Director of Public Prosecutions v Neill

[2018] VCC 980

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

AT LATROBE VALEY
CRIMINAL JURISDICTION

CR 18-00132

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER NEILL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	27 June 2018
CASE MAY BE CITED AS:	DPP v Neill
MEDIUM NEUTRAL CITATION:	[2018] VCC 980

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville
For the Accused	Mr J. Sullivan

HER HONOUR: 

1Christopher Neill, you have pleaded guilty on indictment to dangerous driving causing serious injury, failing to stop after an accident and failing to render assistance after an accident. 

2You have also pleaded guilty to a number of summary charges, including drive an unregistered motor vehicle, driving whilst disqualified, failing to report an accident to police, committing an indictable offence whilst on bail, namely the dangerous driving causing serious injury and three charges of contravening a bail condition.

3The majority of this offending, as will be outlined, occurred on 6 December 2016. 

4The charge of dangerous driving causing serious injury carries a maximum of five years imprisonment.  The charges of failing to stop after an accident and failing to render assistance after an accident, each carry a maximum of ten years imprisonment. 

5In your case, the charge of drive unregistered motor vehicle carries a maximum penalty of 50 penalty units.  The charge of driving whilst disqualified,
a maximum penalty of two years imprisonment.  The charge of failing to report an accident to police, eight months imprisonment.  The charge of committing an indictable offence whilst on bail, a maximum of three months imprisonment and the remaining charges of contravening a bail condition, a maximum of three months imprisonment.

6These maximum penalties, to which I have referred, reflect the seriousness with which Parliament regards these offences. 

7The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening", dated 20 June 2018.  It is marked as
Exhibit P1. 

8Essentially, on the mid-afternoon of 6 December 2016, you drove your vehicle from Churchill to Morwell with your then-girlfriend of some four months, Trista Diston.  You were in an unregistered green Ford Futura sedan, bearing the numberplates ZZY 472.  Those facts in brief compass entail the drive unregistered motor vehicle charge and are included in the driving whilst disqualified charge. 

9At Morwell you picked up a friend and your sister.  You then drove to Hungry Jacks in Traralgon and to Tyers.  During the driving, Ms Diston was in the passenger seat and your friend and sister in the rear.  Both before and during the drive, you consumed methylamphetamine, otherwise known as "ice".  You also consumed alcohol during this period of driving. 

10Whilst driving in Mount Hope Road, Tyers, a short distance from Shekiniah Drive, you drove past Jake Wilson and his fiancée, Sheree Leary, who were walking their dog.  Jake Wilson is the son of Abie Wilson, your victim.  He and Ms Leary live with their father on a residential property in Shekiniah Drive, Tyers.  Jake Wilson heard your car's loud exhaust and noted your car as driving fast and erratically.  He saw a male driver, female passenger and a male in the back seat.  You, of course, were that driver.

11After making these observations, Jake Wilson became "suss" of the car and decided to call his father,  Abie Wilson, who was at his Shekiniah Drive property, a short distance from where Jake Wilson was calling from.  As you drove past, Sheree Leary recognised you as the driver of the car, as she had known you for approximately five years.  Abie Wilson was standing at the rear of his utility vehicle, parked in the driveway of his property, when he received the call from his son.  He then observed your vehicle turn from Mount Hope Road into Shekiniah Drive.  Your vehicle drove past his driveway and he observed a male in the driver's seat and a female in the passenger seat.

12Abie Wilson continued talking on his phone to his son, Jake, and walked onto the nature strip at the front of his property.  He observed your vehicle to do a U-turn and to come to stop near the second driveway of his property, which had a caravan parked in it.  He noticed you in the driver's seat, pointing at his caravan and laughing and that there was a female in the passenger seat. 

13Abie Wilson stood on his nature strip near the waste bins and kept an eye on your vehicle, as he continued to talk to his son, Jake Wilson, on the phone.  He was looking at the ground when he heard your vehicle take off.  When your car moved, it was approximately 15 to 30 metres away and initially moved slowly.  As Abie Wilson looked up, your car accelerated towards him, without deviating.  Your vehicle struck the victim to the leg with the front passenger side quarter panel.  He was thrown backwards and onto the nature strip. 

14You were on bail at this time, having been granted bail on 15 November 2016 in relation to other matters.  Those facts constitute Charge 1 on the indictment, dangerous driving causing serious injury and the summary offence of committing an offence whilst on bail.

15In terms of the dangerous driving causing serious injury, the accepted Crown case in relation to that charge is put on the basis that you had smoked ice and drunk alcohol whilst driving and were looking at the caravan at the time that you hit Mr Abie Wilson with your motor vehicle.  As such, you were intoxicated and not looking where you were going.

16At the time of the collision, you said to Trista Diston that you had hit someone.  After striking the victim, you left without slowing down and without stopping the car to help the victim, driving up Shekiniah Drive towards Mount Hope Road.  The victim, otherwise referred to by me as Abie Wilson, could see the car travelling away up Shekiniah Drive and that the car brake lights did not come on, even as it rounded the left-hand bend into Mount Hope Road.  Those facts constitute Charge 2, failing to stop after an accident and Charge 3, failing to render assistance after an accident, as well as the summary charge of failing to report an accident to police.

17The victim was still on the phone when he told his son, Jake, that a vehicle had struck him and he observed your vehicle speed out of Shekiniah Drive.  Jake Wilson was approximately 50 to 100 metres away from the corner of Shekiniah Drive when the vehicle came towards him.  He walked onto the road and attempted to stop you, however you did not stop.  He then threw a full can of a mixed drink at the vehicle, hitting the windscreen.  You drove around Jake Wilson and continued to drive off. 

18Jake Wilson and Sheree Leary immediately returned to the victim's home, to find him on the edge of the road on the ground.  Jake Wilson rang 000 and provided the car's registration number.  He also noted that the car had stickers on the back window.  Abie Wilson was taken by ambulance to the Latrobe Regional Hospital, where it was found he had suffered a fractured and shattered tibia and fibula of his right leg. 

19Later that evening, police located the vehicle which struck Abie Wilson at Toms Bridge, between Morwell and Tyers.  The vehicle appeared to have been abandoned, with registration plates and rear window stickers removed.  Crime scene officers located forensic evidence linking your fingerprints to the vehicle. 

20After this incident, you stopped signing in on bail at Morwell police station on Mondays, Wednesdays and Fridays, in accordance with the conditions you had entered at Morwell police station on 15 November 2016.  This comprises one of the contravening bail condition summary offences. 

21Police attended at your last known address on 5 January 2017 at approximately 2 am in the morning.  They knocked on the door, but there was no answer.  This was in breach of bail conditions to which you were then subject, requiring you to present at the front door of your premises upon police request, as you were on a curfew - also on a curfew between the hours of 6 pm and 9 pm.  This fact constitutes one of the summary offences of contravening bail conditions. 

22You were arrested by police on 5 January 2017 at approximately 4 am and conveyed to Morwell police station for interview.  You were located by police in a public location outside your bail conditions, specifically the curfew, to which
I have referred and this constitutes the third summary charge of contravening your bail conditions. 

23When interviewed by police, you told them that you were at Tyers looking for hard rubbish and denied driving at the time of the incident.  You admitted to driving prior to and after the incident, but nominated your then partner, Ms Diston, as the driver at the time that Mr Wilson was hit. 

24In a statement of orthopaedic surgeon, George Owen, dated 21 February 2018 and exhibited at P2, Mr Owen confirmed that your victim, Abie Wilson, had sustained a comminuted fracture of the right tibia which required nail fixation.  The required surgery was conducted on 8 December 2016, with a long period of post-operative rehabilitation, at which time Mr Wilson showed very little sign of union, seven months post-injury.  He was required to undergo further surgery on 12 July 2017, in order to undergo a bone graft of the distal tibia.  Apparently this surgery was somewhat complicated, as was Mr Wilson's post-operative recovery, in which his progress, in terms of both pain and limited knee flexion and extension were apparent.  He was restricted, in terms of weight bearing and physical therapy and as a result, further surgery was recommended, which as of 20 December of last year, had not taken place. 

25At the point of his statement, Mr Owen opined that Mr Wilson had suffered a significant injury to his right tibia and that his injury included the required surgery and has had a significant impact on his life, with him still not recovering functioning of his leg, 12 months post-injury, with further surgery contemplated.  Mr Owen was of the view that Mr Wilson will be left some residual deformity, particularly shortening of the leg and stiffness of the joints above and below the fracture.  You were therefore responsible for what can only be described as a "serious injury". 

26This charge, or the charge of dangerous driving, to which I have referred, has been put by the prosecution on the basis of a combination of drug and alcohol use, combined with inadvertence.  As such, I find the objective gravity of your offending towards the mid-level, in terms of seriousness, such that such descriptors are of any assistance. 

27Charges 2 and 3 on the indictment are in a different category.  They are separate and discrete offences.  The maximum penalty for failing to stop after an accident is ten years imprisonment, as I have already referred.  The penalty was increased on 1 June 2005 from that of two years imprisonment, representing a fivefold increase.  It was done so in circumstances where in the second reading speech, the then Minister for Transport said:

"The Victorian community has been rightfully concerned about recent cases where drivers have left the scene of an accident in which a person has been killed or seriously injured without rendering assistance.  Failing to stop in these circumstances is a despicable and cowardly act.  The Bracks Government has listened to community concerns about this very serious issue and as a result, the penalties where drivers are involved in an accident in which a person is killed or seriously injured who fail to stop and render assistance, will be substantially increased. 

28This is a clear indication to the courts that they need to reflect the increase in the maximum penalty.

29You clearly knew at the time that you left the scene that you had hit another person, given you indicated such to Ms Diston.  Your behaviour was cowardly, indeed coldblooded, as you left your victim on the nature strip, unaware of the extent of his injury.  Furthermore, any reasonable person in your position would have realised that the injuries sustained by your victim were likely to be serious.  Your failure to stop is a failure by you to discharge your obligations to fellow road users. 

30You left the scene and failed to render assistance, in circumstances where your only concern was in relation to yourself and your own identification for this offending.  This is apparent from the mere fact that you left with the relevant knowledge, combined with your attempts to disguise your motor vehicle by deidentifying it with the removal of registration plates and identifying stickers and then ceasing to report on bail.  Once you were located by police, you blamed Ms Diston for hitting Mr Wilson.

31It was your legal responsibility to remain at the scene, yet you deliberately fled.  This is a serious example of failure to stop and failure to render assistance.  Whilst there are worst examples of serious injury, the extent of Mr Wilson's injury is relevant to assessing the seriousness of your offending and the extent to which your failure to stop represents a failure to properly discharge the obligation that you had as a driver in such a situation.  The objective gravity of Charges 2 and 3 and your moral culpability for them are particularly high. 

32Furthermore, at the time of this offending, you were on bail and on a community corrections order.  Your offending was therefore in breach of these orders and represents an aggravating feature to your offending.  Obviously you are not entitled to drive at this time, given the vehicle in which you were driving was unregistered and that you were disqualified from driving.  These facts are the subject of charge and are to be punished by way of penalty for those respective charges.

33You also have a significant criminal history of some 12 court appearances.  This history reflects offences of dishonesty, breaches of court orders, including community based orders, breaches of family violence intervention order and failures to answer bail, as well as damage-type offences.  Relevantly, you have a prior history which includes driving in a manner dangerous, for which you received a community based order in 2001, driving whilst disqualified in 2002, two charges of driving whilst suspended in 2016, more minor driving offences generally throughout your history, an exceeding speed offence and drink driving-based offences. 

34Whilst you are not to be punished for this history again, your poor driving record is relevant to the assessment of your moral culpability for Charge 1 and your prospects of rehabilitation overall, the weight to be given to specific deterrence and the need to protect the community from you.  All of these factors must carry considerable weight in a penalty to be imposed.  I am told you have pending matters, to which you intend to plead guilty, listed at the Latrobe Valley Magistrates' Court in August 2018. 

35I have taken into account matters personal to you, as outlined by your counsel in both careful written and oral submissions.  These include you are now
34 years of age and were raised in a series of foster homes, having been removed from your mother's care at approximately four years of age.  You spent time with various foster families, one of whom, the Neills, from whom you have taken your surname, sent you to a private school, where you completed a Year 11 education.  Under their care, you also went on an exchange program to Denmark, Germany and the United Kingdom.  You still have intermittent contact with them.  Apparently you felt that you could not live up to their expectations.

36You have worked as roof tiler, but have spent considerable time unemployed. 

37You have met your biological father once and have two half-sisters. 

38You have two children, aged 14 and 12 with one partner, Samantha Dance.  Both children are under the supervision of the Department of Health and Human Services.  You also have a five year old daughter from your most recent relationship, who is also the subject of child protection orders.  I am told that you have recently resumed contact with your older children and do exercise telephone contact with your younger child.  It can only be hoped that these relationships provide you with some impetus in the future to change your behaviour.

39It would appear that you have a long-standing and abusive relationship with both alcohol and drugs, particularly cannabis and methylamphetamine.  There seems to be a limited explanation for the resort to such abuse. 

40I have taken into account a report tendered on your behalf, authored by a Colleen Murphy, psychologist.  That report is undated, but reflects that you presented to her on 19 November 2014 and attended on five occasions.  At that time, she was treating you for depression, anxiety and social issues.  I have taken the contents of this report into account in a general sense.  I am not able to form the view that any of these conditions were either live to or contributed to the offending before me, nor am I able to take the view that any of these conditions would make your time in custody more burdensome.  Indeed it was not sought that I do so. 

41Also tendered on your behalf was a recommendation for you to be released on bail on the Court Integrated Services Program.  This letter is dated 8 March 2017, but your application for bail at that time was refused. 

42I have also received a series of urine screens since your remand, which all indicate that you have tested negative for drug abuse.  I have received confirmation that you have completed programs in relation to coping with change, managing sleep, managing worry, workplace safety arrangements, hygienic practices for food safety, traffic management and creating a simple mark-up language document.  I have taken the contents of these materials into account, which are reflective of a desire by you to abstain from drug use and to use your time wisely whilst incarcerated.  This would indicate that you retain some prospects for rehabilitation. 

43The proceedings in this matter would indicate that it resolved by way of negotiations in March of this year.  As such, it is a plea of utilitarian value and have saved the court the time and expense of a contested proceeding by way of trial.  A committal hearing was run, but Mr Wilson was not required to give evidence.  At that stage you were still maintaining that you were not the driver of the vehicle at the relevant time.  Your plea before has saved witnesses the trauma of being involved in trial proceedings.  I do accept that you have exhibited some, albeit limited, remorse for you offending and I take all of these factors into account.

44The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. 

45I am also required to balance the interests of community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. 

I express my denunciation of your behaviour. 

46I have also taken into account the relevant sentencing guidelines, referred to in s.5 of the Sentencing Act, where relevant to your case and have taken into account the principles of both totality and proportionality.

47I do now turn to sentence.  If you could please stand.

48In relation to Charge 1, dangerous driving causing serious injury, you are convicted and sentenced to 15 months imprisonment.  All licences held are cancelled and disqualified for a period of three years. 

49In relation to Charge 2, failure to stop after an accident, you are convicted and sentenced to 28 months imprisonment.  This is the base sentence.

50In relation to Charge 3, failure to render assistance after an accident, you are convicted and sentenced to 28 months imprisonment. 

51Eight months of Charge 1 is cumulative on Charge 2.  Four months of
Charge 3 is cumulative on Charge 1 and the base sentence.

52In terms of the summary offences, drive unregistered motor vehicle, you are convicted and fined $800. 

53Drive whilst disqualified, you are convicted and sentenced to six month's imprisonment.  All licences held are cancelled and disqualified for a period of 18 months. 

54In relation to failing to report an accident, you are convicted and sentenced to two months imprisonment.  Given Charges 2 and 3 on the indictment and your punishment for each of those, this term is wholly concurrent with sentences otherwise imposed.

55Committing an indictable offence whilst on bail, you are convicted and sentenced to one months imprisonment. 

56For each of the contravene bail condition offences, you are convicted and sentenced to one months imprisonment.

57One month of the driving whilst suspended charge is cumulative on the sentences imposed on the indictment.  Seven days of the four bail offences are also cumulative on the indictment offences and on each other.

58In terms of the total effective sentence, you are convicted and sentenced to three years and six months imprisonment, with a minimum of two years and four months before being eligible for parole. 

59I reckon 538 days as already having been served.

60Section 6AAA of the Sentencing Act requires me to state the sentence that
I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years and ten months imprisonment, with a minimum of three years and eight months imprisonment before being eligible for parole.

61There is always a possibility that my maths are wrong, so I stand to be corrected by either of you.  Otherwise if you could please remove the prisoner.

62MS SAVILLE:  Your Honour, if I might just clarify?

63HER HONOUR:  Yes.

64MS SAVILLE:  Did Your Honour make an order in relation to the licence in respect of Charges 2 and 3?

65HER HONOUR:  No, I did not and thank you for bringing that to my attention.  It is proper that I do so.

66In relation to those matters, I make the same orders as I did in relation to
Charge 1. 

67MS SAVILLE:  There is a mandatory four years in relation to those.

68HER HONOUR:  Is there?

69MS SAVILLE:  Yes, Your Honour.

70HER HONOUR:  Well thank you for bringing that to my attention now. 

71MS SAVILLE:  And there's - as well, just is Your Honour inclined to make a declaration pursuant to 89(c) that the dangerous driving was influenced by the use of alcohol?

72HER HONOUR:  Well he has pleaded on that basis, so I will make that declaration.  And is it four years for Charges 2 and 3 only, is it?

73MS SAVILLE:  It is four years, pursuant to 61(6), the first offence, at least four years.  Subsequent offence at least eight years.

74HER HONOUR:  Well, Charge 3 is obviously not a subsequent offences. 

75MS SAVILLE:  Yes.

76HER HONOUR:  So in terms of Charges 2 and 3, all licences held are cancelled and disqualified for a period of four years.

77MS SAVILLE:  As Your Honour pleases.

78HER HONOUR:  Well, thank you very much.  If we could remove the prisoner and I will stand down temporarily before dealing with the next matter. 

79MS SAVILLE:  And sorry, Your Honour, the disposal order.  I think an order was made on the last occasion, Your Honour.

80HER HONOUR:  I did make it on the last occasion, I believe.  If not, I will. 

81MS SAVILLE:  Thank you, Your Honour.

82HER HONOUR:  Or I indicated I would. 

83MS SAVILLE:  Yes. 

84HER HONOUR:  Mr Peterson, I am mindful that you are in the next matter.  Just so that you have got some freedom of movement, I will return at midday. 

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