Director of Public Prosecutions v Sevdalis

[2023] VCC 2049

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00876

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS SEVDALIS

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2023
DATE OF SENTENCE:	9 November 2023
CASE MAY BE CITED AS:	DPP v Sevdalis
MEDIUM NEUTRAL CITATION:	[2023] VCC 2049

REASONS FOR SENTENCE
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Subject:

Catchwords:              One charge of negligently causing serious injury – one charge of reckless conduct endangering life – one charge of recklessly causing injury – 34 year old offender drove vehicle modified for speed racing on major road  at speed of at least 135 kilometres per hour in 80 kilometres per hour zone – lost control of vehicle and mounted median strip between northbound and southbound lanes and spun out of control across both lanes on the other side of the road – front passenger side door collided with traffic light pole at pedestrian crossing causing front part of vehicle to separate from the rest of the vehicle and traffic pole to fall onto car – front seat passenger received serious life threatening injuries to head and both legs and left index finger requiring multiple complex surgeries including craniotomy and further surgery to implant a prosthetic skull bone, as well as surgery to amputate right leg above the knee – rear seat passenger sustained significant laceration to scalp with tissue layer around skull on view requiring internal and external suturing and multiple bruises and abrasions on arms and legs.

Legislation Cited:      Sentencing Act 1991 (VIC)

Cases Cited:Harrison & Rigogiannis v The Queen [2015] VSCA 349; The Queen v Worboyes [2021] VSCA 169; The Queen v Verdins [2007] VSCA 62.

Sentence:                  Total effective sentence of 3 years and 4 months imprisonment with a non-parole period of 10 months imprisonment.
s6AAA: 5 ½ years imprisonment with a non-parole period of 3 years and 8 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Johnston	Solicitor for the Director of Public Prosecutions
For the Accused	Mr R Seifman	Burn City Legal

HER HONOUR:

1Nicholas Sevdalis, you have pleaded guilty to one charge of negligently causing serious injury which carries a maximum penalty of 10 years’ imprisonment; one charge of recklessly engaging in conduct whilst driving a motor vehicle at an excessive speed and in an erratic manner whilst under the influence of a drug, namely cannabis L, which placed or may have placed persons in danger of death, which carries a maximum penalty of 10 years’ imprisonment; and one charge of recklessly causing injury, which carries a maximum penalty of five years’ imprisonment.

2The circumstances of your offending are contained in the Prosecution Opening for Plea.[1]

[1]Exhibit “A”.

3On 4 January 2022, at approximately 12.45pm, you were driving your 1988 Nissan Skyline sedan with Mr Alexander Talevski in the front passenger seat and Mr Christopher Josevski in the rear left passenger seat. You left your home at 201 Sunshine Avenue, St Albans and drove north along Sunshine Avenue which has two northbound lanes and a median strip dividing the road between two southbound lanes.  Except during school times (which was not the case on 4 January 2022), the applicable speed limit is 80 kilometres per hour.

4Shortly before the intersection of Sunshine Avenue with Taylors Road, you performed a U-turn to travel south along Sunshine Avenue.  You accelerated to a speed of not less than 135 kilometres, moving in and out of the two southbound lanes over a relatively short distance between where Bellara Crescent and Calverton Road intersect with Sunshine Avenue.  You then spun out of control and, whilst spinning, the vehicle travelled across the median strip heading back in a northerly direction in a diagonal path crossing both of the northbound lanes.  Ultimately, the front passenger side of the vehicle collided with a traffic light pole on the left hand side of the northern bound lane after having been in a spinning skid for approximately 96.3 metres. The impact of the collision caused the front of the vehicle to separate from the rest of the vehicle, which swung around the traffic control signal pole, and landed with the driver’s side in the air and the passenger side door on the ground, following which the traffic light pole fell onto the car.

5Your front seat passenger Mr Talevski had to be extracted from the vehicle with the assistance of fire services. He sustained serious, life changing injuries which are the subject of Charge 1. He suffered a traumatic head injury with two large open wounds to the head and complex open skull fractures, as well as multi-fragmented and depressed fractures to multiple other bones and a tear to the outer brain lining, a subdural haemorrhage and bruising to the left front of his brain.  He was taken to hospital where a depressive craniectomy was performed on 4 January 2022, without which he would have died. This involved opening of the skull, washing out of the wounds and removing collected blood.

6In addition, Mr Talevski suffered a right leg injury with open fracture, dislocation and deformity to the tibia, fibula and ankle; and left leg injury with large open wound to the inner aspect of the calf.  He required multiple specialist surgeries and skin grafts in relation to both leg injuries which required external fixation.  However, ultimately, Mr Talevski’s right leg was amputated above the knee on 11 January 2022.  His left leg required internal fixation and multiple surgeries.  He also had a multi-fragmented dislocation fracture of his left index finger which required surgery. In June 2022 Mr Talevski underwent further surgery which involved implanting a skull bone flap prosthesis consisting of engineering plastic fixed with plates, screws and stapling.

7Mr Talevski remained in hospital for a month following the collision and on 9 February 2022 was admitted as an inpatient to Epworth Rehabilitation Centre.  On 10 March 2022, a neuropsychological assessment revealed some mild memory difficulties and mildly reduced semantic fluency, and, mild to moderate language dysarthria (speech disturbance), which improved with therapy.  He has required ongoing intensive treatment and rehabilitation in relation to the amputation and left leg injuries and was transferred to Epworth Hawthorn for rehabilitation between 28 April and 10 August 2022 following the amputation of his right leg.

8Charge  3 relates to the injuries sustained by your rear seat passenger, Mr Josevski. He suffered a Y-shaped scalp wound to the right forehead which exposed the tissue layer around the skull. This required internal suturing and external stapling.  He also suffered multiple bruises and abrasions to both arms and legs.

9Following the collision, a sample of blood taken from yourself was analysed and found to contain 7.0 ng of Delta-9-tetrahydrocannabinol (“THC”) per millilitre of blood. This is the active component of the drug cannabis sativa. Dr Jason Schreiber from the Victorian Institute of Forensic Sentence opined that THC concentrations between 2.0 ng/ml and 5.0 ng/ml  suggest recent cannabis smoking and are thought to be associated with substantial driving impairment.  A THC level of 7.0 ng/ml is considered high and indicates recent cannabis consumption. Dr Schreiber  stated that the THC level found in your blood was likely to be higher at the time of collision, indicating recent cannabis use, the effects of which were likely to impact upon your driving.  There was evidence from witnesses concerning your high speed and the fact that your car “had started to swivel in and out of the right and left lanes” before spinning out of control and doing a full 360 degree donut before you slid into the pole.  Dr Schreiber opined that the risk-taking behaviour and impaired judgement, with speeding and changing lanes, can be attributed to the impairing effects of THC and that your level of THC would have prevented you from having proper control of your vehicle.

10In addition, a report from Detective Sergeant Jenelle Hardiman, an expert in collision reconstruction, concluded that the speed of your vehicle prior to commencing a spinning skid was a minimum of 135 kilometres per hour.  She stated that the separation of the vehicle which occurred upon striking the pole was not likely to have occurred with an impact speed of less than 100 kilometres per hour.  She noted that your vehicle had several modifications to the engine which are intended to increase the power output of the engine.  The rear differential had a ”mini-spool” installed. Such a device is used predominantly in race, drag or drift cars.   It locks both axles in place so that the power is put to the ground with equal torque and traction. When traction is broken, the rear of the vehicle would have no lateral stability due to both tyres breaking traction simultaneously. Detective Hardiman concluded that the modification to the engine, engine control unit, rear differential, brakes and suspension, all of which were intended to increase the power and/or performance of the vehicle, … “would have made it behave significantly differently to that of a standard model, making it easier for loss of control to occur if driven inappropriately.  Without experience and/or prior knowledge of these modifications, this vehicle would have been dangerous to drive.”[2]

[2]Exhibit “A”, Paragraph 33.

11You are presently aged 36, years having been born in June 1987.  Between 3 March 2007 and 4 February 2010 you incurred a number of traffic infringements or were subject to charges before different Magistrates’ Courts for repeated driving offences.  These involved travelling at speeds in excess of the speed limit on five occasions.  On one of those occasions your speed was in excess of 25 kilometres over the limit, on two occasions in excess of 30 kilometres over the limit and on another occasion in excess of 35 kilometres per hour over the limit.  You have one conviction in 2009 and another in 2010 for driving whilst disqualified and, also, a conviction for driving in a dangerous manner in 2010.

12You had your licence either cancelled or suspended on seven occasions up until 4 February 2010 for periods of one month, two months, six months and 14 months.  However, you do not have any criminal history subsequent to 4 February 2010 when you were last dealt with for driving offences relating to offending which took place on 30 May 2009.  Your counsel, Mr Seifman, attributed this to you having been in a number of stable relationships during the period between 2009 and the collision on 4 January 2022.

13Your counsel told the Court that you are the oldest of four children from a loving family. You still reside with your parents and, up until you were remanded in custody on 27 October 2023, you were working from home as a cabinet maker. 

14Mr Seifman noted that you were from a law abiding and close and loving family.  When you were aged nine you assisted your father in rescuing your twin brothers who were drowning in the home swimming pool and gave CPR to one. Fortunately they both survived but this apparently resulted in you needing counselling at the time. You had a learning difficulty which was evident from an early age and had been prescribed Ritalin and remained on it for a couple of years. You apparently had some form of psychotic-like symptomatic reaction to it when you were about 14.  In addition, you had been regularly bullied at primary school and, as a consequence, attended three different primary schools. The bullying continued when you began secondary school and you left school at age 14 because you could no longer stand it. Apparently you were bullied because you were dyslexic and essentially illiterate and, also, because of your appearance, particularly the size of your ears. 

15You ultimately left school prior to completing Year 9 and worked for your father in his kitchen cabinet making business, with the exception of 12 months when you were about 28 or 29 when you worked in installing cabinetry for the Avexis Group.  When you were aged about 30 or 31 years, you had been diagnosed with diverticulitis and had subsequently undergone periods of hospitalisation for this condition, which had included surgical procedures and the necessity of wearing a colostomy bag for several months on two occasions, in 2018/2019 and earlier this year.

16Your counsel relied upon a report of a forensic examination of you by Mr Jeffrey Cummins,[3] who also gave oral evidence at the plea hearing. Mr Cummins took a history of many of the background factors to which I have just referred. He also noted that you had had three relationships with females all of which had ended after a period of time – two before the collision (apparently because the girl “cheated” on you) and one after the collision (because you alleged your mental health symptoms were impacting negatively upon her).

[3]        Report dated 23 October 2023, Exhibit “1”.

17Mr Cummins stated that you presented as functioning intellectually more in the borderline range than in the lower end of the average range, noting that you had  been diagnosed with suffering a learning disorder at some stage during childhood.  He considered that you presented as anxious, depressed and traumatised and overwhelmed with your mental health symptoms and feelings of guilt related to the collision and the injuries you had caused to your passengers. He agreed with a diagnosis of Complex Post-Traumatic Stress Disorder which had been arrived at by a counsellor, Mr Aron, whom you had seen on multiple occasions after first attending him at his business of Gateway Family Counselling on 8 June 2023.[4]

[4]Report of Rafael Aron, Counsellor, dated 21 October 2023 - Exhibit “3”.

18Mr Cummins recorded that the Minnesota Multiphasic Personality Inventory, which is a personality test, produced an invalid profile due to you over-reporting symptoms, which he thought was attributable to your mental health symptoms rather than to exaggeration. He considered that you had little insight into the complexity of your mental health issues and presented as being a relatively psychosocially immature and vulnerable person. He did not consider that your Complex Post-Traumatic Stress Disorder had any direct nexus with your offending behaviour.

19When Mr Cummins gave oral evidence before me at the plea hearing on 26 October 2023, he stated, that when he first interviewed you on 2 October 2023, what impressed him was the apparent mismatch between your chronological age and a level of maturity. He stated that you were a very vague historian and he considered that you had lived a very protected lifestyle, living with your parents and working in the family business. He noted that you had said that you could hardly read or write, but were good at working with cars. He found it necessary to have a follow up consultation of an hour on 10 October 2023. He stated that, on each occasion, you spoke of your guilt, shame and remorse and embarrassment concerning the collision but, when he challenged you about the apparent speeding and hooning, you had difficulty with that and seemed to think that that was not what police had alleged. He stated that you had told him that you would have been depressed because approximately two or three weeks prior to the collision, you had learned that a girlfriend from whom you had separated some four months previously had cheated on you with a mate of yours.

20I pointed out to Mr Cummins that this appeared to be inconsistent with the history which you had given to your counsellor, Mr Aron, who had noted that you had a four year relationship which had concluded in 2019 when you discovered, whilst you were in hospital for your first operation for diverticulitis, that she had cheated on you.[5] It also appeared to be inconsistent with the history given to Mr Mackinnon, to whom you had been sent by your solicitors for assessment on 31 October 2022 and, again, on 9 May 2023. Mr Mackinnon’s report dated 2 November 2022,  stated that, when he assessed you on 31 October 2022, he had noted that two and a half years ago your then girlfriend had cheated with one of your friends and when you learned of this your mental and physical health deteriorated.[6] 

[5]Exhibit “3”, Page 3.

[6]Page 3 of the Report, part of Exhibit “8”.

21Mr Cummins mentioned that you were a vague historian. Nevertheless, he maintained that you are a very traumatised person with affective emotional dysregulation and a negative self-concept.  He stated that your Complex Traumatic Stress Disorder had been magnified by the collision and that you suffer ruminations on a daily basis about the collision and  feel retriggered every time you go past the scene of the collision which is only a few hundred metres from your home.

22Mr Cummins considered that you would find it extremely difficult to cope in a prison environment and he thought that your level of insight as to what it would be like in prison was poor, and that your mental health would inevitably deteriorate significantly, particularly as you would become more concerned about your physical medical problems (particularly diverticulitis, which is very painful and has twice required surgery and some months of wearing a colostomy bag). He said he found it difficult to know whether your counsellor, Mr Aron, had addressed your Complex Post-Traumatic Stress Disorder, as Mr Aron had referred you to him and told him that maybe you needed to see a psychiatrist or some other specialist in relation to that condition.

23Mr Cummins agreed with observations made by myself that there was an element of deflecting blame on others by you and that you did seem to be a very self-focussed person, but he said that is part of your condition of Post-Traumatic Stress Disorder.  He found it difficult to say how much you had benefited from supportive counselling, as you are obsessed with your traumatisation and your physical problems and, to some extent, see yourself as a victim.

24The reports of Mr Mackinnon following his assessment on 31 October 2022 and 9 May 2023 (albeit that the latter report is erroneously dated 2 November 2022)[7] provide an opinion that you suffer a Complex Post-Traumatic Stress Disorder which is related to factors in your background such as persistent bullying, the near drowning of your twin brothers, a psychotic paediatric episode, having been run over by a motor vehicle at age 14, several concussive episodes, your development of diverticulitis and the collision on 4 January 2022.  He noted similar symptoms to those recorded by Mr Cummins, namely, anxiety, depression, flashbacks, rumination, intrusive thoughts, sleep disturbance, nightmares, avoidant behaviour, sensitivity to environmental triggers and cues, and general emotional lability.

[7]Exhibit “A”

25He considered that you had laboured with longstanding problematic personality traits and tendencies which included a high level of dependence upon your parents support and associated immaturity, low self-esteem, low self-confidence and difficulties in establishing  and maintaining close and enduring relationships and a healthy social network.  He noted that these challenges were not helped by you having laboured with innate learning difficulties, poor language skills, and a chronic tendency to suffer “information overload” all of your life.  He did raise the possibility that you may be vulnerable to the development of a psychotic disorder, such as schizophrenia, but this was not something with which Mr Cummins agreed.

His opinion was at one with Mr Cummins insofar as he suggested that there was nothing in the information provided to him that suggested that your Complex Post-Traumatic Stress Disorder was a direct and significant factor in your offending, which he thought was more likely to be attributable to immaturity and poor choices, like many dangerous male drivers who try to impress their passengers.  His opinion was also in agreement with that of Mr Cummins insofar as he considered that a significant term of imprisonment was likely to cause your current poor state of psychological health to deteriorate. He thought that your physical condition relating to your diverticulitis would not be easily accommodated in prison.

26When Mr MacKinnon saw you more recently on 9 May 2023, he noted that your symptoms of Complex Post-Traumatic Stress Disorder were more intense than previously and he attributed these to your approaching court hearing. He noted that you had mentioned that you had only had four counselling sessions in six months with Mr Zac Stojcevski, which he considered inadequate and thought you should be engaging in weekly sessions. (I herein interpolate that this report predates your engagement with Mr Aron). He reiterated his concern about your vulnerability and thought that your psychological health was likely to deteriorate with a significant term of imprisonment and that you would probably require crisis attention from prison mental health staff.

27A report from Dr Mathew Staios, clinical neuropsychologist, dated 18 September 2023 was tendered.[8] Your solicitors had requested that he undertake a neuropsychological evaluation of you. Dr Staios considered that your overall intellectual functioning fell within the low average to borderline range. Although he thought that you had likely sustained a concussion or possible mild traumatic brain injury in the collision on 4 January 2022,  he considered your cognitive profile was consistent with your premorbid level of intellectual functioning and did not indicate the presence of enduring cognitive impairment as a result of the collision.  He did not consider that your cognitive function was compromised to a degree that would have significantly impacted on your judgement in the lead up to your offending.  He noted that you had a history of being a vulnerable individual with a complex and traumatic early upbringing, including persistent bullying, the presence of a verbal learning disorder, the prescription of medication for suspected Attention Deficit Hyperactivity Disorder, the traumatic event of finding your younger siblings unconscious in the swimming pool and difficulty forming long and lasting relationships.

[8]        Exhibit “2”.

28Dr Staios considered that the combination of these things appeared to have resulted in the formation of a Post-Traumatic Stress Disorder during early childhood, however, he did not consider that this was likely to have played a major role in your offending. He stated that your decision to drive at high speed  was likely the result of immaturity and a misguided attempt at impressing peers as a means of fitting in and acceptance, which appears to be the result of an unstable self-image and low self-worth rooted in the history of childhood maladjustment.  He considered that the added impact of cannabis may also have served to compromise your judgement.

29Dr Staios noted that you had been diagnosed with Complex Post-Traumatic Stress Disorder following the collision.  He stated that you were yet to engage in targeted treatment and management of the symptoms relating to this and thought you would benefit from engagement with a psychiatrist. He disagreed with Mr Mackinnon’s hypothesis that you were at risk of developing schizophrenia and noted that your childhood episode of psychosis appeared to relate to adverse effects of medication associated with a probable diagnosis of ADHD. Nevertheless, he considered that you had a fragile psychiatric and psychological state and were likely to find imprisonment particularly onerous as you had been significantly dependent upon your parents and other immediate family members. He considered that removal of these supports by being placed in a custodial setting would very likely result in a significant decline in your mental state.

30A brief report was provided from Mr Zac Stojcevski, psychologist, dated 21 March 2023.[9] This confirmed that you commenced psychological counselling with him and, as at that date, had attended three psychological counselling sessions for the sequelae of the collision, including grief and rehabilitation.  He noted that more sessions were scheduled, however, your mother gave evidence that she had had difficulty obtaining further sessions with Mr Stojcevski and, as your counsel, Mr Seifman, had suggested that you see Mr Aron, you had commenced to see him on 8 June 2023 and had attended some 23 appointments with him. 

[9]Exhibit “6”.

31A report from Mr Aron dated 21 October 2023 was tendered.[10] In the report, he is simply described as the head of counselling at the Gateway Family Counselling Centre in Melbourne. Subsequently, a curriculum vitae was provided to the Court which reveals that he obtained a Bachelor of Commerce at Melbourne University and undertook a Pastoral Counselling Course at Kol Torah Academy in Jerusalem, Israel, and subsequent studies in addictions. He apparently is the founder of the Gateway Family Counselling Centre.  In paragraph one of his report this is noted to be counselling for individuals, relationships and marriages, as well as addiction programs.

[10]        Exhibit “3”.

32I have already referred to much of your relevant history which is also detailed in this report. As expressed during the plea hearing, I found Mr Aron’s report somewhat inappropriate insofar as it diverged from addressing the counselling which he had provided to you, into issues of causation relating to you having cannabis in your system and its impact upon your driving (which is part of the agreed facts in the Prosecution Opening). I also found his comment about the potential for risk of relapse of your condition of diverticulitis, which is currently stable, to be out of his field of expertise. 

33Mr Aron noted that you possessed limited insight into your personal issues and challenges but, nevertheless,  stated that you were benefiting from his counselling sessions involving Cognitive Behavioural Therapy and was hopeful that, through continuing these, you would develop insight to understand the consequences of your behaviour, as well as strategies that you could acquire to take responsibility for your choices.  He noted it was the first time you had committed to ongoing counselling, despite your troubled life.

34Mr Aron agreed with opinions expressed in other reports that you presented as fragile, with low self-esteem and low self-confidence.  He likened your dependence on your parents to be more representative of that of a teenager.  He noted that you presented as emotionally immature and it was possible that this had contributed to your decision to get behind the wheel of the car and demonstrate your driving prowess to friends.  He stated that you struggle with intense feelings of guilt which, at times, are overwhelming and act as a frightening trigger for other traumatic experiences which happened in your childhood. He considered that you had expressed deep remorse which he regarded as genuine. He thought that you would require considerable support for the future by way of a long term therapy program for your complex mental health issues and that a custodial sentence may compromise your opportunities to address them. He expressed the view that you would struggle to cope with a term of imprisonment due to your emotional immaturity and dysregulation, which would make you particularly vulnerable in a harsh prison environment.

35In the course of the plea hearing I heard evidence from your mother who confirmed your early developmental delay issues, a learning disability and immaturity, bullying at school, the traumatic incident of you helping to pull your unconscious twin siblings out of the swimming pool, a psychotic episode during your teens which was possibly related to medication upon which you had been placed to assist your concentration, your diagnosis of diverticulitis at approximately aged 30, your distress upon the breakup of relationships which “had caused you to start using cannabis in your late twenties” and the deep remorse, depression and anxiety which you have suffered since the collision.  She, like the authors of all the references which were tendered as Exhibit “8” stated that you had always been a loving and helpful and family-oriented person.  The other references refer to your gentleness, general good character and loyalty and generosity to friends and family, despite having many challenges of your own.

36I accept that, after an appalling driving record in the first few years after you became licensed to drive, you managed to not offend on the roads for some 13 years.  Mr Seifman stated that, about two years prior to the collision, your grandfather had given you the vehicle which you were driving at the time of your offending. You are very familiar with cars and had a keen interest in attending speed racing events, albeit that you are said by your counsel to have only participated in one such event and that was not in the car which you were driving at the time of the collision. He stated that you had only driven that car once before in order to take it to someone who was to make modifications to it.  In any event, you were personally responsible for the modifications by way of speed and other enhanced performance which had been made to the vehicle prior to the collision. These modifications had been undertaken by you, personally, or you had taken the car elsewhere for others to perform the work.

37Whilst I accept that you are immature and have had a background of challenging events in your life and a rather unusual dependence upon your parents, you must have known that this was a vehicle that should not be driven on the usual roads upon which other members of the public drive their cars to get around.  You claim that, shortly before the collision, your two passengers in the vehicle had attended your home and asked for you to give them a ride in the car. Certainly, your mother’s evidence confirmed that they had appeared at your home that day. However, this is no excuse for taking it onto the road in the first place, and  then driving in such a grossly irresponsible way. You were in your very own neighbourhood and showed no concern for your passengers or anyone else on the road or in the vicinity. You roared along in what was a car which should only have been driven off a highway in a drag race or speedway event. You drove at a speed at least 55 kilometres per hour in excess of the 80 kilometres speed  limit and  wove from lane to lane, whilst having THC in your bloodstream from consuming cannabis, which prevented you from having proper control over the vehicle. Your reckless conduct endangered not only your two passengers and yourself, but all other users of the road. This is the basis of Charge 2 to which you have pleaded guilty.

38It is miraculous that no one else was injured or killed as your vehicle spun out of control across the median strip and across the two lanes for traffic headed in the opposite direction. In the 29 seconds leading up to the collision as depicted in Exhibit “F”, there are four cars which travelled in the northbound lane, into which your car spun at high speed in a plume of smoke and another car which pulled up soon after the collision. In the southbound lane in which you had been travelling before you lost control, one car was 20 seconds ahead of you, and another was five seconds ahead of you.

39As outlined in the prosecution opening, one witness described you zooming past him and saw you swivelling in and out of lanes, so he slowed down just in case you were going to hit him because you were moving around the lanes so much, and then your car span out of control.   Another witness stated “it all happened so fast; it was so unusual.  My concentration was on the car and I was thinking, what’s he doing.  I heard screeching.  The car veered right across from the right hand lane into the left and then onto the nature strip.” 

40For decades, both the Transport Accident Commission and Victoria Police have been advertising to try to alert people to the  tragic consequences of hoon driving, which occur so frequently and unnecessarily on our roads. The objective gravity of a charge of negligently causing serious injury is assessed by having regard to the degree of negligence involved and the seriousness of the injury caused.[11]

[11]Harrison &Rigogiannis v The Queen [2015] VSCA 349 at paragraph 44.

41Driving this modified vehicle on the road, at all, and driving at such an excessive speed and in a manner where you were transferring quickly from lane to lane, are all matters which should have been well known by you to involve risky driving with the likelihood of  a seriously adverse impact upon those in your car and other road users in the vicinity. As you were also driving with THC in your system, affecting your capacity to control the car, this is a serious example of the charge of negligently causing serious injury, as well as the other two charges of conduct endangering life and recklessly causing injury.   

42The consequences for Mr Talevski, a 25 year old man who was a qualified plumber and football player, have been catastrophic. These are plain from his Victim Impact Statement.[12] He has lost his right leg, has a plastic skull, and his pain, suffering and loss of enjoyment of life are immense.  He suffers impairment of his left leg and his right arm, difficulties with mobility, and struggles with not being able to work and socialise and do all the things that he used to love. He still needs psychological counselling, as well as undertaking physiotherapy and occupational therapy. He has lost his livelihood and his fulfilment from that work, and his loss of earning capacity is immense. 

[12]Exhibit “B”.

43There is no Victim Impact Statement from Mr Josevski, but it takes no imagination to realise that this horrific collision which caused a marked laceration on his forehead which exposed the underlying tissue layer around the skull, must have been deeply confronting and it is not likely that he will ever forget what happened on  that day of the collision.

44The maximum penalties for the particular offences and the pronouncements of higher courts in relation to these circumstances of driving mean that denunciation, general deterrence and just punishment are the predominant sentencing principles. In sentencing you, a message needs to be sent to those in the community who might be minded to drive in this very anti-social and irresponsible manner that such conduct will not be tolerated and will meet with appropriate punishment. I consider that there is now much less need upon specific deterrence than would have been the case at the time of the collision.

45In sentencing you, I take into account the following matters:

(a)   You pleaded guilty to the offences on 24 May 2023, following an unsuccessful application for summary jurisdiction, which I might say was highly ambitious.  You are entitled to a discount on your sentence by reason of the utilitarian value of your plea, which has saved the time and cost of a trial and spared victims having to give evidence and generally facilitated the course of justice.  Perhaps some small measure of added utilitarian value should be granted given that the trial lists in the County Court have been seriously congested following the restrictions imposed during the COVID-19 pandemic.  Whilst trials have now been running regularly in this Court for some time, you have not added to the trial lists by reason of having pleaded guilty.[13]

In addition, I am satisfied by all the material before me, both the oral evidence and the various reports and references tendered on your behalf, that you are very remorseful for your appalling driving, and wracked with guilt and haunted by the terrible and enduring effects on Mr Talevski’s life.  Indeed, as you apparently have no memory of the events surrounding the collision, I regard your pleas of guilty, in themselves, to be indicative of remorse. For this reason, you are entitled to a real and tangible discount on the sentences which otherwise would have been imposed.

(b)   I have heard submissions and read a great deal about your various traumatic and vulnerable experiences during childhood, adolescence and beyond.  Although I am not satisfied that any of the conditions for which you were diagnosed were in any way causally related to your offending behaviour so as to attract principles 1-4 in The Queen v Verdins,[14] I have no doubt that you will find imprisonment very burdensome. This is because of your immaturity, borderline/low average intelligence, low self-esteem, limited literacy, learning difficulties and your condition of Complex Post-Traumatic Stress Disorder, which has been diagnosed following the collision and which exacerbated earlier symptoms which you had had prior to the collision. The authors of the reports tendered are united in their opinion about your very protected background and I am satisfied that this, together with the other factors I have just mentioned, will make you vulnerable in a custodial environment.  I accept as realistic the concern which the authors of the various reports have expressed about the risk that your mental health may significantly deteriorate in prison.  Thus, I take these considerations into account in accordance with limbs 5 and 6 of Verdins’ case.

(c)   I take into account your diagnosed condition of diverticulitis, which has caused you considerable pain and dysfunction over a number years and occasioned periods of hospitalisation and surgery, together with the embarrassing burden of a colostomy bag for approximately six months after two of the surgical procedures. This is a debilitating and confronting condition.  Although it is presently stable, I accept that it is not cured and there is a risk that it may again flare up and cause pain, disability and embarrassment, which would also make spending time in prison more difficult, as well as perhaps meaning that treatment may not be as immediate or effective as it might be if you were not in custody.

(d)   I accept that you have suffered extra curial punishment resulting from the collision.

(i)Immediately after it, you were taken to the Royal Melbourne Hospital where you remained an inpatient for three days.  You were found to have suffered a fracture of the fourth cervical vertebra with associated ligamentous injury, widening of the facet joints at C3-4, some marrow oedema at C6-T4 with separation fractures of T2-4.  These necessitated you being managed in a halo brace for three months.  You also required some suturing to a left anterior leg wound.

(ii)Some months after the collision, on 13 June 2022, you presented to Bendigo Hospital having suffered an apparent seizure while camping.  Liaison with Royal Melbourne Hospital neurology cleared you from a neurosurgical perspective and it was treated as a first fit episode and marked for follow up.  During that admission, a right C3-4 vertebral artery dissection with clot formation was detected.[15]

(iii)You were reviewed by a neurosurgeon, Dr Hazem Akil and, in a report dated 6 October 2023,[16] he stated that he considered the vertebral artery dissection at C3-4 may be a contributor to your symptoms of dizziness which you have been experiencing since the collision. He also noted that you were in significant pain affecting both sides of your cervical region. He ruled out radiculopathy and thought that the pain was related to the weakening of paracervical muscles and that you needed pain management and exercises to assist with these.  He expressed his concern that these treatments may not be available if you were in custody. I take into account these physical matters, together with the diagnosis of Complex Post-Traumatic Stress Disorder, made since the collision. They are a reminder of your foolish, irresponsible offending behaviour and are also likely to make your time in custody more onerous than for a prisoner who has no such conditions.

[13]The Queen v Worboyes [2021] VSCA 169

[14][2007] 16 VR 269

[15]Exhibit “7”

[16]Exhibit “4”

(e)   Your counsel relied upon there having been delay between the date of the collision and your being sentenced. Whilst I acknowledge that you have suffered anxiety as to the outcome for you, I consider that only little weight should be given to this factor as the delay has not been particularly marked.

(f)    Since the collision, you have endeavoured to engage in some treatment to gain some insight into your psychological make-up. Despite 23 counselling sessions, Mr Aron stated that you possess limited insight into your personal issues and challenges.[17] Mr Cummins expressed a similar view.[18] My impression is that, although you are remorseful, you are somewhat self-pitying and obsessively focused upon your physical and mental symptoms. Unfortunately, your very sheltered life of living with your parents and working in their business means that you have never contemplated addressing your mental health issues prior to the collision, even though there were apparently quite significant periods of time when you were anxious and depressed (for example, following the breakup of a relationship) and unable to work. Despite this, not even a report from a general practitioner has been tendered indicating that you sought to address these problems prior to the collision. If you are as emotionally immature as assessed by the authors of the reports tendered on your behalf, the question must be asked whether you should be driving at all. Unfortunately, it is difficult to know with what degree of success one can address what would appear to be an unusually high degree of immaturity, for a person now aged 36 years. In addition, your Complex Post-Traumatic Stress Disorder clearly needs more treatment than simply counselling from Mr Aron.

(g)   Whilst it is in your favour that you have support from your family and others, who provided references and attended your plea hearing, that support existed prior to this offending. The authors of the references have inappropriately suggested that the Court should give you a Community Corrections Order. It is no part of the role of the author of a reference to suggest a sentencing disposition to the Court. Your prospects of rehabilitation are but one of many factors which a Court must take into account in sentencing you. Although it may be true, as your counsel stated, that this collision has been a “wake up call” to you, and your prospects of rehabilitation may be reasonable, you have a long way to go in addressing your many issues.

[17]Exhibit “3”, page 9, paragraph 8.

[18]Exhibit “I”, page 10, paragraph 67.

46I reject your counsel’s submission that a combination sentence of a term of imprisonment of less than one year and a Community Correction Order is an adequate sentence for this serious offending. In my view, only a sentence comprising a term of imprisonment by way of a head sentence and a non-parole period is appropriate to the gravity of this offending. 

47In arriving at the sentence which I intend to impose, I have had regard to the relevant sentencing considerations in s5 of the Sentencing Act 1991 and, also, to current sentencing practices which are of some utility as yardsticks. Obviously, the maximum sentence for each of the three offences is, as I have said, an indicator of the gravity with which the community and the legislature regard the particular offences.

48Although there are separate victims for Charges 1 and 3, and the potential for other victims for Charge 2, and the discrete nature of the three offences must be acknowledged, it is also important to bear in mind that the same offending conduct by you is the foundation for each of the three offences.  In that sense, it is important to recognise the principle of totality in order to arrive at an overall just and appropriate sentence.

49The outstanding feature of your presentation to the Court is your longstanding psychological vulnerability, which has been aggravated by your medical conditions of diverticulitis and the development of distressing symptoms of Complex Post-Traumatic Stress Disorder since the collision, as well as your physical sequelae from your injuries. Although, I consider that it is inevitable that a sentence of imprisonment must be imposed, I am genuinely concerned about how you will cope in prison with your vulnerabilities. As previously mentioned, authors of all reports express the real risk that your mental health may significantly deteriorate. Being mindful of this factor, I have set a reduced non-parole period in the hope that you will be granted parole and be able to continue necessary treatment within the community. In the meantime, I urge custody authorities to monitor your mental and physical health very closely and to provide what treatment and support is possible.

50On Charge 1, negligently causing serious injury, you are convicted and sentenced to three years’ imprisonment.

51On Charge 2, reckless conduct endangering life, you are convicted and sentenced to 18 months’ imprisonment.

52On Charge 3, recklessly causing injury, you are convicted and sentenced to 10 months’ imprisonment. 

53The base sentence is that of three years imposed on Charge 1.  I direct that three months of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  The total effective sentence is thus three years and four months’ imprisonment.

54I direct that you serve a period of 10 months’ imprisonment before becoming eligible for parole. 

55I declare a period of 14 days pre-sentence detention to be reckoned as time already served under the sentences imposed this day.

56Pursuant to section 6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 ½ years imprisonment with a non-parole period of 3 years and 8 months.

57The offence of negligently causing serious injury by driving a motor vehicle is a serious motor vehicle offence within the definition in section 87P(b) of the Sentencing Act. Pursuant to section 89(1)(a), it is mandatory for this Court to cancel your licence or permit to drive and to disqualify you for a period of time, which must be not less than 24 months pursuant to section 89(2)(b).

58Accordingly, having been convicted of Charge 1, I order that all licences or permits which you had to drive be cancelled and that you be disqualified from obtaining a further licence or permit for a period of 3 years from todays’ date.