Director of Public Prosecutions v Simpson

[2014] VCC 2121

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01978

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW DEAN SIMPSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2014
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	DPP v SIMPSON
MEDIUM NEUTRAL CITATION:	[2014] VCC 2121

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Fisher	Office of Public Prosecutions
For the Accused	Ms S. Pratt

HIS HONOUR: 

1Andrew Dean Simpson, you have pleaded guilty to one count of negligently causing serious injury, one count of dangerous driving while pursued by police, one count of failing to render assistance after a motor vehicle accident, one count of possessing a firearm and one count of possessing a drug of dependence.  Those crimes carry maximum penalties of ten years, three years, ten years, ten years and one year respectively.  You have also pleaded guilty to three related summary matters of commit an indictable offence being possession of the proceeds of crime, possess ammunition and drive whilst licence suspended.  Those crimes carry maximum penalties of three months, two years, a monetary penalty and two years.

2You pleaded guilty and must get the benefit of that.  The person who was injured was, in fact, your girlfriend and I accept that you have appropriate remorse at least insofar as her condition is concerned.  You must also, of course, get the utilitarian benefit of a plea of guilty as it has taken away the need for a criminal trial.

3You do have prior convictions, two of which are of real concern.  In January of this year, you were sentenced to be imprisoned for possess an explosive substance and possess unregistered general category handgun by two.  You have other priors and I do not need to go through those in this process.  You had a previous driving whilst suspended and it is clear that you have been a user of drugs for a significant period of time.

4The Crown opening describes what occurred in the early hours of 5 July 2014.  You were with your then girlfriend in a motor vehicle, you had your licence suspended.  You drove away from a friend's house with victim seated in the front passenger seat of your car.  You were intending to drive to her house in Mernda.  You drove along Foley Avenue, Preston and then turned left into Albert Street and drove in a northerly direction.  You were at that time seen by police in a marked divisional van who thought you were the only person in the car.  They decided to make some routine enquiries in relation to the car.  When the lights were activated, you accelerated away.  You were travelling north along Albert Street.  When police saw you accelerate away and heard the noise of the engine, they pursued you. 

5As they travelled along Albert Street, the police officers saw the car being driven by you straddle both lanes as the distance between it and the police car increased.  A short distance along the road both of the vehicles went through the intersection of Albert Street and Gower Street.  The lights were green however there was a distance increasing between the two of you.  At that intersection, a speed camera was activated and you were seen to be going at 127 kilometres per hour.  The police vehicle was going at 113 and the distance between you was 219 metres.  Both vehicles continued along Albert Street, going through two more intersections.  The distance between the vehicles continued to increase.  After the police had travelled through the intersection of Albert Street and Wood Street, they lost sight of your car and at that point they terminated the pursuit and continued to drive along Albert Street. 

6A short distance along the street, police drove over a rise in the road then saw your car.  It seemed that you had lost control of the vehicle about 40 metres before Tyler Street and that you had collided with a fixed utility pole on the median strip.  You were stationery alongside the utility pole.  The vehicle was badly damaged.  Both police officers saw you crawl out of the rear window of the car.  You looked at them and then ran away along Tyler Street.  At that point, the police still thought there had been only one person in the vehicle.  One police officer chased you on foot while the other following in the divisional van.  You managed to escape but your mobile phone was found. 

7The police then returned to the vehicle and found that a female was trapped in the wreckage of the car.  They saw in the front passenger seat of the car.  She had suffered what were clearly life-threatening injuries.  A fire brigade rescue unit had to attend to extricate her from the vehicle and she was treated at the scene by MICA paramedics.  As the paramedics were providing oxygen, fluids and pain relief, they found a glass "crack pipe" in her bra.  She was taken by ambulance to the Royal Melbourne Hospital where she was intubated upon arrival.  Medical examinations revealed that she had suffered multiple injuries as a result of the collision including an acquired brain injury, a cerebral haemorrhage, lacerations to her left temple that exposed the bone, multiple skull fractures, a fractured femur, a fractured pelvis and a laceration to her liver.

8As part of her treatment, she underwent three operations that were performed by orthopaedic and neurological surgeons, she was treated for 20 days in the Royal Melbourne Hospital and then went to the Epworth Hospital for rehabilitation.  At the time of her release from the Royal Melbourne Hospital there was an expectation that the complainant would have a permanent brain injury as a result of the collision.  I was informed yesterday that she was unable to attend court because she remains in rehabilitation.  It was put to me that you and your family continue to support her in some way and that is mitigatory that she forgives you.  I was told from the Bar table that there was agreement that you would try and avoid the police, I am at a loss to know what has been forgiven.  The fact of the matter is she is, in all probability, a co-accused in respect of the pursuit charge at least.

9In any event, I take into account as well as I can the fact that she harbours no grudge against you, I am told, for the very serious injuries that she sustained.  As she is still I rehabilitation, I have got no indication as to what her current circumstances are and she has apparently declined to assist the police.  One would assume, I suppose, that if she wanted to assist you and she was all right I would have been told. 

10The vehicle was examined and I do not need to go through that.  I can simply say that the major collision investigation indicated that you were travelling north on Albert Street, that the brakes were applied suddenly, that the vehicle was travelling at a minimum speed of 127 kilometres an hour and it commenced to skid.  It skidded, mounted the grass median strip and hit the pole bringing it to a sudden stop.  Obviously, Albert Street has a speed limit of 60 kilometres an hour.

11Upon searching the vehicle, police discovered a men's Nike runner in the front driver's well and one on the rear seat of the car.  A wallet belonging to you was found, inside which was found a plastic resealable bag containing amphetamine which is the basis of the possess, and some cash, which is the basis of the proceeds of crime, and a piece of paper that had written names and figures on it.  A further search of the car was conducted at Victorian Institute of Forensic Science Centre where they found a home-made handgun along with a box of Long Rifle .22 cartridge ammunition in the rear luggage compartment.  I am told that that ammunition fitted that gun and I have seen a photograph of it.  You are and were a prohibited person insofar as that firearm was concerned. 

12The firearm is of real significant, in my view, because back in January of this year, as I have indicated, you were imprisoned on two charges of possess a handgun.  Having now seen the police statement in relation to that, it would appear that they are very similar guns and that each of those had ammunition which fitted.  You were released from prison earlier this year in relation to that and here you are at the start of July with another one. 

13I note, insofar as remorse is concerned, that you appear to have told the psychologist, Ms Lechner who examined you, that you knew nothing about the gun.  I do not know what that is all about but it certainly puts a very unpleasant flavour on this whole proceeding.

14All of those charges are serious.  The application of general deterrence and, in your case, specific deterrence are paramount.  There must be denunciation and appropriate punishment.  Clearly, there is no victim impact statement.

15The charge of dangerous driving whilst pursued by police, in my view, is more of a charge against the public than the negligently cause serious injury which is the charge relating to one specific person.  I think, therefore, whilst there needs to be significant concurrency, there must also be some cumulation.  In your particular situation, the possession of the handgun is a concerning matter indeed, as I have pointed out.  A very significant custodial gaol sentence is inevitable in a situation such as this but I must be careful not to impose a crushing sentence which is a difficult thing to understand, and also take into account totality.

16I then look at matters personal to you.  You are 27 years of age, you clearly have a supportive family, many of whom have been present in court both yesterday and today.  I have a reference signed by your mother and step-father and I have read that and take it very much into account.  You suffer from severe depression which is indicated by Ms Lechner, whose report has been tendered and I take that into account, and this will make gaol perhaps more burdensome for you than it might for other prisoners.  In gaol, you are endeavouring to rehabilitate yourself and are doing as much as you can. 

17Your history is one of going to school to about Year 10, commencing an apprenticeship and that apprenticeship being ended, you have hopes of continuing it.  You then had various jobs working, for example, in a warehouse for some three years, which you then lost when you were 22.  You became engaged and did not engage for a period of some three years.  When that relationship broke down, it seems fairly clear that you began using drugs heavily. 

18There are symptoms of post-traumatic stress disorder and it is difficult to see how far that can be taken, as I have indicated, I am taking into account that gaol will be burdensome for you.  You have been abstinent from drugs over extended periods of time and it is a matter for your own attention as to whether you can, in the long term, rehabilitate.

19The risk of you re-offending if you do not stop using drugs I think has to be regarded as high.  This is not a situation of somebody simply using - there is the avoidance of the police, the gun, there is a whole scenario which causes one to have grave concern about what your attitude towards all this is. 

20I have taken all those matters into account and, as I have indicated, I am concerned that any sentence that be imposed not be crushing.  However, I have to also take into account that this is, in my view, very serious offending and the consequences could have been even worse, even though, on what is before me, a person has clearly suffered a very serious injury indeed and, from what I can gather, continues to do so. 

21In any event, sentence is as follows:  on Charge 1, 48 months;  Charge 2, 18 months;  Charge 3, 24 months;  Charge 4, 24 months;  Charge 5, one month.  On the summary matters in these circumstances I do not intend to have any cumulation, on the commit an indictable offence, seven days;  the proceeds of crime, two months;  possess ammunition, convicted and discharge;  drive while suspended, one month and they will be served concurrently. 

22However, on the indictment, I direct that six months of the sentence imposed on Charge 2, 12 months of the sentence imposed on Charge 3, 12 months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.  That gives an effective head sentence of six years and six months.  I direct that you serve a minimum term of four years and three months before becoming eligible for parole and I direct that 158 days be reckoned as having been served under this sentence. 

23I say that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to be imprisoned for eight and a half years with a minimum of six. 

24There are no other orders I have to make?

25MS PRATT:  No, Your Honour.

26MR FISHER:  Just in relation to the licence.

27HIS HONOUR:  Sorry, thank you for that.  Licence will be suspended for four years, that is on the charge of leave the scene and two years on the charge of negligently cause serious injury, that will be concurrent.  That suspension will commence today, unless there is a s.51 ordering (indistinct).

28MR FISHER:  No, Your Honour.

29HIS HONOUR:  Remove the prisoner.

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