Director of Public Prosecutions v Lovett

[2015] VCC 345

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02124

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM MARK LOVETT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2015
CASE MAY BE CITED AS:	DPP v Lovett
MEDIUM NEUTRAL CITATION:	[2015] VCC 345

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Offender	Mr N. Brown

HIS HONOUR: 

1Adam Mark Lovett, you have pleaded guilty to one charge of dangerous driving causing serious injury.  That crime carries a maximum penalty of five years' imprisonment.

2You are 47 years of age.  You have very few prior findings of guilt, indeed simply two adjourned without conviction matters from a decade ago.

3Your plea was at the earliest possible opportunity and I accept that you have great remorse for what occurred.  You must also get the utilitarian benefit of that plea.  A trial in a matter such as this would have been extremely stressful for everybody concerned and you must get the benefit of all those matters.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you not comply with that order, police may use reasonable force to take such a sample from you.  It will be saliva only.

5I also find, pursuant to s.89C(1) of the Sentencing Act that the offence was committed whilst under the influence of alcohol and I note that a .05 charge has now been withdrawn.

6The offending occurred in January 2014.  You, Mr Lovett, were driving your Toyota Land Cruiser, with a number of your children in the car, together with the boyfriend of your, at that stage, 20 year old daughter.  You went from Mt Egerton to a friend's house in Clifton Springs.  On the way stopped and you bought some liquor in Donneybrook and, arriving at the friend's house at approximately 2 pm, you drank six stubbies.  At approximately 5 pm, you all left the house to drive back home.  You, instructed Evan, the boyfriend, to drive as you had been drinking and he had only had one drink earlier that day.  It was noticed at that stage that you were slurring your words. 

7On the way home, you stopped in Geelong and you purchased another six stubbies and some premixed bourbon and coke cans.  As you went through Geelong, Evan was still driving.  You were in the front passenger seat and Hannam, Adam junior and Edward were in the back seat.  Sarah was in the very back seat on the driver's side.  You were drinking whilst Evan continued to drive.

8At some point whilst driving along Eclipse Road, a dirt access road running through a heavily treed area near Meredith, you asked Evan to pull over so you could urinate.  When you returned to the car you told him to get into the front passenger seat as you were now going to drive.  The other passengers remained as they were.

9At approximately 7.20 pm, you commenced driving north along that road.  At that time the weather was fine, the road was dry and the visibility was good.  There were no other cars in the vicinity.  You accelerated up to approximately 80 kilometres per hour.  As you started to go around a sweeping left-hand bend the rear of the car slid out to the left and you tried to correct it.  In doing so the rear of the car slid back the other way and the car left the road on the right side.  The driver's side of the car crashed into a tree and the passenger side hit another tree.  The car bounced off a number of trees before coming to a stop amongst trees and bush on the right-hand side of the road.

10A police reconstruction expert later estimated that the car was travelling at a speed of approximately 90 kilometres an hour at the time you first began to lose control and it is of course an area with 100 kilometres per hour speed limit.

11The force of the impact caused young Sarah to be thrown through a rear window and out of the car.  Just prior to the collision her seat belt had come undone and she was sitting in her seat without her seatbelt fastened.  Other passengers suffered minor injuries and were able to get themselves out of the car.  000 was called and eventually an air ambulance helicopter and police arrived.  She was air lifted to the Alfred Hospital with major head injuries and was placed in an induced coma.  Everyone else was taken to either the Geelong or Ballarat Hospitals.  The vehicle was extensively damaged and was found to have been roadworthy at the time of the collision.

12When police arrived at the scene you had obviously discussed it with Evan and were telling him to say that he had been driving.  You were then questioned about it afterwards and you maintained at that point in time that you were not the driver and persisted that Evan in fact was the driver.  Your blood alcohol reading was taken and it was estimated that your reading at the time of driving would have been between 0.18 and 0.22.  That is very significantly intoxicated.

13On the following day you discharged yourself from hospital and went back to the crash scene.  To your great credit you at that point in time realised what you had done was wrong and you told the police that in fact you had been driving.  When interviewed then by the police, you said that you had told Evan to say that he was the driver and you acknowledged that, in your own words, to do so was "pretty piss weak."  It is to your credit, as I say, that you were able to come to that view and not cause people a lot of grief by persisting with the position that you had taken.

14Sarah, who was nine years of age at the time, was seriously injured indeed.  A closed head injury with diffuse axonal injury, that is widespread brain injury and early cerebral oedema, that is fluid on the brain.  She had a broken jaw, lacerations to her left arm and right ankle, a 100 per cent division of the tibial artery and the anterior ligament peroneal nerve.  She remained in an induced coma for five days and underwent surgery on her broken jaw and lacerations.  She was discharged from intensive care on 18 January 2014 and remained in patient rehabilitation until 5 February 2014.  She has since made a good recovery.

15In situations like this I do not go through all the detail.  We have sat here in Koori court.  You have discussed what occurred with the Elders.  You have discussed it with me and you have confronted exactly what you have done.  It is clear that you understand just how close that little girl came to death and it would have all been your fault.  You have described that you were there for something in the order of an hour, as I understand it, before the ambulance arrived.  She was bleeding heavily, you were on the phone, trying to keep her awake, trying to staunch the bleeding.  A very, very distressing situation indeed.

16I note from the report of the psychiatrist, Mr Simmons, that you have a number of the symptoms of a post-traumatic stress disorder arising from that and I am not surprised.  It does not give rise to the formal diagnosis, but it is a shocking experience which I have got no doubt has remained with you and will continue to do so.

17The offending has to be regarded as serious, despite the fact that you have got no driving priors, or virtually any priors of any description.  You, yourself know that you cannot do what you did. 

18I think in your situation specific deterrents are not all that necessary, but general deterrents in such a situation almost always are.  There also has to be appropriate denunciation and appropriate punishment.  The courts must impose sentences which deter like-minded people from driving in the state that you were in.

19The situation is that there is no victim impact statement in these circumstances, but no need for that.

20It was submitted that a community corrections order could achieve the purposes of general deterrence, specific deterrence and punishment in all these circumstances.  I have had you assessed for such an order and you were found to be acceptable.  I intend to impose such an order if you agree and I will simply outline the reasons for that.

21Firstly, you live in a relatively remote situation and because of this offending I have to cancel your driver's licence and you are disqualified from obtaining a licence for a period of 18 months.  For you that will be a very significant punishment in itself.

22The community corrections order will be with conviction, which again is a significant punishment in itself. 

23I am well aware of the matters outlined in The Queen v Boulton and subsequent decisions and I think there is no need for me to go through them here.

24A number of matters were put on your behalf and the important aspects are these, I think.  You are now 48 years of age.  You are residing in a property which you purchased in 2000, which is subject to a mortgage.  You were in a relationship for a very long period of time, which in the last half of it at least became a bit of a disaster.  It was a situation where during that period of time you went from smoking cannabis occasionally to using it relatively frequently and your alcoholic intake became much greater than it had been in the past.  To your credit, having separated from the mother of the children in 2008, you have brought up the six children by yourself.  You currently have a girlfriend or partner, who does not live with you but is clearly of great emotional support to you.

25It is obvious from the references that have been tendered on your behalf from the Ballarat Aboriginal Co-op that you are an excellent father, that you are a hardworking man and that the risks of you re-offending I think are low indeed.  You have now been in a relationship, as I indicated, for some five years and you are currently unemployed but have been working as an archaeologist.  In February this year, you completed an online Certificate 3 in business management.  Clearly you have a good work ethic and all the factors going towards a low risk of offending are present.

26You described your history to Mr Simmons and I do not need to go through it in great detail.  He outlines the various jobs that you have had.  You were brought up in a very stable and caring family.  At some stage during the long relationship that you had, you became depressed and were treated with anti-depressant medication, however you indicated that that did not help.  You have subsequently seen a psychologist which you found to be of assistance.  Fortunately there is no history of psychiatric difficulties or alcohol damage or anything along those lines.  You have reported to Mr Simmons of anxiety attacks, usually when you are around motor vehicle accidents.

27As I have discussed with counsel, it was recommended by Corrections that you do a road trauma course.  I think in your particular situation, having listened to you and talked to you, that is not a particularly good idea.  I think with the symptoms you have got of post-traumatic stress that should be ample in your particular circumstances.

28All in all you have contributed to your community, the Aboriginal community, and you have contributed to the general community. There is no reason why that should not continue.  It is a serious crime but the consequences have been fortunately not as dramatic as they may have been.  I have no doubt that it has been very difficult within the family dealing with all this and it has also placed a burden on other members of the family with you not being able from now on to have a driver's licence.  You have desisted from drinking since this accident and you say that you have desisted from the use of cannabis.  I will be imposing those conditions in the CCO and I have got no doubt that you will be able to comply with that.

29The two personal references from the Co-op are very short and very succinct.  It is clear to me that you have great support within the Aboriginal community and there is no reason why that should not continue and you be a role model to younger people.  To be in the situation where you have got the six children and done so well is a real achievement, Mr Lovett, for a man by himself.

30Taking all those matters into account, if you agree, you will be placed on a community corrections order.  It will be for a period of three years.  It will be 250 work hours.  There will be the alcohol and drug conditions.  I will also direct that hours spend doing any of those programs can be deducted as work hours completed.  As I said it will be with conviction.

31Maybe you will get your client to sign that?

32MR BROWN:  Yes, Your Honour.

33(Section 464ZF order signed and acknowledged.)

34(Community corrections order signed and acknowledged.)

35HIS HONOUR:  That order is made.  The order is made, all right.  You are a credit to yourself and your family the way you have come through this at the end of it all.  Men often go to pieces when things like this happen. 

36Can I just say this to you, if you breach it you get brought back.  The big risk, the big risk in situations like this where you are living out in the sticks a bit is to get in the car.  Whatever you do, do not drive.  It can be a temptation and if you do they will breach you and bring you back.  If that happens I probably would not have a lot of choice, I suspect.

37OFFENDER:  Yes, I understand.

38HIS HONOUR:  You just sit at home and listen to your dad tell fibs about his football history.  All right, thanks for that.

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