Director of Public Prosecutions v Smith
[2016] VCC 1894
•25 November 2016
IN THE COUNTY COURT OF VICTORIA
AT SHEPPARTON
CRIMINAL DIVISION
Case No. CR-16-01584
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
JUSTIN RICHARD SMITH Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
WHERE HELD: Shepparton
DATE OF HEARING: 25 November 2016
DATE OF SENTENCE: 25 November 2016
CASE MAY BE CITED AS: DPP v Smith
MEDIUM NEUTRAL CITATION: [2016] VCC 1894
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – negligently causing serious injury – driving a motor vehicle – driver affected by methylamphetamine – victim suffers from permanent injuries – impact on family – plea of guilty – high level negligence – prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Harrison v The Queen [2015] VSCA 349; Director of Public Prosecutions v DJK [2003] VSCA 109; R v Shields [1981] VR 717; Nydam v The Queen [1997] VR 430.
Sentence: 6 years’ imprisonment with a 4 year non-parole period
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APPEARANCES: Counsel Solicitors
For the Crown Mr K Doyle Office of Public Prosecutions
For the Defendant Mr L Slater Luke Slater Lawyers
HIS HONOUR:
Justin Richard Smith, you have pleaded guilty to one count of negligently causing serious injury, by driving a motor vehicle. The victim in this matter is Mark Desmond Cruickshanks. The offence occurred on 3 May 2016 at Pine Lodge in Victoria.
Circumstances of the Offending
The circumstances of the offending were set out in the Crown opening which was read in open court this morning. I incorporate it by reference and direct that it remain on the file. I will not repeat it in great detail.
In short, you were involved in a head on collision with a vehicle being driven by Mr Cruickshanks on the Midland Highway, on open road in a 100 kilometre per hour zone – you were driving a Jeep. Three separate witnesses testify that your driving was erratic prior to the accident with the observations of one witness necessitating that he called “000”. This witness observed that another vehicle sought to alert you to your erratic driving by flashing their headlights.
One witness described you as coming up behind him very quickly and overtaking him erratically. He also observed your vehicle drift off to the left hand side of the road and then correct. Mr Guppy, a witness, said he saw you overtake two cars at a fast rate of speed and he thought it was “dangerous”.
Another witness said your vehicle appeared to just pull onto the wrong side of the road in front of the Toyota “Troopie” being driven by Mr Cruickshanks. A reconstruction after the accident indicated that the estimated speed of your vehicle was 115 kilometres per hour. There was no evidence of any braking and you were 1.67 metres onto the wrong side of the road. Your blood was tested after the accident and was found to have a methylamphetamine and amphetamine content at a concentration of 0.27 milligrams per litre.
Victim Impact Statements
It is not disputed that this accident has had a devastating effect on Mr Cruickshanks personally, and on Mr Cruickshanks’ family and their families. The physical and psychological impact of the collision was set out in a report from Dr Tuminello of the Alfred Hospital.[1] He indicates that Mr Cruickshanks sustained multiple physical injuries and a severe traumatic brain injury. He required four orthopaedic procedures, two neurosurgical procedures, two plastic surgical procedures, and various radiological and respiratory procedures. There were complications from these procedures and he spent five weeks in intensive care at the Alfred Hospital.
[1] Exhibit C on the plea.
He was then transferred to the acquired brain injury rehabilitation unit at Caulfield Hospital where he remains receiving daily treatment. The report indicates that he has been left with a loss of vision in his right eye, loss of movement on the right side of his body, he has severe cognitive deficits with prominent loss of short term memory, impaired planning, impaired visio-spatial skills and difficulty with everyday decision making. These symptoms require regular medications, regular psychological input and intensive physical, function and cognitive rehabilitation.
The report indicates that he is soon to be discharged to supported accommodation in Shepparton:
"He is likely to need significant assistance with his activities of daily living in the future and is unlikely ever to return home to independent living. Mark is content and able to walk with supervision without a gait aid, however, Mark will be unable to return to his previous occupation as a cook and will be unable to return to driving. He will need heavy involvement with Community Services and family when he is back in the community. There may be some minor natural recovery over the next 12 to 18 months, however, it is unlikely this will be enough to make a significant difference in his functional status."
Two powerful victim impact statements were read to the court by the prosecutor. The first is from Mr Cruickshanks' son, Beau.[2] I have re-read that statement. In that statement he indicates the devastating impact that the accident has had on him, his spouse, his family, as well as on his father. It caused major disruption to the family at a time when he himself was having his own medical problems. It has caused major financial problems and he has had to take on responsibility for his father's affairs. The criminal justice system has taken its toll on him.
[2] Exhibit E on the plea.
10.I want to incorporate a few passages of Mr Beau Cruickshanks’ victim impact statement. He indicates:
"When I went into the room where dad was, my first sight was he was all bloody, his whole face was smashed up, all open and bloody. There were no closed wounds."
…
"I understand medically why Dad doesn't recognise Joanne,[3] the girls’ and me, but it's difficult to try and explain that to an eight and ten year old, why their pop can't remember who they are."
[3] Joanne is the spouse of Mr Beau Cruickshanks.
11.Beau continues to state that “Prue and I are now responsible for all of Dad’s affairs”. He continues:
"I found it difficult to sleep after I had to identify Dad. Those images were there all the time. It was really hard not knowing if Dad would be there in the morning or not and as time progressed, this is still something I worry about. Though, if Dad did pass away overnight, it would be the kindest thing for him. Life is now not worth living and he would hate how his life has turned out."
…
"It pissed me off that the accident was the offender's fault and I was really angry initially but I can't change those stupid choices the offender made. Court has made another aspect of Dad's accident that is something else to deal with. I am just hoping the justice system takes care of the offender. We are the ones who have suffered. His family hasn't gone through what we have. The offender hasn't had to live with what he has done."
12.There is also a victim impact statement from Prue Cruickshanks.[4] She is devastated by the impact of the accident on her father and it has had a major impact on her, her spouse and her children. The impact is both financial and psychological. It has also impacted on the children and their perception and enjoyment of their grandfather and the family dynamics. She has been devastated by seeing her father in the state he is compared with his previous position. She goes on about the difficulties she faces looking after him:
[4] Exhibit F on the plea.
"I'm a mum and looking after Dad is something like looking after a child. I do not have the training, skills or experience to look after someone with traumatic brain injury and I can't walk away from all this. I can come home. Dad has no choice but to endure this hell. He is forced to deal with the consequences of someone else's choice through absolutely no fault of his own."
…
"I feel the collision and its irreversible consequences for our family was no accident. The offender made the choice to take drugs. He made the choice to get behind the wheel of a car. He made the choice to speed. He made the choice to drive recklessly."
13.She concludes her statement by stating:
"My brother and I have just begun the process of explaining to Dad that this the pick of a bad bunch, the accommodation he's in and the best place for him right now and we will have to explain this many, many times again. Dad cannot understand why he just can't go back home. Making life changing decisions for someone without their input is extremely disconcerting. Dad is possibly at the lowest stages of his life right now. He is blind in one eye and cannot feel one side of his face. His face and a good part of his body is now full of metal."
14.I have taken into account the impact of the victim impact statements and the impact on the victims and their families and indeed Mr Cruickshanks himself. As I indicated earlier, there is nothing I can do to restore the position before this accident, but the impact must be acknowledged and I do take it into account in the sentencing process as best I can as part of what I described before as social rehabilitation.
15.In DJK,[5] Vincent JA said:
[5] Director of Public Prosecutions v DJK [2003] VSCA 109.
“This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.”[6]
[6] Director of Public Prosecutions v DJK [2003] VSCA 109, [16] per Vincent JA.
Seriousness of the Offence
16.The offence of negligent driving causing serious injury was set out in a recent case of Harrison[7] where the court said:
[7] Harrison v The Queen [2015] VSCA 349.
"The offence of negligently causing serious injury requires an act or omission which involves such a great falling short of the standard of care which a reasonable person would have exercised in such a high degree of risk that serious injury would follow that the conduct merits punishment under the criminal law."[8]
[8] Harrison v The Queen [2015] VSCA 349, [42] citing R v Shields [1981] VR 717, 723; Nydam v The Queen [1997] VR 430, 444.
17.Your dangerous driving leading up to the collision was put by the prosecution as your negligent conduct. When the collision occurred, you were on the wrong side of the road, travelling in excess of the speed limit, and you did not attempt to brake or take any other evasive action. Further, you were driving whilst under the influence of methylamphetamine.
18.In a medical report from Dr Gaya,[9] he opines that drivers of motor vehicles who are intoxicated with methylamphetamine and amphetamine:
[9] Exhibit D on the plea.
"are more likely to drive dangerously, speed and take risks compared to the non-drug-affected state. Typical effects include speeding, inappropriate lane changes, erratic driving, rapid and non-stop speech, disorientation, agitation, irrational and violent behaviour and cognitive impairment."
19.He found that the methylamphetamine level in your blood was similar to the levels found in large numbers of people driving under the influence of drugs. It was impossible to determine the dose or the timing of the drug use. He indicated that, as a general rule, like alcohol, the higher the level, the more likely it is that the person is impaired. He concluded that:
"a level of methylamphetamine of 0.27 milligrams per litre suggests that Mr Smith may have been affected by the effects of methylamphetamine. The exact nature of the impairment is hard to know but his witnessed driving before the collision strongly suggests that he would have been highly stimulated by the effects of methylamphetamine, thus rendering Mr Smith incapable of having proper control of a motor vehicle."
20.The combination of your drug affected state, the speed and your actual driving behaviour puts the level of your culpability in this case at a high level. You cannot but have been aware of the impact of your prior ingestion of methylamphetamine on your ability to control your vehicle. The witnesses clearly indicate that you were driving in an erratic and dangerous manner before the actual collision. You did not take any evasive action.
21.On the plea, your counsel submitted from instructions that you may have gone to sleep as a result of fatigue. In the record of interview you gave a "no comment" answer to the record of interview about drug use. Your explanation from your counsel is that you had used the drug the previous Sunday. Your erratic behaviour prior to this accident supports the conclusion that you were still under the influence of methylamphetamine at the time of the collision. Your conduct was at the highest level of negligence.
22.In assessing the overall seriousness of the offence, it is necessary to combine the degree to which your conduct fell below the standards required of road users and then combine that with the impact of your offending. On both criteria, your conduct is to be placed within the higher or worst category of offences. The degree of negligence was high and the impact on Mr Cruickshanks and his family was also substantial with indefinite consequences on the medical evidence.
23.The impact on society by your offending is also significant, the medical costs, the disruption to the Cruickshanks family and the overall continued medical consequences go to increase the seriousness of the offending. This is a case where the harm caused by your offending is great and this goes to the gravity of your culpability.
Prior Convictions
24.You have admitted a traffic infringement notice for speeding when you were aged 21, when you were put off the road for one month for exceeding a speed limit by more than 30 km/h. You have had heavy vehicle licence for ten years and your own licence for nearly 15 years. I regard the prior traffic infringement notice as having only minimal relevance in sentencing you.
Matters in Mitigation
25.Your counsel put a comprehensive plea on your behalf and a significant number of matters in mitigation to take into account. First you pleaded guilty at the earliest opportunity. This is significant as it has obviated the need for a contested committal and minimised the trauma associated with the criminal justice system to the victim and his family.
26.You have accepted responsibility for your conduct at an early time when the charged were laid. Further, I accept that your plea of guilty is evidence of remorse. In addition, I have taken into account a letter that you have written indicating that you are remorseful. Your father also indicates your remorse in his statement.
Personal Circumstances
27.You are aged 31 and were brought up in the Benalla area. Your parents were in court, along with your brother and sister. Your brother holds a senior position in education and your sister is a trauma nurse. You have strong family support. It was indicated on the plea that there was a lot of anger associated with your conduct in your own family as a result of your betrayal of family values manifested by your conduct in this offending.
28.In addition, your father in his note has indicated strong empathy on your behalf for Mr Cruickshanks and the Cruickshanks’ family. This is mirrored in your own statement. You were educated to Year 11 and then left school and worked in the family tree lopping business. You have been a successful member of a number of sporting clubs. You have a three and a half year old daughter - you are, however, separated from the mother of your daughter. You had contact with the daughter prior to this offending, but the mother has cut off your contact with your daughter since this offending.
29.Your counsel tendered a number of occupational certificates indicating that you are well qualified in the horticultural field with a number of TAFE level certificates – this supports your strong work ethic. This offending has had a significant impact on you. You suffered an ankle injury in the accident that required two screws. This has not stabilised and will restrict your future sporting activity.
30.As I have indicated, your partner has cut off access from your child. Your father terminated you from the business so you have been unemployed since that time. In your favour, you have also taken action to address your problems with drug use and I note you have been undertaking counselling. Therefore, you have some insight into the underlying cause of your offending here and that is to your credit.
Sentencing Submissions
31.This offence carries a ten year maximum sentence. That must stand as a yardstick for determining the appropriate sentence. Current sentencing practices for this offence have been recently considered by the Court of Appeal in the case of Harrison. The Court of Appeal was critical of sentencing judges for failing to increase sentences following the legislative increase in the maximum penalty from five years to ten years imprisonment.
32.In Harrison, the court reviewed current sentencing practices and prior sentences and determined that current sentencing practices should not bind a sentence in court. In particular, sentences of four years should not be seen as a ceiling for offences of the worst category of cases.
33.The court opined that sentences in the upper range of seriousness must be increased. The court in that case was considering two particular cases and considered that sentences of six or seven years’ imprisonment would have been well within the range, given the seriousness of the offending in those two cases. I do not find it of assistance to consider in detail the two cases involved, as there are differences in the age of each of the offenders from you, the antecedents and the seriousness of the injuries. No two cases will be exactly comparable with one another, particularly in the high level of seriousness with which we are dealing in this case.
34.The court has discouraged detailed analysis of the injuries involved in cases in the worst category. The most salient consideration in this case is the multiple bases upon which your offending fell below the level of driving required and further the very serious injuries inflicted on Mr Cruickshanks and the wider impact on his family.
35.In sentencing you, I must have regard to the guidance provided by the comments of the Court of Appeal in Harrison, which indicates that in high level cases, sentences of six or seven years’ imprisonment would not be outside an appropriate range.
Purposes of Sentencing
36.The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into society.
37.In this case, general deterrence and denunciation are very important sentencing considerations. General deterrence is relevant because methylamphetamine is widely available in the community and is causing untold harm. This is an example of the harm that has resulted from the use of that illegal drug. The sentence of the court must send a signal to all those minded to use this illegal drug that heavy sentences will be imposed when offences are committed by those intoxicated by that drug.
38.Your conduct in driving under the influence of methylamphetamine on this occasion is to be utterly condemned. A signal has to be sent to all road users that when they get into their vehicles, they must do so when they are not under the influence of illegal drugs. The sentence of the court has to denounce your conduct. It was absolutely unacceptable and has had devastating consequences for Mr Cruickshanks and his family. Those consequences are lifelong and the ripple effects are as evidenced from the victim impact statements substantial.
39.In the course of the plea hearing, I referred to social rehabilitation as set out above. The sentence of the court has to try to achieve social rehabilitation. Specific deterrence has some salience in this case. Obviously, your drug use should be cured by a period of incarceration, but specific deterrence does remain significant. Rehabilitation is also an important consideration.
40.I regard your prospects of rehabilitation as good, if not very good, due to your strong family support and your good prior work ethic and your lack of prior convictions. You are entitled to the benefit of your prior good character. This does, however, this carry lesser weight given the seriousness of the offending and the impact of your conduct.
Sentence
41.Weighing all the sentencing matters and all the matters put by your counsel in his comprehensive submission, I sentence you to a term of imprisonment of six years for this offence.
42.I declare that you will be eligible for parole after serving four years.
43.I declare, pursuant to section 6AAA of the Sentencing Act 1991 (Vic), that had you not pleaded guilty, I would have imposed a sentence of eight years' imprisonment with a minimum term of six years' imprisonment.
44.The prosecution have sought a forensic sample order, which is a mouth swab. Due to the seriousness of the offending, I will order that sample and I must advise you that the authorities have the right to use reasonable force to obtain that sample.
45.Consequent on this conviction, I am required to cancel your licences. I cancel all your licences and disqualify you from driving for a period of six years.
46.I want to thank the learned prosecutor, Mr Doyle and your counsel, Mr Slater for their assistance. I want to thank members of the family for their attendance in court.
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