Director of Public Prosecutions v Meers

[2014] VCC 1216

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -13-01831

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY MEERS

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	29 & 30 July 2014
DATE OF SENTENCE:	30 July 2014
CASE MAY BE CITED AS:	DPP v Meers
MEDIUM NEUTRAL CITATION:	[2014] VCC 1216

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – plea of guilty to one charge of recklessly endangering serious injury – motor vehicle collision – 15 months’ imprisonment with a minimum of 11 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Mandie	OPP
For the Offender	Mr S Kennedy	Tait Lawyers

HIS HONOUR:

1Rodney Meers, you have pleaded guilty to one rolled up charge of recklessly engaging in conduct, by the driving of a motor vehicle, which placed three persons in danger of serious injury.  The maximum penalty you face is five years' imprisonment.

2You were due to stand  trial yesterday on a number of charges related to the matter, however, following last minute negotiations, a plea indictment with the present charge was agreed to by you.

Circumstances of offending

3The circumstances of offending are set out in an agreed amended comprehensive prosecution opening, which was read out in court.  A summary will suffice for present purposes.

4On Sunday 14 March 2011, at about 2.20 pm, you were driving a borrowed sedan in a northerly direction along Maryvale Road Morwell when you collided with an oncoming car. You were on a country road with single lanes in each direction which were divided by solid double lines. The speed limit was 100 kilometres per hour.  It is not clear what speed you were driving before impact, but you crossed over the double lines onto the incorrect side of the road, eventually moving onto the gravel dirt shoulder on the extreme eastern side of the road.

5Your vehicle then went into a 67 metre long right hand “yaw” heading back into the centre of the road.  This meant your four wheels were rotating, you were not braking and your car was skidding sideways as it moved forward at an angle of approximately 40 degrees to the centre lines. Clearly, you had lost control of the vehicle. You concede you were driving dangerously.  Your counsel said he had no “instructions” as to why you lost control, when I asked that question.

6A utility was approaching from the opposite southerly direction at 80 kilometres per hour.  Sitting in the front were the driver, his wife and their young daughter.  The family was taking a leisurely Sunday drive on their way to the swimming pool in Morwell. The three occupants saw your car on the incorrect side of the road heading straight towards them.  The daughter screamed out. Her father swerved to the right and braked to avoid a collision, but you hit the rear of the utility and knocked it into trees on the western side of the road.

7The collision caused extensive damage to both vehicles.  The utility was a write-off, however your car was still drivable and you fled from the scene without stopping.  Most favourably to you, the prosecution did not pursue a number of summary charges relating to your lawful obligations in these circumstances. And it submitted your flight should not be treated as an aggravating feature of your offending. For sentencing purposes, I do not take account at all of the fact that you fled from the scene. 

8Obviously, the family were traumatised by the threat of your oncoming car on the incorrect side of the road.  The driver of the utility suffered serious injury, his wife suffered bruising, pain and discomfort and the daughter was upset. However, the prosecution, correctly, did not rely on the infliction by you of any actual physical or psychological injury to the family as being relevant to sentence. No charges were laid concerning such injury, the charge being one of recklessly placing the occupants of the utility in danger of serious injury, not one concerned with the infliction of actual injury or serious injury.  Accordingly, I do not take into account against you the actual injuries which were sustained by those three people.  I should note that each of them declined the opportunity of making a victim impact statement.

9After the collision you told the owner of your vehicle you had been in a collision and that the car was damaged.  Having heard a news report about a hit and run accident, the owner contacted police on 17 March and they inspected the vehicle the following day.  Significant debris collected at the scene matched the vehicle - which was strong, almost irrefutable, evidence linking your car to the collision.

Investigation and court history

10On 21 July 2011, police conducted a record of interview with you but you made a no comment response.  By this time you were in custody on other matters.  Charges were laid in March and then June 2012.  You conducted a contested committal in September 2013 although the occupants of the other car did not give evidence.

11You filed a defence response last March in which you denied being the driver of the car which collided with the family. However, as I say, the matter settled at the door of the court.  There is now 319 days pre-sentence detention, up to, but not including, today.

Background and personal circumstances

12I will turn to your background and personal circumstances. These have been set out in a Forensicare pre-sentence report, dated 20 April 2011 (which was used for another case) and expanded upon by your counsel.

13You are now 38, you were born in the Latrobe Valley area to teenage parents.  Your father has been the long-time manager of a local saw mill and your mother the manager of a local supermarket.  You have a younger sister and a number of step-siblings who were born from different relationships after your parents separated when you were six.

14Your father was described as a violent alcoholic who beat you and your mother.  Apparently, he had connections to a motorcycle gang.  After your parents split, you went to live your grandparents with whom you were close. But you moved around a lot and it was said you eventually felt “less worthy” than your siblings because they had permanent homes and families.

15You had behavioural problems at school and left in Year 7.  You worked on and off for a while with your mother and at the saw mill with your father.  You last worked in 2008 in Queensland.

16In 1993, when you were 17, your grandfather died.  You were overcome by grief and you lost your way.  You gave up a promising boxing career, having had 32 amateur fights.  You abused illicit drugs and alcohol, which became serious addictions for you.  Indeed, your counsel said that you cannot remember much of your twenties because of these problems.

17You had a relationship with a lady who was also a drug user.  There are two children from that relationship, now aged nine and four.  You eventually split up with that lady, the family went to live in Queensland and you lost contact with them.  Your ex-partner now has serious medical issues and lives with her mother and the two children in Queensland.

18Regrettably, you have a lengthy and disturbing prior criminal record.  Over 18 years, between 1992 when you were 15, and 2010 when you were 34, you sustained something in the order of 228 convictions and findings of guilt from 37 court appearances in Victoria, Western Australia and New South Wales. You have been a multi-faceted offender, recording convictions for dishonesty, including theft of motor vehicles, serious violence, drugs and criminal damage, among others.

19Of present significance, you have acknowledged a very bad history of 48 prior driving offences.  These include a number of 0.05 convictions and also driving whilst drug impaired, driving whilst disqualified or suspended on a number of occasions, driving unregistered vehicles, speeding and a number of other traffic matters. Particularly, I note that in 1995, when you were 19, you were convicted of driving recklessly and at a speed dangerous for which you were given a community based order.  In 1998, when you were 22, you were convicted of driving at a speed dangerous and sentenced to immediate gaol. In 2005, at 29, you were convicted of driving in a manner dangerous and driving when impaired by drugs, for which you were sentenced to immediate prison. In 2006, when you were 29, you were convicted of reckless conduct endangering life, driving in a manner dangerous, failing to give your name and address to an injured owner and failing to stop after an accident, for which, again, you were sentenced to immediate prison.  Finally, in 2009, when you were 32, you were convicted of reckless driving in Western Australia. I asked your counsel to deal specifically with the explanation for these particular matters. He said that you have a poor memory of the detail, although he said that you had never actually caused injury to another driver in any of the driving matters generally, which I have mentioned.

20Concerning the particular matter in 2006, your memory is incomplete but you said that you hit the rear of a stationary car at an intersection and then drove off without leaving your name and address or rendering assistance.  The explanation does not, in my view, explain in any way the conviction for reckless conduct endangering life. In relation to the 2009 matter of reckless driving in Western Australia, your instructions were that you were driving seven kilometres over the limit.  Again, that would not of itself explain the conviction for reckless driving, it might justify an offence of speeding.

21In any event, for a lot of the offending I have described, that is both the driving and other offending, you were initially sentenced to adjournments and many community based orders, including orders which involved drug, alcohol and mental health treatment components, or to wholly suspended sentences. But there were many breaches of those orders. Initially you were sentenced to detention in a number of youth training centres, but ultimately served many stints in gaol.  It would appear you have been sentenced to serve immediate gaol on no less than 18 separate occasions up to October 2010.

22The psychiatrist who provided the Forensicare report said that you had given a history of an extremely dysfunctional upbringing, characterised by both witnessed and experienced violence, inconsistent care giving and a truncated education, secondary to behavioural disturbance in childhood and adolescence. She said that, as at April 2011, when the report was written, you struggled interpersonally with frequent impulsivity, difficulty controlling anger and instability of mood.  She saw no evidence of formal diagnosis of bipolar disorder, depression or anxiety although she said you possibly fulfilled criteria for Post-Traumatic Stress Disorder, and may well have suffered Attention Deficit Hyperactivity Disorder in childhood, although she saw no evidence of this persisting into adulthood. She stated that it seemed more likely that your mood fluctuations and criminal behaviour could be explained in terms of your enduring and extensive poly-substance abuse of drugs and alcohol as well as what she described as your personality structure.  She said there was no need at that time for you to be under the specialist care of psychiatric services, either within custody or in the community.

23The expert said you did demonstrate a degree of insight into the role that drugs and alcohol have played in your offending history and mental state fluctuations and recommended that you engage in drug and alcohol counselling to assist you in that regard.  She noted you did have a motivation to cease drug use, which was encouraging. In relation to the offending at that time, which I understand concerned dishonesty matters, there was nothing to suggest that it was related to any mental health difficulties, rather, she said, it  seemed clearly linked to illicit drug use. Finally, she said that, sadly, despite your comparative young age, you had become institutionalised given the extensive amount of time that you had spent in prison and that you would benefit from a psycho-social rehabilitation once you are returned to the community, so that you may better adjust to community living and reduce the risk of re-offending.

24I was not provided with any updated mental health report and none was requested by your counsel. No Verdins claim was made as to your present offending.

25Following this offending, on 22 June 2011 you were sentenced to an aggregate of 28 months' imprisonment for various offences of burglary, theft and handling.  On 14 December 2012, you were released on parole on that sentence but two months later, on 13 February 2013, you were arrested for breach of parole for failing to comply with supervision requirements, but not for further offending. You served the balance of the 28 months sentence. From about mid-September 2013, you have remained in custody on this matter as bail was refused. Hence, the pre-sentence detention I have mentioned.

26On your estimate you have spent something in the order of 15 years in prison.  Your counsel said that close to 40, you have  “had enough of crime”. I hope that is true.  Less the period of two months, you have been in prison now since June 2011. During this time I am satisfied you have made significant progress towards rehabilitation.  You have attended many AA meetings, completed a drug alcohol course in 2012, and completed a hospitality course and one in welding, an occupation that you wish to pursue once released. You have re-established a good relationship with your father and also with your ex-partner with whom you wish to start the relationship again.  I have nothing before me as to her attitude in that regard.

27You say you have had about 44 urine screens taken since you have been in custody for that approximate three year period. I have received reports of 11 screens dating from March 2013 to July this year. On only one occasion, namely 30 April 2013, was there a positive finding for amphetamines, and you admit that at or about that time you took that drug in prison. Otherwise, all the screens have been negative for illegal substances. The screens also confirm that you have been on, and are currently taking, methadone which was prescribed by the prison doctor.  Initially you were on morphine following a car accident in 2002 and counsel was at pains to explain that this medication was not the result of a heroin addiction.

Mitigating circumstances

28There are a number of mitigating circumstances which I accept.  The first is that you suffered from a dislocated and dysfunctional childhood and adolescence, as I have outlined.  You had only limited schooling and you were beset by a terrible and chronic addiction to alcohol and drugs.

29There has been significant delay of about three years and four months in having the matter resolved and there has been, as I say, rehabilitation in the meantime.  I accept you have a genuine desire to cease your criminal conduct and way of life so as to salvage something good in yourself and others in the future. Much in this regard will depend on you obtaining meaningful, professional assistance and treatment for your drug and alcohol addictions. Of course, the true test as to this will come when you are ultimately released back into the community.  It will not be easy.

30Consistent with this attitude on your part, when released you want to go to Queensland to be with your ex-partner and the two children and you say you have some work in nickel mines. But this is all rather uncertain and unclear at the moment.  You have not actually seen your ex-partner or the children for at least four years, and, as I have said, she has some serious medical problems to deal with.

31Next, you have pleaded guilty, even though it was at a very late time, thereby saving the community considerable cost, time and inconvenience.  Your plea has a utilitarian benefit and has served the ends of justice, for which there should be a significant discount in sentence.  I note that there is no submission of remorse associated with the plea, but I do accept you now regret your offending.

32Finally, I must sentence you for reckless, not intentional, conduct. 

33Given your criminal record, entrenched addictions and other personality issues, I must remain guarded as to your prospects of rehabilitation.

Other sentencing considerations

34On the other hand, I must have regard to your commission of what  I consider to be a serious offence.  Clearly, you exposed the three occupants of the other car to the danger of serious injury in a frightening road incident.

35The road trauma message is loud and clear in our community. Whilst your rehabilitation is important, the principles of general deterrence, specific deterrence, protection of the community and denunciation are all important matters in fixing sentence.

36Your counsel submitted I should impose a fixed sentence to time served, about ten and a half months, or perhaps impose a partially suspended sentence.  He said you would not get parole. But the law prevents me from speculating as to that matter. In any event, I consider your offending is too serious to adopt that submission and that it is very much in your interest, and that of the community, to fix a sentence which provides for a period of supervision on parole once you are released back into the community, and I trust that that will happen.

37I note that, regrettably, neither side made submissions as to the range of sentence for this particular offence.  There is apparently no Sentencing Advisory Council documentation in that regard, and each side said they were unable to find cases which dealt with relevant sentencing principle. 

38On behalf of the community, I strongly denounce your offending.

Sentence

39Mr Meers, please stand up. On the charge you are convicted and sentenced to 15 months' imprisonment.  I fix a period of 11 months' imprisonment to be served before which you shall not be eligible for release upon parole. 

40I declare that the period of 319 days pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the court. 

41But for your plea of guilty, I would have imposed a sentence of two years' imprisonment with a minimum of 16 months. 

42No application is made by the prosecution for licence disqualification so I make no order concerning your licence.  That fact in itself may assist your future rehabilitation. 

43Sit down, please.  Yes, is there any mechanical issue arising from the sentence?

44COUNSEL:  No, Your Honour. 

45HIS HONOUR:  Yes.  Anything else?

46MR KENNEDY:  No, Your Honour. 

47HIS HONOUR:  I have signed the order which can be provided to the custodial officers and a copy can be made available to each of the parties.  Thank you both for your assistance in the matter.

48[Offender removed]

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