Director of Public Prosecutions v Parachoniak

[2018] VCC 1118

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-17-02234

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLE PARACHONIAK

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JUDGE:	HIS HONOUR JUDGE C. RYAN
WHERE HELD:	Shepparton
DATE OF HEARING:	1 May 2018
DATE OF SENTENCE:	20 July 2018
CASE MAY BE CITED AS:	DPP v Parachoniak
MEDIUM NEUTRAL CITATION:	[2018] VCC 1118

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Dangerous driving causing death – Dangerous driving causing serious injury – Conduct endangering person – Plea of guilty.

Legislation Cited:     Sentencing Act 1991; Road Safety Act 1986.
Cases Cited:            Green v R [2011] 244 CLR 462; R v Kong (2013) 115 SASR 425.

Sentence:392 days imprisonment with a Community Correction Order of 4 years with conditions; Cancel and disqualified any licence or permits for 2 years; 392 days pre-sentence detention; Forensic sample order; Section 6AAA declaration: 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Offender	Mr C. Farrington	Patrick W. Dwyer

1HIS HONOUR:  Nicole Parachoniak, on Tuesday 1 May 2018 you pleaded guilty to indictment E14144488.1 containing four charges being:  dangerous driving causing death (Charge 1); dangerous driving causing serious injury (Charge 2); and conduct endangering persons (Charges 3 & 4).  The maximum penalty for dangerous driving causing death is ten years' imprisonment, while the maximum penalty for dangerous driving causing serious injury and reckless conduct endangering serious injury is five years' imprisonment.

2Before turning to the facts which found the charges on the indictment, it is appropriate to refer to the chronology of these proceedings:

·The date of your offending was 23 January 2014 and, at the time you were 18 years of age. 

·On 9 December 2014, you were charged with culpable driving causing death and its alternative, dangerous driving causing death, negligently causing serious injury and an alternative of dangerous driving causing serious injury and reckless conduct endangering life in respect to the occupants of the motor vehicle that you drove on 23 January 2014.

·On 5 August 2015, you were committed to stand trial. 

·On 19 September 2016, your trial commenced in Wangaratta before his Honour Judge Parsons. 

·On 11 October 2016, a jury returned verdicts of guilty on charges of culpable driving causing death, negligently causing serious injury, and reckless conduct endangering life in respect to the occupants of the motor vehicle that you drove.  You were remanded in custody.

·On 18 November 2016, a plea in mitigation was conducted, which was part-heard until 24 November 2016. 

·On 7 December 2016, you were sentenced to a total effective sentence of six years' imprisonment with a non-parole period of four years. 

·On 17 May 2017, an application for leave to appeal against conviction was granted by Justice of Appeal Priest.

·On 1 November 2017, your appeal was heard and granted, and your convictions were quashed, and a retrial was ordered. 

·On 6 November 2017, you were granted bail, and have remained on bail since that time. 

3It is of note that the charges to which you have pleaded guilty are markedly different to those to which you stood trial.  In particular, I was informed that the charges to which you pleaded guilty before me were charges that you were prepared to plead guilty to on or before the time of your committal proceedings.

4Accordingly, I regard your plea as being an early one, and, accordingly, you are entitled to the benefits that flow to you from your plea; namely its utilitarian benefit and that it is evidence of your remorse. 

5Tendered as Exhibit A on the plea, and read aloud in court, was the summary of prosecution opening.  On 23 January 2014 at around 3.20am on Ferguson Road, Mooroopna, a single vehicle collision occurred when you lost control of the car that you were driving.  You were an inexperienced driver, having had a learner permit issued to you only 16 days prior to the collision.

6At the time of the collision, you were driving at a speed of at least 87 kilometres per hour on a roadway that permitted speed up to but not in excess of 90 kilometres per hour.  You were not wearing your own prescription glasses.  However, immediately prior to the collision, one of the occupants of your car filmed you by use of her mobile phone, and you can be seen in the recording wearing the glasses of your friend, the deceased, Amy Louise Barrass.

7It was accepted by the parties, based on the evidence called at your trial, that should you have been wearing Ms Barrass' glasses at the time of the collision, then you would have passed the legal requirement for driving. 

8The collision occurred because you pulled the steering wheel of the car back and forth causing the car to swerve violently, and ultimately you lost control of the vehicle.  Your car - I beg your pardon - the car yawed and travelled out of control, and slid into a table drain and collided with a tree, rolled, and landed on its roof.

9Your passengers were Amy Louise Barrass, who died as a result of the collision.  She was aged 18 years.  Shukura Bisimwa, the owner of the motor vehicle involved in the collision, was also aged 18 years, and he suffered serious injury as a result of the collision, being:  a broken jaw; a CT - I beg your pardon - a C2 cervical spine injury; and a broken right mandible.  As a result of his injuries, he was required to wear a "halo" device for a number of months.  The remaining passengers who suffered minor injuries were Trey Ronnan, aged 14, and Sunday Naylor, who was also - who was aged 15 years.  It is to be noted that Mr Bisimwa was not licensed to drive a motor vehicle.

10The circumstances leading up to the collision can be briefly described.  

11Mr Bisimwa left work at a local farm and drove the vehicle involved in the collision and met up with friends in town.  He and two male friends drove around various locations in Shepparton and ultimately ended up at a place known as "the shed".  Contemporaneously, you, together with Ms Barrass, were out driving in Ms Barrass' car and you eventually met up with Mr Bisimwa.

12Prior to going out driving, Ms Barrass had been at home in her pyjamas, and her mother left to go to work in the expectation that shortly thereafter Ms Barrass would go to bed.  However, there was contact between you and Ms Barrass, and together you went out driving. 

13You were picked up by Mr Bisimwa and his friends, and thereafter the group drove around in Mr Bisimwa's car, taking turns in driving.  You told Mr Bisimwa that you held a probationary driver licence.  As Mr Bisimwa was himself unlicensed, in my view nothing arises out of this fact.

14Ultimately, at about 3.15 am, you were driving Mr Bisimwa's car with Mr Ronnan in the front passenger seat, Ms Barrass in the left rear passenger seat, Mr Bisimwa in the right rear passenger seat, and Ms Naylor seated in the rear between them, when the collision occurred. 

15Immediately after the collision, you got out of the car and made your way to a nearby property and emergency services were summoned to the scene.  Whilst at the scene, you spoke to a number of police officers and told them that you were travelling between 80 and 100 kilometres per hour before the collision and that either something had hit a tyre or you had to swerve to avoid hitting something on the roadway, thus bringing about the collision.  Each of these versions were contrary to fact.

16Tendered as Exhibit B on the plea were a number of victim impact statements from the parents and siblings of Amy Barrass, as well as some of her friends.  By causing the death of Amy Barrass, you have caused inconsolable grief to the Barrass family.  You have caused grief and sorrow to Amy Barrass' closest friends.  It is now over four years since the happening of the collision, and the Barrass family appear to me presently to be in the same emotional state as at the date of their daughter and sister's death.  They fear, as do I, that this will remain their emotional state for the rest of their lives.

17The other occupants of the car did not provide victim impact statements to the court. 

18Tendered as Exhibit C was a booklet of photographs relied upon at the trial, which sets out the path of the vehicle that you drove from the point where you lost control until it came to rest on its roof. 

19Conduct of the kind that you engaged in, namely driving around Shepparton with other young people, is a common occurrence within rural communities in Victoria.  It is also a common occurrence that young people lose their lives as a result of driving of the kind that you engaged in on that fatal morning.

20At the time of your offending, you were aged 18 years.  You are now aged 22 years.  You have no prior convictions and no subsequent convictions.  As a result of the conviction that was overturned by the Court of Appeal, you served 13 months' imprisonment at the Dame Phyllis Frost Centre.  At the time of your offending, you were a young offender within the terms of the Sentencing Act 1991. You are still to be regarded as a youthful offender for the purposes of sentencing, and your rehabilitation is an important consideration in the exercise of my sentencing discretion.

21Tendered as Exhibit 2 on the plea were a number of reports from Ms Cidoni, consultant psychologist, dated 12 August 2016, 21 October 2016, 23 November 2016, and 8 January 2018.  In her first report, Ms Cidoni gave a brief summary of your personal background, which I will repeat.

22Your parents separated when you were four years of age.  You have one sister, who is some years older than you.  Your mother lives in Shepparton, and she is in a relationship with her partner, who presently lives with her, but for your formative years they lived apart.  You instructed Ms Cidoni that your mother's partner has made no effort to accept you or your sister and that you have never formed a bond with him.  Your mother is a childcare worker.  Your father has been a long-term heroin user and you have had no real contact with him after your parents' separation until you were aged about 15 years.

23You reported to Ms Cidoni that you have always experienced ongoing difficulties forming and maintaining friendships.  You suffered loss at an early age when two of your friends committed suicide when you were aged 16 and 17 years. 

24After the commission of the instant offences, you were the subject of some hostility from people within the Shepparton area.  You moved to St Kilda into a share house for some months by way of respite, and then retreated to your father's farm outside Shepparton, where you lived as a recluse.  In March 2016, you moved to Essendon because you felt you had no option but to leave Shepparton.

25Well prior to the collision, you had attempted to take your own life on two occasions:  one by an overdose of prescription pills, and on another occasion by attempting to hang yourself.  On the last occasion, whilst hospitalised, you consulted your general practitioner and you were prescribed antidepressants for a time.  To my mind, you plainly have serious psychological issues that will take time to resolve.

26At a more basic level, you attended St Mel's Primary School and Notre Dame College and completed Year 11.  You reported having no learning difficulties but had difficulties with friendships and fitting in because of bullying as a result of your father's long standing addiction to heroin that was well known within your school community.  After leaving school, you worked for a time in a sandwich shop and at a hotel as a barmaid/waitress.

27More importantly, during your initial consultation with Ms Cidoni, she conducted a number of tests on you, which in general terms resulted in an outcome that you have, in terms of intellect, borderline capacity with a full IQ of 77, placing you in the sixth percentile, meaning that 94 per cent of your age-related peers would perform better. 

28As a result of her consultation and testing of you, Ms Cidoni opined:

"She presents as a reduced young woman, operating at a borderline level of intelligence, where 94 per cent of her age-related peers would fare better.  In real terms, this means she is challenged in areas of judgment, decision making and problem solving.  Implications include difficulties with communication, in understanding and expressing ideas, struggling to adapt to new or unfamiliar situations and difficulty in planning ahead.  There is often poor impulse control and difficulty weighing up options and connecting actions and consequences.  Her mental health is reduced where depression and social difficulties appear chronic in nature, and existing before the traumatic events of January 2014.  Depression is severe, and she has suicidal thoughts.  Anxiety was present with symptoms of post-traumatic stress disorder, PTSD, and with a legacy of maladaptive coping and reduced psychological resources in the face of problems and stressors.  Acute distress related to her circumstances was evident."

29Ms Cidoni consulted with you some 10 days after you had been remanded in custody at the Dame Phyllis Frost Centre.  Understandably, you presented with acute symptoms of anxiety and depressed mood in response to your remand.  You were uneasy and fearful in your surroundings.  At that time, Ms Cidoni was concerned about further deterioration in your mental health in your then current environment.

30Approximately a month later, in her report dated 23 November 2016, Ms Cidoni noted that as a result of your IQ, your conduct at times can seem odd or even incongruent in view of the circumstances that surround you, and that those actions are not necessarily within your control and do not reflect how you feel about the offending or its consequences.

31This is of particular relevance when one views the victim impact statements and your initial conduct whilst in hospital and immediately thereafter which, on its face, exhibits an indifference to the consequences of your actions, both on your immediate victims and the family of Amy Barrass.

32Whilst living in Essendon prior to your trial, you had employment at a Taco Bill Restaurant in Essendon and you had undertaken a course in beauty therapy.  You told Ms Cidoni, during her consultation with you in January of this year, that you were hoping to return to Essendon and resume your course and employment.  More importantly, Ms Cidoni opined that your time in prison has impacted negatively upon your mental health.

33In light of the contents of each of Ms Cidoni's reports, I am satisfied that should you be returned to a custodial environment that this would adversely affect your mental health.  Further, your moral culpability is reduced because of your limited intellect that affects your ability to exercise appropriate judgement.  

34At the end of proceedings, I ordered a comprehensive Community Correction Order assessment in respect of you.  Despite your lack of prior convictions and absent any subsequent offending, you were assessed as a "medium risk offender".  I am unable to agree with this assessment, as your conduct since being charged has demonstrated to my satisfaction that your prospects for rehabilitation as good.  The assessor found you suitable for a community correction order with conditions.  It was noted in the report that prior to your move to Essendon, you had consulted a psychologist, Joseph Matthews, and in Melbourne you consulted with Ms Cidoni.  Further, you told the assessor that you were prescribed Lexapro for your depression and anxiety.

35Since May, your father's health has deteriorated with his increased use of heroin.  He has gone missing from time to time and has been found in the Royal Melbourne Hospital, having overdosed.  As at the last appearance he was in hospital in Shepparton, and you visited him daily. 

36You have stable accommodation, living with your mother.  You have a stable relationship of some five or six months' duration with a boyfriend who is supportive of you.  You have no history of drug or alcohol abuse.  You have engaged the services of a psychologist and consult with him on a weekly basis. 

37You are currently unemployed.  However, having undertaken some further education and training while living in Essendon prior to your trial, you have more recently expressed a desire for further study in the area of community services, and you hope to work in the future with disabled and troubled children.

38At the time of your offending, you were a young offender.  Whilst awaiting trial, you did not further offend.  You offered to plead guilty to the offences to which I must sentence you at or prior to your committal.  This offer was rejected by the Crown.  Your conviction on the more serious offences upon which you were tried were overturned upon appeal, but in the interim, you spent 13 months in prison.  Since being granted bail, you have experienced eight months of trouble-free freedom.  You are still a young person and I must look to your rehabilitation.

39The effect on a person whose liberty is at risk for a certain time - I beg your pardon - for a second time, arising out of the appeal process, is well understood; being the effect on your progress to rehabilitation, the harshness of sentencing a person to custody for a second time, particularly when, like you, you have taken significant steps to rebuild their lives.  (See Green v R [2011] 244 CLR 462 at [43] and R v Kong (2013) 115 SASR 425 at [102].)

40You offered to plead guilty to the instant offences at an early stage. 

41You are a person of limited intellect and your responses to the predicament in which you found yourself were incongruent and consistent with indifference but with your limited intelligence. 

42Your psychological state includes depression, anxiety and some symptoms of post-traumatic stress disorder, which will deteriorate if you are returned to a custodial setting.

43Further, you have experienced eight months of freedom with the aid of psychological assistance and your mother's support.  You have stable accommodation with your mother and try to support your father, while looking hopefully to the future.  You have been assessed as suitable for a Community Correction Order.

44Your offending is serious.  It calls for a custodial disposition, however it was committed when you were but 18 years of age.  You are now 22 years old.  I am satisfied that the time that you spent in prison has proved a salutary lesson to you.  Further, the history of this matter is long and complex. 

45Will you please stand.  By this sentence, I must publicly denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must look to your rehabilitation.

46Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:  in respect to all offences, I sentence you to an aggregate sentence of imprisonment of 392 days, together with a community correction order for a period of four years with conditions, namely:

(i)    you perform 400 hours of unpaid community work;

(ii)   you be supervised by the Secretary of the Department or his delegate;

(iii)  you undertake mental health assessment and treatment, and;

(iv)  you undertake programs directed at reducing your risk of reoffending. 

47Are you prepared to enter into such an undertaking?

48OFFENDER:  Yes, Your Honour.

49HIS HONOUR:  I declare that you have spent 392 days by way of pre-sentence detention. 

50Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to four years' imprisonment with a non‑parole period of two years' imprisonment.

51I cancel any licences or permits held under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of two years. And this order takes effect from 7 December 2016; that is the date of Judge Parsons' original sentence.

52The end result of my sentence is this:  that you will not be returned to prison.  You have spent 392 days in prison; I have sentenced you to 392 days in prison, and I have declared that 392 days as pre-sentence detention.  You will, if you consent, be subject to a community correction order for a period of four years with conditions.  Do you understand?

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  Would you take the orders to the prisoner, please.  All right.  The terms of the Community Correction Orders are as follows.  It commences today and lasts for a period of four years.  You are to attend at the Shepparton Community Correction Services at 307-331 Wyndham Street, Shepparton, within two clear working days after the commencement of this order, and that commences today.  There are mandatory conditions pursuant to statute, which are set out in this form, and you will be provided with a copy of it.

55The conditions that apply in addition to the mandatory terms are:  you must perform 400 hours of unpaid community work over a period of four years, as directed by the regional manager; you must be under the supervision of a community correction officer for a period of four years; you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, as directed by the regional manager; you must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager.

56Now, the Crown have made application for what is - and the Crown can do a lot better than preparing orders that have got "TBC" written on them - the Crown have made application for what is known as a "forensic sample".  That is, in this case, the taking of a buccal swab.  Have you sought instructions in respect to this application?

57MS MENEGAS:  I unfortunately have not, Your Honour.  I am not sure if ‑ ‑ ‑

58HIS HONOUR:  Then please seek instructions.

59MS MENEGAS:  Thank you, Your Honour.  Thank you, Your Honour, the application is not opposed.

60HIS HONOUR:  Now, this order is an order based on you being released immediately after the completion of these proceedings, which you will be.  Indeed, you may come out of the dock now and sit behind your counsel.  Come and sit behind your barrister.  Now, the order is expressed in unusual terms.  I am granting the order on the basis of the seriousness of the circumstances of the offences warrant the order, the order was not opposed, and the granting of the order is in the public interest.

61The obligation upon you is in the following terms.  After 28 days from today have passed, you have a four-week window of opportunity to attend at the Shepparton police station, located at 155 Welsford Road, Shepparton, for the purposes of a buccal swab being taken; that is, a mouth scraping.  I must advise you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable the forensic procedure to be conducted.

62All right.  Only one copy of the document provided to me; if you can photostat it and provide it to the Crown.  In respect to the community correction order, if you would photostat that and provide a copy to the Crown, defence counsel, and one for Ms Parachoniak, please.  Now, Ms Parachoniak, would you please stand up.  You have been placed on a community correction order for four years.  If you breach that community correction order, you come back to me, and I have the ability to resentence you.  I advise you not to come back to me.

63OFFENDER:  Yes, Your Honour.

64HIS HONOUR:  The second thing is this:  I have disqualified you from obtaining any license or permit to drive for two years, commencing on 7 December 2016.  That means between now and the sixth day of December of this year, you may not get behind the wheel of a car.  Do you understand?

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  If you do, you commit a criminal offence.  You will breach this community correction order, and you will come back to me.  And bearing in mind the nature of the offences to which you have pleaded guilty and now been sentenced, if you come back to me, having been found behind the wheel of a car and I have disqualified you from that, your liberty will be at risk.

67OFFENDER:  Yes, Your Honour.

68HIS HONOUR:  All right.  Do you understand?

69OFFENDER:  Yes, Your Honour.

70HIS HONOUR:  I am sure your counsel will explain it to you.  I hope for your sake that you complete this order and that I do not see you again.  Or, if I do, it is in more pleasant circumstances.

71MS MENEGAS:  As the court pleases.

72OFFENDER:  Thank you, Your Honour.

73HIS HONOUR:  I will stand down until the trial is ready.

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