Director of Public Prosecutions v McGrath, Bradley
[2012] VCC 1504
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01298
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY McGRATH |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2012 | |
DATE OF SENTENCE: | 28 September 2012 | |
CASE MAY BE CITED AS: | DPP v McGrath, Bradley | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1504 | |
REASONS FOR SENTENCE
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Catchwords: Negligently causing serious injury-Plea-Remorse-Two victims-One event-Partial cumulation-however moral culpability due to lower intellectual functioning-Reduction in sentence for depression, anxiety and PTSD making imprisonment more difficult.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Sedgwick | |
| For the Accused | Mr T. Walsh |
HER HONOUR:
1 Bradley McGrath, you have pleaded guilty to two charges of negligently causing serious injury. This is a crime which has a maximum penalty of ten years' imprisonment.
The offences.
2 I sentence you on the basis of the opening which was read by the prosecutor (Exhibit A).
3 Put briefly, on 30 November 2010 you were driving a car which ploughed into the back of a car which was stationary at a school crossing marked by flags, causing that car to shoot forward and hit the school crossing supervisor. Both the driver of the car you hit and the school crossing supervisor were seriously injured.
Impact on the victims:
4 Charge 1 relates to Ms Rachael Higgins.
5 Ms Higgins was the driver of the car which was stationary at the school crossing. As a result of your collision with her car, it was damaged beyond repair. Ms Higgins suffered five fractured vertebrae which caused her extreme pain and she was in hospital for a week. She was unable to work for a further six weeks. Apart from her immediate pain and the stress on her partner and family, Ms Higgins also suffered a loss of confidence as a driver and it took some time before she could drive again.
6 Charge 2 relates to Ms Judith Grant.
7 Ms Grant was the school crossing supervisor hit by Ms Higgins' car. Ms Grant was thrown about 16 metres.
8 As a result of your actions, Ms Grant suffered a mild brain injury, fractured pelvis, fractured clavicle, fractured ribs, fractured roof of the mouth and cheekbone, torn knee ligaments and shoulder tendon, abrasions to the cheek, laceration to the eyebrow and fractured teeth, which have had to be removed and dentures fitted. Clearly all these injuries involve severe and debilitating pain. She spent ten days in hospital and two months in a rehabilitation centre.
9 About seven months after the collision Ms Grant had surgery on her knee and about nine months after the collision she needed a bone graft on her shoulder, both of which operations involved her in more pain and recovery work. She continues to have difficulty using stairs due to lack of mobility in her knee.
10 Bravely, Ms Grant returned to work as a school crossing supervisor in June 2011. Because of her injuries, she cannot hold up the "Stop" sign, and so works at a school crossing operated by traffic lights. She has naturally had thoughts of the collision return to her when she is standing in the crossing escorting students across the road.
11 It is clear that Ms Higgins and Ms Grant have both suffered considerably as a result of your actions. I take the impact on them into account in deciding what the appropriate sentence is. I wish Ms Higgins and Ms Grant well in their continued recovery.
Basis for sentencing:
12 This is a serious example of this type of offence, although not the most serious. You were driving your car at about 78 kilometres per hour in a 60 kilometre per hour speed zone when you hit Ms Higgins' car. There was no sign that you put the brakes on before the impact. You were not paying attention to what was happening on the road ahead of you. You had consumed cannabis a couple of hours earlier and methamphetamines a couple of days earlier. The use of these drugs affected your capacity to drive. You were showing off to the young woman who was your passenger. The impact on those seriously injured by your actions is severe and ongoing.
13 These are all features of what made your driving criminally negligent and help me to assess your degree of negligence as being towards the higher end of the range.
14 Whether you realised it or not, your driving was very dangerous as you did not keep a proper lookout, due to your drug use and lack of attention to the road, and you were driving at a speed that meant when something happened in front of you, you were not able to drive safely and avoid the collision, which had serious consequences.
Factors in mitigation and personal circumstances:
15 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. By your plea, the community has been spared the time and cost of a trial and your victims have been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
16 Next, I accept that you indicated early your intention to plead guilty. I also accept that your early plea of guilty shows that you are remorseful for your actions and the hurt you caused to Ms Higgins and Ms Grant. At the scene you immediately said you were sorry and asked, "What have I done?"
17 I received a report from Dr Michelle Wauchope, forensic psychologist. In it she says you have experienced significant guilt over your actions as well as developing depression, anxiety and symptoms of post traumatic stress disorder after reflecting on the results of your actions on your victims.
18 I also received a letter from your doctor, who also assessed you as depressed and anxious and placed you on antidepressant medication. I accept that these reactions also show your remorse.
19 Dr Wauchope assessed you as having an extremely low IQ, functioning at about the level of a five to 12 year old. I found this surprising and difficult to accept given other information I had about you, and your counsel has assured me that you function at a much higher level than that, although still lower than average.
20 You have just turned 26 and you are the youngest of four children. You were living in Melbourne at the time of the collision and afterwards returned home to live with your parents. The family lives in a town outside of Horsham.
21 Both your parents have work injuries and are separated but still living in the same house. One of your brothers is your mother's carer. Your parents and your partner made the long trip to Melbourne to support you in court.
22 You attended school to the end of Year 10, and after learning difficulties were identified, you had a learning aide. Despite these difficulties, you have had a number of jobs since leaving school and, importantly, you have only a couple of weeks of school to do to complete a carpentry apprenticeship. You plan to complete this when you are released.
23 Five years ago you met your partner and you have two children aged three years and eight months. You all live in your parents' home, and since you returned you have been doing some renovation work for them.
24 You began using cannabis at about 16 and soon began using it daily. You also use alcohol and other drugs. Apparently you stopped drinking alcohol at about 17 years but continued using cannabis daily and occasionally methamphetamine. I am told that you have not used methamphetamines since the collision and you have cut down your cannabis use and want to stop altogether. As you are now in gaol, that will be possible for you to do.
25 You have held a driving licence for four years and had never committed a driving offence before the collision.
26 You appeared in the Children's Court nine years ago for shoplifting, but I do not consider that is relevant to today's sentence.
Submissions:
27 The prosecutor submitted that imprisonment is the only appropriate sentence and put forward a range of three to four years with a minimum of 18 months to two and a half years. She submitted that some cumulation was required between Charges 1 and 2 given there were two victims, but did not seek total cumulation on the basis that the charges arose out of the one event.
28 Your counsel said that you accept that you must go to prison. He submitted that I should weigh up the serious nature of your driving with your reasonable prospects of rehabilitation, relatively young age, lack of relevant prior convictions and your remorse, to reach an appropriate sentence. He submitted that because of your depression, anxiety and PTSD that your term of imprisonment will weigh more heavily on you than someone without those issues. He finally submitted that I consider partly suspending the term of imprisonment or give you a longer than usual parole period.
Findings:
29 Apart from the findings I have already made, I make the following findings:
§ You are unlikely to re-offend;
§ You do not have a history of alcohol abuse but you do have a history of drug abuse;
§ You have good prospects for rehabilitation given your age, lack of prior convictions, good work history and support from your family and partner;
30 Because of these factors, specific deterrence, which means that by my sentence I must seek to deter you from re-offending, is not as important as it might otherwise have been.
31 General deterrence, which means that by my sentence I must seek to deter others from offending in the same way, is of great importance. People must be deterred from driving at excessive speeds while being affected by drugs and not paying attention to their driving.
32 I accept that you will find imprisonment more difficult because of your depression, anxiety and symptoms of PTSD and will reduce your sentence to reflect this. Your moral culpability is a little lower because of your lower intellectual functioning.
33 You were under the influence of drugs, which contributed to the offences, and so I will impose a period of disqualification from driving, which will be for two years, including 12 months following your release from custody, and that means that you will have to have someone else drive you for 12 months after your release until you are re-licensed.
34 I have read and considered the authorities provided to me. While they were helpful reminders of the current sentencing practices in respect of serious injury charges, I do not propose to analyse the similarities and differences with this case. There will be partial cumulation between the charges. That is because each victim must be recognised. I have borne in mind the need to adhere to the totality principle.
Ancillary orders:
35 Application has been made for disposal of the drugs found in your car. You have not objected to this order and so I have signed it.
36 Stand up, please, Mr McGrath.
37 You are convicted and sentenced as follows:
Charge 1, negligently causing serious injury, two years three months' imprisonment. Charge 2, negligently causing serious injury, two years nine months' imprisonment. Charge 2, of two years nine months' imprisonment, is the base the sentence.
I direct that six months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
That results in an effective sentence of three years three months' imprisonment.
38 As this is more than three years, I cannot suspend any part of that sentence. Instead, I direct that you serve a minimum term of one year six months before becoming eligible for parole. I have set this minimum term having regard to your previous good character, your relatively good prospects of rehabilitation, your age and the fact that imprisonment will be more onerous for you.
39 If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have given you is six years' imprisonment with a minimum of four years.
40 I declare that you have served 16 days in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
41 I order that your licence to drive be cancelled, and you are disqualified from driving for a period of 24 months ending 12 months after your release from custody. I have made the order for disposal.
42 Yes, just take a seat, Mr McGrath.
43 Anything further?
44 MS SEDGWICK: No, Your Honour.
45 MR WALSH: No, Your Honour. I take that to mean that the - sorry, Your Honour, the licence cancellation doesn't effectively commence for a period of time.
46 HER HONOUR: It doesn't commence today, no. The authorities that I've referred to - - -
47
MR WALSH: I don't take issue, but it will commence in six months less
16 days, in effect?
48 HER HONOUR: It will work out from his date of release, so it will commence whilst he is in custody and 12 months of it will continue after his release.
49 MR WALSH: Yes, thank you, Your Honour.
50 HER HONOUR: So it is difficult to give an exact commencement date for that reason.
51 MR WALSH: Yes, Your Honour's intention is quite clear.
52 HER HONOUR: Yes. Yes, well, I have, in the copy that will be provided for revision, referred to the authority that allows me to make an order of that kind.
53 MR WALSH: Yes, Your Honour.
54 HER HONOUR: Two cases, one of Caldwell and one of Williamson, and those citations will be included.
55 MR WALSH: As Your Honour pleases.
56 HER HONOUR: Yes, well, I thank everyone for their assistance. Mr McGrath may be removed.
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