Director of Public Prosecutions v Pepper

[2015] VCC 948

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

AT GEELONG
CRIMINAL JURISDICTION

CR-15-00600

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM JOHN PEPPER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	4 June 2015
DATE OF SENTENCE:	6 July 2015
CASE MAY BE CITED AS:	DPP v Pepper
MEDIUM NEUTRAL CITATION:	[2015] VCC 948

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Offender	Mr T. Fitzpatrick	NWA Legal

HIS HONOUR: 

1Once again the combination of a young driver showing off, peer pressure and wildly excessive speed have resulted in real tragedy befalling all those involved.  The lives of four young men, all with great potential, have been gravely affected.

2Three young men were all seriously injured when a speeding car collided with a lamppost.  It was all so totally unnecessary.

3You, as the driver, Liam Pepper, fortunately suffered no physical injury, but I have no doubt that you too have suffered, and will continue to suffer because you must live with the consequences of your crime.

4As is sadly always the case, the dreadful impact is wide-reaching.  The families and friends of the injured continue to suffer as they see the young men unable to fully flourish into vibrant, active adults.  I will return to the injuries and the impact of them on each of the victims in due course.

5As I have indicated, for those involved, their families and friends, there has been great sadness from the moment of the collision and all will live with the consequences, lifelong, or at least for many years to come.

6But now is the time when you, Liam Pepper, must be punished for your conduct.  Because of that I must make clear to you and to the community the reasons for the punishment I am about to impose.

7It is never easy to get things right in cases like this, because you, like so many in your situation, are otherwise a decent young man who is profoundly sorry for the tragic mistake that you made.  I will do my best to get it right and be just to all, but I know nothing I do, will return things to the way they were before this dreadful collision.

8In examining the circumstances of this crime, though the facts are unique, nonetheless what is striking is that there are many of the all too common features of young drivers speeding and losing control.

9On 3 January 2014, you, Liam Pepper, were with your friend, Dylan Pupavac.  You were best friends, it seems, from your teenage days.  Dylan Pupavac was friends with Mitchell Freeman and Matthew Bourke.  You had met Mitchell Freeman once or twice before and met Matthew Bourke for the first time on 3 January 2014.

10At the time you had just turned 19.  The other young men were all 18 and all soon to turn 19. 

11On that evening, 3 January 2014, at around 11.30, you were driving your car with the other young men as passengers.  You all decided to head out to a particular spot in Corio, an industrial estate, where it was known by your group that young men gathered to watch and do burnouts in cars.  The particular spot is the intersection of McManus and O'Briens Road in Corio. 

12At that intersection, there is a large concrete area on the road.  O'Briens Road has a dip down a little towards the concrete area. 

13You drove to that area and there joined another ten or 15 cars already there.  There were 25 or so young people at the place watching cars do burnouts at the intersection.  In other words, your group joined others watching, encouraging and participating in illegal driving activities.  Cars were not being used for transport; their primary purpose, rather the cars were being used as a risky form of immature entertainment as they were spun in circles leaving marks on the road and smoke in the air.

14You, Liam Pepper, were encouraged by your passengers to try yourself to do burnouts.  You had a go, but you were not able to do these burnouts. 

15You and the other young men then watched others perform burnouts for another 30 minutes or so.  You then got back into your car and were heading home, or at least, away from the area.

16As a group it was decided to turn around and go back.  Suggestion was made then to see how fast you could go past the watching crowd.  No doubt it was thought at the time that to drive at high speed past the crowd was further illegal so-called entertainment for all there; Mr Pepper, you, faced with the suggestion of speeding past, you had a choice.  Perhaps not an easy one for a young man facing encouragement of other young men, but, nonetheless, you had a choice to speed and see how fast you could go, or to drive responsibly, back there or home, or wherever.

17Your choice was to drive the car up to an excessive speed as you went down O'Briens Road, across the concrete part of the intersection.

18As almost was inevitable, you lost control of the car, it veered off the road and back on to it, then careered towards a curve in O'Briens Road and ploughed into a power pole on the kerb with tremendous force.

19Prior to losing control of your vehicle, you were travelling at a speed not less than 100 kilometres per hour in a 60 kilometre zone.  The driver's airbag saved you from serious injury or even death.  The others were not so lucky.

20Mitchell Freeman was in the rear right-hand passenger seat.  Again, as a sign of the foolish attitude of you all, he did not have his seatbelt on.  That said, strictly it is the responsibility of the driver to ensure all in the car have their seatbelts on. 

21Mitchell Freeman was flung forward hitting the windscreen and likely hitting Dylan Pupavac, who was in the front passenger seat.

22Dylan Pupavac had his seatbelt on.  He suffered serious spinal injuries that has left him partially paraplegic. 

23Mitchell Freeman sustained serious dislocation of his left hip, as well as fractures to his nose and ribs.

24Matthew Bourke had his seatbelt on, he sustained a fractured femur and concussion.

25The impact on the victims of any crime is a matter I must take into account in the sentencing process.  In this case, despite it being too long in getting to this court, nonetheless there were no up to date medical reports presented by the prosecution till after the plea commenced.  I have received more detailed medical reports since.

26Dylan Pupavac was initially transported to the Geelong Hospital, then airlifted to the Alfred Hospital trauma centre.  His injures were assessed as an L3 paraplegia.  He underwent a two stage operative procedure to fuse his L3.

27On 9 January 2014, he was transferred to the Austin Hospital as an inpatient in the acute ward of the Victorian Spinal Cord Services at the Austin Hospital. 

28He remained in that acute ward for three weeks before being transferred to the Royal Talbot Rehabilitation Facility. 

29He was discharged home on 1 May 2014.  At that time he had incomplete paraplegia with ongoing loss of sensation and weakness in both legs.  He could walk only short distances with crutches and required a wheelchair for longer distances.

30Of most significance was that Dylan Pupavac has lost function in his bladder and bowel.  Urinating and defecating had to be managed manually.  Although things may improve slowly, the medical opinion is that he will be left with significant problems with his bowel, bladder, sexual and lower limb function.

31Thus, on any measure, the injuries to Dylan Pupavac were extremely serious and are life-changing.

32He still has ongoing and significant difficulties with his legs, bowel, bladder and constant rectal and lower back pain, but it is his psychological and emotional pain that troubles Mr Pupavac most.  This was borne out in his Victim Impact Statement.  It is a heart-wrenching document.  I will quote just a few matters raised by Mr Pupavac.  I have taken it all into account.

33He wrote about the possibility, more likely the probability, of never working in his chosen field again.  He had studied hard to be an electrician.  He thoroughly enjoyed the job, and could see doing it until he was too old to continue. 

34He wrote about the emotional trauma as a result of the crime, saying, "This incident has more than changed my life, but, to me, mentally, it has ended it.  Before this accident, I had never been happier in my life.  I'd found a job I loved, met a girl I was crazy about, and began to plan out one thing I was overly passionate about, travelling.

35"Before my accident I loved my life, so much so, I got those words tattooed on my inner lip.  After the accident everything changed, all my happiness, along with the function of my legs, had gone.  I'd given up hope on my endeavours and nearly my life.

36He says, self-effacingly, that he feels selfish complaining or talking to people "About my issues, as there are many others worse off."  He always said to himself, and I interpose, as many do, that so long as you have your health you never have to be upset.  You can literally pack your bag and head away, but he does not have that feeling any longer.

37He hates how he cannot get back to his normal life.  He hates that this injury will be with him forever, a constant reminder to the day he dies.

38He does not like, as can be well imagined, all the equipment he has to use to go to the toilet.  His social life is gravely affected.  Many nights he wishes that he did not wake up.

39Mr Pupavac's girlfriend also wrote of the trauma of dealing with the consequences of this collision.  She wrote that their lifelong plans were, in her words, ruined.  The medico/legal psychiatric opinion was that Mr Pupavac was suffering symptoms of major depression and traumatisation.

40Mitchell Freeman was also transferred from the Geelong Hospital to the Alfred Hospital Trauma Centre.  His hip dislocation was relocated in surgery and screws and plates used to stabilise.

41His other injuries were treated conservatively.  He was discharged to rehabilitation on 7 January 2014.  He has undertaken regular physiotherapy subsequently.  That is just a brief description of Mr Freeman's injuries and treatment.

42In his Victim Impact Statement he also wrote of the psychological consequences of the collision.

43He wrote, "As a result of the crash, all these things," that is, his physical injury, "Have significantly changed my life and now things I have to deal with on a day to day basis.  I feel as though if I weren't dealing with these things, I would be enjoying my life a lot more.  I also feel I would be in a much better place mentally."

44He has depression, anxiety and post-traumatic stress.  Things that he never thought he would have as he was before usually very positive and a confident person.  He has significant pain.  Has not been able to return to his line of work as a carpenter.  

45His mother also wrote in her Victim Impact Statement that prior to the crash occurring, "My son was fully employed in the second year of his four year carpentry apprenticeship.  He was happily fulfilling his dreams of becoming qualified with aspirations and eventually buying his first home.  He was moving forward in his life, gaining skills and experience parallel to his peers. 

46"As a parent I was happy to see him moving on into adulthood.  Following the crash, all this came to a sudden end, his daily life, his health, his earning capacity, his job prospects, his happiness, and his future will never what he or I imagined."

47It makes her sad to see him in constant pain knowing that the prospect of a pain-free future is now impossible.

48Matthew Bourke suffered a fractured femur and other cuts and abrasions to his arm and face.  He was operated on to repair the fracture.  He writes in his Victim Impact Statement that he has still not returned to full physical health due to ongoing pain and setbacks from operations and ongoing treatment.

49His income has been gravely affected because of the studies that he was doing prior to commencing his employment.

50He has suffered trauma from the accident, having difficulty sleeping.  He has flashbacks of the crash.  He finds it hard to trust other drivers.  His life has changed in that he finds it hard to trust new people, "To let myself feel comfortable in social situations where I could be in someone else's hands."

51As I have already said, my sentence can never return things back to the way they were before.  Any sentence I impose is not to be seen as a measure of the loss to each of the victims or, in any way, a valuation of their lives.  Their lives are immeasurably valuable to them and to others.  What I am required to do is impose a just and appropriate sentence, taking into account many factors, including the impact of the crimes on the victims.

52Another matter I must take into account is the gravity of the offending and your moral culpability, Mr Pepper.  The key factor in assessing the gravity of the offending is the excessive and dangerous speed that you drove your car that night.

53Also important in making this crime a grave one, is that your dangerous driving was showing-off; principally to other young men and perhaps women, who themselves were at a particular location to watch and encourage irresponsible driving behaviour.

54It is all too often said by the courts, by the police, by politicians, by various members of our community, that speeding, fish-tailing, spinning the back wheels, burnouts, and donuts, done, usually by young men in a feeble wish to impress others like them, is behaviour that encourages more risk taking and irresponsibility.

55The response that it is just a "simple burnout, boys having a bit of fun, no harm done", is wrong-headed thinking.  That behaviour and those attitudes leads to those drivers or other drivers driving still faster and with more risk as if no harm will ever come, but it does, as this case reveals.

56Driving a car demands responsibility, consideration of others.  Consideration of the lifelong consequences of peer pressure and irresponsible driving.  The authorities have for decades endeavoured to drive home the message of the need to drive safely and responsibly on our roads.  In many ways those efforts have been successful.  It seems, however, that young men like you are part of a cohort who are the hardest to convince that responsibility must be put above a brief moment of what is thought to be a thrill, or entertainment, by driving too fast.

57No irresponsible showing-off can ever justify the risks and the lifelong consequences that can, and do so routinely occur, when such young drivers behave as you did.

58On any measure, your offending is a grave example of the offences to which you have pleaded guilty.

59Your moral culpability is high though, as I have noted already, making the right decision when faced with the encouragement you faced is not easy.

60But, in so many other ways as the material put before me reveals, you are a young man of substance and moral fibre.  This rash decision on your part does appear out of character.  In respect of your moral culpability I take into account the immaturity of youth.

61I turn then to your personal circumstances.  You are now 20.  You are the eldest of three boys.  Your parents separated in 2012 and your father now resides in Vietnam and returns to Australia regularly.

62Your family life was first in Bendigo.  You did your early schooling there before the family relocated to Geelong.  You attended the Grovedale Secondary College from 2007 to 2012.  There you excelled.  You were described by the principal, Ms Matthews, as "polite, considerate of others, and a positive role model".

63You were the college vice-captain in 2012, your final year.  A position you gained after interview and vote by both staff and students.

64I was provided with a number of certificates, as well as the letter from Ms Matthews attesting to your strong contribution and your leadership while at school.

65Your VCE results saw you able to commence a biomedical sciences and medical chemistry degrees at Latrobe University.  You have been residing at the university from February 2013.  Again, you have impressed while at university, engaging well in student life.  As a consequence you were selected as an academic mentor, a position of significant responsibility and leadership in the residential services area.  You received a university award for leadership.  No small matter. 

66Further, as a consequence of your efforts as a mentor and leader, you were selected to participate in the university's overseas Outreach programs.  You went to Nepal for three weeks in late 2014 and engaged in manual and educational volunteering efforts for a local Nepalese community.

67As noted at the outset, you are an impressive young man with great potential to make a contribution as an adult, as you are already.

68The letters tendered on your plea confirm your solid qualities.  You come from a good family.  Thus, notwithstanding the significant setback of the events of 3 and 4 January 2014, you are doing your best to make the most of your circumstances.

69All of this is in a setting of being remorseful for what you did and the effect of it on the other young men.  You have attended a counsellor at Latrobe University since 21 January 2014.  Your counsellor, Ms Griffin wrote that you have shown symptoms of the effect on you of the collision. 

70She wrote that you were having difficulty sleeping, eating, concentrating, accessing short-term memory, and managing your emotions.  She concluded that you had a general anxiety disorder as a consequence of what you have been through.  All this is hardly surprising.

71In his written submissions, your counsel argued that the principles restated in the Court of Appeal decision of Verdins v The Queen were relevant.   In debate during the plea that submission was not pressed.

72I will take into account, as I have already said, that you will live with the consequences of what you did, lifelong. 

73I will take into account that any sentence involving detention will be hard for you as you will not have the important family and professional supports as you do now.

74Importantly, Ms Griffin wrote of your remorse.  So, too, did others who know you well, such as Mr David Lovell, the Senior Pastor of the Baptist Church that you and your family attended in Bendigo; and Ms Lara Bourke, the Residential Education Manager at Latrobe University. 

75I have read all the testimonials and character references.  You are obviously highly regarded in your community.  You are a contributor to your school, your church, your university, your family.  All this is to your significant credit.

76Not surprisingly with your good upbringing and moral fibre, you have never been in trouble with the law before.  All these matters going to your character allow you to seek a merciful sentence.  Also these matters factor in as solid foundations for your rehabilitation.  Your prospects in that regard are excellent.

77You have pleaded guilty early.  Your plea saved a trial with all the costs, emotional and otherwise, that a trial would entail.  Your plea of guilty is another expression of your remorse.  Your sentence will be less than it otherwise would have been because of your plea of guilty.

78There has been a delay while this matter remained in the magistrates' court.  That is regrettable, given your age.  I will factor into the mix the effect of delay, noting that in the interim you have continued to work hard in your studies with the burden of this matter weighing heavily on you.

79You are still very young.  The law has long said that reclaiming a young offender is an aim that benefits the community, as well as the offender.  However, there are tensions that may well still exist between the sentencing purposes such as denunciation and deterrence, and the sentencing purpose of rehabilitation.

80The principles governing the sentencing of young offenders are well-known to those in the field, but, nonetheless, they should be articulated, so the community, including all those with a particular interest in this case, understand what are the sentencing principles that I must apply.

81A starting point is the well-known decision of The Queen v Mills, where the following was set out.  When dealing with youthful offenders, the following propositions were articulated:

"(1)  Youth an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises;

"(2)  In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may, in fact, lead to further offending, thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  Rehabilitation benefits the community as well as the offender;

"(3)  A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality.  The benchmark for what is serious as justifying adult imprisonment, may be quite high in the case of the youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified."

82In Azzopardi v The Queen, Justice Redlich, having set out those principles, went on to say:

"In the same year as Mills was decided, this court recognised that there would be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations."

83A year after Mills, Justice Batt, who was the principal judge in Mills said the following in Bell, in which he cautions sentencing judges that the propositions in that case of Mills, while applied frequently, were not of universal or automatic application and would depend upon the circumstances of the offence, as well as the offender.

84His Honour further stated that where the offence in question is conduct that is prevalent amongst young men, then:

"Besides rehabilitation, general deterrence and specific deterrence must inform a sound discretionary determination."

85Further, later on in the case of Tran, Justice Callaway said:

"That while rehabilitation of youthful offenders is one of the great objects of the criminal law which will usually be given greater weight than general deterrence, it is not the only relevant consideration and in an appropriate case, might have to yield to considerations of general deterrence."

86The decision in Tran related to cases where there were serious driving offences by young persons.

87Justice Redlich in Azzopardi, also referred to the important considerations of immaturity.  This was said:

"There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration.  Firstly, young offenders being immature are therefore more prone to ill-considered or rash decisions.  They may lack the degree of insight and self-control that is possessed by an adult.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct."

88Your counsel contended that taking into account all these principles that, indeed, all sentencing purposes could be met by a community-corrections order.  He relied on the guideline judgment of our Court of Appeal in Bolton v The Queen.  That decision made it clear that with legislative changes to our Sentencing Act, and a proper analysis of all sentencing principles by the Court of Appeal in their first guideline judgment, the sentencing landscape in this State has changed.

89As the Sentencing Act states, "A court must not impose a sentence that involves confinement of an offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

90A community corrections order with properly targeted programs can deliver rehabilitation and punishment simultaneously; something not readily available in prison.

91I had you assessed for your suitability for a community corrections order.  The report I received indicates that you are suitable for a community corrections order.

92Given your age I also had you assessed for suitability for detention in the youth justice centre.  You were considered suitable.

93It was the opinion of the report writer, Mr Hardiman, together with Mr Des Gilmore, the unit manager at the Malmsbury Youth Justice Centre, who was consulted, that you would be vulnerable in an adult gaol and that in all other respects, you would likely take up the rehabilitation programs available at a youth justice centre.

94It was also stated in the report that as you had been assessed as suitable for a community corrections order, and given your significant family support and prospects of rehabilitation, then punishment in the community may well be the best for you.  I should add all those who had assessed you remarked on your genuine remorse.

95The prosecution argued, given the seriousness of your conduct, and the consequences for the victims, together with the high need of deterrence to others, proper sentence was one involving confinement.

96As I have endeavoured to make clear, the sentencing purposes of greatest importance in this case are your rehabilitation on the one hand, and deterrence and denunciation on the other.

97While it is the case that the sentencing landscape has changed, nonetheless, my assessment of sentences for offences of this kind, since Bolton, that have been imposed by the County Court, shows that sentences of lengthy terms of imprisonment are still imposed, even for young offenders, though not those as young as you.

98Each case is different and must be determined on the unique facts of how the offence occurred, why it occurred, who the offender is, his character, and, finally, what the future holds for the offender.  Here the offence is a very serious example of dangerous driving causing serious injury, and there were three of them.

99While the decision that you made was rash, immature and out of character, was not a momentary loss of attention or misjudgement; it was deliberate decision to drive at excessive speed in order to show off; it was in front of many young people, perhaps prone to acts of irresponsibility with cars, thus deterrence, always important, has particular resonance in this case. 

100Your undoubted good character and potential must not overwhelm the sentencing process and, indeed, in cases of this kind, good character is of less weight.  Your youth is all important and, in this case, it certainly has the effect of ensuring that a prison term will not be imposed, as it often is, as I have said, even where a young person is the offender.

101But all sentencing purposes cannot be satisfied by a community corrections order, even one of significant length and with significant aspects of punishment.  The sentencing purposes of deterrence and denunciation and rehabilitation can only be met in this case by a sentence involving confinement; in this case, in a youth justice centre.

102Although there were three young men seriously injured, and Mr Pupavac permanently so, I am of the opinion that an aggregate sentence of detention in a youth justice centre is the best way to practically deal with the sentencing process, so that social rehabilitation for the victims, and for all, can commence.

103I will not be reduced to announcing in relation to two of the victims, small terms of cumulation.  Rather, I will impose what is readily understandable by members of our community; that is, a sentence of detention in a youth justice centre for the crimes that arose by reason of your speeding, the collision, and its aftermath.

104Will you please stand, Mr Pepper.

105For committing the crimes of dangerous driving causing serious injury to Dylan Pupavac, Mitchell Freeman and Matthew Bourke, you are sentenced to an aggregate sentence of 16 months' detention in a youth justice centre.

106I am required to make orders against your licence.  It is part of the punishment to cancel your licence and disqualify you from driving for two years.

107Had you pleaded not guilty to these offences and been found guilty of them, you would have been sentenced to three years in the youth justice centre.

108The prosecution has sought an order that you provide a forensic sample, in order that your DNA can be placed on the database. 

109In all the circumstances of this case and your prior good character, I decline to make that order.

110Is there anything else required?

111MS HARROLD:  No, Your Honour.

112MR FITZPATRICK:  No, Your Honour.

113HIS HONOUR:  Mr Pepper, the court room is not set up to allow you to have what, no doubt, everyone wants to happen, that is, further time.  If I allowed it with you as, no doubt, it would go smoothly, or smoothly enough, I would have to allow it for everyone and then it will not go smoothly. 

114So what occurs now is that you go with the security staff downstairs.  Your lawyer will shortly be there.  They will explain to you and to your family what the next stage is.  Thank you.

115(Offender removed.)

116I thank counsel for their very significant assistance in this difficult matter, and, again, I reiterate my admiration for the dignity of all involved.

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