Director of Public Prosecutions v Lukas Tregurtha
[2018] VCC 1723
•19 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00815
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKAS JAMES TREGURTHA |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2018 | |
DATE OF SENTENCE: | 19 October 2018 | |
CASE MAY BE CITED AS: | DPP v Lukas Tregurtha | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1723 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss S. MacDougall | Office of Public Prosecutions |
| For the Accused | Mr M. Kelly (sentence) |
HER HONOUR:
1 Mr Tregurtha, you have pleaded guilty to one charge of negligently causing serious injury. You have also admitted a limited prior criminal history. The maximum available penalty for negligently causing serious injury is ten years imprisonment.
2 A summary of prosecution opening was tendered in this matter and marked Exhibit A. I will summarise the facts only briefly.
3 On Friday, 13 January 2017, you were the driver of a silver Nissan Pulsar sedan. You were observed driving approximately one kilometre prior to the collision. One pedestrian described you as travelling extremely fast down Eley Road, East Burwood, and not slowing for anything including speed humps. Another motorist saw your vehicle travelling towards her at a fast rate of speed, hit a speed hump, bounce and accelerate. She flashed her lights at you but did not observe any reaction.
4 As you approached the roundabout at the intersection of Eley Road and Holland Road, you did not slow down to negotiate the roundabout. You did not brake at all. You drove straight into the roundabout, hit the centre physical feature, continued across the centre mound and then collided with the victim’s car.
5 The victim is Ms Bowman. She was 57 years old at the time, and she is now 58 years old.
6 You collided with Ms Bowman’s car with such force that her vehicle veered onto the wrong side of the road, hit a parked car, continued out of control, hit and uprooted a tree, and finally stopped approximately 57 metres west of the initial point of impact. Ms Bowman’s vehicle, the parked car and your vehicle all sustained major damage and were irreparable.
7 It is estimated you were travelling at between 86 and 90 kilometres per hour at the time of the impact. The applicable speed limit was 50 kilometres per hour. Ms Bowman’s vehicle had slowed to approximately 10 kilometres per hour prior to entering the roundabout, and accelerated to 16 kilometres per hour as she exited the roundabout. Her speed at impact was estimated to be 16 kilometres per hour.
8 The victim, Ms Bowman, was seriously injured in the collision. She was trapped in her vehicle for around 20 minutes, and then taken to the Alfred Hospital in a low conscious state. She underwent surgery and spent 15 days in the intensive care unit. She was initially supported by mechanical ventilation, and her intracerebral pressure was monitored. Her injuries included fractures at the base of her skull, bleeding in the brain, collapsed lungs, ruptured and torn arteries and head injuries. She was ultimately discharged to the Epworth Rehabilitation Clinic, and has not been able to return to work since the collision due to ongoing pain and restrictions.
9 A victim impact statement by Ms Bowman was tendered in this matter, in which she sets out the impact of the collision upon her. Prior to the collision she had been a capable and independent woman. She kept fit, and she worked managing a learn-to-swim program. She suffers the ongoing effects of this collision, including vertigo, a compromised voice, and difficulty coughing and swallowing. She has lost her sense of smell, she has lost her sense of taste, eating is difficult and restricted, and she suffers daily physical pain.
10 She has conscientiously done exercises and rehabilitation, and avoided painkillers; however, she is still restricted as to what she can do physically. Because she no longer works, she has lost her social world and feels lonely and isolated. She is in receipt of benefits, but worries about payments stopping. She can only drive short distances at quiet times on quiet roads, because she is anxious and nervous when in a vehicle.
11 A victim impact statement of her brother was tendered. This set out the emotional impacts he experienced. He was worried about whether his sister would survive or walk again, and he has had to become the sole carer of their elderly parents. It was distressing for him to see his sister in such discomfort and pain.
12 A victim impact statement of Ms Bowman’s daughter was also tendered. She describes how distressing it was to see her mother so injured, particularly in the first few months after the collision. She says her mother has lost her identity now that she cannot work, and she is worried and anxious about all aspects of her mother’s future.
13 You sustained a broken jaw in the collision, and were taken to hospital. A blood sample was taken, and numerous substances were detected; however, it is not put that any of those substances, alone or in combination, had any impact on your driving.
14 It was put on your behalf that the negligence consisted of the excessive speed at which you were travelling, and the fact that you were tired or lethargic at the time you were driving. You told police in your record of interview that you felt tired and lethargic at the time, and your body was tired from physical work. However you were not falling asleep and you did not think you should not be driving.
15 The objective gravity of this offence is to be assessed by the degree of negligence involved and the seriousness of the injury caused.
16 Given the speed at which you were driving, including travelling at speed over speed humps, it is difficult to see the role, if any, that tiredness played. This is not a case where you drifted off, or momentarily lost concentration.
17 The negligence here essentially consists of the excessive speed at which you were travelling in a 50 kilometre per hour residential zone; travelling at speed approximately one kilometre prior to the collision; ignoring speed control measures such as speed humps prior to the collision; entering the roundabout without slowing or braking at all; and failing to negotiate the roundabout such that you went straight through it at speed and across the centre physical feature, and forcefully collided with the victim’s vehicle. A roundabout is of course a traffic-control device, designed to ensure that motorists can safely negotiate the intersection. Your driving involved a significant degree of negligence, however it is not in the higher or upper range for this type of offence. Nor is it a case of momentary inattention or loss of concentration, which would fall at the lower end.
18 In addition to the degree of negligence attaching to your driving, the objective gravity of this offence is measured by the seriousness of the injuries you caused. The injuries to Ms Bowman and are fairly described as very serious. The consequences to her have also been very serious. She has worked hard to rehabilitate herself, and continues to work hard, but she has been left with ongoing pain and restrictions, including an inability to return to the job that she loved.
19 You have a very short criminal history which is limited to Magistrates’ Court appearances, all of which were dealt with by way of “without conviction” dispositions. Your criminal history is not relevant in sentencing you. Importantly, you have no prior criminal history when it comes to driving matters. This speaks well to your prospects of rehabilitation.
20 I turn now to your personal circumstances.
21 You are 31 years old, having been born on 23 November 1986. You have a good employment history, and were working as a plumber at the time of this collision. You have continued to work since the collision, up until the date of the plea, when you were remanded into custody. Your parents and brother attended court in support of you, and Ms Amanda Brown, drug counsellor, gave evidence on your behalf.
22 You had a happy, loving childhood, and you and your elder brother were well cared for by your parents. You successfully completed Year 12 at Caulfield Grammar, and you were a talented soccer player, representing Victoria in the under‑15s soccer. After leaving school you successfully completed a plumbing apprenticeship and have been employed ever since. At the time of the collision you were working with Burelli Roofing, and had been with them for about four years.
23 You continue to reside with your parents in the family home, and have purchased a one bedroom apartment as an investment. You were not insured at the time of the collision, and I am told there are civil claims afoot.
24 You do have a history of illicit drug use. You commenced smoking cannabis in your mid to late teens, and went on to use other drugs such as ecstasy, ice and GHB. You stopped using drugs around your mid-20s but at the age of 25 you were training at the gym and met a heroin dealer, and when visiting his apartment smoked heroin. You have been addicted to heroin ever since. You have attempted rehabilitation, including residential rehabilitation of three months, but you have always relapsed into heroin use. You were on methadone at the time of the collision and you are still on methadone today.
25 Your counsel described you as a functioning heroin addict, in that, despite your drug habit, you have kept your job, paid for your drug use, and used one to two times a week. You have to date been unable to successfully quit your habit.
26 You commenced seeing Ms Amanda Brown in August 2017. Since the collision you have attempted to address your drug use, albeit not successfully. You have also expressed significant remorse, guilt, and shame to Ms Brown about this collision and the consequences to the victim. I am satisfied you continue to experience genuine and significant remorse about what you did and the damage you caused.
27 Ms Brown gave evidence on your behalf. She said that you are on methadone, although all urine screens have returned positive results to opiates: that is, you have still been using heroin, according both to your own admissions and the test results. Since this collision you have not bought another car and have not been driving, you rely on lifts and public transport.
28
She said you have real trouble sitting with your feelings about this collision, including guilt, shame, and remorse, and you have used heroin as a way of blocking out your thoughts. She said you feel terrible about what you did and about yourself. You do not make any excuses for what you did, and you are having trouble with the fact that you are the cause of such serious injuries to
Ms Bowman, and you are having trouble managing your feelings.
29 Ms Brown frankly told the court that you have not necessarily tried as hard as you could to entirely quit your heroin habit, but your motivation for change was understandably hindered by the knowledge that this offence would result in a period of gaol. You have however made efforts to reduce your heroin use, and I accept Ms Brown’s evidence that the knowledge you were going to prison would have reduced your motivation to change. You do still deserve credit for engaging with Ms Brown and attempting to address your heroin habit.
30
As I have said, I do accept that you are genuinely ashamed, remorseful, and feel real guilt about the collision and the consequences to the victim.
You made full admissions to the best that your memory allowed in your police record of interview and you indicated your intention to plead guilty to this offence prior to a committal hearing. I accept that you entered a plea of guilty at the earliest reasonable opportunity. I also accept that your plea of guilty is indicative of remorse, as are your admissions to the police. Your early guilty plea entitles you to a significant sentencing discount.
31 I accept that you have very good prospects of rehabilitation, despite your unresolved addiction. You have a very good employment history, an ability to make a good living, and I am told and accept that you will undoubtedly have good employment available to you upon your release. You also have the love and support of your family. All these matters speak positively as to your prospects of rehabilitation. You are also a relatively young man, and it is in both your interests and the interests of the community that you are rehabilitated.
32 You have no relevant prior convictions, and in particular, you have a complete lack of any driving-related prior matters. Your driving on this day seems very much out of character. In the circumstances, I do not regard specific deterrence as a significant sentencing consideration. You have never been gaol before and this is your first experience of custody. Any sentence of actual imprisonment will have a deterrent effect on you, regardless of its duration.
33
General deterrence is of course a very significant sentencing consideration, as are denunciation of your conduct and just punishment. You were driving at
36–40 kilometres per hour over the speed limit in a suburban street. You did not attempt to slow or negotiate the roundabout, and Ms Bowman’s life has been forever altered by your driving. The message must be sent to other drivers that if they engage in this type of driving behaviour, they should expect to receive a substantial period of imprisonment. Driving is a privilege, and drivers must at all times drive carefully and lawfully. Driving such as yours, even for a person with an unblemished driving history, will result in actual imprisonment.
34 Mr Tregurtha would you please stand.
35 Mr Tregurtha, in all the circumstances, the sentence of the court is as follows:
36 On the single charge of negligently causing serious injury, you are convicted and sentenced to three years and two months' imprisonment. I direct that you serve a minimum of 22 months imprisonment before becoming eligible for parole.
37 You have served 38 days by way of pre-sentence detention, and I declare that period be reckoned as time already served under this sentence.
38 Pursuant to s 89(2)(b) of the Sentencing Act, all licences and permits held by you are cancelled and you are disqualified from obtaining a licence or permit for a period of 30 months.
39 Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is five years imprisonment with a non-parole period of three years.
40 Is there anything else?
41 MISS MacDOUGALL: Your Honour, I did know that a forensic sample order was tendered at the plea hearing.
42 HER HONOUR: I think my associate has it, thank you.
43 MR KELLY: May I have moment with Mr Tregurtha?
44 HER HONOUR: You may.
45 MR KELLY: Thank you, Your Honour. Thank you, Your Honour, Mr Tregurtha has nothing to say in relation to that.
46 HER HONOUR: Thank you.
47 In the circumstances I will make the order and the reason for making the order, or reasons I should say, are the seriousness of the circumstances of the offending, and that the order is by consent or not opposed, and the granting of the order is in the public interest.
48 Mr Tregurtha, Mr Kelly will explain that to you but it enables the police to take a forensic sample from you and that will be retained on what is commonly known as the DNA database. Thank you, I've made that order. Is there anything further?
49 MISS MacDOUGALL: No, Your Honour.
50 HER HONOUR: Thank you. If Mr Tregurtha can be removed, thank you.
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