Director of Public Prosecutions v Michale
[2021] VCC 1006
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00555
Indictment No. L12151872
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAHLI MICHALE |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2021 | |
DATE OF SENTENCE: | 22 July 2021 | |
CASE MAY BE CITED AS: | DPP v Michale | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1006 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: negligently causing serious injury - two charges of conduct endangering persons - one charge of theft of a motor vehicle – youth – rehabilitation – general deterrence – serious example of the offence
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Three years and six months detention in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Karamicov | Solicitors for the Director of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker |
HIS HONOUR:
Introduction
1Tahli Michale, you have pleaded guilty to one charge of negligently causing serious injury, two charges of conduct endangering persons, and one charge of theft of a motor vehicle. You have also consented to having two related summary charges uplifted to this court. You have pleaded guilty to one summary charge of exceeding the prescribed concentration of alcohol and drugs and one summary charge of unlicensed driving.
2The maximum penalties for those offences are as follows;
(a) On Charge 1, negligently causing serious injury, 10 years imprisonment;
(b) On Charges 2 and 3, conduct endangering persons, 5 years imprisonment;
(c) On Charge 4, theft of a motor vehicle, 10 years imprisonment;
(d) On Summary Charge 8, unlicensed driving, 60 penalty units and six months imprisonment; and
(e) On Summary Charge 9, exceeding the prescribed concentration of alcohol and drugs, 30 penalty units for a first offence.
Summary of Offending
3The circumstances of the offending were set out in the summary of prosecution opening, and marked as Prosecution Exhibit 1. In somewhat abbreviated form, the circumstances of the offending were as follows.
4At approximately 5.15 pm on Wednesday 2 September 2020, a Subaru Impreza station wagon was stolen from the car park at the Aspendale Gardens shopping centre.
5At 10.43 pm that same day, that Subaru was observed being driven by you on the Maroondah Highway in Ringwood. You had three passengers in the vehicle.
6The Subaru made a right turn against a red traffic control signal onto the Ringwood bypass. That traffic signal had been red for 15.7 seconds prior to you entering the intersection.
7At 10.47 pm, the Subaru travelled west on EastLink. It went through the Mullum Tunnel and continued to travel west along the eastern freeway.
8The Subaru was driven by you at a fast rate of speed. You tried to drive off the freeway at the Bulleen Road exit ramp. It was at that location that you lost control of the vehicle. The Subaru rotated clockwise and the rear passenger corner hit the concrete barrier on the south side of the exit ramp. It then continued out of control back towards the freeway. It crossed the dividing grass medium between the exit ramp on the freeway and continued over the next three westbound lanes and crashed into the centre concrete dividing barrier. The force of the impact was such that it broke the concrete and steel reinforcement and dislodged a large piece of the barrier that ended up in the emergency lane of the freeway.
9Jake Malcolm, 18 years old, a rear passenger in the car not wearing a seatbelt, was partly ejected from the vehicle. He endured serious injuries including multiple skull fractures, an internal brain injury, as well as fractures to his chest and wrist. He was treated in the intensive care unit and remained there for over one month. He sustained what was described as a catastrophic head injury. But for the medical intervention provided, he would have died. These injuries are the subject of Charge 1, negligently causing serious injury.
10Fenton James, 21 years old, who was seated in the front passenger seat of the vehicle, suffered a nasal bone fracture, a right cheekbone fracture, fractured ribs, as well as other injuries. The danger Mr James was placed in by your driving is the subject of Charge 2, conduct endangering persons.
11Jason Fassott, 19 years old, seated in the rear of the vehicle behind the driver, suffered minor injuries. He was the only passenger wearing a seatbelt. The risk to Fassott from your driving is the subject of Charge 3, conduct endangering persons.
12Police and Fire Rescue Victoria attended the scene. They observed that the male who had gone through the front windscreen of the car was unconscious.
13They removed the driver’s front and rear doors on the passenger side and the roof of the vehicle, to extricate you and the two passengers from the vehicle.
14Police investigations concluded that the Subaru was travelling at a minimum speed of 116 km/h when it first commenced to yaw, on the northern edge of the Bulleen Road offramp emergency lane. They determined that the yaw was a result of an excessive right-hand steering manoeuvre.
15A blood sample was taken from you revealed that you had an alcohol reading of .052 %, as well as having cannabis and diazepam in your system.
16Police were unable to conduct a record of interview with you due to the injuries you had suffered in the collision. You were offered the opportunity for an interview after your release from hospital, but you elected not to participate.
17The prosecution case in relation to your negligence in driving the car on that day is based on the manner of your driving and the circumstances in which you drove. You were an inexperienced and unlicensed driver. Prior to driving, you had ingested alcohol, cannabis and diazepam. This combination of alcohol and drugs meant you were intoxicated to a point that you could not properly control the vehicle. You then drove at an excessive speed and were unable to safely navigate the exit ramp to Bulleen Road.
18These same factors are also relied upon as the conduct that endangered your passengers and is the subject of Charges 2 and 3.
Impact on the Victim
19A victim impact statement was provided by Jake Malcolm.[1] It is clear from both that statement, and the evidence about his medical condition, that he has suffered a serious brain injury that has had multiple impacts upon his functioning. It is unclear based on the material whether he will achieve a full recovery.
[1]Prosecution Exhibit 3.
20No victim impact statements were provided by either Mr James nor Mr Fassott, though they were afforded the opportunity to do so.
Nature and Gravity of Offending
21The offence of negligently causing serious injury requires an act or omission, which involves such a great falling short of the standard of care, which a reasonable person would have exercised in such a high degree of risk that serious injury would follow, that the conduct merits punishment under the criminal law.
22This was in my view a serious example of that offence.
23You were at the time an unlicensed and inexperienced driver. You were driving a stolen vehicle with which you were unfamiliar. You were driving at a speed substantially more than the hundred kilometre per hour limit. You were impacted by a combination of alcohol, cannabis and diazepam to the point that you were incapable of having proper control of that vehicle, as is evident from the fact that you failed to successfully complete a basic driving manoeuvre in good conditions.
24
In relation to Charge 1, I must also have regard for the outcome of your driving.
Mr Malcolm was very seriously injured. This dire outcome was caused by your negligence.
25In relation to Charges 2 and 3, conduct endangering persons, it is necessary to assess the level of risk that you subjected the other two passengers to as a result of the same conduct that is the subject of Charge 1. The level of injury endured by Mr Malcolm clearly reveals the level of danger you exposed your passengers to, through your conduct. Driving as you did, affected by drugs and alcohol as you were, meant that there was a very significant possibility of the outcome that eventuated in this case.
26In relation to Charge 4, theft of a motor vehicle, I note that the charge is put on the basis that you were, as the driver of a vehicle, without any authority to do so, usurping the rights of the owner. There is no evidence as to your involvement or otherwise in the initial theft of the car.
Personal Circumstances
27A psychological report of Ms Carla Ferrari dated 4 April 2021[2] was tendered and your counsel relied on the detailed personal history included in that report.
[2]Defence Exhibit 3.
28You are 20 years old and were 20 years old at the time of this offending. You are the middle child of three. Your parents separated when you were two years old. You had an unstable and traumatic upbringing, characterised by early parental separation, parental drug and alcohol abuse, exposure to family violence, abandonment and frequent re-location.
29You now report a positive and supportive relationship with family members. You were supported in court for your plea hearing by your mother, your mother’s partner, and your partner.
30You began using cannabis from age 12 or 13 and within a year, you were smoking regularly. You reported your average daily use over the past few years to be approximately three grams. You began ‘chroming’ and ‘sniffing glue’ at 13 years of age, however, have ceased this activity. You began methamphetamine use from 15 years of age and were using regularly within a year or two, you reported sporadic periods of use and cessation. You also report to have used Xanax for a six month period in 2020. You reported that you rarely consume alcohol, and when you do so, you consume approximately four cans of pre-mixed spirits.
31You have completed two admissions to the Youth Support and Advocacy Service (‘YSAS’) Fitzroy Residential Withdrawal Unit, including two seven night detox programs in March 2021. You declined to participate in a six month residential rehabilitation program in 2019, however, indicated you would now be willing to undertake a three month rehabilitation program, if offered.
32You completed your secondary school education to Year 8, before leaving school to work predominantly in hospitality. You attempted two hairdressing apprenticeships, but left after only a few weeks. You returned to Monterey Secondary College to undertake Year 10 studies, however, left after a few months. You then attended Skills Plus to complete Year 10 and 11 qualifications, however, you subsequently exited formal education at that time.
33You then worked in hospitality and commenced a panel beating apprenticeship before returning to employment in hospitality. You are currently in receipt of Centrelink Youth Allowance and have recently completed three traffic control courses in May 2021.[3]
[3]Defence Exhibit 6.
34You reported three relationships since age 14. Two of these relationships involved abusive behaviour and difficulties with your partner’s mental health. You suffered a miscarriage in 2019.
35Your accommodation is currently unstable and you have been utilising the assistance of YSAS for acceptance into the Jesuit Social Services Link Program to facilitate access to housing.[4] I was told you are currently residing with your partner’s family.
[4]Defence Exhibits 2 and 4.
36You have a prior history of mental health conditions, including PTSD and depression. You are currently prescribed 5 milligrams of Valium twice a day for anxiety and 5 milligrams of Oxycontin three times a day, for nerve pain. You have had varying levels of engagement with mental health services and psychologists since you were 14 years of age and report instances of self-harm. You have never been admitted to a psychiatric unit and deny any suicidal ideation or intent.
37Ms Ferrari opines that based on your self-report, the following diagnoses are indicated; Post-Traumatic Stress Disorder, moderate Major Depressive Disorder, Generalized Anxiety Disorder, Cannabis Use Disorder, Stimulant Use Disorder, and Sedative Hypnotic or Anxiolytic Use Disorder. Ms Ferrari also identifies evidence of traits of Borderline Personality Disorder. A number of recommendations were made to assist in your rehabilitation and treatment.
38You have been engaged with YSAS since 2018 and see your support worker weekly. You have engaged with drug and alcohol treatment offered by YSAS. Your support worker, Ms Ahern, attended your plea hearing.
39
You have also voluntarily engaged with the Youth Justice supervised bail program since referral on 14 October 2020. The Supervised Bail Progress Report of
Mr Gene Bell[5] describes you as motivated, with genuine action towards your rehabilitation. Mr Bell also attended your plea hearing.
[5]Defence Exhibit 5.
Plea of Guilty and Remorse
40You first indicated a plea of guilty to the offences comprising this indictment after the sentence indication hearing on 3 June 2021. Whilst the timing of the plea was not at the earliest possible opportunity, your plea has spared the time and resources that would otherwise have been expended on contested proceedings. You are entitled to a discount for the utilitarian value of that plea, which is particularly acute having regard for the pressures placed on court listings by pandemic restrictions.
41I also consider that your plea, in combination with your expressions of remorse in both the psychological material and in the character references, is evidence that you have substantial contrition for your actions. This conclusion is reinforced by what has been your fulsome engagement with Youth Justice Services, to address those matters that created the context for this offending.
Criminal History
42You do have one prior matter of relevance, namely for theft of a motor vehicle. I also note that you have matters pending for hearing in the Magistrates’ Court in August. I also note that this current offending, namely the offending on the indictment, breaches an undertaking to be of good behaviour that you provided to the Frankston Magistrates’ Court.
43Significantly, however, the pending matters were alleged to have been committed prior to the offences currently before this court. This means that there has been no offending alleged since the incident, the subject of this indictment.
Youthful Offender
44You were 20 years old at the time of the offending and are still 20 at the time of sentence. You are to be sentenced as a youthful offender, with only one relevant prior matter and nothing alleged subsequent to this offending. When sentencing youthful offenders, it is usually appropriate that rehabilitation be the primary sentencing consideration.
45I also note that you suffered substantial injuries because of this collision. These injuries, which included a fractured back, broken ankle, plates in your ankle, broken jaw, broken nose, eye socket and lacerated eyelid. These injuries have caused ongoing pain, and constitute a level of extra curial punishment that must be taken into account.
46I consider that you have at least reasonable prospects of rehabilitation. I base this on your plea of guilty, that you have shown a level of contrition, and most significantly, that since your release on bail, you have engaged positively with Youth Justice services. I am advised and accept that you have attended weekly appointments, therapeutic treatments and have reported abstinence from substance use. The progress you seem to have made towards rehabilitation since the commission of this offence is reflected in the lack of subsequent offending alleged against you.
47I also have regard for the conclusion of Ms Ferrari, that your risk of reoffending was 'low to moderate'. I note that your capacity to avoid further engagement with the criminal justice system, will be substantially dependent upon you continuing to engage, as you have, with appropriate services to deal with your psychiatric and psychological issues.
48Whilst these issues have been present for a substantial portion of your youth life, there has been recent cause for cautious optimism. The primacy to be given to rehabilitation is necessarily reduced when the seriousness of the offending means that other sentencing considerations acquire greater importance. In this case, whilst your youth means rehabilitation is still a significant consideration on sentence, the seriousness of the offending means that general deterrence, specific deterrence, denunciation of your conduct and the imposition of a just punishment must also be significant considerations in the sentence imposed.
Submissions on Sentence
49Ms Walker on your behalf submitted that having regard to your youth and limited prior history, that a community corrections order was appropriate. She did, however, very reasonably concede that having regard for current sentencing practices for the offence of negligently causing serious injury by driving, that a disposition involving imprisonment may be difficult to avoid. She submitted in the alternative that any period of imprisonment should be served in a Youth Justice Centre.[6]
[6]Defence Exhibit 1.
50Ms Karamicov on behalf of the Director, submitted that a period of imprisonment was the only appropriate disposition, having regard to all the circumstances of the case.[7] She did, however, accept that a period of detention within a Youth Justice Centre was appropriate within the available sentencing discretion.
[7]Prosecution Exhibit 2.
51Section 32 Sentencing Act 1991 states as follows;
(1) Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender, a court may make a youth justice centre order or a youth residence centre order if it has received a pre-sentence report and -
(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
(2) In determining whether to make a youth justice centre order or a youth residential centre order, a court must have regard to
(a) the nature of the offence; and
(b) the age, character and past history of the young offender.
52I have received a report pursuant to s 32 indicating that you are considered suitable for a Youth Justice Order. As previously stated, I consider that you have at least reasonable prospects of rehabilitation. As such, the power to impose such an order is enlivened, subject to its appropriateness, having regard to the matters set out in s 32(2), as well as the other relevant sentencing considerations, as I have set them out in this case.
53Balancing all these matters as best I can, in my view, periods of detention must be imposed on Charges 1, 2, 3, and 4. It is appropriate, however, having regard to your youth and what I consider to be, your at least reasonable prospects of rehabilitation, that you serve any period of detention in a Youth Justice Centre.
54In imposing sentence, I also take into account the current pandemic restrictions, which seem likely to persist in some form for the medium term at least, in which will make any period of youth detention more onerous than might otherwise have been the case.
Sentence
55Ms Michale, I sentence you as follows.
56On Charge 1, negligently causing serious injury, you are convicted and sentenced to three years detention in a Youth Justice Centre.
57On Charge 2, conduct endangering persons, you are convicted and sentenced to one year of detention in a Youth Justice Centre.
58On Charge 3, conduct endangering persons, you are convicted and sentenced to one year of detention in a Youth Justice Centre.
59On Charge 4, theft of a motor vehicle, you are convicted and sentenced to six months detention in a Youth Justice Centre.
60On Summary Charge 8, unlicensed driving, you are convicted and fined $250.
61In Summary Charge 9, exceeding the prescribed concentration of alcohol and drugs, you are convicted and fined $500.
62Charge 1 is the base sentence.
63I order that three months of the sentence imposed on Charge 2, and three months of the sentence imposed on Charge 3, be served cumulatively upon each other and upon the sentence imposed on Charge 1.
64That makes for a total effective sentence of three years and six months detention in a Youth Justice Centre.
65I order that on Charge 1, negligently causing serious injury, Charge 4, theft of a motor vehicle, and Summary Charge 9, exceeding the prescribed concentration of alcohol and drugs, that any licence you have is cancelled and that you are disqualified from applying for a driver’s license for a period of 24 months, effective from today. I enter into the records of the court, that Charges 1 and 4 were committed whilst under the influence of drugs and alcohol.
66Pursuant to s 6AAA Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of four years and three months imprisonment, with a non-parole period of three years.
67Are there any other orders sought Ms Karamicov?
68
MS KARAMICOV: No Your Honour there aren't. May I just point out one
matter - - -
69HIS HONOUR: Yes, please do.
70MS KARAMICOV: - - - Your Honour, it's relevant to all the - to the whole of Your Honour's sentence. When Your Honour was referring to Charge 9, Summary Charge 9, - - -
71HIS HONOUR: Yes.
72MS KARAMICOV: - - - Your Honour referred to that as a charge of exceed prescribed concentration of alcohol.
73HIS HONOUR: Yes.
74MS KARAMICOV: It's in fact a charge of exceeding the prescribed concentration of alcohol and drugs.
75HIS HONOUR: Very well.
76MS KARAMICOV: Which it falls within a different sub-provision of s49 of the Act.
77HIS HONOUR: Very well. Well can I just - thank you for that Ms Karamicov, can I just correct then that where I refer to Summary Charge 9, I refer to it as exceeding the prescribed concentration of alcohol, I should've referred to it as exceeding the prescribed concentration of alcohol and drugs, but even having regard for that, I intend to impose the same sentence, but thank you for pointing that out and I'll ensure that is corrected in the written version of the sentence that's published. Thank you for that.
78MS KARAMICOV: Thank you, Your Honour.
79HIS HONOUR: Thank you. Anything further Ms Walker?
80MS WALKER: No, Your Honour.
81HIS HONOUR: Thank you. All right, I'll adjourn the court until 2 pm. Thank you.
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