Director of Public Prosecutions v Peterson

[2021] VCC 502

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00548

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD PETERSON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2020, 23 April 2021
DATE OF SENTENCE:	28 April 2021
CASE MAY BE CITED AS:	DPP v Peterson
MEDIUM NEUTRAL CITATION:	[2021] VCC 502

REASONS FOR SENTENCE

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Subject: Criminal Law Sentence

Catchwords: Aboriginal Offender – Bugmy Principles – Offending whilst under influence of drugs – Causing serious Injury Negligently – Theft – Conduct endangering persons – Fail to render assistance.

Cases Cited: Bugmy v The Queen [2013] HCA 37; Harrison v R; Rigogiannis v R [2015] VSCA 349; Douglas and Albone v R (1995) 56 FCR 465; R v Verdins 16 VR 269.

Sentence: Five years and four months imprisonment with a non-parole period of three and a half years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Accused	Mr G. Davis	Hilton-Wood Solicitors

HIS HONOUR:

1Jarrod Peterson, you have pleaded guilty to a charge of theft of a motor car, which carries a maximum penalty of 10 years imprisonment.  Also to a charge of negligently causing serious injury, which carries a maximum penalty of 10 years imprisonment, a charge of conduct placing persons in danger of serious injury, which has a maximum of five years, and a charge of failing to render assistance, which carries a maximum penalty of 10 years.

2You also pleaded guilty to relevant summary offences; failing to allow a blood sample to be taken after an accident, which carries a maximum term of imprisonment of 12 months, and the relevant summary offence of unlicensed driving, which has a maximum of six months imprisonment.

3You have admitted relevant prior convictions.  The facts of your offending are clearly and succinctly set out in the Summary of Prosecution Opening prepared and delivered by Ms Harrold, which was Exhibit A on the plea and forms part of these reasons for sentence.

Circumstances of Offending

4In brief, in the lead up to your offending you had been consuming alcohol with the victim, Ms Pappin, with whom you had been in an ‘on-and off-again’ relationship for some four years or so.  You had been drinking alcohol.  You had also been smoking marijuana and using methylamphetamine.

5At some point in the evening it was decided that you would travel from Mildura to Merbein, and you went to several houses looking for someone to drive you, or for assistance getting there.

6At some point you and Ms Pappin discovered a vehicle that had the car keys hanging from the doorway and you drove it.  You took the car – which constitutes Charge 1, theft – and your driving of that vehicle constitutes the summary charge, unlicensed driving.

7You started driving towards Merbein.  Ms Pappin was falling asleep but also noticed that you were driving erratically, and she told you to slow down several times because you were driving too fast.

8At approximately 7:15am you were travelling west along Fifth Street, approaching the intersection of Fifth and Paschendale Avenue in Merbein.  At the same time the principal victim in relation to the reckless conduct charge,
Mr Frost, was driving his green Ford Falcon utility north, along Paschendale Avenue, where the speed limit was 100 kph, but Mr Frost had slowed to 90 kph, as he knew it was a dangerous intersection. 

9There was a stop sign at the intersection, requiring you to stop and give way to oncoming traffic from Paschendale Avenue.  The sign was clearly visible and unobscured and there was a stop line across the intersection.  Visibility was good at the time.

10Ms Pappin could see Mr Frost's vehicle approaching as you drove towards the intersection.  For some reason you accelerated faster, however, and drove straight past the stop sign.  Ms Pappin yelled at you to stop.  You entered the intersection at the same time, effectively, as Mr Frost's vehicle.  The front of his vehicle then collided with the passenger side of the stolen vehicle you were in, resulting in a catastrophic collision, and it is that conduct that underpins Charge 2, negligently causing serious injury, as well as Charge 3, conduct endangering persons.

11Investigators noted there was no visible skid marks on or near the intersecting road of Fifth Street, indicating that you did not appear to stop or try to take evasive action to avoid collision, which says something about your awareness at the time. 

12You extricated yourself from the car and fled the scene, which is to your great discredit and something for which you are rightfully ashamed of and which also constitutes Charge 4, failure to render assistance.

13Ms Pappin did not see you leave and called out for you to help, eventually crawling out of the car through the passenger window.  She dragged herself – despite her pain and disorientation, to the nearest house and screamed for help, till some onlookers contacted 000.

14Mr Frost was shaken from the collision.  There was significant damage to the front of his vehicle and a number of his tools had fallen off the utility.  He saw you running away into nearby grapevines as you walked around the scene.  You returned to the scene, once police were at the scene, and were misleading in your exchanges with them as to who you were and what your role was in the driving of the vehicle.

15You went with paramedics to Mildura Base Hospital for treatment.  Police, at one point there, asked you if you would provide a blood sample and you replied 'no fucking way'.  You were informed of the consequences of refusing to allow a blood sample to be taken and you replied, 'I'm not giving my fingerprints or blood', and that constitutes the relevant summary offence – Charge 5, fail to allow blood sample to be taken after accident.

16Pursuant to a warrant a urine sample of yours that came via the hospital was obtained by police and it indicated your blood contained amphetamine, methamphetamine – amphetamine probably being a by-product of the methamphetamine – benzodiazepine and cannabinoids.

17Ms Pappin suffered significant internal injuries and was transferred to the Alfred Hospital in a critical condition.  She had suffered a splenic laceration and underwent an emergency laparotomy to remove her spleen, which is also referred to as a splenectomy.  She was intubated and placed into a medically induced coma and was also placed on a ventilator.

18A number of additional injuries were discovered once imaging was conducted upon her including fractures to ribs on her left side, flail chest – which occurs when three or more ribs in a row are fractured in two or more places, creating a free floating section of ribcage – splenic laceration, as I have referred to, requiring the removal of her spleen, left hemopneumothorax or collapsed lung, fracture of the left coracoid process – which is part of the scapula – fractures which are described as bone bruises to the vertebral bodies of the T2 to T4 vertebrae in the upper thoracic spine and ventilator acquired pneumonia. 
Ms Pappin developed a lung infection associated with being on a ventilator, and also associated with the rib fractures and flail chest, and that infection required treatment with intravenous antibiotics.

19After spending 14 days in hospital she was discharged and now has steel plates in her chest, holding her broken ribs in place.  She has lost all sensation to the left side of her chest from resulting nerve damage.  She is now unable to turn her head and look right unless she turns her whole shoulders with it.  She takes Oxycodone to manage constant pain from her injuries and struggles to sleep at night due to the trauma of the collision.  She is seeing a psychologist.

20It is important to note that the removal of the spleen leaves a person with a lifelong increased risk of developing serious infection, as the spleen assists the body to fight infections.  She is now required to have regular vaccinations and take oral antibiotics daily.  She has injections every three months.

21You did not suffer any major injuries as a result of the collision.

22You were interviewed by police initially on 5 December 2019 and gave a less than frank interview, in my assessment as you stated you were the passenger in the car at the time of the collision. 

23You indicated that you were unable to recall what happened, essentially.  You did tell the police you were using drugs and went into detail about having a hot shot, which was an injection with a needle containing drugs such as heroin, ice and other substances such as MDMA, or something similar. 

24You were interviewed again on 13 December 2019 and you were more frank on that occasion, indicating you used cannabis and amphetamines, but at the time of your interview you said it had been a week and a half since you had stopped using everything and you admitted you were affected by substances at the time of the offending. 

25You went into detail about smoking cannabis and approximately 1 gram of ice in a pipe.  You said you did not see the stop sign and did not know there was an intersection there at all, indicating you had not driven along the road much before.  You agreed that it was dangerous to be driving with the substances in your system and that you should not have been driving that day and that you should have looked for stop signs, which you did not see.  You explained your refusal to provide a blood sample as due to you being under the influence but also panicking.

26Victim impact statements were filed from each of the victims; that is Ms Pappin and Mr Frost.  I have already summarised, substantially, the physical impact on Ms Pappin.  Her victim impact statement was read aloud on the plea and I take the matters into account.  I will refer to one brief aspect of it.  She states:

'The ongoing impacts of not having a spleen will remain with me for the rest of my life.  I am on permanent pain relief, antibiotics, antidepressants.  The antibiotics are to protect me from all infections, all illnesses, as any small sickness can kill me.  I have to be careful constantly.

I live with this trauma every day, it never goes away.  My kids are scared to lose me, so it impacts on them'.

27And it goes on in more detail.  I will not refer to Mr Frost's victim impact statement but of course I take the matters into account and he was understandably extremely shaken by an event which, effectively, was only milliseconds away from serious injury or death for him.  Suffice to say, in relation to Ms Pappin, that the effects upon her and the impact of your offending are devastating and lifelong.

28Turning to the objective gravity of the offending, and particularly in relation to the offence of negligently causing serious injury.  Of course, you were unlicensed at the time of driving, driving a stolen vehicle.  As general circumstances they are relevant to my assessment of the negligently causing serious injury, although I note that of course I will be sentencing you separately for driving whilst unlicensed and for stealing a vehicle and I am careful to avoid double punishment.

29You were driving under the influence of amphetamines and cannabis and you were driving erratically, as has been noted.  Importantly, from a sentencing point of view, it is serious that you had been asked by Ms Pappin to slow down several times.  It can be inferred that your state of intoxication was such that you were driving in this extremely negligent fashion.  Your lack of attention was so significant in these circumstances that apparently you did not see the stop sign at the intersection.  As if that was not negligent enough, you accelerated into the intersection despite the approaching vehicle.

30The seriousness of the injuries to Ms Pappin are significant and lifelong, as I have indicated.  Both the degree of negligence and the seriousness of the injuries are matters which place your offending high on the scale for the offence of negligently causing serious injury.

31In relation to reckless conduct of course I have already noted how close
Mr Frost came to being seriously injured or worse, as he has noted in his victim impact statement.  Fleeing the scene was reprehensible in the circumstances, in particular, where you have left Ms Pappin behind after such a significant collision which has clearly resulted in serious injury to her.  Your commission of that offence of failing to render assistance is a serious example of the offence.

32In a very helpful and thorough submission on sentence Ms Harrold referred to the case of Harrison v The Queen and Rigogiannis v The Queen,[1] referring to the passages at paragraphs 106 to 107, which I will read out:

'The motor vehicle is an integral part of our society.  Most adult citizens drive cars.  A car driven negligently is capable of producing catastrophic consequences for victims.  When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences.  The most serious instances of the offence of negligently causing serious injury by driving demonstrate negligent conduct of the very highest order.

The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury.  The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly'.

[1]Harrison v R; Rigogiannis v R [2015] VSCA 349

33General deterrence is a significant sentencing factor.  I must also denounce your conduct and I regard that denunciation on behalf of the community as serving a better purpose than pure punishment in respect of you.  I must also impose a sentence, and sentences, that denounce your conduct subsequent to the collision, in leaving the scene, and also refusing the blood test.

Personal Circumstances

34Turning to your personal circumstances.  You are a proud Barkandji man through your father, who is a leader in the community, and you are also proud of your – Waka Waka heritage through your mother's line.

35You were born in Queensland.  Your parents separated when young.  Your biological mother had a drinking problem and there is documented support for the proposition that she drank heavily through the pregnancy – indeed medical notes indicate that she was intoxicated during labour.

36You moved to Mildura with your father from a young age and spent most of your formative years there.  Your parents both had children with other partners and you were unable to provide an accurate picture of the exact number of siblings you had, but you told Mr Mackinnon, the psychologist, that you believed it was about 11 in total; a mixture of full and half-siblings.  Your counsel, in his helpful outline on your behalf, indicated that you have three surviving brothers and five sisters, which may be referring to full siblings.

37You grew up in the Mildura area.  You were aware, growing up, that your family was highly respected and your father, in particular, worked at your school and was a respected Elder in the Aboriginal community there, and also within the legal system.  You did not see your mother much at all during childhood and adolescence.

38You were diagnosed with ADHD at a young age and, unsurprisingly, as is often the case, ADHD went hand in hand with difficulty at school.  Your schooling was limited and difficult.  You also began abusing substances at a shockingly young age.  You told Mr Mackinnon, the psychologist, that it was at age nine you began drinking alcohol. 

39To the neuropsychologist, Dr Evans, you said age 11.  Whichever is the more accurate, it is a young and fragile age to begin drinking to excess, and I will return to that in a moment.  You also began cannabis use at a very young age.

40You have children with a number of partners.  You have four children.  You have a partner, who I have referred to – Ms Stone – who, as I understand it, resides in Mildura and she is the mother of your eldest son, who is 11.  You have a seven-year-old who is living with your natural mother in Queensland, I was told.

41A significant impact for you was in May 2019, when you lost an elder brother, and you discussed that at some length during the sentencing conversation in the Koori Court.  Clearly, it has had an impact on you and you have been experiencing many thoughts about your brother, and experiences in relation to your brother, whilst in custody.

42Against the background of those thoughts and experiences in custody, which you expanded upon in the sentencing conversation, it must be noted that you have had a history of schizophrenia and, in late 2019, you had been attending Mildura Health Service for depot injections every fortnight.  You ceased those and it is significant that at the time of the offending it appears that your schizophrenia and ADHD were untreated.

43In relation to your experience in custody you have enjoyed painting.  You are a talented artist and you play cards. 

44You have experienced prison during the COVID pandemic, which has placed significant limitations on those pastimes as well as, of course, any ability to do programs and perhaps, most importantly, visits and contact with the outside world.  You have kept in regular phone contact with your partner, who I take to mean Ms Stone, your father and a sister.

45You participated fully in the Koori Court sentencing conversation and engaged well.  It was clear that you have a lot of respect for your father who, as I have said, is an Elder in the community and an art teacher.  You aspire to be like your father; an artist and storyteller. 

46During the sentencing conversation the Elders and the Koori Court officer who participated urged you to be your best self and find, within yourself, the strength and purpose to move forward in your life.  You are a talented artist.  A copy of a painting created by you was tendered by your counsel on the plea.  It is impressive.  You are also a talented didgeridoo player and have been involved in performing with Aboriginal dance troupes.  You have also expressed interest in teaching cultural dance.  This is the best pathway forward for you, it would seem.

47You have a strong connection to your Aboriginal identity and your heritage.  This is a positive and powerful factor in your life, if you make it so.  It is also a source of despair and dismay for you, as you have been unable to free yourself from drug abuse and addiction when in the community and have drifted away from positive pursuits such as art, dance, music and cultural experience when in the community, hence you have been unable to fulfil your desire to engage and embrace the mores and traditions of your culture in the way that you know you should.  This is the main challenge you face when released into the community on parole.

48You have four children, you are motivated to be a good role model, as your father and stepmother - who you described to one of the professionals as a beautiful, lovely lady – as they have been for you. 

49You became emotional when you mentioned that your son was self-harming.  It is clear that you desperately want to show your children a better side of yourself and to make them proud.  You want to make your father proud.  I accept these expressions of intent were genuine.

50I take into account your participation in the sentencing conversation.  It was confronting and far from easy for you.  You were brave and honest.  You have many challenges to overcome if you are to rehabilitate; some not of your making and perhaps beyond repair, but all of which can be managed by you with the right support.

51It is likely that you were inflicted with partial foetal alcohol syndrome disorder.  You have been diagnosed with ADHD from age nine.  From age 11, and through your early teenage years, you drank alcohol to excess and regularly used cannabis.  You have also suffered hypoxic brain events and head injuries and, as I have touched on, have been diagnosed with schizophrenia.

52At the initial plea hearing your counsel relied upon a report authored by
Mr Mackinnon, psychologist, who identified three diagnosable psychological disorders; polysubstance abuse disorder, which is self-evident, clinical depression and an acquired brain injury.  Mr Mackinnon concluded that, given your history - in particular drug and alcohol abuse from a young age, hypoxic brain events and head injuries – he concluded it was likely that you had an acquired brain injury.

53Mr McKinnon opined, at page six of his report:

'In my opinion, in a sober state, Mr Peterson does not present with anti-social or criminal traits. Rather, Mr Peterson presents with a strong conscience and a good sense of his community and personal responsibilities.  Mr Peterson's history with offending appears to be rather ‘chaotic’ and mostly unplanned, not reflecting a desire to pursue a criminal career but, rather, reflecting an unstable and troubled character often acting under the influence of alcohol and other substances'.

54Based on your engagement in the sentencing conversation, and based on my assessment of the materials, I accept that opinion of Mr Mackinnon. 
Mr Mackinnon observed that in order for you to cease your pattern of recidivism you will have to sustain a complete abstinence from psychoactive substance abuse of any kind and that sentiment is very clear, based on your history.

55Mr Mackinnon opined that polysubstance abuse disorder, clinical depression, acquired brain injury and psychotic disorder made a very significant contribution to your offending by severely degrading your ability to reason and make sound judgment, elevating impulsivity, distorting cognition and perception, lowering powers of consequential thinking, lowering frustration tolerance threshold and degrading your ability to maintain normal community moral standards. 

56That statement required further investigation and it prompted the seeking of a neuropsychological report to investigate utilising someone with adequate expertise to investigate the existence of an acquired brain injury.

57That report then in turn prompted a further report; a psychiatric court report.  I will turn to the first of those from Dr Loretta Evans, neuropsychologist, who went into great detail in relation to your background and sourced information from a number of independent sources, including medical file notes.

58You went into detail with Dr Evans – or more detail than you had previously with Mr Mackinnon, it would seem – in relation to your early childhood and upbringing, learning difficulties and disrupted childhood, to some degree.  You went into detail as to your own family circumstances, your four children and your circumstances prior to incarceration, which you described as 'typically couch surfing, spending days getting drugs, going to mates houses and shooting up every day'.

59Dr Evans sourced medical file notes from your birth which indicated that your mother had significant alcohol use during pregnancy and was intoxicated with alcohol during labour. 

60More recent medical notes recorded you had very poor literacy, numeracy, and geographical orientation, noted as 'unable to read street signs, only recently could spell middle name' – these notes go back to your school years. In addition, 'multiple fights with teachers and students during primary school, multiple expulsions for throwing furniture, three different mainstream schools, repeated Grade 3.  Class clown, had friends, but often truanted back home.  Could not concentrate on class.  Multiple teachers' aides and home tutors, part of gangs, the victim of physical abuse by older cousins, boarding school for Year 7 and 8.  Liked this but ended, as expelled for throwing a chair at a teacher'.  It did indicate that you were very good at sport.

61In terms of your work history, records indicate that you started a mechanics apprenticeship at age 16 or 17, which you almost completed, but it was interrupted by incarceration; your longest occupation being gardening with CDP in Mildura.

62You indicated to Dr Evans that you regularly consumed whiskey when you were 11 years of age and described yourself as a bad alcoholic when younger.  You indicated that you used cannabis from age 13, using approximately 1 gram per day.  More serious drug use followed in subsequent years.

63Dr Evans sourced records from the Mildura Base Public Hospital which disclosed a history of three previous serious suicide attempts; 2009, 2012 and 2014. 

64In February 2018 she noted that you were re-referred by your Corrections worker, who was aware you had not been engaging with the mental health team.  It was reported that you had resumed illicit drug use and were hearing voices, and a psychiatric review was scheduled.  On 16 February of that year a neuropsychological assessment was also recommended.  In a case conference on 17 May it was determined that you had not attended for a depot injection on 23 April, nor had you attended various scheduled psychiatric reviews, and as a consequence of that you were discharged from the service.

65Dr Evans opined that your offending behaviour occurs in the context of maternal alcohol consumption during pregnancy, a somewhat unpredictable and alleged traumatic childhood, together with disrupted educational opportunities and minimal vocational history. 

66You acknowledged a longstanding history of excessive alcohol consumption and polysubstance abuse together with four prior drug related overdoses.  You have been diagnosed with attention deficit hyperactivity disorder and have experienced head trauma and potentially hypoxic events secondary to attempted suicide drug overdose.  Dr Evans referred to your schizophrenia diagnosis requiring fortnightly administration of anti-psychotic medication and your auditory command hallucinations, holding a firm belief that your cell is haunted.

67In relation to your cognitive functioning Dr Evans made several relevant findings in relation to verbal intelligence, in particular, but in relation to executive functioning she opined that you possess the cognitive capacity to make reasoned and informed decisions at a very basic level only and general thinking can be fragmented, non-systematic and linear and, unless provided with very specific rules or simple pictorial instructions to follow, you become increasingly disorganised, tangential and perseverative in thought.  Moreover, you are cognitively and behaviourally impulsive.  Under such circumstances you are unable to self-monitor, follow directives, effectively correct errors or adapt thinking behaviour to feedback.

68In relation to a foetal alcohol spectrum disorder diagnosis Dr Evans noted it is difficult to determine.  She said whilst you do not demonstrate obvious facial dysmorphia, neurodevelopmental compromises declared in a number of the 10 recognised domains associated with diagnostic criteria – those being intellect, language, academic achievement, attention, memory, executive functioning, affect regulation and adaptive functioning – hence, on a background of documented pre-natal alcohol exposure, she writes, 'A diagnosis of FASD with less than three sentinel features could potentially apply, which is sometimes referred to as partial foetal alcohol syndrome'. 

69Thus, based on the available history, given attentional deficits, behavioural dysregulation and the nature of learning difficulties documented in medical files, it is possible your cognitive difficulties are partially attributed to foetal alcohol spectrum disorder.

70Notwithstanding that potential, based on your history your behavioural presentation is consistent with a diagnosis of ADHD.  Dr Evans summarised some of the symptoms of that and the contribution of comorbid factors such as illicit drugs, hypoxia and general psychological factors such as estrangement from your mother and childhood traumatic experiences.

71Dr Evans opined, at paragraph 43:

'In summary, in the absence of a clear neuropsychological profile (due to variable motivation and poor test taking consistency), it is clear Mr Peterson demonstrates a persistent pattern of apathy and a motivation at a functional level together with cognitive inefficiencies, which are considered to reflect a combination of (1) well entrenched patterns of maladaptive behaviours, (2) longstanding chronic cannabis, methamphetamine abuse, (3) psychiatric dysfunction, (4) the potential for an underlying neurodevelopmental disorder and (5) a mild acquired brain injury secondary to cumulative hypoxic events'.

72In relation to a causal connection between any of these factors, or a combination of them in the offending, Dr Evans opined you were unable to effectively self-monitor or adapt behaviour to feedback and you react impulsively in response to your immediate needs without considered thought, however given the admission to cannabis and ice use up until your incarceration in December 2019, which was corroborated by emergency notes, as such – despite likely declining mental state and underlying cognitive inefficiencies – in her opinion it appeared most likely that acute substance intoxication was the key contributing factor in your offending behaviour.

73Psychiatrist Dr Soh also provided a comprehensive report in relation to the relationship between diagnosed mental disorder and offending and Dr Soh, in that context, considered substance use disorder, alcohol use disorder, major depressive disorder, schizophrenia, ADHD and conduct disorder.  Dr Soh opined as follows:

'Based on his account, he is likely to have been psychotic with persecutory delusions around the material time.  I am unable to discern if this is from a primary psychotic disorder, though the impact of his heavy and ongoing drug use at that time would certainly have an impact on this.  On the balance of probability, I believe his substance use to have a main, if not exclusive role to play in this. 

With reference to the physical quantity and frequency of his substance use this would have resulted in increased impulsivity, disinhibition and impaired judgment.  I believe this to have a significant contributory link to his offences'.

74In those circumstances the causal link as described by Mr Mackinnon, psychologist, is unable to be supported. 

75It was common ground, on the further plea, that in reference to what is often referred to as Verdins, or the first limb of Verdins,[2] I have been unable to draw a causal connection between your cognitive functioning, psychological disorders and mental illness and the offending in the sense set out in the authorities to the extent that I could assess your moral culpability as being reduced due to that causal connection.

[2]R v Verdins 16 VR 269

76Having said that, all of these matters are relevant to my overall assessment of moral culpability; particularly in the context of the application of the Bugmy principle,[3] which is common ground.  Your counsel described as 'Bugmy in abundance' in this matter and I am inclined to agree.

[3]Bugmy v The Queen [2013] HCA 37

77In the context of what I will generally call Bugmy factors those aspects of your personality and psychological functioning such as ADHD, limited cognitive functioning – whether that be due to FASD or subsequent brain trauma, acquired brain injury – all go hand in hand with the effects of early childhood deprivation and your exposure to trauma and alcohol and drug abuse from a very young age.

78In your case, early childhood deprivation and exposure to trauma and alcohol and drug abuse are factors that have shaped you and your responses throughout life.  Partial foetal alcohol syndrome disorder, ADHD and cognitive limitations do not sit in isolation from your experience of childhood trauma, lack of guidance and exposure to alcohol and drugs.  They are an integral part of your make up.  The interplay of these factors needs to be assessed as a whole, rather than individually.  The Bugmy principles are well-established.

79In relation to someone who becomes addicted or gravitates towards alcohol and drug abuse from a very young age, I refer to an ACT decision that is reported in the Federal Reports of Douglas and Albone v R where it stated,[4] at 470:

'The age of an offender when he or she has become addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct….It must be doubted whether the moral culpability of a child of eight or 11 who, because of an abused background or other compelling circumstances, acquires a drug or alcohol addiction can be equated with that of an adult or much older juvenile who, for his or her self-gratification, chooses to experiment with illicit drugs and thus becomes addicted'.

[4]Douglas and Albone v R (1995) 56 FCR 465.

80The significance of that is the role of drugs and alcohol has been set out clearly in the Prosecution opening and the effect of that intoxication on you as an individual, given the other aspects of your psychological functioning, has been addressed in the expert reports.  So it has been a significant factor in the offending and, to reduce it to simple terms, your moral culpability for those addictions and ongoing use, despite a significant criminal history being apparent to you that you have those problems, is not as significant as someone who does not have the application of the Bugmy principle, as you do in your case.  Given all those matters I have referred to – and importantly, your gravitation towards alcohol and drug abuse from a young age – it does provide significant mitigation in your case, in my view.

81You have pleaded guilty at the earliest opportunity; that was accepted by the Prosecution.  I am satisfied you have exhibited some remorse.

82You have spent some 502 days on remand in the COVID environment, which has meant prison is more restrictive.  Only now I am told you are starting to paint again, because there were difficulties with that due to the pandemic.  Visits, of course, have been a significant absence for the past 12 months at least and you are in a more restricted environment than you would normally be with more time spent in your cell.

83Your criminal history is relevant and I am not going to refer to it in detail, but I note that in the helpful Prosecution sentencing submissions, to which I have referred, at paragraph 10 the relevant aspects of your criminal history are set out, and I adopt that list in terms of identifying those aspects of your history that are more relevant to my assessment of your prospects of conviction, but also the need for specific deterrence.

84I have had regard to the principle of totality.  Charges 2, 3 and 4 arise out of one episode with Charges 2 and 3 being based on the same conduct, albeit very different consequences.  Some modest cumulation is required in relation to each of those offences to reflect the criminality but, given those matters I have referred to, there is some overlap in the conduct.

85For the reasons I have expanded upon above, general deterrence is a very significant factor.  In your case specific deterrence is a factor.  Denunciation of your conduct is an important sentencing factor.  Your prospects of rehabilitation; whilst they are not forlorn, I am guarded about them, but it is hoped that, as I have said, I accept as genuine the intentions you have stated during the sentencing conversation and it is hoped that you can find the strength, when released on parole, to make good on those intentions.

Sentence

86I will now sentence you as follows, Mr Peterson.

87On Charge 1, being theft of motor car, you are sentenced to six months imprisonment.

88On Charge 2, being the charge of negligently causing serious injury, you are sentenced to four years and three months imprisonment.

89On Charge 3, being a reckless conduct charge, you are sentenced to two and a half years imprisonment.

90On Charge 4, being the fail to render assistance, 18 months imprisonment.

91On the relevant summary offence of failing to allow a blood sample to be taken, two months imprisonment.  Unlicensed driving, two months imprisonment.

92The base sentence is the sentence imposed on Charge 2.  I direct that six months of the sentence imposed on Charge 3 and seven months of the sentence imposed on Charge 4 be served cumulatively on each other and on the sentence imposed on Charge 2.

93That makes a total effective sentence of five years and four months imprisonment.  I set a non-parole period of three and a half years.

94On Charges 1, 2 and 4, and Summary Charge 5, I order that your licence be cancelled and disqualified for a period of five years from today.  I declare that you have served 502 days – is it 502 days, Ms Harrold?

95MS HARROLD:  Yes.

96HIS HONOUR:  I declare that you have served 502 days as pre-sentence detention in relation to this matter.

97I was asked to make a finding in relation to the theft of motor car offence; a finding that you were intoxicated. I was asked to make a finding under s.89C(1) of the Sentencing Act that Charge 2, being the negligently causing serious injury charge, was committed while you were under the influence of a drug, which contributed to the offence, and I make such a funding.

98Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of seven and a half years with a non-parole period of five years.  Now, are there any other matters, Ms Harrold?

99MS HARROLD:  No other matters, Your Honour.  I just note that when Your Honour expressed the licence disqualification, I think you said 'cancel and disqualify'.  He doesn't presently have a licence, so it's simply a disqualification.

100HIS HONOUR:  Doesn't have one?  All right.  Yes, disqualified for five years from today.

101MS HARROLD:  Yes.  Thank you, Your Honour.

102HIS HONOUR:  All right.  Is there anything else?

103COUNSEL:  No, Your Honour.

104HIS HONOUR:  No?  All right.  Yes, we'll adjourn the court please.

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