Director of Public Prosecutions v Sargent

[2017] VCC 1610

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01926

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEMMA PAIGE SARGENT

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 November 2017
CASE MAY BE CITED AS:	DPP v Sargent
MEDIUM NEUTRAL CITATION:	[2017] VCC 1610

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr M. Page	Ms A. Scroop

HIS HONOUR:

1Gemma Paige Sargent, you were convicted by a jury of one charge of culpable driving causing death, the death of Nathaniel Merritt-Price, and one charge of negligently causing serious injury to Jolene Bounday. 

2You have no other criminal history and in this case it is important because you have no driving history for matters such as drink driving or drug driving.

3You are now aged 20 and at the time of the offending you were aged 18. 

4You have been in custody since the verdicts.  The birth of your second child is imminent.  Unfortunately, that will occur whilst you are in custody.  You are currently in the Mother Inmate Unit at Dame Phyllis Frost.  I am told that inmates can care for their children there for a period of up to five years. 

5The collision occurred approximately at 7.57 pm on Thursday 31 December 2015 on the Shelford-Mount Mercer Road at Mount Mercer.  You were driving a white Holden Commodore sedan.  You were a learner driver at the time, and there were four passengers in the vehicle, none of whom was a qualified licensed driver.

6The vehicle was travelling in a south easterly direction on the Shelford-Mount Mercer Road and you overtook another vehicle at high speed.  That vehicle was travelling at 130 kilometres per hour.

7Initially the driver of that vehicle, Mr Bolton, told police in a sworn statement, he was travelling at 100 kilometres per hour.  At trial, in effect, he admitted that he had perjured himself, a matter that caused me great anger, because when people make sworn statements for things like motor car accidents or collisions, the prosecution use that sworn statement as the factual basis for the type of charges they lay and the defence look at that sworn statement and decide what direction they should take in advising their client.

8For Mr Bolton to, in effect, perjure himself in that sworn statement is just totally beyond the pale as far as I am concerned.  That is an aside.

9As you overtook the car you swung out to the opposite side of the road putting the driver's side tyres of your vehicle into the gravel shoulder on the south western side of the road.  You oversteered to the left and then back on to the correct side of the road and then on to the gravel shoulder on the north eastern side of the road.  You oversteered again back to the right and lost control. 

10The Holden sedan skidded along the road before rotating in a clockwise direction off the western shoulder of the road and the rear end impacted into a mound of dirt and rocks.  The force of the impact caused the car to flip over multiple times before coming to rest on its roof in an open paddock approximately 37 metres further south of the impact point with the mound of dirt and rocks.

11The front seat passenger and rear seat passenger extricated themselves from the vehicle and were conveyed to the Ballarat Base Hospital.  The driver and rear left seat passenger were later extricated by emergency services and taken to the Alfred Hospital.  The rear right passenger received severe head injuries and was pronounced deceased at the scene.

12At the point of loss of control of the vehicle it was agreed that your vehicle was travelling at 122 to 130 kilometres per hour.  Prior to that point there was various evidence as to what speed your vehicle was travelling at.

13The witness, MsCameron, said that she had been told at the scene of the accident by a passenger from the vehicle that they had been going too fast and they all wanted the car to slow down but you did not slow down. 

14Ms Bounday said that Nathaniel said to you, "Stop the car, I want to get out.  I don't want to die tonight". 

15Ms Emisha Lloyd remembered you saying, "You can trust my driving, we're not going to crash".  She turned to her right and looked at Nathaniel.  He was pushed right back in his seat. 

16Jarrod Sargent said in his sworn statement, which after some cross-examination was admitted in evidence before the jury, "Before we came upon the other car, it was still a fair way ahead of us, I know that Gemma was driving pretty fast.  I didn't see the speedo, but it was quicker than 110km/h.  I've been in cars before that have driven on that road and those cars I've been in at the time reached high speeds of about 180km/h, maybe more, so I know how it feels in a car to go fast.  As we came up upon the car ahead of us quickly, I knew that Gemma was driving fast, I'd say at least 140km/h, probably more, as she came up to the car but then she slowed as she overtook the car".

17At the time of the collision it was a straight two-laned, two-way sealed road, the bitumen surface in good condition.  It was a 100 kilometre per hour speed zone.

18Evidence was given by the witnesses, Mr Anderson and Ms Cameron, of your driving prior to the collision and it could be best described as erratic. 

19Jolene Bounday, the passenger in the left rear seat suffered serious injuries which included two fractured vertebrae, a head wound requiring ten stitches, severe bruising to her neck and chest area, a chipped front tooth, a swollen right ankle and multiple lacerations.  The effects of these injuries were described by her mother in her victim impact statement. It is clear to me that Ms Bounday has permanent injuries as a result of this collision.

20You suffered injuries, including a broken back, bruising and multiple lacerations. 

21Numerous victim impact statements were tendered and they were read by the makers of the statement, by the prosecutor, Mr Bourke, or not read at all.  They detail graphically what effect your actions have had upon both the victims and their family and friends.  The loss of a son and a severe injury caused to a daughter are every parent's nightmare.

22The finalisation of this sentencing proceeding will close the legal chapter of this matter but of course it does not close the sense of loss and grievance that your actions have caused to many people. 

23The deceased's father said in his victim impact statement, "Our family has changed forever.  There is a room that is empty and a place at our table that is vacant.  I remember the words and details from the moment I realised we had lost Nathaniel.  I want to place on record the despair that is part of me every day". 

24His mother said, "I want to scream but my scream is silenced by recalled memory of other parents opening doors in the dead of the night, screaming and sobbing distraught in the faces of police as they deliver them dreadful news".

25From the evidence in front of the jury it is clear that:

26(1), you were a learner driver.  There was no licensed driver in the car as required by law. 

27(2), you had been advised by your passengers to slow down and not pass. 

28(3), the car that you passed was travelling at 130 kilometres per hour. 

29(4), at the time of loss of control your vehicle was travelling between 122 to 130 kilometres per hours. 

30(5), your speed prior to the time of loss of control and in the action of passing the vehicle, I find was in excess of 130 and possibly up to 140.  I am not prepared to make a more exact finding except to say that your speed at that time was between 30 to 40 kilometres in excess of the 100 kilometre speed limit. 

31(6), your driving in the journey up to and at the time of the collision was erratic. 

32Indeed, you had twice been warned by police not to drive without a licensed motor car licence holder in the car with you.  The first occasion was on 4 September 2015 and the second occasion, remarkably, was on 29 December 2015.  The policeman who was speaking to you said, "You realise if you hit someone or kill someone you won't be covered- that is for insurance - and will be liable for any injuries someone might cover. 

33(7), you had four young passengers in the car.  (8), Nathaniel was killed and Jolene suffered serious injuries.  You also suffered serious injuries. 

34The circumstances in an assessment of your behaviour becomes graver because there are two victims.  This is a serious example of this type of offending.  There may be more or less serious examples that have been sentenced for but in this case I sentence you for what actually occurred. 

35In mitigation your counsel, (1), filed written submission.  (2), made oral submissions.  (3), tendered references which I have read and taken into account.  (4), tendered two medical reports.  I have taken all those matters into account. 

36(1), in particular, he relied on your age.  You were 18 at the time and 20 now. 

37I was referred to a number of cases in respect of age and it is clear that in these types of cases, general deterrence must usually be emphasised in the punishment of this offence, and there is correspondingly less scope than in the case of other crimes, for leniency on an account of an offender's youth.  This does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition.  See DPP v Whittaker (2002) 5 VR 508 at paragraph 23 and 24.

38In Whittaker it was also said in paragraph 23:

"A youth of 18 who is entitled to drive a car must accept adult responsibility for his actions behind the wheel of a lethal machine.  The right to drive a motor car carries important community obligations and responsibilities."

39But as the case makes clear there is still some scope for consideration of your age and I accept that and have acted on it.

40(2), your counsel submitted that you had shown remorse and he referred to your answers in the police interview at p.260 of the depositions, what you have said to Dr Mathew Barth and what you have said to the referees who have provided references to me.

41(3), your counsel pointed to your personal circumstances and mental health issues and tendered two reports in respect of that, one from the Ballarat Health Services by Dr Hany Ghabrash dated 19 October 2017.  It sets out that you went to the Youth Mental Health Services on 2 September 2016.  You reported symptoms, which I will not go into any detail, that have been present for some years including the use of illicit substances, especially cannabis.

42There was a working diagnosis of borderline personality disorder and mixed anxiety and depression.  You failed to attend a number of appointments. 

43A report was obtained from Dr Mathew Barth dated 29 October 2017.  He is a psychologist.  He conducted a clinical interview spanning approximately two hours.  He expressed some reservations about some of the answers you gave and that is set out in paragraph 8 and paragraph 35 and 36 of his report and it must be read in the light of those reservations.  He set out your personal history, which I will not recount now, but I have read it and have considered it. 

44You moved out of home when you were 14 to live with a boyfriend and had a child at that stage.  Since leaving school you obtained an apprenticeship in hairdressing and worked as a hairdresser for almost three years.

45You have had a lengthy substance abuse history.  You commenced using cannabis when you were 15 years and have been using it on a daily basis.  You had a short period of drinking but ceased when you were 16, but when you were 18, you began to experiment with a range of stimulant related drugs. 

46Mr Barth diagnosed you as having a severe cannabis use disorder.  He set out a number of times in which you have attempted to interfere with your own good health.  You expressed ongoing feelings of grief and sadness regarding the deaths of your friend and the injuries you caused to Mr Bounday.  You expressed guilt that you had survived.

47There is another qualification that I consider when looking at this report in that your solicitors asked Mr Barth to refrain from discussing the specific offending with you. 

48He diagnosed you as most likely having an adjustment disorder with mixed anxiety and depression, a borderline personality disorder and a cannabis use disorder. 

49He said your insight into your drug use is very limited and you have a poor understanding of the strategies required to achieve abstinence.

50He set out in his concluding comments the things that should be looked at when trying to assist you psychologically.  He believes that you require close monitoring by prison mental health staff.  I have taken those factors into account as part of your background.  They do not constitute what, in legal jargon, is known as a Verdins point.

51(4), your counsel submitted you have good prospects of rehabilitation.  You have an occupation you could go to.  You have family support.  You have the support of your partner.  Your mother and older child have been visiting whilst in gaol. 

52(5), he submitted that you would have difficulties in prison which would make it more onerous for you.  He referred to paragraph 45 of Dr Bath's report which said that the problems that you have will make you a particularly vulnerable prisoner.  I have also taken that into account.

53In sentencing you I am required to take into a number of competing factors.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of your behaviour.

54The basic purposes for which a court may impose a sentence are punishment, general deterrence, that is a sentence to deter others from committing like offences, specific deterrence, that is to deter you from re-offending, general rehabilitation, denunciation and protection of the community. 

55In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. 

56In my view, what Dr Bath sets out in paragraph 39 of his report, summarises what probably happened here.  He said your decision making skills are short-sighted and impulsive.  Despite being of sound intelligence you often fail to consider the entire range of options available and the consequences associated with each decision and behaviour. 

57You tend to make decisions based on short-term gratification rather than considering the long-term consequences of your behaviour.  Thus, you increase your risk of engaging in self-destructive and irresponsible behaviour in a desperate attempt to alleviate your sense of emptiness and to achieve a sense of connection with  others.  Your significant history of drug abuse has further exacerbated those traits. 

58You were showing off here, in my view, trying to impress your passengers as to your skill as a driver.  You grossly over-estimated your abilities as a driver.  There was no need for you to pass a car that was travelling itself at 30 kilometres in excess of the speed limit. 

59I have been to the scene of the collision, with the jury and it is clear to me that, even an experienced driver, would not attempt to do what you did. 

60(1), I take into account the fact that you are remorseful about what has happened.  Of course, you have pleaded not guilty, thus the discount available to those who plead guilty, is not available to you.  The trial that you ran was not based on facts but upon an assessment of the categorisation of your behaviour.  However, that still means that the witnesses have had to give evidence in front of a jury. 

61The discount for a plea of guilty takes into account the fact that witnesses do not have to give evidence and it is also an acceptance of responsibility by the offender.  That discount is not available to you.

62(2), your age, as I have already set out, there is some scope for that to be taken into account and I have done so.

63(3), I assess your moral culpability to be high.

64(4), you have the support of your partner and family. 

65What is the PSD?

66COUNSEL:  Sixty days, Your Honour.

67HIS HONOUR:  Sixty days.  Is that agreed, thank you.

68Taking all those things into account and weighing up all the matters I have to weigh up I sentence you as follows. 

69On the charge of culpable driving causing death I sentence you to a term of imprisonment of seven years.

70On the charge of negligently causing serious injury I sentence you to a term of imprisonment of three years and six months, and I direct that one year of that sentence be served cumulatively with the seven years imposed on the culpable driving, which makes a total effective sentence of eight years. 

71You have to serve a period of five years before becoming eligible for parole.  Your licence is cancelled for a period of eight years. 

72I direct that the time of 60 days you have already served to be reckoned as part of the term of imprisonment that I have just imposed.

73Are there any other matters?  No.  Very well, you can take Sargent out, thank you. 

74Can I just thank everyone who has been in the court all the time for their respectful attendance in matters that are always difficult and emotions run high, but in my view, you have all behaved responsibly and impeccably.  I adjourn the court until 10 o'clock, thank you.

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