Director of Public Prosecutions v Perrin
[2019] VCC 308
•14 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-02051
Indictment No. J10775586
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAYLAH JANE PERRIN |
---
JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2019 | |
DATE OF SENTENCE: | 14 March 2019 | |
CASE MAY BE CITED AS: | DPP v Perrin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 308 | |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – culpable driving causing death – plea of guilty
Legislation Cited: Children, Youth and Families Act 2005 (Vic), s 471
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v PatrickThomas Hill [2012] VSCA 144; DPP v Lawrence (2004) 10 VR 125
Sentence: Total effective sentence of five years’ imprisonment with a non-parole
period of three years
Section 6AAA declaration: seven years’ imprisonment with a non-parole period of five years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Churchill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Smallwood | James Dowsley & Associates |
HER HONOUR:
1Taylah Jane Perrin, you have pleaded guilty before me to one count of culpable driving.
2Exhibit A on the plea in mitigation was the prosecution opening on the plea. I incorporate that document as part of my reasons for sentence. However, I will briefly summarise the offending that has brought you before the Court.
3At the time of this offence, you were 18 years of age. You are now 20. The victim was a passenger in your vehicle, Georgia Foran. You two were very close friends. Ms Foran was 16 years of age at the time of her death.
4The scene of the collision was at the intersection of Cranbourne Road and Moorooduc Highway in Frankston. On the evening of 13 July 2017, you were travelling east along Cranbourne Road from Frankston. Due to the effects of drugs that you had ingested before driving, you failed to observe a red light and collided into a traffic signal pole.
5At around 8:00pm on the night in question, you had finished work. You then drove your car to Ms Foran's house in Mornington. You and the victim then consumed gamma hydroxybutyrate (GHB) together in a car park at the Mornington Shopping Centre. Ms Forran then made plans to meet up with her boyfriend in Langwarrin and you began driving towards his house.
6Immediately prior to the collision, phone records show various exchanges between Ms Foran and her boyfriend. In particular, a message was sent by Ms Foran at 9:35 pm in which she conveyed to her boyfriend that you nearly crashed the car.
7The collision occurred not long after 9:35 pm. It caused catastrophic injuries to Ms Foran who was seated in the front passenger seat. She suffered life-threatening injuries at the scene and was taken to the Frankston Hospital for treatment before being transferred to The Alfred. She died in hospital on 29 July 2017, as a result of the injuries sustained in the collision.
8You were taken to Dandenong Hospital for treatment of injuries that you sustained. Paramedics found a vial of GHB in your clothing and gave it to the police. A sample of your blood later revealed a presence of GHB at a level of 0.60mg/L.
9Dr Angela Sungaila provided an expert opinion on the use and effects of GHB. She stated:
"This is a potent sedative drug that has been used as an anaesthetic in the past. It is capable of causing profound sedation which is completely incompatible with the ability to control a motor vehicle."
10You met with the police by appointment on 18 March 2018. You were arrested and interviewed on that day in relation to offences. You initially denied drug use on the night of the collision. However, you later admitted using drugs once you were advised of the results of your blood test. You also expressed your sorrow about what had happened. You told the police on at least more than one occasion you were “extremely sorry” and that it was “stupid” what you had done.
11As to the procedural history of this matter, you were charged with a number of offences on 18 March 2018. On 8 October 2018, you entered a plea of guilty to the current charge before me. In my view, the matter has resolved at an early stage in the proceeding and you are entitled to the benefit of an early plea of guilty. Furthermore, I find that the plea of guilty is commensurate with remorse and a desire to facilitate the administration of justice.
12Above and beyond the plea of guilty, I find in your case that there is clear evidence of remorse. I have no doubt that you feel dreadful guilt for the consequences of your action, causing as it did, the untimely death of your friend Georgia Foran. You told Carla Lechner this:
"Not a day goes by that I don't think about my friend Georgia Foran. On 13 July 2017, I made the stupidest decision of my life: to get behind the wheel and drive while under the influence."[1]
[1] Exhibit 2
13You also have sufficient insight to appreciate that the pain you feel is “nothing compared to the pain of Georgia Foran's family”.
14By your actions, you have caused devastating loss. In this matter, I read or had read to me 14 Victim Impact Statements.[2] Each and every one of them lament the profound sorrow and grief caused by the death of Georgia Foran.
[2] Exhibit C
15In particular, in an eloquent and moving Victim Impact Statement, her father, Michael Foran said this:
“… part of me died with Georgia. The only way to describe it, is I feel like a have a hole deep inside my soul and words can't describe how much I miss her. All the things I'm going to miss and not experience with Georgia: VCE, turning 18, 21st, buying her first car, first house, graduating from university, her first job, opening her beauty business, engagement, wedding, birthdays, family dinners, grandchildren, Christmas, family functions, our talks, hugs & kisses.”
16I also heard Georgia's mother, Nadia Foran, read her statement to the court. She states:
“Sitting in the ICU for three weeks watching my 16 year old daughter die before your eyes is unbearable. My daughter had the most amazing future ahead of her. I'm not quite sure why an 18 year old p plater can get behind a steering wheel under the influence and think they are superheroes! GEORGIA has left behind a 14 year old brother, 3 grandparents, father and lastly me. Life will go on but every day is [a] battle."
17I also had read to me the Victim Impact Statement of Georgia's 15-year-old brother, Matthew. He describes losing his sister as akin to losing his best friend. He says that his life has changed forever. From the moment that he was told that she would not survive off life support, he states:
“… nothing has been the same by losing my sister she always had my back and I always had hers we did a lot of things together, my best memories were shared with her. Me and my family have been affected deeply by this, we all miss the presence of her and always just wish she was back with us."
18Your case is, like so many involving young people in culpable driving, an extremely tragic one. Your decision to experiment with drugs on the night before and prior to the accident has had fateful consequences. You told Carla Lechner that at about 7:38 pm, you and Georgia had about 3 millilitres each of GHB. You said that it was about 40 minutes before you were driving and you did not feel anything until the accident. You told Carla Lechner that you did not feel that you could not drive.
19Counsel on your behalf, Mr Smallwood, made a submission that your moral culpability was at the lower end of the scale, because you failed to appreciate the level of impairment that could ensue from consuming GHB. While true it is that this is not a case where there is any evidence before me that you were familiar with the effects of this drug (having only experimented with it the night before and on the evening of the accident), I do not consider that your lack of familiarity would warrant a reduction in moral culpability.
20The essence of your offending here is the fact that you had ingested drugs prior to driving. Driving is an adult responsibility. Implicit in that responsibility is an awareness that drugs and driving simply do not mix.
21I do accept, however, that there are no otherwise aggravating features in your driving here. I accept the submission made by your counsel that many of the typical features in cases such as this time, such as speeding or erratic driving were not present in your case.
22Your counsel submitted that yours was a case in which it was open for me to impose a Youth Justice Centre (YJC) Order as an appropriate disposition. He relied upon the following factors in support of that contention:
1) Your youth. Given that you were 18 years of age when the offending occurred, you are to be regarded as a young offender.
2) The fact that you pleaded guilty at an early stage.
3) The fact that you are genuinely remorseful.
4) The fact that you have no prior convictions and no charges pending. He stated that your good character was illuminated by the references filed on your behalf.[3]
5) The fact that you had sustained significant injuries as a consequence of the collision.[4] You sustained fractures in your back and sternum.
Your counsel argued that your trauma is exacerbated by the fact that the extent of those injuries was not detected when you were discharged from the Dandenong Hospital the day after the collision. It was not until 16 July 2017, two days later, when you presented at the Emergency Department of The Alfred Hospital, that you were properly diagnosed and underwent spinal surgery.
6) He also relies upon the fact that subsequent to the collision, you have developed symptoms of depression at a clinical level and fulfil criteria of a diagnosis of adjustment disorder with depressed mood. In that sense, he relies upon the fifth limb of Verdins to the extent that imprisonment will be more burdensome for you than it would be for a person in normal health. In support of that submission, he refers to Ms Lechner's observation that “therapy with a trauma base focus is likely to be helpful to you” and that this is not available in a custodial setting.
I accept that in light of Ms Lechner's observation, the fifth limb of Verdins is applicable in your case. While your adjustment disorder has arisen consequent upon the collision, I accept that if left untreated you are at risk of developing a major depressive disorder. There is evidence before me that that condition could worsen whilst incarcerated[5], therefore I take this into account when imposing my disposition upon you.
7) Finally, he relies upon the fact that you present as an individual with excellent prospects for rehabilitation. In that regard, reliance was placed on a number of certificates that were placed before me in support of that contention.[6]
Since the collision, it is clear to me that you have genuinely embarked on a path of personal rehabilitation. You have completed a Road Trauma Awareness Seminar. Furthermore, you have completed a Drug Driver Education Program and referred yourself to the Frankston and Mornington Drug and Alcohol Service to obtain counselling and support. Insofar as vocational matters are concerned, you have completed a Certificate in Legal Services at the Chisolm Institute in October of last year.
[3] Exhibit 6
[4] Exhibit 4
[5] Thus enlivening the 6th limb of the Verdins’ principles
[6] Exhibit 5
23As I indicated on the plea in mitigation, I regard these matters as highly significant. In setting the non-parole period in your case, I have had regard to these matters in particular. You strike me as an individual who has confronted the reality of the cause of your offending, being illicit drug use. Secondly, while still a youthful offender, the fact that you have embarked (all of your own accord) on such programs speaks to your maturity. These are all matters which to my mind auger very well for your prospects for rehabilitation.
24I should also add that you have been seeing a clinical psychologist, Ms Elizabeth McMillan, from 3 April 2018 to 19 December 2018.[7] In the course of those sessions with Ms McMillan, she states that you have expressed sincere remorse, sorrow and deep repentance. She also notes that you have ceased any drug use and have completed successful drug screens (which are before me in evidence). She also notes that you have completed an eight-week Positive Lifestyle Program, drug counselling, a drug driving course and a Road Trauma Awareness course, some of which I have already referred to. She also is of the opinion that you have been and continue to suffer from extreme severe depression, severe anxiety and stress.
[7] Exhibit 3
25There can be no doubt that there are a number of matters in mitigation that point favourably to your future, however, as I made clear to your counsel, in the course of the plea in mitigation, I am of the view that detention in a Youth Justice Centre is not an appropriate disposition.
26In that regard, I heed what was said by the Court of Appeal, in the decision of DPP v Hill[8]:
"Numerous appellate decisions have considered sentences imposed upon young offenders with a good family background, unblemished work records and no prior convictions, who have been convicted of culpable driving. Such cases have emphasised that mitigatory factors of this kind, do not ordinarily outweigh the important emphasis which must be placed on deterrence and denunciation in sentences for offending of this nature."
[8]DPP v Hill [2012] VSCA 144 at [44]
27And further, the Court said this at paragraphs [50] and [52]:
“[50] While rehabilitation of a young offender is a very important consideration in sentencing, the authorities discussed above demonstrate that it must sometimes give way to other sentencing considerations, particularly general deterrence and denunciation. In DPP v Lawrence[9], a sentencing decision relating to recklessly causing serious injury involving ‘glassing’, the approach to sentencing youthful offenders was described by Batt JA (with whom Winneke P and Nettle JA agreed) as follows:
‘youth and rehabilitation must be subjugated to other considerations. They must … take a “back seat” to specific and general deterrence …This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation must be emphasised.’
[51] … Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.”
[9] (2004) 10 VR 125
28Sadly, yours is a case like so many wherein a young person such as yourself has failed to understand that driving under the influence can lead to tragic and fatal consequences. In the circumstances, the sentencing principles of general deterrence, specific deterrence and punishment must loom large in the sentencing equation.
29I turn now to your personal circumstances. You are now 20 years old. You currently live at home with your parents and younger sister. You have an older brother, who lives away from home. Your family unit is a close one. You grew up in the Mornington area and went to school in Dromana. You completed Year 11 (VCAL) in 2016. The next year you commenced a Certificate IV in Justice but did not complete it. However, in 2018, you returned to your studies and successfully completed them. You would like to extend it to a diploma and pursue a career in criminology.
30You began working part time at Taco Bell in Mornington when you were 15 years old and you continue to work there. I received a reference from your employer, Mr Dean Janosa.[10] He describes you as hard-working, trustworthy and reliable. He also discerns a shift in you after the accident, describing you as more reserved and was concerned as to your precarious mental state. Furthermore, he recounts that you have expressed to him on more than one occasion your deep remorse over having caused the death of your best friend, Georgia.
[10] Part of exhibit 6
31You have the benefit of a strong family support unit. No doubt, your family will continue to support you whilst you are in custody and you will have the benefit of that support network upon your eventual release. I have taken into account all of these matters when considering the appropriate disposition in your case.
32Please stand, Ms Perrin.
33In relation to Charge 1 on the Indictment, being one charge of culpable driving, I convict and sentence you to a period of imprisonment of five (5) years.
34I declare a period of three (3) years before you become eligible for parole and I order that such declaration be noted in the records of the Court.
35Pursuant to ss 89(1)(a), 89(2)(b) and 87P(c) of the Sentencing Act 1991 (Vic) I cancel all driver licences held by you and I disqualify you from obtaining a licence for a period of three (3) years, backdated to 24 April 2018 (being the date a s51 notice was filed suspending your licence).
36Pursuant to s89C(2) of the Sentencing Act I also make a declaration in the Order of the Court that this offence was committed under the influence of a drug which contributed to the offence.
37For the purposes of s6AAA of the Sentencing Act, were it not for your plea of guilty, I would have imposed a sentence of imprisonment of seven (7) years with a non-parole period of five (5) years.
38I make the order for disposal in the terms sought by the prosecution.
39I order that you provide a forensic sample pursuant to s464ZF(2) of the Crimes Act 1958 (Vic). I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
40Having regard to your youth and vulnerability, I make a recommendation to the Adult Parole Board to make an order pursuant to s471 of the Children, Youth and Families Act 2005 (Vic) directing that you be transferred to serve part or all of your sentence in a Youth Justice Centre. All relevant materials should be provided to the Adult Parole Board as soon as possible to enable it to consider whether such order should be made.
41You may be seated, Ms Perrin.
42MR SMALLWOOD: As the Court pleases.
43HER HONOUR: Now, just before we adjourn, I will indicate that certain notes have been made on the Order, having regard to custody management issues in relation to Ms Perrin, given that this is the first time that she will be in custody.
44MR SMALLWOOD: As the Court pleases.
45HER HONOUR: Yes, very well. Yes, we will adjourn until 10:30.
‑ ‑ ‑
0
4
0