Director of Public Prosecutions v Riley
[2013] VCC 1365
•3 October 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-01371
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE RILEY |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 September 2013 | |
DATE OF SENTENCE: | 3 October 2013 | |
CASE MAY BE CITED AS: | DPP v Riley | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1365 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence –
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Lewis | Office of Public Prosecutions |
| For the Accused | Mr R. Alexander | James Spencer |
HER HONOUR:
1 Kane Riley, you have pleaded guilty to two charges of negligently causing serious injury, one charge of recklessly causing injury, one charge of reckless conduct endangering persons and one charge of failing to render assistance after an accident on Indictment C13320638.
2 The maximum penalties applicable to those offences are negligently causing serious injury, 10 years’ imprisonment, recklessly causing injury, 5 years’ imprisonment, reckless conduct endangering persons, 5 years’ imprisonment, and failing to render assistance after an accident, 10 years’ imprisonment.
3 In addition to the charges on the Indictment, you have also agreed to a summary charge being dealt with by this Court pursuant to s.145 Criminal Procedure Act 2008, and have pleaded guilty to a charge of driving whilst disqualified. The maximum penalty applicable to that offence is 240 penalty units or 2 years’ imprisonment.
4 Your offending occurred on 25 February 2012, and all charges relate to your driving on that date.
5 It is not necessary to summarise in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with the prosecution opening (Exhibit A). A brief summary follows.
6 At the time of your offending you were 19 years of age, and at sentence 20 years of age, turning 21 in October 2013. Your Victorian driver’s licence had been cancelled at Bacchus Marsh Magistrates’ Court on 17 February 2012, only 8 days earlier. At that Court hearing your licence was cancelled and you were disqualified from obtaining a licence or permit for a period of 13 months backdated to 6 February 2011.
7 The specific victims in Charges 1, 2 and 3 were your young friends.
8 At approximately 3.30am on 25 February 2012 you were the driver of a motor vehicle with five passengers, Allisha Hiscock, Matthew Azzopardi, Beau Jarrett, Kade Sexton, and Rhys Hutchinson.
9 You commenced your driving that night by driving your motor vehicle up onto the footpath on the corner of Gisborne Road and Main Street, Bacchus Marsh, simply so you could speak to a group of people.
10 You saw police in a marked divisional van travelling towards you. They signalled to you to move your vehicle back onto the road and to pull over. They made eye contact with you. Had you stopped at that time you would not have committed the charges on the Indictment. However, you decided to avoid the police.
11 You smiled at the police then sped off in an easterly direction along Main Street, passing two popular hotels. At that time, alcohol-affected patrons were leaving those venues, and the foot traffic along Main Street was medium. As a result of the presence of those people in the area, police did not engage in pursuit with you.
12 You sped past the two venues with no headlights on, travelling in excess of 70 kilometres per hour in a 50 kilometres per hour zone. Main Street is a built-up area of Bacchus Marsh and has four pedestrian crossings. This constitutes Charge 4 on the Indictment.
13 You then travelled approximately 800 metres along Main Street and turned right into Fisken Street without indicating. You sped away, travelling at speeds in excess of 100 kilometres per hour, Fisken Street being a 60 kilometre zone, with housing on either side of the roadway.
14 From the depositions some of your passengers urged you to slow down. However, you did not.
15 You travelled just over a kilometre along Fisken Street across the railway tracks at high speed, causing your vehicle to lose traction. You continued a further 400 metres before you came to a T‑intersection, at which time you lost control of your motor vehicle and failed to execute a left-hand turn. Your vehicle rolled numerous times over the Bacchus Marsh–Geelong Road before coming to rest on its roof against a tree on the south side of the intersection. That road is a major arterial into the Bacchus Marsh township.
16 You exited the vehicle and left the scene, leaving Sexton, Hutchinson, Azzopardi and Jarrett trapped inside your overturned vehicle in the dark. Hiscock and Azzopardi were seriously injured, Hiscock having been thrown from the vehicle. Jarrett suffered bruising behind his left ear. You did not render any assistance to any of your passengers or call for medical assistance (Charge 5). The latter could have been done anonymously by you, however you chose not to call for help. Your failure to render assistance was self-centred and callous.
17 After police arrived ambulances were called, and Hiscock, Jarrett and Azzopardi were taken to hospitals in Melbourne for treatment. Hutchinson and Sexton refused medical treatment. The last mentioned two passengers also refused to make statements to police. I was told by Mr Alexander, who appeared on your behalf, that after you left the scene you went home and stayed in a shed at the back of your grandparents’ property. You said you were not hiding, rather claimed you did this because you did not want to wake your grandmother up when you returned.
18 What is clear, whatever your reason for going to the shed, was that you did not attend the police station to tell them of your involvement in this collision until 9.00pm, approximately 18 hours after the collision.
19 At 9.00pm (Exhibit A was amended from 9.00am during the hearing) you attended Bacchus Marsh Police Station and admitted you were the driver. You were told at that time you would be interviewed later. You were ultimately arrested on 30 April 2012 and interviewed regarding this incident. Apart from admitting you were the driver, you gave a “no comment” record of interview. It was of course your right to answer “no comment” to police questions.
20 At the time of this collision the weather was fine, roads dry, and the road surface was bitumen.
21 I regard your offending before me as very serious indeed. As I have previously said, your leaving the scene (Charge 5) was extremely callous.
22 There are a number of very concerning circumstances surrounding your offending. Firstly, your relevant prior criminal history.
23 You appeared at Bacchus Marsh Magistrates’ Court, as I previously stated, on 17 February 2012, and were then dealt with for offences of theft of a motor vehicle, failing to stop a vehicle after an accident, driving in a manner dangerous, exceeding prescribed concentration of alcohol, two charges of driving whilst authorisation was suspended, two charges of stating a false name or address, assault police, resist police and being drunk in a public place. For that offending you were, without conviction, fined a total of $2500 in fines (including $400 to be paid into the Court fund) and ordered to pay compensation of $250, $9850 and $5335.41. Your licence was, as I said, cancelled and disqualified for a period of 13 months backdated from 6 February 2011.
24 You were, in my opinion, albeit that was your first appearance in court, dealt with leniently in relation to that offending. That is purely, I stress, an observation of mine, as you of course are not being re-sentenced for those offences. However, those prior driving offences are relevant when assessing your offending that is before me and the appropriate sentence in this Court. In particular, I am concerned about your previous failure to stop your vehicle after an accident (which involved damage to a fish and chip shop), driving in a manner dangerous and driving whilst suspended. This was not the first time you had left the scene of damage and destruction you had caused.
25 In addition to your concerning driving history, your offending occurred whilst you were disqualified from obtaining a licence following that court hearing on 17 February 2012. I am also concerned about the complete disregard you showed for the law, having been at court just eight days earlier, as well as your total disregard for your passengers. There was no way you could have known their medical condition when you left them in the car or on the side of the road relevant to Charge 5. Your concern for their safety/health was overridden by your concern that you were not licensed.
26 A further analysis of the dates of your offending dealt with on 17 February 2012 paints a very disturbing history of your continued blatant disregard for the rules of the road and your obligations as a driver. That disregard began just two months approximately after you obtained your licence. I shall refer to that history later in these sentencing remarks.
27 You have pleaded guilty to the charges before me and are entitled to have that fact taken into account in your favour, and I do so.
28 The community has by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of having to give evidence at your trial. I note there was no contested committal, and that this matter settled to a plea of guilty to a suitable Indictment at a committal mention.
29 The fact of your plea of guilty and timing of it is relevant and mitigates your sentence.
30 Whilst I accept there is an aspect of remorse in your plea of guilty, I am concerned as to whether you are genuinely remorseful for your offending. Had you stayed at the scene with your passengers, called for emergency services and/or attended the police immediately, or at least well before 18 hours had passed, such would have been indicative of true remorse.
31 There were a number of victims of your offending and they have suffered to various degrees in the ways outlined in the statements within the depositions. In addition to that I have received two victim impact statements.
32 Matthew Azzopardi in his victim impact statement described resultant emotional effects such as stress and depression, and finding it difficult on occasions to be in a motor vehicle as a direct result of this collision. Over the time, he said, some of that has abated. The incident brought him closer to family and friends, and served as a lesson for both himself and his friends. The incident affected his tertiary studies, with the collision occurring three days before the start of the semester in his second year of a Bachelor of Design course. As a result of the collision, he had to drop a number of subjects, and his grades were affected.
33 He described the injuries he sustained in the collision, involving a fractured left wrist, a large abrasion to his scalp, and numerous puncture wounds to his left arm. The most significant injury was a fractured wrist, which prevented him playing football and guitar.
34 As a ‘right hander’ the collision had not had much effect on his life besides his ability to play guitar. He has not required further treatment. This is a distinguishing feature from Ms Hiscock. There was a financial impact upon him, in that as he had to drop a few subjects in his study the fees were not refunded.
35 There was a victim impact statement from Allisha Hiscock. She described the collision as adversely impacting on her emotionally. She was no longer happy or enjoying life. She was often depressed and suffered stress and anxiety. Her family had been severely affected psychologically as a result of Ms Hiscock being in the collision, with one of her parents requiring therapy.
36 She struggled to return to work, and was not motivated. She had difficulty focusing and concentrating. It had taken her a long time to feel comfortable in a car, and she was still frightened to drive. She had recurring nightmares about the collision.
37 The injuries she sustained in the collision were a fractured wrist, which required surgery with a plate and screws inserted. She had lost the full use of her wrist and hand, and had not regained the feeling in her wrist due to nerve damage. She had severe whiplash and sustained damage to her muscles and had torn tendons in her left shoulder, upper and lower back. She sprained her ankle, and was unable to walk without pain for a few weeks, and had glass removed from her legs weeks after the collision.
38 She had severe headaches on a regular basis, and often had difficulty sleeping due to the pain in her neck and back. She would require ongoing medical treatment such as osteopathy. At work she was unable to sit for extended periods of time without pain.
39 She was also affected financially as a result of this collision, being unable to work for over two months, suffering a loss of earnings. Then she could only return to work on a reduced number of hours, which resulted in further loss of earnings.
40 As a result of her injuries she was unable to drive for a significant period of time and required her father drive her to appointments. She would need to spend money for osteopathy in the future. The effects of this collision in her case are ongoing.
41 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious, however I must not allow the effects upon a victim to swamp the sentencing process.
42 Mr Alexander, who appeared on your behalf, said you acknowledged your driving could have had far more tragic consequences, but urged that I see your offending behaviour on this occasion against a background as outlined in the report of Mr Michael Crewdson, Psychologist and Psychotherapist, dated 23 August 2013.
43 Mr Alexander submitted the reason for your driving on this particular occasion was that despite being aware your licence was cancelled and disqualified, you wanted to go into town to catch up with friends as you felt isolated. That quite simply is a most unsatisfactory reason for you driving your motor vehicle on this night, and in particular does not explain your speeding away from police when they made eye contact with you.
44 Mr Crewdson in his report stated the obvious in the first line of his report, that:
“There is a concerning pattern of behaviour involved in this case which suggests that there has been a degree of rebelliousness, a disregard for social standards.”
45 Mr Crewdson, however suggested your background provided an explanation in part for your offending, and I discussed this at some length with your counsel, in particular, whether or not the report of Mr Crewdson activated any of the principles in Tsiaras[1], as restated in R v Verdinsand Ors[2].
[1]R v Tsiaras [1996] 1 VR 398
[2](2007) 16 VR 269
46 Mr Crewdson said that since this collision there had been a major change in your attitude. He suggested that in the past you had not been managed in relation to the psychological issues he identified. However, I note in his report this was not conclusive. The present situation he said “may” have never arisen had you had the appropriate psychological treatment. I discussed that sentence with Mr Alexander.
47 In his report Mr Crewdson referred to this offending, noting as do I that these charges occurred only eight days after your court appearance on 17 February 2012. His report provided additional important details regarding the offences dealt with on that date, as that appearance was a consolidation. On 6 February 2011 you drove with a blood alcohol concentration of 0.132 per cent, drove in a manner dangerous and failed to stop after an accident. This offending, I was told, occurred only approximately two months after you obtained your licence. Mr Crewdson also noted other driving offences dealt with on 17 February 2012 relating to you driving whilst your licence was suspended, that having occurred on 12 May 2011. On that same date you were speeding in an unregistered motor car and stated a false name and address. That is, just three months approximately after the offences in February 2011 you were again on the road committing serious driving offences. Then on 26 June 2011, you again drove while your licence was suspended, failed to have your registration label displayed and again stated a false name and address. So approximately five weeks after your offending in May 2011 you were again offending.
48 In addition to those driving offences, you were also sentenced on 17 February 2012 for assault, resist police and being drunk in a public place. That offending occurred on 8 October 2011, just three and a half months approximately after your offending on 26 June 2011.
49 A careful analysis of your one prior court appearance reveals a disturbing and serious driving offending history, which is relevant when assessing your rehabilitation prospects. Your offending history also commenced when you obtained your licence, with nothing showing before that.
50 In relation to the offending before me, you told Mr Crewdson you panicked and only left the scene after you had checked that your passengers were safe. I expressed my concerns about the accuracy of that assertion, as clearly a number of your passengers had, in fact, been injured.
51 Mr Crewdson noted you attended the police station the following morning voluntarily, although it now appears it was not until 9.00pm. I also discussed with counsel the statement of Senior Constable Wraight (p.44 of the depositions) in which she said she made a few attempts to contact you via your grandmother after that 9.00pm attendance to arrange an appointment for you to attend with police for an interview regarding this collision, however you did not voluntarily attend the station. Mr Alexander sought instructions about this from your grandmother, who appeared to not have a recollection of those requests by police.
52 On 30 April 2012 you were arrested at your home and were then interviewed. Reference to your ‘voluntary’ attendance with police by Mr Crewdson is not as favourable as it might first appear upon analysis.
53 You told Mr Crewdson your offending had changed your life. You could not bear to think about what could have happened to your passengers. You said you had apologised to the passengers, except for one you could not contact. Since the collision, you said you had attended a traffic alcohol course (part of the Court order imposed on 17 February 2012) and had sought assistance from Elms Family Medical Centre for your psychological state. You had been previously taking antidepressant medication Zoloft for several years, which was confirmed in correspondence from Elms Clinic.
54 In relation to your assessment, Mr Crewdson did not detect any attempt by you to manipulate or subvert the nature of the assessment, nor to attempt obfuscation of a deliberate kind, nor any evidence of malingering or of factitious disorder. He concluded you were quite intelligent and functioned within the normal range of intellectual abilities. You did not have any symptoms of attention deficit hyperactivity disorder. You acknowledged your actions on this particular night were illegal and inappropriately initiated being aware you should not have been driving in the first place. He concluded you had “some” insight into your behaviour. I discussed the latter with Mr Alexander who conceded that that conclusion regarding your insight by Mr Crewdson was guarded. I have similar concerns regarding your insight.
55 Overall your mental state examination, Mr Crewdson said, was unremarkable with no indications of any major psychological illness such as psychosis or bipolar disorder. There were no issues such as antisocial personality disorder or attention deficit disorder.
56 Mr Crewdson concluded there was no history of major illness or injury and no history of family psychiatric disorders.
57 You were, however, extremely anxious and Mr Crewdson concluded the history given by you was consistent with a chronic dysthymic disorder combining anxiety and depressive responses. Mr Alexander submitted this activated the principles in Verdins. According to Mr Crewdson, you did not have any psychological impairment of capacity relevant to any mental state defences.
58 Turning to your background and history, your parents were psychologically and socially unstable being involved in substance abuse. Both your parents had now passed away. You were raised by your grandparents from when you were in approximately Grade 3. Further detail was provided of this by Mr Alexander in that regard.
59 I was told your parents raised you until you were about 4 but during that time your grandparents often collected you and took you into their care, and on other occasions you were sent to them for care, due to your parents’ substance abuse and their resultant inability to care for you.
60 When you were 4 years of age, your parents and yourself moved to Hampton, however, your parents’ drug habit continued. At age 8, whilst in the care of your mother at that time, it appears you did not see your grandparents for approximately two years. In that time you lived for six months with your mother, then you went to live for 18 months with the parents of her ex-boyfriend as I understood it. From the age of 10, I was told you had been in the care of your grandparents. They provided you with stability in the past ten years.
61 Regarding the relationship with your father, from approximately 4 years of age, you had little contact with him. You were 5 when your parents finally separated, at that time your father was serving a prison sentence.
62 Regarding your mother, you had very little knowledge of her background, although she had given birth to three sons prior to you. You met them for the first time at her funeral. Whilst you described your relationship with her as loving and “very good” you said you were consistently let down by her broken promises. Prior to her death, you had not seen her in the previous three months.
63 In 2000, when your father was released from prison, he came to live with you and your grandparents for a time. However, unfortunately it seems he died not long after.
64 You resumed contact with your mother in 2002, however, were reluctant to visit her.
65 Your grandfather died in 2003 when you were 11 years of age.
66 Whilst you had not been the subject of physical or sexual abuse, Mr Crewdson concluded your background was one of inconsistency, neglect, abandonment and disillusioning disappointment. Whilst I accept that may be so, in particular in your early years, it is also clear that for the past ten years your grandmother, in particular, has provided you with a loving, secure and stable environment. That is not to discount the negative impacts in your life before you were 10, however, does reflect stability in your teenage years, which cannot be ignored when assessing the conclusion reached by Mr Crewdson.
67 In your teenage years you had shown promise as a baseballer and in 2009 went to Queensland for the national championships, which suggests to me a level of stability, ambition, and positive decision making in your life. You also at that time had a long-term girlfriend, Cassandra. However, in the year leading up to the offending before me, that relationship ceased after three and a half years. You were, however, able to be involved in a relatively long-term, positive relationship. I have no doubt the ending of it would have been upsetting for you.
68 Despite attending a number of primary schools you eventually left Bacchus Marsh Secondary College to take up an apprenticeship. Between 15 and 18 years of age you completed an apprenticeship as a roof tiler, again reflecting stability, motivation and positive choices in your life. Also, I note you did not offend against the law until you obtained your licence, further confirming some earlier stability in your life.
69 You described your alcohol consumption to Mr Crewdson as starting at a relatively young age and on weekends. You were not a serious user of cannabis or ecstasy, you said, although had experimented with it. You did not believe you had a major problem with alcohol despite your drink/driving offence. You hoped to start your own business in either roof tiling or concrete work and would like to have another girlfriend.
70 In the opinion of Mr Crewdson, there had been a level of deterioration since the collision, exacerbated by earlier disturbed stability in areas of your psychological functioning. You had become more anxious over the past year.
71 Whilst your history was ‘consistent’ in the opinion of Mr Crewdson with having a chronic dysthymic disorder with features of anxiety and depression, there was no indication of any psychotic activity or obvious organic disorder.
72 Following testing you scored a very high level in relation to the depression scale, anxiety scale and stress scale. You did not reveal any indices of major pathology or psychopathy.
73 Despite an earlier charge of assault, Mr Crewdson concluded aggression did not appear to be an issue for you.
74 In his opinion, from a young age you had an inadequate understanding of the consequences of your actions and secondly had great difficulty talking about your personal issues. I am not so sure about the former. He concluded there was no single potentiating factor involved in the offending before me, although he concluded it had been a continuing attitude of concern over the previous 12 to 18 months. You had made efforts to apologise and understand the seriousness of your actions and such was encouraging in Mr Crewdson’s opinion. You were capable of engaging in a psychotherapeutic relationship. You were sufficiently intelligent to appreciate that your behaviour may be influenced by your psychological processes that arose from your background. He considered the issue of your moral culpability was reduced in this offending, although it was a “question of degree”. At the time of your offending he said you had a psychological disorder which would have had the effect of reducing your capacity to make sensible and rational judgments (p20). He said there was a degree of rebelliousness and disregard of social responsibility in your offending.
75 Mr Crewdson quite appropriately noted that psychological factors were merely one aspect of sentencing.
76 Regarding attempts by you to obtain psychological assistance, you said you had been unsuccessful in obtaining an appointment with the nominated psychologist, although had tried on three occasions. This was also discussed with Mr Alexander during the course of your plea hearing. In my opinion, your instructions regarding your attempts to make an appointment raised more questions than answers were given.
77 Mr Alexander relied upon the restatement of the Tsiaris principles in Verdins, specifically, as I understood his final submissions, principles 1, 3, 4 and 5 as being applicable in your case.
78 In relation to the first principle, he submitted the report of Mr Crewdson supported a reduction in your sentence relevant to your moral culpability. He relied on the diagnosis by Mr Crewdson of chronic dysthymic condition. I discussed with Mr Alexander aspects relevant to moral culpability.
79 Mr Alexander submitted you had a psychological disorder and cited Tran v The Queen[3] in support of his submission that a causal link was not required in order to reduce your moral culpability. I have read that decision and in particular reference to paragraphs 11, 13 and 18.
[3][2012] VSCA 110
80 What is required is a case-by-case approach to mental impairment issues, see Engert v The Queen[4].
[4](1995) 84 A Crim R 67 at 68
81 In Tran the Court also observed:
“In determining the extent to which the relevant impairment is explanatory of – and therefore goes to excuse – the offending, much depends on the nature of the offending.”
82 Ultimately, Mr Alexander submitted that whether or not any disorder attributed to you by Mr Crewdson would result in a reduction in moral culpability when sentencing was a matter for me, as it is.
83 In regard to causal link, I also note the recent decision in Latif & Ors v The Queen[5] and reference therein to Tran.
[5][2013] VSCA 51
84 In his report, Mr Crewdson somewhat guardedly referred to your history as being ‘consistent with a chronic dysthymic disorder’ and that “there are psychological issues which ‘might’ be generic to assessment of general culpability”. When Mr Crewdson, at p20 of his report, referred to you having “a psychological disorder … which at the time would have had the effect of reducing his capacity to make sensible and rational judgement”, this does not in my opinion address your ability to previously make sensible and rational judgments about your life including decisions not to drive on other occasions. Apart from the two occasions following being charged with the .05 offence, you did avoid driving. In my opinion, the totality of your history and your actions on this night, including smiling at police before speeding off was, and reflects, in your mind a sensible and rational judgment. You did not have a licence, and you wanted to get away.
85 In my opinion, I am not satisfied that the suggested dysthymic disorder operated to reduce your moral culpability for this offending.
86 Turning to principle 3 in Verdins, general deterrence, and whether such should be moderated or eliminated in your case, Mr Alexander submitted that based on your chronic dysthymic disorder the need for general deterrence should be moderated. I do not agree.
87 General deterrence is an important sentencing consideration for the driving offences before me and in my opinion, should not be moderated based on the conclusions of Mr Crewdson regarding dysthymic disorder.
88 Mr Alexander also relied upon principles 4 and 5 in Verdins.
89 Regarding principle 4 and specific deterrence, in my opinion, the need for specific deterrence is not moderated or eliminated in your case again for the reasons to which I have previously referred.
90 Regarding principle 5 (and 6), whilst I have concluded neither is enlivened based on Verdins, your anxiety and depression can be appropriately taken into account as part of general sentencing principles. I am, in so determining, aware this will be your first time in custody and will likely increase your anxiety and depression and on that basis some moderation of your sentence is appropriate.
91 Further, in considering the applicability or otherwise of the Verdins principles, I bear in mind Justice Dodds-Streeton, CA in R v Zander[6] in which Her Honour stated:
“The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.”
Careful assessment in every case, including your case, is therefore required.
[6][2009] VSCA 10
92 Further, in relation specifically to principles 5 and 6, her Honour stated:
“I am not persuaded that the mere fact of an offender's psychiatric illness or mental disorder or abnormality will, without more, establish that imprisonment will consequently be a greater burden. Although a psychiatric illness or mental disorder will doubtless frequently have that effect, it will depend on the nature and severity of the illness or disorder established by the relevant evidence.”
As I have stated, in relation to principles 5 and 6, whilst not attracting Verdins principles specifically, it is nevertheless a sentencing consideration that applies in your case consistent with general sentencing principles.
93 Turning to the principles in R v Mills[7], Mr Alexander submitted such applied to you given your age. Rehabilitation, he says, was an important sentencing consideration. There is absolutely no doubt rehabilitation of a young offender (which you are) is a primary consideration of the Court. However, this needs to be seen against a background of your serious and relevant prior driving offences.
[7](1998) 4 VR 235
94 The principles in Mills are general propositions and are not of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offending as well as the offender (see DPP v Lawrence[8]).
[8](2004) 10 VR 125
95 In R v Connolly[9], Coldrey J referred to the principles in Mills and stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
[9][2004] VSCA 24
96 In R v Tran[10], Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence,16 but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[10](2002) 4 VR 457, p462
97 Mr Alexander submitted you could be rehabilitated if you participated in counselling, despite you not having arranged that to date. You were in employment and had not re-offended, he said, since this collision.
98 In all the circumstances, I have guarded optimism regarding your rehabilitation prospects. I note, amongst other things, your repeated driving offending, the circumstances of this offending before me, and your failure to arrange an appointment with a psychologist to whom you were referred. I was also concerned to hear of your breach of the order of the Magistrate on 17 February 2012, by failing to attend the Road Trauma Awareness Program.
99 When sentencing you I must and do, however, take into account your prospects of rehabilitation.
100 Evidence was given by John Sexton, father of Kade Sexton, who was one of your passengers not hurt in the collision. He said he had known you for approximately three to four years. From his observations, you were very remorseful and had sought him out to speak to about your offending. Mr Sexton, however, was not aware of your prior court appearance, or indeed any of the offences dealt with at that time, which had included driving in a manner dangerous, and exceeding the prescribed concentration of alcohol. Nor was he aware you had driven on two other occasions whilst your licence had been suspended. In the discussions you had with Mr Sexton, which I was told numbered about four to five since this collision, it appeared you did not provide real details of your prior driving history. He said he spoke to you about the consequences of your offending and that you told him you knew what you did was wrong. He said he was extremely angry with you because your driving had the potential to injure his son. When he asked why you drove in the way you did on this occasion, you were “dumbfounded as to why”.
101 Mr Sexton initially suggested you may have been coerced by others, although that was specifically refuted by Mr Alexander on your plea.
102 Mr Sexton said he was happy to maintain a relationship with you and that he had seen a change in your manner.
103 There was a reference before me from Mr Oastler, undated. He stated you had been employed by his company for two years (although I was told by Mr Alexander it was in fact less than that). He described you as a good worker and considered your involvement in this collision had been an eye opener for you.
104 There was also a reference from Rhys Hutchinson dated 7 March 2013, who was one of the passengers in your vehicle on this night. Mr Hutchinson was one who declined to make a statement to police regarding your offending.
105 He had known you for over six years as a friend. You have a strong work ethic, he said. You felt bad about the decisions you made the night of the collision. He would continue to support you.
106 I discussed some aspects of this reference which were of concern to me, and the transcript will reveal that discussion with Mr Alexander.
107 In conclusion, Mr Alexander submitted you had pleaded guilty at the first opportunity to a suitable Indictment, which I have taken into account when sentencing you.
108 Mr Alexander urged that I take into account you had never served a term of imprisonment. I am acutely aware of that, and I do take that into account.
109 He urged should you be incarcerated it should not be for any extended period, and if I was minded to incarcerate you, he urged I have you assessed for your suitability or otherwise for Youth Justice Centre detention.
110 Mr Lewis, on behalf of the prosecution, conceded you stated your intention to plead guilty early, on 18 July 2013 at a committal mention, and that no contested committal occurred.
111 Relevant to your rehabilitation prospects, I was advised by Mr Lewis that as recently as last Friday, 20 September 2013, you appeared at Bacchus Marsh Magistrates’ Court in relation to breach of a condition attached to the Order of the Magistrate on 17 February 2012 in that you failed to attend and Complete a Road Trauma Awareness Course. You had not even started that course. For that breach you were fined $400.
112 Your explanation for not attending the Course, as I understood it, was that you wanted to pay the fines and compensation ordered on 17 February 2012 first, before you saved money to attend the Road Trauma Awareness Course. Your prioritisation was concerning given the offending before me.
113 Mr Lewis submitted, regarding the principles in Verdins, none would apply in your case.
114 Regarding principle 1, he submitted the ‘high water mark’ was found in Mr Crewdson’s Report (at page 20).
115 He referred me to the decision of Sakaloskiv R[11] referring to Zander and R v Vuadreu[12]. Regarding the latter, the Court in Sakaloski stated:
“In R v Vuadreu this Court emphasised the need to establish a realistic connection between an offender’s mental condition and their offending:
It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.” [30]
[11][2012] VSCA 130
[12][2009] VSCA 262
116 Regarding Mr Crewdson’s report, Mr Lewis submitted Mr Crewdson did not set out in any clear or compelling manner the connection between your condition that would reduce your moral culpability, and pointed to your behaviour in the broader sense which he submitted did not support the application of the Verdins principles when sentencing you .
117 Regarding principle 3, and general deterrence, Mr Lewis submitted you were intelligent and your condition would not have any significant effect in determining if you were an appropriate vehicle for general deterrence.
118 Mr Lewis referred to the importance of general deterrence when sentencing for offences such as those before me. In Neethling[13] the Court stated regarding youth and rehabilitation:
“It has long been accepted that, as a general rule, rehabilitation should be a primary — if not the principal — concern in sentencing a young offender. It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations. It was submitted for the director in that case that the present case was such a case. We respectfully agree.
It was contended for the director that, in cases such as this, general deterrence was of primary importance:
[T]here is widespread community alarm at very serious motor vehicle accidents involving young drivers. It is appropriate that deterrence be used to encourage young drivers not to drive dangerously.”
[13](2009) 22 VR 466
119 I also note Vincent JA’s reference to the important function of social rehabilitation in DPP v DJK[14] cited in Neethling [56-57].
[14][2003] VSCA 109
120 Regarding principles 5 and 6, Mr Lewis was unsure if Mr Alexander maintained his submission regarding the application of the Verdins principles. Mr Lewis conceded whilst not satisfying the tests in Verdins, this could nevertheless be taken into account as part of general sentencing principles. He submitted that there was no material before me to support the specific application of principles 5 and 6 in Verdins.
121 Mr Lewis proffered the range of sentence considered appropriate by the Director of Public Prosecutions for your offending. That range did not permit consideration of a Youth Justice Centre disposition, a conclusion that I have independently also reached. Mr Lewis submitted yours was serious offending and that you had a highly relevant prior driving history. Further, this offending occurred just eight days after you attended Court on 17 February 2012.
122 He also submitted that pursuant to s.61 Road Safety Act, your driver’s licence had to be cancelled for a minimum of eight years.
123 Regarding Mills, he submitted given your age, rehabilitation prospects were still a relevant consideration and, as I say, I agree. However, he submitted this needed to be tempered based on your prior driving history and the totality of the circumstances of this offending. I also agree.
124 I considered whether or not it was appropriate you be assessed for a Youth Justice Centre disposition. In all the circumstances of this case, which not only takes into account all matters in mitigation of your sentence, but also all matters relevant to your offending behaviour on this day and your prior court appearance and driving history, I do not consider it appropriate you be assessed for a Youth Justice Centre disposition, as I do not consider a head sentence of 3 years would adequately reflect all sentencing considerations.
125 A head sentence of only 3 years for your offending in all the circumstances, in my opinion, would be manifestly inadequate.
126 I have also read a number of decisions that have specifically considered offences of negligently causing serious injury and failing to render assistance after an accident. Specifically, R v Miller[15] and Gorladenchearau v The Queen[16]. It is difficult comparing cases factually, as factual circumstances vary enormously case to case as do matters relevant to offenders. The case of Miller provides some assistance regarding current sentencing practices, in particular in light of the increased maximum penalty for negligently causing serious injury from 5 years to 10 years imprisonment.
[15][2012] VSCA 265
[16][2011] VSCA 432
127 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account general deterrence, which is important in a case such as this.
128 There is also the need for specific deterrence when sentencing you, as you have a relevant driving history, including driving in a manner dangerous, driving whilst suspended and leaving the scene after a collision.
129 I must also consider the need to protect the community from you. This continues to concern me. It was not only your friends you exposed to injury, but also members of the public that you put in danger relevant to Charge 4. Your prior criminal history also troubles me in this regard.
130 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
131 When sentencing I have taken into account principles of totality and proportionality.
132 In all the circumstances, I sentence you as follows.
133 On Charge 1, convicted and sentenced to 2 years' imprisonment.
134 On Charge 2, convicted and sentenced to 22 months' imprisonment.
135 On Charge 3, convicted and sentenced to 6 months' imprisonment.
136 On Charge 4, convicted and sentenced to 10 months' imprisonment.
137 On Charge 5, convicted and sentenced to 18 months' imprisonment.
138 In relation to the summary charge of driving whilst disqualified, you are convicted and sentenced to 4 months' imprisonment.
139 Turning then to orders of cumulation and concurrency. Charge 1 is the base sentence and I direct the following in relation to cumulation and concurrency.
140 I direct that 8 months of Charge 2 be served cumulatively upon Charge 1.
141 3 months of Charge 3 be served cumulatively upon Charge 1.
142 5 months of Charge 4 be served cumulatively upon Charge 1.
143 10 months of Charge 5 be served cumulatively upon charge 1.
144 I direct that 2 months of the summary offence be served cumulatively upon the sentence imposed in relation to Charges 1 to 5 inclusive on the Indictment.
145 For clarity, each order in relation to cumulation is cumulative upon each other and upon the base sentence.
146 That results in a total effective sentence of 4 years and 4 months imprisonment, and I order that you serve a period of 2 years and 2 months before you are eligible for parole.
147 I have in setting the non-parole period of 2 years and 2 months imposed what I regard as a lenient sentence.
148 In relation to your licence, I am mindful when imposing a period of disqualification of authorities that refer to the rehabilitative aspects of having a licence upon release from a term of imprisonment (see Lefebure[17]). The minimum that I am able to impose as I understand and was told and agreed by both counsel pursuant to s.61(6)(b) Road Safety Act 1986 is eight years and that is the disqualification period that I impose being the least that I can impose in the circumstances.
[17](2000) 31 MVR 131
149 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 9 days in custody (up to and including 2 October 2013) by way of pre-sentence detention and I direct this be entered into the records of the Court.
150 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them following jury verdict, I would have sentenced you to a term of imprisonment of 6 years and set a non-parole period of 4 years and 6 months.
151 Any other orders?
152 MR HOARE: No, Your Honour. I agree with the 9 days pre-sentence detention, Your Honour.
153 MR ALEXANDER: Yes, Your Honour.
154 HER HONOUR: Very well. Does anyone require assistance with the mathematics?
155 COUNSEL: No, Your Honour.
156 HER HONOUR: Very well, thank you. Can you remove the prisoner, please?
157 MR ALEXANDER: Sorry, Your Honour, just one point. He is on Zoloft, just to make the court aware - - -
158 HER HONOUR: Let us just have a look at that, was there - yes, can you make a note of that, Madam, that he is on Zoloft medication and if it has not already been attended to, if someone could at least be made aware of that and appropriate steps taken thereafter. I cannot dictate anything further, I do not have any control of what happens in the prison system, all I can do is ask that that be passed on and I am told by the governors, if that is the term they use these days, that they do take that into account or at least they listen to what we have to say. So I can only do that. Thank you very much.
159 COUNSEL: As Your Honour pleases.
160 HER HONOUR: You can leave please, Mr Riley, thank you.
- - -
0
5
0