Director of Public Prosecutions v McConchie

[2023] VCC 349

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00139

DIRECTOR OF PUBLIC PROSECUTIONS

v

TARA McCONCHIE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF SENTENCE:	8 March 2023
CASE MAY BE CITED AS:	DPP v McConchie
MEDIUM NEUTRAL CITATION:	[2023] VCC 349

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentence
Catchwords:  Sentence indication – Plea of guilty – Negligently cause serious
  injury – Dangerous driving causing serious injury
Legislation Cited:                Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:  Worboyes v The Queen [2021] VSCA 169; Chenhall v The

Queen [2021] VSCA 175; Boulton v The Queen [2014] VSCA

342

Sentence:  3-year community correction order; $200 fine with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr L. Gwynn	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Tara McConchie, on 10 February 2023, I provided you with an indication of the sentence I would impose if you pleaded guilty to a charge of negligently causing serious injury and a summary offence.  I indicated I would impose a sentence of a particular kind being a community corrections order.  I made it clear that I would not order any imprisonment.  Following this, you pleaded guilty on arraignment on 16 February 2023. 

2The plea that followed adopted the submissions made at the sentence indication hearing.  Your counsel had urged that there be no imprisonment as part of the sentence.  I made it clear the prosecution submission was that there ought to be some period of imprisonment.  The prosecution contended that the gravity of the offence and the need for denunciation and general deterrence required some incarceration.

3There is no question your offending was serious but as earlier authorities have made clear, the seriousness of a crime alone does not determine the sentence to be imposed.  This concept is aligned with the later High Court directive that individualised sentencing is the paramount guiding principle.

4Accordingly, and looking at your offending, I need to factor in the broad context.  You and the victim were in a 10-year relationship and have a child together.  Your family also included your two older daughters from an earlier relationship.  It was a relationship in which you were the victim of assaults and anger.  It seems both you and the victim struggled with anger.

5On 7 March 2021, you and the victim and your children attended a party at Point Cook.  As I understand it, the plan was to stay at the house in Point Cook for the weekend.  There was no plan to drive from the party that was on 6 March and into the early hours of 7 March 2021.  There was drinking at the party from the afternoon into the early hours of the next morning. During the evening, an argument broke out concerning different approaches to parenting as best I can understand it.  You were assaulted by the victim.  You went to your car and drove away.  You had returned later but shortly after left again, that is in the family car, a Holden Jackaroo, a four-wheel-drive-type vehicle with a step outside the driver and passenger doors and a roof rack.  Attached to the vehicle was the victim's jet ski on its trailer.  After you had driven from where the party was or that house, you stopped on a small suburban road.  It was not far from the party.  You got out and tried to unhinge the jet ski trailer.  You could not get it off and you got back into the car. 

6All this was captured on a neighbour's CCTV footage.  It was just after 2 in the morning.

7You were plainly upset and wanting to get away from the victim and the anger directed at you.  What is seen on the CCTV footage is the victim coming to and getting on the step outside the car at the driver's door.  He is yelling as it can be heard on the CCTV footage some distance away.  You did not get out of the car and he did not get off the car.  He was holding onto the roof rack.  What can be seen and heard thereafter is a period of about 10 seconds when you revved the car loudly.  It did not cause the victim to get off the car.  Then unfortunately for the victim and for you, you accelerated moving around a parked car in a jerky movement. You then moved out of the camera shot where you reached a speed, as I understand it, of approximately 41 kilometres per hour and then you braked hard causing loud screeching of the tyres.  The screeching was loud enough to cause alarm to the neighbours who were asleep inside their houses.  As I said, your speed was estimated by the reconstructionist to be approximately 41 kilometres per hour. The tragic circumstances of your negligent behaviour was that from the speed to the hard braking, it caused the victim to be thrown from the vehicle.  He hit the road hard causing serious head injuries.  He had held on as you drove off but was flung off when you applied the brakes. 

8As I said, the victim sustained serious head injuries with haemorrhaging contusions developing in his brain.  There were skull fractures.  He had nerve damage to his face.  He required surgery and thereafter he was ventilated, that is assisted breathing in ICU for 10 days.  He developed pneumonia and a pulmonary embolism all concerning consequential developments.  He was for nearly two months in post-traumatic amnesia.  He had significant rehabilitation.

9An updated medical report from June 2022, over a year after the injury, was cause to establish that the victim had improved. 

10The review three months after the offence indicated that the victim was recovering well and was keen to be allowed to resume driving soon.  At that point, there was no neurological follow-up planned.  The same was noted with respect to the ear nose and throat clinic.  The victim's nerve palsy was described now as very slight left-sided facial weakness with eye closure normal and ear examination as normal.  Again, there was no planned follow-up.

11The opinion expressed was as follows:

[The victim] suffered a severe traumatic brain injury consistent with a fall from a moving 4WD on 7/3/2021.  He required emergency neurosurgical evacuation of the blood clot and a prolonged hospital stay incorporating intensive care, ward treatment, and subsequent rehabilitation. His recovery to date has been significant and will likely continue to a lesser extent for this second year post injury.

12What needs to be made clear is that when you drove, you were well over the legal blood alcohol requirements.  Tests of your blood discovered that you had a blood alcohol level of .186.  The point of this broad analysis is that the gravity of the offence of negligently causing serious injury arising from driving involves an analysis of the level of injury sustained and the degree of risk or negligence involved in the driving. The injury here is plainly serious as defined in the Crimes Act 1958 (Vic). It was life-threatening. Thankfully the victim has had significant recovery and is likely to continue to recovery. Notwithstanding, I have read his statement provided in the materials which indicates that it has caused him significant adverse effects.

13He and you have separated and parenting was at first overseen by the Department of Human Services, and is now with the victim and his new partner.  There are problems but I note the victim has not provided a victim impact statement but, as I said, his statement that he made in the depositional material or as an additional statement makes clear how he suffered.

14As to the level of risk, plainly driving at all with the blood alcohol level of .186 is highly dangerous and illegal.  Your capacity to control the car or make sense of your decisions was considerably impaired.  Further, to drive off while the victim was still standing on the step was obviously risky as was your acceleration and heavy braking.  Serious injury, if not death, was inevitable.

15That said, the Court of Appeal has made clear that a driver's moral culpability can be significantly lowered if there were or are features of the road, for instance, or in the victim's behaviour that were beyond the control of the driver.  The failure of the victim to wear a seatbelt is a factor that has lowered a driver's moral culpability in a number of cases.  With that in mind, it is clear to me that for the victim to get onto the steps and remain there as you revved the car and moved off, it is behaviour way beyond simply omitting to do up a seatbelt.  It is a factor beyond your control in the context of recent episodes of domestic violence and assault.  It is a factor that significantly lowers your moral culpability which by reason of your blood alcohol level was otherwise high.

16This sentence is not a process of blaming the victim.  What I have undertaken is the analysis required by the appellate authorities.  What results is an overall assessment that what occurred in this unusual set of circumstances that your driving your risky and negligent and the injury serious but not as permanent and debilitating as some injuries.  When all this is considered with your own personal circumstances which I will go to and the very powerful mitigation that flows from your plea of guilty – is that the wide sentencing discretion for this offence is enlivened to the point that the sentence of last resort, - being gaol – is not required in order to satisfy all the sentencing purposes.

17As to your personal circumstances, you are now 37 years old.  You are the mother of three children that I have mentioned briefly.  You have, as I understand it no contact with your youngest son. You are educated to Year 11.  Your family life had difficulties due, it seems, to your mother's mental health problems involving her self-harm.  You too had like difficulties.  You used drugs from your early teenage years.  You have a limited criminal history all involving family violence.  You have done an anger management course in the past.  You were engaged in therapeutic bail programs – Court Integrated Services Program (‘CISP’) in 2022.  There have been significant issues with homelessness, moving around partnerships or relationships that failed and substance abuse.  But at the moment you are more settled in a supportive relationship on a farm outside Warrnambool. You indicate or tell your counsel this is a place that you think you will be able to settle and remain out of trouble and drug free.  All that will be tested by the long community corrections order that I propose to place you on.

18As noted, a very significant mitigatory factor is your plea of guilty in these COVID times.  Your plea of guilty is and of itself very valuable as you have relieved the prosecution of the burden of proving the charge of negligently causing serious injury.  You had always indicated you would plead guilty to dangerous driving causing serious injury but the prosecution would not accept that plea as satisfying the indictment. Your plea of guilty is a valuable one and your intent to plead guilty to dangerous driving causing serious injury indicates your remorse and willingness to take responsibility.  I note that your remorse came through in the discussions that you had in the assessment with community corrections officers. The utilitarian benefit of your plea is high.  These are traumatic and taxing trials.  That utilitarian benefit is to be augmented because, as the Court of Appeal in Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’) and Chenhall v The Queen [2021] VSCA 175 have made clear, a plea of guilty in these times when the courts' trial lists are beleaguered must be met with a palpable benefit of an order that encourage others who are guilty to plead guilty.

19The Court of Appeal said the following in Worboyes:

As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [35].

20What flows from this is to make the benefit a palpable one and to encourage others, it moves the sentencing discretion from not just fixing a shorter term of imprisonment but to the point where the court can consider a lesser penalty such as one not involving incarceration.

21This comes in addition to the requirement of judges to consider that the community corrections regime did when it was brought into the Sentencing Act 1991 (Vic) alter the sentencing landscape. In Boulton v The Queen (‘Boulton’),[2] the Court of Appeal made clear that crimes that may have in the past attracted mid-level terms of imprisonment, that they could be met with a community corrections order. Community corrections orders were seen as important as they kept families together and thus facilitated rehabilitation.  Further, the punishment of a community corrections order – which can be onerous – could occur simultaneously to the rehabilitation via targeted therapeutic programs.  You, Ms McConchie, do need to continue your rehabilitation and your current stability.  That will be facilitated if I establish conditions, such as the community corrections order.

[2] [2014] VSCA 342.

22What is also clear and important from Boulton is that a community corrections order does operate as a deterrent to an accused and generally.  There is no doubt deterrence is a weighty sentencing purpose in cases of this kind as is denunciation.  The punishment aspect of a community corrections order via unpaid work mandated programs and supervision can meet the requirement of denunciation as well as deterrence to others and it does so to a level that the sentencing purposes of denunciation and deterrence are satisfied.  That being the case then the Sentencing Act 1991 (Vic) makes it clear that I cannot simply impose incarceration if all the sentencing purposes are satisfied by a sentence less than incarceration.

23This is a sentence for a matter that has caused me to ponder long and hard.  The blood alcohol level and the victim's life-threatening head injury are all matters that were very concerning and would ordinarily lead towards imprisonment but the whole picture of your unusual offending with the victim jumping onto the foot sill and remaining there as you revved the car and your own personal circumstances together with the high value of the plea means that the just and appropriate sentence is an onerous community corrections order. 

24Thus for committing the crime of negligently causing serious injury, I impose a three-year community corrections order.

25The conditions of that corrections order which I will go through in more detail includes 300 hours of unpaid community work.  You are to engage in programs directed at assisting with your mental health and drug and alcohol problems and other programs to reduce offending.  I will make it clear that all the hours you spend on those programs can be considered as part of the unpaid work.  You are also to be under supervision.

26There is a summary offence of driving in excess of the blood alcohol limit.  This was well and truly taken into account in the penalty imposed, the negligently causing serious injury.  Thus I impose for that a fine with conviction of $200.

27Your licence must be affected by reason of your offending - by both offences.  In respect of both offences, your licence is cancelled and you are disqualified from driving for a period of two years.

28Had you pleaded not guilty to these offences, you would have been sent to prison, doing the best I can, for two years and four months with a minimum term of one year and four months.

29Is there anything else required?

30MR TEO:  No, Your Honour.

31MR GWYNN:  No.  Thank you, Your Honour.

32HIS HONOUR:  Thank you.

33What needs to happen now, Ms McConchie, is you sign a document that says that you understand the community corrections order conditions and you consent to doing it.  So when that document is produced, I will go through that but essentially there are aspects of it that require you to cooperate with the Office of Corrections.  So go and see them at Warrnambool, tell them when you are living, tell them if you change circumstances, jobs or whatever and we will go through that.

34Then there are the special conditions that apply to you relating to unpaid work and so on.  We will just get that document done.

35Ms McConchie, the details of the community corrections order is that it goes for three years from 8 March 2023 to 7 March 2026.  The Corrections office that will manage you is Warrnambool.  The Corrections and the address is here which you will read in Raglan Parade.

36So the conditions that apply to everyone and apply to you the first of which is the most important for you to understand.  So you must not commit another offence for which you could be imprisoned during the time that this order is in force.  So if you commit any offence, breach of an intervention order, possession of drugs, driving while disqualified, they are all offences punishable by imprisonment, whether the magistrate gives you of fine or whatever the magistrate does.  You breach this order, you come back here and the same outcome will not be repeated.  This is a merciful sentence to allow you to remain outside prison but if you do not do what is required of you, you will go back to prison or must inevitably or go to prison.

37As I said, the rest of it is more about cooperation, so you have got to report to and receive visits from the Office of Corrections, you have got to report down there at Warrnambool within two clear working days so get onto that tomorrow.  You must let me them know if you change your address or your job, you have got to get permission from them to leave the State of Victoria.  That is just across the border at Portland or wherever.  You just cannot go for a trip to Mount Gambier just because you want to; do you understand?  All right.  They will probably give you permission but you have just got to tell them.  And you just obey all lawful instructions and directions of the Office of Corrections.

38All right.  That is the standard conditions that apply to everyone.

39What applies to you is you must perform 300 hours of unpaid community work.  Now, I pause there.  That is not voluntary.  That is mandatory.  Do every single day, it is a lot.  You might have to do it in groups of other people, many of them may not be as committed to putting drug use and the like behind them.  So you have just got to stay firm here.  Otherwise, do not do this 300 hours and you will be back here.

40The next thing is that you must undergo assessment and treatment for drug abuse, assessment and treatment for alcohol abuse.  Now, that means if you have given up alcohol and all the rest, well, I understand that but you have got to make sure that they assess you and treat you for that.  And you must undergo a mental health assessment.  Now, that will be no doubt under the auspices of a general practitioner.  All the hours that you spend in those programs can be deducted from there or counted as unpaid work.  That is standard.  Now, you must also be under the supervision of the community corrections order officers for the whole period, all right?  So with that, have a look at that document.  If you agree to it or consent to it, just sign it.  Your lawyer, Mr Gwynn, will come down with that now.  Is that all right if you go?

41MR GWYNN:  Yes.  Thank you, Your Honour.

42HIS HONOUR:  Sorry, I should have asked you.

43MR GWYNN:  If I may.

44HIS HONOUR:  Yes.

45That has been signed by you and by me.  So that order is now in place.

46There is nothing further required?

47MR TEO:  No, Your Honour.

48MR GWYNN:  No.  Thank you, Your Honour.

49HIS HONOUR:  Thank you.

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