Director of Public Prosecutions v Musgrove
[2024] VCC 695
•15 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00540
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SLADE MUSGROVE |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 April 2024 |
DATE OF SENTENCE: | 15 May 2024 |
CASE MAY BE CITED AS: | DPP v Musgrove |
MEDIUM NEUTRAL CITATION: | [2024] VCC 695 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW- Sentence
Catchwords: Dangerous Driving Causing Serious Injury – Drug Use – Family
Violence – Post-Traumatic Stress Disorder – Mental Health – Mild
Traumatic Brain injury – Pre-Existing Intellectual Disabilities -
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Boulton v The Queen [2014] VSCA 342
Sentence: Convicted and placed on a Community Corrections Order for four
years. Unpaid community work of a total of 250 hours.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Buchhorn | Office of Public Prosecution |
For the Accused | Ms A. Brennan | Victoria Legal Aid |
HIS HONOUR:
1Slade Musgrove, on 15 February 2024, I granted your application for a sentence indication. I indicated that if you pleaded guilty to a charge of dangerous driving causing serious injury and two summary offences, I would impose a lengthy Community Corrections Order. You accepted that sentence indication and you pleaded guilty on arraignment. Ultimately you were assessed as suitable for a Community Corrections Order.
2The sentence indication ruling set out detailed reasons for the sentence that I intend to impose. I rely on and repeat much of what I said, supplemented following submissions made by the parties during the Plea.
3In the early hours of the morning of 3 December 2021, you were driving the victim's car with her in the front passenger seat. You did not hold a licence. In fact, you have never held a licence, either in Queensland or in Victoria, but you have driven, and you did so on this day. Additionally, to not having a licence, you had consumed methylamphetamines prior to driving. So too had the victim. In fact, it seems well established that you and she and others in the place that you were staying in Cranbourne regularly took or smoked methylamphetamines. Just before you drove, you and the victim were told that you had to leave the house immediately.
4You and she, the victim, packed all your belongings into her car. Regrettably, you considered you had little choice but to drive away. At the time, and for a period before you and the victim headed off, you and she had endured significant problems with housing. You were living or sleeping in a car all too regularly. This housing difficulty occurred in the midst of the pandemic lockdown. You could not return to Queensland where you had grown up and your mother was, because of the pandemic rules.
5So, in the early hours of the morning, around 5.30am, you were driving along Springvale Road in Springvale South. You pulled into a 7-Eleven store and got some petrol and coffee. You were seen on the CCTV footage later secured by the police. What was seen or what appeared was that you were normal in movements and demeanour as far as could be seen. You then got back in the car and drove further down Springvale Road but not at all far, perhaps less than 200 metres. Within that distance and thus within a few seconds given the speeds, your car started to veer to the left from the inside lane and onto the nature strip. Once you realised that you were not in the lane but onto the nature strip, you endeavoured to correct but it was too late. Your steering back to the right caused the vehicle to rotate and collide with a power pole. It was established you were travelling between 76 kilometres and 90 kilometres an hour. The speed limit in the area was 80 kilometres.
6Sadly, it seems the victim was not wearing a seatbelt. She was ejected from the car and her very significantly injured presence at the scene was not discovered until some 15 minutes or so after the Emergency Services arrived. Not a lot turns on her failure to wear a seatbelt save appellate cases have allowed some mitigation where there are circumstances out of the driver's control. It is possible here that the failure to wear a seatbelt did provide some contribution to the severity of the injuries but all that is uncertain.
7The impact caused serious injuries to the victim. I will give a brief description shortly, but you also suffered significant injuries, including head injuries, which have an ongoing impact. The victim was in a dire situation. The ambulance that she was placed in was diverted from its planned route to The Alfred Hospital to go to the nearby Monash Hospital because the victim was deteriorating with pericardiac arrest. Once she was intubated and assisted by stabilising surgery, she was then transferred to The Alfred Hospital.
8Her injuries were summarised in the Prosecution Opening and I paraphrase. So, with respect first to the serious brain injuries, there was brain haemorrhage to the right frontal area. A large volume subarachnoid haemorrhage with intraventricular extensions. There was bilateral subdural haemorrhage. That is bleeding in significant parts and significant volumes in her brain. There was a Grade 3 diffused axonal injury, which is the sheering of the brain's connecting nerve fibres. The rating of Grade 3 is the most severe. There were injuries to her cervical spine at C4 and then C5 to 7. Extensive facial fractures were assessed on the medical scale known as Le Fort. These were Le Fort II and III, which indicates very extensive transverse injuries often involving the separation of the major facial bones, such as the jaw, the nose and the eye socket from each other. There were rib fractures and lung punctures with pulmonary contusions. Her liver was lacerated. She suffered significant pubic rami bone injuries and bruising. Her arms and wrists were fractured and acerated. There were fractures in her lower leg and a serious, concerning mid-shaft fracture to her femur. That sort of injury only occurs where there is heavy force. I have not listed all the injuries but on any measure, these are serious injuries.
9She spoke in her VARE interview with police of ongoing problems with her memory. It is not said that the injuries are catastrophic or life-changing as is tragically the case in a number of driving matters that come before these courts but they remain very serious injuries.
10As to her recovery and impact, the prosecution sought further information but ultimately relied on the medical opinion that was obtained and set out in the Prosecution Opening at paragraph 32. It says:
(The victim) had a combination of injuries that are (in) keeping with blunt trauma. She was unconscious, haemorrhaging, and unstable. Her injuries were life threatening. Without timely resuscitative and emergency treatment including surgery, death was imminent.
11The level of injury caused is an important factor in determining the gravity of the particular example of dangerous driving causing serious injury. Also important is the level of danger in the driving and also the degree of risk or danger presented to other road users. In this case, there is little to no evidence as to the precise reason why your car veered off the road. You were seen in the 7-Eleven, as I mentioned, moments before, alert enough. As to the timeframes of you not paying enough attention and allowing or not stopping your car from leaving its lane, the timeframes were very short, a matter of a few seconds, otherwise your driving was more or less orthodox to that point.
12Of course, you should not have been driving at all because you did not have a licence and because you had methylamphetamines in your system. While I do not lose sight of the fact that you were in a sense forced to leave and you chose to drive to leave because you were not able to stay at the house you had been at, nonetheless it remains a factor that you should not have driven at all, but unfortunately, you did. It seems to me this driving could properly be described as a collision caused by momentary inattention. So, while plainly you fell below what is expected of all drivers, it was a failing at the lower end of the spectrum of dangerousness as that concept has been assessed in these sorts of cases. Your conduct that caused the risk that materialised because in correcting or correcting when you did you set in train that the car rotated and collided with the pole. Of course, a few metres further on and it may have been a frightening experience but not one with devastating impacts that arose because you hit the pole. In short, it was a most unfortunate moment of inattention without any other dangerous driving inputs.
13In my view, your moral culpability is low. The overall gravity is low on the spectrum because of the nature of this collision. By saying that I do not diminish what was a serious collision with severe impact. My conclusion relates to the levels of dangerousness and risk. The impact on the victim and her parents has not been articulated in writing or in written form. It appears that this is a task that is psychologically, and emotionally just too hard for her. I do infer that this event has had impact on her enjoyment of life and her family in a significant way.
14This offence carries the lowest maximum term of the indictable driving offences of causing injury or death. It is five years. Unlike other driving offences of this kind, there are no statutory requirements for an accused to be imprisoned unless one of the very strict exceptions are established. It is not a standard sentence offence. The sentencing discretion is wide, which is appropriate in my view, given the wide range of circumstances that arise with respect to the nature of this offence, and the circumstances of each offender. That said, the sentencing purposes of deterrence and denunciation are of primary importance. Other sentencing purposes oblige me to facilitate rehabilitation if I consider that you require conditions to be established to assist you. This matter is of2 importance in your case. In any consideration of all these sentencing purposes, but particularly the facilitation of your rehabilitation, I need to consider relevant aspects of your personal circumstances. I need to consider what the future holds, and I turn to those matters now.
15You are shortly, if you have not already, turned 25 but you were just 22 at the time of the collision. You came to Australia from the UK as a small child with your mother and a stepfather, and you lived mainly in Queensland. Schooling was difficult. You required significant involvement of teacher’s aides to get you to Year 10. Your mother has been very supportive. Unfortunately, there were episodes of significant violence from your stepfather when you were in your teens that has left a mark on you psychologically and emotionally. You started using cannabis at a very young age and in the context of the violence from your stepfather, you progressed to methylamphetamines.
16Your lawyers obtained two expert reports subsequent to the sentence indication. The psychological report of Ms Dunn and the neuropsychological report of Ms Lofthouse. In those reports, they both considered that you have signs and symptoms of post-traumatic stress disorder, arising from childhood exposure to violence. You also have a concerning level of depression. Your resort to drugs is connected to these mental health difficulties. Additionally,
Ms Lofthouse considers you have some ongoing impact from a mild traumatic brain injury, caused in the collision.17Your counsel submitted that your upbringing was difficult or a deprived one, in the sense that you suffered violence at the hands of your stepfather. Your resort to drugs at that very early age was connected to those, as I have said, unfortunate circumstances. The relevance of this is that I consider the weight to be given to deterrence to be slightly moderated. Likewise, your post-traumatic stress disorder, brain injury and pre-existing intellectual difficulties mean there ought to be a slightly lower weight attributed to deterrence. But that said, the importance of general deterrence means that the slight ameliorations that I speak of results, means there remains a very significant and proper weight to be given to general deterrence, albeit slightly ameliorated. I should note the prosecution contended little, if any weight, should attach to these propositions and consequences that bring about amelioration of the important sentencing purposes.
18To continue with aspects of your personal circumstances, in your teens, around 16, you commenced a relationship with a woman from Melbourne. Ultimately you moved with her to Melbourne just prior to the outbreak of the COVID pandemic. The relationship failed and you were stranded, unable to return to Queensland during the lockdowns. You had no work and no accommodation. You were living in your car, accumulating driving offences due to you being unlicensed. You resumed or increased your methylamphetamine use. You met and formed a relationship with the victim. As noted, both of you were without stable accommodation and using drugs.
19You have a history of driving offences in Queensland and Victoria. These are concerning given the nature of this offence. However, despite your background with some instability and your entrenched drug addiction, you have fortunately not descended into regular criminal offending. I was told you did, subsequent to these matters, serve a 50-day sentence of imprisonment that was a consequence of failing to appear in matters before the Magistrates Court. Ultimately the sentence imposed by the magistrate was one of time served on remand and a fine.
20This offending though, being as serious as it is, ought to operate as a wake-up call to you as well as your time of 50 days in custody in recent months. As noted, you were injured yourself in the collision and this is upon a background of congenital spinal disability of scoliosis. I was told in the recent prison sentence, you fell and further injured yourself.
21Your counsel gave emphasis to the value of your plea in this case. It was put that you have a viable defence. Without determining that issue, I am of the view that your plea of guilty did relieve the prosecution of what is always a difficult task of persuading a jury to the exacting standard of beyond reasonable doubt. There are some uncertainties here and there are difficult statutory provisions to negotiate. I do accept though the prosecution submission that the facts speak for themselves and proof at trial would have been achieved. All that said, your plea is of significant value.
22Your plea is further evidence of remorse. There is evidence of remorse in your mother's letter and in aspects of the victim's VARE, which is she expresses aspects about you. More generally, the concept of remorse in these cases is not binary. That is, if an accused pleads guilty that equals remorse. A contest only reveals no remorse. The understandable human reaction to the injuries suffered by your then partner, elicit, as they have here, proper empathy and regret. The plea adds to that to a significant extent.
23I have in other cases, as have my colleagues, interpreted the value of a plea as not just leading to a reduction in the period of incarceration but permitting that concept to open up other sentencing options within the discretion. The prosecution submitted that the only appropriate sentence was one imposing a term of imprisonment with a head sentence and non-parole period. The prosecution's submission was that your moral culpability was not low due to you being unlicensed, affected by the drug and with a poor driving history. The prosecution submitted that this was not a matter of momentary inattention, and the consequences were very significant, grave and ongoing. Thus, the sentencing purposes of denunciation, general deterrence and specific deterrence could only be met in these circumstances by a term of imprisonment and a non-parole period fixed.
24Your counsel argued an onerous Community Corrections Order was within range in all the circumstances. In essence, your counsel at the Sentence Indication Hearing called in aid the now well-known principles outlined in
Boulton v The Queen[1]. Further, he called upon the principles that apply to sentencing young offenders and those matters, Boulton and young offender principles intersect and ultimately give added weight to the need to emphasise rehabilitation and ensure it is in practice facilitated. Boulton makes clear that a Community Corrections Order can be a just and appropriate penalty for serious offences. It was made clear in Boulton that the community corrections regime fundamentally changed the sentencing landscape, thus crimes that would have attracted a gaol term and one of significance, could now be punished by a Community Corrections Order alone or in combination. The types of crimes referred to in Boulton as now being punishable by aCommunity Corrections Order were crimes with maximum terms, three, four and five times the maximum term here. They are crimes that necessarily involve deliberate intent and usually the determination of the offender to commit the crime regardless of the impact on a victim. Here you fell short of the standards expected of a prudent driver. You did not mean to hurt your partner. Your driving was, in my view, for a moment dangerous and then dire consequences followed.[1]Boulton v The Queen [2014] VSCA 342
25Boulton emphasised the benefits to the community of targeted rehabilitation, making the blunt point that little rehabilitation actually occurs in prison. Indeed, the opposite is the case and a particular risk where an offender is young. You could become ingrained in a criminal lifestyle if exposed to prisoners in an adult prison. The benefit or strength of a Community Corrections Order is it can punish you and facilitate rehabilitation simultaneously. Punishment in terms of work, supervision and the risk of a breach is a deterrent or can meet the important sentencing purposes regarding deterrence. Sentencing principles with respect to young offenders emphasise the importance to the community of reclaiming a young offender. What is said is that the hurdle or requirement for actual gaol is quite high and should be seen as higher than is the case with adults. You are not as young as some. You are nearly 25 but as I have said, you were only 22 at the time. You are not a first-time offender, and by reason of the fail to appear that I have mentioned, you have spent 50 days in prison in recent times.
26Also, for this offence, too often it is committed by young accused, often with good character, no prior convictions, nonetheless general deterrence always remains the primary sentencing purpose. All that being factored in and noting your efforts since the crime to deal with or reduce or hopefully eliminate drug use and your current stable relationship and accommodation, it seems your future prospects are better now than it has been in the past when you were too often in a drug-addled state. I have thought very anxiously about this case. The injury and the impact on the victim are most concerning.
27However, in the end and by a bare margin, I consider a
Community Corrections Order alone can be a just and appropriate sentence. In saying that I make clear that I have given particular anxious consideration to a short term of imprisonment in combination with a
Community Corrections Order. In the end, I concluded that all sentencing purposes which included the concept of mercy or parsimony, they can be met by a sentence not involving any incarceration. Having come to that conclusion, thus by operation of the Sentencing Act I cannot impose any term of incarceration[2]. The Community Corrections Order that I have come to is an onerous and long one. It will or should operate as a deterrent to you. If you breach the order, you will be resentenced and almost inevitably sentenced to a term of imprisonment. The program conditions attached to theCommunity Corrections Order are to assist in rehabilitation. They are not voluntary. You must engage and complete all that you are required to do. The unpaid work component is likewise mandatory and must be done each and every time unless there is a powerful medical or other reason providing an excuse or excusing you from a particular work session but your cooperation with Corrections is essential.[2]Sentencing Act1991 (Vic) s 5(3).
28Thus, for commit the crime of dangerous driving causing serious injury you are convicted and placed on a Community Corrections Order which will go for four years. The conditions that apply to it are program conditions. You must do unpaid community work of a total of 250 hours. You must undergo treatment and assessment for drug abuse, for your mental health problems and do programs you are directed to do by the Office of Corrections. All hours spent on those programs can be part of the unpaid work requirement. You are also to be under supervision. There are other conditions that apply to everyone which I will explain shortly.
29Had you pleaded not guilty to this matter and been found guilty; I would have imposed a sentence of two years and nine months with a non-parole period of 20 months.
30Your licence is to be affected and I cancel any licence you have and disqualify you from driving for a period of two years.
31There are some summary offences of using an unregistered motor vehicle and not having number plates attached that the prosecution is persisting with and for those you are convicted and fined an aggregate fine of $100.
32I will produce a document hopefully. If not, I will get your consent. I might do that, yes. So, I am not going to produce a document. You will get it shortly though. So, the document that you will get sets out the standard conditions that apply to every Corrections Order. You are a bit familiar with those, I think. The first of them is the most important to do. You must not commit an offence for which you could be punished by a term of imprisonment during the period of time for four years. You will be nearly 30 or you will be into your late 20s. So, every crime you can think of really is punishable by imprisonment. Certainly, driving while disqualified. So, if you just get in a car and drive down to the shop and you do not have a licence. Just get yourself re-licensed.
33The next things are all about cooperation. You have got to tell them in advance if you change your address or if you change your job. You have got to get permission to go interstate, and that is relevant for you. You might want to go to Queensland, but you have got to get permission to do so and you will probably be given permission if you just go to visit or something, but you just cannot take off. Do you understand? All right. You have to report to the Corrections office within two clear working days. I am not sure which one it is. It is probably the - he lives in Fitzroy, does he not? Anyway, you have got to - which one is it?
34MS BRENNAN: Collingwood, the Neighbourhood Justice Centre.
35HIS HONOUR: Collingwood. You have got to get down to Collingwood and report there. So, they might be familiar with you. You have got to accept visits from them, and you will be under supervision. Do you understand all that?
36OFFENDER: Yes.
37HIS HONOUR: All right. So just to repeat, you have got to do 250 hours of unpaid work, you have got to have treatment and be assessed and treated for drug problems, for your mental health problems, and you have got to do the programs they tell you to do to ensure that your risk of reoffending is light, and you are under supervision. So, with all those conditions explained do you consent to doing this Corrections Order?
38OFFENDER: Yes.
39HIS HONOUR: Thank you. That will be noted on the order. Is there anything else required, Mr Buchhorn?
40MR BUCHHORN: No, Your Honour.
41HIS HONOUR: Ms Brennan?
42MS BRENNAN: No.
43HIS HONOUR: I am very grateful to you for coming into this matter as you did, Ms Brennan, thank you very much very much, Mr Buchhorn, you have been very helpful. Thank you.
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