan

HIS HONOUR: 

1Damien Lipshut, you have pleaded guilty to 3 charges which are contained in two separate indictments.

2Indictment F13915170A.1 contains one charge of dangerous driving causing death.  This charge arises from the dangerous manner in which you drove a motor vehicle on 23 November 2015.  The maximum sentence for this offence is imprisonment for 10 years and there is a mandatory period of disqualification from driving.

3Indictment F13915170B.1 contains a charge of trafficking in a drug of dependence.  The maximum penalty for this offence is 15 years' imprisonment. The other charge in that indictment is a charge of possession of a drug of dependence.  The maximum penalty for this offence is imprisonment for one year.

4I will first deal with the charge of dangerous driving causing death.  The circumstances surrounding the commission of this offence are set out in a prosecution summary dated 10 February 2017.  That document was admitted into evidence as exhibit “A”.  It was read in open court by the prosecutor
Mr Gibson.  Your counsel Mr Hill QC, who appeared with Ms Morgan on your behalf, accepted that the prosecution summary formed a proper basis of fact upon which I can proceed to pass sentence upon you for this crime.  It is not necessary that I again set out in full that which is set out in the summary.  These sentencing remarks however, must be read in conjunction with what is set out in the summary.

5On 20 November 2015 you and your friend Nicholas Jacobson travelled to Tocumwal to attend a music festival.  At about 8 pm on the following Monday, 23 November 2015 you left Tocumwal to travel home.  You were driving a Toyota Tarago van that you had borrowed from a relative.

6Nicholas Jacobson was a passenger in the front passenger seat.

7You were driving the Toyota vehicle in Trevaskis Road, Wyuna when it approached from behind a utility being driven by Christopher De Palma.  Your vehicle came up behind Mr De Palma’s utility at speed and came up close behind the utility.  You then pulled to the left in an apparent attempt to pass the utility on the left.  Instead you collided with the left rear quarter panel of the utility in a glancing or side swiping fashion.  Your vehicle then struck a wooden post or bollard at a water channel adjacent to the road on the left hand side.  The force partly dislodged the bollard.  Your vehicle then mounted a raised concrete bridge edging that crossed the water channel before launching into the air, and turning over, landing on its roof.  Your vehicle was then seen to travel across the Shepparton-Mooroopna Road before coming to rest on its roof in the lane for oncoming traffic.

8The road in question was a sealed undivided two way carriageway.  At the point where the collision occurred the road passed over a waterway.

9As a result of this collision Nicholas Jacobson lost his life and he was pronounced dead at the scene of the collision.

10In the lead-up to the collision your driving was observed to have been erratic.  A witness Brooks observed your vehicle a short time before the collision.  It was stationary in the middle of the road, beyond the give way line, which he said was behind your vehicle.  He travelled past your vehicle and was travelling west along the Murray Valley Highway when he again observed your vehicle rapidly approaching from behind.  He was travelling at 100 kph and he slowed down in order to turn left.  He observed your vehicle break heavily and then move on to the wrong side of the road onto the gravel verge.  As Brooks braked in readiness to turn left, your vehicle accelerated past on the bitumen.  Brooks stopped his vehicle soon after he turned into Hanlons Lane and watched your vehicle go past on the wrong side of the road.  He told police he saw your vehicle travel on the wrong side of the road for a distance he estimated to be about 1 km and only came back onto the correct side of the roadway when a truck approached from the opposite direction.  He was so concerned about your driving he called the police, reporting his concern that you had executed a dangerous overtaking manoeuvre and he thought there was an issue with you, the driver.

11Also shortly before the collision, Mr De Palma was driving his vehicle in an easterly direction along the Murray Valley Highway.  He was accompanied by a passenger Willis.  They first observed your vehicle when it was coming from the opposite direction along the Murray Valley Highway.  They observed your vehicle quickly slow down and whilst you tried to turn the vehicle sharply to the left into Trevaskis Road.  You missed the turn and your vehicle travelled off into the grass.  At the very least, when your vehicle went off into the grass, you should have been alerted to the fact you needed to take greater care in the way you were driving the car.  De Palma turned his vehicle right into Trevaskis Road.  A short time later your vehicle came up behind his vehicle and attempted to overtake it on the left when the collision that I have described above occurred.

12At the point where the collision occurred the speed limit is 100 kph.  There was no mechanical fault with the Toyota you were driving that may have contributed to the collision.  A reconstruction of the collision estimated the speed of your vehicle at the time it struck De Palma’s vehicle to be 84 kph.

13Police and other emergency services attended the collision scene soon afterwards.  You told a police officer attending that you had a micro sleep and that you were not aware that you had hit another vehicle.  A preliminary breath test was negative to alcohol.

14You were later taken to Shepparton Hospital for observation and a blood sample was taken.  You told a nurse that you had little sleep over the weekend due to consumption of methylamphetamine and ecstasy.  It is not known when these drugs were consumed over the weekend, and nor is the quantity that you consumed known.  I cannot say whether your driving was affected by drugs at the time of the collision but you were driving with illicit drugs in your body.

15Lack of sleep on your part may have contributed to the collision but its main cause was the erratic, and in my view, totally irresponsible and dangerous manner that you chose to drive the vehicle.  Although at the point of the collision you were driving well within the speed limit, you were driving on what would appear to have been unfamiliar country roads at night and in a dangerous and erratic manner.   In the immediate lead-up to the collision at one point you missed the safe stopping point at an intersection.   At another intersection where you wanted to turn left you completely missed the corner going off into the grass and at another point you were observed driving for some distance on the wrong side of the road at a fast speed.  When you tried to overtake Mr De Palma’s vehicle on the left, you did so at a point where the road went over a small bridge at a water channel.  Put simply, there was no room to go down the left-hand side onto the gravel to try to overtake De Palma’s vehicle on the left.  You struck De Palma’s vehicle and lost control hitting various objects.  Immediately before the collision you attempted a very dangerous and unsafe movement of your vehicle and that is what caused the death of your passenger and friend.  There is only one person responsible for his death and that is you.  Your moral culpability for his death is high.  This is a serious example of what is a serious offence.  The prosecution submitted that this offending was in the mid-range for this offence.  I accept that submission and I did not understand Mr Hill to take issue with this description.

16I turn to the indictment containing the drug offences.  The factual circumstances concerning this offending are contained in a second summary prepared by the prosecution which I marked as exhibit “D” on the plea.

17The charge of trafficking relates to three drugs, MDA, Ketamine and methylamphetamine, trafficked by yourself mainly to friends and acquaintances between 18 August 2015 and 18 November 2015. 

18The possession charge relates to the drugs dimethytryptamine, Diazepam and Cannabis found to be in your possession when your vehicle was searched after the collision.  The prosecution accepts that you possessed these drugs for your own use.

19Also found in your possession was an iPhone which contained various text messages consistent with you having engaged in drug trafficking, a set of scales, plastic Ziploc bags and a quantity of cash.  Various texts messages found on your phone showed that you were engaged in drug trafficking.

20Drug trafficking is a notorious and prevalent offence.  It is regarded very seriously by the parliament as may been gleaned from the maximum sentence prescribed for the offence.  However, I am satisfied that your offending in the commission of this offence was at a relatively low level even though it extended over a period of three months.  You do not appear to have been trafficking for profit.  Possibly to buy your own drugs.  You are a drug user as analysis of a blood sample taken from you after the collision revealed.

21A description of the various drugs said to have been trafficked by you and the amounts are set out in the summary.  Again there is no dispute about the content of the summary and it forms a proper basis upon which I can sentence you for this offending.  Again these sentencing remarks need to be read in conjunction with what is contained in the summary. 

22You were born on 9 January 1992 and you are now 25 years of age.  At the time of offending you were aged 23.  You are still a youthful offender and you have no prior convictions.

23You have pleaded guilty to the charges and I treat you as having done so at the earliest possible time.  You were charged with culpable driving causing death on 25 November 2015.  There was a contested committal on 2 and 3 June 2016 at which time you were committed to stand trial on the culpable driving charge.  In July 2016, through your solicitors, you offered to plead guilty to the charge of dangerous driving causing death and that offer was rejected by the prosecution.  The charge of culpable driving came on before me in Bendigo on 6 February of this year.  You were arraigned and pleaded not guilty to the charge of culpable driving.

24There followed a voir dire as to the admissibility of evidence which the prosecution proposed to lead from Dr Maurice Odell, a toxicologist. That evidence concerned opinion on the various types of drugs found to be in your system on the night of the collision and the effect those drugs was likely to have upon your driving. It was a central issue at committal. After two days of legal argument I ruled that evidence inadmissible in the culpable driving trial on the basis that its probative value was outweighed by its prejudicial effect in accordance with s.137 of the Evidence Act 2008. After my ruling the culpable driving trial resolved and you pleaded guilty to the charge of dangerous driving causing death.  Because you offered to plead guilty to this charge in July 2016 I treat you as having agreed to do so at the earliest opportunity.

25By your pleas of guilty you have saved the time and costs of what probably would have been two trials.  You have saved members of the deceased's family the agony of a trial in which his parents might have been required to give evidence.

26I also treat your pleas of guilty as evidencing genuine remorse.  I am fortified in this finding by many references in both the psychological material exhibited and in the many references exhibited on your behalf that you are truly sorry for what you have done.  I understand that remorse comes from your acceptance that your driving killed your close friend.

27I admitted into evidence a number of victim impact statements from the deceased’s parents, siblings, relatives and friends.  The statements were read in open court either by the respective makers or by the prosecutor.  Since the plea I have carefully read over the statements again.  There are a number of things that come out of these statements.  The first is the enormous sense of grief and loss that the victims all feel consequent upon the untimely death of their son, brother, relative and friend.  The second is the great loss to the community from having lost such a gifted fine arts student with the world ahead of him.  The evidence shows that Nicholas Jacobson was a very intelligent young man who touched upon the lives of so many people in a positive way.  That is what makes the sense of grief and loss so much the greater, especially for his parents and siblings, and that in itself has impacted upon the family of the deceased in so many ways.  In passing sentence I have taken the contents of the victim impact statements fully into account as I must.

28Part of the evidence submitted on your behalf was a psychological report prepared by Patrick Newton dated 7 February 2017.  He opined that your intelligence falls within normal range, perhaps towards the higher end of average range.  Psychological testing also showed you do not suffer from any intellectual impairment or cognitive dysfunction.

29You told Mr Newton you were a moderate drinker but that you commenced using illicit drugs in 2011 and this continued up until the collision.  You mainly used cannabis, but from 2012 up until the collision you also used ecstasy and amphetamines and had experimented with benzodiazepines.  You told Mr Newton, and I accept, that following the collision you became determined to cease all drug use.  To that end you consulted with a drug counsellor in Shepparton, distanced yourself from drug using associates and pursued a healthy lifestyle.  You have remained drug free since the collision.

30Since the collision you have suffered from anxiety and depression.  You also have shown some signs of post-traumatic stress disorder which has not been allowed to develop fully because of counselling and treatment that you have received.  Your stress and anxiety relate in part to what occurred in the collision and the death of your friend and in part to the criminal process and your concern as to the possible outcomes for you.  All of that is perfectly understandable.  Ideally you ought receive ongoing treatment and counselling for your anxiety and depression.  For several reasons Mr Newton thought it unlikely you would offend again.

31At the time of the collision you had been living and working in Melbourne.  After the collision and whilst on bail you returned to where you grew up in Tatura to live with your parents and you have lived there since shortly after the collision.  You sought advice from you general practitioner, who referred you to a psychologist, Joseph Mathew, who diagnosed you as suffering from Unresolved grief, Adjustment disorder with depressed mood.  You told Mr Mathew, and I accept, that you were feeling extremely guilty and remorseful over the accident and you were finding it hard to cope with the guilt that you caused the death of your best friend and you were sad and upset for Mr and Mrs Jacobson who were suffering grief at having lost their son.

32You are the youngest of four children.  Your parents are professional people.  Your mother a school teacher and your father a solicitor.  You grew up on a rural property outside Tatura.  You maintain good health and you enjoyed a good education.  You attended primary school in Tatura and after completing years 7 and 8 at the local Grammar School you attended boarding school in Melbourne from year 9 to 12.  This progressed normally and without incident.  You achieved much on the sporting field and particularly in rowing.  You left school having completed year 12 and took up an apprenticeship as a plumber which you subsequently completed and you have occupied a number of positions in that field.

33You have not driven since the collision as it was a condition of your bail that you not do so.  Despite that, you have worked as a plumber, doubtless with some difficulty because you did not have a licence.  Mr Anthony Devine, a plumber from Tatura, who has employed you wrote a reference for you and gave evidence on your plea.  He spoke well of you and made it clear he would be prepared to employ you when you were released.

34You want to start your own plumbing business at some time in the future.  I received into evidence a number of references that relate to you.  You are well regarded.  Mr John Muir, a gentleman aged 91 years, told me of his contact with you over many years and his high regard for you.  So too did an old friend Katherine Simson.  Alex Ranson in a reference speaks of your remorse at your crimes and the consequences of them for you.  A neighbour and family friend, Peter Caldow, also spoke of your remorse and the way you have endeavoured since the collision to conduct yourself.  Your siblings and your uncle Stephen Gough in references speak of the way the collision has affected you and the ways in which you have endeavoured to conduct yourself since the collision.

35What comes through is very clear.  You have not endeavoured to return to life as normal as it was before the collision.  The effect of the collision and the death of your best friend would appear to have had a salutary effect upon you.  You have changed your lifestyle, you have stopped driving, you live in the country and you have given up drugs and maintained a plumbing job in difficult circumstances without being able to drive.  All that is to your credit.

36Also, it is clear to me that you have good family support.  You also have good support from friends and the local community.

37Experience has shown me that one must be very careful in making predictions about whether or not a youthful offender will again offend especially when the offender has a history of drug use.  Bearing that caution in mind I am reasonably confident you will not re-offend.  You have good family support and support from friends.  Having read the many references about you it is clear the makers of those references did not know you were an illicit drug user until these events unfolded.  In some ways that puts a question mark over the good character portrayed of you in the references.  On the other hand I have reasonable confidence that now those persons are aware you have been a drug user they might be more vigilant in keeping an eye on you to make sure you do not relapse into illicit drug use.  As I say, I am reasonably confident you will not reoffend.  I cannot put it higher than that.  The rest is up to you.  To give you every opportunity to build on your rehabilitation, I have provided in my sentence for you to be eligible for  release on parole at a relatively early time.

38Driving a motor vehicle carries with it a lot of responsibility, not only to passengers who might be in the car but to all other road users to drive the vehicle safely, not dangerously and not in a way that might endanger the life or safety of other persons who might happen to be on the road or in the vicinity.  The crime of dangerous driving causing death is a serious offence because it strikes at punishing offenders who by dangerous driving cause unintended loss of life.  It is a reasonably prevalent offence and any sentence imposed must be guided by proper application of the principle of general deterrence.  In summary, the sentence imposed must be a deterrent to those who would seek to offend in a similar way.  The sentence must also properly denounce the offending. 

39In your case, because you are a youthful offender, I must take that into account, and in arriving at an appropriate sentence I must have regard to your prospects for rehabilitation, and I have done so.  But general deterrence is the principle that most applies in sentencing you.

40Mr Gibson submitted that the sentence that I should impose upon you on the charge of dangerous driving causing death must involve your immediate imprisonment.  Mr Hill accepted that this was the position and asked that I  take into account in arriving at a head sentence all of the matters that I have endeavoured to set out above.  As to the trafficking and possession of drugs,
Mr Hill submitted that because you have no prior convictions and because of the amounts of drugs involved and because your trafficking was low level, these matters would normally be dealt with in the Magistrates’ Court where you would likely be convicted and placed on a Community Corrections Order.  Mr Gibson did not dispute that the trafficking and possession charges would normally be dealt with in the Magistrates’ Court, however, he submitted that because of the length of time covered by the trafficking charge and because of the variety of drugs involved in the trafficking you should receive some additional punishment over and above the sentence imposed on the charge of dangerous driving causing death.  Mr Hill submitted in all of the circumstances there should be total concurrency.  I accept that submission and this is reflected in the overall sentence I will now pass.

41On the charge of dangerous driving causing death you are convicted and sentenced to a term of imprisonment of three years.

42On the charge of trafficking in drugs of dependence you are convicted and sentenced to a term of imprisonment of three months.

43On the charge of possession of drugs of dependence you are convicted and fined $300.

44I direct that you serve a minimum term of 20 months' imprisonment before being eligible for release on parole.

45I declare that there has been 31 days pre-sentence detention and that 31 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and deducted administratively.

46For the purposes of s. 6AAA of the Act I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of four and a half years' imprisonment and I would have imposed a non-parole period of three years.

47Your licence to drive a motor vehicle is cancelled and you are disqualified from holding a licence to drive a motor vehicle for a period of three years from 23 November 2015.

48I have signed forfeiture and disposal orders which were not opposed. 

49I have also been asked to make a forensic sample order pursuant to s.464ZF of the Crimes At 1958.  For the reasons stated in the order I have signed that order which means that a police officer may use reasonable force if necessary to obtain a forensic sample from your body, which in this instance is a swab from your mouth.

50MR GIBSON:  As Your Honour pleases.

51MS MORGAN:  As Your Honour pleases.

52HIS HONOUR:  No questions?

53MR GIBSO0N:  No questions, Your Honour.

54MS MORGAN:  No, Your Honour.

55HIS HONOUR:  Very well.  Would you remove Mr Lipshut, please.

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