Director of Public Prosecutions v Meyers

[2020] VCC 368

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-18-02518

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON MEYERS

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JUDGE:	His Honour Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2020
DATE OF SENTENCE:	26 March 2020
CASE MAY BE CITED AS:	DPP v Meyers
MEDIUM NEUTRAL CITATION:	[2020] VCC 368

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Sentencing – Culpable driving – Possession of a Drug of dependence – Driving a motorbike while unlicensed – high moral culpability

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Office of Public Prosecutions
For the Accused	Mr B. Keating	Slink & Keating Solicitors

HIS HONOUR:

1       Jason Meyers, you have pleaded guilty to one charge of culpable driving and one charge of possession of a drug of dependence, namely methylamphetamine. You have also pleaded guilty to an uplifted summary offence of one charge of a failed drug blood test within three hours of driving.

2       The maximum penalty for culpable driving is 20 years imprisonment. The maximum penalty for possession of a drug of dependence is five years imprisonment. The maximum penalty for the summary offence of a failed drug test is a fine of 12 penalty units for a first offence, which it is for you.

Circumstances of Offending

3       The circumstances of your offending were outlined in the Agreed Summary of Prosecution Opening for Plea, dated 18 February 2020. This was Exhibit A on your plea and forms part of these reasons.

4       You were 23 years of age at the time of the offending and are now 25 years of age.

5       You were the holder of a suspended Victorian P2 Probationary car drivers’ licence and were not licensed to drive a motorcycle at the time of the offending. 

6       At about 4.15pm on 18 July 2017, you went and purchased a Hyosung GT250R motorcycle from the seller’s house for $200. During a conversation with the seller you told him that you had owned multiple motorbikes in the past and knew how to ride them.  

7       At about 4.45pm you rode the motorcycle away from the seller’s home and as he watched you ride away observed you struggling to ride the motorcycle.  You were ‘riding’ the clutch and you were not leaning when you went around the bend like a motorcycle rider is supposed to do. The word the seller used to describe your riding on that day as he watched you drive away was ‘erratic’.

8       At about 5.00pm, Malcolm and Jane Hall went for a walk together near their home in Cheltenham.

9       At about 5.38pm you were heading south on Warrigal Road and stopped at red traffic lights at the intersection of Centre Dandenong Road. Other drivers saw you driving erratically and perceived a lack of riding ability. Some described a loud revving sound and saw a motorcycle lane-splitting and nearly hitting the side mirrors off cars. One other driver said to his passenger that you looked like you had a ‘death wish’.

10     When the traffic lights turned green you accelerated rapidly away from the intersection and from the other drivers who were travelling at about 50 to 60 kilometres per hour.

11     At about 5.39pm Mr and Mrs Hall were crossing Warrigal Road at the intersection of Bayliss Street. Mr Hall describes looking along Warrigal Road and not seeing any traffic coming from the right-hand side. He also described checking to his left-hand side and could only see one car in those lanes but believed they had time to safely cross the road.

12     

Mr and Mrs Hall began crossing and they got to the middle of the road.

Mr Hall looked to his left and saw the motorcycle you were driving passing a car on his left at a fast rate. He stopped and yelled out to his wife, hoping to stop her, but she kept walking.

13     Your motorcycle collided with her and picked her up and flipped her over, throwing her about one and a half metres into the air. Your motorcycle then skidded off along Warrigal Road and you were thrown from the motorcycle. Your motorcycle mounted the nature strip and collided with a brick pillar before coming to a rest. You tumbled along the road and came to a rest on Warrigal Road.

14     Mr Hall describes cars stopping and people getting out of cars. He went to his wife and saw a lot of blood coming from her mouth. A number of witnesses stopped to assist both Mrs Hall and you before emergency services arrived.

15     Mrs Hall received fatal injuries as a result of the collision and died at the scene.

16     You sustained serious injuries and were treated by paramedics at the scene and then conveyed to The Alfred Hospital. A blood sample was taken from you at 7.34pm. Your helmet was inspected for damage at The Alfred Hospital and a zip-lock bag containing two to three teaspoons of a white crystalline substance was found and handed to police.  I was told that this has not been analysed but you accept, by your plea, that it was methylamphetamine.

17     At the time of the collision the road was damp as it had been raining, the traffic was heavy, visibility was clear, and the weather was fine. Streetlights were operating normally.

Investigation

18     On 18 July 2017, a post-mortem examination was conducted on Mrs Hall. The medical examiner found that Mrs Hall had died as a result of significant facial and head injuries as a result of the collision.

19     The blood sample obtained from you following the collision was analysed. There was Tetrahydrocannabinol (THC) located in your blood, being the active ingredient in cannabis.

20     On 8 August 2017, investigators attended and processed the scene of the collision. As a result of their investigations they determined that the victim was thrown about 11 metres post-collision; that the minimum speed of the motorcycle after the impact with the victim was 92 kilometres per hour; and that the impact with the victim would have washed off some of the motorcycle’s speed. Meaning that the impact speed was greater than 92 kilometres per hour.

21     Your motorcycle was inspected, and no mechanical faults were found.

22     You declined the opportunity to participate in a record of interview. 

Victim Impact Statements

23     One cannot help but be moved by the victim impact statements, all of them, those tendered and those read aloud in court. In a wonderful way, the statements paint a picture of Jane Hall as a loving, joyous, caring and kind individual who lived a rich and rewarding life. Each in their own way illustrated how precious her life was, and how precious life is for all of us.

24     Understandably, the impact of your crime has been enormous and far reaching. It has been devastating.

25     Mrs Hall’s son and daughters are suffering. They are stricken with grief at the loss that will continue for the remainder of their lives. Her younger sisters suffer. Her friends are bewildered and deeply saddened.

26     For her husband, Malcolm, the immense grief, shock and imagery of the moment when you struck his wife, and its aftermath, are inescapable. He says in his Victim Impact Statement that 'I have lost my life partner, my dreams and plans for the future have gone. Family life we once had has gone. The life I thought I had has gone'.

Gravity and Moral Culpability

27     Culpable driving causing death is a very serious offence given the maximum penalty of 20 years imprisonment. Further, it is an offence that involves the tragic and senseless loss of a precious life due to nothing other than your gross negligence.

28     Jane Hall was a much-loved wife, mother, sister and dear friend. She was crossing the road near her home with her husband. Your decision to speed away at the lights, and reach at least 92 kilometres per hour, some 30 kilometres over the speed limit, unlicensed for motorcycle riding, completely inexperienced, and having just bought the motorbike within the hour prior, is staggering.

29     To engage in the erratic and dangerous driving you engaged in, in those circumstances, at 5.40pm on a winter’s evening, leads to my finding that your moral culpability is high.

30     A significant period of imprisonment must be imposed upon you in order to deter others from engaging in such gross negligence and to impress upon the community the need to take care when driving on our roads, as well as expressing appropriately the community’s denunciation of such negligence. You are also to be punished for your conduct.

Plea of Guilty

31     You pleaded guilty at an early opportunity. While there were some legal steps and forensic manoeuvring in your case, however, I accept that your plea should be regarded as an early one.

32     I also accept that it is consistent with, and reflective of, what I find to be your genuine remorse. I find remorse in the form in which you have expressed it to Dr Thomas Varghese, and to the clinical psychologist, Ms Danswan.

33     Your mother read a letter aloud in open court with my leave, and that could not have been, at all, an easy task for her. Indeed, her pain and emotion was palpable. This letter and her expression of it helped give me a sense of your response to your crime. I accept the contents of the letter, and it contributes to my finding that you are deeply remorseful for the impact of your crime.

34     You have no memory of the incident. This is a consequence of the brain injury you suffered at the time of the collision and that you are still in the process of rehabilitating from. It is unlikely that you will make a complete recovery.

Personal Circumstances

35     Your personal circumstances were outlined in your Counsel’s detailed Outline of Defence Submissions on the Plea dated 2 March 2020. This was Exhibit 1 on your plea and forms part of these reasons.

36     In brief, you were born in Melbourne in 1994. You were 23 years of age at the time of the offending. You are now 25.

37     Your parents were both in court, together with other family members. They are involved in their own business, trading rugs. You have a sister, Chantelle, who is studying to be a psychologist. She is employed in the public service and recently married. Another older sister, Charlene, is 30.  She is a nurse and married with three children.

38     You were educated to Year 11, attending secondary school at Mazenod College, Salesian College and South Oakley College.

39     After leaving school, you worked for three years with your father in the family business. You have also worked in plumbing, electrical work and construction. You had not been working for two months prior to the collision but it was your intention to resume employment.

40     You have not worked since the collision. Occasionally you do some fill in work for your father in the family business. You have lived in the family home virtually all your life.

Matters in Mitigation

41     Your counsel, Mr Keating, made a careful and thorough plea on your behalf. Everything that could be said on your behalf was said.

42     One of the matters relied upon by Mr Keating was the principle of extra curial punishment in the form of the acquired brain injury which you have suffered as a result of the collision. These matters are summarised at paragraph 32 of Exhibit 1, which is Mr Keating’s outline.

43     I have read the medical material in the form of hospital notes, progress notes and the various reports and notes of Dr Varghese, Dr Teo and Mr Delaney.

44     The detailed psychological report, dated 1 March 2020 from Ms Danswan, is also relevant to the question of extra curial punishment.

45     I accept that you have suffered an acquired brain injury as a result of the collision and that this has caused considerable difficulty for you and arduous rehabilitation. You continue to suffer tiredness, headaches, insomnia and depression – all of which can be related to your acquired brain injury.

46     I accept that this factor has some mitigatory effect in the determination of sentence.

47     Further, due to this injury and the associated cognitive impairments, specifically in relation to memory recall, irritability, social disinhibition and low frustration tolerance, your capacity to adjust to prison may make you more vulnerable in such an environment.

48     You also suffer depression, an illness which will also impact on your experience in custody.

49     It was also submitted to me by your counsel that you have led a sheltered life at home, and it is not difficult to accept that for a young man in your circumstances, your first experience of custody will present as a shock and will be an extremely frightening and difficult experience.

50     All these matters lead to a conclusion that the burden of imprisonment will weigh more heavily upon you due to your acquired brain injury, your depression, and your vulnerability in general, than it would for another who does not share these features. The prosecution conceded that there is some mitigatory effect due to the collection of these matters that are often placed under the heading of hardship in custody.

51     Another matter that I have some regard to is that the circumstances in our community have changed somewhat drastically in the few weeks since I remanded you into custody. I understand that prison visits have stopped and that this condition is likely to continue for some time. The effort to stop the spread of the COVID-19 virus will no doubt lead to a more restrictive and onerous environment in custody for you in the coming months. The stress to you and your family, being a young man in your circumstances commencing a lengthy gaol term in these times, is obvious. It will weigh upon you and I take it into account.

52     You are still a young man. You were 23 at the time of the offending.  You are now 25. You have the support of your family, who were present in court, including your parents and siblings.  There was no prior criminal record placed before me.  I consider that your prospects of rehabilitation are good. This is due in no small part to what I found to be your deep remorse. The extent of the ongoing love and support of your family, expressed so clearly by your mother, also gives me confidence that for a young man with your ability, your prospects of rehabilitation into the future are good.

53     Given your youth and your good prospects of rehabilitation, I have considered favourably Mr Keating's submission regarding the issue of a parole period.

54     In relation to Charge 2, the possession of a drug, it was not submitted to me that this was for a purpose unrelated to trafficking.  However, in the circumstances of the location of that material, I have very little to go on as to what was involved in that matter.

55     As for the summary offence, it is disgraceful that you were driving under the influence of a drug, but I have no evidence that the presence of that drug played any role in the tragic events.  The maximum punishment available is a fine of 12 penalty units and you will be punished for that charge accordingly.

56     I sentence you as follows.  You can remain seated there, Mr Meyers.

57     On Charge 1, culpable driving, you are sentenced to be imprisoned for seven and a half years.

58     On Charge 2, the possession of methylamphetamine, you are sentenced to three months imprisonment.

59     On the related summary offence, you are fined $800.

60     I set a non-parole period of four and a half years.

61 I declare that the time already served, pursuant to s.18 of the Sentencing Act, is 23 days.

62 Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty to these offences, I would have imposed a sentence of nine and a half years with a non-parole period of six years.

63     Are there any other orders sought?

64     MS HARPER:  There is an application for forfeiture of the substance that was located in the helmet.

65     HIS HONOUR:  Yes, yes.  Forfeiture or disposal of the - - -

66     MS HARPER:  Disposal, Your Honour.

67     HIS HONOUR:  Yes, I have signed the disposal order in relation to that.  There were no other orders?

68     MS HARPER:  No other orders.

69     HIS HONOUR:  Thank you, Ms Harper.  All right, that concludes my sentencing remarks and, Mr Meyers, I wish you all the best in these times.

70     OFFENDER:  Yes.  Thank you.

71     MS HARPER:  May it please the court.

72     OFFENDER:  Thank you, Your Honour.

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