Director of Public Prosecutions v Percell

[2015] VCC 1194

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-00748

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES PERCELL

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JUDGE:	His Honour Judge Smallwood
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 August 2015
CASE MAY BE CITED AS:	DPP v Percell
MEDIUM NEUTRAL CITATION:	[2015] VCC 1194

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

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. Hutton
of Public Prosecutions
For the Accused	Mr L. Barker

HIS HONOUR:

1       James Percell, you have pleaded guilty to one charge of negligently causing serious injury.  That crime carries a maximum penalty of 10 years imprisonment.

2       You are now 24 years of age and had just turned 23 years of age at the time of the offending.

3       You pleaded guilty at a relatively early date, that being prior to a committal and I accept that your plea of guilty has been associated or accompanied by, in your case, extreme remorse.

4       You have been described during the course of this plea as racked by remorse and on the material before me I have no difficulty in accepting that.

5       You must also get the utilitarian benefit of that plea of guilty in furthering the course of justice and in saving people from what would have been a very distressing trial, had it run.

6       You have no prior convictions of any description, either here or in Ireland of which country you are a citizen.

7       You were 23 at the time of the offending, as I have said, and you are now 24.  You are still a young man.

8       Tendered on your behalf during the course of the plea were very helpful plea submissions, and I'll refer to those as I go through this process.

9       You, as at 25 April last year, were in Australia pursuant to a visa.  You are an Irish citizen.  You were living at an address in Chadstone with one Terrence Dunne, one John Paul Dunn, and the ultimate victim in this matter Albert Dunn.  They are, or were, also Irish citizens and, indeed, as has been pointed out to me and there is no reason to doubt it, the two families, that is the Percells and the Dunns, had been in close contact with each other for generations.  It could be said that Mr Albert Dunn was a very, very close friend indeed.  He was 23 years of age, as well.

10      On that day you and your housemates decided to go to a bar in Clayton.  Terrence Dunn drove you all there.  You met up, you played pool, and drank light beer.  Later that evening the group left that hotel and went to the Village Green Hotel, arriving between 10 and 11.

11      John Dunn was refused entry and left in the vehicle.  Terrence Dunn left some time after that.  You and Albert remained at the hotel for a period of time before leaving in a taxi, arriving home in the early morning of 26 April.

12      Shortly afterwards the two of you left the home in the vehicle to attempt to buy some more alcohol.  You were driving and Mr Dunn was the front seat passenger.  There had apparently been some disagreement about who was to do the driving, and it was agreed that he was probably drunker than you.  There was no one else in the vehicle.

13      At the intersection of Waverley Road and Huntingdale Road you turned right and headed south towards the Monash Freeway.  At about 2.30 as the vehicle approached the intersection of Huntingdale Road and the Princes Highway, for some unknown reason the vehicle lost control and oversteered towards the left in a yawing motion.  It was then recorrected and struck head-on into a tree on the eastern kerb.  It then rotated anti-clockwise to its rest position.

14      You were wearing a seat belt, Albert Dunn was not.

15      A witness described hearing a very loud bang before going outside and seeing you try to get out of the driver's side window.  She spoke with you and you asked to be dropped up the road.

16      A second witness contacted 000, and you asked that witness not to call for assistance saying you would be in trouble, and again asking to be taken up the road.

17      A third witness saw you climbing out of the window and you asked that she not call anybody because you were intoxicated.

18      A fourth witness you spoke to and said that you, "Would get done for drunk driving.  Please don't call the police.  I'll give you a thousand bucks".

19      That witness said, "Is your mate all right", and you said, "Yes, he's asleep".

20      There are no charges before me in relation to any of the conduct involved after the actual collision.  However, having heard the submissions of your counsel and read the materials, it is a situation where you were intoxicated.  You were described by one witness as, "Bleeding from the head", and you in fact spent 11 days in hospital yourself, immediately after this collision took place.

21      I do not regard your conduct afterwards as anything other than the conduct of a confused, drunken person, and as I said during the course of the plea, "I do not regard is as displaying any form of callousness".  Importantly, there is no charge in relation to it in front of me.

22      You, when you said that, "Mr Dunn was asleep", were aware, as has been confirmed, that he was lying in fact unconscious, but indeed snoring, across the front seat.  That was your last observation of him.

23      You, apparently, at some stage denied being the driver but consented to a PBT.  From that point on, your conduct was cooperative.

24      The injuries to Mr Dunn described as, "A large right subdural haematoma, spiral fracture of the left humerus, anterior fracture of the left fifth and sixth ribs, bilateral pneumothoraces, aortic intimal tear, and small right kidney infarct.  The injuries are indeed serious and there was some discussion between myself and the Crown as to what material was available on them.

25      The circumstances of this matter are that it is conceded, and I accept, that the injuries as such are serious, Mr Dunn still has limitations to his movement and still has cognitive defects which are likely to continue into the future.  I can't make any greater determination than that.

26      The reconstruction evidence indicates that at the time the vehicle commenced yawing, you were travelling at approximately 96 kilometres an hour.  It is a 60 kilometre zone.  Your blood alcohol concentration at the time of the collision has been estimated between 0.123 and 0.139.  However, it is indicated, as I understand it in the materials, that it may indeed have been lesser than that, but certainly in excess of .05.

27      As was agreed by the Crown the negligence involved is midrange and the injuries are obviously serious.  I am always reluctant to try and grade injuries within some sort of range, as things can effect different people in very different way.  I simply say that they are serious and obviously serious.

28      There is no victim impact statement before me because Mr Dunn will not make one.  There is no statement on the brief in regard to the matter because Mr Dunn will not make one.  He is a very close friend and so are the families.  Indeed, I have a very moving testimonial tendered before me from Mr Dunn's parents talking about this matter, and you are a very fortunate man, indeed, that you have the forgiveness of the whole Dunn family.  I take that into account, not as saying that the families of complainants or victims' sentence in these court, but in terms of your ultimate rehabilitation, and your ultimate acceptance back in to the community, as a very important factor.

29      The offending has to be regarded as serious.   It calls for the application of general deterrence.  In think in your situation, specific deterrence are not of particular importance, but there must be an appropriate punishment and there must be denunciation.  As has been the subject of much discussion during the course of this plea, that is a difficult concept indeed.

30      Situations such as this often attract active custodial sentences.  Since the decision in Bolton, that position has to be re-looked at, but it does not change the circumstance where there are certainly circumstances which can be described as exceptional, then a custodial sentence is not inevitable.  I am not going to go through the principles of Boulton, they are well known to both myself and counsel. And subsequent decisions.

31      Tendered on your behalf were a number of very powerful personal references.  As I have indicated there were the references from the parents of the victim, there was a letter from yourself to me and a report from Mr Patrick Newton.

32      The history of your background was very clearly set out in the submissions that were tendered on your behalf and are supported by the references that have been tendered and also the expert opinion of Mr Newton.  I can say that you have extremely strong support with the prospect of your rehabilitation from both sides of the fence.

33      I think after this experience the risk of you re-offending in such a way is very small indeed.  I see that Corrections, when I had you accessed for a CCO, said it was, "A moderate risk".  With no priors, and the fact that you have now not had a drink since the accident, I think it is less than that.

34      The circumstances of the collision I think I pretty accurately summed up in discussing the matter with counsel.  What I said to your counsel at that stage was this: "I am perfectly prepared to put this into a context of, 'Here is somebody who has no prior convictions, who I will accept on the evidence contained within the report of Newton was not a heavy drinker, who had an extraordinary traumatic experience, extraordinary traumatic, who had subsequent to that, and part and parcel of that, becomes a heavy intemperate drinker.  In those circumstances, with a friend basically from his childhood from his own country, and other people coming out, he makes a gross error of judgement to drive out for more alcohol".

35      Nothing I heard subsequent to that comment has caused me to change those views.  As to why I have come to that conclusion it is important to examine the material before me and the submissions that were put by your counsel.

36      You, as I said, were 23 years and two months of age at the time of the offending.  You were born in Dublin and you are the youngest of five children.  Unfortunately, your father was a violent alcoholic who abused your mother.  Your mother left him, on some of the material he may have left, and moved into a home across the road from her own mother when you were very young.  Your father did not visit and has played no role in your life.

37      Despite the difficulties with your father, you always had support from the maternal side.  Your mother had a close relationship with her extended family.  She had five sisters and nine brothers.  As has pointed out, you have something in the order of 100 first cousins.

38      She, that is your mother, had to raise five children in Dublin.  However, there was extended family pulling together and the children were all raised well.  That is indicated by your, from that background, having no prior convictions.

39      Unfortunately, when you were six years of age your mother died from cancer.  Mr Newton says, and I accept, that that gave rise to a severe grief reaction.  The family again had to join together to bring you children up.  Your grandmother came to the house daily to assist in the upbringing.  That the main brunt of the child rearing when on to your elder sister, Barbara, who was only 17 at the time.  Overall, in those circumstances, the family did well.

40      One of your sisters has been out here since the time of this accident, endeavouring to look after your affairs and care for you.  She has gone back to Ireland now because that grandmother who was so important in your childhood is very ill.

41      When you were nine years of age, your Uncle Tom died of a heart attack.  He had been one of the closest family supports following the death of your mother, and had become your father figure in effect, if not in fact.  His death was extremely traumatic for you and you suffered what's been described by Mr Newton, as a further profound grief reaction.

42      The submissions then go on to point out, as was clearly evident to me by the support in court, not only from your references that were tendered, that you have that great support in the background.  It was your sister, Marilyn, who came here and she has been providing comfort and support, not only to you during the time she has been here, but also to the victim, Mr Dunn.

43      The two families, and I accept this for limited purposes obviously, both the Percells and the Dunns, want nothing more than you to be taken back to Ireland where they can effect your rehabilitation.

44      As a child you went to a primary school in Dublin and then a community college.  You completed the equivalent of year nine, and you left school at 16.  You undertook an apprenticeship in roof tiling and have since then worked at manual work.  You completed that apprenticeship within three years and were working six days a week for that period of time until you came to Australia.

45      Some four years or so ago you came to Australia for a two month holiday.  It became your dream to migrate to Australia and start a life here.  You went back to Ireland for a period of 12 months.  You were able to obtain a working visa to come out.  As has been the case since the potato famine, I suppose.  There were many Irish people who had that desire.

46      Your wish to live in Australia and your existence has been crushed totally by what occurred in the early hours of 26 April of last year.

47      Very important in a sentencing situation for you is this: Up until March of 2012 you were a very light drinker, indeed, an infrequent drinker.  I am a little reluctant to go into detail completely as to what occurred, but it is important that it is understood what the consequences have been for you.

48      On 15 March 2022 you were living in a shared house in Ashwood with several other people.  It would seem that a man, and I will not mention his name, who was one of the residents, had serious psychiatric problems.  He became involved in a violent and prolonged attack on another person who was living at the residence.  That person died as a result of severe head and abdominal injuries.

49      You were in your room and heard the attack.  You rang to get help, and the police were called.  You were terrified and thought that the assailant would turn on you.  You found the ultimately deceased on the road, bleeding heavily from the head.  You tried to assist him and it appeared that he was still alive.  It is described in the psychological report that you, "Felt completely powerless and overwhelmed by the experience, and had no idea what you should do to assist".  That process left you covered in blood and you continued to be afraid of the other man in his psychotic state.  You were extremely traumatised by this event.

50      Mr Newton confirms, totally understandably, that as a result of this experience you suffered a post-traumatic stress disorder of real significance.  That disorder has moderated to a degree, but you still do have residual effects from it.  And the important aspect of it is, whilst I take that into account, in terms of what an active custodial sentence would mean to you as being harder than for a normal prisoner, you began to, as your counsel put, self-medicate that post-traumatic stress by drinking.

51      Mr Newton noted, "Mr Percell reported that his drinking had escalated markedly after witnessing the murder.  He said that he turned to alcohol to 'ease the pain he was feeling and to help him forget everything'.  The amount he consumed steadily increased as did the frequency at which he engaged in heavy drinking.  On his report he was soon drinking most day to assuage his emotions and drinking 15-20 standard drinks several times each week in an effort to numb himself and induce sleep"..

52      He points out, and I accept, that you have not drunk since the collision, and you have never been a user of drugs.

53      Mr Newton also points out that you have a history of chronic depressive mood disturbance, and during the course of discussions with you pointed out that the world certainly now seemed very bleak to you.  He said that the criteria was met for a diagnosis of persistent depressive disorder, and clearly I take that into account.

54      He said, "Even assuming good support is available to him [and I point out of course now you will be alone in this country if you are put in prison], I would anticipate that he would be vulnerable to both more regular and more intense bouts of anxiety and mood disturbance and would a prisoner who did not suffer his pre-existing problems.  Managing these problems is likely to be exacerbated by the fact that his family and other supports are not resident in Australia".  In other words, a custodial environment for you would involve, on the face of it at least, limitations in visitors and outside contact.

55      There was lengthy discussion about the principles in Verdins in your case, and what I am simply saying is this: That I accept that goal will be harder for you than for a normal prisoner - whatever that means - because of the isolation, because of your emotional and mental state.  I do not consider that the post-traumatic stress disorder reduces the culpability for the actions that you took, but it certainly puts into context how you had, over a period of time from extremely distressing and traumatic experience, began to drink immoderately, and on this occasion, very, very stupidly.  It simply puts it all into a context, which takes away from what might otherwise be seen as an isolated act of criminality.

56      I do not think I need to read out the various references that were tendered.  You are a person with a very good work ethic.  You have no priors.  You are young.  You have been forgiven by the family of the victim and they have assisted very much in your rehabilitation.  You have extremely strong, close, and supportive family.  You are no longer drinking.  You do not take drugs.  You have got extreme remorse, and in any event you have now been in immigration detention for a period of four months.

57      That has been brought about by the expiry of your visa, and I have been given conflicting information as to what the circumstances of your position is.  It may well be that you are to be deported very soon.  It may well be that you remain in detection for an extended period of time.  I have no way of anticipating that, and do no endeavour to do so.

58      What I do say is this: As a direct or indirect result of what occurred, you have now been detained in a - no doubt people would accept was a prison like environment for a period in the order of four months.  That insofar as to whether an active custodial sentence is imposed is important.  As I indicated during the course of the plea - I do not want to put the Crown on the spot but - I have given non-custodial dispositions for this sort offending and I have also given dispositions which involved months of active custody.

59      It seems to me that it would be no more than an act of cruelty to put you into a gaol for a couple of months in these circumstances with then the prospect of being deported almost immediately weighing upon you.  Your dream has already been crushed insofar as staying here is concerned, but after a very helpful discussion with counsel, I have to be very careful about how I look at that detention, but the fact of the matter is you have been locked up for four months, and the extraordinary circumstances of your background and how this offending came about in my view, that is almost enough.

60      What I will now do is sentence you to be placed on a community corrections order.  That community corrections order will be for a period of three years and it will be with conviction.  The only condition that I will be putting upon it is one of treatment for mental health.  It seems to me that your alcohol problem is now, and has been for some time, under control.  When one takes into account the time spent in detention, the punitive aspects of a community corrections order, bearing in mind it will also be subject to supervision, in the overall scheme of things, that is a sufficient punishment, and a sufficient general deterrent for others.

61      I have discussed with counsel, and I think it is a very strange situation indeed, but I am not allowed, it would seem, to take into account the very real probability that the CCO will never be complied with because you will be deported.  That is odd, and it is as a direct result of the abolition of suspended sentences in my view in your particular case.  However, on the other hand, I am certainly not going to put somebody into a gaol because of the possibility that they might not be able to complete the CCO, and indeed Boulton, as I understand it, says I cannot do that.

62      There are unsatisfactory aspects about all this that really, I think, should be looked at.  But the fact of the matter is that you have been punished in the end, and punished in your situation severely, not only by the judicial process, by the circumstances that have arisen.

63      Accordingly, it will be a three year CCO, with conviction.  Conditions are:  Supervision and mental health.  I cannot give a sentence and declare it as already served because I accept the submissions that the immigration detention could not be regarded as pre-sentence detention.  Otherwise I would.

64      HIS HONOUR:  Does that make sense?

65      MR HUTTON:  Yes, your Honour.

66      MR BARKER:  Indeed, your Honour.

67      HIS HONOUR:  Very well.

68      MR BARKER:  I suppose he needs to sign the paperwork.

69      HIS HONOUR:  We have got to get some first, yes.  Sorry, yes, the licence is cancelled.

70      MR HUTTON:  I should have reminded you of that, your Honour.

71      HIS HONOUR:  No, no, I wrote it down.  Is it a suspension or a cancellation?

72      MR HUTTON:  Cancel.

73      HIS HONOUR:  I have to cancel, I think.

74      MR HUTTON:  Yes, your Honour.

75      HIS HONOUR:  Licence is cancelled.  Cannot obtain a driver's licence within this state for a further period of 18 months.

76      MR HUTTON:  Yes, your Honour.

77      HIS HONOUR:  Is that the correct order?

78      MR HUTTON:  I have got 18 in the opening, your Honour.  My instructors agree now.

79      HIS HONOUR:  Yes, yes.  Well, that is a punishment in itself as well.

80      MR HUTTON:  Yes, your Honour.

81      MR BARKER:  May I approach my client, your Honour?

82      HIS HONOUR:  I ask you to.

83      MR BARKER:  Thank you.

84      HIS HONOUR:  I do not do a 6AAA in that scenario.

85      MR BARKER:  Can I also ask for a copy for myself please, Madam Associate.

86      MR HUTTON:  I can't remember the ins and out, your Honour.  I can check on the - - -

87      HIS HONOUR:  No, do not.

88      MR HUTTON:  Thank you.

89      HIS HONOUR:  I should probably also say - this isn't part of the sentencing remarks, but I'm deliberating staying away from whether (indistinct) can be appealed and whether he can try and get it - I am staying out of all that for the reason I outlined.

90      MR HUTTON:  Yes, your Honour.

91      HIS HONOUR:  As I said, I said what I have to say.  I don't feel comfortable about all this, and I suspect nobody does, but what you've got is what you've got, I guess.  That is your signature on that, Mr Percell?

92      OFFENDER:  Yes, that's correct, your Honour.

93      HIS HONOUR:  I have got no idea what the future holds, Mr Percell, but I wish you well and I certainly wish Mr Dunn well, as well, and hopefully his position improves.

94      OFFENDER:  Thank you, your Honour.  Thank you very much.

PRISONER RELEASED