Director of Public Prosecutions v Roussety
[2015] VCC 933
•7 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01985
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN ROUSSETY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2015 | |
DATE OF SENTENCE: | 7 July 2015 | |
CASE MAY BE CITED AS: | DPP v Roussety | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 933 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Rose QC | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn | Victoria Legal Aid |
HER HONOUR:
1 Nathan Roussety, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty applicable to that offence is ten years' imprisonment. Pursuant to s89 Sentencing Act 1991, I am also required to cancel your licence and disqualify you from obtaining a licence for a minimum of 18 months.
2 This crime arises out of events which took place on 24 August 2013. The deceased, Zoran Stojkovski, was your friend and passenger in the vehicle you were driving.
3 It is not necessary for me to recount 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 (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.
4 It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. In addition I note your extensive record, in particular relevant to driving a motor vehicle, although I note not for similar offending.
5 I turn to a brief summary of the facts in this case. Mr Stojkovski was 30 years of age at the time of this collision. He died from head injuries sustained in it.
6 On 24 August 2013, you were the holder of a full and current Victorian driver’s licence, 29 years of age, now 31 at sentence.
7 On Saturday 24 August 2013, you were driving a white 2003 Mercedes Sprinter van. Mr Stojkovski was in the front passenger seat. The vehicle belonged to your passenger’s employer, an air-conditioning installation company. Your passenger had use of the van through his employment for use as a tradesman’s van.
8 At approximately 12.36 pm, the van driven by you was travelling down North Road, Oakleigh. The speed limit applicable to that location is 70 kilometres per hour. You drove the van over the Huntingdale Road overpass.
9 You were driving in excess of the speed limit and a number of witnesses observed you travelling in excess of the speed of the rest of the traffic.
10 At the end of the overpass you were travelling in the left hand lane. You swerved to the right. You did not pull into the right hand lane, rather swerved straight into the centre median strip, hitting the kerb, then a light pole, then a series of trees before the van came to a stop. At the time of hitting the median strip, the van was travelling at least 81 kilometres per hour, that is 11 kilometres over the limit.
11 The deceased, Mr Stojkovski, was not wearing a seat belt and was ejected from the vehicle, and died at the scene. A number of people who either saw the collision or who were nearby rendered whatever assistance they could.
12 CCTV footage of the collision was retrieved from commercial premises adjacent to the impact, and I viewed that footage (Exhibit B). Photographs of the collision were also before me (Exhibit D).
13 Shortly after the collision police and ambulance attended. You did not have any apparent injuries, although this was elaborated upon by Mr Gwynn. You were transported by ambulance to the Alfred Hospital.
14 The particulars of your dangerous driving as alleged and to which you have pleaded guilty, is that in driving the van you drove in excess of the speed limit, drove at excessive speed in all the circumstances, and lost control of the vehicle due to momentary inattention.
15 There was a subsequent mechanical inspection of the van which established that prior to the collision it was in a safe mechanical condition with no mechanical fault that would have caused or contributed to the collision.
16 You were interviewed by police on 19 September 2013. You said you drove the van that day from Narre Warren to either Bentleigh or Brighton. Then, after meeting people in Bentleigh or Brighton, your passenger (the deceased) said something like, he was “tired” or “wasn’t up to driving” and asked you to drive the transit van back to Narre Warren. You then drove the van. You said you had not driven the van before, although said you were “pretty confident” driving it. You also told police “I don’t really drive at all” and that you did not really know the area. You said you had very little memory of the driving before the collision, however, remembered the deceased saying something like, “We’ll take the next turn-off”. You remembered hitting trees. You did not think you were speeding but thought you were travelling at about 70 to 80 km per hour.
17 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. I note your plea of guilty was entered to this charge at the door of the Court just prior to your trial commencing, however, note consistent with the written submissions prepared by Mr Gwynn you offered to plead guilty to this charge at a much earlier stage and prior to a contested committal. That same offer was ultimately accepted by the prosecution on the Friday before your trial was due to commence.
18 In the circumstances, I accept your offer to plead guilty was from an early stage and such is relevant when sentencing you. Further, I accept your plea of guilty to this charge indicates remorse for your offending.
19 You have a number of very concerning prior court appearances and, in particular, driving offences from 2001 to 14 September 2011, including one for speeding although I note at a greater speed than that currently before me. You also have a prior criminal history involving some concerning violent offending, also not of the same type as that before me. There are no matters pending.
20 You subsequently appeared at Court on 29 January 2014 on charges of recklessly causing injury and theft and you were placed on a Community Correction Order for 12 months with a number of conditions.
21 Unfortunately you failed to comply with the correction order relevant to a number of conditions of that order, and before me was a Contravention Report dated 15 July 2014. On 21 November 2014 you were dealt with for that breach, which was proven and on the charges of recklessly causing injury and theft, the original community correction order was varied and you were convicted and placed on a community correction order for six months. You completed that order without incident.
22 Mr Gwynn, who appeared on your behalf during the plea hearing, conceded that an aggravating feature of your offending before me was that at the time of the commission of this offending you were on bail for the offences of recklessly causing injury and theft.
23 Mr Gwynn prepared a written outline of submissions on sentence (Exhibit 1), which I have read.
24 You acknowledged through Mr Gwynn your offending had a permanent impact upon the parents and family of the deceased, and were conscious of the destruction your offending had caused.
25 The dangerous nature of your driving, however, Mr Gwynn submitted, involved momentary inattention and speed not much beyond the applicable limit, consistent with the prosecution opening.
26 Mr Gwynn referred to you remaining at the scene and co-operating with investigators as best you could.
27 At the scene you admitted you were the driver, although Mr Gwynn sensibly conceded you made ‘some’ relevant admissions in the subsequent record of interview.
28 Mr Gwynn submitted the delay in this matter being finalised had contributed to your psychological ill-health. That your offending occurred on 24 August 2013 yet you were not charged until 25 March 2014. You offered to plead to the current charge on 30 May 2014 prior to a committal hearing (then not accepted), with that offer being renewed on 7 May 2015 and accepted by the prosecution on 8 May 2015, i.e. approximately 21 months after the collision.
29 Mr Gwynn submitted your psychological ill-health enlivened principles in R v Verdins & Ors[1], particularly the restatement of Tsiaris Principles 2, 5 and 6. He submitted you had a major depressive disorder (moderate to severe), also features of Post-Traumatic Stress Disorder. I shall refer to those submissions later in these sentencing remarks.
[1] (2007) 16 VR 269
30 Since the collision you had self-referred for counselling and treatment, including for your past dependence on illicit substances.
31 You described flashbacks of the car collision initially on a daily basis, but now weekly. You said you ceased driving as a result of this collision and you felt anxious and scared when a passenger in a car.
32 Turning to your personal history and background, Mr Gwynn referred to the ongoing support of your family and girlfriend (the latter discussed with Mr Gwynn as the transcript will reveal). You had been in a relationship with Ms Lucas for three years. She suffers with bipolar disorder and has a mental health support worker.
33 You were, until your recent remand, living with your father who was in poor health and you provided assistance to him. Whilst Mr Gwynn was not relying on that assistance as amounting to exceptional circumstances relevant to family hardship, and correctly so, I accept imprisonment will weigh more heavily upon you, worrying about your father’s health and his care. You had been on a carer’s pension for the last six months, having lived with your father for the past ten months.
34 Your mother works in the nursing field, although you had been estranged from her for some years. Your parents divorced when you were 3 years of age and you are the eldest of your siblings.
35 You attended primary school at Hampton East Primary School, then completed Year 9 at Hampton Park Secondary College, later attending TAFE at Dandenong, which you did not complete.
36 Subsequent to that you trained in mechanics, welding and had completed a laboratory technician’s course. You also commenced work after you left school in the building industry as a labourer, also worked at Express Graphics Cheltenham, then with Irwin Tools as at the time of this collision. You had not been able to return to work since this collision. When you were well enough you hoped to start an accountancy course.
37 Before me was a report from Mr Simon Candlish, Consultant Psychologist, dated 10 June 2015.
38 At interview with him you showed signs of depression and had difficulty discussing your offending describing an avoidance of driving. In Mr Candlish’s opinion, you were experiencing stress and depressed mood related to your unresolved legal issues and the effects of the car collision itself.
39 In the opinion of Mr Candlish you had experienced issues with depression prior to the car collision, although as I discussed with counsel this was not elaborated by him apart from paragraph 11. Prior to this offending, you described relationship and financial issues, with a history of limited emotionally close relationships and some intimacy issues. In that context you reported past use of illicit drugs to help you cope with your low mood and anxiety.
40 Regarding your self-report of this offending, you said you had known the deceased for a number of years, were friends, would “hang out together” and also worked together.
41 You described difficulties with your memory of the collision, and said you felt guilty for driving the car and not ensuring your friend was wearing a seatbelt.
42 Further detail was contained in the report of Mr Candlish regarding your relationship with your mother and stepfather. You described being expelled from school in Year 9, prior to that, being suspended from school on many occasions due to swearing and being involved in physical fights. You said you had been bullied and also bullied other students.
43 You described abuse of alcohol from the age of approximately 14, reporting you had consumed less alcohol in the last five to six years. You commenced smoking marijuana at the age of 15 to 16, smoking almost daily from the age of 17. You described your current use as sporadic, and referrable to the influence of peers. You used marijuana to help with your anxiety and depression. You also reported having tried ecstasy twice a month when 18 to19, smoking amphetamine and ice from ages 24 to 25.
44 Following this offending before me you spent ten days in a detoxification program at Windana. You denied any increased use prior to entering detoxification, although advised Mr Candlish at interview you still used marijuana and had sought further counselling.
45 You described your current mood as depressed and that you had been prescribed Diazepam to assist with anxiety.
46 Since this offending you had sought treatment for your mood issues, had tried Serapax and Zoloft, although ceased that medication due to negative side effects. You then used Effexor for three months, however were currently not prescribed any anti-depressant medication, that is according to Mr Candlish's report.
47 Following this offending, you sought psychological counselling and had attended 15 sessions over the past two years. You also told Mr Candlish you saw another psychologist for six or seven sessions. You said your treating psychologist tended to explore your relationship issues rather than the collision and sequelae.
48 You denied any other emotional or physical traumas as a child or adult and said you had never been hospitalised for any psychiatric issues.
49 You described your intimate and social relationship history and your current relationship (Paragraphs 34 and 35).
50 Testing by Mr Candlish raised the possibility of some mild exaggerations of your symptoms. Your results suggested you exhibited tension, unhappiness and pessimism, and various stressors that impacted on your self-esteem.
51 Based on your self-report and material available to Mr Candlish, your presentation, attitude and behaviour ‘appeared’ to meet the criteria for major depressive disorder. He concluded it was difficult to determine whether you met the formal criteria for Post-Traumatic Stress Disorder. You were experiencing depressed mood associated with this Court hearing and symptoms of depression represented your most prominent symptoms.
52 Mr Candlish also referred to your instructions regarding your relationship with your mother and father (paragraphs 48-50). In Mr Candlish’s opinion, your early experiences appeared to have developed avoidant attachment, which explained your reluctance to develop levels of intimacy and commitment. In the opinion of Mr Candlish, you used marijuana to manage your mood.
53 He said you ‘appeared’ to have expressed feelings of depressed mood and symptoms of anxiety prior to this collision involving issues with intimate relationships and had used drugs to manage your mood. Your depressed mood had been exacerbated by the impact of the collision.
54 In his opinion, you ‘appeared’ to have been disturbed by this offending and 'appeared' to show remorse for your actions, complicated by symptoms of depression, in particular, irritability and detachment, which made it difficult for you to articulate empathic regard. The latter I discussed with Mr Gwynn.
55 Mr Candlish referred to your presentation and mental health issues which likely would have a greater impact on you if you were incarcerated, in particular, if there were limitations and restrictions on your pursuing counselling and pro-social activities such as employment. It would be important, he thought, you have access to psychological counselling and medical treatment if appropriate.
56 You displayed good prospects for desistance from future offending, were shameful and felt guilt and remorse for your offending.
57 Mr Candlish referred to a number of interventions which might further assist your level of risk.
58 There were also a number of references before me. From Terry Biram dated 22 May 2015. He had known you since he was 11, first at primary school, then attending high school with you. After you both left school you remained friends over the years until Mr Biram moved to Queensland in March of that year.
59 Regarding your offending, when he first spoke to you about it you were in shock and disbelief that your friend had passed away. Following the collision you were withdrawn from your usual group of friends and spent a lot of time on your own.
60 There was also a report from Nevad Borg dated 22 May 2015, your half-brother. When he was 18 he worked with you for approximately three years at Express Graphics. He described you as being friends with everyone and providing a good laugh when work was dull. He described you not only as a good brother but also as a good friend. You were loyal. He believed you were working hard to cease your drug addiction, in particular, since this collision.
61 There was a reference from Raymond Pierre dated 2 June 201, who has known you for a period of 28 years. In 2012 he employed you as a storeman for Irwin Tools in Dandenong. You were a hardworking and conscientious employee. You were considerate and good-natured. Your offending was out of character.
62 Also before me was a report from Dr Guneva, Consultant Psychiatrist, dated 5 March 2015. You presented as having a history of depression, Post-Traumatic Stress Disorder and amphetamine abuse. You also presented with significant anxiety and depressive symptoms in the context of the collision and resultant death of your friend. You described a long substance abuse history, although denied current use of drugs. You said you were consuming alcohol to assist you with sleeping.
63 You had been prescribed Venalfaxine medication in the past and referred to a mental health nurse, Sue Styli, a Psychologist.
64 You referred to your past psychiatric history and assessment by Dr Hogan, Psychiatrist, in 2013, although it seems you were not diagnosed with any specific psychiatric illness at that time as you were then using ice.
65 You described cannabis use off and on until 2013 and ice from age 23 to 30. You presented as anxious and depressed and were diagnosed with major depression, Post-Traumatic Stress Disorder and amphetamine addiction (not current) and cannabis use/addiction (not current). A number of recommendations were made by Dr Guneva.
66 I discussed with Mr Gwynn what appeared to me to be inconsistencies in the various reports regarding your drug use history and current use, in particular, such being referrable to his submission that Principles 2, 5 and 6 of Verdins were applicable.
67 There was also a report before me dated 1 May 2015 from Ania Krysztofiak, Alcohol and Drug Counsellor and Psychologist with Monash Health Drug & Alcohol Support. You attended Monash Health on 5 June 2014 for assessment of your substance abuse and attended three appointments on 16 July, 22 July and 29 July 2014. You were then transferred from that counsellor to Ms Krysztofiak. You then attended five weekly appointments between 4 September and 1 October 2014 and engaged well presenting with a positive attitude to addressing your substance abuse issues.
68 You were admitted to Windana on 14 October 2014 and completed a nine day program, being discharged on 22 October 2014. At that time you disengaged from further alcohol and drug counselling with Ms Krysztofiak.
69 You were recently re-referred to AOD Counselling as part of a community correction order and attended your first appointment on 30 April. You reported continuous abstinence from illicit substances since your discharge from Windana. I again discussed with Mr Gwynn this inconsistency with your self-report of cannabis use to Mr Candlish. Ms Krysztofiak said you self-reported no difficulty maintaining abstinence and said you had good supports for your mental health issues. At the time of that report on 1 May 2015, no further alcohol and drug treatment was recommended. In the report before me from Mr Candlish, he referred to your self-report you “had still been using marijuana”.
70 Turning to the applicability or otherwise of Verdins Principles 2, 5 and 6, based on the material before me, I am concerned regarding the applicability of the second principle and that your condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. It is difficult to ascertain the real cause of your mental health issues or impact of them at the time of sentence in particular whether, in part, your issues are due to your continued use of drugs. I also note Mr Candlish was unsure as to whether there was a diagnosis of Post-Traumatic Stress Disorder applicable to you.
71 The material before me is also unclear regarding the extent and cause of any depression prior to the collision. The material referred to you using drugs prior to the collision to assist with your mood. I also note, whilst you have previously taken anti-depressant medication, you were not currently taking any according to the report of Mr Candlish.
72 Whilst I accept that since this collision you have suffered with depression and anxiety, this has been couched in terms of “appears” (paragraphs 56-58), and relevant to Principles 5 and 6 has been couched, as I said, in those terms. In my opinion, the material does not enliven Principle 2 to the extent that it may affect the choice of sanction in your case, in part due to the lack of clarity regarding the cause of your condition relative to your ongoing drug use and not taking prescribed medication.
73 The cases make it clear that there is no absolute bar to “mentally impaired offenders” being sentenced to full custodial dispositions, I add, if appropriate (Victorian Sentencing Manual 10.9.4).
74 Whilst some moderation of your sentence applies relevant to Principles 5 and 6, the wording by Mr Candlish does not support significant moderation.
75 When considering the principles in Verdins, as was stated by Dodds-Streeton JA in R v Zander[2]:
“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 offender and other relevant matters.”
[2] [2009] VSCA 10
76 Mr Gwynn also referred to the delay between your offending in 2013 and sentence in 2015. I am conscious of that delay, and note you have not committed any further offending in that period, although have been dealt with for breaching the community correction order.
77 Mr Gwynn conceded your non-compliance with the community correction order and reasons for your breach of it tempered, to an extent, your rehabilitation prospects. I agree, although note you ultimately completed that order.
78 I accept the delay has meant your life has been ‘on hold’ for a significant period of time, in particular since your initial offer to plead guilty to this charge and that you have found it very difficult to “move on”, which has added to your depression.
79 Mr Gwynn submitted the prosecution accepted yours was momentary inattention however conceded there was also an element of speed involved in your offending.
80 Mr Gwynn submitted ‘momentary inattention’ placed your offending at the lower end of seriousness and that your speed was just 11 kilometres over the limit, during daylight hours, and with not a lot of traffic on the road. I am conscious the matters relied upon by the prosecution regarding your offending.
81 In R v Whyte[3] the court accepted an offender’s moral culpability is reduced where the collision is caused by ‘momentary inattention’ or judgment. See also DPP v Oates[4]. Whilst I accept your offending can be categorised at towards the lower end, your driving did involve more than ‘momentary inattention’ in that it also involved speed in excess of the speed limit.
[3] (2002) 55 NSWLR 252
[4] [2007] VSCA 59
82 Mr Gwynn submitted that in all the circumstances you had good prospects for rehabilitation. Whilst I note you have no prior offending similar to that before me, I am however concerned you do have a criminal and driving history and have subsequently breached a community correction order and committed this offending whilst on bail, and I have some concerns regarding your rehabilitation prospects. When sentencing, however, I must seek to maximise your chances of rehabilitation as they may be.
83 Mr Gwynn submitted that taking into account all relevant sentencing considerations, you could be appropriately sentenced to a community correction order of some length involving a significant amount of community work hours, and referred me to the decision of Boulton v The Queen[5]. Mr Gwynn urged against the imposition of any period of incarceration, however, should I determine a period of incarceration would be necessary, he urged it be of short duration and in combination with a community correction order.
[5] [2014] VSCA 342
84 Mr Rose, on behalf of the prosecution, submitted that albeit yours was momentary inattention, your offending was nevertheless a serious breach of driving standard and the ramification was the death of your passenger, such having an enormous impact upon the family of the deceased. I agree with those submissions.
85 He also submitted your driving occurred against a background of both a prior criminal history and prior driving history which, he submitted, added to the concerns about your offending. I agree.
86 Mr Rose also referred to you in the past having been on a community correction order and other non-custodial dispositions. That even when placed on a community correction order after this offending, you did not “take to it”, rather were not co-operative and breached that order.
87 Mr Rose referred to the lack of reports from any of your earlier treaters which would have assisted a careful analysis of your mental health issues relevant at the time of sentence, and Verdins principles.
88 Mr Rose submitted that to impose a community correction order on its own would not be within the range of appropriate dispositions taking into account all relevant sentencing considerations.
89 I turn to the Victim Impact Statements. The statements are eloquent and there is no doubt, as you would expect the death of Zoran Stojkovski has been devastating for his family.
90 There was a statement from Anka Stojkovski, mother of the deceased, sworn 18 June 2015. She described the devastation upon hearing of the death of her son. She still could not accept her son would not open her front door and walk in. She described how difficult it was for her to organise her son’s funeral, and not being able to see him due to his injuries. She described the funeral as “a living nightmare”. She worried about how her other son was coping without Zoran.
91 Her son was a kind-hearted person who laughed all the time. She described not being able to hold him, hug him or kiss him on the cheek. She had only photographs and clothes to remind her of him.
92 She referred to never seeing him marry, hold his grandchildren or talk and laugh with him. She described being sentenced to a life of grief and heartache. She visited his tomb every day. She found it impossible to attend the court hearing to hear about the collision.
93 There was a reference from Olga Kostic sworn 18 June 2015, Zoran’s aunt. She described her sister, Zoran’s mother, as being inconsolable and hysterical on finding out about the death of her son. She stayed with her sister for months as she needed her there to help her. She was dealing with pain but knew that the pain of Zoran’s mother was much greater.
94 She described family events such as birthdays, Easter, Christmas, weddings and special occasions that could not be celebrated as they used to be due to the death of Zoran. She described Zoran as a kind-hearted person and she missed his sense of humour. His death haunted her every day and she thought of him frequently.
95 There was also a Victim Impact Statement from Goran Stojkovski sworn 18 June 2015. I am conscious of the material within the report that is inadmissible. He described that knowing his brother was never coming back was the worst feeling in the world.
96 Also relevant is the notion of social rehabilitation. In R v Towle[6] the Court cited DPP v Neethling[7], a case of dangerous driving causing death
[6] [2009] VSCA 28
[7] (2009) 22 VR 466
“In cases such as these, sentencing performs an important function of social rehabilitation. As this Court said recently in Director of Public Prosecutions v Neethling, also a case of dangerous driving causing death:
The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated."
Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
In our view, those remarks apply with particular force to an offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in Musumeci, that ‘the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.’ Similar sentiments were expressed by Spigelman CJ in Jurisic:
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.”
97 The effects upon a victim are a relevant sentencing consideration, see s.5 Sentencing Act. However, I am conscious that I must not allow the effects upon a victim or victims to swamp the sentencing process.
98 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also consider the need for general deterrence which is of considerable importance in a case such as this.
99 The Courts have repeatedly referred to the need for general deterrence for driving offences causing death and serious injury, of course, yours is the former.
100 In Neethling, the Court cited with approval Hunt CJ’s statements in R v Musumeci[8]:
[8] Unreported, NSWCCA, 30 October 1997
“The taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. The real substance of the offence is not just the dangerous driving, it is the dangerous driving in association with the taking of a human life.”
See also Jurisic[9].
[9] (1998) 45 NSWLR 209
101 In my opinion, there is also the need for specific deterrence given your, in particular past driving history, although again I note not for offending similar to that before me.
102 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
103 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
104 I arranged, as you know, for you to be assessed for your suitability or otherwise for a community correction order and received that report dated 22 June 2015.
105 You were assessed as suitable for a community correction order and a number of conditions were recommended.
106 The author of the report noted your recent community correction order which had expired on 28 May 2015.
107 When you were asked about your motivation to be placed on a further community correction order you reported it would ‘depend on the conditions’ and ‘how many community work hours were imposed’.
108 Regarding unpaid community work, you expressed concerns regarding the amount of hours imposed advising the author of the report that ‘mental health needs to be a priority’. You indicated no medical barriers applicable to that condition.
109 You signed the Consent to the making of an order aware of the conditions and requirements of the order.
I discussed this report with Mr Gwynn and the transcript will reveal that discussion and I will not repeat it here.
110 In my opinion, to impose only a community correction order for your offending would not reflect all relevant sentencing considerations. I am of course aware of the recent decision of Boulton, and the importance when sentencing to "rethink the conventional wisdom about whether prison is really the only option” (Alam v The Queen[10]). Further, Boulton emphasised the “grave disadvantages of imprisonment, and the unique advantages of a Community Correction Order, in permitting significant punishment to be imposed whilst at the same time advancing an offender’s rehabilitation in a way that imprisonment cannot” (Alam para 20). See also DPP v Maxfield[11].
[10] [2015] VSCA 48, para 20
[11] [2015] VSCA 95
111 It has, of course, always been that incarceration must always be the last resort of the court when sentencing, and that all other options must be considered before the imposition of an actual term of imprisonment.
112 I did not understand Boulton, however, to mean that s5 Sentencing Act was no longer applicable when sentencing. Nor did I understand Boulton to bring to nought all the stated sentencing principles relevant, in particular to the type of offending such as yours.
113 Nor did I understand the decision in Boulton to mean that the instinctive synthesis involved in sentencing was brought to nought.
114 I am also required to consider the maximum penalty applicable to this offence (DPP v CPD[12] and R v AB[13]) and I note the increase in this penalty from five to ten years' imprisonment.
[12] (2009) 22 VR 533
[13] (No 2) 2008 18 VR 391
115 I am also conscious that a term of actual imprisonment must always be the last resort of the court after consideration of all other dispositions.
116 I must consider all relevant matters, including the gravity of your offending, and also all matters in mitigation and relevant to you.
117 I have ultimately determined the appropriate disposition involves a term of imprisonment you will be immediately required to serve and that you would then be subject to a community correction order.
118 With regard to the community correction order, before I ask if you consent to such an order being made, and I say it will be an addition to a term of imprisonment, so I am just directing you now to the community correction order. That aspect of it. You need to listen carefully. You need to understand what it is going to involve.
119 The Order will be for three years.
120 The Core conditions apply to all community correction orders, including yours:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
·You must report to the Community Corrections Centre at Dandenong within two clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
121 There are a number of other conditions attached to this order, and these apply to you:
· You have to perform 300 hours of unpaid community work over a period of the first 24 months as directed by the Regional Manager (s.48C).
· You must be under the supervision of a Community Corrections Officer for a period of three years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s.48D(3)(a)).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
· You must attend for review of your progress and compliance or otherwise with conditions of the Order and you have got to come back before me on Tuesday, 6 December 2016 at 9.30am (s.48K).
122 I can only impose a community correction order if you agree to such an order being imposed. So I have to tell you a bit more about it.
123 I should advise you that if you contravene or breach this order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. See s.83A(d).
124 You can also be re-sentenced for the offence that is before me. One of the options available includes a further term of imprisonment, s.83A(s).
125 So you have got to be extra careful for three years when you are in the community. That means no committing any further offences that might incur a term of imprisonment, otherwise you are back before the court, back before me and I will re-sentence you on this charge. So you have to be extra careful.
126 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, a substantial fine can be imposed. See s.83A(e) and A(f). So you have to listen very carefully. You have to decide if you are prepared to consent to being on a community correction order. I repeat, it is part of the sentence. I am only directing you about this part of it. You heard me express concerns about the report that I received. You have to be aware that if you consent to this order, and you breach the order in any way, you are back before me, you will do more time. I cannot make it any simpler than that.
127 Do you consent to being placed on a community correction order?
128 OFFENDER: Yes, I consent, Your Honour.
129 HER HONOUR: All right.
130 I formally now turn to the sentence.
131 On Charge 1 you are convicted and sentenced to 8 months' imprisonment and you are then to be on a community correction order for a period of 3 years.
132 Your licence is cancelled and disqualified for a period of 2 years. In determining the length of the disqualification, I note the decision of R v Lefebure[14] and R v Franklin[15] referrable to rehabilitation.
[14] (2000) 31 MVR 131
[15] 52 MVR 544
133 Pursuant to s6AAA Sentencing Act 1991 had you pleaded not guilty to this offence and been found guilty of it I would have sentenced you to 3 years' gaol and ordered you serve a period of 2 years before being eligible for parole.
134 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 15 days in custody (up to and including 6 July 2015) by way of pre-sentence detention and direct this be entered into the records of the Court.
135 The prosecution made application for a forensic sample, pursuant to s464ZF. Mr Gwynn consented to the making of the order on your behalf. I make the order on the basis of the seriousness of your offending. It will be for a saliva sample, and I must advise you the authorities may use reasonable force in order to obtain that sample.
136 Before we move on, I should also indicate that I have had requests by the media for material in this matter and what is there in brief, as I understand it, it included the brief of evidence. I have determined the answer to that is no, but the prosecution opening can be given to them because the matter has proceeded on a different basis to the brief of evidence and therefore, I think they are entitled to the prosecution opening. I will hear your response, but in the end I have to make up my mind about these things. They have requested the CCTV footage. I do not see any reason why they cannot have that. They have requested a copy of my sentencing remarks, I do not see any reason why they cannot have that. And they have requested the defence response on the plea and I do not see any reason why they cannot have that, because that has been marked as an exhibit as well, on the plea, I said.
137 All right, so does either counsel have anything they want to say about that?
138 MS BROADBENT: I do not, Your Honour.
139 HER HONOUR: No.
140 MR GWYNN: I do not, Your Honour.
141 HER HONOUR: Good. All right, if that person is in court and I do not know whether they are turning up or what is going on.
142 MS BROADBENT: They are, Your Honour.
143 HER HONOUR: Well there you go. All right, now what is happening now is Ms Jackson is going to come back to see you and ask you to sign. You are, by signing, consenting to be on the community correction order.
144 MR GWYNN: May I assist with that, Your Honour.
145 HER HONOUR: If you want to.
146 MR GWYNN: Thank you, Your Honour.
147 HER HONOUR: Yes.
148 MS BROADBENT: Your Honour, matters of form only, Your Honour. Ms Mills from The Age is present in court in relation to that media request.
149 HER HONOUR: Well you better wait till Mr Gwynn comes back because he needs to hear this. Sorry. It should always be in front of other counsel.
150 MS BROADBENT: My apologies.
151 HER HONOUR: Sorry, Mr Gwynn. All right, Mr Gwynn, I think the prosecution wanted to make some further submissions about something, so I told her to wait for you.
152 MR GWYNN: Thank you, Your Honour. I am grateful, Your Honour.
153 HER HONOUR: Before that happens, Mr Roussety, basically watch yourself. I will be seeing you in about 18 months, whatever that works out. If I see you before then, there is trouble.
154 OFFENDER: You won't be, Your Honour.
155 HER HONOUR: All right. I hope not.
156 HER HONOUR: Now, I am sorry, Madam Prosecutor, you started to say something but I stopped you because Mr Gwynn was not here.
157 MS BROADBENT: I did. And you were right to do so. My apologies for that, Your Honour.
158 HER HONOUR: Does not matter. Let us get on with it.
159 MS BROADBENT: Merely matters of form. Ms Mills attends on behalf of The Age with respect to that meeting.
160 HER HONOUR: Good. Was that the request?
161 MS BROADBENT: That was regarding the request.
162 HER HONOUR: Good. Well I have sorted that, have I?
163 MS BROADBENT: You have sorted that, indeed. I was merely indicating that and putting it on the record that she did appear.
164 HER HONOUR: All right. No problem.
165 MS BROADBENT: And also indicating that I have an updated forensic sample order, just updating the dates.
166 HER HONOUR: Good. Well I did not have one of those, anyway. We had it on the file. I had not seen it.
167 MS BROADBENT: There was an order.
168 HER HONOUR: Can you just hand those up? All right then. Well did not know that the lady from the media was here. Well that is good. Well anyway that has been resolved, I think. And it is mouth, yes. Saliva, yes. Now, were you supposed to - were either counsel supposed to be anywhere at 10 o'clock, because if you were, let us know now and I will have Ms Jackson ring.
169 MR GWYNN: Fine, thank you, Your Honour.
170 HER HONOUR: No. Everyone is right?
171 MR GWYNN: No. Thank you, Your Honour.
172 MS BROADBENT: No issues.
173 HER HONOUR: Thank you very much. Thanks Mr Roussety, you will have to go please. Thank you very much.
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