Director of Public Prosecutions v Nicholson
[2017] VCC 1950
•18 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-00003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY NICHOLSON |
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| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 September 2017, 8 September 2017, 21 November 2017 |
| DATE OF SENTENCE: | 18 December 2017 |
| CASE MAY BE CITED AS: | DPP v Nicholson |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1950 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death – two charges of dangerousdriving causing serious injury – plea of guilty – whether offending mitigated by intellectual disability when offender under influence of alcohol – post traumatic stress disorder as a result of offending – remorse – general deterrence
Legislation Cited: Sentencing Act 1991
Cases Cited: DPP v Borg (2016) VSCA 53; DPP v Sharma (2017) VSCA 63;
DPP v O’Neill [2015] VSCA 325; DPP v Davis [2017] VSCA 341;
DPP v Neetherling [2009] VSCA 116; Muldrock v The Queen
(2011) 244 CLR 120; DPP v Whittaker [2002] VSCA 162
Sentence:Total Effective Sentence of three years and nine months imprisonment, non-parole period of 21 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn QC with Ms S. Parsons | Doogue + George Criminal Lawyers |
HIS HONOUR:
1 Bradley Nicholson, on Friday 10 April 2015 at about 11.10 pm you drove your Nissan Patrol four wheel drive vehicle along Milners Road, Launching Place. At the time you had a blood alcohol concentration of at least 0.108 per cent. There were five passengers in your car: Charlie Robertson, Josh Bell, Monique Kouvaras, Billy Paisley and Mark McLaren. It seems that none of those passengers were wearing seatbelts.
2 Milners Road was a dark, undulating road with a number of sharp curves. As you attempted to negotiate one of those sharp curves at speed, you lost control of your vehicle, causing it to roll over and ultimately collide with a tree. Charlie Robertson, who was the front seat passenger, lost his life. Joshua Bell and Monique Kouvaras both sustained serious life-threatening injuries.
3 On 5 September 2017, you pleaded guilty to one charge of dangerous driving causing the death of Charlie Robertson. One charge of dangerous driving causing serious injury to Joshua Bell and one charge of dangerous driving causing serious injury to Monique Kourvaras.
4 It is important that it be understood at the outset, that in this case the prosecution accepted pleas to these lesser charges, rather than the more serious offences of culpable driving and negligently causing serious injury, which attract more severe penalties.
5 The maximum penalty for the offence of dangerous driving causing death is 10 years' imprisonment, and for dangerous driving causing serious injury, it is 5 years' imprisonment. I note that for the offences of culpable driving and negligently causing serious injury, it is 20 and 10 years respectively.
6 You have also pleaded guilty to two summary offences arising out of the same circumstances: namely, that you drove a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances and that you provided a sample of blood which exceeded the prescribed concentration of alcohol. The analysis indicated a reading of 0.107 per cent. You are now to be sentenced in relation to all five charges.
Circumstances of Offending
7 Turning to the circumstances of your offending in more detail, on this night Joshua Bell arranged to have a gathering of friends celebrate his twenty-second birthday at the Sam Knott Hotel in Wesburn. Mr Bell arrived at the hotel at around 7.00 pm, as did the majority of the group attending.
8 As at this night, you, Mr Nicholson, were aged 22 and the holder of a full Victorian driver’s licence. You drove your Nissan Patrol vehicle ZJU 114 to the Sam Knott Hotel, arriving sometime between 7.30 and 8.00 pm.
9 You were observed speaking to friends and acquaintances who formed part of the group celebrating Mr Bell’s birthday. You were seen to consume a number of drinks during the night which consisted of beer and Jack Daniels and coke.
10 Witnesses described your drinking in terms which ranged from moderate to excessive. For example, Aiden Kendall told police,
“Somewhere between 7:45 and 8 pm Brad arrived. I hadn’t seen him in a few weeks and bought him a pint of Carlton Draught beer then we talked shit and played pool. Brad bought another round of schooners of Carlton Draught for us, Brad and me. Went outside and had a smoke and I offered to buy him another one but he told me that he was driving and taking it easy."
11 Alyssa Cole-Sinclair stated,
“At about 7:30 pm I saw Brad NICHOLSON arrive. I spoke to Brad a few more times. I only noticed that over the night he had one pot of beer and a Jack.”
12James Lennon stated that,
"Brad got there between 8 and 8:30 pm. When he first got there I said to him “It’s your shout”. He said to me that he would get one but that he was not going to have too many until he got back to a person called Alyssa Cole-Sinclair’s house.”
13Hayley Lennnon who had not been drinking on the night stated;
"When I spoke to Brad he seemed quite normal and certainly not drunk like the others."
14On the other hand Joey Paisley who had observed your drinking throughout the night told his mother that he did not want to travel with you whilst you were driving – the words he used were “I’m not getting in that car. He’s pissed”.
15Mitchell Livingstone stated,
“I think I had about seven pots of heavy beer over the course of the night. Brad had a few drinks while I was talking to him. I remember he had two beers and two Jack Daniels pots. I knew they were Jack Daniels because I asked him what they were. I asked Brad if he was driving and he said that he was. I said something to him along the lines that he shouldn’t be driving as he had been drinking. He said “Oh well I know what I’m doing.”
16Whilst the evidence suggests you were conscious of moderating your intake of alcohol, the reality was that you were later shown by testing to have a blood alcohol content of at least 0.108 per cent. There can be little doubt that your driving skills would have been adversely affected by a reading which was more than double that which was permissible.
17At around about 11:00 pm people started to leave, but a number of the group decided to go to a house in Hoddles Creek to continue the night there. You and five others got into your car. There was only provision for five persons to be seated with seat belts.
18The route you travelled took you to Milners Rd Launching Place. The road was dark with numerous sharp curves and undulations. Although there was a default 100 kilometre per hour speed limit, there were speed advisory signs along the road, suggesting lower speeds for the numerous corners that the driver had to negotiate.
19Towards the eastern end of Milners Road, in the vicinity of the property at No.305, you approached a right hand curve. The speed advisory sign for that bend was 40 kilometres per hour. Leading up to the curve was a short straight section of road with a slight downhill gradient.
20You drove into the curve, and attempted to negotiate it but you were travelling too quickly. As you came out of the curve the Nissan drifted to the left and onto the gravel shoulder along the left hand side of the road. You then drove through some foliage from an overhanging tree, before you steered to the right overcorrecting, in an effort to get back onto the bitumen road surface. Once back onto the roadway, you steered back to the left, again overcorrecting and causing the car to go into a short yaw before it tripped and rolled a number of times over a distance of about 55 metres. A police reconstruction expert assessed your speed at the time of the loss of control of your car as travelling at a minimum speed of 74 kilometres per hour.
21The car came to rest after the rear passenger corner and roof collided with a large tree on the northern side of the road. During the roll-over phase Mr Robertson, Mr Bell and Ms Kouvaras were ejected from the vehicle. It is very likely that these passengers were not wearing seat belts. Mr Bell and Ms Kouvaras were located ahead of the Patrol’s rest position amongst the trees and bushes along the northern side of the road. Mr Robertson was located under the roof of the vehicle after it came away from the tree to rest on the gravel shoulder along the northern side of the road.
22As a result, Charlie Robertson suffered significant head and upper body injuries and died at the scene. The cause of death was described as due to ‘multiple injuries’. Both Mr Bell and Ms Kouvaras sustained extensive serious and life threatening injuries and were conveyed to the Alfred Hospital by air ambulance where they both underwent surgery and spent a period of time in the Intensive Care Unit.
23I need now to detail the impact your offending has had.
Charlie Robertson
24 Five victim impact statements were tendered describing the impact of Charlie Robertson’s death on those who were close to him. They were from Jack McDonald, Scott Robertson, Janine Worley, Matthew Varuso and Sally Millar.
25 Each of those person’s statements eloquently conveys the joy that Charlie Robertson brought to their lives, just as they do the devastation his death has brought to each of them. His mother Sally Millar read her statement to the Court. She said,
“My future included Charlie’s hopes, dreams, struggles and successes. My dreams included holding and loving his children. Memories of Charlie fill me. But the memories I have are not enough, I had always assumed my life would contain an ever expanding wealth of Charlie moments. I believed Charlie would bury me. My life has been redefined by the events of April 10 2015, the night Charlie died. Just as I loved him, I miss him to the moon, beyond and back.”
26 His father Scott Robertson, in his statement, said the following,
“Charlie and I always had a very close relationship. When he was 15 it was decided that I would give him an apprenticeship. From that point on Charlie and myself did almost everything together. Charlie was without doubt my best mate, we lived worked and played together. His death has affected me in many ways. I am still mentally crippled, extremely sad, reluctant and fearful of a future without my son and best mate ever”.
27 Charlie Robertson was 20 years of age at the time of his death.
Joshua Bell
28 Mr Bell, in his statement to police described his injuries in the following terms:
"As a result of the crash, I suffered more than 10 fractures to my skull. I acquired a brain injury; I have damaged the optic nerve in my right eye and lost 70 or 80 per cent of my vision and I have a significant loss in the sensitivity of smell. I had three compression fractures to T4, T5 and T6; I got three broken ribs, a dislocated left shoulder and a broken sternum. I also had a severed left ear and required a skin graft to the left wrist.”
29 Three victim impact statements were tendered describing the impact of these injuries on Mr Bell and those close to him. They were from Joshua Bell, Gary Bell and Maria Bell.
30 Both parents describe the extreme anxiety they felt as they watched their son for 12 days in intensive care and a further 4 and a half weeks in rehabilitation. Maria Bell states, “the worry, anxiety, love, sadness, concern that we went through at this time was extreme.”
31 They describe the challenges and difficulties their son faced once he returned home although, on a more positive note, his mother stated, “Josh has just finished his apprenticeship and it is a real credit to him, his determination, motivation and hard work, despite all he has been through it shows what sort of person he is.” She concludes by saying “there is really no end to the effects of a car accident.”
Monique Kouvaras
32 Turning to Monique Kouvaras. Dr Mithu Palit in a report of 13 June 2017 detailed Ms Kouvaras’ injuries as follows:
Severe traumatic brain injury with subarachnoid haemorrhage and subdural haemorrhage requiring acute neurosurgical management including insertion of an extra ventricular drain and requiring airway management with tracheostomy insertion. There was indication of severe diffuse axonal injury on MRI scan. Closed fracture of multiple cervical vertebrae (sparing the spinal cord) requiring a hard collar for a period of 6 -8 weeks, bilateral lung contusions, displaced right clavicular fracture, left pubic rami fracture.
33 Thirteen victim impact statements were tendered, which set out the impact these injuries have had on Monique Kouvaras and those close to her. They were from Maxwell Kouvaras, Helena Liebelt, Wendy Langford, Letitia Kern, Damien O’Toole, John Dinnell, Maurice Kouvaras, Monique Kouvaras, Vanessa Veltmeyer, Linda Kouvaras, Melanie Lynn and Andrew Kouvaras. Each of these statements document from different perspectives Ms Kouvaras’ incredibly difficult struggle to reclaim her life after the devastating injuries she received.
34 Her mother Vanessa Veltmeyer stated:
“Monica’s injuries were severe and life-threatening. For the first weeks after the accident, the doctors were not able to tell us for sure whether she would live, be paralysed, or whether she might be a vegetable. From the day of the accident, I have watched as Monique has worked so hard to first survive and then learn how to eat, talk, walk, read, write, and a million other things.”
35 Her father described Monique before the collision as a natural athlete, an elite gymnast who rode horses, motorbikes, loved water-skiing and had been a tenacious Australian rules footballer. He stated,
"What of Monique’s future? She was a 22 year old woman, the recently qualified myotherapist who was building a large client base working for various sports injury clinics. She played many sports and had a busy social life with a multitude of friends. Not anymore. Life has changed.”
36 Monica’s stepmother, described how Monica is now dependent on her father and herself and will always require assistance emotionally and physically and that she doesn’t have the cognitive ability to work now. She stated,
“All the hopes and dreams parents have for their children growing up are now shattered. The impact of Monique’s injuries have negatively affected everyone she knows, life will never be the same for Monique’s family and friends.”
Personal Circumstances
37 Before dealing with the submissions to sentence I must set out something of your personal circumstances. You were born on 7 March 1993. You are now 24 years of age. You were 22 at the time of the offences. You have no prior or subsequent convictions. It is of some significance that you suffer from an intellectual disability.
38 Your mother Leanne Nicholson and your father Matthew Nicholson both gave evidence on your plea. It is clear that you grew up in a loving and supportive environment. Your mother described noticing that by the age of two or so you were not progressing as other children were. You were still unable to talk at the age of three. A speech therapist advised your parents that you struggled to understand what was going on around you and learning to speak was very difficult for you.
39 You attended a special-needs kindergarten at the age of five and ultimately when you went to primary school your mother would attend each day during the main learning period to assist you. Your schooling further suffered as a result of an accident where you were run over in your driveway which resulted in your legs being broken and having to undertake approximately ten operations in hospital.
40 At some stage during your primary schooling it was formally recognised that you had an intellectual disability and you were given a teachers aid. You continued to struggle academically and to some extent socially. You mother explained that you did not really learn very much in high school and left at about the beginning of Year 10. You then went straight to work in your father’s building business as a labourer and under his close supervision you have continued in that role.
41 Throughout your life you have lived at your parent's home and it is apparent that they have dedicated themselves to providing a high level of support, that has enabled you to lead as ordinary life as possible, in spite of your disability.
42 On the plea 16 personal references from 20 people in all were tendered on your behalf. In addition I received a handwritten letter of apology. You are fortunate to have such a large and committed support network of family and friends. You have impressed many with your quiet, well-mannered and caring nature. Overwhelmingly, these references demonstrate how very out of character your behaviour in drinking and driving was, and how deeply you have felt the consequences of your offending. You appear to have accepted responsibility for what has happened, and I am well satisfied that you are genuinely remorseful.
Medical and Psychological Evidence
43 Quite a number of medical and psychological reports were tendered describing the nature of your disabilities. A psychologist Jane Cole assessed you when you were 5 years and 7 months and Dr Brian Timms, a consultant paediatrician, treated you between 2003 and 2009.
44 Much of that material was surveyed by Dr Rachel McKenzie a clinical psychologist who assessed you and gave oral evidence on the plea. In her report of 20 April 2017 Dr McKenzie refers to Ms Cole’s assessment of you in 1998 and to speech pathologist assessments where you were diagnosed with severe receptive and expressive language impairment for which you were referred for assessment of your cognitive ability. Dr McKenzie stated:
“That assessment placed Mr Nicholson’s intellectual functioning in the borderline range in comparison to same aged peers. Over the next eight years, Mr Nicholson underwent numerous assessments. The results consistently placed him in the range of a mild intellectual disability with severe receptive and expressive language impairment as well as auditory processing deficiencies. He was later diagnosed with attention deficit disorder for which he was placed on Ritalin."
45 In evidence before me Dr McKenzie explained that your verbal IQ had varied in testing from levels in the 50’s to up into the 70’s. She said it was necessary to examine not only your IQ level, but also your generalised functioning that included your ability to engage with the world, to engage with people and your ability to work. She explained that in her view you did not have much capacity to assert yourself at all and that you had a tendency towards acquiescence. She assessed you as suffering from post-traumatic stress disorder and that you were a low risk of recidivism. Dr McKenzie was also of the opinion that with the Post-Traumatic Stress Disorder you had subsequently developed, it would be extremely difficult for you to navigate the prison environment, and with your intellectual and other disabilities you are likely to be extremely vulnerable to exploitation and manipulation within the prison system.
46 In June 2016 were referred to Dr Joel Godfredson a clinical forensic psychologist “to assist you in coping with your legal matters and to improve your insight regarding the factors underpinning your offending behaviour.” You have attended Dr Godfredson on a monthly basis in respect of ongoing symptoms of Post-Traumatic Stress Disorder. He also confirms your history of intellectual disability and in light of your seemingly approval-seeking and impressionable nature. You have discussed with him the importance of not adopting others negative attitudes or placing yourself in situations which may contribute to reckless or impulsive decision-making. It is to your credit that you have undertaken this treatment.
Neuropsychological Assessment
47 Although there was no doubt that you have suffered intellectual impairment and other disabilities throughout your life, the severity and the current specific nature of your deficits was unclear. Accordingly, the plea hearing was adjourned to enable a detailed neuropsychological assessment.
48 In her report of 24 October 2017 Dr Fiona Fisher assessed you in the following terms:
"Mr Nicholson's intellectual functioning was assessed by the Weschler Adult Intelligence Scale, fourth edition, the Gold standard and well validated assessment of intelligence. His full scale IQ score was 63 on this occasion placing him at the first percentile in the extremely low range of functioning. Findings suggest that Mr Nicholson falls within the lowest one per cent of the population in terms of general intellectual functioning where 99 per cent of age related peers would have performed above this level.”
49 On testing your reading and writing skills were the equivalent of late primary school level and this was likely only because of the daily intensive family and academic support you had received when at school. Of particular relevance was the fact that your immediate and delayed retention of information fell within the extremely low range, that is, less than first percentile.
50 Dr Fisher stated, "His overall performance on the story memory task clearly indicates that Mr Nicholson's ability to take in and encode moderate amounts of contextual information is severely impaired."
51 The test results were very much consistent with your presentation as Dr Fisher noted.
"While Mr Nicholson responded appropriately to simple and straightforward questions asked by the examiner, he clearly struggled to comprehend questions and instructions that involve the use of more complex language or were abstract in nature. Spontaneous speech was limited and Mr Nicholson would often not initiate clarification of words he had not understood until it became apparent in his poor understanding of the task instruction. Mr Nicholson required a majority of task instructions to be repeated and often simplified to ensure he comprehended what was being asked of him."
52 The testing revealed that your ability to plan, organize yourself and reason in an abstract way was severely impaired. When social cognitive demands were increased it was found that you were required to interpret more complex social exchanges your performance fell to within the extremely low range.
53 On the issue of how you might cope in custody Dr Fisher stated:
"Given Mr Nicholson's complete reliance on the structure and support systems he has in place it is highly likely that he will decompensate from his current level functioning when faced with a new environment particularly one that lacks the social supports he is so reliant on. He is unlikely to be able to recall and understand in any in depth manner the rules, regulations and social nuances that comprise a custodial environment.
Mr Nicholson's broad ranging intellectual social cognitive and adaptive impairments when considered together with his tendency to seek approval and acquiesce renders him extremely vulnerable to undue influence or unintentional non-compliance due to a poor understanding of the custodial environment. That is, responding positively or agreeing to things despite being unsure exactly what is being asked and therefore being unable to meet expectations. In my opinion, there are significant risks of adverse effects within a custodial environment due to Mr Nicholson's intellectual disability.”
Sentencing Submissions
54 Turning to the submissions on sentence, Mr Dunn relied upon your plea of guilty which was accompanied by an acceptance of responsibility for your offending and obvious remorse. He pointed out that you had no prior or subsequent convictions and your offending on this night was very much out of character as your personal history and the references demonstrate. Although youthfulness carries less weight as a sentencing consideration in offending of this type it was nonetheless relevant and important.
55 As to your driving on this night; it was acknowledged at the outset that your consumption of alcohol was a significant feature of your offending but Mr Dunn argued that there were a number of other matters which tended to mitigate:
56 First it was put that a number of modifications to your car were likely to have contributed to the collision. A fully qualified motor mechanic and mechanical investigator, Leading Senior Constable Ellis, examined your car after the collision. He found that there had been a number of modifications to your car to make it capable of better off road performance. For example the tyres fitted were designed primarily for low speed off road use. He stated as follows;
“The tyre size, being 33 X 12.5 R 15, are over 2 inches in diameter larger than that specified, or more than 50 mm, which means that unless the speedometer is altered to account for the change in wheel and tire diameter, the speed obiter would read low, potentially lower than the actual vehicle speed. This is because the increase in total wheel diameter means each rotation of the wheel results in the vehicle travelling further.
The increase in total wheel/tyre diameter alone results in the vehicle’s centre of gravity being raised; meaning the tendency for the vehicle to lean on turns is increased. Also the increase in tyre side wall height will increase the time from the driver steering input into actual wheel direction change, although not markedly.
The change in vehicle centre of gravity would be increased further by fitting of suspension springs that increase the vehicle ride height.
Both of these things, being the potential for this speedometer display error in the change in vehicle centre of gravity would not cause this collision but would contribute to an inability of the driver to recover quickly from a sudden steering input, in an out-of-control situation, as the vehicle is likely to be travelling faster than the speed indicated by the vehicle speedometer, and likely to lean more on turns.”
57 Mr Dunn argued that you had never driven on this road before. There were a number of twists and turns in the road, this particular bend was notoriously bad according to local residents, and that given the fact that the speedometer may have been showing a slower speed, the increased centre of gravity and the slower responsiveness of the steering were all factors likely to have contributed to this tragedy. None of this was suggested to have excused your offending but was said to be partially explanatory of it.
58 Mr Dunn further submitted that there was no evidence that suggested had you had been driving erratically or that you had been speeding before the collision. In fact he pointed to positive evidence that suggested the contrary. Two of the passengers commented to police on your driving immediately before the collision. Billy Paisley stated “we were not speeding” and Mark McLaren stated: “At no stage from the Hotel to the accident did Brad’s driving cause me any concern, other than going into that last corner a bit too quickly”. You yourself had told police you had been “going a bit quick”.
59 It was further argued that your intellectual and other disabilities engaged all of the principles in Verdins case such as to reduce your moral culpability, moderate general and specific deterrence and render your time in custody more onerous. Reliance was placed on DPP v Borg (2016) VSCA 53 where the offender had suffered from an autism spectrum disorder and his cognitive and behavioural conditions were found to have likely contributed to his offending. It was argued that your condition similarly was connected to your offending.
60 It was put that in all the circumstances the gravity of your offending should be assessed as being in the low to mid range and that your moral culpability was low.
61 Accordingly it was submitted that a term of imprisonment of up to 12 months could be imposed, in combination with the imposition of a community corrections order conditioned on supervision and treatment through a justice plan.
62 In his submissions on behalf of the Crown, Mr Fisher emphasised the objective gravity of your offending by reference to the nature and extent of the injuries and harm caused. This was amply illustrated he suggested, in the victim impact statements.
63 Mr Fisher took me to a number of authorities, in particular to DPP v Sharma (2017) VSCA 63, and the authorities to which it referred, and argued that the sentence imposed here must be seen to have a reasonable proportionality to the objective circumstances of the crime, and any persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances. He argued that the requirement to emphasise general deterrence is paramount in cases of this kind.
64 It was submitted that you had held a driving licence for some years and even after the modifications that had been made to the tyres and suspension of your car you had thereafter driven it on a daily basis. The fact that you were on an unfamiliar road which was dark and windy with five passengers on board in circumstances where the car’s handling might have felt different, were all factors that underlined the need for much greater caution.
65 At the heart of this offending is that fact that you were drinking and driving. Moreover, you had been warned by one witness, Mitchell Livingstone, that you should not be driving.
66 As to the application of the principles in Verdins case. Initially Mr Fisher suggested that your intellectual disability was irrelevant to sentence other than as to limbs five and six. However, after Dr Fisher’s report became available that position altered somewhat to accept, as I understood it, that your disabilities may have some limited relevance in understanding your thinking before leaving the hotel. However, Mr Fisher maintained that your disabilities were not relevant to the assessment of the manner in which you drove.
67 It was accepted that your disability may mean that a sentence of imprisonment would weigh more heavily on you. It may also pose a risk of significantly affecting your mental health whilst in custody.
68 It was submitted that the objective seriousness of this offending was of a high order and your moral culpability should be assessed as being in the mid to high range. In those circumstances the Crown position was that the only appropriate sentence was one of immediate imprisonment involving a head sentence with a non-parole period.
Analysis
69 I accept many of the factors referred to by Mr Dunn in mitigation. You are a young person with no prior convictions, who has pleaded guilty, is clearly remorseful and, with the continued support of so many of those close to you, your prospects for rehabilitation appear to be excellent.
70 As to your driving on the night you were not deliberately showing off or driving erratically or generally driving in a way that caused concern to your passengers. It may be, that your unfamiliarity with this difficult road, and the modifications to your car, help to explain why this collision occurred. Nonetheless, I accept the Crown contention, that the manner of your driving on this night, particularly with the presence of five other passengers, demanded very real caution.
71 It is also the case that a person who undertakes vehicle modifications should, as the police mechanical investigator stated, be aware of all the potential changes to vehicle dynamics that result from the modifications, and drive accordingly.
72 Moreover, overlaying all of these considerations is the fact that you were driving with a blood alcohol level which was over twice the legal limit.
The Relevance of Intellectual Disability
73 Your developmental history, Dr McKenzie’s evidence and Dr Fisher’s report unequivocally establish that you suffer from what is described as a mild intellectual disability, with severe receptive and language impairments.
74 As the High Court recognised in Muldrock v The Queen (2011) 244 CLR 120 at [50 – 52] an assessment that a person suffers from a mild intellectual disability should not obscure the fact that he or she is mentally retarded. In lay terms it refers to a significantly sub-average intellectual functioning.
75 That said, it is important to emphasise that although you suffer from those disabilities, as a fully licensed driver, you were expected to comply with the road laws, as any driver must. In a different context in assessing the relevance of youth in these sorts of cases, O’Bryan AJA stated in DPP v Whittaker [2002] VSCA 162 at [23]
“Undoubtedly, the youth of an offender is generally a powerful consideration in terms of sentencing. However, the youth of 18 who is entitled to drive a motor car must accept adult responsibility for his actions behind the wheel of a lethal machine. The right to drive a motor car carries important community obligations and responsibilities”.
76In DPP v Neetherling [2009] VSCA 116 at [43] the Court referred to the obligations of a licence holder as an adult responsibility which “must be discharged accordingly”.
77 In my view much the same principle applies when assessing the relevance of your disability. Accordingly, I accept Mr Fisher’s submissions that your manner of driving in that you were affected by alcohol and negotiated the bend in the road too quickly with five passengers in the car is not mitigated by your disabilities. The amount of alcohol you consumed, is a matter for which you were responsible, as any driver must be. That said, in my view your disabilities are relevant in three particular ways for the purposes of formulating sentence.
78 First they have some relevance to an assessment of your actions before you drove on this night. The Crown contend, in effect, that your offending was aggravated by your failure to heed a warning not to drive, and in not ensuring that your passengers were wearing seat belts as drivers generally must. In these particular circumstances I am not satisfied that those matters should aggravate your sentence.
79 When you were assessed by Dr McKenzie you were asked about the passengers not wearing seat belts and you responded that you believed they all had been as “That’s what you do in a car.” You told her that it had not occurred to you that this might not be the case. The fact is your capacity to take in and retain general information and encode moderate amounts of contextual information is severely impaired. According to Dr Fisher’s testing your functioning in that respect fell below the first percentile.
80 The evidence from Mitchell Livingstone that you were told not to drive is somewhat vague as appears from that part of his statement I have extracted above. It is apparent that the conversation he refers to occurs well before you left the hotel. Other evidence suggested that you were very conscious of attempting to monitor your alcohol intake.
81 Given your disability and the timing and vagueness of Mr Livingston’s account I am not satisfied to the requisite standard that you deliberately ignored a direct warning not to drive, accordingly your sentence will not be aggravated on that basis.
82 As was noted in DPP v Davis [2017] VSCA 341 at [64] the issue of the concurrent operation of intoxication and mental impairment creates particular difficulties for sentencing judges. It may be that your disabilities and your tendency to acquiesce were relevant in other ways in influencing your behaviour on this night, but there is simply not enough evidence available to make any further findings in that regard.
83 The second way in which your disabilities are relevant is in the sense referred to in the seventh matter set out in DPP v O’Neill [2015] VSCA 325 at [82] to the effect that the presence of mental impairment, or in this case intellectual disability, although causally unrelated to the offending, may nonetheless call for moderation of general deterrence.
84 As Mr Dunn put it, you are a bit different. That is, you are a person with a Full Scale IQ of 63, meaning you are within the lowest one per cent of the population in terms of intellectual functioning, and as such you are not as ideal a candidate for general deterrence. That fact permits some moderation. Even so general deterrence must still be a very significant sentencing purpose.
85 The third way in which your disabilities are relevant is in the sense described in the fifth and sixth limbs of Verdins. The psychologists agree, and the Crown accept, that your condition will mean that imprisonment will weigh more heavily on you than it would on a person without your disabilities. There is also a significant risk imprisonment will have a particularly adverse effect on your mental health. Those matters both mitigate your position, in my view significantly.
86Ultimately, I would assess the objective seriousness of your offending as sitting in the mid-range, and your moral culpability at a similar level, in the mid-range.
87In all these circumstances I do not believe that the purposes for which I must impose sentence, particularly those of denunciation and general deterrence albeit somewhat moderated, can be adequately served by a term of imprisonment of less than 12 months in combination with a CCO with a justice plan.
88I accept the prosecution submission, that nothing short of a term of imprisonment with a head sentence and non-parole period is appropriate. However, I reiterate that the prosecution have accepted that you are to be dealt with for offences which are punishable by maximum terms of imprisonment which are half that applicable to culpable driving and negligently causing serious injury.
89In imposing sentence, I must also assume that you could serve every day of the head sentence imposed.
90I will proceed to sentence, Mr Nicholson, would you mind standing please?
91Bradley Nicholson, on Count 1, you will be sentenced to 2 years 9 months' imprisonment.
92On Count 2, you will be sentenced to 21 months' imprisonment.
93On Count 3, you will be sentenced to 21 months' imprisonment.
94On the summary matters, drive in a manner dangerous, you will be sentenced to two months' imprisonment and on the exceed PCA in the blood sample, convicted and fined $400. I would order that 6 months in respect of Charge 2 and 6 months in respect of Charge 3 be served cumulatively upon the sentence on Charge 1. The sentence on charge 11 will be served concurrently.
95That makes a total effective sentence of 3 years and 9 months
96I will fix a non-parole period of 21 months.
97Your driver’s licence will be cancelled and you will be disqualified for a period of 2 years.
98I also declare that but for your plea of guilty you would have been sentenced to a total effective sentence of 5 years and 6 months with a non-parole period of 3 years and 3 months.
99There will be no stay on the fine.
100Mr Nicholson, your legal representatives will explain the effect of these orders in more detail shortly but you may go with the Corrections Officer now.
101MR FISHER: There's just a 464 application that was made, Your Honour.
102HIS HONOUR: I think that's consented to.
103MR FISHER: Yes, I think ‑ ‑ ‑
104HIS HONOUR: I will make that order in chambers, Mr Fisher. Any other orders?
105MR FISHER: No, Your Honour.
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