Director of Public Prosecutions v McNamara
[2016] VCC 205
•17 March 2016
|
IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00221
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY NOEL MCNAMARA |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 07 March 2016 | |
DATE OF SENTENCE: | 17 March 2016 | |
CASE MAY BE CITED AS: | DPP v McNamara | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 205 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law-Sentencing-Culpable Driving and Negligently Causing Serious Injury-Severe Acquired Brain Injury-Extracurial Punishment Available-Verdins Principles Enlivened-Wholly Suspended Sentence Imposed.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Gilligan | John Cain, Solicitor for Office Public Prosecutions |
| For the Accused | Mr Alexander Patton | Balmer & Associates |
HER HONOUR:
1 Anthony McNamara, you have pleaded guilty before me to one charge of culpable driving and one charge of negligently causing serious injury.
2 Both charges are serious and that is reflected in the maximum penalty that is prescribed by law; and that is 20 years' imprisonment for culpable driving and 10 years' imprisonment for negligently causing serious injury.
3 In addition, you have admitted your prior criminal history. It spans a period from 3 October 1984 until 9 September 2008. There are some six appearances in the Magistrates’ Court in respect to criminal offending involving assaults, breaches of intervention orders, handle stolen goods, driving offences, criminal damage and a failure to comply with a community-based order. Of particular relevance is a conviction recorded for exceeding the prescribed concentration within three hours of driving and that was recorded on 23 January 2007, for which you were convicted and fined an aggregate fine of $700 and your licence was cancelled and disqualified for ten months.
4 I shall now proceed to sentence you on the basis of the plea opening that was read at the plea hearing by Mr Gilligan and exhibited.
5 The offending relates to a two-vehicle collision that occurred on 4 April 2011 and it occurred at approximately 10.15 am on Cranbourne Road, Frankston at the intersection with Deane Street.
6 At the time of the collision, the road was dry, weather fine and visibility good and the traffic was light. You were the driver of the vehicle and at the time held a full Victorian licence. You were aged forty-two. You are now aged forty-seven.
7 As a result of the collision your front seat passenger, Shane Vincent, died and Tara Saunders, a passenger in the other vehicle that was involved suffered serious injuries caused by your driving.
8 Shane Vincent was aged 20. Tara Saunders was travelling as a front seat passenger as well in another vehicle being driven by Jonathon Nicholls.
9 Shortly prior to the collision, you were facing a “Give Way” sign applicable to all vehicles travelling north on Deane Street. A speed limit of 50 kilometres per hour applied. You failed to give way at the Give Way sign and entered the intersection colliding with the front passenger side of Nicholls’ vehicle as it travelled in a generally westerly direction along Cranbourne Road in the left hand lane.
10 As a result of a collision reconstruction, it was determined the impact speed of your vehicle was approximately 52 kilometres per hour and for the other vehicle it was approximately 73 kilometres per hour. There was no evidence of pre-impact braking. Both vehicles were mechanically examined. Neither vehicle revealed any mechanical fault that would have caused or contributed to the collision.
11 Following the collision, both you and Mr Vincent were seriously injured and sustained life-threatening injuries. You were both air lifted to separate hospitals.
12 A blood sample taken from you at the Royal Melbourne Hospital at 12.15 am on 5 April 2011 was later analysed and the same was found to contain a blood alcohol reading of 0.159 per cent.
13 Dr Odell, a forensic physician at the Victorian Institute of Forensic Medicine, provided a comment as to what effects a blood alcohol concentration of that level would have had on you and your ability to drive a motor vehicle.
14 His opinion was:
(a)you were driving after having consumed alcohol;
(b)your blood alcohol concentration was 0.159 per cent about two hours after the collision;
(c)your driving skills would have been adversely affected by the effects of the alcohol at that level and you would have been incapable of proper control of the motor vehicle.
15 Mr Vincent was air lifted to the Alfred Hospital where he was admitted to Intensive Care suffering multiple injuries including a traumatic brain injury. Sadly, on 11 April, his condition deteriorated and he died on 12 April 2011. (That constitutes the facts of Charge 1, culpable driving causing death.)
16 Ms Saunders was conveyed to the Frankston Hospital for assessment following the collision. She sustained a laceration to her left leg above her ankle, bruising to her abdomen and knees. A subsequent CT scan by her local doctor revealed three fractures to the left foot that were not detected at the hospital. Her injuries were serious as she was unable to weight-bear and mobilise independently. She suffered significant pain from her injuries as a result of which she was unable to work for a time. A plaster back slab was placed on her foot and she required crutches. Ms Saunders was then placed in a CAM walker for approximately three months and after the CAM walker was removed, she continued to have pain in the foot with weight-bearing. (That constitutes the facts of Charge 2, negligently causing serious injury.)
17
The objective features of this offending are serious. Due to your negligent driving you caused the death of Mr Vincent and serious injury to
Ms Saunders.
18 It is accepted by your counsel, Mr Patton, that the offending is by its nature very serious. It is further accepted that your driving in the circumstances was the operative cause of Mr Vincent’s death. I make no finding in respect to the relationship between Mr Vincent’s failure to wear a seatbelt and his death. There was no evidence before me concerning the consequence of his failure to wear a seat belt and his death.
19
Your offending has had significant and far-reaching consequences.
Mr Gilligan, the prosecutor, read to the Court two Victim Impact Statements provided from Mr Vincent’s parents, Alan and Marion Vincent. Shane Vincent was just 20 when he was killed and it is obvious that his death has caused extreme grief and has been a devastating event for both his parents and extended family members, including his younger siblings. He is dearly missed. I have taken that into consideration.
20 His father, Alan Vincent, has seen a psychologist but is still on sedatives to assist with his sleeping and he continues to take anti-depression and anti-anxiety medication. His mother Marion Vincent, also is receiving counselling, as have her other children.
21 In formulating the appropriate sentence, I have had regard to your personal history and circumstances. You are the youngest of three children born to Beverley and Noel McNamara. Your older sister, Tracey, was murdered by her boyfriend in 1992. The consequences of her death have been far reaching for all the members of your family.
22 Your past medical history prior to the collision related predominantly to treatment for depression that you suffered following your sister's death. You also self-medicated with alcohol and drugs and you were being treated for depression at the time of the collision and continue to be treated for depression. You are prescribed Effexor.
23 You are a single man. You have a son aged twenty-three from a previous relationship. You have little contact with him and your relationship has been described as being strained.
24 You completed Year 10 and then undertook employment in a variety of unskilled positions, mostly in factories.
25 You are on a Disability Support Pension currently because of significant cognitive impairments following the severe traumatic brain injury that you suffered in the collision.
26
During the fitness to plea hearing, I heard evidence from, Dr Godfredson,
Dr Reeves, psychologists and Dr Loretta Evans and Mr Martin Jackson, clinical neuropsychologists.
27 It was explained in the course of Mr Jackson's evidence that when you were admitted into hospital, following the collision you had a Glasgow Coma score of 3 out of 15. You were deeply unconscious and not reacting to any stimulation. He described your condition as being the deepest level of unconsciousness that you can get. He confirmed generally a person who has a reading of 3 or 4 at the scene of a collision is likely to end up with some level of permanent impairment.
28 You also had a long period of post-traumatic amnesia (PTA) of 75 days. PTA is the period of time from the point of the accident to the time when a person starts laying down new memories on a day to day basis. Your length of post-traumatic amnesia was rated as severe.
29 Your diagnosis was an extremely severe to profound traumatic brain injury. You also had retrograde amnesia; that is, an inability to remember events that occurred before the accident. The retrograde amnesia is of at least six months prior to the accident, which Mr Jackson described as being a very serious period of amnesia.
30 Mr Jackson described the evidence of damage on brain scans that were taken following the collision. He confirmed that you had multiple bruises around the outside of the lobes of your brain and bruises on the deep inside of your brain and he said you have what is called shearing injuries in the white matter which joins everything together. He confirmed that you had global brain damage attributed to the collision.
31 As a consequence, whilst you have made good progress over time since the collision, the experts agree that you have been left with severe cognitive impairment.
32 You do not have any recall of the details relating to the accident and it has been documented that it is unlikely that you will ever regain any memories relating to the accident.[1]
[1]Dr Kim Currie, Rehabilitation Registrar, Epworth Rehabilitation letter dated 8 June 2011.
33 In addition to your traumatic brain injury, you also suffered a ruptured right globe (eye), right lung contusion, right rib fractures, soft tissue injury to the right arm and leg. Your right eye globe rupture was reviewed and repaired and the fractured ribs were treated conservatively.
34 Dr Robert Nave, the ophthalmic specialist who reviewed you, confirms that you had a penetrating injury to your right eye resulting in corneal scarring and a dilated distorted right pupil. You have ongoing complaints of blurred vision with the right eye. Your eye condition is considered to be stable and unlikely to change in the foreseeable future.
35 Following admission to hospital, you were kept ventilated and sedated. Eventually on 6 May 2011 you were admitted to the brain injury rehabilitation program at Epworth Hospital.
36 On admission to that program, it was noted you had left hemiparesis, that is left sided weakness, with increased spasticity in the left upper and lower limb and decreased range of movement.
37 Formal neuropsychological assessments have been undertaken in the months and years post-injury. The results indicate that the majority of your performances are well below estimates of what you were like beforehand. You demonstrate moderate to severe impairments in information processing speed, visual constructional skill, attention to visual detail, learning, memory and many aspects of executive functioning, such as reasoning, verbal fluency, planning/organisation of visual information and self-monitoring. You also present with fluctuating attention and distractibility.
38 It was initially anticipated, given the severity of your cognitive impairments, that you would have difficulty returning to independent living in the community. However with further assistance following your discharge from Epworth Rehabilitation to the Epworth Transitional Living Centre, with ongoing training, particularly in domestic and community activities of daily living, you have been able to be moved into supported accommodation where you continue to remain.
39 You continue to have some assistance with your cooking and helping with shopping and your mother is a very important part of your life facilitating your finances, assisting you and generally supporting you in your home. You spend a lot of time at home with your pet dog and have limited mobility. You attend the TAB once a day to place a bet. Otherwise you lead a very solitary lifestyle and you are not involved in any community activities.
40 It is the consensus of the medical assessors that you have a significant ongoing physical condition and also cognitive impairment and that these conditions are likely to continue in the future without any further improvement.
41 Many of your cognitive problems persist and while some aspects of your long term memory are intact, your day to day memory and concentration have been affected. You understand simple instructions if informed on a day to day basis but if material becomes complex you have difficulties and that is compounded by fatigue and reduced concentration.
42 Insofar as the physical conditions are concerned, the major injury sustained in the collision was your head injury with left sided weakness and contracture of muscles in the left upper limb. You have significant limitation of movement in the left shoulder and left elbow. Your balance is poor when walking and you have issues with falling. You have restriction of movement in the left shoulder and left elbow and permanent weakness in the left upper limb.
43 It is now almost five years since the collision and it is not anticipated that there will be any further improvement in your physical state. Currently you are not receiving any physical treatment. You do, however, attend a gymnasium during the week.
44 I have taken into account your post-collision condition as extra curial punishment so as to mitigate your punishment.[2]
[2]DPP v King [2008] VSCA 151; De Montero [2009] VSCA 255.
45 As a consequence of your cognitive impairments, I accept that Principles 2 to 6 of the principles set out in the case known as Verdins[3], have been enlivened.
[3]Verdins v The Queen (2009) 16 VR 269.
46 Therefore, I accept that your overall condition may have a bearing on the kind of sentence that will be imposed. I accept there is a need for general and specific deterrence to be moderated, having regard to your condition. Further, I am satisfied that the existence of your condition as at today's date, the date of sentencing, which will persist into the foreseeable future, would mean that any term of imprisonment to be actually served would have weighed more heavily upon you than it would on a person of normal health. I further accept that there is a serious risk of imprisonment having a significant adverse effect on your health. Those are factors tending to mitigate punishment.
47 I am cognisant of the fact that your parents have high public profiles. They are both involved with advocating on behalf of victims of crime and have been very public about their association, the Crimes Victims Support Association, that was set up following your sister’s murder. Your father is the Association’s president and is very public in his views about victims and proposals for sentencing reforms. I accept that you would be at increased risk of physical harm in prison due to your parents’ public profile.
48 In formulating the appropriate sentence, I have regard to your pleas of guilty, I note the matter resolved following the jury’s verdict that you were fitness to plead. The collision the subject of the two charges occurred on 4 April 2011 and you were not charged until 13 August 2014. A committal mention happened on 30 October 2014 and at that time it was foreshadowed that a fitness to be tried application would be made. The matter proceeded by straight hand-up brief and was listed in this court for a fitness investigation on 19 October 2015. That investigation was adjourned to enable an additional report to be obtained by your legal representatives. The matter finally proceeded as a fitness investigation with a jury empanelled on 29 February 2016. You were found fit to plead by the jury on 2 March 2016.
49 In all the circumstances, I accept that your pleas of guilty were entered at the earliest opportunity. You are entitled to a sentencing discount. By your pleas you have avoided the cost and inconvenience of a trial. I accept there is real utility in your plea and I also accept you have facilitated justice.
50 I further have had regard to the delay from the time of the collision until the time charges were laid and thereafter. The delay is in no way attributable to your actions. The adjournment application sought in October 2015 was granted solely as a matter of fairness to you. I have taken into account, the delay by way of mitigation.[4] I note that following the collision you have no other matters outstanding and there are no subsequent convictions.
[4]R v Liang; R v Li (1995) 82 A Crim R 39
51 You have stopped drinking and you no longer drive.
52 Having regard to the facts that there has been no offending in the period between the collision and the plea, that you have remained abstinent from alcohol and illicit drugs since that time, and that there is no prospect of you driving in the future, I consider there is little likelihood of you reoffending in a like manner. Overall I consider that your prospects for rehabilitation are excellent.
53 I have regard to the submissions made on your behalf by Mr Patton. He submitted, having regard to all the relevant circumstances, that a non-custodial disposition be imposed, namely a wholly suspended sentence.
54 Mr Gilligan, on behalf of the Crown submitted, in the ordinary course of events, the offences with which you have been charged and pleaded guilty to are of such a nature that an immediate term of imprisonment would be imposed. However, having regard to your particular circumstances and importantly, your cognitive impairments and other disabilities following the collision, taken together with the permanent nature of such, he accepted that, in all the circumstances, a wholly suspended sentence was a sentencing option available to the court. There was some discussion about a Community Correction Order but he accepted such an order, whilst it may be available, would be problematic having regard to your documented cognitive and physical impairments.
55 Overall, taking into account all of the sentencing principles that I must apply, and having regard to your particular circumstances and the offending, I consider that a term of imprisonment to be imposed in respect of these charges, is appropriate.
56 In sentencing you I must impose just punishment. I have moderated both general and specific deterrence for the reasons that I have articulated in these remarks . I have had regard to the gravity of the offending. I accept that both these are serious examples of these charges but I have noted in your case there is an absence of aggravating features that are often associated with these types of crimes, that is, intentional high risk behaviour such as speeding or past driving offending and convictions.
57 Finally on behalf of the community I must formally denounce your behaviour.
58 The formal sentence will be with respect to the one charge of culpable driving and one charge of negligently causing serious injury, I will impose an aggregate sentence because the offending arises out of the same acts and circumstances.
59 Mr McNamara, you will be convicted and sentenced to a term of three years' imprisonment. I wholly suspend the sentence for a period of three years pursuant to s.27(1) of the Sentencing Act 1991.
60 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for you plea of guilty I would have imposed a term of imprisonment of six years to serve three years' imprisonment.
61 Finally any licence held by you must be cancelled and you are disqualified from driving for a period of five years from today's date. That is pursuant to s.89 of the Sentencing Act 1991.
62 I think I have covered all the relevant orders.
63 MR GILLIGAN: Yes you have, Your Honour.
64 MR PATTON: Yes, Your Honour.
65 HER HONOUR: Thank you. Thank you both for all your assistance in this matter. We can formally adjourn.
- - -
0
4
0