Director of Public Prosecutions v Purchase

[2022] VCC 1420

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-02259

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY PURCHASE

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2022
DATE OF SENTENCE:	26 August 2022
CASE MAY BE CITED AS:	DPP v Purchase
MEDIUM NEUTRAL CITATION:	[2022] VCC 1420

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                 Sentence - pleas of guilty - Dangerous driving causing serious injury - Failure to stop and render assistance - Summary offence - Drive whilst disqualified - Post offence conduct aggravating feature of offending - Attempts to conceal offending - Denied being the driver - Relevant prior criminal history including history of driving offences - Long history of polysubstance abuse - Expert opinion accused suffers from historical traumatic brain injury of unclear severity - Accused also suffers from an acquired brain injury due to polysubstance abuse - Significant mental impairment - Impairment of mental functioning at the time of the offending - Executive dysfunction causing accused to engage in rash and impulsive actions without consideration of consequences

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence: Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 32 months - 49 days declared as having already been served as part of the sentence imposed - s.6AAA Sentencing Act 1991 declaration - Ancillary order Licence cancellation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Baxter (Plea) Ms K. Parnham (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HER HONOUR:

1Gregory Purchase, you have pleaded guilty to one charge of dangerous driving causing serious injury and one charge of failing to stop and render assistance.  You have also pleaded guilty to the uplifted summary offence of drive whilst disqualified. 

2The maximum penalty for Charge 1 is 5 years’ imprisonment, for Charge 2, 10 years’ imprisonment and for drive whilst disqualified, 2 years’ imprisonment. 

3I must factor in the maximum penalties when sentencing you as these reflect the seriousness with which Parliament regards each of the offences.

4You were 30 years old at the time of the offending and you are now thirty-three.

5At the time of the offending, you were driving a Commodore station wagon which belonged to your sister, Karen.

6The victim of the serious injury is Sezen Yayintas who was 21 years old at the time of the offending.  She was a passenger in a grey Volkswagen Golf. 

7On 18 December 2018, a Sibel Sevinc spent the afternoon with a friend, Munevver Balcioglu.  Later in the day, the two young women caught up with Sezen Yayintas, who was Ms Sevinc’s cousin.

8The three young women had dinner in Coolaroo and after dinner they decided to go back to Sibel Sevinc’s home in Meadow Heights.  They left the restaurant sometime after 9:00pm.  Ms Sevinc drove Ms Balciouglu, who was in the front passenger seat and Ms Yayintas, who was in the back behind the driver’s seat. 

9At about 9:30 or 9:35 police had sighted your car at the intersection of Malmsbury Drive and Woodburn Crescent.  Your car was in Woodburn Crescent and about to turn left into Malmsbury Drive to travel north as the police approached the intersection.  As police drove through the intersection, you drove off in the opposite direction at a fast rate of speed, causing the rear tyres on the car to lose traction with the road and move sideways.  I understand that this was a short time before the collision and that you drove at an excessive speed, believing the police were looking for you in circumstances where you were driving whilst disqualified.

10Meanwhile as Ms Sevinc drove down Malmsbury Drive in a south westerly direction, she slowed to turn right into Rokewood Crescent, intending to continue to her home.  Ms Sevinc recalls coming to a stop at the intersection and seeing a car coming from the opposite direction but she does not recall much more about the collision.

11Ms Balciouglu does not recall seeing any cars in front of her before the collision.  She recalls Ms Sevinc starting to turn to the right and then hearing her yell out something like 'What the hell' which caused Ms Balciouglu to turn her head to the left.  She saw something coming their way, which hit their car.  Ms Yayintas cannot remember the moments before the collision.

12CCTV footage from a nearby house shows your car approaching from the opposite direction travelling at speed.  You were driving the station wagon at the time and you were travelling at a dangerous speed in circumstances where you were driving along a suburban street at night.  The front of your car collided with the front to middle of the passenger side of the Volkswagen Golf.  Both cars were extensively damaged.  I have viewed the CCTV footage and photographs which make for most disturbing viewing.

13After the collision, you got out of the car and ran away from the scene without checking on the condition of the occupants of the other car.  You can be seen fleeing the area in the CCTV footage.  Nearby residents called Triple 0 ,and police and ambulance attended.  All three occupants of the Volkswagen Golf were injured and taken to hospital by ambulance.  Sezen Yayintas suffered a serious injury.  She was taken by ambulance to the Royal Melbourne Hospital where she was admitted into the Intensive Care Unit and placed into an induced coma.  A
CT brain scan revealed bleeding around the brain and Ms Yayintas suffered a significant traumatic brain injury.  She was discharged from the Royal Melbourne Hospital on 8 January 2019 when she was transferred to the Epworth Hospital for ongoing rehabilitation.

14At the time Sezen Yayintas was transferred to the Epworth, the following issues were noted:

(a)   post-traumatic amnesia;

(b)   weakness on the left side of her body and difficulty swallowing and speaking;

(c)   restlessness and agitation; and

(d)   incontinence.

15Ms Yayintas was discharged from the Epworth on 2 April 2019 to continue her rehabilitation at home.  At that stage she still had impaired cognition and struggled with many daily tasks such as preparing meals and moving around in unfamiliar surroundings.  She also required ongoing physiotherapy for balance and coordination and muscle tightness and strength. 

16Dr Rachel Marr from the Victorian Institute of Forensic Medicine reviewed Ms Yayintas’s medical files.  She was of the opinion that Ms Yayintas suffered life threatening injuries and without timely and effective medical interventions she may have died.

17Ms Balciouglu suffered a laceration to her forehead which required suturing; she also suffered bruising and pain to her left hip.  She had difficulty walking in the days following the collision.  Ms Sevinc suffered whiplash and soreness. 

18Going back to 18 December at about 9.56 pm, so about 20 minutes after the collision and you had run from the scene, you made a series of phone calls in an apparent bid to contact your sister, Karen.  Eventually contact was made.  Your sister then called Triple 0 to report her car stolen.  She gave a false account to police about this in a bid to help you cover your tracks.  She made a statement to police the following day in conformity with her initial false complaint.  She is yet to be charged with her criminal offending in this regard or at least that was the position at the plea hearing.

19Details of the investigation are set out in the prosecution opening and I will not repeat them.  However, the entire prosecution opening is the factual basis upon which I sentence you.  Suffice to say, there was material found in the car and through DNA examination strongly connecting you to being the driver, as well as other evidence set out in the opening.

20On 21 December 2018, you attended Dr Andrew Ramsay and told him that you were involved in a motorbike accident two days before.  You complained of having sore ribs and an abraded forehead. 

21You were arrested on 23 March 2019 at an address in Meadow Heights where police were conducting a search warrant for an unrelated matter.  You denied being the driver of your sister’s car at the time of the collision, a stance which you took for some time including at the contested committal hearing.  I will return to this aspect in due course.

22Mr Purchase, your offending is most serious and calls for a punishment which is just in all the circumstances and your conduct must be appropriately denounced.

23You drove at an excessive speed in a suburban street at night, ploughing your vehicle into another car which was in the course of making a right-hand turn.  Having said this I make it clear that in sentencing you I do so on the basis that the gravamen of your offending insofar as Charge 1 is concerned is excessive speed.  However, having collided with the other car at high speed, you left the occupants for dead, preferring to try to save your own skin than to fulfil your legal and moral obligation to help attend to them.  I understand that your partner had told you not to drive in circumstances where you were disqualified from doing so.  However, you ignored her advice, preferring to put your need to see your daughter above all else.  As I said at the plea hearing, your behaviour on that particular day was outrageous.  It was also entirely self-centred, bereft of any compassion or concern for the occupants of the other car.  Had the victim of Charge 1 not received timely help, she may well have died, hence my remark to you that you left the victim for dead in circumstances where you well knew you had been involved in a serious car collision.

24Your offending is aggravated by your attempts to cover your tracks with the help of your sister who lied to police in a bid to help you escape responsibility.  You also lied to a doctor about the circumstances giving rise to your own injuries.

25In sentencing you I have taken into account the victim impact statements.

26The victim of Charge 1, Ms Yayintas, said that the offending had changed her life, to quote her, 'drastically, emotionally and physically'.  Since the day it had occurred, she had struggled to enjoy life and embrace life experiences and felt that a dark cloud shadowed her.  Her stress, anxiety and fear had changed her so much.  She had lost her personality and quality of life.  At times she struggled to make sense of her life she said.  She referred to spending a week in a coma and the treatment that she endured after this, saying that she had to learn to start life over again as a 21 year old with fatigue, memory loss, social anxiety and a loss of sensation to the left side of her body.  She said that these afflictions had mentally drained her.

27She said that her engagement to be married and a full-time position at work were things that she was looking forward to occurring in January 2019 but these had been taken away from her.  For two years after the accident, she had no social life as hospital and home were her routine.  She could not drive for 12 months.  She has struggled with unhealthy levels of social anxiety in circumstances where she had been healthy, outgoing and had life goals and good relationships with family and friends.  She has not been the same since the collision.  She expresses her eternal gratitude to her family and the constant support and understanding that she has received.  She also appreciates the help she has received from the various health professionals who have been involved in her rehabilitation.  She said that with everyone’s help she had been able to slowly get back to living, concluding with 'it’s been four years and forever to go'.

28Ms Sevinc said that it was difficult to get her emotions into words even though she had waited so long for the hearing to occur.  She said she remembered waking up in the driver’s seat with a cloud of smoke and seeing her friend beside her screaming out 'with worry and care' from the passenger seat to bystanders to make sure that the person whose car was squashed against their car was okay.  She said that her kindhearted friend had thought of everyone except herself even given the state that she herself was in.  She said that this was ironic because no one was inside the other car. 

29She spoke of the countless days and routines of nightmares since the time with her mind feeling guilt and responsibility for the hurt caused.  She did not really appreciate what had happened that night and spoke of nights spent at the hospital waiting for an answer on her cousin’s recovery who was lying in ICU.  She spoke of lying by her side trying to help her piece back her lost memory and of the victim’s fiancé’s trauma in dealing with the victim’s loss of memory which had taken years away.

30She also spoke of the dark shadow that had haunted herself and the two other occupants of the car.  She spoke of the full and happy lives that she and the others had spent before the collision which had quickly turned into miserable days spent with psychologists, physiotherapists, trauma and therapy sessions. 

31She said she hoped that everyone had genuinely learnt from their mistakes and the hurt caused. 

32Ms Balciouglu said that it was not possible to put into words how the offending had affected her life.  She said that writing the victim impact statement had been very painful.  She spoke of her life having changed because of the collision which haunted her still today.  She spoke of regaining consciousness after the collision, and of remembering the smoke that came from the car, the hearing of the accident itself and other aspects including not being able to see her best friend in the back seat.  She said this made her so angry even remembering that she was leaning on her seat thinking she was going to die.  She said she had thought about all these things every day of her life since.  She said that she felt dreadful anger and fear in knowing that her best friend was in an induced coma and not knowing what state she would be in if she woke up or not.

33She remembered getting wheeled into the ICU room and having to hold back her tears, so her best friend did not hear her cry.  She said that it broke her to see her friend in such a helpless position.  She said she now suffers from severe depression, anxiety and PTSD.  Her sleep has been interrupted by recurring dreams and flashbacks and she suffered from sleeplessness because of the offending.  She said that these ailments had affected her in every possible way including obtaining her driver’s licence just this year at the age of 22.  She experienced a great deal of fear and anxiety being behind the wheel and could not drive long distances due to this.

34She also found being a passenger in another car also very challenging and she could not help but think about what had happened.  She spoke of the impact on friends and family because of the effects upon her.  She said that the offending had held her back from building a future for herself as she has not been able to work or study since.  She said that this made her feel so weak, knowing that her family and friends were affected as well, and that the horrific reaction of all her loved ones had really broken her. 

35Mr Purchase, these are the real and profound effects that your offending has had upon the principal victim and the other occupants of the car and are matters that I must take into account in sentencing you.  It was especially poignant to hear that one of the occupants of the car was concerned about you at the time of the collision, imploring bystanders to see if you were all right in circumstances where you did not express any care or concern for the occupants of the car, she was in.  I do hope that the victims are able to fully recover from the trauma and injury that they have suffered and go on to live healthy and productive lives.  It is evident from each of the victim impact statements that they have a great deal to offer.

36Mr Barker told me that you had no recollection of leaving the scene of the collision and you reported to Ms Cokorilo, psychologist, that you did not recall saying that you were not the driver of the vehicle.  It was submitted that you may well have been in shock at the time of the collision which has led you to lack recall in this regard.  As against this, however, rather than stay put and be attended to yourself, you saw fit to run away and I note that your first call to your sister occurred at 9.47 pm.  You continued to call her or her partner, Jye Medew, until you were able to apparently speak with Jye Medew at 9.54 pm, with Karen Purchase calling
Triple 0 at 9.56 pm.

37In the circumstances, I do not accept that you had no recollection of the immediate aftermath of the collision.  You knew you should not have been driving and had been driving at speed at the time the collision occurred.  In my view, you went into self-preservation mode very quickly after this.  Further, you maintained a stance that you were not the driver for a time well beyond the day of the collision such that your statement that you were not the driver was not a one-off occurrence in a supposed state of shock.

38You have a fairly extensive criminal history which gives me a good deal of concern in respect of your prospects of rehabilitation and is relevant to the weight I must attach to protection of the community.  Also, you have subsequent matters.

39Your criminal history includes a prior conviction for dangerous driving while being pursued by police in 2013 where you were sentenced to a three-month gaol term which was fully suspended.  Also, you have other driving related prior convictions including five counts of driving whilst disqualified, two counts of dangerous driving and two counts of unlicensed driving.  You also have a relevant prior conviction for failing to stop on police request and a prior matter for using an unregistered motor vehicle. 

40As the learned prosecutor submitted in written submissions on sentence, as part of a community correction order in 2015 you were required to complete the road trauma awareness program and a safe driving program.  Notwithstanding completion of these you engaged in this offending for which I now sentence you. 

41Your criminal offending in the adult jurisdiction commences in 2006 and also includes other instances of drive whilst disqualified, offences for violence, various other driving offences including refuse preliminary breath test and failing an oral fluid test within three hours of driving.  You have received community correction orders and suspended gaol sentences as well as terms of actual imprisonment in the past.

42You have also been dealt with for subsequent offending as follows:

43On 18 November 2019 at the Broadmeadows Magistrates’ Court, you were dealt with for two charges of drive whilst disqualified, one charge of contravening a conduct condition of bail, possess dangerous article in a public place, two charges of using unregistered motor vehicle, driving on a path, driving without registration plates and failing an oral fluid test within three hours of driving.  You were sentenced to an aggregate term of 90 days’ imprisonment for a number of the offences which was declared as time served and you were fined in relation to some of the other driving matters.

44On 17 April 2020, you were convicted and sentenced to an aggregate term of 29 days’ imprisonment plus a community correction order in relation to a number of offences including resist emergency worker on duty and failing to stop after an accident as well as possess GHB and possess methylamphetamine. 

45On 26 November 2020 in the Magistrates' Court, you were convicted of exposing police to risk by driving, dangerous driving, driving whilst disqualified, retention of stolen goods and committing an indictable offence whilst on bail.  You were sentenced to a total effective sentence of six months' imprisonment with
pre-sentence detention of 94 days declared.  The sentence lapsed on
6 February 2021.  On the same occasion you were dealt with for breaching the community correction order which had been imposed on 17 April 2020 and the community correction order was varied and was said to commence upon your release from gaol.

46On 27 December 2021 you were convicted and fined in relation to possessing methylamphetamine and committing an indictable offence whilst on bail. 

47As at the plea hearing before me, you had another outstanding Magistrates’ Court appearance.  As you have not declared a course in relation to this and I have not been advised of anything further I will put this to one side.

48I take into account your background.  You are 33 and you were 30 at the time of the offending.  You are the youngest of six children and you were raised in Broadmeadows.  Your father worked as a manager for a milk company and your mother was a primary school integration aide during your formative years.  Your parents are still together.

49All of your siblings, except for your youngest sister, Karen, are gainfully employed.  Karen has had a history of difficulties with alcohol and methamphetamine use.

50You struggled at school and were never academically inclined.  Your behaviour at secondary school became increasingly problematic and you were suspended on five or six occasions.  You also truanted quite often.  You gravitated towards older antisocial peers and began smoking cannabis heavily.  Ultimately, you were expelled from Upfield Secondary School in the early part of Year 9.  Subsequently, you attended a community school in Kensington but left after two weeks.  You went on to commence a mechanic pre-apprenticeship TAFE program at the
Kangan Institute.  However, you did not continue with this for very long.

51You then worked in a pallet construction role for four months when you were 16 years old.  Subsequently, you worked as a shipping container unloader on a casual basis between the ages of 17 and 19.  You then worked with your father at the milk company, taking on a manual warehouse role between the ages of 21 and 22.  You last worked when you were 23 for a furniture store as a removalist or a deliverer.  This work lasted about six months.  You have not worked since this time, so not for more than a decade.

52You left home when you were 15 and couch surfed with friends for about six months.  After this you returned to the family home.

53You had a relationship on and off for about 10 years with a woman called Alicia.  That relationship produced one child, your seven-year-old daughter.  The relationship between you and Alicia was often difficult and involved drug use and domestic violence.  Neither you nor Alicia were capable of providing adequate care for your daughter so your parents had to take care of her. 

54You are currently in a relationship with a woman called Lisa who you have known since you were in your early teenage years.  You have lived with Lisa since 2021 in Roxburgh Park and the relationship is a positive one, I am told. 

55I have received a neuropsychological assessment report from Dr Matt Treeby dated 16 February 2022 and a psychological report from Ms Sandra Cokorilo dated 25 November 2021.  In sentencing you, I take each of these reports into account in a global sense but also in a specific way that I will come to a little later on.

56Doctor Treeby noted in his report that medical records from the
Royal Children’s Hospital revealed you had experienced a head injury of unclear severity when you were about 10, after you came off your bike and struck your head.  You were not wearing a helmet and you experienced a loss of consciousness.  You experienced photophobia, neck stiffness and vomiting over a one-week period following the accident and you were admitted to hospital for investigations including a CT scan of the brain, cervical X‑rays, and blood tests.

57Dr Treeby had not been able to obtain medical reports in relation to this admission.  However, he said that it appears you had experienced at least a mild traumatic brain injury from the accident.  He also indicated that he had gleaned from medical records that you had come to the attention of the child and adolescent mental health services in 2002 when you were 14 years old.  You had a one-year history of escalating behavioural problems at school and home.  Your grandmother had died shortly before the onset of these issues.  Dr Treeby observed that you had undergone a cognitive assessment at school, and reportedly performed in the borderline range on an overall measure of your intellectual function.  You were diagnosed with oppositional defiant disorder and were discharged on
15 January 2003.

58In terms of your substance use, you first consumed alcohol when you were 14, and engaged in heavy episodic drinking on weekends during adolescence and early adulthood.  You used cannabis for about two years when you were aged 14 to 16, and used about 3.5 grams each day.  You have abstained from cannabis use for more than 15 years.  You were introduced to amphetamine or speed at the age of 19, and you quickly became dependent, snorting one gram most days during the next two years.  You then transitioned to smoking methamphetamine or ice when you were 22.  Your methamphetamine use escalated over time and you smoked as much as two grams of ice per day during the past 10 years.  You have attempted to remain abstinent from ice use and you have been moderately successful.

59You used MDMA, or ecstasy, most weekends between the ages of 16 and 19 in the context of partying and clubbing, usually taking two pills on these occasions.

60You were first prescribed benzodiazepine medication when you were 23, and you have taken between 5 and 10 milligrams of this drug every day over the past three years.

61You used 60 to 70 milligrams of GHB most days between the ages of 28 and 31, overdosing on two occasions.  You experienced a GHB overdose on 17 July 2020 according to medical records.

62I note that you denied being alcohol or drug affected at the time that you were driving, although there is some suggestion that you may well have been, due to your daily habit at that time.  It would also help to explain your fleeing from the scene of the collision.  However, in the absence of evidence about this, I put those suspicions to one side. 

63In terms of your explanation for the offending, you told psychologist Ms Cokorilo that at the time you were in a 'toxic relationship' and living with a friend.  Your partner at the time threatened to call police if you were to drive, as you had reportedly done in the past.  Although you knew very well you were not entitled to drive, you wished to see your daughter.

64You explained that when you saw police, you believed they were coming for you in response to your ex‑partner contacting them.  In relation to the collision, you said that the car pulled out in front of you, and you reported that you were not aware of the speed at which you were travelling.  You had seen a police car on the road and believed they were chasing you, causing you to feel anxious and speed off.  You said you did not recall what had happened immediately after the collision, saying that you might have been in shock.  You told Ms Cokorilo that you did not recall running away from the scene of the accident or providing a statement that you were not the driver of the vehicle and I have made some remarks in relation to some of the aspects of this explanation which, in my view, do not ring true.

65However, I do accept that, although you were travelling at an excessive speed in all the circumstances, the other car did turn across your path, with the driver apparently not appreciating the presence of your car on the roadway, which was a straight stretch of road.  As I have said, I sentence you in relation to the dangerous driving charge on the basis of excessive speed alone.

66In sentencing you, I make a fairly significant allowance in your favour in view of the stage at which you entered pleas of guilty.  Your pleas were not entered at the earliest opportunity, which would have entitled you to an even more significant discount.  However, you entered pleas of guilty following a case conference in this court, having conducted a contested committal hearing which was run on the basis that you were not the driver for the purposes of Charges 1 and 2 on the indictment.  This continued to be your stance until the case conference which I conducted.  You are not to be punished for running a committal hearing as this is your right, and I have also factored in that the only witness to be cross-examined was the police informant.  However, you did not save that witness the time and trouble of giving evidence at a committal hearing, although you did in relation to the remaining witnesses and you did not save the community the time and expense of this proceeding.

67On the other hand, you have facilitated justice in a significant way by entering pleas following the case conference, which has saved the witnesses, especially the victim and other occupants of the car, the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial.  Further, I must make an actual and palpable allowance in your favour in view of the fact that you have entered pleas of guilty during the pandemic, which has contributed to a reduction in the backlog of trials that the court faces.

68Your counsel submitted that your pleas of guilty, together with your expression of remorse to Ms Cokorilo, are reflective of genuine remorse on your part as well as empathy for the victim and other occupants of the car.  As against this, I must factor in that until the stage of the case conference, you were not prepared to admit that you were the driver in respect of Charges 1 and 2; you failed to appear before court for these proceedings on two occasions, ultimately leading to your arrest; and you have committed offences after those for which I now sentence you.

69Further, you do suffer from impairment of mental function which, I suspect, interferes with your ability to experience heartfelt remorse and insight to a degree.  In all of the circumstances, I accept that you are remorseful for the fact that you have put yourself in this position and the impact it will have on you.  However, your expressions of remorse in respect of the victim and other occupants of the car ring rather hollow in all of the circumstances, and in my view, you have a good way to go in this regard in developing appropriate insight as to the seriousness of your offending and developing victim empathy.

70In terms of the chronology of this matter, it resolved on 16 September last year after a case conference conducted on 30 August.  The plea hearing was listed for 6 December 2021, but the hearing was adjourned administratively on 3 December for defence to obtain a neuropsychological report.  The prosecution did not oppose the adjournment.  The plea was relisted for 4 March this year.  On 4 March this year, defence applied to adjourn the matter, as you had significant COVID like symptoms and were awaiting the results of a pcr test.  The PCR test, dated
4 March 2022, showed that you were negative.  The plea was relisted for
10 March 2022, but you failed to appear on that day.  A warrant to arrest was prepared, and the matters were adjourned to a date to be fixed pending your arrest.  The warrant to arrest, signed on 10 March this year, was executed, and you entered into bail on 16 June and were bailed to appear on Friday, 1 July, at 9.30am, for a mention hearing.

71On Friday, 1 July, you again failed to appear, and a second warrant to arrest was signed.  This warrant to arrest was executed on Friday, 8 July 2022.  You were brought before me and made a self‑represented application for bail, although you were represented in some respects and that application was refused by me.

72I understand that you were reluctant to face an inevitable gaol term in this matter but in doing so, you have unnecessarily drawn-out proceedings causing further distress to the primary victim and other occupants of the car.

73Dr Treeby found that you had suffered a traumatic brain injury of unclear severity when you were 10 following the motorcycle accident, but further diagnosed you with an acquired brain injury due to long term polysubstance use.  The ABI, possibly in conjunction with the brain injury which you suffered as a child, has led to significant cognitive impairments.  It is conceded by the Crown, and I accept, that you were suffering from an impairment of mental function at the time of the offending, namely you had a limited ability to engage in consequential or insight-oriented thinking and as a result of your executive dysfunction you acted rashly and impulsively without consideration for consequences.  Therefore, I accept that your impairment of mental function impacted on you in a relevant way at the time of the offending, and warrants a modest reduction in moral culpability, in circumstances where you were specifically warned by your then partner not to drive but you chose to do so, knowing that you were disqualified from driving at the time.

74Further, I accept the learned prosecutor’s submission, in relation to the offence of failing to stop, that while you may have made an impulsive decision to run from the scene, you then engaged in conduct with your sister to conceal your offending, indicating that you were aware of the nature and gravity of what you had been involved in.  In view of my finding in respect of your impairment of mental function impacting on your moral culpability, I also make modest allowances in your favour in respect of the weight that would otherwise attach to specific deterrence, general deterrence, just punishment and denunciation.

75I also factor in that there has been a substantial delay in this matter of over three years.  I accept that, during this time, you have had the anxiety of the matters hanging over your head, although you may well have experienced less anxiety in this regard had you decided to take responsibility for the driving at an earlier stage and also to appear at court when you were required to do so.  With these qualifications, I do accept the impact of delay on you in the way that I have indicated.  However, it cannot be said that during the period of delay you have clearly demonstrated a path of rehabilitation.

76Having said this, I do factor in that in fairly recent times, you have apparently made some good progress on a community correction order to which you have been subject, although this apparent progress also needs to be seen in the context of subsequent offending and inconsistency of your reporting about abstinence from ice use.  However, the letter from Lisa Farrell from Caraniche dated 9 September 2021 indicates that as at that time you had engaged actively and positively in the program and were able to demonstrate 'increasing levels of insight into the impacts of your substance use on your life'.

77You told Dr Treeby that you last used methamphetamine two months before his assessment of you, which conflicts with your reported abstinence from methamphetamine on the community correction order.  In these circumstances and generally given your history, I have concerns as to the risk of you returning to drug use.

78In all of the relevant circumstances, I assess your prospects of rehabilitation as most guarded.  If not for Verdins[1] considerations, I would have placed strong weight on general deterrence in a bid to deter others from offending as you have, and fairly strong weight on specific deterrence, just punishment, and denunciation.  However, for the reasons previously explained, I make a modest reduction in respect of the weight that would otherwise attach to these considerations.

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

79In view of the nature of your offending on the occasion before me, your mental health and drug issues, and subsequent offending, I place fairly strong weight on protection of the community.

80In coming to these assessments, I have also taken into account your more current circumstances.  Before being remanded after your failure to appear for these matters, you were living with your current partner in the northern suburbs and undertaking the community correction order to which I have referred.

81I have already referred to that order but I note in more detail, that you had attended most of the supervision sessions, had engaged in the kickstart program previously referred to, and had been linked with mental health support, Cohealth, for six sessions before treatment was closed as this was regarded as being completed.  You had also completed a VicRoads intensive drink and driving course and were awaiting a LINCS program.

82I also factor in that any period in gaol will be harder for you than for others because of your mental health issues and impairment of mental function, and also because of the restrictions that have been in place, and may well be in place from time to time, due to the pandemic.

83Your counsel most properly conceded that a sentence which involved a head sentence and non-parole period was appropriate in your case, but he also submitted that a lengthy parole period would best facilitate your rehabilitation.  The learned prosecutor agreed that a sentence involving a head sentence and non-parole period was appropriate.

84In view of the weight which must attach to all relevant sentencing principles, and all of the circumstances relevant to your case, I am afraid that I cannot impose a sentence with an unduly lengthy gap between the head sentence and non-parole period; but I express the wish that, all things being equal, you should be released with the supervision that parole offers, so that you can be monitored in the community for as long as possible rather than to be released unsupervised.

85You are convicted of the offences.

86I make the disposal order sought by the prosecution, which is not opposed by you.

87You are sentenced to the following periods of imprisonment:

88Charge 1:  Two years.

89Charge 2:  Three years which will be the base sentence.

90Summary offence of drive whilst disqualified:  Six months.

91I direct that 10 months from the sentence on Charge 1, and two months from the sentence for the summary matter, be served cumulatively with each other and with the sentence on Charge 2, producing a total effective sentence of four years’ imprisonment, and I direct that you serve 32 months before becoming eligible for parole.

92I direct that you have already served 49 days by way of pre‑sentence detention.

93If not for your pleas of guilty I would have sentenced you to six years’ imprisonment with a non-parole period of four years.

94Is there anything arising from these sentencing remarks from your point of view, Ms Parnham?

95MS PARNHAM:  No, Your Honour.

96HER HONOUR:  Mr Barker?

97MR BARKER:  Nothing at all.  Thank you, Your Honour.

98HER HONOUR:  All right.

99MR BARKER:  Very grateful.

100HER HONOUR:  Very well.  Thank you.  We will adjourn.  Before we do though, Mr Barker, did you wish to have a word with your client over the airways?

101MR BARKER:  I won't, Your Honour.  I've told him that in every matter that's funded by Legal Aid I'm required to write an advice afterwards.  He'll be receiving a copy of that within seven days or so.

102HER HONOUR:  All right.  Yes.  Thank you.  All right.  We'll now adjourn.

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