Director of Public Prosecutions v Sinclair

[2018] VCC 1115

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02287

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXANDER SINCLAIR

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2018
DATE OF SENTENCE:	18 July 2018
CASE MAY BE CITED AS:	DPP v Sinclair
MEDIUM NEUTRAL CITATION:	[2018] VCC 1115

REASONS FOR SENTENCE
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Subject:         Culpable driving cause death
Sentence:      8 years imprisonment with a non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Coombes (For Plea) Ms T. Crvenkovic
(For Sentence)
For the Accused	Mr L. Richter

HIS HONOUR:

1Alexander Sinclair, on 5 April 2018, you pleaded guilty to a charge of culpable driving causing death, for which the maximum penalty is twenty years imprisonment.  You also pleaded guilty to a charge of recklessly causing injury, for which the maximum penalty is five years imprisonment and the charge of theft of a motor vehicle, for which the maximum penalty is 10 years imprisonment.  Through your counsel, Mr Richter, you consented to a summary charge of failing to stop at the scene of a motor vehicle collision, where property was damaged.  In the circumstances here, the maximum penalty for this offence is five penalty units, or imprisonment for 14 days.  In the charge of culpable driving causing death, the culpability was that you drove a motor vehicle negligently.

2The circumstances of your offending are contained in a prosecution summary which was admitted into evidence as Exhibit A.  That document was read in open court by the prosecutor Ms Coombes, and your counsel Mr Richter agreed that it was accurate and forms the proper factual basis, upon which I can proceed to pass sentence upon you.  Because the summary was read in open court by the prosecutor, it is not necessary for me to again set out what is contained in it other than in a very abbreviated way.  These sentencing remarks, however, must be read in light of what is contained in the prosecution summary, the contents of which I have taken fully into account. 

3On 18 March 2017, during the afternoon and evening, you were socialising with a number of friends and drinking alcohol.  After some time, you were observed by your friends to be behaving in a somewhat bizarre fashion, by kicking and punching holes in plaster walls, breaking bottles and removing fluorescent light tubes from their fittings.  You were also observed trying to eat glass.  Attempts by your friends to calm you down failed.  You removed one light tube and struck one of your friends with it, causing a cut to the left side of his face beside his left eye, but the victim did not require medical attention.

Charge 1, recklessly cause injury. 

4A short time later, you left the house where you and your friends had been socialising, taking a vehicle that belonged to one of your friends.  You did not have permission to do so and the vehicle was reported as stolen at 12.18 am on 19 March 2017. 

Charge 2, theft of a motor vehicle.

5Soon after stealing the motor vehicle, you collided with another vehicle at a roundabout at the intersection of Shell Road and Grubb Road in Ocean Grove.  You entered the roundabout driving on the incorrect side of the roadway at high speed, and your vehicle clipped the vehicle traveling in the opposite direction, forcing the driver to swerve hard to avoid a major collision with your vehicle.  You failed to stop and sped away at a fast rate of speed, in a northerly direction along Grubb Road.

Summary Charge, failing to stop at the scene of a motor vehicle collision, where property was damaged.

6The driver of the other vehicle decided to attempt to catch up with you and identify the numberplate on the car you were driving.  As he did so, your vehicle was observed to swerve onto the incorrect side of the road several times.  You continued to drive fast.  The deceased was driving her vehicle properly and within the speed limit in a southerly direction along Grubb Road.  The vehicle you were driving and her vehicle were thus heading towards each other.  Near the intersection with Cerberus Road, your vehicle crossed a raised concrete centre median strip, or island, onto the wrong side of the road and directly into the path of a vehicle being driven by the deceased.  She applied her brakes, slowing to about 30 kilometres per hour, but your car struck her vehicle head on, at an estimated speed at impact of 123 to 126 kilometres per hour.  Sadly, the victim suffered multiple injuries and died a short time later, at the scene of the collision.

7You were also injured and once extricated from the damaged vehicle, you were airlifted to the Royal Melbourne Hospital.  I will return to your injuries later.  A blood sample taken from you showed that you had a blood alcohol concentration of 0.124 per cent.  It also showed the presence of cannabis.  A toxicologist, Morris Odell, has opined that at the time of the collision, your blood alcohol content was 0.151 per cent, more than three times the legal limit and you were incapable of properly controlling your vehicle.  At the time of the collision, you did not hold a licence to drive, only a learner's permit.

8The collision was not caused by any defect in either vehicle, nor was it caused by any design or construction fault in the roadway.  It was caused by your grossly negligent driving, both in the manner in which you drove your vehicle at high speed, in an 80 kilometres per hour zone, the speed zone, on the incorrect side of the road, with a high blood alcohol content.  Your moral culpability for this offending is high.  It is a very serious example of culpable driving and your counsel did not suggest otherwise.  I will return to your mental health later.  You have been diagnosed as being autistic as a young man and you have in the past, engaged in acts of self-harm.  Your bizarre behaviour before setting off, may have at first given rise to a suggestion that you are intent on self-harm, at the time you were driving the motor vehicle in the way that you did.

9If that was the case, you behaved extremely selfishly.  As a result of your injuries in the collision, you have no recollection of the collision and the events that preceded it.  It was not submitted on your behalf that your culpability for this collision should be regarded as being diminished because of your mental state.  There is simply no evidence to support such a finding.  This is a very serious example of this offence.  In all the circumstances here, the sentence for this offence must properly reflect application of the principle of general deterrence, to deter others who might seek to offend in this way and the sentence must properly denounce your offending.  It must also properly take into account your prospects for rehabilitation and the sentence must empower just punishment. 

10Because you are a young offender, who was seriously injured at your own hands, and because you are autistic in a prison setting, the sentence imposed by me must also have proper regard to these matters which I will address in a bit more detail later.  Because of these factors, I have moderated the head sentence I will impose and I will provide for a longer period for you to possibly be released on parole, than I otherwise would have.  The evidence shows that as a result of the collision, you suffered a number of injuries including multiple significant facial fractures, comminuted fractures to both ankles and the compound fracture of the left ankle.  A severe brain injury requiring the insertion of an intracranial pressure monitor.  On admission to the Royal Melbourne Hospital, you had a Glasgow Coma Score of seven, which later fell to as low as five.  You have undergone several operations for repair of your fractures and you have an ongoing permanent limp.

11I admitted into evidence a number of victim impact statements, from the relatives of your victim and her partner.  The victim's mother read her statement to the court.  What comes through from all of the statements is that the life of a decent hardworking woman, with a lovely family, who was admired and loved by all has been lost, impacting on many lives.  The deceased's partner has had his life turned virtually upside down by your actions in causing the collision.  He has been unable to return to work.  He has been diagnosed as suffering a major depressive disorder, for which he has ongoing psychiatric treatment.  Each of the victims has suffered a profound sense of needless loss at your hands.  Pursuant to s.5(2)(d)(aa) of the Act, in sentencing you, I must have regard to the impact which your offending has had on the deceased family, relatives and close friends.  In passing sentence, I have done so.

12You have been in custody since 20 July 2017.  As at the date of your plea, you had served 259 days in pre-sentence detention.  You have now served 363 days pre-sentence detention.  This matter resolved into a plea at committal mention on 9 November 2017.  You were committed to trial on the basis of a straight hand-up brief.  You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty, you have saved the time and cost of a trial and you have saved the victims, or their families from having to give evidence, reliving these events.  Your pleas of guilty have facilitated the administration of justice.  You have pleaded guilty at the earliest available opportunity and you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  In addition, I treat your pleas of guilty as evidence of genuine remorse on your part for your offending, and for the harm and the sorrow that you have brought to bear upon the relatives and friends of the deceased. 

13I now turn to deal with a number of matters concerning your background circumstances.  You are now aged 20 years and you were aged 18, almost 19 at the time of offending.  When you were arraigned, you admitted a prior criminal history in the Children's Court, between 2013, aged 15, and 2015, aged 15.

14They were mostly of a dishonesty kind and the dispositions reflect that your offending on those occasions was of a relatively low level.  In 2016, you were before the Geelong Magistrates' Court for dishonesty offences, damaging property and assaulting a police officer.  On that occasion, you received a non-conviction bond with appropriate conditions.  This offending therefore, represents a very much higher level of offending on your part, resulting as it will in the lengthy term of imprisonment.  Your prior criminal history only has relevance here, because the breaches of the law that you were involved in, correspond in time with upheaval in your life, where you turned to using alcohol and cannabis. 

15Your counsel Mr Richter filed a helpful outline of submissions in writing, which I marked as Exhibit 1 on the plea.  During the course of the plea, I raised the fact that the evidence suggested that you suffered an acquired brain in the collision and there was no evidence to suggest to what extent you may have been effected by this injury.  Subsequently, the hospital discharge summaries were filed with the court and some supplementary written submissions.  I was informed through my associate that it was proposed to have you examined by a neuropsychologist which has now occurred recently.  A neuropsychological report from M Jackson, neuropsychology, was received.

16I received into evidence a letter from your mother, Exhibit 4.  She also suffers from autism.  In her letter, your mother had told me much of your background and the difficulties that you have had in your life.  She has conveyed to me her conversations with you, in which you have expressed profound remorse for your actions and the harm and grief that you have caused the family of the deceased.  Your mother sets out how you have struggled with autism your whole life.  You have struggled to fit in with social, emotional and behavioural boundaries associated with normal people.  You spent most of your formal schooling being bullied by your peers and being punished by teachers for your coping behaviour.  From Year 7, you were home schooled by your mother.  She has said this was unsuccessful, leaving you with gaps in your formal education.  Your mother told me this left you with very low self-image and self-esteem.  She said you attempted to take your own life several times.

17It was soon after you ceased formal schooling, that you started using cannabis and you engaged with other children who were disengaged from school.  You made contact with the criminal justice system and all attempts to assist you failed.  Through all of this, your parents who are divorced, continued to support you.  Before this collision, things appeared to be heading in the right direction with you.  You were working in your father's gardening business, but you and your father had a falling out and you returned to Ocean Grove to live.  Soon after two of your pets died and you are said to have been inconsolable.  You appeared to have plunged back into your old coping behaviours, hanging out with the wrong people, smoking cannabis and drinking excessively. 

18I received into evidence a letter from Dr Gerald O'Brien, psychiatrist.  That letter was written to Dr David Walden, dated 6 February 2014.  At that time, you were approaching 14 years of age.  Dr O'Brien opined that you were suffering ADHD and probable autism spectrum disorder and generalised anxiety disorder, all coloured by substance abuse.  He recommended you be treated with the drug Dexamphetamine, to manage your ADHD.  It is important I think to set out the background for these opinions, as set out in the letter and I quote from it.

"Alex presents with a lifetime history of difficulties.  Most prominent being behavioural problems that have escalated in recent years, including aggression, explosive outburst and violence, substance abuse and involvement with the law.  These behaviours tend to fluctuate considerably, but at the time of writing, Alex again appears to be substance abusing heavily, along with the usual accompanying behaviours, such as stealing and an escalation in lying.

Alex has longstanding difficulties with concentration, organisation and impulsivity, which led to what I believe is an accurate diagnosis of ADHD some years ago.  Unfortunately, he appears to have responded poorly to Ritalin and it would seem no further medications have been tried.  There are many features in Alex's history suggestive of ASD.  When younger, he used to walk on his toes and flap and is reported to have been an obsessional tapper.  He was and remains highly resistant to change and is extremely obsessional about many aspects of his life.

He appears to have little concept of the impact of his behaviour on others, but maintains a strong sense of justice when it comes to himself.  However, there are times when he does appear sensitive to the needs of others, although this is limited.  He has considerable difficulty with peer relationships.  The exact cause of this is unclear.  He clearly wishes friends, but perhaps pushes them away by his erratic behaviour.  At the same time, he does appear to use them more than care for them. 

Alex has longstanding anxiety difficulties, including sleep problems, overthinking and over worrying, being edgy and irritable, along with the obsessional behaviour mentioned previously.  Within all this, there are suggestions that Alex is above average intelligence and this is likely to be a factor contributing to any resilience.  Alex's history includes considerable difficulties in his relationship with his parents, including his father, reportedly having poorly controlled bipolar disorder and his mother having ADHD and previous substance abuse.  In more recent years, his family system appear to have become considerably more stable and supportive.  Although this does not appear to have significantly affected Alex's behaviours.

There is a strong family history of psychiatric difficulties, including mood disorders, ADHD and substance abuse beyond that already mentioned.  It is my assessment that Alex has the diagnosis of ADHD, probably autism spectrum disorder and generalised anxiety disorder.  His presentation is currently being coloured by his substance abuse". 

19I also received into evidence a psychiatric report from Dr Adam Deacon, dated 13 March 2018.  He interviewed you in prison via video link.  He said inter alia:

"His speech lacked normal prosody.  He did not present as obviously cognitive impaired, but he reported short term memory problems, secondary to a mild brain injury sustained in the accident relating to the offence". 

20You told Dr Deacon that your mother suffered from ADHD and that your father had been diagnosed with bipolar effective disorder.  You also told him you had consistently smoked cannabis since age 11, until your arrest.  You smoked up to 20 grams per day and developed a marked dependency and you had experimented with a range of other illicit drugs, including methylamphetamine, which you said you had used from ages 14 to 15.  You said you had regularly consumed alcohol, about twelve beers per day and that you regularly consumed alcohol all day, on weekends after waking.  You also expressed remorse for your conduct to Dr Deacon.  You told him you were coping reasonably well in custody, where you were prescribed and use Venlafaxine.  Dr Deacon thought you were above average intelligence and that you have suffered from short term memory problems, secondary to a mild brain injury sustained in the collision.

21He said the prisoners with autism spectrum disorder and anxiety, invariably experienced prison with greater difficulty, than prisoners without mental disorders.  He thought you were currently receiving appropriate mental health support and treatment.  Mr Jackson saw you in prison on 20 June 2018 and he has prepared a comprehensive report, too long to deal with in full here. 

22He had available to him a number of medical reports in relation to you, including the Epworth admission notes, which detailed your brain injury and a report from Dr Adam McKay, a clinical neuropsychologist, dated 15 June 2017.  That report referred to an assessment of you at that time, relating to your brain injury.  Dr Deacon records as follows:

"On formal assessment, there was severe reduction in speed of thinking and attentional switching.  Mild to moderate deficits in learning and memory, basic attention and executive functions (cognitive flexibility, error monitoring, planning and organisation).  He had relative strengths in working memory, inhibitory regulation, non-verbal problem solving and visuospatial functioning.  The results of the assessment were consistent with having sustained a severe traumatic brain injury, improvement over the following 12 to 24 months was expected.  At that point in time, he would be capable of many functional routine tasks, but would have limited ability to solve and complete novel task".

23When you saw Mr Jackson, you were still walking with a limp due to your leg injury and further surgery was then contemplated.  You were taking antibiotics for infection following the recent surgery.  Further medical material filed today, Exhibit 9, reveals the full extent of your ankle injury, which after several bouts of surgery, has now been fully fused, with one leg being shorter than the other.

24You told Mr Jackson your reading is slower after the collision, because you have to concentrate on every word.  You said your memory was a lot better, but the problems with short term memory remained.  You reported some depression and anxiety.  Prior to recent surgery, you were working in the prison garden, and now working putting nuts and bolts together and you have undertaken some courses including alcohol and a healthy lifestyle course.  As well as antibiotics, you are prescribed Effexor, 225 milligrams per day.

25Mr Jackson carried out a number of tests designed to give an appraisal of your cognitive functioning.  Having noted that you suffered a severe brain injury in the collision, and compared his test results with those carried out in May 2017, he said inter alia:

"The results of the current assessment clearly indicate that Mr Sinclair now has only minor impairments in process speed, some aspects of working memory (immediate memory span and mental arithmetic), and some verbal executive skills, (verbal abstract reasoning).  He also has moderate impairments, (borderline range), in multiple task processing and category fluency.  All other cognitive skills are intact. 

These results indicate that he has made an amazing recovery from what was clearly a severe traumatic brain injury, (based on Glasgow Coma Score, length of post-traumatic amnesia and brain scans).  The impairments that he is currently left with are consistent with having sustained some focal injury, in the left hemisphere of the brain, as well as some slowing in attention, which are typical of traumatic brain injury". 

26Mr Jackson agreed with Mr Deacon that the biggest impact on your ability to managing custody would be your longstanding anxiety and autism spectrum disorder personality traits.  Your lack of social skills and ability to see things from the other's point of view will likely put you at risk of not understanding or appreciating social interactions in a prison environment.  He thought you need regular monitoring by a psychiatric nurse.

27I also received into evidence, on your behalf, a number of letters.  Your sister Zoe has written a letter in which she too speaks of your remorse, Exhibit 5.  As does a family friend, Rebecca Bell, Exhibit 6.  Your maternal grandmother in a letter, Exhibit 8, and your step-father Exhibit 7, have echoed what your mother has said about the difficulties autism has caused you as a young man growing up.  In passing sentence, I have taken all of this evidence into account.

28Mr Richter, whilst acknowledging the seriousness of your offending, and recognising that you will have to be sentenced to a term of imprisonment, asked that I fix a non-parole period that enables you a long term on parole.  He relied upon a number of matters in mitigation.  Your early plea of guilty.  Your genuine remorse and your insight into the effect of your offending.  Your mental health, particularly your autism spectrum disorder.  Your prospects for rehabilitation which he submitted were reasonable.  Your youth.  You are to be sentenced as a young offender.  Your injuries, which will serve to punish you for the rest of your life and which will make your time in prison harder than for others.

29In passing sentence, I have taken all of these matters into account.  I think you are genuinely remorseful for your actions and I accept that your prospects for rehabilitation are reasonable, provided you receive proper treatment whilst in prison, for your drugs and your alcohol problem.  I accept that your injuries have meant that you have to some extent been punished by your own actions.  I accept that your time in prison will be somewhat harder, because of your short term memory problems, because of your brain injury and also because you are autistic, making it more difficult for you socially in a prison environment.

30I appreciate you are to be sentenced as a young offender for a very serious crime, resulting in loss of life.  For all of these reasons, I have reduced the head sentence I would have otherwise set and I have fixed what I regard as an appropriate non-parole period.  I have not provided for any cumulation of the sentences, having taken the view that each of the charges were part of one terrible episode of conduct by you.  Would you please stand Mr Sinclair.

31On Charge 1, intentionally causing injury, you are convicted and sentenced to a term of imprisonment of one month.  On Charge 2, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of six months.  On Charge 3, culpable driving, you are convicted and sentenced to a term of imprisonment of eight years.  On the summary charge, failing to stop at the scene of a motor vehicle collision, where property was damaged, you are convicted and sentenced to a term of imprisonment of seven days.  I direct that you serve a minimum term of five years before you are eligible for consideration to be released on parole. I declare that there has been 363 days pre-sentence detention and that 363 days be reckoned as having been already served under the sentence as passed this day, and be entered into the records of the court and be deducted administratively.

32Pursuant to s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of ten years imprisonment and I would have fixed a minimum term of seven years.

33The offence of culpable driving is a serious motor vehicle offence within s.87P of the Sentencing Act 1991. Upon conviction for this offence, a court must cancel any licence to drive a motor vehicle that you may have and disqualify you from obtaining a licence for a minimum term of two years.

34Having regard to the gravity of your offending, any licence that you may hold to drive a motor vehicle is cancelled.  You are disqualified from obtaining a driving licence for a period of eight years from 19 March 2017.  The prosecution sought the making of a forensic sample order and that application was not opposed by your counsel, having regard to the serious nature of your offending and because I consider it to be in the interests of justice to do so, I have made an order that a forensic sample be taken from your body and the reasons for my doing so are set out in the order itself.

35Having made that order, you need to understand that whilst in prison, you may be approached by a member of the police force and asked to furnish a forensic sample from your body, in the form of a swab taken from your mouth.  If you refuse to furnish such a sample, the police member may use reasonable force to take the sample.  Are there any questions arising out of that?

36MR RICHTER:  No, Your Honour.

37MS CRVENKOVIC:  No, Your Honour.

38HIS HONOUR:  Very well, would you remove Mr Sinclair please. 

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