Director of Public Prosecutions v Nicholson
[2020] VCC 1836
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00991
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAS RONALD NICHOLSON |
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| JUDGE: | HIS HONOUR JUDGE DEAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 November 2020 |
| DATE OF SENTENCE: | 20 November 2020 |
| CASE MAY BE CITED AS: | DPP v NICHOLSON |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1836 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Dangerous driving causing serious injury – Drive whilst suspended – Drive with prescribed concentration of drugs – Serious example of offence – Truck driver – Failed to stop at red light – Pedestrian struck on supervised school crossing – Catastrophic injuries – High moral culpability –Community protection – General deterrence – Combination sentence not proportionate
Legislation Cited: Crimes Act 1958 (Vic), Road Safety Act 1986 (Vic), Migration Act 1958 (Cth)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of 2 years and 9 months imprisonment with a non-parole period of 18 months – s.6AAA declaration – 4 years with a non-parole period of 2 years and 6 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Harper | The Office of Public Prosecutions |
| For the Accused | Ms L. Thies | Galbally & O’Bryan |
HIS HONOUR:
1Chas Ronald Nicholson, you have pleaded guilty to one charge of dangerous driving causing serious injury, contrary to s.319(1A) of the Crimes Act1958 (Vic). The maximum penalty for that offence is five years' imprisonment. You have also pleaded guilty to the related summary offences of –
(i) Driving whilst suspended contrary to s.30(1) of the Road Safety Act1986 (Vic). The maximum penalty for that offence is two years' imprisonment or a fine of 240 penalty units; and
(ii) Driving with a prescribed concentration of drugs present in your blood, contrary to s.49(1)(bb) of the Road Safety Act1986 (Vic). The maximum penalty for that offence is a fine of 12 penalty units.
2You pleaded guilty at committal mention and your early plea has spared witnesses and victims the burden of giving evidence in committal proceedings and a criminal trial. I also accept that your plea is evidence of genuine remorse for your offending, and I have taken it into account in your favour in mitigation of sentence. It is a high value plea of guilty.
3You have admitted one prior court appearance for drug-related offending which is not directly relevant for sentencing purposes in this case.
4At the time of your commission of these offences, you were driving a vehicle whilst your licence with a heavy combination endorsement had been suspended to your knowledge.
5On 14 August 2019, your licence was suspended for the offence of exceeding the speed limit by 25 kilometres or more, for a period of three months.
6Furthermore, you accumulated 12 demerit points between 23 February 2019 and 30 June 2019, and your driver's licence was further suspended on 17 December 2019 for a further period of three months due to the accumulation of those demerit points.
7You have also admitted a history of driving offences including two prior convictions for driving whilst suspended in 2009 and 2010 which are relevant for sentencing purposes. However, I accept that the other convictions primarily occurred many years ago and are of limited relevance for sentencing purposes in this case.
8A prosecution opening was read to the Court and tendered in evidence and your offending may be summarised as follows –
9At approximately 3.15 pm on 6 February 2020, you were driving your Isuzu tip truck in a westerly direction along Police Road, Mulgrave, in the vicinity of Nazareth College. You knew the area well. You had been working since approximately 6.15 am, carting soil to various locations, including Werribee and Thomastown, for the purposes of your employment. The vehicle was carrying a load of soil. The weather conditions were clear and the road was dry. There is no evidence of any obstructions to your view of the roadway that was ahead of you.
10Due to the location of the school, between the hours of 2.30 pm and 4 pm on a school day, the speed limit in the area is 40 kilometres per hour.
11The victim of your offending, Willow Griffiths, then aged 17, had finished school for the day at Nazareth College and approached the supervised pedestrian crossing outside the school on Police Road. The crossing was being supervised by Mr Francis D’Arcy, who was wearing high-visibility clothing and a high-visibility hat. Three other students were to cross with Miss Griffiths. Mr D’Arcy checked that the traffic lights east of the crossing were red and the lights at the crossing were also red. He then allowed the students to cross, after having observed your vehicle some distance away and another vehicle parked at the stop lights to his east.
12He saw your vehicle and assessed that there was sufficient distance for you to stop before arriving at the first set of red lights. The traffic lights were red for at least five seconds. However, you did not stop your vehicle and drove through two sets of red lights and struck Miss Griffiths, who had attempted to avoid your vehicle as she was crossing the pedestrian crossing. Mr D’Arcy was able to push the other students to safety.
13It is not possible to determine with precision the speed your vehicle was travelling at the time it struck Miss Griffiths, but it is likely to have been between 40 kilometres per hour and 47 kilometres per hour. You did not attempt to brake before you struck her and she was thrown 12.8 metres along the roadway. She suffered catastrophic injuries as a result, a matter that I will return to.
14Following the arrival of investigating police, you were conveyed to the Dandenong Hospital and a blood sample was taken from you. That revealed you had 0.26 milligrams per litre of methylamphetamine and 0.23 milligrams per litre of amphetamine in your blood.
15It is not the prosecution case that you were incapable of proper control of your vehicle by reason of the ingestion of these substances, but they were present in your system and you drove a loaded tip truck in that condition.
16Furthermore, it is not the prosecution case that your driving was dangerous for this reason, and I accept that you did not know the substances were still present in your system, even though you now admit that you had smoked methylamphetamine two days prior to the offending, which occurred on a Thursday.
17What is clear is that it was prohibited for you to drive a vehicle with any amount of illicit drugs in your system because it is unsafe to do so.
18You were suspended from driving your vehicle and you struck an innocent pedestrian in broad daylight who was on a supervised pedestrian crossing after you failed to stop at two sets of red traffic lights.
19In my opinion, this is a serious example of the offences that you have pleaded guilty to and a gross breach of your responsibilities as a truck driver. It is the fundamental responsibility of this Court to protect other road users and pedestrians from the criminal operation of trucks and heavy vehicles, and this sentence must be calculated to deter other drivers of such vehicles from operating them in this manner.
20You drove a loaded tip truck whilst suspended from driving, with methylamphetamine in your system, through two sets of red traffic lights and struck an innocent young girl on her way home from school, causing her catastrophic injuries.
21I have no doubt that your moral culpability for your offending is high and your crimes must be unequivocally denounced by the Court. In my opinion, a clear message must be sent by this Court to truck drivers and operators of heavy vehicles that offending of this nature will be met with the imposition of a significant term of imprisonment upon conviction.
22It is also plain that disqualification from driving a vehicle for a significant period must also follow conviction for this offending.
23Willow Griffiths was resuscitated by ambulance officers at the scene and conveyed to the Alfred Hospital trauma unit. A number of her fellow students had observed her lying unconscious on the roadway.
24She suffered an extremely serious traumatic brain injury and other injuries including:
right distal internal carotid artery traumatic dissection;
non-displaced fractures of her skull;
a significant chest injury;
C6/C7 interspinous ligamentous injuries; and
L2/L4 transverse process spinal fractures.
25She remained in the Alfred Hospital intensive care unit for five months and was then transferred to the acquired brain injury unit, where she remains.
26In the opinion of Dr Caroline McFarlane, her treating rehabilitation physician:
‘Willow has sustained an extremely severe traumatic brain injury which is likely to result in permanent cognitive behavioural and physical impairment. The injury will have a lifelong impact on Willow's functional independence and community participation lifelong.’
27It is unlikely that Willow Griffiths will leave hospital prior to 2021 and, in the community she will require 24-hour support, specialised equipment, and home modification.
28I have received in evidence a Recorded Victim Impact Statement of Willow Griffiths which attests to her enormous courage and resilience. It also graphically underlines the devastating consequences for her of your offending. I have also received in evidence a substantial body of Victim Impact Statements prepared by members of her immediate family and wide friendship circle.
29These reasons cannot adequately record the devastating impact that your offending has had upon the authors of the Victim Impact Statements. The trauma suffered by those close to Willow Griffiths is profound, and the consequences of that trauma will be lifelong.
30This case is yet another example of the devastating effect of road trauma on our community.
31I now turn to your personal circumstances. You were born on 7 September 1969 in Ashford, Kent, in the United Kingdom and you are now aged 51. Your family migrated to Australia when you were 12 years old, and you have resided here since that time, although you have not become an Australian citizen. You have four older siblings, all of whom reside in Australia, and the family is a close one. Your parents are now deceased.
32You were educated to Year 10 level at Beaconhills Christian College in Pakenham, and after leaving school were engaged in a range of unskilled occupations. Your work history has been a stable one, and in 2019 you joined Cartel Communications, a corporation that installs underground pit and pipe pathways for Telstra. Your duties were to assist in the installation of pipework and the transport of soil and crushed rock to fill pits used in the construction of telecommunications equipment. At the time of your offending you were working five days a week.
33You have one child, who is now aged 15, from a relationship that ended in 2008. You remain closely engaged in your daughter's upbringing.
34I accept that your personal circumstances will support your ongoing rehabilitation in the future.
35As you are not an Australian citizen, a sentence of imprisonment of more than one year will lead to the mandatory cancellation of your visa, and in such circumstances you face the risk of deportation to the United Kingdom at the conclusion of your sentence. The relevant provisions of the Migration Act 1958 (Cth) are, however, subject to judicial review, and your age and the fact that you will have resided in Australia for a period of in excess of 40 years will be relevant to any determination of such review.
36As I observed during the course of the plea hearing, whilst I accept that the risk of deportation will weigh heavily upon you and increase the hardship of imprisonment in your case, it is not open to me to tailor a sentence in order to avoid the relevant provisions of the Migration Act 1958 (Cth).
37I accept that the risk of deportation will in fact weigh heavily upon you, as you have no relatives or friends residing in the United Kingdom and your daughter and siblings all reside in Victoria.
38I have received in evidence a psychological report of Mr Patrick Newton, detailing your background and psychological profile. I accept that you have a longstanding history of substance abuse disorder, but since your offending you have been drug-free.
39The fact that you have been abstinent from illegal drugs since the offending is supported by drug-screen testing evidence which was tendered on your behalf.
40It would appear that your substance abuse disorder is directly related to an ongoing depressive condition that you suffer from, related to the breakdown of your relationship with the mother of your daughter and the fact that you were exposed to a violent home invasion in November of 2015 which may have been related to the breakdown of your relationship.
41Since that event, your depression and anxiety intensified and you have become a regular user of methylamphetamine. It would therefore appear that your use of methylamphetamine prior to your offending was not an isolated occasion.
42Mr Newton states that you meet the diagnostic criteria for a persistent depressive disorder which has also intensified since your offending, and I accept that principles 5 and 6 enunciated by the Court of Appeal in R v. Verdins (2007) 16 VR 269 are engaged in your case. Whilst you are now drug-free, your depressive condition continues, and I accept that your imprisonment will increase the severity of your symptoms and you will require ongoing treatment for your condition.
43I have also received in evidence a number of character references attesting to the fact that you are deeply remorseful for your offending, which I accept, and that you are a person of compassion.
44I also accept that the consequences of your offending have had a profoundly traumatic effect upon you.
45You fall to be sentenced during the COVID-19 pandemic, and upon your introduction into the prison system you will be subject to a 14-day quarantine. Following this, you will be the subject of the restrictions now operating within the custodial environment, and you will not have access to programs to support your rehabilitation or personal visits from friends or family in the future. This will increase the hardship of imprisonment in your case and your depressive disorder.
46In this context, it is notable that, apart from three days on remand following your offending, this will be your first time in custody.
47It was submitted on your behalf that it would be open to me to impose a term of imprisonment to be followed by a Community Correction Order in your case. I do not accept that a maximum term of imprisonment of 12 months would be proportionate to the gravity of your offending in relation to the charge of dangerous driving causing serious injury, in the circumstances of this case. I accept, as was submitted on behalf of the prosecution, that the only proportionate sentence available to me is one of a term of imprisonment together with an appropriate non-parole period. For this reason, you were not assessed for suitability for a Community Correction Order.
48I accept that your prospects for rehabilitation may properly be described as good, and specific deterrence is not a significant sentencing consideration in this case.
49In the result, the sentence of the court is as follows:
50On the charge of dangerous driving causing serious injury you are convicted and sentenced to be imprisoned for two years and nine months.
51On the charge of driving whilst suspended you are convicted and sentenced to be imprisoned for three months.
52On the charge of driving with a prescribed drug present in your blood, you are convicted and fined $750.
53The sentence on Charge 2 will be served concurrently with the sentence imposed on Charge 1.
54This makes for a total effective term of imprisonment of two years and nine months.
55I direct that you serve one year and six months before becoming eligible for release on parole.
56But for your plea of guilty I would have imposed a total effective term of imprisonment of four years with a non-parole period of two years and six months.
57I declare you have served five days by way of pre-sentence detention not including today.
58All driver's licences held by you are cancelled and you are disqualified from driving in the State of Victoria for a period of three years from 1 April 2022.
59Any further orders required?
60COUNSEL: No, Your Honour.
61MS THIES: Could I make one request, Your Honour, just in relation to custody management issues. Mr Newton notes that he should be monitored if possible - his mental state should be monitored post-sentence.
62HIS HONOUR: Yes, that will be noted on the remand order.
63MS THIES: I'm grateful, Your Honour.
64HIS HONOUR: Thank you. Mrs Griffiths, that completes the sentencing process in the court in relation to these events. On behalf of the Court and the community I wish you and your family well.
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