Director of Public Prosecutions v Radalj
[2018] VCC 983
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00154
Indictment No. H13080070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOLENE RADALJ |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 June 2018 | |
DATE OF SENTENCE: | 29 June 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Radalj | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 983 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – two charges of negligently causing serious injury; one summary charge uplifted – driving vehicle while disqualified; one summary charge uplifted - – driving vehicle carelessly
Legislation Cited: Crimes Act 1958, s24; Sentencing Act 1991; Road Safety Act 1986, s30(1), s65; Civil Procedure Act 2010
Cases Cited:Harrison v R; Rigogiannis v R [2015] VSCA 349; Markovic v R; Pantelic v R [2010] VSCA 105; R v Teh [2003] VSCA 169; Phillips v R [2012] VSCA 140; Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Director of Public Prosecutions (DPP) v Gerrard [2011] VSCA 200; R v NAD [2008] VSCA 192; Papachristodoulou v R [2017] VSCA 284; Gurovski v R [2018] VSCA 3; Stocks v R [2017] VSCA 137; DPP v Halket [2016] VSCA 221; DPP v Barry [2017] VSCA 344; DPP v Zyiersen [2016] VCC 1060; DPP v Jacobs [2016] VCC 1731; DPP v Kerrigan [2017] VCC 1551; DPP v Smith [2016] VCC 1894; DPP v Henry [2017] VCC 246; DPP v Harvey [2017] VCC 1591; Director of Public Prosecutions (DPP) v Trueman [2017] VSCA 24; Barci v R (1994) 76 A Crim R 103 (CCA Vic)
Sentence: Imprisonment, Total Effective Sentence – 4 years, and licence cancellation and disqualification and fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Jolene Radalj, on 6 June 2018, you pleaded guilty to the following offences:
Charge 1 – that you at Maidstone in Victoria, on 14 March 2017, by negligently driving a motor vehicle, caused serious injury to Shane Emery.
The offence of negligently causing serious injury is contrary to s.24 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment, with a minimum mandatory licence disqualification of two years (see generally s.89 of the Sentencing Act 1991).
Charge 2 – that you at Maidstone in Victoria, on 14 March 2017, by negligently driving a motor vehicle, caused serious injury to Kylie McGenniskin.
The offence of negligently causing serious injury is contrary to s.24 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment, with a minimum mandatory licence disqualification of two years (see generally s.89 of the Sentencing Act 1991).
2 Pursuant to s.242 of the Civil Procedure Act 2010, the following charges were uplifted from the Magistrates’ Court to this Court, and you agreed for the hearing of such charges in this Court. I refer to:
(a)Charge 8 – that you at Maidstone in Victoria, on 14 March 2017, drove a motor vehicle on a highway, namely Ballarat Road, during a period of disqualification, before obtaining an authorisation to drive a motor vehicle. You pleaded guilty to such offence.
Such offence is contrary to s.30(1) of the Road Safety Act 1986 and carries a maximum penalty of 30 penalty units or four months’ imprisonment. A subsequent offence carries a maximum penalty of 240 penalty units or two years’ imprisonment and discretionary licence intervention;
(b)Charge 9 – that you at Maidstone in Victoria, on 14 March 2017, did drive a motor vehicle on a highway, namely Ballarat Road, carelessly.
The offence of driving a motor vehicle on a highway carelessly is contrary to s.65 of the Road Safety Act 1986 and carries a maximum penalty of 12 penalty units or, in relation to a subsequent offence, 25 penalty units with discretionary licence intervention.
3 Counsel for the prosecution also made application under s.464ZF of the Crimes Act 1958 for a forensic sample – and such application was not opposed.
The circumstances of the offending
4 The prosecution has provided a document headed “Summary of Prosecution Opening” which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 2) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
·You are presently 35 years old, having been born on 3 May 1983 and was 33 years old at the time of the offending.
·Between approximately 8.10pm and 8.15pm on Monday 14 March 2017, you were driving your blue Hyundai in Braybrook, and with you in the front passenger seat was Shane Emery. Over that period of time, you were involved in two motor vehicle incidents.
·The first incident occurred when you reversed your vehicle out of a driveway into the path of oncoming traffic which was driving along Ballarat Road, Maidstone. Emil Mars, who was driving along the road, was forced to brake heavily to avoid colliding with your vehicle. You then continued to reverse your vehicle until it collided with the vehicle of Emil Mars, causing minor damage to the right side of the vehicle (Charge 9 – careless driving).
·After the first incident, you drove away in an easterly direction along Ballarat Road, driving your vehicle through the intersection of Ballarat Road and Ashley Street at approximately 8.15pm. Approximately 60 metres east of that intersection you drove your vehicle across the centre line into the lane for westbound traffic and was involved in a head-on collision with a white Mitsubishi that was driven by Ms Kylie McGenniskin (“the second incident”).
·At the point where the second collision occurred, Ballarat Road is a four-lane highway which provides two lanes of traffic travelling in an easterly direction and two lanes of traffic travelling in a westerly direction. At the time of the second collision it was dry, dark and the road was illuminated by street lights.
·Both Ms McGenniskin and Mr Emery sustained serious injuries, as did you. The second incident is the subject of Charge 1 and Charge 2, involving causing serious injury negligently.
·At the time of the offences you were not the holder of a valid current driver’s licence, as on 2 December 2016 your licence had been cancelled and you had been disqualified from obtaining a further licence for a period of six months – (Charge 8, driving whilst disqualified).
·Mr Emery was a friend of yours, who lived on the corner of Devonshire and Hampshire Roads in Sunshine, and at about 10.00am on 14 March 2017 you had collected him from his home, where he had been consuming alcohol. When later spoken to by investigators, he had no memory of what occurred after that time, but conceded that he was “pretty hammered” and may have used “some gear”. After the second incident, both you and he were trapped in your Hyundai and Metropolitan Fire Brigade members arrived at the scene and cut both of you from the Hyundai.
·You were both taken by ambulance to the Royal Melbourne Hospital and both received emergency treatment before being placed into induced comas. You sustained multiple fractures to the ribs, arms, legs and multiple lacerations to your face and body.
·Mr Emery sustained life-threatening injuries, including:
– a collapsed lung
– fractures to the chest
– fractures to the spine
– fractures to the face
– brain bleeds and bruises, which required emergency medical treatment, including placing him into a coma.
·Ms McGenniskin was driving the white Mitsubishi at a speed of approximately 60 kilometres per hour, which was the speed limit. She did not see your vehicle approaching, and as you approached the intersection she saw a flash of light and heard a very loud bang, causing her vehicle to spin.
·Ms McGenniskin had to climb across the console to exit her vehicle from the passenger side, and her passenger, Andrew Smith, bit his tongue, but did not sustain any serious injury.
·Ms McGenniskin was spoken to by police at the scene and complained of soreness in her back area, and was later transported to The Alfred hospital by ambulance. She was found to have sustained fractures to the upper back at T2 and T3 which have required ongoing medical treatment.
·Investigation by police of the second incident noted that there were marks leading from the resting position of each vehicle to what appeared to be the point of collision, which was in the westbound lane closest to the centre line of the road, with no evidence of skid marks being left by either vehicle.
·A blood sample was taken from you when being treated at the Emergency Department of the Royal Melbourne Hospital and later analysis revealed the blood contained 0.0056 grams of alcohol per 100 millimetres a litre. There was also detected the presence of Diazepam.
·Associate Professor Morris Odell, a forensic physician in the Department of Forensic Medicine, considered the results of the analysis and other material gathered during the course of the investigation, and calculated that at the time of the collision you would have had a blood alcohol reading of between 0.078 and 0.1 grams of alcohol per 100 millimetres of blood. The toxicological analysis also revealed that you had taken Diazepam.
·Detective Sergeant Jenelle Mehegan, an expert in accident reconstruction, reviewed the results of the investigation and concluded that at the time of the collision the Hyundai driven by you was travelling to a similar speed as the Mitsubishi driven by Ms McGenniskin (that is, approximately 60 kilometres per hour).
·On 14 June 2017, you were released from hospital and attended the Footscray Police Station and was interviewed. During the interview, you informed investigators that you had no recollection of the second incident or the events that occurred immediately before the second incident.
5 Counsel for the prosecution tendered a bundle of photographs in relation to the second collision, which depicted the results of the collision and the ultimate position of the vehicles (see Exhibit 3). In particular, I refer to Photograph 1 of Exhibit 3, which is an aerial photograph of where the second collision occurred, and in particular, designates where the point of impact occurred, which was said to be a distance of 56.4 metres past the intersection at Ballarat Road and Ashley Street.
6 Counsel for the prosecution also informed the Court that he sought an order for a forensic sample pursuant to s.464ZF(2) of the Crimes Act 1958.
Victim Impact Statements
7 Ms McGenniskin declared a Victim Impact Statement on 4 June 2018, which was read aloud in Court. Such statement was marked as Exhibit 4.
8 In that statement, Ms McGenniskin described that since 2008 she had been working, studying and volunteering her way towards becoming a park ranger, and that as a result of the collision with your vehicle that dream has come to an “abrupt end”.
9 In particular, Ms McGenniskin described that following the collision she had to move back to her parents virtually overnight, because she could not look after herself due to the constant pain she was experiencing, causing her to be unable to do the most simple of tasks. The pain initially was such that she could not focus enough even to watch television or read a book. Again, almost from the beginning, she suffered constant migraines in addition to the constant back pain.
10 Ms McGenniskin described, even now, she still suffers from frequent flare-ups of pain, and on many days it stops her from doing the things she needs to do and the things that she wants to do.
11 Since the collision, Ms McGenniskin described that emotionally everything has been a struggle, and even after she realised that she was not at fault, she still felt responsible for the suffering that her passenger had endured, and continues to endure. She noted that her relationship with her partner fell away about a month prior to the making of the statement which she relates in a huge part to the circumstances flowing from the collision and her changed emotional needs. Friendships have also “dissolved”, as most of her friends live in Melbourne and she now lives in Bendigo with her parents and maintains such friendships took much mental and physical energy, which she did not have.
12 Ms McGenniskin described that prior to the collision she was a competent and capable driver, but since then, because of increased anxiety when in a vehicle, she tends to avoid going out at night because she just cannot handle the thought of driving and seeing the flash of other cars’ headlights.
13 She lost her car as a result of the collision and the insurance payout did not even cover halfway the then-recent mechanical work which was done on the car, let alone provide for a replacement car. She was lucky that her parents came to her rescue, and they went into debt to finance a replacement vehicle.
14 Ms McGenniskin hopes to get back to some work behind a desk in an office, which has never been her desire, as she noted that she already misses doing such work as bush regeneration and the like. Finally, she stated:
“I may not appear disabled to anyone here; but this incident has left me physically and emotionally disabled. It is likely that I will suffer from Chronic Pain for the rest of my life. It is likely that I will struggle with Chronic Fatigue for the rest of my life. I will struggle with increased anxiety for the rest of my life.
I can say without a hint of doubt that this incident has changed the course of my life. Not just for a short period of time, forever…”
15 Accompanying such statement was a medical report from Dr Doug Barrett, dated 25 May 2018 (see Exhibit 5). In that report, Dr Barrett described himself as the provider of general medical services to Ms McGenniskin. In particular, he noted that she was involved in a motor car accident on 14 March 2017 and when taken to The Alfred hospital for assessment and treatment, imaging demonstrated compression fractures to the second and third vertebral bodies in the thoracic spine, together with bruising and lacerations over her right elbow, but with no bone injury on x-ray. Ms McGenniskin was discharged on 16 March 2017 with paracetamol and Endone, and analgesia, with advice to mobilise as pain permitted.
16 Dr Barrett also noted that the progress of Ms McGenniskin was impeded by the severe stress and anxiety attributed to the motor car accident, causing her to be referred to a psychologist for supportive counselling, and treatment with antidepressant medication. In August 2017, she was assessed by a consultant rehabilitation physician and is undergoing physiotherapy and hydrotherapy in Bendigo.
17 Dr Barrett noted that currently Ms McGenniskin’s pain and back stiffness have almost resolved, occurring with fatigue towards the end of an active day, and he considers there should be no permanent physical debility. He noted she has been certified to return for suitable employment since 13 March 2018 and has been doing some light voluntary work at the Melbourne Museum, up to six hours, three days a week, but continues to require psychological support and low-dose antidepressants.
18 The Court was informed that Mr Emery declined to make a Victim Impact Statement as he was your friend. Furthermore, there is no up-to-date material as to his medical state.
Your criminal record
19 Counsel for the prosecution also tendered your criminal record (see Exhibit 1).
20 I note that over the period from late 2000 to late 2001, you were found guilty of some theft offences and failure to answer bail. During that period of time you were sentenced on one occasion to a Community-Based Order, which was breached in October 2001.
21 On 21 September 2006, at Werribee Magistrates’ Court, you were convicted of a variety of offences, including using an unregistered motor vehicle on a highway, driving without L-plates displayed, being a learner driver and failing to have a qualified driver with you, driving at a speed over the speed limit and entering an intersection through a red traffic light, and sentenced to a fine and suspended from driving for one month.
22 Over the last few years, I note the following:
(a)On 10 April 2015, at the Geelong Magistrates’ Court, you were found guilty of recklessly causing injury and a threat to inflict serious injury, with no conviction entered, and the matter adjourned to 8 April 2016;
(b)On 25 August 2015, at the Geelong Magistrates’ Court, you were convicted of unlawful assault and fined $400;
(c)On 3 February 2016, at the Geelong Magistrates’ Court, you were convicted of intentionally destroying property, contravening a personal safety intervention order and two charges of contravening release on adjournment order, and were convicted and sentenced to a community correction order for eighteen months with a variety of conditions.
Roads Corporation Certificate
23 Counsel for the prosecution tendered a certificate under s.84(1) of the Road Safety Act 1986 (Exhibit 6). I note the following:
(a)On 21 September 2006, at the Werribee Magistrates’ Court, you were found guilty of wilfully altering a registration label, driving an unregistered motor car, driving without L-plates displayed, driving as a learner driver without an experienced driver, driving at a speed exceeding the speed limit and disobeying a traffic control signal. Such offences occurred on 11 November 2005 and you were sentenced, on your own undertaking, to be of good behaviour from 21 September 2006 to 21 March 2008, with your licence and bike permits suspended for one month from 21 September 2006;
(b)On 16 November 2010, at the Geelong Magistrates’ Court, you were convicted of driving when your authorisation was suspended. Such offence occurred on 9 September 2010, and you were fined $500;
(c)On 17 November 2015, pursuant to a Traffic Infringement Notice, you were found to be driving a motor vehicle while a proscribed concentration of drugs was present in your blood or oral fluid. Such offence occurred on 9 September 2015, and your licence was suspended for three months from 17 November 2015. When interviewed by Mr Cummins, you informed him that you were under the influence of cannabis at that time;
(d)On 1 December 2016, at the Geelong Magistrates’ Court, you were found guilty of failing an oral fluid drug test within three hours of driving. Such offending occurred on 3 August 2016 and you were fined $300 and your licence cancelled and disqualified for six months from 2 December 2016. Again, when you were interviewed by Mr Cummins, you informed him that, at that time, you were under the influence of methamphetamine, or ice;
(e)On 31 July 2017, at the Geelong Magistrates’ Court, you were found guilty of driving whilst disqualified. Such offence occurred on 4 February 2017, and you were fined $500 and your licence disqualified for a period of two months from 31 July 2017.
24 The offending for which you were dealt with at the Geelong Magistrates’ Court on 31 July 2017 is not a prior conviction given the date of the subject offending. However, it is to be noted that the offending dealt with by the Geelong Magistrates’ Court on 1 December 2016 gave rise to the cancellation of your licence for six months from 2 December 2016.
Your personal circumstances and background
25 Your counsel tendered the following material:
(a) Updated defence submissions dated 3 June 2018 (Exhibit “A”);
(b)Psychological report from Mr Jeffrey Cummins, dated 16 May 2018 (see Exhibit “B”) and a supplementary letter written by Mr Cummins, dated 4 June 2018 (see exhibit “I”);
(c)A document from Epworth Rehabilitation, dated 16 April 2018 (see Exhibit “C”);
(d)Letter from Belinda Harrington, the senior physiotherapist at Epworth Healthcare, dated 15 May 2018 (see Exhibit “D”);
(e)Letter from Bobbie Kleeven (from the Department of Human and Health Services (“DHHS”)) being the acting team manager of Women’s Housing, Geelong, dated 28 February 2018 (See Exhibit “E”);
(f)Letter of support from Berry Street Take Two – Dr Lyn Radford, clinical psychologist, group operations manager – dated 31 May 2018 (see Exhibit “F”);
(g)Letter from Cassie Franzose, manager, Out of Home Care, Barwon Children, Youth and Family, dated 1 June 2018 (see Exhibit “G”);
(h)Report from Dr Antoinette Butler Wilks, clinical and counselling psychologist, dated 4 June 2018 (see exhibit “H”);
(i)Letter from Katrina Dimech, AOD clinician, dated 1 June 2018 (see Exhibit “J”);
(j) Your letter dated 6 June 2018 (see Exhibit “K”).
26 Based on such material, and the various submissions made by your counsel, I note the following:
·You were initially raised in Sunshine until about the age of three, when your mother, who suffered from Epilepsy, left your father, who was an alcoholic, and moved to Perth with you and your brother, James.
·Not long after moving to Western Australia, your mother remarried a man who had two children of his own, and your mother and her new husband went on to have two further children.
·You described your stepfather as being the perpetrator of family violence towards your mother and you and the other children would be present in the family home when this occurred. Furthermore, both your mother and her new husband consumed cannabis regularly and your stepfather was a problem gambler. There were financial difficulties impacting on the family because of your stepfather’s gambling and you recall regularly staying in women’s refuges in the aftermath of family violence.
·You informed Mr Cummins that you were a victim of sexual abuse by an older stepbrother from approximately the age of nine. After disclosing the abuse to your mother, there was no support offered and your mother refused to believe your complaints.
·You left the care of your mother to return to Victoria when you were approximately fourteen and have not spoken to your mother since that date. Initially, you began living with your maternal grandmother and later began living in Child Protection residential care units, where you were exposed to further drug use, including the use of illicit substances, such as heroin.
·When you did return to Melbourne, you made contact with your biological father, after which you have maintained ongoing contact with him. He is a 56-year-old single man who is unemployed and still alcohol-dependent. You noted that your father had been in trouble in relation to cannabis and had served a gaol sentence when you were a child.
·When living in Western Australia, your primary education was frequently interrupted – you estimate that you attended about eight schools – as a result of your stepfather’s gambling addiction. You completed your first year of secondary education at Hampton Senior High School.
·On returning to Victoria, you were enrolled at Laverton Secondary College in Year 8, and although you enjoyed photography and sporting subjects, felt that your education had been interrupted in Western Australia, and you were not prepared for the standard expected in Victoria. You ultimately left school at the end of Year 9.
·Later, you went on to complete TAFE courses in retail operations (Certificate III) and community services for children (Certificate III).
·Between the ages of twenty-one and twenty-three you were in a relationship with Mr Matthew Hatfield, the father of your now eleven-year-old daughter, Lech’e Radalj-Hatfield (“Lech’e”). That relationship came to an end because you decided that you were both too young.
·Prior to giving birth to your daughter you worked in a toy shop at Hoppers Crossing and as a console operator at service stations on Westgate Bridge and in Flemington. After the birth of your daughter, you were employed in a kitchen in Geelong for four years. You have not been employed for approximately the last two-and-a-half years and initially ceased working two-and-a-half years ago because of your dependency on illicit drugs and because you were feeling depressed. During this period you have been in receipt of Centrelink benefits. The Court was informed that in recent times when living at TAC accommodation in Thornbury, you have volunteered to work at Lentil as Anything in Thornbury.
·You commenced smoking cigarettes from the age of 15 and informed Mr Cummins that prior to the subject offending you were usually a controlled and light social drinker of alcohol, and indeed have not consumed any alcohol since the offending on 14 March 2017.
·You informed Mr Cummins that you commenced smoking cannabis at the age of fifteen and from that time onwards, up until the subject offending, you smoked cannabis most days, and up to a maximum of around 2 grams per day. At the time of the offending you were not using any other illicit drugs.
·At or around the age of twenty-eight you experienced conflict with a neighbour in Geelong as a result of which you drifted into using methamphetamine (“Ice”) and you frequently used this drug – often daily – for approximately eighteen to twenty-four months. You informed Mr Cummins that you have ceased using methamphetamine and believe that you totally ceased around the age of thirty.
·At the age of sixteen you were an intravenous heroin user for approximately two years and, again, you informed Mr Cummins that you ceased using Heroin with the assistance of both your brothers. In particular, you informed Mr Cummins that you had not used any type of illicit drug since the subject offending.
·In 2015, your mental health had deteriorated and resulted in a suicide attempt, in the background of having your child Lech’e removed from your care and a neighbourhood dispute.
·You informed Mr Cummins that you currently are prescribed Zoloft to assist with your Depression, and Oxazepam to assist with sleep.
Your evidence
27 During the course of the plea hearing, your counsel called you to give evidence. In particular, you gave evidence about a letter written by you to the Court, dated 6 June 2018 (Exhibit “K”), wherein you asserted:
(a)That you were “deeply ashamed” of the consequences which have been suffered, not only by you, but others in the community, your family and your daughter;
(b)While not disputing the facts provided by the police, you have been advised by your treating doctor, and other specialists, that the second incident caused some type of “brain injury”, which affects your ability to recall events around the circumstances of the offending;
(c)You note that although you have no memory of the circumstances, you have been informed that the passenger in your car – Mr Emery – had being taken to hospital for emergency medical help. You assert that you were only able to return home “last week” and was released after a lengthy stay in and out of hospital, where you progressed from an induced coma and brain injury to learn how to walk again;
(d)You acknowledge that you have let down many people and, most importantly, have not been available for your daughter, Lech’e. You stated that you appreciate the severity of your actions and begged for the opportunity to remain in the community, caring for your daughter, and in this respect you assert that any further separation may impact on your custody longer term. You seek to be spared a custodial sentence. You were asked to comment on the Victim Impact Statement of Ms McGenniskin, and stated to the Court that you were “deeply sorry” for the pain and suffering caused to Ms McGenniskin as a result of your driving. You also stated that you were sorry in relation to injuries caused to Mr Emery, but had not seen him since your admission to hospital.
28 Under cross-examination, you confirmed that you had no memory of the events leading up to the offending, but had been told that it may well have been that Mr Emery was overdosing on heroin and needed to be taken to hospital. You confirmed that the letter was written at the suggestion of those acting for you.
Your injuries
29 Following the second collision, you were conveyed to the intensive care unit at the Women’s Royal Hospital, where you underwent an induced coma. You suffered serious injuries, including a broken leg, arm and jaw, with internal bleeding, which has given rise to some Acquired Brain Injury.
30 Following your admission to the Royal Women’s Hospital, you received rehabilitation treatment at the Epworth Rehabilitation Hospital, where you remained until discharge on 14 June 2017, after which you received outpatient rehabilitation while attending psychology sessions.
31 You also informed Mr Cummins that on being discharged from Epworth Rehabilitation in mid-2017, you commenced living with your brother until September 2017, when you were advised that you were not to weight bear, whereupon you were re-admitted to Epworth Rehabilitation and underwent repeat surgery on your humerus bone. At that time, you remained in hospital for a further eight weeks and subsequently then lived for three months in a Quest apartment funded by the TAC. At that time, you were still wheelchair-bound, and subsequently moved into TAC transitional housing in Thornbury. The Court was informed that as from 25 May 2018 you had been residing at 102-10 Bradley Street, Newport. According to the report from Epworth Rehabilitation, dated 26 April 2018 (see Exhibit “C”), it is noted that you have been approved for this newly built property at Newport through a social housing agency, Women’s Housing Ltd, and you were one of 20 applicants who were approved for this property out of a field of 180 candidates.
32 On 15 June 2017, Dr Viyan Salih, of the Guardian Medical Centre in Highpoint, referred you to the psychologist, Dr Wilks, pursuant to a Mental Health Treatment Plan. The purpose of such referral was to receive psychological support to help manage anxious and depressive symptoms associated with the car accident and contact with your daughter. I refer to the report from Dr Wilks dated 4 June 2018 (Exhibit “H”), wherein she reports that you attended six psychological sessions from 19 June 2017 to 21 August 2017.
33 Various testing revealed you to be suffering from scores in the moderate range for anxiety and depression and a score in the normal range for stress. You were treated with various strategies involving cognitive behavioural therapy, which focused on reducing anxiety and depressive symptoms, maintaining a drug-free existence, improving emotional regulation and enhancing your management of access arrangements with child protection.
34 Dr Wilks noted that you expressed regret for the consequences of your actions and that you reported gaining insight and a new perspective since the collision. Ultimately, Dr Wilks noted that imprisonment might be more adverse for you than compared to a person without your psychological history.
The evidence of Mr Cummins
35 Your solicitors arranged for you to be assessed by the clinical and forensic psychologist, Mr Jeffrey Cummins, which was undertaken on 14 May 2018, and such assessment resulted in a report dated 16 May 2018 (Exhibit “B”) and a supplementary report dated 4 June 2018.
36 Ultimately, Mr Cummins was of the opinion that your current mental health diagnoses are “complex and overlapping”. In particular, Mr Cummins considered that you had a trauma-related Adjustment Disorder relatable to having been sexually abused by your stepbrother between the years of nine-ten, to twelve-thirteen. Mr Cummins also considered that, possibly, you also suffered from Post-Traumatic Stress Disorder as a result of that abuse.
37 Mr Cummins was also of the opinion that you most probably developed an Adjustment Disorder in relation to the incidents involving your next-door neighbour in Geelong, and also your ongoing concerns about your daughter being removed from your care.
38 In particular, Mr Cummins considered that if you were incarcerated, he would expect your mental health would deteriorate because your contact with your daughter would inevitably be limited in frequency and quality. In particular, Mr Cummins would expect that you would become more depressed and more anxious, and that you would continue to isolate yourself, become more fearful, and experience an increased sense of hopelessness and forlornness. Accordingly, Mr Cummins was of the opinion that your mental health would deteriorate more and you will become even more seriously depressed if you are deprived of having contact with your daughter as a result of being incarcerated.
39 Mr Cummins also was of the opinion that you presented as someone who had a mild Acquired Brain Injury – you reported concentration difficulties and some residual memory difficulties, and difficulties with motivation. At interview, you presented as mildly-moderately depressed and mildly anxious, but very determined to fully rehabilitate yourself from the physical perspective.
40 Mr Cummins also noted at various places in his first report that you felt “very embarrassed, ashamed and remorseful” concerning your offending.
Your child
41 Your daughter, Lech’e, was born on 12 December 2006 and attends a primary school in Werribee. Lech’e lived with you from birth until approximately 2015, when Child Protection involvement resulted in her being removed from your care. Substance use at that time, and instability in your mental health, were triggers for the intervention of Child Protection.
42 Lech’e currently lives with your cousin under a kinship Child Protection placement, and has also lived with your brother, and in foster care placements. You currently spend time with Lech’e on a weekly basis on weekends, which is unsupervised, and further time on school holidays. Child Protection have indicated that Lech’e is able to return to your care considering your improvement, however, you have delayed this occurring until the outcome of these proceedings is known.
43 I refer to the following material:
(a)The report from Cassie Franzose, who is the manager of Out of Home Care, dated 1 June 2018 (Exhibit “G”). In that report, Ms Franzose confirms that Barwon Child, Youth and Family have worked with you and your daughter since October 2016 and have seen “remarkable progress” in your presentation and capabilities. Since June 2017, Barwon Child, Youth and Family have been working with the family to re-unify Lech’e back with you. In particular, Ms Franzose reports that you have demonstrated care and commitment to your daughter through positive engagements with many services and that as at 28 February 2018, DHHS Child Protection’s assessment is that you have met the requirements for re-unification, and the only difficulty at that time was finding appropriate accommodation;
(b)The report from Dr Lyn Radford, clinical psychologist, from Berry Street Take Two, dated 31 May 2018 (Exhibit “F”). In that report, Dr Radford, a clinical psychologist, notes that Berry Street Take Two provides state-wide therapeutic services to children in the Child Protection system and that your daughter was referred to the service in July 2016. In particular, she states:
“During the period of our involvement, Lech'e has had multiple placements in kinship care, foster care and contingency (a house staffed by paid carers on a roster system) around Melbourne, Geelong and country Victoria. Lech'e's behaviour has escalated in these unsettled environments and carers have found her too difficult to manage which has resulted in the placements breaking down. Her behavioural problems in school have resulted in the school reducing her hours of attendance.
Prior to Jolene's car accident, contact between Lech'e and Jolene was sporadic and Lech'e's anxiety and concern for her mother's wellbeing was a significant contributing factor to her difficult behaviours. Since the accident, Lech'e has been able to have regular contact with her mother, including staying with her over weekends and for extended periods in school holidays, and Lech'e has been more settled and has been able to attend school full time. Since July 2017 Lech'e has been living with family (initially her maternal uncle, now her paternal cousin) which has increased her sense of belonging and the good communication between Jolene and Lech'e's carers has facilitated smooth transitions between Jolene and the carers.”
In particular, Dr Radford noted that Lech'e’s “return” to you as soon as possible is “absolutely in her best interests”. She has also noted that she is impressed with your gains and noted that you have expressed strong feelings of remorse about the second incident and the impact it had on the passenger and driver of the other vehicle. In particular, she noted that you have taken responsibility for your behaviour in general, and specifically in your conversations with Lech’e about the charges and forthcoming sentence. In this respect, Dr Radford noted that Lech’e has found the recent period unsettling, given the uncertainty of your ultimate disposition;
(c)The report from Ms Bobbie Kleeven, acting team manager from the DHHS, dated 28 February 2018 (Exhibit “E”). In that report, Ms Kleeven noted that the only reason that Lech’e has not been returned to your care is that you had, at that stage, no suitable secure housing. In particular, she noted that it caused distress both to Lech’e and you to continue to reside apart.
Mitigating circumstances relied on by your counsel
44 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a)Your indication of pleading guilty to the offences on the indictment was at the “earliest reasonable opportunity”. Such acceptance of guilt has utilitarian value in that no witness – particularly the victims involved in the collision – had to give evidence either at a committal or trial and, furthermore, the community has been spared “the difficulty, time and expense of a trial”. Your counsel submitted that the value of your plea is very high, and made reference to the well-known decision of Phillips v R [2012] VSCA 140;
(b)That your acceptance of guilt has been accompanied by evidence of significant remorse and, in particular, reference was made to paragraphs [42] and [51] of the report from the psychologist, Mr Jeffrey Cummins, dated 16 May 2018 (Exhibit “B”) and p.2 of the report from the psychologist, Dr Lyn Radford, dated 31 May 2018 (Exhibit “F”). To this may be added the comments of your former treating psychologist, Dr Wilks, in her report dated 4 June 2018 (Exhibit “H”) at p.3, and your letter to the Court, dated 6 June 2018 (Exhibit “K”);
(c)Your mental health and traumatic and disadvantaged upbringing leading up to the circumstances of the collision “has some bearing on your moral culpability”. Reference was made to the High Court decision of Bugmy v R (2013) 249 CLR 571;
(d)The so-called principles 5 and 6 set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 are engaged. Those principles are:
" 5. The existence of the condition [that is, impaired mental functioning] at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
Reference was made to the evidence of Mr Cummins, in his second report dated 4 June 2018 (Exhibit “I”).
(d)That so-called “third party hardship” would be caused to your daughter, Lech’e. In this respect, your counsel, in particular relied on the opinion of Dr Radford, in her report dated 31 May 2018 (Exhibit “F”), wherein she stated:
“Lech'e has found this period of uncertainty about whether her mother will go to jail or not very unsettling and the school have had to deal with some tricky behaviours. Lech'e's emotional stability and her developmental trajectory will be detrimentally effected if she is unable to return to her mother's care in the very near future.”
Reference was made to the well-known decision of Markovic v R; Pantelic v R [2010] VSCA 105 and to the following decisions of the Victorian Court of Appeal – Director of Public Prosecutions (DPP) v Gerrard [2011] VSCA 200 at paragraph [61] and R v NAD [2008] VSCA 192;
(e)Your injuries, which have been suffered as a direct consequence of your offending, should be taken into account. Sometimes, such concept is referred to as ex curial punishment – that is, effective punishment suffered by you as a direct consequence of your offending, rather than an actual sentence of the court;
(f)That you have been diligent with your rehabilitation and that your overall attitude has improved, especially in relation to your mothering skills and capabilities. In particular, you have worked to address and overcome your drug use and mental health factors. This was borne out, so it was submitted, by the responsible authorities allowing you to have unsupervised contact with your daughter and, indeed, of recent times, allowing you to be re-united with your daughter when appropriate housing was obtained.
45 Your counsel noted that your negligent driving did not involve matters of driving at excessive speed or, indeed, driving a vehicle which was un-roadworthy in any way.
46 Your counsel acknowledged that your antecedents do not assist you and, in particular, acknowledges that the offence of negligently causing serious injury is considered particularly serious and, therefore, a period of imprisonment “must be imposed”.
47 Your counsel, in his submissions, précised a number of relevant cases, including Harrison v R; Rigogiannis v R [2015] VSCA 349; Papachristodoulou v R [2017] VSCA 284; Gurovski v R [2018] VSCA 3; Stocks v R [2017] VSCA 137; DPP v Halket [2016] VSCA 221; DPP v Barry [2017] VSCA 344; DPP v Zyiersen [2016] VCC 1060; DPP v Jacobs [2016] VCC 1731; DPP v Kerrigan [2018] VCC 1551; DPP v Smith [2016] VCC 1894; DPP v Henry [2017] VCC 246; DPP v Harvey [2017] VCC 1591 and Director of Public Prosecutions (DPP) v Trueman [2017] VSCA 24.
48 Your counsel referred to such decisions, in part, to highlight the differences in the degree of negligence in the driving of the accused and the degree of injury suffered by the various victims of such driving.
49 In particular, your counsel submitted that the circumstances of your driving and the injuries suffered by the victims – that is, Ms McGenniskin and Mr Emery – were not as severe as in many of the cases referred to. It was ultimately submitted that taking all the circumstances of the offending into account and the relevant mitigating circumstances, a non-custodial disposition was “open” and, in particular, the matter of Harrison v R, Rigogiannis v R (op cit) was referred to, wherein, at paragraph [130], the Court of Appeal (consisting of Maxwell P, Redlich and Tate JJA) stated:
“It may very well be that some instances of NCSI by driving, in lower categories of seriousness, may appropriately be dealt with by the imposition of a CCO or a combination of a CCO with a term of imprisonment of up to two years. But the likelihood that a CCO alone or in a combination sentence will be appropriate necessarily diminishes as the degree of negligence and the seriousness of the injuries increase. As the court recognised in Boulton, a point will be reached at which such sentencing options cease to be capable of satisfying the sentencing purposes of punishment, denunciation and deterrence.”
(footnotes omitted)
Response of the prosecution
50 Counsel for the prosecution submitted:
(a)That your plea of guilty was at the earliest possible time in all of the circumstances;
(b)That principles 5 and 6 of Verdins are enlivened by the available evidence to the Court;
(c)In respect to the claim made of “third-party hardship”, the prosecution do not accept that the test of “exceptional circumstances” set out in Markovic v R; Pantelic v R, (op cit), have been satisfied. However, the prosecution does accept that any period of incarceration for you would be harder than normal given your ongoing concerns about your daughter and the setting back of your intended re-unification with her;
(d)Counsel also accepted that you suffered significant injuries as a result of the second collision and that it is open to the Court to take that into account.
51 Counsel submitted that general deterrence is particularly important in determining an appropriate sentence, but also specific deterrence and denunciation are also important. In particular, counsel referred to the Victim Impact Statement of Ms McGenniskin as eloquent. Counsel for the prosecution submitted strongly that, in all the circumstances of this matter, immediate imprisonment should be ordered, with a head sentence and a non-parole period.
Conclusion
52 Your offending on Monday, 14 March 2017, was over a very short period of time – approximately 8.10pm to 8.15pm – but had significant consequences. During that period of time, you were the driver of a blue Hyundai, which was involved in two motor vehicle incidents.
53 At the time of the offending, you were subject to a community correction order made by the Geelong Magistrates’ Court on 3 February 2016 for a period of eighteen months.
54 Furthermore, on 1 December 2016 at the Geelong Magistrates’ Court, you were found guilty of failing an oral fluid drug test within three hours of driving. Such offending occurred on or about 3 August 2016 and you informed Mr Cummins, when interviewed by him, that you were under the influence of methamphetamine. On 1 December 2016, you were fined $300 and your licence cancelled, and you were disqualified from obtaining any further licences for six months from 2 December 2016. All of this occurred approximately three-and-a-half months prior to the subject offending.
55 The first incident on 14 March 2017 involved you reversing your vehicle out of a driveway suddenly, and without warning, into the path of vehicles that were driving west along Ballarat road.
56 Ballarat Road, Maidstone, is a four-lane highway which provides two lanes of traffic travelling in an easterly direction and two lanes of traffic travelling in a westerly direction.
57 Emil Mars was driving a vehicle travelling in a westerly direction and saw you reverse out of the driveway suddenly, causing him to apply his brakes heavily to avoid colliding with your vehicle. He brought his vehicle to a complete stop. However, you continued to reverse your vehicle and collided with the vehicle driven by Mr Mars, causing some scraping and other damage to the right-hand side of the vehicle.
58 When your vehicle was stationary in front of the vehicle driven by Mr Mars, he saw you wind down your window and you told him that someone in your vehicle was dying and you had to hurry. Furthermore, someone from a nearby house then ran out and told Mr Mars to let you go as someone was dying. You then drove away in an easterly direction on the incorrect side of Ballarat Road for a short distance before crossing over into the eastbound lanes on the correct side of the road. You and Mr Emery – the passenger in your vehicle – have no memory of the circumstances of the offending or, indeed, the circumstances leading up to why you were driving in the vehicle.
59 Other than a scant reference from the hospital that notes Mr Emery may have had excessive Heroin, there is no other evidence to support any person was dying. Of course, such words may have been uttered by you to avoid stopping and being called upon to give names and addresses.
60 In all of the circumstances, I have come to the view that I will not treat this evidence either as mitigatory or as an aggravating factor in the circumstances of your offending.
61 You then continued to travel along the correct side of Ballarat Road in an easterly direction through the intersection of Ballarat Road and Ashley Street. Approximately 60 metres east of that intersection you drove your vehicle across the centre line and into the westbound lanes on the incorrect side of the road. Your vehicle then collided with a vehicle driven by Ms McGenniskin, who was travelling in a westerly direction at approximately the speed limit of 60 kilometres per hour.
62 Your counsel submitted that your vehicle only partially crossed the centre line into the westbound lane. In particular, he referred to question 52 in your record of interview (p.259 of the depositions), where the questioner stated:
“Q 52 When you've crossed over that line - now, you weren't fully into that lane, so you're only partially into that lane, and you’ve collided head-on with a vehicle coming in the other direction. Do you recall any of that?
A No.”
63 Furthermore, Ms McGenniskin has stated that she did not see your vehicle prior to the collision. Consistent with such assertion is the evidence from Detective Sergeant Jenelle Mehegan, an expert in accident reconstruction, that neither your vehicle, nor the vehicle of Ms McGenniskin, showed any evidence of braking prior to the collision. Detective Sergeant Mehegan also considered that your speed at the time was similar to that of Ms McGenniskin, that is, at the speed limit of 60 kilometres per hour.
64 It may be that your vehicle was not completely in the laneway confronting Ms McGenniskin, but clearly enough, the collision between your vehicle and that driven by Ms McGenniskin was a head-on collision causing significant damage to both cars (as clearly demonstrated by the photos). Although both vehicles were travelling at approximately the speed limit, it must be remembered that each vehicle struck each other at 60 kilometres per hour, travelling in opposite directions.
65 Ms McGenniskin and Mr Emery suffered serious injuries as a result of that collision. You also suffered serious injuries as a result of that collision.
66 This second incident gives rise to the two charges on the indictment of negligently driving a motor vehicle causing serious injury to Mr Emery (Charge 1) and negligently driving a motor vehicle causing serious injury to Ms McGenniskin (Charge 2).
67 The offence of negligently driving a motor vehicle causing serious injury is a serious offence, as is made manifest by the maximum penalty of ten years’ imprisonment. In Harrison v R; Riogiannis v R (op cit), the Court of Appeal, when discussing the gravity of such offence, stated at paragraphs [106]–[107]:
“The motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. The most serious instances of the offence of NCSI by driving demonstrate negligent conduct of the very highest order.
The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly.”
68 Although your driving when reversing out of the premises into Ballarat Road and, indeed, your driving away after the first incident in an easterly direction for a short distance before crossing over into the eastbound lanes of Ballarat Road is some evidence of negligent driving, the negligent driving which caused the injuries to Mr Emery and Ms McGenniskin occurred when you moved your vehicle across the centre line into the face of oncoming traffic in the westbound lanes.
69 I accept that leading up to, and at the time of such collision, you were not travelling at excessive speed, and based on the evidence of the expert witness, you were travelling at approximately the speed limit. I also accept that other than the matters that I have referred to about reversing into Ballarat Road and initially travelling on the wrong side of the road before crossing over, there was no evidence of negligent driving until such time as you crossed over into the west lane.
70 In the circumstances, I also accept that your negligent driving, which was the cause of the serious injury suffered by Mr Emery and Ms McGenniskin, was short-lived.
71 However, such negligent driving on your part on a main road, at night time, was highly likely to give rise to a head-on collision, such as what occurred.
72 Of course, such offending was also in the context that it was estimated that at the time of the collision you had a blood alcohol concentration of between 0.078 and 0.10 grams of alcohol per 100 millimetres of blood. The toxicological analysis also revealed that you had taken Diazepam.
73 In his depositions (at p.46), Associate Professor Odell noted that the blood alcohol concentration cannot be calculated with any more precision on the information available. Associate Professor Odell also proffered the opinion that “Her driving skills would have been adversely affected by the combined effects of alcohol and diazepam at the time of the collision.”
74 It is not clear what the effect of alcohol per se would have had, but it is noted that the upper end of your calculated blood alcohol concentration is twice the legal limit. As is made plain in Harrison v R; Riogiannis v R (op cit), and restated in the relatively recent decision of DPP v Barry [2017] VSCA 344 at paragraph [62], the objective gravity of the offending is to be assessed by reference to the degree of negligence displayed and the seriousness of the injuries caused to the victim or victims.
75 Clearly enough, the circumstances of each case give rise to different degrees of negligence and seriousness of injuries. A perusal of the authorities demonstrates worse cases of negligence and worse injuries – for example, amputation of a victim’s leg in DPP v Barry (op cit). As I have pointed out already, although the negligence giving rise to the injury was very short, it was reasonably significant, as it would almost certainly lead to a collision. Taking all these matters into account, I consider the gravity of your offending as falling within the middle or slightly greater range. In saying this, bearing in mind the absence of up-to-date material about the effect of the injuries on Mr Emery, I consider the objective gravity of the offending is higher in relation to Ms McGenniskin compared to Mr Emery.
76 As a result of the collision, Mr Emery suffered a collapsed lung, fractures to the chest, fractures to the spine, fractures to the face, and brain bleeds and bruises, which required emergency medical treatment, including placing him in a coma. Clearly enough, such injuries were life threatening and serious at that time.
77 I was informed that Mr Emery did not wish to make a Victim Impact Statement, seemingly because he was a friend of yours. Unfortunately, there is no medical material available as to what is the present state of Mr Emery, and how those injuries have impacted on his work and recreational activities. It is not possible to speculate as to how serious those injuries have continued to be.
78 Ms McGenniskin suffered compression fractures to the second and third vertebral bodies in her thoracic spine, together with bruising and lacerations over her right elbow. She has suffered severe stress and anxiety resulting from the collision, causing her to seek supportive counselling and treatment with antidepressant medication. In her recent Victim Impact Statement, Ms McGenniskin described the consequences of her injuries on her life. In particular, she noted that her dream of becoming a park ranger, for which she had been “working, studying and volunteering” has come to an abrupt end. She described ongoing pains and emotional issues. She contemplates that she will continue to deal with chronic pain, chronic fatigue and increased anxiety for the rest of her life. In essence, she described the injuries suffered in the collision as having “changed the course of her life”.
79 Dr Barrett, one of the treating doctors, noted that her pain and back symptoms have almost resolved, but did occur with fatigue towards the end of the day. Furthermore, he noted she requires psychological support and low-dose antidepressants. Ultimately, he was of the opinion that she may suffer no permanent physical disability.
80 In mitigation, I do accept that your pleas of guilty were at the earliest reasonable time and have had the utilitarian effect of saving the Court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, your pleas of guilty to the offending obviated the need for the complainants to give evidence at a trial and to have to relive the circumstances of the offending in a public forum. It is always a question for the sentencing judge whether remorse, or the willingness to facilitate the course of justice and acceptance of responsibility, are to be inferred from a plea of guilty (see, again, Phillips v R (op cit) at paragraph [96]). I do accept that your pleas of guilty are some evidence of remorse and, more particularly, the comments you have made to various psychologists and your letter to the Court. Given the nature of the injuries that you suffered, causing you to undergo much treatment and rehabilitation, I consider that it is probable that you have some real understanding of what occurred to Mr Emery and Ms McGenniskin, both of whom underwent significant treatment after the collision, and for, at least Ms McGenniskin, ongoing treatment for both physical and mental issues.
81 In respect to your injuries, you suffered, among other things, an induced coma when admitted initially to the Women’s Royal Hospital, other injuries including a broken leg, arm and jaw and internal bleeding which has given rise to some acquired brain injury which affects memory and concentration.
82 You have undergone a substantial amount of treatment and rehabilitation, including psychology sessions. Your counsel submitted that where an offender suffers an injury or loss in the course of or as a direct consequence of her offending, this is a matter that sentences would generally take into account. Of course, the courts have cautioned that this factor may not apply in mitigation of every case involving loss or injury to an offender. In particular, I refer to Barci v R (1994) 76 A Crim R 103 wherein the then Victorian Court of Criminal Appeal held, at page 111, that notwithstanding that the applicant, Barci, had brought his injuries upon himself, stated:
“It is, we think, and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself. The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, these injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.”
83 In the circumstances of this matter, I will take into account that the injuries and consequences suffered by you as a result of the condition as constituting some punishment for that criminality.
84 Consistent with the submission made by counsel for the prosecution, I also accept that principles 5 and 6 set out in R v Verdins; R v Buckley; R v Vo (op cit) are enlivened based on the evidence of Mr Cummins, and I take that into account when formulating a sentence.
85 I also accept that your upbringing was particularly disadvantaged, in that you experienced an alcoholic father, and later a stepfather who frequently displayed domestic violence to your mother. Furthermore, you were exposed to drugs at an early date, was sexually abused by a stepbrother for a number of years, after which your mother would not accept the allegation, causing you to have a breakdown of that relationship at the age of fourteen, which has not been mended, and, indeed, your life leading up to the subject offending which involved drug use and mental health problems, have all had some bearing on your moral culpability in a general sense, and I give that some weight, albeit, not significant weight.
86 I do accept that since the occurrence of this collision, through the course of your treatment for your injuries you have made real and genuine efforts to improve your mental health and overcome drug problems. No doubt, this was largely motivated by your desire to be re-united with your daughter, Lech’e, and indeed the appropriate authorities have made plain in recent times that subject to your disposition, Lech’e can be re-united with you and live at the recent accommodation that you have obtained. Seemingly you have been drug free since the subject offending and your mental health has improved, although you continue to take Zoloft for depression and Oxazepam to assist with your sleep.
87 Your counsel submitted that the Court should take account of what is referred to as “third party hardship” or “family hardship” that in the event that you are imprisoned your daughter will be detrimentally affected if she is unable to return to your care in the very near future.
88 Hardship to a third party as a consequence of imprisonment of an offender is not normally a mitigating circumstance. However, the Court has a discretion to mitigate sentence because of third party hardship where it is satisfied the case reveals “exceptional circumstances” (see Markovic v R; Pantelic v R (op cit)). This consideration would generally only arise when the third party, in this case, Lech’e, was especially vulnerable and dependent on the offender. The circumstances must be such they arise above the general and sometimes tragic hardship currently suffered by families of prisoners.
89 After a consideration of all the evidence, I am not satisfied that there are “exceptional circumstances” in this matter. The most striking element of your situation is that in distinction to the vast majority of cases, Lech’e has not been living with you since 2015, when she was removed from your care. The argument in your case is that Lech'e’s “emotional stability and her developmental trajectory” will be detrimentally affected if she is unable to return to your care in the very near future. Such is the opinion of Dr Radford in her report dated 31 May 2015.
90 In the same report, Dr Radford also noted that you have had conversations with Lech’e about the charges and the forthcoming sentencing. Obviously enough, Lech’e has found this period of uncertainty whether you will go to gaol or not very “unsettling”. Dr Radford noted that, also, since July 2017, Lech’e has been living with family (initially her maternal uncle, now her maternal cousin) which “has increased her sense of belonging and the good communication between [you] and Lech’e’s carers has facilitated smooth transitions between you and the carers”.
91 Although other psychologists have noted your desire to re-unite with your daughter, no-one else has suggested that Lech’e’s wellbeing would deteriorate in the way suggested by Dr Radford.
92 I also refer to Markovic v R; Pantelic v R (op cit) at paragraph [20], whereat the Court of Appeal stated:
“… An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.”
(Footnote omitted)
93 I do accept that if you are incarcerated, you will suffer anguish at not being able to be re-united at this stage with your daughter and, furthermore, as Mr Cummins has noted, your mental state may deteriorate because of that situation (that is, one of the Verdins principles being enlivened). I do appreciate that this is a significant concern of yours and you have obviously worked hard to get to the point where your daughter can be re-united with you. Such considerations, however, cannot overtake an appropriate sentence based on legal principle.
94 I should add that I have read R v NAD (op cit) and Director of Public Prosecutions (DPP) v Gerrard (op cit), both of which were relied on by your counsel to support the proposition that exceptional circumstances occurred in this case. In R v NAD (op cit), the accused, prior to his sentence, had a close and dependent relationship with his daughter, who suffered from Smith Magenis Syndrome, a Development Disorder that affects many parts of the body. The major features of this condition are said to include mild to moderate mental retardation, distinctive facial features, sleep disturbance and behavioural problems. Apparently it affects 1 in 25,000 individuals. The evidence before the Court was that the daughter had significant behavioural problems, involving frequent temper tantrums and outbursts of aggression, anxiety, impulsiveness, and difficulty in paying attention, which are all standard features of the Syndrome. Prior to sentence, the offender had provided her with the necessary support and the Court held that it could be reasonably anticipated that were her father to be given a lengthy prison sentence for these offences, this would have a serious detrimental effect upon her wellbeing.
95 In Director of Public Prosecutions (DPP) v Gerrard (op cit), I consider that this decision has no particular relevance to this issue, and only affirms that a very exceptional combination of circumstances may satisfy the tests in Markovic v R; Pantelic v R (op cit).
96 Notwithstanding your previous record, involving drugs and mental health issues, I tend to the view that given your attitude to reforming yourself since the subject offending, your prospects of rehabilitation are “reasonable”. In particular, I accept that the drive to be ultimately re-united with your daughter hopefully will have a significant role in you continuing your rehabilitation and reformation.
97 I consider that in formulating an appropriate sentence, general and specific deterrence, together with denunciation, are particularly important and related to the offending involving allegedly driving a motor vehicle causing serious injury. Furthermore, I consider that specific deterrence is particularly important in relation to the offence of driving whilst disqualified given your previous history of such offending.
98 In all the circumstances, I am of the opinion that the nature of the offending in relation to the two offences of negligently driving a motor vehicle causing serious injury must attract an immediate sentence of imprisonment with a non-parole period.
99 Furthermore, given my earlier comments on the evidence before me that there are ongoing significant issues suffered by the complainant in relation to Charge 2, whereas I have no current information as to the effect and nature of any ongoing injuries suffered by the complainant in Charge 1, I intend to sentence you for a longer period in relation to Charge 2 because of that absence of information.
100 Please be upstanding.
(a)In relation to Charge 2, you are convicted and sentenced to three years’ imprisonment;
(b)In relation to Charge 1, you are convicted and sentenced to two-years-and-three months’ imprisonment;
(c)In relation to Charges 1 and 2, any licences or permits you hold are to be cancelled, and you are disqualified from obtaining a further licence or permit for a period of three years from this date, pursuant to s.89 of the Sentencing Act 1991.
(d)In relation to Summary Charge 8 (which is a second subsequent offence within the meaning of s.30(1) of the Road Safety Act 1986), you are convicted and sentenced to four months’ imprisonment;
(e)In relation to Charge 9, you are convicted and sentenced to a fine of $600;
(f)The sentence in relation to Charge 2 on the indictment will be the base sentence, and I further order that ten months of the sentence in relation to Charge 1 on the indictment and two months of the sentence in relation to Summary Charge 8 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 2 of the indictment.
The total effective sentence is four years’ imprisonment and I direct that there be a non-parole period of two years and six months;
(g)I further order that pursuant to s.464ZF(2) of the Crimes Act 1958, you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the Act until a sample of sufficient standard is obtained for placement on the database. I must inform you that at the time of request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, the sample taken will be a blood sample and police may use reasonable force to enforce the forensic procedure to be conducted;
(h)Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have ordered that you serve a period of imprisonment of six years and four months.
Anything to say, counsel?
MR GRANT: Just two matters, Your Honour. One is a fairly minor matter, I think it was a slip. When Your Honour announced the total effective sentence, Your Honour said four months, but it is clearly meant to be four years.
The other matter is, Your Honour, on the indictment Charge 1 is the charge that refers to Mr Emery.
HIS HONOUR: I have got it around the wrong way, yes, sorry.
MR GRANT: Ms McGenniskin, yes. So it may be - - -
HIS HONOUR: I apologise. Well look, I just say A, in relation to Charge 2, you are convicted and sentenced to three years' imprisonment, and B, in relation to Charge 1, you are sentenced to two years and three months' imprisonment, and I make the sentence in relation to Charge 2 to be the base sentence.
MR GRANT: And I think Your Honour ordered ten months cumulative on Charge 2.
HIS HONOUR: Yes, I will change that, yes.
MR GRANT: So it would be Charge 1.
HIS HONOUR: Yes, I will change that.
MR GRANT: If Your Honour pleases.
HIS HONOUR: You agree with that?
MR van ARKADIE: Yes Your Honour.
HIS HONOUR: Yes, anything else you want to raise about that?
MR van ARKADIE: No, thank you Your Honour.
HIS HONOUR: Yes, is there anyone in court who wishes to see the prisoner before she is taken away? Yes, I will allow you to briefly approach her now, if you do not mind. I do not believe you can do that downstairs. Yes, very well, take the prisoner.
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