Director of Public Prosecutions v Pershouse

[2024] VCC 397

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01450

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL PERSHOUSE

---

JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2024
DATE OF SENTENCE:	27 March 2024
CASE MAY BE CITED AS:	DPP v Pershouse
MEDIUM NEUTRAL CITATION:	[2024] VCC 397

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence

Catchwords:              Dangerous driving causing serious injury; failing drug test within three hours of driving; driving whilst disqualified; contravening family violence intervention order

Legislation Cited:      Crimes Act 1958 (Vic) s 319(1A); Road Safety Act 1986 (Vic) ss 30(1), 49(1)(i), (3AAA)(c); Family Violence Protection Act 2008 (Vic) s 123(2); Sentencing Act 1991 (Vic) ss 87P, 89(1), (2)(a).

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Verdins v The Queen (2007) 16 VR 269.

Sentence:                  Total effective sentence of three years and two months’ imprisonment with a non-parole period of two years and one month; licence cancellation for 24 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. White	Office of Public Prosecutions
For the Offender	Mr R. Bhattacharya	Victoria Legal Aid

HER HONOUR:

1Michael Pershouse, you have pleaded guilty to two charges of dangerous driving causing serious injury; each charge carries a maximum penalty of five years’ imprisonment.[1]

[1]Crimes Act 1958 (Vic) s 319(1A).

2You have also agreed to have uplifted, and pleaded guilty to, the following summary charges:

(a)   failing a drug test within three hours of driving, which attracts a maximum penalty of 120 penalty units, this being a subsequent offence;[2]

(b)   driving while disqualified, with a maximum penalty of four months’ imprisonment or 30 penalty units;[3] and

(c)   contravening a family violence intervention order with a maximum penalty of two years’ imprisonment or 240 penalty units.[4]

[2]Road Safety Act 1986 (Vic) ss 49(1)(i), (3AAA)(c) as at 10 June 2018.

[3]Ibid s 30(1).

[4]Family Violence Protection Act 2008 (Vic) s 123(2).

Factual background

3A summary of prosecution opening was tendered and marked Exhibit 1 on your plea. That document forms the factual basis for this sentence.  I will refer to parts of it in summary form here.

4Early in the morning of 10 June 2018 you were driving west along Dandenong Road in Murrumbeena. Dandenong Road is a six lane, two-way highway that runs in an east-west direction. There are service lanes on each side, divided from the road by a grass median strip. The applicable speed limit is 80 kilometres an hour.

5Seated beside you in the front passenger seat was your friend Joshua Anderson. In the rear passenger seat sat Nakita Manders, the victim of Charge 1. On the right-hand side sat Jake Seymour, the victim of Charge 2. Both were 12 years old at the time. Also in the car in the middle seat was Charlee Lehmann, your stepdaughter, who was 13. The three teenagers were asleep; it was 1.30 am.

6I pause here to note that at the time of your offending there was an interim family violence intervention order in force against you for the protection of Ms Lehmann. The order included full no-contact conditions and prohibited you from communicating with or being near her. This gives rise to Summary Charge 8, contravention of a family violence intervention order.

7At around 1:30 am, you had driven across Murrumbeena Road and you drove on west along Dandenong Road. There were three or four other cars on the road nearby.

8Mr Anderson noticed the car was travelling too fast and “swerving around” on the road. He looked over to you and saw that you had fallen asleep at the wheel.

9As Mr Anderson screamed “Michael, Michael, Michael” to try to wake you, the car veered off the main carriageway toward the left-hand side of the road, mounted the grass median strip and continued on to strike the metal pole of a street sign, knocking it out of the ground before colliding with a tree. The car came to a stop there, some 15 and a half meters from where it first veered off the main carriageway.

10At the time of the collision you were estimated to be travelling at a speed of approximately 30 kilometres an hour.

11The force of the collision caused significant damage to the car. The front sustained about 0.43 metres of 'crush', and some parts, including a front headlight, were scattered some 17 metres into the slip lane.

12Mr Anderson felt pain in his ankle as soon as the car struck the tree. He got out of the car and opened one of the rear doors to check on the children, each of whom were eventually able to get out of the car themselves.

13Mr Seymour would later recall getting “knocked out” by the force of the collision and waking up when “everyone else” was out of the car. He also described seeing you lying on the median strip, screaming and crying, and saw that Ms Lehmann was also crying.

14Unknown members of the public called emergency services. Paramedics were already in attendance by the time police arrived; they were treating you as you lay on the grass median strip and you appeared to be in great pain. Ms Manders, Mr Seymour and Ms Lehmann were also being treated and appeared, too, to be in pain.

15When police asked you what had happened, you said “I fell asleep”. When asked whether you had taken anything you said you had taken codeine, nothing else.

16It was later established that you were unlicensed and disqualified from driving, and the car was not registered to you. This gives rise to Summary Charge 6, driving whilst disqualified.

17You were taken by ambulance to the Alfred Hospital and the children were taken to the Royal Childrens Hospital. Mr Anderson did not require emergency treatment and stayed at the scene.

18At the Alfred Hospital, at 4:06 am, a sample of blood was taken from you which was later analysed; it was found to contain 0.81 milligrams of methamphetamine per litre and 0.18 milligrams of amphetamine per litre. This forms the basis for Charge 5, failing a drug test within three hours of driving.

19Turning now to the injuries sustained by your passengers: Nakita Manders was admitted to the paediatric intensive care unit. She had abrasions, bruising and a seat belt mark to her chest and abdomen. Subsequent examination located large lacerations to her spleen, causing major devascularisation (loss of blood supply), further lacerations to her liver, and consequent internal bleeding and blood clots within her pelvic region. She also suffered a fractured rib and a mildly deformed T8 vertebra. She was in and out of consciousness. She was discharged home seven days later.  She had to take eight weeks off school and she experienced ongoing pain.

20Jake Seymour suffered loss of consciousness and pain at the scene; he was found to have sustained multiple abrasions to the chest, bruising to the lower abdomen, multiple splenic lacerations and contusions to his right lung. He was treated in the general ward before being discharged home after four days’ treatment. He experienced ongoing symptoms for eight months and ongoing psychological harm.

21You were also injured and treated in hospital; I will return to those matters later in your sentence.

22Over the months after the collision witnesses from the car made statements which put together a picture of the scene inside the car before the collision.  You were observed to have consumed “weed” with Mr Anderson and to have drunk alcohol from a Slurpee cup.  The children were given Vodka Cruisers. There was some purpose of visiting someone who you said you had to “sort out”. It was late and chaotic and there were drugs and alcohol on board.

Arrest and interview

23On 21 August 2018 you were being held on unrelated charges and made a record of interview about this event.

24You told police, among other things:

·        that you had been driving the car at the time of the collision and that you had fallen asleep;

·        that the cruise control on the vehicle was on at the time because you were “absolutely fucked” and felt exhausted;

·        that you woke up as the car “hit the grass” and you “saw the tree coming towards” you;

·        that you “barrelled” out of the car and that you recall being in “so much agony” after the collision;

·        that you were disqualified from driving at the time because you had been caught “drink driving” and that you were aware you should not have been driving;

·        you said that the “gear” or “ice” found in your blood on analysis would have been from the day before you drove the vehicle with the children in it;

·        you said that you were responsible for the collision and that you felt “so shit” about the injuries that resulted from it.

25At the conclusion of the interview you were bailed to appear at the Dandenong Magistrates' Court on 19 October 2018. You did not appear but departed for Queensland. 

Prior criminal history and subsequent offending

26The chronology of the history of before and after your commission of the offences now before the court is set out in some detail in the prosecution submissions on sentence at paragraph 8.

27Although much of your driving offences are in fact subsequent convictions, the chronology shows that in the ten months before this collision you were intercepted by police while driving and were later charged with multiple offences: driving in excess of the prescribed alcohol content, failing an oral fluid test, driving disqualified, driving unlicensed and driving an unregistered car.  You were in Court on 19 March 2018 and sentenced for one of those occasions. Just the day before this offending you were pulled over and found to be disqualified from driving. I make it clear that most of these events are not prior convictions, but they represent multiple occasions where you came to the attention of police for driving while unlicensed and driving under the influence, and yet you persisted.

28You also have an extensive prior criminal history across Queensland and New South Wales; the history discloses, primarily, a sentence of imprisonment and other sentences for dishonesty offending.  I have read the reasons for sentence of Judge Allen QC of the Queensland District Court. You fled to Queensland after these events and served sentences there before being extradited to Victoria to face these charges; Judge Allen refers to the Victorian arrest warrants then outstanding.

29Judge Allen also refers to your history of breaching Corrections orders and breaching parole.

30I note the subsequent offending dealt with in Victoria in 2023, for which you received 12 months’ imprisonment with 147 days reckoned as served.

31It was put on your plea that while you do have an extensive history, it is not one referable to offending by driving, in the main. While this is true to a degree, the chronology of offending in Victoria is now rich with driving offences, both prior and subsequent.  

Nature and gravity of the offending

32I must assess the nature and gravity of your offending.  You put three children (one of whom you were prohibited from seeing at all) in the car, and another adult, and drove in circumstances where you knew you were incapable of keeping proper control of the car. It is not clear, and is immaterial, whether your state was directly due to intoxication from methamphetamine or whether you were in a state of ‘rebound fatigue’ (you tell police later that you had not slept for five days). You described yourself as “absolutely fucked” and engaged the cruise control because you knew you were not able to control the car.

33You were unlicensed, and disqualified from driving.

34Your moral culpability is elevated by the number of occasions you had been pulled over by police in the months before this event. You were repeatedly confronted with your unlawful driving and yet persisted. 

35You had methamphetamine in your system.  Your counsel conceded that these were examples of “mid-level to serious” examples of dangerous driving.  I find, having regard to all the circumstances, but particularly by reference to your decision to drive in the state you were in with three teenagers in the back seat, these are properly to be considered as mid to serious examples of dangerous driving causing serious injury. I note that on the scale of injury that is sometimes seen in these cases, the level of injury was, thankfully, lower than some of the life-altering injuries that we sometimes see.

Victim impact

36I received three victim impact statements in this case from Charlee Lehmann (who also came to court and read her statement), Nakita Manders and Ms Jackson, the mother of your third passenger Jake Seymour.  

37Each statement discloses both the immediate as well as the enduring consequences that your victims experienced. They were put in this position by you during their tender teenage years, and they have experienced consequent problems in their education, their social well-being and employment. Ms Manders finds being in cars difficult; she has delayed getting her driver's licence. Ms Lehmann suffers anxiety, particularly around driving. Ms Jackson describes Jake’s behavioural and psychological problems that emerged after the accident, and I take these matters into account in fixing your sentence.

Personal circumstances

38You are 36 years old and you were 30 at the time of your offending.

39You have three children from your former partner, Chloe Graham, with whom you now maintain a positive relationship. Ms Graham has provided a character reference for you.

40You were born in Queensland, the youngest of 11 siblings. Throughout your childhood you were exposed to serious criminal violence and abuse, perpetrated by your father against your mother and siblings.  Your younger years were defined by instability and disruption. Your father was ultimately imprisoned for 18 years, though this was commuted on the grounds of his ill health shortly before he died.  Child Services became involved with your siblings, while you remained living with your mother.  She suffered mental health consequences of what your father had done and you were exposed to that too.

41School was also a dangerous place for you.  You experienced sexual abuse from a senior staff member. You are currently seeking redress.   You completed school up to Year 9 and had limited further education since.

42You began using drugs at an early age; cannabis at 13 and amphetamines or methylamphetamines from the age of 14.  Substance misuse is an ongoing issue in your life, it caused you to have difficulty maintaining employment, among other things.

43In 2014 you moved from Queensland to Victoria in an attempt to break with drug use and distance yourself from a harmful social milieu.  

44It was here in Victoria that you began to work as a sports bar manager in Hastings and entered a relationship with Tanya Lewis, the mother of Charlee Lehman. Between 2014 and 2018 has been described as “the most positive period of [your] life.” For most of this time you and Ms Lewis built a life together as a family; you formed a strong relationship with Charlee, and your own children from the relationship with Ms Graham lived with you in Victoria for a period.

45In 2018, however, Ms Graham successfully sought custody of the children and they moved back to Queensland. The relationship with Ms Lewis came to an end in the light of your relapse into drug use. Some of your prior offending occurred during this period.

46You returned to Queensland in August of 2018 (before these matters had been dealt with, at a time that must have been soon after your discharge from hospital). You offended almost immediately and were soon in custody in Queensland, where you largely remained from about September 2018 onwards.

Matters in mitigation of sentence

Plea

47You have pleaded guilty.  This attracts a substantial discount on your sentence. There is a particularly significant utilitarian value in your plea as three young people were spared from coming to Court.  It was accepted that the timing of your plea means it does not attract the additional Worboyes[5] discount.

[5]Worboyes v The Queen [2021] VSCA 169.

Bugmy considerations, psychological evidence

48You endured severe deprivation throughout your formative years, and the consequences of this are now clearly and deeply entrenched.

49On your plea your counsel argued that the principles in the case of Bugmy[6] apply to reduce your moral culpability for this offending. It was argued that your background took a toll on your ability to learn from experience and also made you more prone to substance misuse. Dr Owens, the psychiatrist who assessed you, wrote:

“I think it is likely that he never developed the emotional self regulation skills or coping skills to enable him to manage the basic problems of independent life, to navigate relationships, to earn one’s way through work and to take responsibility for failures and learn lessons from them.”[7]

[6]Bugmy v R (2013) 249 CLR 571.

[7]Report of Dr Nicholas dated 5 September 2023 [92].

50Dr Owens went on to say that your childhood trauma, and the personality disorder arising from it, has given rise to qualities of reckless disregard for the safety of others, consistent irresponsibility and a pattern of unstable relationships, among other problems.[8] Dr Owens also said:

“In my view there is no connection between psychiatric illness of any kind and his actions at the time of the offending. His decisions to continue driving a car, in contravention of being disqualified from driving while grossly intoxicated, are likely to represent an example of reckless and impulsive behaviour consistent with his personality disorder. However, I do not consider that his personality disorder, in itself, resulted in inability to exercise judgment, to think clearly or make calm or rational choices or to appreciate the wrongfulness of his conduct.”

[8]Ibid [93].

51I do not find your offending allows a confident conclusion that your background of deprivation planted directly the seeds of the driving you engaged in on the occasion of these offences. I do not, however, fail to appreciate more generally the things you endured as a child and which I apply more generally in mitigation of your sentence, on the basis that I accept your background has impaired your capacity to mature and learn from experience, and to make adult proper decisions about  how you conduct yourself. All these things bear, if not directly, then indirectly, on your circumstances as they were at the time of your commission of the offences and these effects on you do not diminish over time.

52Dr Owens, I note, diagnoses you with chronic PTSD, a personality disorder and a very significant drug use disorder. No specific Verdins[9] submissions were advanced, but I take these matters into account more generally, and will also note that they increase the weight to be given to the burden of your imprisonment, to which I will now turn.

[9]Verdins v The Queen (2007) 16 VR 269.

Physical health, the burden of imprisonment

53I was provided with hospital discharge documents that were created in August 2018 after your release from hospital. It is clear that you are now partially reliant on a wheelchair and have to consistently rely on a catheter. It was put on your plea that these problems were the result of the injuries that you sustained in the car accident and should thus be taken into account as extra-curial punishment. There was some question raised by the prosecutor that your earlier injury in a prison assault may be partially responsible for those injuries.

54It is difficult to be certain about what of your current health difficulties have their genesis in this driving event. It is clear you were treated for, among other things, sacral fractures after the accident. I calculate the medical difficulties experienced by you as a matter to give some, but little weight, in taking extra-curial punishment into account.

55It is more meaningful to understand your current medical ailments as mitigating punishment as they contribute to the burden of your imprisonment. You are more vulnerable in custody due to your reduced mobility, and the fact that you need consistent attention to your catheter.

56You are also a protection prisoner as the result of your own perception that you are in danger in custody from other prisoners. This was not given great weight on your plea, and specific matters said to flow from your classification as a protection prisoner were not advanced. I do take this feature into account, however, to a modest degree, as increasing the burden of your imprisonment.

57I also note that your mother passed away recently while you were still in prison. You were only able to speak to her by a video call in her final days. I take the toll of this into account as it adds to the weight of your imprisonment.  

Prospects for rehabilitation

58Considering the entrenched difficulties stemming from your childhood, your enduring substance abuse issues, as well as your criminal history, I find that your prospects for rehabilitation can only be seen as guarded.

59Perhaps the “green shoots” that your counsel described, being a stable affectionate relationship with your former partner Ms Graham and her family, will prove me wrong.  For now, though, I must find that these first signs are just that and are quite untested.

Delay and totality

60There was a substantial delay between your offending and this sentence, though properly there was no attempt to plead delay in your case, given your flight to Queensland soon after your discharge from hospital treatment, and the significant offending that you have since been sentenced for there.

61I note that you have, in effect, been in custody for other offending since your departure from Victoria in 2018, a total of nearly six years. The principle of totality requires me to moderate this sentence in that context.

62I will impose a degree of cumulation to recognise the separate victims. I am careful not to doubly punish you for taking into account your state while driving as a circumstance of the offending, and then to impose separate punishment for the summary offence, though you will receive some time to serve on that charge. I must punish you separately to a degree for your breach of the intervention order which forbade you from seeing Ms Lehrmann at all.

63I am aware that you are currently undergoing sentence which is due to expire on approximately 16 May 2024, and I will make orders for this sentence to be served concurrently with that State sentence as part of the expression of the principle of totality.

Remorse

64I accept that you have expressed in your record of interview and to the assessing psychiatrist, Dr Owens, full and appropriate remorse for what you did, with particular reference to how gravely you hurt the children in the car, and this assists me to moderate, somewhat, the emphasis that I put on specific deterrence.

Purposes of sentence

65Driving offences like this one call for sentences that will be effective in deterring others from driving in similar ways.  There must also be some specific deterrence in this sentence, as well as just punishment, for what you did. Your conduct is denounced; it is said on behalf of the community that driving in the way you did is wholly and completely unacceptable. Community protection in your case will be brought about by imposing a serious consequence of extended imprisonment in the hope that this will change your behaviour in future.

66On the plea your counsel argued for a combination sentence (there is no pre-sentence detention, I note).  As I indicated at the plea, I do not regard 12 months' imprisonment, in combination with a Corrections order, to be sufficient to give effect to the need for general and specific deterrence or punishment in the circumstances. I come to this view notwithstanding the powerful Bugmy[10] and totality arguments, in particular.

[10](n 6).

Current sentencing practices

67I have had regard to a range of sentences for similar offending. No case is exactly like yours.  My task is to do individual justice, but I sentence you in that landscape.

68Mr Pershouse, I am now going to tell you the disposition.  At the end I will tell you what it all adds up to as a total effective sentence.

Disposition

69On Charge 1, dangerous driving causing serious injury, you are convicted and sentenced to two years and three months' imprisonment.

70On Charge 2, dangerous driving causing serious injury, you are convicted and sentenced to two years and three months' imprisonment.

71On the related summary charge of failing a drug test within three hours of driving, you are convicted and fined in the amount of $400.

72On the related summary charge of driving while disqualified, you are convicted and sentenced to two months' imprisonment.

73On the related summary charge of contravening a family violence intervention order, you are convicted and sentenced to three months' imprisonment.

74I direct that nine months of the sentence on Charge 2 and one month of the sentences on Charge 6 (drive disqualified) and Charge 8 (contravention of an intervention order) are to be served cumulatively upon each other and upon the sentence on Charge 1, resulting in a total effective sentence of three years and two months' imprisonment.

75I direct that this sentence be served concurrently with the State sentence you are currently undergoing.

76I fix a non-parole period of two years and one month before you become eligible for parole.

77I am obliged to cancel your licence for a period of not less than 18 months but given your history I will make that order for the duration of 24 months.

Finding s 89

78Pursuant to s 89C of the Sentencing Act1991,[11] the Court may, in addition to making another order under s 89(1) of the Act,[12] make a finding that the offence was committed while you were under the influence of alcohol or a drug which contributed to the offence, and I make that finding.

[11](Vic).

[12]Ibid.

Section 6AAA

79Pursuant to s 6AAA of the Sentencing Act 1991,[13] I declare that had you not pleaded guilty but been found guilty by a jury after trial, I would have imposed a sentence of four years and six months' imprisonment, with a non-parole period of two years and nine months' imprisonment.

[13]Ibid.

80I note that there is no pre-sentence detention to be declared.

81Mr White, have I missed any orders?

82MR WHITE:  I'm sorry, Your Honour, no, you haven't missed any orders, Your Honour.

83HER HONOUR:  Thank you.  That done then that completes this case.  There are other matters in the list so I will briefly stand down before we commence those.  Thank you counsel for your assistance.

84MR WHITE:  As Your Honour pleases.

- - -