Director of Public Prosecutions v Pickens

[2017] VCC 313

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00634

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON MICHAEL PICKENS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2017
CASE MAY BE CITED AS:	DPP v Pickens
MEDIUM NEUTRAL CITATION:	[2017] VCC 313

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Brown
For the Accused	Mr A Lewis

HER HONOUR: 

1Aaron Michael Pickens, you have pleaded guilty before me to one charge of dangerous driving causing serious injury, and one charge of failing to exchange names and address at the scene of an accident- is a summary offence which has been uplifted to be heard in the County Court pursuant to the Criminal Procedure Act.

2The facts underlying your offending are as follows:

3On 17 July 2014, you were travelling in your car along the CityLink tollway in West Melbourne when you swerved suddenly and sharply to take the Dynon Road exit off the tollway to your employment nearby.  In so doing, you crossed over a painted traffic island, narrowly missing a linear barrier.

4The victim in this matter, Andrew Howard, was riding his motorbike and had in fact entered and gone into the Dynon Road exit at the time that you made the sudden swerve into that exitway.

5As a result, you collided with Mr Howard.  He was flung off his bike colliding with a concrete barrier on the other side of the road. Mr Howard immediately felt severe pain in his right leg, below his knee.  He did not see you give any signal of your intention to swerve left.

6One Mark Waddington, who was driving a prime mover along the CityLink tollway behind Mr Howard, viewed the entire incident and he stated that he saw you, Mr Pickens, make a sudden and sharp left hand turn towards the Dynon Road exit.  He said the sharpness of the turn caused the rear of the sedan you were driving to become unsettled which, as it straightened up, then collided on the passenger side, with Mr Howard's motorbike.

7Your actions in taking this sudden swerve off to the exit and in the course of this colliding with Mr Howard underlie the charge on the indictment:  dangerous driving causing serious injury.

8You did not stop at the scene of the accident but continued on down the exit ramp; Mr Waddington, in fact, pulling over to the emergency stopping lane on the left hand side of the exit ramp to offer assistance.

9You drove to your work depot which is situated close to the bottom of the Dynon Road exit ramp.  You apparently did hear the collision but saw nothing and assumed you had hit a barrier.  However once you got to work, you inspected your car for damage, saw automotive paint on the left hand side of the car, realised you had collided with another vehicle and immediately rang 000.

10The record shows that you made that call to 000 only six minutes after the collision.  Police arranged for you to attend the North Melbourne police station about four days later and there you conducted record of interview saying that you did hear a bang but when you looked around could not see any other cars in the vicinity and, as I said, assumed you had collided with a bollard or run something over the roadway and therefore did not stop.

11You told police this was a route to work that you had been taking for about eight or nine months and that you were familiar with the roadway.

12It appears you had trouble accepting your actions.  You told police you assumed the motorbike was in your blind spot as you did not see Mr Howard before the collision and the damage to your car was to the rear passenger side.  You believe there was some blame for the collision to both yourself and the motorcyclist; that is Mr Howard.  Clearly, by your plea today however, you have accepted full responsibility for your dangerous driving on that day. 

13The matter proceeded to committal where both Mr Howard and Mr Wattington gave evidence and following the committal, negotiations were undertaken and a plea of guilty entered.

14I now turn to your personal circumstances.

15You are now aged 33.  You had a difficult upbringing which ordinarily would not be of much significance in a plea to charges of this kind but in my view there is relevance, and so I will go through the history in a small amount of detail.

16Your parents separated when you were nine and you remained with your mother, who worked in clerical duties, and your younger sister for two years.  However, she remarried a man who was a violent alcoholic and who in particular was violent to you.

17Then at the age of 12, as a result of the violence perpetrated upon you, you moved to live with your father who had also repartnered with a woman who had three children of her own and went on to have two further sons with her.  However it appears your father was violent to you to such an extent that injuries were noted on you at school and the Department of Human Services was called in.  You were not able to be housed with your mother and effectively became of ward of state at about the age of 14 or 15.

18You thereafter lived in temporary foster care or community residential units until you were about 18.  You were attending Wheeler's Hill Secondary College which you continued to do and, in my view, this is why your background has some relevance.  It is very rare for someone in your position at that age to even be able to go onto school and so that is to your credit.

19However, by the end of year ten, you got a youth allowance and you decided to leave school.  You informed me you just completed year ten and you undertook, at the age of 16, an apprentice locksmith apprenticeship which you lasted in for about two and a half years.  You did not finish because of the very poor pay which started at five dollars an hour, two years later it was at seven dollars an hour.

20At the age of 18 and a half, you quit that work.  You could not find any other employment so moved to country Victoria, Wangaratta, where you worked casually at an abattoir but you were then involved in a very serious car accident whereby you hit a pole to avoid a car which was taking an illegal turn.

21You were in hospital for months and on a cane for about 18 months after that and lost your job.  You were then living with your girlfriend and on Centrelink.  At this stage, you had no support or contact with your family. Your counsel informed me you now have limited contact only with your mother, no contact with your father and no contact with your sister or half-siblings.

22At the age of 20, you obtained your truck driver's licence and then worked for a short period in that industry.  You then obtained your security guard licence when you were aged 21 and thereafter worked in that occupation for about three or four years in cash transit operations, gatehouse work and at clubs on the weekend.

23You have some prior criminal history which becomes relevant at this point of time.

24In 2008, you lost your security licence when you fined with conviction in the Magistrates' Court for negligently causing serious injury; an offence which arose after a hotel client apparently stubbed on a cigarette on you.  You ejected him too violently, he hit his head on the pavement and hence the charge arose.

25You then, again, had trouble getting work.  You moved back to Melbourne.  You worked as a security guard although you were unlicensed but then in September 2010 were fined for acting as a crowd controller without a licence and this work, which was all you could find, ended.

26Also in this time you received a suspended sentence and community corrections order on charges of assault with a weapon and criminal damage; they apparently arising from a dispute you had with a taxi driver who spat on your girlfriend.  You stopped the car, unfortunately got out with a Clublock, menaced the taxi driver and caused $800 worth of damage to his car.

27After losing that job, you met and became involved with a South Korean woman.  You successfully completed your community based order and then decided, because of the employment difficulties you were having, to move to South Korea and essentially try out your luck in Seoul.

28You remained there for about two and a half years but work was hard to come by apart from some labouring work and after about two years, the relationship with that girlfriend broke up.

29You then met your wife, who is also a South Korean national.  She was a schoolteacher, some years older than you.  She fell pregnant and you decided to return to Melbourne.

30On your return to Melbourne, in mid-2013, you obtained work as a truck driver and you have worked on this basis ever since, primarily as a casual driver for Metro Trains.  You have maintained that work until today and I note that this work will end because, unfortunately, I must take away your licence.

31It would appear that this was a very stable time in your life from 2013.  Although you worked on a casual basis, you worked almost every day.  You were very recently offered a job as a full-time employee.  You passed the interview and medicals but once your criminal record was sighted, the job was refused.

32In the meantime, you managed to get a deposit together and you purchased a unit in Pascoe Vale.  You have a $500,000 mortgage requiring repayments of $2600 a month.  You are the sole breadwinner for your family; that is yourself, your wife and your two year old daughter.

33Your wife apparently has very poor English.  She has now obtained the status of permanent residence but her English is of such a quality that her capacity to find work is apparently minimal.  In addition, there appear to be problems insofar as your daughter is concerned.  She seems to be excessively attached to your wife, as it were.

34So you are now in a terrible position insofar as this offending is concerned primarily because it requires that I take your licence from you.

35I made the comment during the plea and I repeat that comment that I have had many young men pass before in this court with similar family backgrounds who have not done anywhere as well as you have.  The Community Residential Units where you passed some of your time are notorious for being housed by drug addicted and very dysfunctional teenagers.  The fact that you managed to avoid that and go on and carve out the life that you have is very much to your credit.

36I accept that the dangerous driving consisted of a very ill-considered and last minute decision to swerve to the left as you did.  However, it has had very grave effects upon Mr Howard.

37He received multiple fractures to his foot.  This required several operations involving the placement of screws and pins in his foot and then the removal of them.  In his first victim impact statement, Mr Howard detailed that despite the assistance of TAC he was off work for a considerable period of time.  His return to work had to be a graduated basis and the Transport Accident Commission was not able to cover all of the expenses he then incurred.

38A second victim impact statement, recently compiled by Mr Howard, indicates that the injury continues to bedevil him on a serious basis.  Mr Howard was clearly a very active man, who apart from riding a motorbike engaged in marathons.  He is a man who engaged in a number of sporting conditions such as golfing, sailing and he still has pain in his foot.  He undertakes some of these activities which I find quite extraordinary in the circumstances but it is extremely difficult for him.

39Additionally, unsurprisingly this accident has had an emotional impact. 
Mr Howard said he had to get counselling because he was becoming agitated and short-fused because his sport outlets had been taken from him.  He states that he is hyper-vigilant when he cycles on a motorbike.  He says he constantly fears for his safety, worries about being hit by a car and avoids some roads as a result, such as freeways.

40The other difficulty and worry for Mr Howard is that his toes have never regained the flexibility they had and he worries about the possibility of early arthritis.  He states, "I cannot play competition tennis and struggle with eighteen holes of golf due to pain in my foot.  It frustrates me to no end.  Those close to me, my wife in particular, bear the brunt of my frustration".  He concludes: "The impact continues to be negative and marked".

41The prosecution did not urge that I should deal with you by way of a sentence of imprisonment which is certainly open on a charge such as this. 
The maximum penalty for dangerous driving causing serious injury is five years' imprisonment.  It also requires that a court cancel any licence held with a disqualification for a period of not less than 18 months.

42The summary charge of failing to exchange names and addresses with an injured person as soon as possible after an accident is an indication (and I accept defence counsel on this submission), that the police have accepted that at the time you did not appreciate what in fact you had done as the far more serious charge of failing to render assistance was not laid against you.

43However, the maximum penalty for this charge is a fine not exceeding
80 penalty units or a term of imprisonment not exceeding eight months.  Conviction on this charge requires that a court disqualify an offender from obtaining a licence for four years but if a conviction is not recorded then the mandatory period of disqualification is two years.

44It is my view that this situation, this offending, does not satisfy the requirement in the Sentencing Act that a judge may only impose a sentence of imprisonment if no other disposition is open and I have not reached that view.  I accept your counsel's submission that you are a person of good rehabilitative prospects, that you have proved over the years, despite the prior criminal convictions I have referred to, that you seem to be someone who wishes to lead a productive and law-abiding life.

45I received two references; one from your work where the Metro Trains Melbourne assistant team leader Nick Osborne, who is your supervisor, described you as someone who worked in a safe and responsible manner. 
He stated, "He had a great rapport towards his job and worked with the utmost integrity".  He said, "If he were to lose his job, I believe he would find it tremendously hard to regulate his employment" and clearly that is the case for you sir.

46The two areas of qualification that you have, that is truck driving and as a security guard, are now denied to you; the truck driving perhaps not on a permanent basis.

47However I accept that this very ill-considered decision of yours to drive as you did on that day will have disastrous consequences upon you.

48And I received a letter from your general practitioner to the effect that you have been attending upon him for some time presenting with symptoms of depression and anxiety for which you have been prescribed an anti-depressant, Valium and a strong sleeping draught or sleeping tablets.

49As I said, the prosecution does not insist that I deal with you by way of a sentence of imprisonment.  I do not intend to deal with you that way and I have had you assessed for a community corrections order and you have been found suitable for such an order.

50Your counsel submitted that in the circumstances, I should deal with you on the summary charge in a way which does not involve a conviction and I do propose to deal with you and to accede to that request.  Again, this is not a course opposed by the prosecution.

51There are some difficulties with this, I will just turn to you for a moment
Mr Brown.  If I am going to do it that way, I cannot put both charges as relating to a community corrections order because, in my view, there should be a conviction in relation to the dangerous driving charge.  So I do not want to do a community corrections order with conviction, and community corrections order without conviction, so I propose to deal with him by way of placing Mr Pickens on an undertaking to be of good behaviour in relation to the second charge and to do so without conviction.  Does that make sense to you?

52MR BROWN:  Yes, Your Honour, yes.

53HER HONOUR:  Thank you.  Very well, so that is the way I propose to proceed.  Before I can place you on a community corrections order, Sir, I must first explain the conditions to you as I cannot place you on such an order without your consent.  Could you stand up please Mr Pickens?

54The following core conditions to apply to a community corrections order:  you must report to the community corrections office, which will be the Broadmeadows Community Corrections Office, within two working days of the making of this order which is by Tuesday of next week.

55Whilst you are on the order, you must not commit any offence punishable by imprisonment.  This does not mean you have to be jailed for any further offending; it means if you commit any offence which theoretically could lead to a jail sentence, that will be sufficient to breach the order.  So if you stole a box of matches from Woolworths, theoretically that could land you in jail and that would amount to a breach.

56You must report to and receive visits from the Office of Corrections.  You must report any change of address or employment to the Office of Corrections within 48 hours of the making of that change.  You must not attend upon the Office of Corrections whilst under the influence of drugs or alcohol.  You may not leave Victoria without the permission of the corrections office and you must obey all lawful directions of the Community Corrections Office.

57The order will last for 12 months.  I am going to order that you undertake 150 hours of unpaid community work.  I am also going to order that you undertake assessment and treatment for mental health.

58Now it is not said that you were suffering any mental health difficulties at the time that you committed this offence and indeed the assessing officer does not make that recommendation because, according to her, it did not play a part in the offending and it is not something that should be part of an order.  But I am concerned that you complete this order.  I do not want to see a situation where you go away, have to deal with the consequences of the loss of licence, the loss of income, what that will mean for your capacity to hang on to your house and so forth.  It is quite clear to me from what your counsel has said to me and from the letter I received from your doctor that you are extremely stressed about this.

59You strike me as someone, and I said this during the plea, when you have offended it is reactive or it is sudden and impulsive.  Now you are going to be a man operating under a lot of stress in the near future and I think you are going to need assistance for this.

60Now the way you go about this is you get a mental health plan from your GP, all right?  I do not usually do this, sir, but I was concerned and the other special condition is I am going to order judicial supervision, which I means I want you to come back and check in with me probably in about three or four months' time.  I just want to make sure you are travelling okay.  All right?  If there are any particular difficulties or anything like that.  When someone is under a great deal of stress, you may find the demands of the Corrections Office frustrating and annoying but you cannot get on bad terms with them.  You understand what I am saying to you?

61But I have, and I will give this to you, I have made some enquiries because the problem is some psychologists do not accept - you have got a gap payment to make for what Medicare will cover and I was also concerned that you go to somebody who is actually appropriate for you.

62So I made some enquiries and I am going to give you a piece of paper.  On it, is the name of a man called Michael Bilyk;  I think it is important you have a male psychologist and most psychologists are women.  He is in East Brunswick, he has done a lot of work with Youth Justice which may not make you think that that is particularly appropriate but he will understand what your background and your situation has been, and he may be able to be someone who can be a resource for you because there are services out there that can assist in terms of financial counselling.  He will understand the stresses you are under and I really want you to use this as a resource, all right?

63I am also concerned that you are obviously a person who, over the years, has learned to depend entirely on himself and that you may well need assistance as you get through this order.  You do not look very happy about this,
Mr Pickens, but I am telling you I think this will help you.  Also with Mr Bilyk, if you have got a mental health plan you will not have to make up a gap.  All right?  The Medicare payments will cover it and I think that is going to be important for you in the financial condition that you will be in.

64So I have written this out, I have got his number.  You just go to your GP and get a mental health plan.  You will get ten sessions and then if more are required, you can get another ten.  All right?  So we will give you that in a moment and I have also put at the bottom "Recommended Steve Reardon" who is from Youth Justice so Mr Bilyk will know where this has come from.  All right?

65So you are placed on the community corrections order for a period of 12 months in relation to the charge on the indictment.  In relation to the summary charge, I am placing you an undertaking to be of good behaviour which will be without conviction. 

66Your licence is cancelled and you are disqualified in relation to the charge on the indictment from obtaining a further licence for a period of 18 months. 
In relation to the summary charge, your licence is cancelled and you are disqualified from obtaining a further licence for a period of two years.

67I am going to order that those two disqualifications run concurrently; that means you can apply for licence again in two years' time.  That is the minimum that I can give you.  All right?

68You do need to bear in mind that you have caused considerable damage to
Mr Howard and I am very grateful for his indication of understanding why I am dealing with you this way.  Are you prepared to enter this order sir?

69OFFENDER:  Yes, Your Honour.

70HER HONOUR:  Thank you, have a seat.  We will prepare the documentation.  Yes, we will give a date for the judicial monitoring.  Again, this might seem like a huge nuisance to you and it's not that I'm - usually judicial monitoring I hand down as a special condition with people who I'm a bit worried are going to be shaky on an order and I just want to make sure everything's going all right.

71With you sir, I'm worried about the stress you may well feel.  I mean it's probably a feeling of despair now that your licence is gone but it is gone.  The aim is to get you through this order and I want you to come in and see me for judicial monitoring so I can check and I am going to order that you come in and see me in about three months' time because that'll be the crucial time.  That's when it's going to be hardest.  All right?

72So, where are we looking?  I'll make it late July and I'll get you to come in at 9.30 on the 26th of July.  All right?

73MR LEWIS:  Would Your Honour ordinarily expect counsel to appear at such a ‑ ‑ ‑ 

74HER HONOUR:  No.

75MR LEWIS:  Yes.

76HER HONOUR:  I don't expect counsel.  Do you understand what I'm saying to you, Mr Pickens?  About the concerns that I've got?  You seem to me to be a person who's managed some extraordinarily difficult things in your life well, all right?  I'm surprised that you're not a person, as I said, who hasn't just gone straight into using ice and starting offending like a maniac.  I don't want that to happen now.  I don't think it will. 

77You're obviously a person of capacity.  You know, you've got to make a decision about what you do with your unit - whether you can keep it on, whether you sell it, whether you rent it out so you can - those are all matters for you.  But it's going to be very stressful in the meantime and I certainly hope that you will make a move to see Mr Bilyk as soon as you can because he can help you have a plan and he can help keep you calm.  All right?  And he may even be able to assist you in other service that you may need.  All right?  Thank you.

78So, as I said, we'll just wait for the documentation to be printed out.  I don’t need to do a s.6AAA declaration order do I, because it's a corrections order? 

79MR BROWN:  (Indistinct).

80HER HONOUR:  Mr Brown, you should know that off the top of your head.  I don't think I do.  I should also add that I received a very positive reference from a former employee of yours when you were a security officer.  That person is now a prison officer at Dame Phyllis Frost Centre.  He stated "In the past two years since the accident, Aaron has confided in me anxiety and depression as putting his life on hold.  Aaron's personality has changed from a positive man with plans to someone living with uncertainty and self-contempt". 

81He said "Aaron doesn't drink alcohol and is totally against illegal drugs of any sort.  Aaron Pickens is a good person, a devoted family man.  His wife and young daughter are the centre of his world".  Thank you.  It's very well, we'll just get you to sign this, thank you Mr Pickens.

82What I'll do, I will give you those details ‑ ‑ ‑ 

83MR LEWIS:  Thank you, Your Honour

84HER HONOUR:  - - - to Mr Bilyk.  Yes, thank you.  We're for a 9.30 start Monday?

85MR BROWN:  Your Honour, there is the forensic sample order.

86HER HONOUR:  Yes.

87MR BROWN:  And Your Honour was correct about the s.6AAA.

88HER HONOUR:  Could I have - did you hand me up the forms for the forensic sample?

89TIPSTAFF:  No. No, Your Honour.

90HER HONOUR:  Could you stand up please Mr Pickens?  An order is being made, I'm making an order that you supply a forensic sample which will be just a mouth swab.  And I need to say to you that if you fail to provide that sample to police, they may use reasonable force to obtain that sample.  You need to attend upon police within 28 days of today's hearing.  I think I've been handed up a - that's all right.  Only one?

91MR BROWN:  Yes, Your Honour.  Yes, I'll just hand up another one, Your Honour, I think normally - I think two are signed, one for the court ‑ ‑ ‑ 

92HER HONOUR:  Three.

93MR BROWN:  Three.

94HER HONOUR:  That's all right.  We'll photocopy you another one.

95MR BROWN:  Yes, thank you Your Honour.

96HER HONOUR:  Thank you, have a seat Mr Pickens.  I've been handed up - I think one's for custody as well?

97MR BROWN:  Perhaps if my instructor forwards it to the court, Your Honour?

98HER HONOUR:  It's all right, I'll - I've signed both.  It doesn't matter.  So there's two copies.  I'm sure a photocopy will be fine.  Thank you.  That's all, again, I thank Mr Howard for his attendance today.  And I think you can have the photographs back too.  Thank you.

99MR BROWN:  As Your Honour please.

100HER HONOUR:  Yes, thank you, we will adjourn to 9.30 on Monday morning.

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