Director of Public Prosecutions v Migani

[2020] VCC 2046

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02448

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY MIGANI

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2020 and 1 December 2020
DATE OF SENTENCE:	15 December 2020
CASE MAY BE CITED AS:	DPP v Migani
MEDIUM NEUTRAL CITATION:	[2020] VCC 2046

REASONS FOR SENTENCE
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Subject:  Criminal Law  

Catchwords:  Dangerous Driving Causing Serious Injury; Fail Blood Drug Test

Legislation Cited:
Cases Cited:  Honeysett v The Queen [2018] VSCA 214
Sentence:  7 months imprisonment with a 2 year CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.  Sprague	Office of Public Prosecutions
For the Offender	Ms A. Roodenburg	Victorian Aboriginal Legal Service

HER HONOUR:

1Jeremy Migani, you have pleaded guilty on indictment to one charge of dangerous driving causing serious injury and a related summary offence of having a prescribed illicit drug in your blood within three hours of driving a motor vehicle.

2The offending that gives rise to these charges was committed in the early hours of the morning of 9 June 2018.  In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed. Dangerous driving causing serious injury carries a maximum penalty of five years' imprisonment; and the maximum penalty for the related summary offences is 12 penalty units for a first offence - which yours is.

3The circumstances of your offending were set out in a document entitled, 'Prosecution Opening on Plea Amended', dated 23 November 2020.  It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.

The offending

4The victim of your offending is Andrew Hogan, who was 55 years of age at the time.  On 9 June 2018 at approximately 12.55 am you, Jeremy Migani, were driving your mother's black Ford Territory in Fawkner.  Your mother had recently purchased the vehicle, it was in good condition and had a current roadworthy certificate.  At that time you held a full and current Victoria's driver's licence.

5You were travelling north on Sydney Road, Fawkner, between Anderson Road and the Western Ring Road.  This section of Sydney Road has a number of businesses along its length with a speed limit of 70 kilometres per hour.  At the time I am told the road was dry, traffic was light, visibility was good, and the weather was fine.

6Mr Hogan was walking north along the footpath on the western side of Sydney Road.  As you approached No.1397 Sydney Road you were travelling in the left lane.  Your vehicle then veered to the left and off the road in front of 1393 Sydney Road, striking a VicRoads traffic signal box on the nature strip and knocking that box onto the road.  Your vehicle then continued on up the nature strip and footpath and struck Mr Hogan from behind.  He had simply no chance of avoiding you.

7As a result of the collision Mr Hogan was thrown into the air and into the business signage outside 1397 Sydney Road.  CCTV footage of the collision was tendered and has been seen by me.

8After the vehicle collided with Mr Hogan you then steered back towards the road where you stopped and got out of the vehicle.  You found Mr Hogan unconscious with serious injuries.  You called 000, requesting an ambulance and rendered assistance.  You were attentive to your responsibilities post-incident, which is, sadly, not a common occurrence.

9A number of witnesses attended the scene and were also able to assist after one of their vehicles had hit the signal box.

10Police arrived soon after, followed by the ambulance.  MICA paramedics provided emergency care to Mr Hogan, who was then transported to the Royal Melbourne Hospital via ambulance.

Investigation and Arrest

11At the scene police spoke to you and confirmed that you were the driver.  You were cooperative and produced your Victoria's driver's licence to confirm your identity.  Police conducted a preliminary breath test and the result of that test indicated your breath contained alcohol at a level below the legal limit.  Police then required you to accompany them for the purpose of providing a blood sample.  You complied and were transported to the Broadmeadows police station where you were arrested and a blood sample was then taken at around 2.20 am.

12The blood sample provided by you was later analysed by a toxicologist at the Victorian Institute of Forensic Medicine and showed the presence of alcohol at a reading of .018 per cent: THC, the active component of cannabis; Clonazepam, a benzodiazepine; and amino Clonazepam, which is a metabolite of Clonazepam.

13You were interviewed at Broadmeadows police station on 9 June 2018.  During that interview you made admissions which included that you had been to a party that night since 6.30 pm and had consumed two cans of beer and smoked a joint, referring to marijuana, at the party.  You denied feeling under the influence of alcohol or marijuana when you left the party an hour or an hour and a half before the collision.  You stated that the last thing you remembered was being in the left lane, sort of coming to when you were on the nature strip, and then you heard a ‘bang’.

14You told police you had felt drowsy and tired a few minutes before the collision but did not know what to put that down to.  You said you were fine one second, then all of a sudden you were exhausted and tired.  You told police that your routine changes with work but at the time you usually went to bed at around 9.30 pm to get up for work at 4.30 am.  The night before the collision you had slept from approximately 1 am to 2 pm on 8 June 2018.

15Dr Angela Sungaila of the Victorian Institute of Forensic Medicine provided an opinion in relation to the possible causes of your impairment.  Based on her analysis of the circumstances of the collision, the toxicology certificate, CCTV footage of the collision, and the video of your interview with police, her findings included that Clonazepam and alcohol, even at relatively low levels, and THC, is a combination that would be expected to cause sedation.  She concluded that you would not have been capable of having proper control of your motor vehicle.

16The charge on the indictment is therefore put on the basis that the serious injuries to Andrew Hogan were caused by you driving in a manner that was dangerous to the public in all the circumstances, namely by driving whilst under the influence of a combination of drugs and alcohol, such that they had a sedative effect, causing you to fall asleep.

Injuries to victim

17Mr Hogan received first aid from those who arrived at the scene and then emergency medical treatment from paramedics before being taken to the Royal Melbourne Hospital.  His injuries were detailed in the Crown opening but in short compass he suffered extensive rib fractures, a left clavicle fracture, collapsed lungs, spinal fractures, right arm fracture, compound fracture of the lower, right leg and numerous cuts and abrasions.

18Treatment included the insertion of an intracranial pressure monitor- removed once the pressure was stable, surgery for plates across the ribs, chest drains inserted to both sides of the lungs, surgery for spinal fusion, surgery for humeral fractures and conservative treatment for a range of other injuries.

19Mr Hogan was in the intensive care unit for some nine days and remained intubated and ventilated for eight of those days.  He then remained at the Royal Melbourne Hospital until 27 June 2018 when he was then transferred to the rehabilitation unit at the Epworth Hospital in Richmond, where he remained for a lengthy period.

20He required follow-up for the various injuries by neurosurgery, ophthalmology and orthopaedics clinics, as well as ongoing treatment and review, including physiotherapy and further surgery.  On any view of it, Mr Hogan suffered extensive and significant injuries.

21Dr Sally Sheppard of the Royal Melbourne Hospital reported that Mr Hogan sustained very serious injuries and faced a slow and prolonged road to recovery.  That seems to be borne out by the victim impact statements.

Victim impact statements

22Victim impact statements have been authored by Andrew Hogan, his parents, Maurice and Meryl, his brother, Dean, his daughter, Aimee Lindrea, and his friend, Anne Holman.  The purpose of a victim impact statement is to give those affected by your crime, the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.  All victim impact statements were tendered on the plea and they have been read by me.  The victim impact statements of Andrew Hogan and Maurice and Meryl Hogan were read aloud in court by counsel for the prosecution, Mr Sprague.

23In his victim impact statement Andrew Hogan speaks of his physical injuries and the medical procedures which were required.  He refers to being in constant pain in both arms, shoulders, back, left rib and right leg and that he is unable to walk properly due to his right leg being bent between knee and foot.  He speaks of his concern for his family members in their concern for him.  He states, 'I will never be the same again'.

24His daughter, Aimee Lindrea, speaks of the genuine fear at the time of the accident as to knowing whether her father would live or die.  She notes that whilst her father has made what she describes as a’ miraculous recovery’, that, and again her words, 'His life is forever changed and that makes us very sad'.

25Other family members speak of their shock when first seeing Andrew Hogan, their genuine concern for his welfare, ongoing concern for his future, and the sheer distress at seeing his continuing pain and difficulty in now negotiating his life.

26Whilst I am not to be overwhelmed by the contents of these statements, it is clear that the impact on the Hogan family from your actions on 9 June 2018 is presently both enduring and profound.  The outcome for Mr Hogan and his family serves to highlight the very real risks associated with driving in the circumstances in which you chose to do and how a single moment in time can have such devastating consequences.  There is simply nothing in this sentencing process which offers any real repair.

Personal Circumstances

27I now turn to your personal circumstances, Mr Migani. 

28You were born in Carlton in January 1991 to parents, Paula and Anthony.  You are currently 29 years of age.  You are the eldest of a sibship of four and grew up with your three younger siblings, Ricky, Harley and Chelsea.  You live with your mother, Paula, and sister, Chelsea.  You are fortunate to maintain a close relationship with your mother and your siblings, who are all aware of the charges you face and remain supportive of you.

29In 1999 your parents separated when you were around eight years of age and they divorced in 2002.  You report that your father was physically violent to your mother, siblings and yourself.  Your father did not maintain involvement in your life and you no longer have any contact with him.

30After your parents divorced your mother had some assistance from her parents but largely raised you and your siblings on her own.  You were raised as a Jehovah's Witness until about 13 years of age.  You instruct that this made your childhood difficult because you were not allowed to socialise with anyone who was not of the same faith, which resulted in you being socially isolated as a child.

31You attended Bellevue Park Primary School in Glenroy, followed by secondary school at Box Forest Secondary College until the end of Year 8 and then attended intermittently until you were asked to leave during Year 10 due to non-attendance.  You moved to Northland Secondary College to finish Year 10 but failed to do so.

32When you were around 15 years of age your mother commenced a relationship with a man who was physically and sexually abusive towards her and was a user of the drug, ice.  You were unfortunate to witness the violence against your mother and, on occasion, were also a victim of that violence.  It was at the commencement of that relationship and the ensuing violence that you began to use cannabis.  You report losing trust in adults and started to rebel at school.

33You moved out around age 15 because of the violence and ice use in the home and moved to your maternal grandfather's house.  Your grandfather had in fact moved into a nursing home and the house was vacant.  Initially you lived on your own but after a short time some of your friends moved in with you and your cannabis use increased.  You resided there with friends for approximately
12 months, at which time your mother moved in with you.  The property was ultimately sold and you, aged 17, and your mother, moved in with her partner.  He, unfortunately, continued to be violent towards you and her and shortly there afterwards you began a period of homelessness as a result.

34After leaving school at age approximately 16 years you worked as a pick packer for six months.  You then worked in various casual jobs for a period of around 18 months.  At 18 you undertook a pre-apprenticeship in plastering at Holmesglen TAFE.  You then commenced a plastering apprenticeship and completed the first year before having a disagreement with your employer.  You worked for yourself in plastering for about 12 months before you returned to your previous employer and completed the second year of your apprenticeship before there was another disagreement which led you to leave.  There was a brief period of working in general trades doing various roles which followed.

35In 2014 you moved into the printing industry and commenced working at
PMI Corporation.  You remained at this organisation for approximately four years, your greatest period of stability until that point in time, progressing to a team leader position within 18 months of commencing your employment.

36At the beginning of 2017 you moved back in with your mother, who was no longer residing with her partner and had ceased drug use.  As previously mentioned, you continue to reside with her and your sister.

37In 2018 you began working as a glass installer but an injury to your wrist requiring the insertion of a metal plate ended that role after a period of about six months.

38Your history up until this point in time reflects someone who had difficulty finding his way and future direction.  it is well understood that the offences the subject of the indictment occurred in June of that year.  Whilst you are not injured in that accident physically I accept that you have been greatly affected emotionally and psychologically and appear to have used this tragic event to make positive and substantial change in your own life.

Rehabilitation

39In October 2019 you began working in Impact Digital, making digital photo books.  You remained in this role until March of this year when you were unfortunately stood down due to the downturn suffered by that business in the context of the COVID-19 pandemic.  You were not able to work since that time as you lived with your mother, who is indigenous and over 50, and was therefore deemed to be in a high risk category for contracting COVID-19.

40In July this year you commenced a Certificate IV in tertiary preparation at RMIT, completing that certificate in October of this year.  You have been accepted into a Diploma of Conservation and Land Management with RMIT in 2021.  This is a two year course.  You instruct that you plan to complete this on a part time basis whilst working.  Once completed you hope to enrol in a bachelor degree in the area of environmental science.  It seems you have finally found a pathway and something which will give you satisfaction.

41As previously outlined, you commenced using cannabis when you were
15 years of age.  By the time you were 16 you smoked cannabis daily.  Prior to your offending on 9 June 2018 your cannabis use had in fact peaked and you were smoking between four and seven grams per day.  You have subsequently reduced your consumption and are now abstinent.

42You began abusing prescription medications when you were 24 years of age, using Valium and Xanax until this incident in June 2018.  You instruct that you are currently abstinent from all drugs and are in good physical health.

43After the incident on 9 June 2018, in another step forward, you consulted your general practitioner in relation to your mental health, reporting that you were deeply distressed by the consequences of your offending.  A mental health care plan was developed and you initially attended three to four sessions with a psychologist.  You report that you did not feel comfortable with the psychologist and were subsequently referred to a counsellor through your local Aboriginal health service.

44You commenced seeing counsellor, Ian Gray.  A letter authored by Mr Gray was tendered on your plea outlining he has been working with you since
April 2020.  You have attended approximately 12 counselling sessions.  You found the on-line nature of those sessions somewhat wanting but gained great assistance from Mr Gray.  I have little doubt that you have got more work to do in this space.

45Character references were tendered on your behalf, authored by Rajiv Kumar, Rowan Bellinger and your mother, Paula.  Mr Kumar describes you as deeply upset for your wrongdoing.  He otherwise described you as decent, hardworking and truthful.  Mr Bellinger also speaks of your disappointment and regret for your actions and comments that, in response, you seem to have turned many aspects of your life around in a positive fashion.  He also describes you as decent, respectful, hardworking and trustworthy.

46Your mother speaks of raising you with strict morals and ethics and of your guilt-ridden response to the accident.  She describes your onset of depression and your efforts to seek assistance and to strive towards a better life. 

47I have taken the contents of these references into account.

48You have also written a letter of apology to Andrew Hogan.  I have no difficulty accepting that your remorse is genuine and it will also be taken into account.

49A report authored by Mr Jeffrey Cummins, consulting clinical and forensic psychologist, dated 27 February 2020, has also been tendered on your behalf.  He speaks of your dysfunctional upbringing and the connection between that reality and your commencing to use cannabis when aged around 15 years.  You do not suffer from a personality disorder or mental health issues that would impact on your ability to be rehabilitated.  He did note that you appeared remorseful for your offending.

50He raises some concern that your mental health would most probably deteriorate if incarcerated.  I accept that this is likely for anyone being at risk of their first term of imprisonment in circumstances where they were wholly unfamiliar with that environment.  Other than the ways that I have already referred, Mr Cummins' report is of limited assistance.

Criminal history

51In terms of your prior criminal history you have two appearances within the adult justice system.  You first appeared at the Melbourne Magistrates' Court on
3 June 2013 in relation to a charge of driving while suspended.  You were fined without a conviction being recorded.  Your other appearance was at the Broadmeadows Magistrates' Court on 27 June 2014 in relation to possessing and cultivating cannabis.  You were dealt with by way of a 12 month Corrections order.  This history is of limited relevance to the sentencing process other than your clear connection to cannabis.

Plea of guilty

52You entered pleas of guilty to both charges at an early stage.  The Sentencing Act obliges me to take into account the stage at which you entered such pleas.  There is clear value in saving the victim and other witnesses from the need to give evidence and relive traumatic events, and there is utilitarian value in saving the community the expense of a trial.  These factors will be taken into account in your favour, as I do your assessed remorse.

53In addition, whilst your offending occurred in June 2018 you were not charged until October 2019.  You entered your guilty plea at what I see as the earliest opportunity at committal mention proceedings in December 2019, Your plea hearing was listed on 4 May 2020 but was unable to proceed due to the
COVID-19 pandemic.

54This chronology has relevance in a number of ways.  Firstly, as already outlined, your plea of guilty was at an early stage.  Secondly, I accept that since June 2018 you would have been aware that your likely to be the subject of charges.  You are not responsible for the delay between then and being charged some 13 months later.  I accept the period between June 2018 and, effectively, now has meant that there has been stress and uncertainty associated with the finalisation of these proceedings.  That stress and uncertainty of course has had impact on the victim and his family as well but you are not responsible for that delay.

55It would appear that there have been no allegations of further offending and that you have used your time wisely in your efforts to rehabilitate.  One benefit of the delay is the advantage it offers the court to assess those prospects. 

56In terms of other materials tendered you appear to have used the events of
9 June 2018 to both want for and strive towards a better way of life.  You have obtained abstinence from drug use - which has otherwise been a blight on your life for many years and doubtless for those around you.  You have sought counselling to assist you to deal with your offending behaviour.  You have sought appropriate education with a view to a new career path and utilised the supports available to you in terms of friends, family and services from the Aboriginal Health Service.

57Many of these changes are in their infancy but should still be encouraged.  I am satisfied that your prospects of rehabilitation are good, in the hope that you can maintain your current trajectory towards a better way of life.

Koori Court

58Through your mother you are part of the Birri Gubba and Gungala mobs in Queensland.  Your grandfather, Ross Watson, was a well-respected member of the indigenous community and helped establish a number of community organisations.  You did not connect with your indigenous community until you were 19 years of age when your mother met her biological father for the first time.  Since making these connections in 2010 you have been back to country on approximately four occasions.

59You chose to have your plea take place in the Koori Court.  The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal elders and respected persons.  Others such as family members and supports are able to contribute to what is referred to as the sentencing conversation.

60The sentencing conversation is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law.  Participation in the process can be more burdensome than appearing at a traditional plea hearing because of its confronting nature and the inability to hide behind counsel.  You elected to take part in the Koori Court sentencing conversation given your developing connection with your culture and the desire to express your remorse for your actions personally.

61In Honeysett v The Queen [2018] VSCA 214 the Court of Appeal looked at the Koori Court plea process and determined as follows:

'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:

(1) The fact that participation in the process is a voluntary one, may be confronting to the offender and will likely involve him or her being shamed.  As noted in Morgan, participation in the process may of itself, be rehabilitative. 

(2) The fact that the offender is, rather than ‘hiding behind counsel’, taking the opportunity to personally:

(a) demonstrate his or her remorse for the offending;

(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and

(c) express any intention to reform and how that will be done, including by participation in available rehabilitation programs.

(3) The Court's assessment of the genuineness of the offender's statements during the sentencing conversations, that assessment to take account of all the information before the court. 

'Based on the sentencing court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of a particular case.In fixing the sentence, it is the duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community.'

62Uncle Rodney Jackson and Aunty Fay Muir were the respected elders who took place in the sentencing conversation that included you, your mother, sister, brother, Harley, and friends, Raj Kumar and Tim Bellinger.  Your mother, sister and brother were all able to participate in the sentencing conversation, as were the other persons named.  Each of the elders challenged you and you were respectful towards them.  This process was in some ways made more difficult as, in response to the COVID-19 pandemic, those participating in the sentencing conversation, including the respected elders, appeared remotely whilst you sat alone with your legal representation.

63I did find your participation in the sentencing conversation to be hesitant yet genuine, and I take that and your participation in the Koori Court process into account.  This circumstance, your efforts to rehabilitate, your early plea and limited history, your genuine remorse and my assessment as to your future prospects, lead me to the view that less weight needs to attach to either specific deterrence or the need to protect the community from you.  I accept, as I have said, that you are deeply traumatised by your own actions and this, in my view, also reduces your future risk.

Sentencing

64Both the prosecutor and your counsel have referred me to a number of cases in an effort to assist and I have had access to each of those cases.  For general assistance I was referred to the DPP v Neethling [2009] 22 VR 466, Stevens v The Queen [2016] 50 VR 740; DPP v Oates [2007] 47 MVR 483, and The Queen v Whyte [2002] 55 NSWLR 252.

65I accept that general principles include, firstly, that general deterrence is paramount.  Secondly, an assessment of the dangerousness of the driving is informed by the extent of the risk created by the driving as well as the extent of potential harm should that risk be materialised. Any sentence must obviously take into account the variations in moral culpability of the person responsible and also that a custodial sentence is the more usual outcome except in cases where the level of moral culpability is low.

66I accept that the risk with which you presented appears to have been for a relevantly confined period.  There was no observation of you driving erratically or at high speed.  You were reportedly in a business district and traffic was light, reducing the objective gravity to some degree.  There are a lack of aggravating features.

67Assessing the level of risk is also informed by the tragic outcome and your record of interview in which you told police you felt drowsy and tired but not until a few minutes before the collision occurred.  However, as an admitted user of each of the drugs found in your system and of alcohol, you would have had some awareness of the risks associated with driving in those circumstances.

68Your admissions in your record of interview would indicate that you were particularly well aware that marijuana made you drowsy and lethargic, yet you chose to drive.  This elevates, in my view, your culpability for the offending.  It could certainly not be suggested that the circumstances of your offending were in the category of momentary inattention.  I do see your moral culpability and the objective gravity of your offending as towards the mid-range, marginally reduced by your difficult upbringing and of the resort to drug use in that context.

69Your counsel submits that all the relevant sentencing purposes can be best accommodated by the imposition of a community corrections order.  The prosecution submit that looking to the objective gravity of your offending, your moral culpability and the need for general deterrence - that is sending a message into the community that this sort of behaviour will not be tolerated - that the imposition of a combination sentence, that is a community corrections order in combination with a gaol term, is warranted.

70Section 44 of the Sentencing Act allows the court to make a community corrections order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after the deduction of any period of custody to be reckoned) is one year or less. There is no pre-sentence detention in this case.

71Given the united aspect of the submissions in terms of the community corrections order, I did have you assessed as to your suitability for a community corrections order.  The assessor reports that you displayed considerable remorse for your actions and that you described your own behaviour as ‘absolutely disgusting’.  You have been assessed as suitable for a community corrections order but community work was not recommended.

72The basic purposes for which a court may impose sentence are, firstly, just punishment, secondly, general and specific deterrence, thirdly, rehabilitation, fourthly, denunciation, and finally, protection of the community.  In sentencing you I am required to have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

73I am also required to balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking, as far as is possible, that offenders are rehabilitated and are reintegrated into society.  That is of course in society's interests.

74I have taken into account the relevant sentencing purposes referred to in s.5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty, noting that, particularly the charge on the indictment, occurs in a wide ranging set of circumstances.

75The offence of dangerous driving causing serious injury is what is described as a serious motor vehicle offence and carries a mandatory licence disqualification of not less than 18 months.  In addition to the licence cancellation and disqualification order, under s.89, pursuant to s.89C(1) of the Sentencing Act a court may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug or both, which contributed to the offence.  The prosecution seeks that I make such finding and in the circumstances of this case I do so.

76In addition, upon conviction or a finding of guilt for the summary charge, the Road Safety Act requires that I must disqualify the offender from obtaining any driver's licence or learner permit for a period of not less than six months for a first offence.

77Certainly in relation to Charge 1-  any licences held are cancelled or disqualified for a period of two years, and on the summary offence I make the same order but for a period of six months.  Those periods of disqualification commence today.

78In relation to the related summary offence of having a proscribed illicit drug in your blood within three hours of driving a motor vehicle, you are convicted and fined the amount of $750.

79In terms of the sentence to be imposed on Charge 1 it has not been an easy task.  I accept that gaol is a situation of last resort and that you have many factors in your favour.  However, the circumstances of your case overall, the need, in my view, for general deterrence in the circumstances of your offending and to reflect the assessed gravity, means I simply have no alternative but to impose the sanction of imprisonment.

80In relation to Charge 1, dangerous driving causing serious injury, you are convicted and sentenced to seven months' imprisonment.  That punishment is in combination with a community corrections order for a period of two years.  That order will include the following conditions:  firstly, supervision; secondly, mental health treatment; thirdly, treatment for the abuse of drugs and alcohol; and finally, programs to reduce offending.  You are to be encouraged to connect with services as part of your indigenous culture.

81In addition to those conditions that I have imposed there are standard conditions.  I have chosen not to impose community work.  That is because of the recommendation by the Office of Corrections.  It is because of the sanction of imprisonment which I have already imposed and because I see sanction in an order hanging over your head for a period of two years.  The focus on your release from custody should be on your supported transition and return to the community.

82In terms of the standard conditions, the first and foremost of those are that you must not commit any other offences during the two year period which could be punished by imprisonment.  You are required to report within two working days of your release, to the nearest Community Corrections office.  You must advise your supervising Corrections office of any change of address of where you are living or working, and you must do so within two working days.  It is a term of all Community Corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer.  You are not able to leave the State of Victoria without their prior permission.

83In my view, this order presents you with the chance to continue to change your life in a positive fashion should you choose to take up that opportunity and that the supports that I intend be made available.  The order can be breached if you do not comply with the terms of the conditions or reoffend whilst it is in place.  If that occurs you will be required to appear back before me for firstly breaching the order and, secondly, for me to consider re-sentencing you for the charges for which you have been sentenced this day.

84Section 6AAA of the Sentencing Act requires me to tell you the sentence I would have imposed if you had not pleaded guilty to the charges.  That is somewhat artificial in the context of this case because I have taken into account so many factors.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of two years and two months with a minimum of 16 months before being eligible for parole.

85I cannot place you on that Corrections order, Mr Migani, unless you are prepared to sign documents to that effect, so I do ask you are you prepared to do so?  I will give you the chance to discuss the contents of that with your legal representative in private in just a moment.

86MS ROODENBURG:  Thank you, Your Honour.

87HER HONOUR:  Is that ready?  I will stand down temporarily so that that can take place.

88MS ROODENBURG:  Thank you, Your Honour.

89HER HONOUR:  And I will return to the Bench.  Mr Sprague, anything I missed from your end?

90MR SPRAGUE:  No, Your Honour.

91HER HONOUR:  All right.  I will stand down temporarily.

(Short adjournment.)

92HER HONOUR:  Thank you.  Have you had the opportunity to go through that document?

93MS ROODENBURG:  Yes, thank you, Your Honour, that's signed.

94HER HONOUR:  All right.  I imagine I need to do that as well.  Thank you very much.  Thank you very much.  I thank you, Ms Roodenburg, for all your assistance in relation to this matter, and you too, Mr Sprague.

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