Director of Public Prosecutions v Saurini
[2022] VCC 1054
•4 July 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-01360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SAURINI |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2022 | |
DATE OF SENTENCE: | 4 July 2022 | |
CASE MAY BE CITED AS: | DPP v Saurini | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1054 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Director of Public Prosecutions |
| For the Accused | Ms M. Walker | Wilkinson Lawyers |
HIS HONOUR:
1Benjamin Saurini, after a trial the jury found you guilty of the single charge of negligently causing serious injury (Charge 5).
2On arraignment you had also pleaded guilty to possession of a drug of dependence, namely cannabis (Charge 8).
3You have also pleaded guilty to a number of summary charges – unlicenced driving (Summary Charge 11), use of a drug of dependence namely Cannabis (Summary Charge 12) and use a drug of dependence namely Methylamphetamine (Summary Charge 13) – and you have agreed to have them dealt with by me.
4The maximum penalties for these offences are as follows:
· for negligently causing serious injury, 10 years’ imprisonment
· for possess Cannabis, 5 penalty units, where it is for personal use as it is here
· for unlicenced driving, 60 penalty units or 6 months’ imprisonment
· for using a drug of dependence namely Cannabis, 5 penalty units
· for using a drug of dependence namely Methylamphetamine, 30 penalty units or 1 years' imprisonment.
5Many of the circumstances in which these offences are alleged to have occurred were not controversial in the trial.
6On the night of 5 July 2019, you and two friends occupied an orange-coloured Holden Commodore sedan. The Commodore was parked on the eastern gravel shoulder of Reservoir Road in Sunbury. The vehicle was facing Southeast. At that point, Reservoir Road runs north-west/south-east, parallel to and next to the Calder Freeway. The road surface consisted of a narrow band of bitumen, bordered by gravel shoulders of approximately equal width to the bitumen section. It was a cold, clear night. There was no street lighting. The Commodore’s head lights were off. You and your friends in the car were smoking cannabis.
7Most of what followed is clearly seen on the body worn camera footage worn by Constable Rigas.
8At about 11:20pm, a police divisional van on patrol turned onto that section of Reservoir Road. The divisional van was a Holden Colorado, a form of SUV. It was driven by Senior Constable Rohan Brown, who was accompanied that night by Constable Peter Rigas. The divisional van drove towards the Commodore from the south-east. As it did so, the police officers ran registration checks on the computer systems available to them in the divisional van, and the police vehicle came to a stop a little over a car length in front of the Commodore, and slightly offset, so that the passenger-side wheels of the divisional van were a foot or two onto the bitumen. By this time the driver of the police vehicle, Senior Constable Brown, had turned on the divisional van’s high beams, the LED light bar mounted on its bumper bar, and what are called its takedown lights. The red and blue lights were not activated, and nor was the siren sounded.
9The body camera footage shows that these very bright lights were directed almost straight at the front of the Commodore.
10What happened next, is that the headed lights on the Commodore are seen to be turned on, and as the two police officers are alighting from the police vehicle, you, affected by cannabis and possibly methylamphetamine, drove the Commodore past the driver’s side of the police vehicle. You did so even though your vision of what lay ahead was greatly impaired – by the condensation within the Commodore, and by the brightness of the lights shining from the divisional van. In doing so, your vehicle collided with, part of the door of the divisional van, collided with Senior Constable Brown, and then with the rear driver’s side wheel and tire, and the guard above it.
11You then fled the scene in the Commodore.
12Police investigation followed overnight, and it included a search of your bedroom during which a zip lock bag containing cannabis was found. That gives rise to Charge 8 - possess cannabis.
13You were arrested the next day when you presented yourself to the Police Station in Sunbury. When interviewed you admitted the driving, the collision and the drug use (these admissions give rise to the Summary Charges 11, 12 and 13). But you maintained that because of the bright lights you couldn’t see the vehicle, that you did not know it was a police vehicle and that you did not know that anyone had been hurt in the collision when you drove off.
14You were arrested and remanded in custody for 2 days until youth justice bail was granted.
15You have no prior convictions.
16When arraigned before the jury panel, you pleaded guilty to the charge of driving in a manner dangerous causing serious injury to Senior Constable Brown which was Charge 6 on the indictment.
17In the trial, the issue raised by the defence response in relation to Charges 1 and 2 was whether the Crown could prove beyond reasonable doubt that you knew or were reckless as to whether the person (that is the injured Senior Constable Brown) was an emergency worker, or whether you knew or were reckless as to whether the vehicle that was stopped in front of you was an emergency vehicle.
18Though the crown case was opened to the jury on the basis that you not only knew or were reckless as to whether the car in front of you was a police vehicle, and on the basis that you drove the Commodore at that vehicle, the jury by its verdict was not satisfied of either of those matters.
19By its verdict of not guilty on Charges 1 and 2, the jury were not satisfied beyond reasonable doubt that you knew, or were reckless as to whether, the vehicle and the people driving it were emergency vehicles or workers respectively.
20This was an unsurprising verdict, not least because there was evidence in the trial that Victoria Police’s own accident reconstruction unit had declined to even attempt a reconstruction of the collision, in part at least because of the brightness of the lights that shone upon the Commodore on that night.[1]
[1]T365 – 366
21That your driving caused a serious injury to Senior Constable Brown was not in dispute in the trial.
22The main physical injury was a fracture of the lower leg, which was reduced at surgery by the insertion of rods and screws. The post-operative course has been an ordeal for Senior Constable Brown, as he suffered from a deep vein thrombosis and subsequent recurrent infections. In all, four surgical procedures have been required, along with periods of hospitalisation, long periods of time on crutches and months of analgesic and antibiotic treatment. Physiotherapy is still – the better part of 3 years later – necessary and full function of the limb has not yet been recovered.
23The toll this protracted period of pain and disability has taken on Senior Constable Brown, and on the members of his family who have put their lives on hold to care for him, is made clear in the victim impact statements tendered on the plea and read to the court.[2]
[2]Victim Impact Statement of Elizabeth Brown, dated 3 June 2022 – Exhibit 1; Victim Impact Statement of Russell Brown, dated 3 June 2022 – Exhibit 2
24Unsurprisingly, the trauma of the events of the night itself and of the physical consequences of the injury has had a profound effect on Senior Constable Brown’s psychological health, and he continues to require treatment for the psychological consequences of your driving on that night. Further, the emotional impact of the trial and his disappointment in the outcome have added to his sense of injustice and grievance. Given the ordeal that he has been through, and is likely to go through in the future, he did well to keep his emotions, mostly, in check during the courageous reading of his victim impact statement on the plea hearing.[3]
[3]Victim Impact Statement of Rohan Brown, dated 1 June 2022 – Exhibit 3
25The procedural history of this matter has been long, but it was not in contest that you had offered to resolve the case by pleading guilty to the very charge of which the jury convicted you, as long ago as early 2020.
26
Most of the delay since you were charged has been due to the onset of the
Covid-19 pandemic and the consequent delays in the listing of trials in this court.
27Mr Saurini, I state to you that I have taken into account all the matters raised on your behalf in mitigation of penalty during the course of the plea, during which your counsel spoke to detailed written submissions which became Exhibit 6.
28The matters raised included the following:
29The fact that almost two years before the jury was empanelled on your trial, you made an offer to plead guilty to the offence for which you are to be sentenced today. I take the making of the offer to be evidence of your remorse for negligently causing serious injury to Senior Constable Brown, as I do your expressions of concern for his welfare made immediately upon your presentation to the police station the next day.[4] You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.
[4]ROI, Q 397 A, Deps page 195
30I have taken into account your youth. You are now only 22 years of age, and you were 19 when these offences were committed.[5]
[5]I have had regard to the often referred to principles stated in R v Mills [1998] 4 VR 235. See also Azzopardi v The Queen (2011) 35 VR 43.
31Apart from a single traffic infringement offence, you have no criminal history.
32After two days on remand, you were bailed to comply with Youth Justice supervision. A report from the Youth Justice Bail Support Program – Exhibit 8 – shows that you complied exceptionally well with the stringent conditions of bail, which included a strict curfew, and you attended 47 of 49 appointments with youth justice, undergoing urine screening to detect substance abuse and the completion of the substance-use program administered by the Youth Support and Advocacy Service (YSAS), which service closed your case in April 2020 because you had completed all of its requirements. The author of the progress report to the Magistrates’ Court concluded that you had engaged very well with all the conditions of your Youth Justice bail and once you turned 21 they transferred your supervision from Youth Justice to Corrections.
33I have taken into account delay. These charges have hung over your head for nearly three years now, and, until the jury’s verdict, the more serious charges on the indictment carried with them the almost certain prospect that a term of imprisonment was likely to be imposed, should you have been convicted of them.
34I have taken into account your background and personal circumstances. These are set out in counsel’s submissions and in the psychologist’s report.
35Your parents separated when you were about 10 and you have lived with your father since about the age of 14. You left high school during Year 11 to commence an electrical apprenticeship, which you later changed to carpentry, and you completed your apprenticeship as a carpenter in 2021, whilst awaiting trial on these charges.
36You have been in full-time employment for some years now as a carpenter in the construction industry. Despite not having a licence, you have managed to attend on site at 6.00am on a reliable basis for some years now. And there was a glowing reference from your employer, which formed part of the references which are Exhibit 9.
37You have been in a steady relationship with your partner since the age of 19.
38I have taken into account your otherwise good character and a number of references were tendered on the plea – Exhibit 9 – showing amongst other things, that you continue to enjoy the support of both your parents and of your extended family, and their encouragement in your continued rehabilitation.
39I have taken into account the report of the psychologist Sandra Cokorilo, which is Exhibit 7. She recorded a history of some difficulties and behavioural issues during your school years and wrote that your family life became dysfunctional as a result of your parents’ breakup, and that this may have contributed to your disruptive behaviours, substance abuse and depressed mood. She felt that at that time you had suffered from depression, though this was in remission, as was your substance abuse disorder which she felt had begun as a coping mechanism. She recorded your history of substance abuse, which began with the smoking cannabis when you were about 16 and progressing to regular methamphetamine use until the time of this offending. To her, you reported that the shock of your two days in custody was such that you have not had any difficulty maintaining abstinence since. She recorded also your expressions of remorse and of empathy for the plight of Senior Constable Brown, and your acceptance of responsibility for it. She did not think you currently suffered from any diagnosable mental condition and wrote that, in her view, your risk of reoffending was low.
40Having regard to all those matters, it was submitted that your rehabilitation is already well-established and that I should regard your prospects of rehabilitation as very good. I agree.
41On your behalf, it was submitted that all relevant sentencing considerations could be met by the imposition of a community corrections order with punitive conditions of supervision and community work. Counsel for the Director of Public Prosecutions agreed with this submission.
42
Against the matters to be taken into account in mitigation of penalty must be balanced the fact that your negligent driving on this night has caused to Senior Constable Brown a very serious injury to his left leg and lasting psychological
ill-health, as well as disrupting his family life and imposing significant burdens upon those of his immediate family who have unstintingly supported him during these difficulties. That he will struggle to go back to the more confrontational aspects of police work is only to be expected, as his sense of apprehension will likely be elevated permanently.
43If it needed to be stated, I should state to you that you are not to be sentenced on the basis as the Crown would have it when the case was put to the jury – that you deliberately drove your vehicle at the police vehicle, and that you knew that it was a police vehicle. Rather, you fall to be sentenced on the basis that under the influence of the substances you had taken that night, you panicked in the face of the very bright lights that shone upon your vehicle and fled, rather than using your vehicle as a weapon with which to assault police officers in the course of their duty, which was the way the Crown had framed its case.
44Nevertheless, I regard this as a serious example of an offence the seriousness of which is marked out by Parliament’s imposition of a maximum penalty of 10 years’ imprisonment.
45Having regard to the submissions made as to disposition by both parties, I ordered that you be assessed to determine your suitability to undergo a community corrections order.
46The report has been received and this morning it has been marked Exhibit 10. The author of it, Paul Sguerzi, assessed you as suitable to undergo such an order, although having regard to the progress you have made since this offending, he did not recommend conditions of supervision or of drug and alcohol treatment because he assessed you at being at low risk of general reoffending, and he wrote that the imposition of supervision type interventions is counter-productive. The recommendation was that only conditions of community work should be imposed.
47Benjamin Saurini, I state to you that I have taken into account all of the matters raised on your behalf in the course of the plea and all other relevant facts and sentencing principles in arriving at the sentence I am about to impose.
48On Charge 5, negligently causing serious injury, on Summary Charge 11, unlicensed driving and on Summary Charge 13, using methamphetamine, you are convicted and sentenced to a community corrections order for a period of 2 years with conditions of supervision and the performance of 200 hours of unpaid community work.
49On Charge 8, possession of cannabis and Summary Charge 12, using cannabis, you are convicted and discharged.
50All licences are cancelled and you are disqualified from obtaining a licence for a period of 2 years from this date.
51I declare the period of time you have spent in custody in relation to these charges namely, 2 days is to reckoned as time already served and I direct that that fact be entered into the records of the court.
Community Corrections Order
52Mr Saurini, you have been convicted and sentenced to a Community Correction Order for a period of 2 years. I am obliged to explain the orders, so that you understand what it means and what may happen if you breach the order in any way
53There are a number of core conditions that apply to a Community Correction Order:
(a) You must not commit, whether in or outside of Victoria, during the order an offence punishable by imprisonment. If you do, you will be in breach of the order.
(b) You must comply with any obligations or requirements prescribed by regulation 17 of the Sentencing Regulations 2011.
(c)
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, that is,
2 years.
(d) You must report to the Community Corrections Centre at Sunshine. You will be given the address within two clear days after from today. If you do not, you will be in breach of the order.
(e) You must let a corrections officer know within two clear working days of you changing your address or changing your job.
(f) You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her delegate.
(g) You must comply with any lawful direction given by the Secretary, or his delegate, that is necessary to ensure that you comply with the order.
54They are the core conditions of the order. They apply to all Community Corrections Orders.
55There are a number of additional conditions that apply to you:
(a) You must perform 200 hours of unpaid community work over a period of
18 months as directed by the Regional Manager. Now you are in full-time work, you will find that extremely inconvinient to comply with but that is part of the punishment that is being imposed today.(b) You must be under the supervision of a Community Corrections officer for a period of 2 years.
(c) You are required to be supervised, monitored and managed, as directed by the Secretary, or his or her nominee (s48E).
56I can only impose a Community Corrections Order if you agree to such an order being imposed.
57If you contravene or breach this order by committing any further offences, you can be charged and sentenced to a term of imprisonment for the breach.
58And you can also be re-sentenced for the offences that are before me today. In other words, I would re-sentence you on the charges that are currently before me, and in that circumstance you could be sentenced to a term of imprisonment. Do you understand that?
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: Now I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Corrections officer, as part of this order, you can also be fined. Now can you print the order and have me have a look at it please. Would you have him sign it please. Ms Walker if you want to approach the dock and explain it to him.
61MS WALKER: Of course.
62HIS HONOUR: Where there any ancillary orders?
63MR MIGHELL: There was Your Honour. There's a disposal order which is being agreed with by the parties and filed with the court.
64HIS HONOUR: Is that not opposed Ms Walker?
65MS WALKER: That's not opposed Your Honour.
66HIS HONOUR: Yes, I'll make that order. Are there any other matters?
67MR MIGHELL: Nothing further Your Honour.
68MS WALKER: No.
69HIS HONOUR: Adjourn the court please.
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