Director of Public Prosecutions v Proctor

[2024] VCC 776

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

KOORI COURT DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23 01913

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHE PROCTOR

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2024
DATE OF SENTENCE:	30 May 2024
CASE MAY BE CITED AS:	DPP v Proctor
MEDIUM NEUTRAL CITATION:	[2024] VCC 776

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence                  

Catchwords:              Dangerous driving causing death – Theft – Fail to render assistance after a Motor Vehicle Accident – Possession of Drug of Dependence – Plea of Guilty – Koori Court Jurisdiction

Legislation Cited:      Sentencing Act 1991

Cases Cited:Bugmy v The Queen (“Bugmy”) 249 CLR 571; Sabbatucci v The Queen [2021] VSCA 340; DPP v Herrmann [2021] VSCA 160

Sentence:                  Total effective sentence of 4 years’ and 7 months’ imprisonment with a non-parole period of 2 years and 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr A. Patton	Slades & Parsons

HIS HONOUR:

1Che Proctor, you are a 23-year-old Aboriginal man who has pleaded guilty before me in the Koori Court to a charge of dangerous driving causing death, two charges of theft, a charge of failing to render assistance after a motor vehicle accident and three charges of possession of a drug of dependence. You have also admitted a relevant summary offence of driving whilst disqualified.  And I am assuming you can hear me, but if you cannot at any stage, raise your hand.

2The maximum penalty for dangerous driving causing death and for failing to render assistance and for theft is 10 years' imprisonment.  For possession of methylamphetamine and possession of hydroxybutanoic acid the maximum penalty is one year imprisonment.  Possession of cannabis in your case has a maximum penalty of five penalty units.

3Driving whilst disqualified has a maximum penalty of 240 penalty units, which is a monetary term, or a maximum penalty of two years' imprisonment.

4You have admitted a relevant criminal record which discloses relevant prior convictions, including several instances of reckless conduct involving motor vehicles, a previous charge of dangerous driving, and numerous charges of theft of motor car.

5In June 2021 you were involved in a high-speed police pursuit where you avoided tyre deflation devices, drove on the wrong side of the road, against red traffic lights, through roundabouts on the wrong side of the road and drove at speeds of 160 kilometres per hour.  You were involved in a collision on that occasion but kept driving erratically.

6That is but one instance of a recent past involving court appearances for driving related offences where you have been warned as to the danger posed by your conduct, noting you are only 23 years of age and were 22 at the time of the offending before me.

7Sadly, that history that raised so many warnings as to what could happen if you continued your impulsive and reckless conduct without regard to the consequences was a forewarning to what happened on this occasion.

Circumstances of offending

8The circumstances of your offending are set out in two documents, most thoroughly in the summary of prosecution opening, but also in the prosecution submissions on sentence, Exhibit A and Exhibit G.  Both of these exhibits form part of these reasons for sentence.

9At approximately 1.06 am on 26 March 2023 you, by your dangerous driving caused a serious motor collision at the intersection of Mahoneys Road and Lawson Crescent, Thomastown.

10You were disqualified from driving and obtaining a licence at the time for a period of three years.

11The collision involved three cars, a White Kia Cerato driven by you, a Holden Commodore which had four passengers inside, and a Black Mercedes Benz with two occupants.  You had two passengers in the car you were driving, your victim, the deceased, Lara Guglielmi, and your cousin, Nikita Proctor.

12Prior to the collision, the Kia you were driving and the Holden, were both travelling east on Mahoneys Road at a fast rate of speed.

13The collision occurred when the front passenger comer of the Kia you were driving impacted the front driver side of the Mercedes whilst turning right from Lawson Crescent towards westbound Mahoneys Road.

14Your vehicle reached a speed of 157 kilometres per hour to 170 kilometres per hour before the collision and impacted the Mercedes at a speed of 140 kilometres an hour to 151 kilometres per hour.  The Mercedes was travelling at a low speed at the time of the impact. The Holden narrowly missed the collision.  The posted speed limit in Mahoneys Road, which is a two-way, six-lane road with three lanes in each direction, is 80 kilometres per hour.

Charge 1 – Theft of Motor Vehicle

15The Kia was stolen on 4 March 2023 from a construction site at Halsey Road, Airport West, by an unknown person. On Sunday 26 March 2023 you were driving the stolen Kia fitted with stolen registration plates, well aware it was a stolen vehicle.

Charge 2 – Theft

16At approximately 12.56 am on 26 March 2023, the deceased Ms Guglielmi, Nikita Proctor and you arrived at the Campbellfield Plaza carpark. You parked in front of victim Mr Arvamovski's Holden car – he is a victim of theft.  You got out of the driver's seat of the Kia and walked over to Mr Arvamovski's car.

17At approximately 1.00 am a yellow Holden Ute arrived on the scene.

18You were observed by a witness at the driver's side door of Mr Arvamovski's vehicle.

19At around 1.01 am, after triggering the alarm on his car, you returned to the driver's seat of the Kia and drove away followed by the yellow Ute.

20Mr Avramovski, and a number of others in his company, ran across to the car park and saw the damage to the outside and to the ignition area of his car. His house keys and a garage remote had been stolen and have not been recovered.

21The direction of your vehicle was pointed out to Mr Avramovski and he and five males then got into the Holden, with Ali getting into the driver’s seat.  This is a separate vehicle from the yellow Holden Ute obviously.

Charge 3 – Dangerous Driving Causing Death

22The group in the Holden then located your Kia and the Ute parked at the rear of the plaza, in Jeffrey Street. You and driver of the Ute were together when the occupants of the Holden approached you. There was a short verbal altercation before you and the driver of the Ute got into your cars and drove off.

23The Ute drove south from the rear of the plaza. Your vehicle and the Holden travelled north and came back around the front of the plaza.  You can be seen on the CCTV footage driving erratically and at excessive speed through the car park where the posted speed limit was 8 kilometres per hour.  The Kia you were driving can be seen driving around the speed humps using the empty car parking bays to the right at speed, before veering back across the middle of the car park lane towards the exit.

24You left the car park and travelled east on Mahoneys Road.  The Holden drove over the empty parking bays on the incorrect side of the road and came to a raised bed.  As there was no exit onto Mahoneys Road, the Holden turned left to re-enter the dual lane of the car park area and came to a stop, before turning right onto Mahoney’s Road and travelling east.

25You were driving the Kia travelling at a high speed from the Campbellfield Plaza to the location of where the collision took place.  You had been chased effectively by the Holden, that was your perception. This was a distance of 2.3 kilometres. Just prior to the collision both vehicles were travelling at high speed, near to each other.

26At the intersection of Lawson Crescent, the Mercedes crossed the eastbound lane of Mahoneys Road intending to travel west. The passenger side of your car impacted with the front driver side of the Mercedes on the broken white line marking the south edge of the eastbound land, causing both vehicles to enter an anti-clockwise rotation before coming to rest.

27Tragically, due to the impact, Ms Guglielmi died at the scene from chest injuries.

Charge 4 – Fail to Render Assistance

28You did not render assistance to anyone, in any sense commensurate with the duty imposed by the legislation, and you left the scene.

29You walked along Mahoneys Road, opposite the Reservoir police station. You then entered the car park of the Excelsior Hotel.  At approximately 5 am you then arrived at the Coles Express on Edgars Road, which is within walking distance from the collision scene.  You were holding tissues to the right side of your forehead.  You appeared to be fearful and stood out of the way of the store cameras. You asked for a phone call to your father and mother and a friend.

30At around 8.30 am a witness who was aware of the collision, called the police, suspecting you were the person who fled the collision scene.

Charge 5, 6 & 7 – Possess Drug of Dependence

31At the time of your arrest, you were found in possession of methylamphetamine, GHB and cannabis.

Victim Impact Statements

32A number of victim impact statements were tendered at the plea. Each statement was read aloud to the Court , these being Exhibits B – Exhibit F.

33The combined effect of these statements was extremely powerful and very moving.

34The impacts of your dangerous driving are impossible to express in words. The family has been shattered, a huge hole is now left in their lives, a part of their lives has been taken leaving a void that can never be filled, and it has been expressed as a nightmare from which they can never awaken.

35They expressed the devastation, the loss, that is now brought to them by your actions, the loss of a beloved daughter, sister and friend.  A young life has been taken, due to reckless and dangerous conduct that should never have happened. You should never have been behind the wheel of a vehicle, let alone driving in the manner you did.

36I thank the victims for their bravery and composure in informing the Court of the agony, the emotion and the profound loss that has resulted. As has been expressed, the infectious smile, loving, joyful and bubbly presence that is no longer.  The emptiness and loss of memories which will no longer be made.

37I note the impacts to Mr Guglielmi as expressed within his statement. He has suffered tremendous pain and ongoing difficulties with the loss of his daughter, understandably.

38Along with Mr Jermaine Guglielmi, the loss of his little sister, he says:

‘it is hard to lose anyone at any age but at 19 years old, she was too young to be taken from us. Each day it gets harder and harder. I don’t believe there is any amount of time that will heal what has happened to me and my family. Every day I see my family it’s a reminder that my little sister is gone. My life has completely changed, the way I see the world has changed and not for the better, I am filled with a sadness that I feel it is only getting worse each day without her.’

39I am satisfied that you feel appropriate shame and devastation for the consequences of your actions, with your remarks of 'If I could do it again, I would take my life for hers', which is what you stated during the Koori Court conversation.

40I make special mention of Ms Yasmin Crampton and the composure of her delivery. Having to deal with a loss that seems unbearable with losing her youngest child.

41Ms Crampton feels that she will never feel whole again, and nothing will ever be able to fill the void or the emptiness she feels. She showed great charity and forgiveness toward you, Mr Proctor.  She asked that you now make better choices and that you learn from your past mistakes and become a better person. That you now change your story and your future as that is what her daughter would want from you, she stated.

Personal Circumstances

42Turning to your personal circumstances, you are a proud Gunditjmara man through you mother's line.  You had your mother, father, sister and grandmother all attend Koori Court with you.

43Amongst other material, I have received a report from psychologist Patrick Newton dated 3 May 2024.

44This document goes into some detail about your personal background and I accept the details contained throughout. I do not propose to go through your history in the same detail.  Mr Newton's report was also comprehensive in assessing your personality profile, your cognitive profile and your psychological functioning and it has been of assistance in that degree.

45You have strong family support from your family, and they have supported you through this court process.

46You are the eldest of two children to your parents.

47Your early life was not always so supported, however. You had experienced a turbulent childhood due to some exposure to family violence in the home as a young child.

48You had a difficult and at times intermittent contact with your father in early childhood. Limited due to the ‘on-again, off-again’ nature of your parents’ relationship.

49I was told you have three children with your former partner Brittany Spiteri, with your sons currently in the care of their maternal grandmother and your daughter who resides with Ms Spiteri, I was told. You have ongoing contact with your sons whilst in custody both on the phone and weekly by video conference.

50You commenced using Cannabis at a young age, as far back as your early teens. This coincided with a period when you left home to escape family conflict and violence.  You were exposed to illicit substance abuse in the home also and as I have mentioned violence, including towards yourself.

51You started smoking methamphetamine at the age of 15, around the same time your criminal offending commenced and you discontinued your education and your relationships became severely destabilised.

52You served a number of terms of detention or imprisonment, your first taking place when you were aged 16.

53You have spent only a matter of months out of custody since you were 16 years of age. This is tragic. You are at risk of institutionalisation at a young age.

Objective Gravity of Offending

54Dangerous driving causing death is an inherently serious offence given that it involves the loss of life. The impact of the outcome of instances of dangerous driving causing death for loved ones, family, friends and the wider community is difficult to express in words.

55Whilst acknowledging the enormity of the consequences of dangerous driving that causes death, it remains the task of the sentencing court to assess the driver's failure to maintain standards of driving, and assess the moral culpability associated with the dangerous driving that caused the loss of a life.

56The maximum penalty of 10 years is reflective of the objective seriousness of the offence, as is the fact that it is a Category 2 offence. The community is frustrated, dismayed and outraged at times over the loss of life on our roads due to hoon driving, alcohol and drug affected driving, speeding, risk taking, failing to obey traffic signals, and in particular also driving whilst unlicensed or disqualified from driving.   

57You were driving unlicensed. You were disqualified from driving and obtaining any driver's license or permit for a period of three years by the Broadmeadows Magistrates Court on 13 October 2022.

58You have a relevant criminal history and a poor driving record.

59You were subject to a Community Corrections Order imposed on 13 October 2022. You were released from prison on that order on 23 February 2023, which was only 34 days prior to the collision.

60You had attended one appointment with your case manager on 2 March 2023 and reported a relapse of methamphetamine use.

61You left the scene immediately after the collision with the desire to avoid apprehension, I am satisfied.

62You were driving a stolen vehicle, whilst disqualified.

63You were driving at a high speed, up to 170 kilometres per hour before the collision – in an 80 kilometre zone. You had two passengers.

64You were driving in connection with another vehicle which was driving fast, chasing you as you perceived it. Your focus was on outrunning this pursuing vehicle. I find that circumstance to be neither aggravating, nor mitigatory. It is your high-speed driving, erratic driving and failure to take braking action or evasive action, that constitutes the most serious aspect of your conduct.

65Yours is a serious example of the offence of dangerous driving causing death, and the offence of failing to render assistance.

66General deterrence is a very important sentencing consideration in these cases.

Participation in Koori Court Sentencing Conversation

67You participated fully in the Sentencing Conversation that lies at the heart of the Koori Court process. You engaged appropriately. You expressed appropriate remorse in your own way. You became emotional at appropriate points.

68You are entitled to some mitigation of sentence for your participation in the Koori Court process. It is recognised that the process is more difficult than a general list plea due to having to speak and take responsibility for your actions, to engage with the Elders and face the admonishment and accountability inherit in that process.

69It was not an easy process for you.

70Both your parents were present for the plea and sentencing conversation. Your father and your Nan participated in your Koori Court Sentencing conversation.

71You are a proud Gunditjmara man and you discussed your respect and understanding of culture with Uncle Trevor Gallagher and Uncle Wally Harrison.

72You said you had no words to describe how you feel about causing the death of your friend. You expressed 'someone lost their life because of [you]'. You thanked Lara's mother for her words in the victim impact statement and promised to put your best foot forward.

73You discussed your past drug use and that you were currently on 30 ml of methadone in custody.

74As I have said you had strong family support and participation throughout the conversation.

75Elders Uncle Trevor and Uncle Wally spoke to you about your culture, family, problems and aspirations in life. They talked to you about your children and what sort of father you wanted to be.

76As I have said, you are entitled to mitigation for your participation in the sentencing conversation and I am satisfied you showed some remorse and regret for your offending throughout that process.

Sentencing Factors

Plea of Guilty and remorse

77A plea of guilty is of utilitarian value in that it avoids the need for a trial, and it attracts a sentencing discount accordingly.

78You are entitled to a discount due to the utilitarian value of your plea. I also consider that your plea is reflective of contrition and acceptance of wrongdoing. It is an early plea.

Prospects of Rehabilitation

79In relation to your prospects of rehabilitation, I have very much in mind the fact that you are 23 years of age. You do have good family support. Your youth is a factor in your favour. Despite your lengthy history for such a young man your young age operates in favour of considering that you have prospects of rehabilitation.

80You have shown genuine remorse, some insight, empathy and a willingness to change and that is very important.

81You are working as a kitchen billet in custody and have completed two certificates of achievement.

82In the psychological report of Mr Newton, you are described as a 'concrete thinker' and you have demonstrated poor regulation and poor consequential thinking by your conduct over the years.  He also identifies of course your polysubstance drug use vulnerability.

83Your prospects of rehabilitation depend largely upon you addressing drug use and modifying your behaviour and achieving some maturity in your thinking so as to desist from such driving conduct in the future.

Factors in Mitigation

84Other factors in mitigation that were advanced on your behalf included the application of Bugmy v The Queen (“Bugmy”)[1] principles.  The prosecution do not accept that those principles apply in your case. 

[1]        Bugmy v The Queen (“Bugmy”) 249 CLR 571

85I am satisfied there is evidence of dysfunction and exposure to trauma in your upbringing.  I am satisfied that your childhood was disadvantaged in that sense.  In this Court that term can apply along a number of degrees.

86I accept you were exposed to traumas as a child. Your parents relationship instability and substance abuse, including some domestic violence between your parents, flowed over to affect your experience in your formative years. You were also the victim of what is termed physical abuse, which would in turn lead to you leaving home for a while and gravitating toward drug use.

87As I have said, I received the psychological report from Patrick Newton, which was comprehensive in its consideration of your psychological and cognitive profile and the effect of this neglect and exposure to violence (including as a victim) was discussed by Mr Newton and I accept his findings in this regard.

88There is no requirement that childhood disadvantage must be 'profound' when considering whether deprivation might be relevant to an assessment of moral culpability.[2]

[2]        Sabbatucci v The Queen [2021] VSCA 340; DPP v Herrmann [2021] VSCA 160

89There is a disparity between your experience in your formative years and what might be described as a sound, stable and nurturing environment. The factors alluded to above have shaped you, and to some degree, not a significant degree compared to many other cases which come through this Court, your responsibility for your conduct should not be viewed the same as for an individual who experienced the sound, stable, nurturing environment used as a yardstick.

90In a general sense Bugmy has some application in your case.

91As I stated earlier, general deterrence is a very significant sentencing factor in cases of dangerous driving causing death, and failing to render assistance.

92Denunciation of your conduct is also important. A stern sentence must follow given the serious aspects of your driving and given your recent history.

93I am mindful of your youth however, and the fact that since the age of 16 you have been in custody save for a few months. You are at risk of institutionalisation.

You are a young father of three who has taken responsibility for your conduct and I propose to accede to your Counsel's submission to impose a sentence which affords you a significant opportunity for parole.  I sentence you as follows, Mr Proctor, you can remain seated.

Sentence

94On Charge 1, theft of motor car charge, you are sentenced to 6 months' imprisonment.

95On Charge 2, theft, 3 months' imprisonment.

96Charge 3, dangerous driving causing death, 4 years' imprisonment.  That is the base sentence.

97On Charge 4, failing to render assistance after a motor vehicle accident, 2 years' imprisonment.

98On Charge 5, possession of a drug of dependence, 1 month.

99On Charge 6, possession of drug of dependence, 1 month.

100On Charge 7, the cannabis charge, you are convicted and discharged.

101The relevant summary offence of driving whilst disqualified, you are sentenced to 4 months' imprisonment.

102The sentence on Charge 3 as I have said is the base sentence.  Four months of the sentence imposed on Charge 4 is to be served cumulatively on the base sentence; 1 month of the sentence imposed on Charges 1 is to be served cumulatively on the base sentence; and two months of the sentence imposed on the relevant summary offence of driving whilst disqualified is to be served cumulatively on the base sentence.

103That makes a total effective sentence of 4 years and 7 months' imprisonment.  I set a non-parole period of 2 years and 10 months.

104I declare that you have served 427 days as pre-sentence detention on this matter.      

105

Pursuant to s6AAA, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of 5 and a half years' imprisonment with a

non-parole period of 4 years 3 months.

106I am required to make an order against your license and you are disqualified from obtaining a licence for a period of 4 years.

107I make the disposal order in relation to the drugs.

108Were there any other orders required, Ms Malobabic?

109MS MALOBABIC:  No, Your Honour.  As Your Honour please.

110HIS HONOUR:  All right.

111MR PATTON:  Sorry, Your Honour, just with respect to the pre-sentence detention I think Your Honour declared - - -

112HIS HONOUR:  It's 428 sorry. 

113MR PATTON:  428, thank you.

114HIS HONOUR:  I declare that you have served 428 days as pre-sentence detention.  Nothing else?

115MS MALOBABIC:  No, Your Honour.

116MR PATTON:  No, Your Honour.

117HIS HONOUR:  No.  All right, we will adjourn the court.

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