Director of Public Prosecutions v Rayment
[2023] VCC 524
•3 April 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALEB TIGER RAYMENT |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2023 | |
DATE OF SENTENCE: | 3 April 2023 | |
CASE MAY BE CITED AS: | DPP v Rayment | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 524 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Negligently causing serious injury – Possess drug of dependence – No criminal history – Victim not wearing a seat belt at time of incident - Expert opinion – Victim suffered traumatic brain injury – Injury contributing factor to victim’s persisting mild dysexecutive disturbance – Youthful offender – History of cannabis use since 15 years of age – Demonstrated remorse – Expert opinion – Cannabis use disorder – Sub-diagnostic threshold for Post-Traumatic Stress Disorder
Cases Cited:Harrison v The Queen [2015] VSCA 349; Boulton v The Queen [2014] VSCA 342; Stephens v The Queen [2016] VSCA 121; R v Whyte (2002) 55 NSWLR 252
Sentence: Convicted and sentenced to 6 months’ imprisonment in combination with Community Corrections Order of 2 years’ duration – Drug and alcohol treatment and re-offending programs conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Johnson | Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue & George Criminal Lawyers |
HER HONOUR:
1Caleb Tiger Rayment, you have pleaded guilty to one charge of negligently causing serious injury and one charge of being in possession of a drug of dependence, namely cannabis.
2Negligently causing serious injury has a maximum penalty of 10 years’ imprisonment, and possession of a drug of dependence in your case has a maximum penalty of 5 penalty units.
3I must factor in the maximum penalties in sentencing you, as these reflect the seriousness with which Parliament regards the offences.
4I sentence you on the basis of the amended summary of prosecution opening which was tendered at the plea hearing.
5On Saturday, 30 January 2021, in the evening, you attended a hotel in Maribyrnong for social drinks, travelling in an Uber each way. According to the prosecution opening, you were recorded on CCTV at the hotel and were seen to be consuming 'multiple alcoholic drinks'.
6Your counsel told me that you had consumed three to four full-strength beers.
7You arrived at the hotel at about 8.16 pm and returned home to your address in Sydenham between 11.30 pm and midnight with your partner, the victim in this matter, Montana Booth-Bruscino.
8At about 12.30 am on 31 January you and Ms Booth-Bruscino decided to go and get some food from a local food van. You decided to drive your car, which was a Holden Commodore sedan. You were holding a probationary licence at the time, and therefore your blood alcohol level ought to have been 0.00 per cent.
9You purchased food from a kebab van at the intersection of Taylors Road and Kings Road and intended to return home. At about 1 am on 31 January you continued to drive with the victim in the front passenger seat, driving north in Kings Road, Delahey. There was a 70-kilometre per hour speed limit for this road. You were fully aware of this. The prosecution opening records that you intentionally and dangerously drove your car at speed along Kings Road. You told police that you were driving at between 130 and 140 kilometres per hour.
10As you rounded a sweeping left-hand bend, you began to lose control of your car. You tried to regain control but were unable to. The prosecution opening records that your reactions and driving would also have been impaired by your level of intoxication from your alcohol consumption earlier in the evening.
11At the intersection with Goldsmith Avenue, Delahey, there are three lanes of traffic for northbound vehicles. Your car went across all three lanes at very high speed, leaving scuff and yaw marks which indicated your direction of travel. Your car then crashed with extreme force into a traffic light pole on the centre median strip of Kings Road at the intersection with Goldsmith Avenue. At this time the traffic light facing you was red, and other cars were stationary in the northbound lanes. Your car only narrowly missed crashing into stationary cars in the northbound lanes.
12The initial impact of the collision was with the passenger side of your car, slightly behind the 'B' pillar, to the light pole. The Holden was wrapped around the pole. Ms Booth-Bruscino had not been wearing a seatbelt. She was thrown from the car due to the impact of the collision. She landed some distance from the initial impact and was in a seriously injured condition. You were also injured in the collision.
13Loose items from inside your car were thrown from the car on impact, with one item smashing the driver’s side window of a Ford sedan which was stationary at the traffic lights.
14Police and emergency services attended the scene. The victim was taken to the Royal Melbourne Hospital, and you were taken to the Alfred Hospital. A blood sample was taken from you shortly after arriving at the hospital. Analysis found that your blood-alcohol concentration was .092 per cent.
15Major Collision Investigation Unit members attended the scene of the collision and established from the yaw marks left on the road that your car was travelling at between 116 and 124 kilometres per hour while rotating clockwise immediately before crashing into the pole.
16A small amount of cannabis was found in the centre console of your car by police giving rise to Charge 2.
17At the time of the collision the weather was fine, traffic was very light, and the condition of the road was excellent.
18The victim gave a description of her injuries which is set out at paragraph 14 of the prosecution opening.
19A report from Dr Rachel Marr dated 10 June 2022 noted the observations of medical staff at the Royal Melbourne Hospital in the emergency department. These recorded that the complainant had suffered lacerations to the head and face, chemosis (irritation) and bruising of the right eye, one of the left incisors was chipped, a laceration described as partial degloving of the left ear, and laceration to the right eyebrow ridge and eyelid. Dr Marr further noted that there had been CT imaging of the brain, spine, chest, abdomen and pelvis. This revealed a
blow-out fracture of the right eye orbit (eye socket) affecting the orbital floor and medial (inner) orbital wall, soft tissue stranding over the gluteal muscles. The X‑ray showed fractures of the base of the right second and third metacarpals (hand bones).20Dr Marr noted a review by the ophthalmology registrar who found reduced visual acuity in the right eye compared with the left, right upper eyelid laceration that extended through the skin and into the orbicularis muscle, and right eye subconjunctival haemorrhage.
21Surgery was undertaken on 1 February 2021 which involved a washout and debridement of facial injuries and removal of a foreign body from the right cheek, being a 5-millimetre piece of glass. The right eyebrow laceration was deep but not to the bone. The left ear laceration exposed cartilage. There was a superficial abrasion to the left forehead, and a laceration to the philtrum and outer aspect of the nostril. The right eyebrow, the left ear and the right cheek were cleaned, sutured and closed.
22A review on 10 February 2021 found that 2 millimetres of the right eye had sunk 2 millimetres into the socket as a result of the orbital floor fractures, and there was double vision and pain on upward gaze. Also there was numbness in the right V2 distribution. It was considered that orbital floor reconstruction needed to occur.
23Further surgery was required on 15 February 2021. The right orbital floor was reconstructed, and herniated muscle and fat that had protruded through the fracture were put back into place, and the defect repaired with a titanium plate and two screws. The fractures in the right hand were also put into alignment, and a wire was inserted to hold the fractured pieces in place, and it was plastered to immobilise the wrist.
24Dr Marr noted that the complainant fell on her right hand in June 2021, which exacerbated her injury and possibly increased recovery of her right-hand metacarpal fractures.
25Impairment in the eye function resolved six weeks after surgery. The complainant was right-hand dominant. The fractures required extensive hand therapy, including splinting, exercising, scar management and surgical reviews to manage these, and she had impaired hand function of the right hand for just over a year. There was a prospect of further mild ongoing impairments as a result of her injury.
26Dr Marr noted that by March 2022 the complainant was using the right hand with increasing confidence, and the range of movement was equal to her left hand, and pain at that point was minimal.
27In a report provided by Dr Charles Malpas, clinical neuropsychologist, dated 5 September 2022, Dr Malpas was of the view that the victim had suffered a traumatic brain injury as a result of the motor accident which was associated with a degree of cognitive impairment affecting mainly the executive functions. He found that there had been a significant cognitive recovery since that time, and her function had returned to a state very close to her pre-injury status. However, he found there was a degree of mild dysexecutive disturbance that persisted and affected her ability to focus on information, concentrate, learn new information, and recall information from memory. He noted other contributing factors such as
pre-existing epilepsy and any ongoing cannabis use. He was of the view that, whilst not possible to precisely disentangle these other factors with the impact of the motor vehicle collision, on balance it was reasonable to say that the traumatic brain injury suffered during the accident was an independent contributing factor.28Dr Malpas also opined that the complainant had developed PTSD as a result of the collision, and experienced regular episodes including flashbacks, avoidant behaviour, hypervigilance, and emotional lability.
29On Friday, 17 September 2021, you attended the Keilor Downs Police Station for formal interview in relation to the collision. You were cooperative and very remorseful for your actions. You made full admissions to being the driver involved, your earlier alcohol consumption before the driving, driving at high speed, and possession of cannabis.
30Mr Rayment, your offending is serious and deserving of a punishment which is just in all of the relevant circumstances, and your conduct must be appropriately denounced.
31You knew very well that there was a prospect that your blood alcohol was not .0 per cent; however, you chose to drive anyway. Not only this, but, on your own admission, shortly before the collision you were driving at speeds up to double the speed limit, and the reconstructed speed of your car once it lost control was significantly above the speed limit. Thankfully, no one else was injured in this dreadful collision; however, this was more good fortune than good management on your part. As I am sure you appreciate, your conduct on this particular occasion was outrageous and extremely dangerous, culminating in you losing control of the car and leading to the complainant’s serious injuries.
32Contrary to your counsel’s submissions, in my view your moral culpability is fairly high in relation to the offending.
33In sentencing you, I have taken into account in a general way the fact that the victim was not wearing a seatbelt, which saw her flung out of the car; however, you properly acknowledge your responsibility in relation to this offending, and there is no evidence as to what would have occurred if the victim had been wearing a seatbelt. Your Counsel did not seek to address me in respect of this aspect to expand on this in any way.
34You have no prior or subsequent convictions or findings of guilt, and the multiple character references, and character evidence given by the victim’s mother in this matter, amply prove that you are a person of otherwise good character.
35I have not received a victim impact statement in this matter; however, I have heard evidence from the victim’s mother, who speaks very highly of you and of her daughter’s dependence upon you. You have been devoted to her from the outset, and you are very remorseful. Obviously, there are some enduring impacts for the victim in terms of her memory issues and resolution of her hand injury; however, it appears that she has made a fairly good recovery overall.
36I was told that you did not, and do not, regularly drink alcohol socially, or at all, and that consuming alcohol at the level that you did on the night of the offending was completely out of character. I understand that prior to the collision, you advised others not to drive at speed, which makes your offending all the more perplexing.
37After the collision, you stayed at the scene and helped the complainant, who had sustained serious injuries. You acknowledge that the combination of speeding and alcohol contributed to you losing control of the car, and that your driving fell well short of the standard owed to other road users on the occasion of your offending.
38Having regard to the factors set out in Stephens v The Queen [2016] VSCA 121 at [23] and R v Whyte (2002) 55 NSWLR 252, and having regard to your Counsel’s submissions and those of the Crown, I find that the objective seriousness of your offending falls within the mid-level for this offence.
39In sentencing you I take into account your background.
40You grew up in Sydenham with your parents and sister. Your parents separated acrimoniously when you were 12 or 13 years old. There were some family violence issues at the time of separation, which resolved once the divorce was finalised. You remain close to both of your parents and your sister. You live with your mother and sister.
41You completed Year 11 at a technical college, then completed a carpentry apprenticeship with Sheridan Building. You have worked for the same company since this time.
42Since you were 16 years old you have been mainly focused on work and did not engage in a great deal of socialising or recreational drinking of alcohol. You have used cannabis since you were 15 years old.
43You have known Ms Booth-Bruscino since your childhood. Before being in a relationship with her, you have had one other relationship when you were 18 years old. I was told that the stresses and strains that have ensued after the collision have served to mature you both.
44I allow for a significant discount in the sentence you would otherwise receive in circumstances where the Crown conceded that you entered a plea of guilty at the first reasonable opportunity. You indicated that there would be a likely plea of guilty at the first committal mention and when the matter proceeded by way of hand‑up brief. Ultimately the matter resolved to a plea of guilty following discussions between the parties at a case conference which was conducted in this Court. I understand that a sticking point was whether the injuries suffered amounted to serious injury as defined by the law.
45In taking the course that you have, you saved the witnesses the time and trouble of giving evidence, and you saved the community the time and expense of contested proceedings. Further, you are entitled to a palpable discount by facilitating justice as you have entered pleas of guilty during the pandemic, contributing to the reduction in the backlog of trials in this Court.
46I accept that you are genuinely remorseful for your conduct and have appropriate insight into the seriousness of your offending. I accept that your remorse has been amply demonstrated from the time of the collision until now by virtue of your cooperation with the police and devotion to the victim in her recovery and everyday needs.
47I note that you have attended a number of sessions with a psychologist, and your employer, who is also your stepfather, speaks very highly of you as a carpenter and also as a person. You have a solid work ethic which stands you in good stead in relation to your prospects of rehabilitation as do a number of other matters.
48I understand that you have not driven since the collision.
49I have also factored in the contents of the community corrections assessment report, which is fairly positive in support of your prospects, although you have a way to go with appreciating the illegality and undesirability of cannabis use.
50In sentencing you, I take into account in a general way the report of Ms Carla Ferrari dated 18 January 2023. Ms Ferrari was of the view that you 'possibly' suffered from undiagnosed attention deficit hyperactivity disorder which appears to have led to self-medication with cannabis from the age of 15, and that your cannabis use developed into a cannabis-use disorder. She found that since the accident you had developed symptoms 'which currently are subdiagnostic threshold for post-traumatic stress disorder', that you exhibited mild to moderate symptoms on all criteria except hyper arousal currently, although such symptoms can fluctuate and you might meet diagnostic criteria in the future. She said that you described worsening anxiety in response to the collision, and also exhibited depressive symptoms consistent with major depressive disorder with anxious distress 'as a result of the guilt, shame and trauma relating to the offence'. This condition has significantly impacted upon you, with disruption to your sleep, appetite, concentration, energy, motivation and enjoyment of 'usual activities' (page 10).
51In view of your symptoms as described by Ms Ferrari, I am satisfied that time in gaol would be more difficult for you than for someone without these symptoms, and I also factor in that this would be your first time in gaol, and you are quite young. Further, any time in jail will be harder for you due to your concern for the victim in your absence, in circumstances where she heavily depends upon you for daily support.
52As the learned prosecutor pointed out at the plea hearing, in cases such as this, strong weight must attach to general deterrence in a bid to deter others from behaving as you have. In Harrison v The Queen [2015] VSCA 349, the Court said:
'We noted earlier in our reasons that [negligently causing serious injury] by driving is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects for rehabilitation. As was said in Director of Public Prosecutions v Neethling in respect of [dangerous driving causing death] and [dangerous driving causing injury]:
"It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight."'
53Notwithstanding that youth is to be given less weight than might otherwise be the case, it is still an important consideration in this case. You were only 20 at the time of the offending, and are now 22, and I must do what I can to maximise your rehabilitation, whilst not compromising the weight that must attach to other relevant sentencing considerations.
54In view of your otherwise good character, including your lack of prior or subsequent convictions, the nature of the current offending, and your strong family support, and support from your partner, and your strong work ethic, as well as your pro‑social attitude and remorse and insight, I rate your prospects of rehabilitation as being excellent, and I need place only minimal weight on specific deterrence and protection of the community.
55In sentencing you, I have had regard to current sentencing practice, noting that this is but one consideration, and not a controlling one.
56Your counsel submitted that a community correction order was justified in circumstances which she described as exceptional in your case. The learned prosecutor submitted that the circumstances were not exceptional, and that a custodial sentence was warranted. She submitted that a head sentence with a non-parole period was appropriate, but fairly conceded that a combination sentence involving imprisonment and a community correction order was within the range. However, she submitted that a community correction order on its own was not within the range.
57Your counsel referred to the case of Boulton v The Queen [2014] VSCA 342, and submitted that in view of what the Court said in that case a suitably-crafted community correction order could reflect the weight given to all relevant sentencing considerations in your case. I have also considered the first submissions provided by your counsel after receiving a community corrections outcome report and of course I have considered the contents of that report as well which deems you suitable for a community corrections order.
58I am afraid that your offending is too serious, and the weight to attach to relevant sentencing principles, especially general deterrence, is such that nothing short of a sentence of imprisonment in combination I would say though with a community corrections order is appropriate. As I have said, I am of the view, however, that a combination sentence is warranted, and therefore I propose to place you on a community correction order with a gaol term to be served before embarking upon it.
59You are convicted of the offences.
60In relation to Charge 2, possession of a drug of dependence, you are fined $100.
61In relation to Charge 1, I make the ancillary order cancelling all driver's licences, and you are disqualified from driving for 24 months, but I backdate the operation of that order to 31 January 2021.
Community correction order
62The community corrections order that I propose in relation to Charge 1 would be as follows. It would be for a period of two years.
63The conditions of the order would be:
64Firstly, the mandatory terms that apply to all Community Correction Orders which are:
65You must not commit another offence for which you could be imprisoned during the time that the order is in force;
66You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
67You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
68You must report to the Derrimut Community Corrections Centre before 4 pm within two clear working days of your release from gaol.
69You must let a community corrections officer know within two clear working days of you changing your address or job;
70You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);
71You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
72The conditions that apply in addition to the mandatory terms listed are in keeping with those recommended in the community corrections assessment report:
Treatment and Rehabilitation
73You must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager.
Programs reoffending
74You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, in particular, the Road Trauma Awareness course.
75Now, having heard the community corrections order that I propose, do you consent to the terms and conditions of the order?
76OFFENDER: Yes. Yes, Your Honour.
77HER HONOUR: I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge in which case you may well be sentenced to period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
78Now, do you understand this?
79OFFENDER: Yes, Your Honour.
80HER HONOUR: Do you still consent to the making of the order?
81OFFENDER: Yes, Your Honour.
82HER HONOUR: Therefore in relation to Charge 1, I am going to impose the community corrections order which will be made in a combination with a term of imprisonment which I will announce in a moment but I will have your counsel assist you with the signing of that order at this stage please.
83MS PARSONS: Your Honour, while I am assisting Mr Rayment with the signing of the order, may I hand him this piece of paper which is just a list of names and phone numbers to put in his possession? It was just supposed to have been organised before Your Honour came onto the Bench, I just wanted Your Honour to understand what I would be handing to him.
84HER HONOUR: All right. Yes, I have no difficulty with that.
85MS PARSONS: Thank you. So may I approach Mr Rayment?
86HER HONOUR: Yes.
87MS PARSONS: Thank you. Thank you, Your Honour.
88HER HONOUR: Thank you.
89In combination with the community corrections order, you are sentenced to six months’ imprisonment which will of course take effect immediately so that is in combination with the community corrections order.
90There is no pre-sentence detention to declare.
91If not for your plea of guilty to Charge 1, I would have sentenced you to four years’ imprisonment with a non-parole period of three years.
92All right. Now, I will make the authorities aware if you ask that I do, Ms Parsons, that this will be Mr Rayment's first time in custody if there are any custody management issues arising from his mental health.
93MS PARSONS: Thank you, Your Honour.
94HER HONOUR: Yes? Do you want me to have that communicated - - -
95MS PARSONS: Yes, please. Yes. Thank you.
96HER HONOUR: - - - through my associate?
97MS PARSONS: Yes. Thank you.
98HER HONOUR: All right. Yes. Thank you. If you could please remove Mr Rayment.
99Yes. Thank you. We will now adjourn.
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