Director of Public Prosecutions v Smith
[2012] VCC 1233
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES MICHAEL SMITH |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Smith | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1233 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Percedu | O.P.P |
| For the Accused | Ms B. Franjic | Balmer & Associates |
HIS HONOUR:
1 James Michael Smith, you have pleaded guilty to the following offences:
(i) dangerous driving causing serious injury contrary to s.319(1A) of the Crimes Act 1958, the maximum penalty for that offence is five years imprisonment;
(ii) failing to stop after an accident contrary to s.61(1)(a) of the Road Safety Act 1986, the maximum penalty for that offence is 10 years imprisonment;
(iii) failing to render assistance after an accident contrary to s.61(1)(b) of the Road Safety Act 1986, the maximum penalty for that offence is 10 years imprisonment.
2 You have also pleaded guilty to two related summary offences of dealing with property being the proceeds of crime contrary to s.195 of the Crimes Act, the maximum penalty for that offence is two years imprisonment; and one charge of failing to stop a vehicle when directed to do so by a police officer contrary to s.64A of the Road Safety Act 1986 and the maximum penalty for that offence, because it is a subsequent offence in this case, is a fine of 120 penalty units or imprisonment for 12 months or both.
3 I am also required to disqualify you from retaining a driver's licence for a period of 12 months.
4 You pleaded guilty to the principal charges before the court at committal and I have taken your early plea of guilty into account in your favour in mitigation of sentence.
5 You have admitted an extensive criminal history which features numerous convictions for driving offences including three prior convictions for driving in a manner dangerous.
6 Whilst you have not offended since 2008, your criminal history is relevant to the sentence that I am required to impose in this instance and specific deterrence is an important sentencing consideration in your case.
7 A summary of prosecution opening was read into evidence and tendered and your offending may be summarised as follows:
At approximately 8.20 p.m. on 3 September 2011 you were driving a hired Nissan Dualis in Tilburn Road, Deer Park. It was dark, but the road and driving conditions were good. Tilburn Road is a two lane carriageway with a speed limit of 80 kilometres per hour.
8 You were returning the vehicle to the hire company as it was overdue and you were then intending to leave Victoria for Western Australia the following day. At that time you had ongoing personal problems and were addicted to methylamphetamine and had decided to leave Victoria for these reasons.
9 Travelling behind you in another vehicle was your ex partner and mother of your child, Kayla Knight. You were driving your vehicle very close to other vehicles travelling in the same direction and, in doing so, you drove your vehicle up to a vehicle being driven by Florian Zachilari at a fast rate of speed and immediately pulled out to overtake his vehicle.
10 A vehicle being driven by Shareef Chawk was travelling in the opposite direction and you immediately collided head on with it. The impact between the two vehicles was in Mr Chawk's lane and was severe, causing extensive damage to both vehicles. Mr Chawk suffered multiply serious injuries including a traumatic brain injury and multiple fractures. He required hospitalisation in the Intensive Care Unit at the Alfred Hospital for three weeks as a result of his injuries and a further total period of hospitalisation of three months. Self-evidently, he sustained severe, multi trauma injuries as a result of the collision with your vehicle.
11 Following the collision you left your vehicle at the scene and Knight drove you away. You did not assist the critically injured Mr Chawk in any way before you left.
12 Later that night you sought medical treatment for the relatively minor injuries that you had suffered and falsely told the medical practitioner that you had fallen from a roof. You spent the night in a motel and intended to travel to Perth as planned, but were apprehended the following day by police at your home in Preston. At the time of your apprehension by the investigating police you failed to stop your vehicle as directed by them.
13 A search of the Nissan Dualis that you were driving in the collision revealed a number of items of tools belonging to a Mr Robert Critelli and items of personal identification belonging to Mr Paul Duong. These items are relied upon by the prosecution in support of the two related summary charges of dealing with the proceeds of crime that are also before the court.
14 In my opinion your offending may properly be described as a serious example of the offence of driving in a manner dangerous causing serious injury. Whilst you have pleaded guilty to the charge of failing to immediately stop your motor vehicle at the scene of an accident, the fact is your vehicle did come to an immediate stop. You alighted from it and you must have been aware that you had been involved in a very serious collision.
15 Furthermore you ought to have been aware that in the circumstances of the collision Mr Chawk had suffered serious injury, so much is clear from your plea of guilty to the charge of failing to render assistance. You had a clear opportunity to assist the critically injured Mr Chawk, but you did not do so and Ms Knight drove you from the scene after other persons stopped to render assistance to him. I also regard your offending in this respect as a serious example of the offence of failing to render assistance after a motor vehicle accident.
16 Any sentence that I impose for your offending must be calculated to deter others from offending in the way that you have and you must also be punished for your offending.
17 In my opinion your moral culpability in the context of the offences before the court may properly be described as high.
18 I have received in evidence victim impact statements of Mr Chawk and his mother. Your offending has had a devastating physical and psychological impact upon him and his family and I have taken the victim impact statements into account as I am required to do by operation of the Sentencing Act 1991.
19 You were born on 30 May 1986 and are now aged 26 years. You have one older brother. Your parents separated when you were 14 and it would appear that following the breakdown of your family unit you ceased attending school and began using illegal drugs of dependence and some alcohol.
20 I have received in evidence a report of Ms Carla Lechner, a clinical and forensic psychologist, regarding your background and personal development. In her opinion the breakdown of your family unit disrupted your development and is, in all probability, the root cause of your substance abuse and consequent offending. I accept that you require ongoing treatment and support for substance addiction and associated depression.
21 Despite your difficulties you have a sound work history and I accept that whilst living with Ms Knight and your child you did not offend and were able to maintain stable employment and a lifestyle between 2007 and 2011.
22 You lost your job in April 2011 and your relationship with Ms Knight ended in May 2011. Following this your drug addiction re-emerged and, as I have observed, at the time of your offending, you were addicted to methylamphetamine.
23 Having regard to your criminal history and the personal factors that I have referred to, my assessment of your prospects of rehabilitation may only be described as guarded. In my opinion you will benefit from a significant period of supervision on parole.
24 In the result the sentence of the court is as follows:
On the charge of dangerous driving causing serious injury you are convicted and sentenced to be in prison for two years.
On the charge of failing to stop after a motor vehicle accident you are convicted and sentenced to be in prison for six months.
On the charge of failing to render assistance after a motor vehicle accident you are convicted and sentenced to be imprisoned for 18 months.
On the charge of failing to stop as directed by a police officer you are convicted and sentenced to be in prison for one month.
On the charge of possession of the proceeds of crime, in relation to the property of Mr Critelli, you are convicted and sentenced to be in prison for three months.
On the charge of possession of the proceeds of crime concerning the property of Paul Duong you are convicted and sentenced to be in prison for three months.
25 Charge 1, the charge of dangerous driving causing serious injury, is the base sentence. I order that 12 months of the sentence on failing to render assistance after a motor vehicle accident and the sentence in relation to the possession of the proceeds of crime belonging to Mr Critelli be served cumulatively on each other and cumulatively on the base sentence. All other sentences will be served concurrently.
26 This makes for a total effective term of imprisonment of three years and three months. I order that you serve 18 months imprisonment before becoming eligible for release on parole.
27 I declare that you have served 297 days by way of pre-sentence detention, not including today.
28 All driver's licences held by you are cancelled and you are disqualified from retaining a driver's licence in the state of Victoria for a period of 12 months.
29 But for your plea of guilty I would have sentenced you to a term of imprisonment of four years and I would have fixed a non-parole period of two and a half years.
30 I have made the retention of the forensic sample order and I have also made the compensation order sought in your case.
31 Anything further?
32 PROSECUTOR: No, Your Honour.
33 COUNSEL: No, Your Honour.
34 HIS HONOUR: Thank you.
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