Director of Public Prosecutions v Noon
[2018] VCC 981
•25 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00329
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY NOON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2018 | |
DATE OF SENTENCE: | 25 June 2018 | |
CASE MAY BE CITED AS: | DPP v Noon | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 981 | |
REASONS FOR SENTENCE
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Subject:
Criminal law sentence – culpable driving – failure to render assistance after motor vehicle accident – conduct endangering life – relevant prior criminal history – immediate term of imprisonment imposed
Sentence: Sentence of 12 years’ imprisonment with a non-parole period of 8 years fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Bourke (Plea) Ms J. McLeod (Sentence) | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms S Lacy | Giorgianni & Liang Lawyers |
HER HONOUR:
1 Ricky Noon, you have pleaded guilty before me to one charge of culpable driving; one charge of failure to render assistance after a motor vehicle accident and conduct endangering life. In addition, a summary charge has been transferred and you have consented to the Court hearing the matter and you entered a plea of guilty with respect to summary Charge 6, driving whilst disqualified.
2 The gravity of the offending is reflected in the maximum penalties that are prescribed by Parliament and they are: 20 years’ imprisonment for culpable driving; 10 years’ imprisonment in respect to failure to render assistance and also the charge of conduct endangering life; and 30 penalty units, or 4 months’ imprisonment in respect to the drive whilst disqualified charge, it being the first occasion that you have been charged with this offence.
3 You have also admitted a criminal history. Your criminal history is poor and demonstrates a defiance of court orders in the past and complete disregard for safety of other road users in the past when you have been charged with respect to driving offences. The criminal history spans a period from 12 March 2014 until 30 March 2017 and you have prior convictions for careless driving, drive speed dangerous and drug related offending, as well as a theft charge, crimes of violence against persons, contraventions of community corrections order and fail oral fluid test within three hours of driving. You had been released from gaol in early May of 2017, some five months to the accident giving rise to these charges and I will talk a little bit about that shortly.
4 I will now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing. There was no issue taken with the opening by your counsel Ms Lacy.
5 Briefly, at about 1 am on Sunday, 1 October 2017, you were the driver of a vehicle that was involved in a single vehicle fatal collision that occurred on Govan Street, Seaford, near its intersection with Bardia Avenue. The collision occurred in the context of you driving at an excessive speed and losing control of the vehicle at a right curve in the street, causing your vehicle to collide with a timber electricity pole and with the brick wall of a factory, thereby killing your passenger, Rhys Tarrant. At the time, you also had a front seat passenger in the vehicle, Erin Costello. Ms Costello suffered minor injuries in the collision and was taken to the Alfred Hospital for some treatment and later discharged.
6 Following the collision, both you and Ms Costello fled from the vehicle and were both apprehended by police a short distance thereafter.
7 Tragically, the other passenger, Rhys Tarrant, suffered fatal injuries and died at the scene. His cause of death was determined to be the result of the injuries he suffered in the collision.
8 Following apprehension by police, you refused to tell them the name of your deceased passenger. He was later identified that day through fingerprint analysis.
9 A significant aggravating feature of your offending was that you were prohibited from driving at the time of the collision. On 30 March 2017 at Frankston Magistrates’ Court, you were convicted of driving at a speed dangerous. You were sentenced to six months’ imprisonment, to be followed by a Community Correction Order of 18 months’ duration with special conditions. Your licence to drive was cancelled and you were disqualified from holding such licence for a period of 12 months effective from 30 March 2017. Therefore, this offending for which you are to be sentenced contravenes the terms of the Community Correction Order that had only been imposed on 30 March 2017.
10 The circumstances that gave rise to your conviction for driving at a speed dangerous on the occasion that was dealt with by the Frankston Magistrates' Court are disturbingly similar to those that led to the charges that are the subject of the present indictment and summary charge.
11 On Friday, 1 September 2016, at about 11.40pm, you were driving a Ute on White Road, Wonthaggi. There was a male passenger in your vehicle. Police were travelling west on White Road towards your vehicle in a 70 kilometre per hour zone. Your speed was recorded to be 87 kilometres per hour. Police increased the speed of their vehicle to attempt to intercept your vehicle. Your vehicle was then observed to increase its distance from the police vehicle during the time they were pursuing you in a residential area.
12 Police slowed their vehicle and observed you negotiating a right hand bend at which point you lost control, oversteering the vehicle into the bend across any potential oncoming traffic, impacting the square cut kerb on the right hand side of the road, in between a street light and a chevron street sign.
13 The impact spun the vehicle sideways, causing it to slide passenger side first, along the nature strip of the road for about a distance of 56 metres. The passenger side of the vehicle struck a “No Through Road” sign before colliding into the front fence of a Salvation Army building. Your vehicle came to a rest two metres from the brick wall of the church and the collision caused damage to both the front fence and the sign.
14 When police stopped their vehicle, you were observed running away from the scene and you were chased by police and eventually apprehended. At the time you were unlicensed and you had fled the scene in order to evade police.
Circumstances of the collision / October 2017
15 I turn now to the circumstances of the collision, the subject of the indictment. On 1 October 2017 you were driving a Mitsubishi Mirage blue hatchback sedan, owned by an associate, who had lent you his car the day before. You had told him falsely that you held a licence.
16 Govan Street is a two-way undivided road with no line markings at the collision scene. It runs generally in a North-South direction and terminates at the intersection of Bardia Avenue. The road surface was bitumen and was in good condition. The conditions at the time of the collision were good. It was a clear, warm night and the road surface was dry. The speed zone was the default 50 kilometres per hour for residential areas.
17 The impact with the pole was with driver’s side rear passenger area, causing severe intrusion into the cabin. On 5 October 2017, the vehicle was mechanically inspected and there were no faults found that could have caused or contributed to the collision.
18 Shortly before 1.00am, police members were working in a marked police divisional van in the Frankston area. The vehicle being driven by you was observed by that van. Thereafter, police followed you into the surrounding streets. Police noted that you took a strange route near a large intersection and so they continued to follow the vehicle travelling West along Overton Road. The vehicle turned right into Carder Avenue and police followed and activated the emergency warning lights to intercept the vehicle. You did not stop. You continued driving and turned right into Boonong Avenue and then left into Kirkwood Avenue. Police followed and sounded their siren briefly believing that you may not have seen the emergency lights. As you continued along Kirkwood Avenue, you were driving at about 40 to 50 kilometres per hour. Suddenly you accelerated significantly. Police followed you for a short distance until reaching the speed of 110 kilometres per hour.
19 You drove over a roundabout, travelled onto the incorrect side of the road around another roundabout and continued at speed. Police believed the driver was not going to stop so the emergency lights were turned off and the police vehicle was slowed.
20 You then continued travelling in your vehicle, driving North on Kirkwood Avenue. Kirkwood Avenue becomes Govan Street at the intersection of Moresby Avenue. Police lost sight of your vehicle as it travelled on Govan Street.
21 No pursuit was initiated or communicated over the police radio. Police slowed the police vehicle to reduce the risk of engaging in a pursuit with your vehicle.
22 Police continued driving along Govan Street towards the registered address of the owner of the Mitsubishi in Seaford with the purpose of wanting to speak with the owner.
23 Shortly before the intersection with Bardia Avenue, police observed the Mitsubishi had been involved in a collision. Police estimated the speed at the point of collision at a minimum of 74 kilometres per hour when you first lost control.
24 The Major Collision Investigation Unit attended the scene and Detective Sergeant Janelle Mehegan, a collision reconstruction expert, provided a statement following her examination of the scene and the evidence within the scene that opined as follows:
·The road curved to the right, 75 metres South-West of the intersection with Govan Street and Bardia Avenue.
·The critical curve speed for the right curve was 74 kilometres per hour, that is, a vehicle cannot negotiate the curve at a speed faster than 74 kilometres per hour without substantial risk of yaw. As the vehicle was negotiating the curve, the rear of the vehicle slid out to the left and the driver responded by over-correcting and steering the vehicle back to the left causing the vehicle to commence to yaw with the rear of the vehicle sliding back out to the right.
·The vehicle yawed across the road to the left whilst rotating anticlockwise, crossing the gutter and colliding with a utility pole on the North-West side of the road.
·After impact, the vehicle rotated clockwise back around the pole with the front of the vehicle colliding with a brick wall before coming to rest North of the pole facing South-West. When the driver first lost control, the vehicle was travelling at a minimum of 74 kilometres per hour.
25 Following your arrest, a blood sample was taken from you at 3.30am, which sample was later analysed and found to contain methylamphetamine at a concentration of 0.59mg/l and there was also presence of amphetamine at a concentration of 0.13mg/l.
26 Your counsel, Ms Lacy, informed the court that both you and your two passengers had used drugs, that is, smoked the drug known as Ice, at Ms Costello's place earlier in the evening and that the three of you were travelling towards McDonalds together at the time of the collision.
27 A medical opinion was obtained from Associate Professor Morris Odell, Senior Medical Physician at the Victorian Institute of Forensic Medicine, concerning the effects of the substances found in your blood on your ability to drive a motor vehicle. Associate Professor Odell opined that the circumstances of the collision suggest that you were in a stimulated state while driving before the collision. Methylamphetamine is a drug capable of rendering a person incapable of having proper control of a motor vehicle at the blood concentration found in your case.
28 You were interviewed by police but made a “no comment” interview.
29 Mr Noon, the objective features of your offending are serious and I consider having regard to the gravity of the offending that this offending falls within the more serious end of the spectrum for these types of serious offences.
30 Your driving was the sole cause of the death of your passenger, Rhys Tarrant. Driving, at speed, whilst under the influence of drugs and attempting to flee from police in order to evade apprehension, as well as driving whilst disqualified, are all aggravating features of this offending. Your driving on this occasion posed a serious risk, not only to yourself, but also to your passengers. I consider that community protection is important having regard to your deliberate and flagrant breach of road rules and dangerous driving and relevant past criminal history of driving offences. I consider your moral culpability to be high.
31 Both general deterrence and specific deterrence loom large in this sentence. The impact of your offending has had devastating consequences. I have had regard to the deceased’s mother Karen Tarrant’s Victim Impact Statement that was read out by the prosecutor at the plea hearing.
32 Rhys was her second child and she described him as being a happy easy-going personality who was loved and loving in nature. He was a very generous person who would help out anybody if he could. In fact, on this occasion he had helped you prior to the incident by assisting you to repair a motorbike. His mother was extremely upset by the fact that you fled from the vehicle and did not stay with her son, nor did you tell police about his identity. He was a well-loved son, brother, grandson, uncle, nephew and a father. His infant son, Theo, who is only aged two, no longer has a father. His partner, Alana, has been deprived of the loss of the love of her life.
33 Ms Tarrant was shocked by the hearing of the news of the death of her son and has suffered greatly ever since. She is deeply affected by her son's death and suffers his loss each day.
34 Ms Lacy, on your behalf, openly acknowledged that the deceased, Rhys Tarrant, was an enormously generous, fun-loving man who was a wonderful person and his death is a profound tragedy.
35 She said that you are deeply sorry for his death and the heartbreak that you have caused. You understand that there is nothing that you can do to make up for the loss of his life.
36 I have been told something of your own personal history and background. You are now 29. You are the second child to parents, Jackie and David Noon. Your father and elder sister, Rachael Hutchins, were present in Court at the plea hearing and your sister gave evidence during the plea.
37 I accept that your early family life was marred by conflict and violence until your parents separated when you were aged about ten.
38 Your mother has borderline personality disorder and in the past, she has exhibited behaviours that were aggressive and sometimes violent towards your father. Ultimately, he left the marriage because of the real issues he had coping.
39 Your sister, Rachael, described your father as being steady, dependable and fully supportive. Initially he obtained Family Court orders that provided that he would care for your day-to-day responsibilities and he looked after both you and your sister. You continued to have some limited contact with your mother following the separation.
40 Your sister described you as having a close relationship with her and she said as a child that you were well regarded and did not have any major behavioural issues.
41 There is an older half-sister who was born to your mother from a previous relationship.
42 I note there was a lot of disruption during your early schooling years. Your parents moved around a lot between Victoria, Queensland and New South Wales. Following separation, you attended Taylors Lakes Secondary College. There, you were the subject of some bullying. Your father worked nightshift so that you spent a lot of time at home together with your older sister, Rachael.
43 At some stage when you were about 15, you went to live with your mother who was then living in Gippsland and following that, your sister noted a dramatic change in your attitude and behaviour associated with you using drugs. She became aware that you were smoking cannabis but was not aware of your use of harder drugs.
44 In your early twenties, your father was able to assist you in obtaining work with Virgin Cargo. You were in a stable relationship and planning to marry. You enjoyed your job and had good relationships with both your father and sister.
45 Towards the end of your personal relationship, things soured when your then fiancée elected to have a termination of pregnancy. The relationship finished and she went to live in Queensland. You followed her in an attempt to rekindle the relationship and it did for a while but then broke down again following which you returned to Victoria to live with your mother and thereafter started using drugs heavily. It is of no coincidence that your criminal history commenced when you were aged 24, when you began indulging in drugs heavily.
46 You have a daughter, Ivy, who is young and she is the subject of a Department of Health and Human Services order and is currently being cared for by foster parents. When you were first imprisoned in 2016, your relationship with her mother broke down.
47 You have expressed a strong desire to continue to be a presence in your daughter's life. Following your release from gaol in May 2016, you attempted to negotiate with the Department in order to obtain day-to-day care of your daughter. There was some supervised access, but you became increasingly frustrated with the process over time and felt let down by the process.
48 There have been ongoing communications with the Department concerning your daughter and arrangements have been put in place whereby your father has agreed to make himself available to take her into the prison on a weekly basis so as to build up your relationship and he has expressed a willingness to cooperate with those arrangements.
49 Your sister is a police officer and gave evidence that in the past whenever you have been imprisoned she has not been able to visit. Notwithstanding that, she still maintained her strong support for you. Similarly, your father remains in contact with you whilst you have been in custody and remains supportive. Ultimately upon your eventual release they are both willing and able to provide you with emotional and physical support to assist you transitioning back into life in the community.
50 I have had regard to the contents of the report provided from Mr Ian McKinnon, who is a consultant psychologist, he interviewed you and provided a report dated 3 June 2018.
51 He considers that your functional intelligence falls within the normal adult range. You have normal general cognitive functioning and short and long term memories appear normal. He noted that you presented as being a sensitive person, highly anxious and fearful in the prison environment.
52 Associated with your chronic anxiety and depression, he says you suffer from Poly-Substance Abuse Disorder (“PSAD”) related to the use of methylamphetamine, sometimes in combination with other substances. That condition is currently in partial remission whilst in custody.
53 He considers that you do remain vulnerable to relapse into substance abuse upon your eventual release from prison. He notes that your condition is largely related to it being a means for you to self-medicate your chronic distress and loneliness and to fill the void left by a lack of stable and supportive family unit and your failure to develop any ongoing commitment to significant positive goals.
54 When you were interviewed by him, you expressed appropriate remorse for your role in the death of Rhys Tarrant and I quote what you told him:
“I feel very remorseful. Not only to Rhys, but to his family and friends as well. He was a friend to me. My intentions were never to harm anyone. We both fell victim to ice and the madness that goes with it. I live with it day in, day out. That I've taken a friend's life."
55 His opinion is that your longstanding Poly-Substance Abuse Disorder and mixed anxiety and depressed mood disorder would have contributed to the offences by degrading your ability to reason and make sound judgment, elevating your tendency to behave impulsively with little thought being given to the likely consequences of your actions, engendering a self-absorbed perspective and severely weakening your sense of adult and community responsibilities and obligations.
56 Ms Lacy on your behalf did not seek to rely upon the principles of Verdins, nor on the principles of Bugmy.
57 I have, however, taken into account your background history of childhood difficulties and drug abuse, as it does form part of the context of this offending and provides some explanation for the offending, but in no way excuses the offending.
58 Having regard to the evidence that I heard from Rachel, your sister, together with the ongoing strong support that both she and your father are prepared to provide you with in the future, together with your current expressed insight into the offending behaviour, I consider that there are reasonable prospects of rehabilitation in the future. That is, however, predicated on you dealing with your personal issues and in particular, your long-standing poly-substance abuse disorder.
59 You have undertaken numerous courses whilst in custody and have started to address your underlying offending behaviours. I noted you completed a six hour Alcohol and Drug and Loss program as well as a Managing Worrying program, Managing Loss program, in addition to numerous training and employment-related certificates.
60 In formulating the appropriate sentence, I have to have regard to the objective seriousness of the offending, as well as all the matters put in mitigation. I accept that the plea of guilty was entered at the earliest opportunity following committal mention. The plea is one of real utility. You have spared the State the expense of a trial and avoided any further trauma through witnesses having to give evidence concerning the circumstances of the crimes. You have facilitated justice and your sentence will be discounted accordingly.
61 I accept that the plea is evidence of some remorse and that is further reflected in your expression of remorse, particularly to the psychologist. Mr McKinnon. I am satisfied that the tragic consequences of your conduct have been brought home to you such that the need to emphasise specific deterrence is reduced to a modest extent. Nevertheless, general deterrence is a very strong sentencing consideration in cases of this sort, as well as the provision of the protection of the community.
62 On your behalf, it was accepted that an immediate term of imprisonment with a non-parole period was warranted as an appropriate disposition.
63 Ms Lacy sought that the sentence not be crushing.
64 Mr Bourke, on behalf of the prosecution, submitted that this is a serious example of these serious types of offences and that the offending falls at the serious end of the spectrum for these sorts of offences.
65 In respect to the charges, he highlighted the aggravating features; that is, that you were evading police, driving erratically, disqualified from driving at the time of the offending and your immediate response following the collision was to flee and that your primary priority was one of self-preservation and to avoid arrest and you failed to render assistance to the deceased. Added to that, you were driving whilst affected by drugs.
66 Furthermore, you have a relevant and significant past history of drug-related offending and driving at a speed dangerous in not dissimilar circumstances. He submitted your moral culpability was high. All of those submissions have been accepted by the court.
67 A further aggravating feature of the offending was that this offending contravened the Community Correction Order that was imposed for similar offending. He submitted that a gaol term of some significance was warranted.
68 In formulating the appropriate sentence, I must impose just punishment. I must have regard to the principles of totality and avoid a crushing sentence. I have had regard to your relative youth, your early plea of guilty, your expressions of remorse and your remorse generally, the steps you have taken towards your rehabilitation whilst in custody. I have had regard to the significant weight to be given in this sentence to deterrence and also on behalf of the community I must denounce your behaviour and provide for community protection. There will be a degree of cumulation between the respective charges to reflect the different criminality involved in each instance. I will now make the formal orders, so I ask that you please stand, Mr Noon?
69 I make the following orders:
70 Charge 1, culpable driving causing death, you will be convicted and sentenced to nine years’ imprisonment. This is the base sentence.
71 Charge 2, fail to render assistance after a motor vehicle accident, you will be convicted and sentenced to four years’ imprisonment.
72 Charge 3, reckless conduct endangering life, you will be convicted and sentenced to four years’ imprisonment.
73 I make the following orders for cumulation: One year on Charge 2 and two years on Charge 3 are cumulative upon each other and upon the sentence imposed on Charge 1, making a total effective sentence of 12 years’ imprisonment and I fix a non-parole period of eight years. In respect to summary Charge 6, drive whilst disqualified, you are convicted and sentenced to three months’ imprisonment.
74 In respect to Charge 1, culpable driving, that is defined as a serious motor vehicle offence under s87P(c) of the Sentencing Act 1991. Section 89(1)(c) of the Act requires a Court, where the person is not the holder of a licence, to disqualify that person. Section 89(2)(b) of the Act requires a period of disqualification that is not less than 24 months and s. 89C states that a Court may make a finding that the offence was committed while the offender was under the influence of a drug which contributed to the offence. In all the circumstances of this offending, I make such a finding.
75 Therefore, in respect to Charge 1, all licences that you hold are cancelled and you are disqualified from holding a licence for a period of ten years pursuant to s89(1) of the Sentencing Act 1991 effective from today's date.
76 I make the following declaration of pre‑sentence detention. I declare that there are 268 days pre‑sentence detention and direct that that be entered into the records of the Court.
77 I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a term of imprisonment of 15 years, to serve 11 years' imprisonment. That concludes my sentencing remarks.
78 MS McLEOD: As Your Honour pleases.
79 MS LACY: Your Honour pleases.
80 HER HONOUR: Thank you. Mr Noon, please take him back downstairs? We can adjourn the court.
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