Director of Public Prosecutions v Richards

[2017] VCC 733

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-17-00246

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN DAMIEN RICHARDS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 June 2017
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2017] VCC 733

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Chapman
For the Accused	Mr T. Marsh

HER HONOUR:

1       Benjamin Damien Richards, you have pleaded guilty before me to one charge of negligently causing serious injury.  The maximum penalty for this offence is ten years' imprisonment.  The facts underlying your offending are as follows.  Between 7 pm and 8 pm on 6 June 2016, you began drinking full strength beer at your home in Forrest Hill, later in the evening deciding to drive to Kew to visit a friend. 

2       At about 10.45 pm you drove west along Cotham Road and then turned right into Normanby Road, which forms a “T” intersection with Cotham Road.  The victim, Dr Lewis Luu, had left his nearby home in Kew at about 9.30 pm to go for a run, as he was training in a marathon and was running east along Cotham Road and was crossing the intersection of Cotham Road with Normanby Road at the time you made your right hand turn. 

3       You struck Dr Luu at an estimated speed of between 40 and 45 kilometres per hour, at which stage your car was wholly on the incorrect side of the road as it travelled into Normanby Road.  The left front portion of your car impacted with Dr Luu who was flung about 14.9 metres by the impact, before landing on the road surface. 

4       You stopped your car about 50 metres along Normanby Road and ran back to Dr Luu.  You waved down a car travelling along Normanby Road towards Cotham Road and when its driver, Jeremy O’Halloran, asked you what had happened, you said, “I hit him with my car”.  Mr O’Halloran stayed with Dr Luu and telephoned “000”, while his passenger, Cameron Dent, tried to get help from a nearby aged care facility.  You also told Mr O’Halloran that you did not see Dr Luu at all, “All of a sudden he came out of nowhere and jumped in front of the car.” 

5       Unable to raise any help at the aged care facility, Mr Dent and you returned to Dr Luu, at which time you told Mr Dent, you were going to leave because you had had a few drinks and walked back to your car.  Mr Dent followed you, took a photograph of your licence plate, which caused you to become verbally aggressive towards him.  An ambulance then arrived which calmed you down and ambulance officers began treating Dr Luu and then police arrived at the scene. 

6       Constable Daniel Nory noted you were stumbling, unsure of your footing, slurred your words and had a strong smell of intoxicating liquor on your breath.  He saw that you were somewhat wobbly and unsteady on your feet.  You told a second constable that you had turned right into Normanby Road from Cotham Road, “And all of a sudden he was on the bonnet and rolled off onto the road.  It was like he jumped on the bonnet.”

7       However, you also told Constable Nory you saw Dr Luu jogging towards you along Cotham Road as you slowed to make the turn, that Dr Luu slowed at he looked at the car and you thought he was going to stop to let you past and you then accelerated around the turn

8       You were subjected to a preliminary breath test at the scene which returned a blood alcohol reading of 0.101 per cent.  An officer from the Major Collision Investigation Unit, who attended the scene at about 1.15am the next day, formed the opinion that the area near the intersection of the two roads was well lit, the street lamp operating and light in it, and also formed the opinion that the road was dry, the weather fine and visibility excellent.  He saw no pre or post-impact skid marks on the road surface within the body of the collision scene and identified the initial point of impact on your car as on the left front bumper bar. 

9       You were arrested and taken to the Box Hill Police Station where you participated in a record of interview.  You told police that you had had five stubbies of full strength Carlton Draft beer at your home, that you began drinking at seven or eight o’clock, that you were not sure of how much you in fact had to drink, that you considered the possibility you might have been over the legal limit, but decided in any event to drive to visit a friend in Kew. 

10      You admitted driving along Cotham Road and turning right into Normanby Road, saying, “All of a sudden someone, someone’s just come straight across the car."  You said you were 60 kilometres per hour along Cotham Road.  You said that when you turned you saw someone on the left but you were not worried, “Because he looked like he stopped so I kept going and then all of a sudden he was on top of the car.”

11      During the interview, you provided a blood sample which returned a blood alcohol concentration of 0.096 per cent.  A senior forensic physician with the Victorian Institute of Forensic Medicine, Dr Morris Odell, gave the opinion that your blood alcohol concentration at the time of the collision was 0.116 per cent and that your driving skills would have been adversely affected by alcohol at a blood alcohol concentration in that range. 

12      Dr Luu was transported by ambulance to The Alfred Hospital and was extremely seriously injured as a result of the collision.  He suffered multiple skull fractures and multiple brain injuries, including brain bruising to both sides of the brain, bleeding and blood collection at the brain, which steadily worsened; a diffuse axonal injury, which is a brain injury where damage in the form of extensive lesions in white matter tracts occurs over a widespread area; multiple dot shaped brain bleedings, known as petechial haemorrhages; brain herniation, which is a potentially deadly side effect of very high pressure within the skull, which occurs when part of the brain is squeezed across structures within the skull; cerebral oedema or excess accumulation of fluid in the intracellular or extracellular spaces of the brain; and posterior temporal haematoma or blood accumulation to the back side of the head. 

13      He was unconscious at the scene, suffered right hemiparesis or disability in use of the right hand and leg, double incontinence, and T wave changes on ECG or impacts on the heart function.  He underwent immediate and extensive brain surgery, which included opening of the skull and cutting out a large part of the skull bone to relieve pressure.  He was admitted after surgery to the Intensive Care Unit, where he was subjected to a range of invasive and non-invasive life-preserving applications, including emergency intubation to maintain breathing with subsequent artificial ventilation. 

14      He spent about five and a half weeks at The Alfred Hospital, the first two weeks in an induced coma, followed by another four weeks in Intensive Care with a severe infection.  He then spent some months at a rehabilitation hospital in Caulfield.  Essentially, Dr Luu suffered extensive brain damage to both frontal lobes of the brain, both temporal lobes and the left parietal side.  Improvements have occurred but he remains significantly impaired.

15      Neurologist, Richard Gerraty, in a report dated 24 May 2017, stated:

“At five months from the injury when I first saw him in the Epworth rehabilitation ward he lacked initiative, had minimal spontaneous speech and no comprehension for abstract requests.”

16      Mr Gerraty noted improvements as at nine months from the injury but stated:

“Whilst he has improved from his initial coma and from the time of my first assessment in November of 2016 he remains significantly impaired.  He will remain dependent on others with marked communication impairments and he will have an ongoing requirement for high doses of anti-seizure medication with likelihood of further seizures in the future.  He will not recover to return to his work as a general practitioner and it is unlikely he will ever gain employment of any type.”

17      Professor Gerraty continued:

“If he improves further he may become more motivated, but also more impulsive and could be a risk to himself and those about him.  Some of this impulsivity is already evident.  Other behavioural problems could also develop later in his recovery.  At the moment he is under constant supervision by someone, usually a member of his family, and this is likely to be a long term requirement.”

18      Dr Luu, as a result of the particularly severe head injuries and acquired brain injuries he suffered, has been left with confusion, poor cognition, short term memory loss, lack of insight, impulsivity, post-traumatic stress amnesia and suffers regular epileptic seizures.  He requires full time assistance. 

19      It was the opinion of the Victorian Institute of Forensic Medicine’s forensic physician, Dr Jason Schreiber, that without medical assistance Dr Luu would have died, his quality of life will be low into the future, has a high risk of future seizures, as I have said, and that psychological and mental health problems are likely.  Dr Schreiber also said each of the skull fractures and multiple brain injuries suffered by Dr Luu were life-threatening, with each representing a severe injury.

20      I also received up to date reports from Professor John Oliver of the Epworth Rehabilitation in Richmond, where Dr Luu attends.  As at 22 February this year, following intense physiotherapy, Dr Luu is able to walk 500 metres without aids and could manage stairs with supervision and a rail.  By 26 May 2017, the date of Professor Oliver’s latest report, Dr Luu was described as “safe with his mobility and not mobilising any aid indoors in familiar environments.”  Professor Oliver stated:

“However he remains supervised outdoors due to cognitive problems, orientation difficulties and planning difficulties.”

21      Intensive speech therapy has also been required and his communication skills were described as remaining “significantly impaired both for comprehension and expression.”  He has had to undertake intensive physiotherapy, hydrotherapy and speech therapy, but remains in a significantly impaired state, which is likely to continue on in the foreseeable future. 

22      This matter resolved in February of this year at a further committal case conference.  The prosecution accepts this was a plea made at the earliest opportunity. 

23      You have no prior criminal history but it was drawn to my attention that you have received 10 traffic infringement notices between December 2006 and April 2016.  Thirteen Victim Impact Statements were compiled by members of Dr Luu’s family including his wife, three children, parents and mother-in-law.  They read their statements aloud to the court during the plea hearing. 

24      In her Victim Impact Statement, Dr Luu’s wife, Dr Natasha Cook, comprehensively described Dr Luu prior to being injured as a man of extraordinary breadth of activity.  He ran a general practitioner practice in Footscray, spoke four languages, was a keen runner and ocean swimmer, coached his son’s basketball team, was learning piano and was clearly an expansive large-hearted and very dearly loved husband, father, son and brother.  Many of those who wrote described him as the heart of his extended family.

25      He was a man who worked his way up from extremely difficult circumstances as a five year old refugee from Vietnam, smuggled out on a boat to America, in the course of which he did not see his parents for five years.  They then settled in Australia, he joined them, but they lived in often poor and difficult circumstances. Dr Luu educated himself in English, obtained entrance at the prestigious Melbourne Boys’ High School, undertook a degree in medicine at Melbourne University before marrying Dr Cook and having his three children; Maeve, now aged seventeen; Amon, aged twelve; and Eilidh, aged nine.

26      The immensity of their loss of the man that Dr Luu was, was in my view, eloquently expressed by Dr Cook in her sentence in her victim impact statement:

“No life is worth more than another but Lewis lived exceptionally and our loss is immense.”

27      I now turn to your personal circumstances.  You are 38 years of age, one of twin boys born to your parents in Western Australia.  Your mother works as an accountant and your father, who died when he was sixty, was an electrician.  Your parents separated when you were three and your mother returned to Victoria where you lived thereafter.  Your father remarried and you resumed a relationship with him after three to four years which remained strong until his death.  You attended a Catholic primary school and then Redden Secondary Catholic College when you dropped out in Year 12. 

28      Essentially, in what was described by your counsel as a fairly strong work history, you have been employed since in the hospitality industry, obtaining a Certificate III in Hospitality, and working variously as a dishwasher, cook and preparation chef over the next twenty-odd years.  You have had difficulties along the way, both with mental health and substance abuse and it appears from the psychiatric report of Dr Walton that the two may be linked.  I will refer to this later in my sentencing remarks.

29      You have never married nor had children and reside with your mother, your twin brother and his wife and their four children.  A number of personal references were tendered on your behalf.  Your aunt, Margaret Fitzgerald, described you as a kind and caring person, who is very close to his nieces and nephews and she offered you a home with her in Eden in New South Wales, “when this is all over.” 

30      Family friend and former police officer, Peter Masser described you as “a genuinely nice person who just went with the flow and was never an angry man.”  He said the accident, “really shook me, it just seemed so alien to the Ben I knew.”  Again, your uncle, Matthew Fitzgerald, described you as a person with a very gentle nature and another uncle, Tim Fitzgerald, a former high school principal, described you as a friendly person who had always maintained employment and supported his mother. 

31      In her reference your mother, Catherine Richards, noted that in your teenage years you started to withdraw from life and mentally struggled, ultimately being diagnosed with mild schizophrenia.  There has been a large degree of tragedy in your family; one uncle being killed by a truck when he was fourteen, this witnessed by his twin who then suffered a severe reaction including fitting, dying at the age of twenty-three when he dived in the Murray and drowned whilst having a fit.  Another uncle, Paul, had mental health issues, became a chronic alcoholic and was nursed by your mother until his death when he was forty, both of you helping with his care.  Ms Richards noted your remorse for this offending stating, “for the effect this has had on the man’s family and hopes that his condition will improve.”  Other expressions of remorse by you for this offending were also mentioned by your aunts and uncles.

32      You do have a concerning history of drug and alcohol abuse.  You began smoking cannabis when you were in Year 10.  You stopped smoking this regularly about 12 years ago, but began drinking alcohol when you were 18 and this appears to have been a continuous problem for you, you drinking daily to excess point, where your counsel told me you were consuming three slabs of beer a week, or about 10 cans of beer a day.  You have had only one serious relationship which lasted between 2013 to 2015 but she was a user of heroin and you also began using this drug, although not to the point that its expense was beyond what you could manage.  That use appears to have continued until you went on a Methadone program, not until, I note, on 24 May this year.

33      Psychiatrist, Dr Lester Walton, in his report dated 23 May 2017, noted a mental health history which appeared to have begun in 2011 when you fell in the shower while drunk and struck your head, the next day suffering intense headaches and ultimately being prescribed the anti-epileptic agent, Epilim, by your general practitioner.  You ceased use of this medication, believing it made your headaches worse, were given antidepressant medication, but discontinued use of this also, as you could not function. 

34      You reported beginning to hear low level auditory hallucinations such as that the radio was talking to you and sought medical help.  You were assessed at Box Hill Hospital in November 2012, and released in the care of a private psychiatrist, although, according to Dr Walton you appear to have been, “promptly lost to follow-up”.

35      It appears those hallucinations continued until about a year ago and your counsel submitted that your drug and alcohol abuse may be seen as a form of self-medication.  Dr Walton’s opinion was that you had a lengthy history of poly-substance abuse, which were currently alcohol and heroin, and could be properly described as a drug-dependent person.  He said it appeared you suffered from a “rather low grade psychotic illness”, between 2010 until mid-2016, the nature of which remains obscure.  Dr Walton stated:

“…the mental disturbance has indirect relevance is that he [that is, you] cites that as one of the drivers of his substance abuse.  Thus it might be said that psychiatric factors have contributed to his alcohol consumption on the night in question.”

36      He believed you had long term depression, noted you came from a family where alcohol abuse was rife, have frequent nightmares including replay dreams about the accident, did not present with any current psychosis and believed that your involvement in an alcohol and drug rehabilitation program was of high priority.  You presented to Dr Walton as remorseful for your offending.  He believed that your prospects of rehabilitation were “reasonably favourable” given your lack of prior criminal offending and he did not believe that the difficulties you do suffer would cause you find service of imprisonment more difficult than would a normal prisoner.

37      It was conceded by the defence that the injuries suffered by Dr Luu fell into the highest category of seriousness.  It was submitted, however, that the driving, although clearly criminally negligent, lacked many salient features evident in other more serious cases.  There was, for example,  no speeding; no period of erratic and unpredictable or dangerous driving leading up to the collision itself; the driving of an unregistered vehicle; driving whilst unlicensed; a history of attention from the courts for poor driving and so forth. 

38      It was submitted that the objective gravity of your offending fell into the mid‑range of this type of offending.  It was the submission of the prosecution that the grievous injuries suffered by Dr Luu meant I should regard this offending as being at the high end of the mid-range.  I do accept the prosecution submission on this point.  An examination of the relevant authorities certainly reveals actual driving intrinsically more serious than that displayed by you on this occasion, but it was nevertheless seriously negligent driving involving a speed which would indicate you did not stop prior to making the right hand turn, not affording you a proper lookout for other pedestrians, and the turn was conducted so that your car ended upon wholly in the wrong lane, and was effected by you at a time when it is clear your driving capacity was impaired by the ingestion of alcohol. 

39      The injury to Dr Luu, in my view, has correctly categorised as falling into the most serious level and has had a catastrophic and permanent effect upon he and his family. 

40      In sentencing you, I accept that you have entered a plea of guilty at the earliest opportunity; I take into account the considerable mitigatory factor that to the age of 38, you presented at the Court with no prior criminal history; you enjoy the support of your family;  and you have, despite your problems with drugs and alcohol, in my view have good prospects for rehabilitation, with the family support and structure you enjoy; and your own good work history.

41      Your early plea I recognise has saved the community the time and expense of a criminal trial, as well as witnesses the trauma of giving evidence and has allowed a fairly rapid resolution of this tragic matter, which must also bring some relief to those many members of Dr Luu’s family so grievously affected.  I also accept you are extremely remorseful for your offending. 

42      I was provided with a number of useful authorities, including the decision of Harrison [2015] VSCA 106 where the Court of Appeal, that made it clear that sentencing in cases of this kind must be increased albeit incrementally over a period of years.  This is in line with the doubling of the maximum penalty for this offending from five years to ten in 2008.

43      At the end of the day, as specifically noted in this case, it must be recognised that negligently driving a motor vehicle can result all too easily and all too tragically in the immense damage of another human being, as is so graphically demonstrated in this case.  I entirely accept that general deterrence is of particular significance in the sentencing exercise before me and it was not suggested that anything other a term of imprisonment should be imposed in this case.

44      In determining the appropriate sentence I have had regard, as I am bound to do at law, to the sentencing statistics and other sentences imposed in cases of this kind for this charge.  It should absolutely be emphasised that this sentence does not constitute some measure of the immense damage suffered by Dr Luu and his family.

45      That damage, as I hope has been made clear in these sentencing remarks and the hearing, is fully recognised by the court.  Could you stand up please, sir?

46      You are sentenced to three and a half years' imprisonment and you are ordered to serve a minimum term of two years before becoming eligible for parole.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five years and order that you serve a minimum period of three and a half years.  Thank you.

47      We have orders?

48      MR CHAPMAN:  So far as the order for a  forensic sample we do press that particular order but not the other, Your Honour, in respect of the items for disposal.  They were in fact Dr Luu's items.

49      HER HONOUR:  So you do not want me to sign the disposal order?

50      MR CHAPMAN:  Not the disposal order, we do not press that.

51      HER HONOUR:  Thank you, very well.

52      MR CHAPMAN:  Pre-sentence detention was six days, not including today, as I understand it.

53      HER HONOUR:  I declare that six days of this sentence had been served by way of pre-sentence detention.  Could you stand up please, Mr Richards?

54      MR MARSH:  Sorry, Your Honour, is Your Honour about to deal with the 464 order?

55      HER HONOUR:  Yes.

56      MR MARSH:  If I could just say something in relation to that, Your Honour?  I have sought some instructions from Mr Richards.  He understands the nature of that order and he does not oppose the making of it.  What I would say in relation to that, Your Honour, is that the taking of a forensic sample can have a deterrent in some cases.  It may also assist in the detection of offences in other cases.

57      In my submission the requirement for both specific deterrence that might be afforded by the taking of the sample and also the future utility of that sample in any subsequent investigation could be properly characterised as low in this case.

58      HER HONOUR:  I agree with you, Mr Marsh, and it is not something that I simply grant because it has been asked.  I'm sorry, I have interrupted you.

59      MR MARSH:  No, not at all, but I do want to be clear in saying that
Mr Richards' own position is that he does not oppose the making of that order.

60      HER HONOUR:  I will note that the order is by consent.

61      MR MARSH:  Thank you, Your Honour.

62      HER HONOUR:  It does seem to me just in the particular circumstances of this case, and notwithstanding what I have said about the prospects of rehabilitation, that there is some utility in the taking of the sample, Mr Marsh.  That is all there is to say.

63      MR MARSH:  I won't take it any further than that, Your Honour, thank you.

64      HER HONOUR:  Mr Richards, I need to tell you I have granted permission for police to take a forensic sample which will be a swab from your mouth.  I need to advise you that police are entitled to use reasonable force if you resist in the taking of this sample.  Have a seat, sir, thank you.

65      MR CHAPMAN:  Your Honour, the only other matter was the question of the driver's licence.

66      HER HONOUR:  Yes, of course.  It is a minimum of 24 months, isn't it?

67      MR CHAPMAN:  It is, Your Honour, yes.  The submission of course we advanced to Your Honour was that in the circumstances of a non-parole period of two years that a disqualification period should at least go beyond that.

68      HER HONOUR:  Yes, I remember that submission and I agree with you.  Is there anything you want to say about that, Mr Marsh?

69      MR MARSH:  No, Your Honour.

70      HER HONOUR:  Your licence is cancelled.  You are disqualified from obtaining any further licence for a period of three and a half years.  Thank you very much.  Is there anything else that I need to order?

71      MR CHAPMAN:  No, Your Honour, thank you.

72      HER HONOUR:  Thank you very much.  We will stand down.

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