Director of Public Prosecutions v Parachoniak

[2016] VCC 1895

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02043

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLE LOUISE PARACHONIAK

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Wangaratta and Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 December 2016
CASE MAY BE CITED AS:	DPP v Parachoniak
MEDIUM NEUTRAL CITATION:	[2016] VCC 1895

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Grant	Lachlan Cameron, Office of Public Prosecutions
For the Offender	Mr C.T. Farrington	Nicole Menegas, Patrick W Dwyer

HIS HONOUR: 

1You, Nicole Louise Parachoniak, have been convicted after trial of one count of culpable driving, one count of negligently causing serious injury and two counts of reckless conduct endangering life.  Various maxima are set out in the documents before me and in addition I am informed that as a consequence of your conviction, your licence must be cancelled for a minimum of 24 months.  That is the case, is it not, Mr Grant?

2MR GRANT:  Yes, Your Honour.

3HIS HONOUR:  With respect to the matters that were set out at trial and in respect of which the jury returned guilty verdicts, I have relied upon the various materials which have been collected and set out in Exhibit A. I have been assisted in that regard by the amended summary of prosecution opening which was dated 22 September 2016, noting of course that the matters that were opened did not include the matters that were set out in red and underlined and accordingly not relied upon. 

4There are a number of victim impact statements tendered and marked as exhibits in this matter.  A number of persons sought to read their statements to the court whilst others have chosen to tender their statements.  An additional victim sought to have Mr Grant, the prosecutor, read the statement on their behalf.  It is clear that each of the victims has suffered and will continue to suffer from this devastating loss for a significant period into the future.  No words of mine will diminish the pain they feel and all that can be hoped for, I suspect, is that in time everybody will find a way to move forward from these dreadful circumstances.

5As was pointed out by your counsel, there are of course, some mitigating factors.  The issue of remorse was one that was canvassed in some detail.  The prosecution submitted the way the trial was run revealed a lack of remorse.  Defence counsel submitted that remorse was revealed in a number of ways.  Instancing the fact you had expressed your remorse to the author of the psychological report and a number of other persons, in particular, those who provided various character references.  Further, there are the two letters which you sent to the court and also which you put forward as being a letter you asked to be provided to the family of Ms Barrass if the family wished to receive that document and they are marked as Exhibit 4.

6In the circumstances, I do find the matters raised by Mr Farrington in his submissions, Exhibit 1, at paragraphs 4.18-4.25 are expressions of appropriate remorse. 

7I have been told a significant amount about your personal history and your circumstances.  You are currently aged 20, having been born on 28 November 1995 and at the time of the collision, you were aged 18.  You are the younger of two children; you have an older sister who is 23.  Your parents separated when you were aged four.  You had no relationship with your father until you were aged 15 and at that time, you reconciled with him.  Apparently your father has had a long term addiction to heroin and this has been the cause of a great number of difficulties within your family.  Very sadly, he recently suffered a cerebral artery aneurism and that has caused him to spend many months in hospital initially in intensive care and subsequently in recovery.  I understand his prior convictions relating to his use of heroin have meant that he was unable to visit you whilst you have been on remand. 

8You were educated to year 11 and subsequently obtained employment in Shepparton in local cafes or the like.  Recently, apparently you moved to Melbourne and commenced a diploma of specialist make-up services through the National Academy of Beauty and you were funding your enrolment in that course by working at a store in Essendon.  You are also in receipt of a youth allowance.  You have no criminal history and clearly from the various character references tendered on your behalf, your friends and family think well of you. 

9I note and accept the submissions made on your behalf that you are to be sentenced as a youthful offender and accordingly benefit from the statements made in the Court of Appeal in the case of Mills with respect to the sentencing of young offenders.  I accept that in the circumstances your youth is of primary consideration and that matters of rehabilitation loom large in your sentence.

10It has been brought to my attention that whilst you have been remanded in custody awaiting your sentence, you have experienced bullying at the hands of older prisoners including being stood over for various matters concerning your food and medication and in addition to that, because of the circumstances regarding your father which I have already averted to, you have had only limited access to your family who of course reside in Shepparton.  I have no doubt that those matters in combination with the matters referred to by Ms Cidoni in her report will make life in prison for you difficult; more difficult in fact for the average prisoner.

11Exhibit 2 and Exhibit 2A are reports by consultant psychologist, Ms Cidoni, dated 12 August 2016 and 21 October 2016 and I should note that of course Mr Cidoni over many years has provided reports to the court and indeed to other courts and her experience and insight are greatly valued. 

12After recounting your background and in particular highlighting the ordeals you have had to confront since the death of your friend, she administered some psychological tests and noted the results as follows, and I quote, "Intellectual testing was indicative of borderline capacity with a full scale IQ of 77 placing her at the 6th percentile where 94 per cent of her age-related peers would perform better.  Her performance in verbal comprehension returned a composite score of 76, also borderline, where 95 per cent of people her age would do better.  At 82, her perceptual reasoning score was of below average capacity, where 88 per cent would perform better.  Working memory was borderline at 77 at the 6th percentile.  Processing speed was average at 92 on the 30th percentile whereas 70 per cent of her peers would do better.  Her profile revealed significant distress and disturbance with chronic depression, dysphoria, low energy levels, self-blame, feelings of worthlessness, helplessness and sleep difficulties.  She reported suicidal ideation and thoughts of self-harm but had no current plan.  She is pessimistic about the future and about the likelihood of overcoming her problems.  Self-depreciation and guilt feelings were expressed.  She is insecure and shows a marked lack of self-confidence with feelings of uselessness and she gives up easily when stressed.  She endorsed items indicative of marked social withdrawal and she feels insecure and socially uncomfortable". 

13I will not read from those materials any further but it is clear that you do not have great coping mechanisms and further, in the view of Ms Cidoni, and here I quote a different part of her report, you operate 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 and there is often poor impulse control and difficulty weighing up options and connecting actions and consequences.  Her mental health is reduced and where depression and social difficulties appear chronic in nature and exist before the traumatic events of January 2014.  Depression is severe and she has suicidal thoughts.  Anxiety was present with symptoms of 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.  Her mental health was likely compromised by her early childhood experiences, namely her father's rather public heroin problem and ongoing bullying at school.  She developed social difficulties and the need for acceptance.  She made attempts on her life at age 17 and after the events of January 2014, describing some symptoms consistent with major depressive episodes.  She is a very fragile young woman at grave risk to herself.  She is in need of urgent mental health assistance". 

14In the follow up report which was tendered, Ms Cidoni interviewed you after you had been on remand for ten days.  She noted at that time, you had been in contact with your parents by telephone but had no contact with a doctor or mental health worker at that time.  It was her opinion that you presented with acute symptoms of anxiety and depressed mood and you reported thoughts of death and dying but reported no suicidal plan at the time.  Ms Cidoni was concerned about further deterioration of your mental health in your environment where access to services and supports are very limited.  She notes you present as very naive and younger than your 20 years and as she finds incarceration in an adult prison places you at an increased risk of emotional and behavioural deterioration and you will suffer discrimination and stigmatisation where you are vulnerable to abuse by other prisoners. 

15In conclusion, she says, and again I quote, "She may be at risk of acute mental harm due to possessing fewer resources with which to cope in an environment that is lacking in privacy, is often tense and sometimes violent".

16I accept the submissions made on your behalf by Mr Farrington that your mental health is such that it warrants a reduction in your sentence in accordance with the fifth and sixth principles as explained in the case of Verdins.  Your mental health is such that a sentence of imprisonment will weigh more heavily with you than it would a person of normal resolve and also there is a serious risk that your imprisonment will have a significant adverse effect on your mental health. 

17I am on balance satisfied the changes of your rehabilitation are reasonably good given the circumstances in which this crime was committed and your age and your then circumstances.  I have no doubt that as a result of what you describe in your letter to the court and what has been observed by Ms Cidoni, it is extremely unlikely that you would ever offend in such a way again.  Of course as well as those matters personal to you to which I have referred including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence which is always of significance in a case such as this involving, as it does, young people driving at speed at night with little or no relevant driving experience. 

18I do bear in mind of course that there has been a significant delay in this matter coming before me and that that delay has not been a matter for which you are responsible.  You have in the time that has passed, utilised as best you can the opportunity to effect your rehabilitation and further I have no doubt that you have been vulnerable and anxious about the inevitable gaol sentence in the event the jury convicted you of these offences.  Of course you are not to be punished for pleading not guilty.

19I of course bear in mind that the passing of that time certainly had a serious and adverse effect on the member of Amy's family as well.  Nevertheless, as directed by the sentencing authorities, these are matters which are to be taken into account in your favour and I will do so.  That is, the issue of delay. 

20Mr Grant who prosecuted the matter at trial provided helpful prosecution submissions in sentence and I note in particular the submissions on the offences of culpable driving, negligently causing serious injury and reckless conduct endangering life.  As to the aggravating features, I accept in the circumstances that the features of aggravation were firstly that you had only obtained your learner's permit 16 days prior to the collision; you chose to drive without an experienced driver beside you; that you had four other young persons in the car with you and that you were driving at speed whilst not wearing your prescription spectacles although, bear in mind, the evidence of the expert, Dr Reece, that the spectacles that you were apparently wearing were appropriate to the circumstances.

21There is an application for a 464ZF order and that is not opposed, Mr Farrington?

22MR FARRINGTON:  No, Your Honour.

23HIS HONOUR:  Application was made for an intimate forensic sample to be taken from you and there is no objection to this.  I am satisfied it is in the interests of justice, having regard to the seriousness of the offending that in all the circumstances, I order an intimate forensic sample, namely saliva be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mother and although you have consented, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.  I will sign those orders.

24If you would stand please, Ms Parachoniak.  These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences and you are convicted and sentenced as follows:

25On Charge 1; five years' imprisonment.

26On Charge 2; two years' imprisonment.

27On Charge 3; one year imprisonment.

28On Charge 4; one year imprisonment.

29I direct that Charge 1 be the head sentence and I direct that six months of Charge 2 and three months on each of Charges 3 and 4 be served cumulatively upon the sentence imposed on Charge 1 and on each other.  That results in a total effective sentence of six years' imprisonment and I direct that you serve a minimum term of four years before becoming eligible for parole.  As prescribed by the Sentencing Act, I declare that the period of time you have spent in custody is 58 days and I direct that such be noted in the records of the court. 

30I am required as a result of these matters to cancel your licence and I do so for a period of three years.

31Is there anything further, gentlemen?  Be seated please, Ms Parachoniak.

32MR GRANT:  Your Honour, just in relation to that last order, it is probably overly technical, I think the order, in my submission, should be that Ms Parachoniak's licence be cancelled and she be disqualified for three years, Your Honour.

33HIS HONOUR:  Yes.  All right.  In those circumstances, your licence is cancelled and you are disqualified from obtaining one for a period of three years.

34MR GRANT: If Your Honour pleases.

35MR FARRINGTON:  If Your Honour pleases.

36HIS HONOUR:  I think I have misnumbered the actual numbers of the charges.  I am reminded that the numbers on the actual indictment were Charges 1, 3, 6 and 7 respectively but I think that will be so.  One is one, obviously, three I have numbered as two, six I have misnumbered as three and seven I have misnumbered as four.  All right, that is sufficiently clear in the circumstances?

37MR GRANT:  Indeed, Your Honour.

38MR FARRINGTON:  Yes, Your Honour.

39HIS HONOUR:  Thank you.  Ms Parachoniak, if you would please go with the officer.  Thank you.  I will adjourn.

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