Director of Public Prosecutions v Spence

[2019] VCC 1410

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01226

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY SPENCE

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2019
DATE OF SENTENCE:	30 August 2019
CASE MAY BE CITED AS:	DPP v Spence
MEDIUM NEUTRAL CITATION:	[2019] VCC 1410

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	Office of Public Prosecutions
For the Accused	Ms N. Karapanagiotidis	Stary Norton Halphen

HIS HONOUR:

1Timothy Spence, you have pleaded guilty to two charges of negligently cause serious injury.  This offence carries the maximum penalty of ten years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contain in Exhibit A revised summary of prosecution opening for plea hearing.

2That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

3On 18 November 2017 at Robinvale you were driving a motor vehicle at an excessive speed whilst affected by alcohol.  You lost control of the motor vehicle at a sharp bend in the road and the motor vehicle left the road and collided with a tree.

4The front seat passenger, Jamie Farnsworth, and rear seat passenger, Shane Smythe, sustained serious injuries in the collision.  You were also injured but to a lesser extent.  The background to this offending is as follows.

5You had travelled from your home in Queensland to Robinvale in mid-November 2017 to attend your uncle's funeral.  On 18 November 2017 you met your cousin, Jamie Farnsworth, at about 11.30 am.  You went fishing with him.  You bought a carton (slab) of VB beers and you had consumed approximately two to three beers around lunchtime.

6You returned to Farnsworth's house at about 2 pm.  You then went to Glover's house.  Glover was a friend of Farnsworth.  You continued drinking at Glover's house.  At about 5 pm you, Farnsworth and Smythe were driven back to Farnsworth's house.  Smythe has provided a different account of the lead up to the collision.  These differences are not important for the purposes of sentencing.

7What is clear is that you had been socialising and drinking for many hours prior to the collision at about 8 pm that evening.  At the time of the collision you were driving your Subaru Liberty motor vehicle.  Farnsworth was a front seat passenger and Smythe was in the rear passenger seat.

8You were driving Smythe back to Glover's house to retrieve Smythe's wallet.  Smythe stated that you were driving erratically.  He said you were, 'Fucking around', deliberately swerving off the road onto the gravel and you were driving, 'Way too fast'.

9At some point Smythe recalled Farnsworth told you to, 'Fucking slow down'.  A young bystander, Veronica Regante, observed your motor vehicle travelling really fast through a corner and the back wheels hit the dirt on the corner.

10You failed to negotiate a bend near the intersection of Malaya and Wau Roads and the motor vehicle skidded and spun across the road and smashed into a tree near 543 Malaya Road.  The impact was between the front passenger side of the motor vehicle and the tree.  Both passengers were on the passenger side of the motor vehicle.

11Farnsworth was rendered unconscious and remained in the motor vehicle.  Smythe and you were able to leave the motor vehicle.  You walked about 150 metres and then collapsed.  At 8.12 pm a bystander called 000 and police attended at 8.18 pm.  At about 8.30 pm paramedics and the CFA arrived.

12Farnsworth was airlifted to Royal Melbourne Hospital, Smythe was taken to Robinvale Hospital for treatment.  He was later transferred to Royal Melbourne Hospital due to the severity of his injuries.  I shall describe in some detail the injuries suffered by Farnsworth and Smythe later in these reasons.

13You were taken to Mildura Base Hospital.  A blood sample was taken from you at 1 am on 19 November 2017.  Dealing with your blood alcohol concentration I quote from paragraphs 24 and 25 of the prosecution opening, '24.  A sample of the accused's blood was taken at 1 am on 19 November 2017 at the Mildura Base Hospital.  This sample was analysed by toxicologist, Alex Kotsos, on 24 November 2017.  The same was "found to contain not less than 0.129 grams of alcohol per 100 millilitres of blood"'.

14'25.  In his opinion regarding the involvement of alcohol in this case Dr Morris Odell opined that 'the total amount of alcohol in Spence's blood at the time of the collision would have been between 0.177 per cent and 0.225 per cent.  If there was some unabsorbed alcohol in Spence's stomach at the time of the collision Dr Odell acknowledged that, 'The actual BAC while driving may have been lower than this range.'

15The unabsorbed amount not being about to contribute to the BAC.  Further
Dr Odell opined that, 'With a BAC in this range Spence's "driving skills would have been adversely affected", and he, "Would have been incapable of having proper control of a motor vehicle"'.

16The police investigation of the circumstances of the collision revealed the following, and once again I will quote from the prosecution opening under the heading 'mechanical and accident reconstruction evidence'.

17'26.  Spence's vehicle was examined for mechanical faults.  The examination determined that the vehicle had no mechanical faults or failures which caused or contributed to the collision'.

18'27.  Detective Sergeant (Doctor) Janelle Meaghan of the Victoria Police Collision Reconstruction and Mechanical Investigation Unit analysed the data relating to the collision and was able to determine the following:

19(i) The accused's vehicle was travelling south on Malaya Road when the driver failed to negotiate a right curve.  The rear of the vehicle commenced to slide out to the left before the driver applied emergency braking which caused the vehicle to skid;

20(ii) The vehicle skidded whilst rotating clockwise before leaving the road and colliding with a tree.  The vehicle skidded for 8.9 metres on the bitumen road surface before leaving the road and continuing to skid for 16 metres on the gravel shoulder;

21(iii) At the point of impact with the tree the vehicle sustained maximum crush of 1.08 metres to the front passenger side;

22(iv) When the Subaru Liberty collided with the tree the vehicle was travelling between 66 and 79 kilometres per hour;

23(v) The critical curved speed (the maximum speed that a curve can be driven without substantial risk of yaw) where the collision occurred was 76 kilometres per hour.    It is therefore likely that the Subaru was travelling in excess of the critical curve speed which caused the rear of the vehicle to slide out to the left.  The driver responded to the initial loss of control by braking and attempted to negotiate the curve at a speed that was too high for the road curvature;

24(iv) Based on the tyre marks at the commencement of skidding the vehicle was travelling at a minimum of 85 kilometres per hour but it is likely that the vehicle slowed before the commencement of the visible tyre marks.  Prior to the loss of control the vehicle would, "Almost certainly have been travelling faster."'

25You were interviewed by police on 21 November 2017.  You gave the following answers to questions about your alcohol consumption and once again I will quote from the prosecution opening.  'Paragraph 21, Spence was discharged from hospital on 21 November 2017 and was conveyed to the Mildura police station for interview.  In relation to his alcohol consumption prior to the collision the accused stated that he, "Would have probably maybe have at most seven VB stubbies and two of the Great Northern", but, "I didn't count them all".

26That he was, "Being a bit more mindful in what I was drinking", and that he monitors his alcohol, "If I think I might have to be driving later".

27That he didn't feel he was, "Over the limit".  He, "May have been on the limit.  I don't think I would have been over.  If I was over I can't imagine it would have been too much".

28That he was, "Pretty confident in saying that I wouldn't be over the limit"'

29At paragraph 22 of the prosecution opening there are a series of quotes from your record of interview dealing with your description of your driving and the circumstances of the collision.  You were charged and remanded in custody on 21 November 2017.

30I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.

31You pleaded guilty at an early stage.  You cooperated with authorities, although you did not initially provide a preliminary breath test at the accident scene.  I accept on all the material before me that you are genuinely remorseful.

32I have been told something of your personal circumstances and these matters are set out in the outline of defence submissions, outline of plea submissions and reports of Carla Ferrari filed on your behalf.  You are 40 years of age, having been born on 14 March 1979.  You were raised in Townsville, Queensland, by your mother and stepfather.

33Your parents separated when you were born.  Your father is indigenous.  During your childhood you were exposed to extensive family violence.  Your stepfather was violent towards your mother and the children, including you.  When you were 12 to 14 years of age you were very unstable and you ran away from home on occasions and moved between the care of your mother and father.

34During this time you were violently raped and assaulted by an older group of men.  At age 14 you moved to your uncle's home.  He provided a stable home environment and helped you complete Year 9 at secondary school.  You left school at the beginning of Year 10 aged 15.

35You worked on various cattle stations in Queensland and the Northern Territory.  You worked for Queensland Main Roads for 12 years.  You ceased this employment in April 2017.  You were unemployed at the time of this accident.  You formed a relationship when you were in your mid-20s and there are two children of that relationship, but that relationship ended in about 2008.

36Your ex-partner and two children lived in Victoria but then moved to Queensland, although your ex-partner removed the children from Queensland without warning in April 2017.  The children now reside in Geelong.  You have a long history of alcohol and drug use, having started using cannabis and drinking alcohol from age ten.

37From age 16 you used other party drugs and as an adult you have intermittently used methylamphetamine.  You have struggled with alcoholism since you were 14 years of age.  You have on occasions addressed these issues, particularly in 2014 and 2016.

38In the months leading up to this offending after your children went missing you were drinking heavily to cope with stress.  You were also under stress as you were receiving threats due to your ex-partner's debts.  Your uncle died shortly prior to the accident.  This was therefore an emotional time for you.

39You have a documented history of self-harming and hospital admissions.  I accept that your background was one of significant disadvantage, abuse and neglect and accordingly I have applied the principles enunciated in Bugmy's case (R v Bugmy [2013] HCA 37). This is particularly relevant to your excessive consumption of alcohol.

40I have sought to sensibly apply the principles enunciated in Bugmy's case having regard to all the circumstances of this case.  Two detailed psychological reports from Carla Ferrari were tendered on your behalf.  It is her opinion that you have suffered from PTSD throughout your life and you have a major depressive disorder and a severe alcohol disorder which is in remission whilst you are in custody.

41She provides support for the application of limbs five and six in Verdins' case.  They are, '(5) The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.  (6) Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.'

42At paragraphs 84 and 85 of her report dated 14 August 2019 she expresses the following opinions.  '84.  Mr Spence is an individual whom has never previously been incarcerated and has spent almost two years on remand whilst awaiting surgery required for injuries he sustained during his offending.  He has suffered extreme victimisation whilst in custody requiring multiple inter-prison transfers for his own protection and for an individual whom already has a pre-existing trauma history, paranoia and persecutory ideation.  This has had a severely detrimental effect on his mental state.  The impact has been so significant that he engaged in self-harm a number of times whilst in custody and also enacted a serious suicide attempt which took place after he had indicated his intention to his family and said his farewells.

43'85.  Per my original report Mr Spence is a primary example of an individual whom would experience custody more adversely than others due to his mental state and the volatile nature of the prison environment'.

44Carla Ferrari also commented that, 'Mr Spence reports that his engagement in treatment is having a positive effect on his ability to manage his symptoms and the daily situations he encounters within the prison environment.  However, this is also assisted by reassurance in a positive relationship with the officers at MAP in comparison to several other prisons he has been held at where he felt disregarded, targeted, victimised and unsupported'.

45Whilst I do apply limbs five and six in Verdins' case I note that at present you are able to engage in treatment in custody and this is having a positive effect on your ability to manage your symptoms.  It is encouraging that there has been such significant improvement in your symptoms of PTSD, depression, anxiety and stress, between Carla Ferrari's first assessment on 1 April 2019 and recent assessment on 14 August 2019.

46I assess your prospects of rehabilitation as being cloudy as much will depend upon your ability to manage your long term abuse of alcohol.  You were injured in the motor vehicle accident.  I have taken into account the nature of your injuries, particularly involving the shoulder, ongoing symptoms and the difficulties you have experienced in obtaining appropriate treatment.

47You have been in custody for 647 days.  I have taken into account that you have encountered significant problems in the prison environment.  I accept that you have been trying to use your time in a constructive manner and you have undertaken a number of courses on a range of subjects, the details of which were provided at the plea hearing.

48I have also taken into account that whilst your children are in Geelong most of your family support is in Queensland.  Against these matters in mitigation however your actions were very serious indeed.  As stated by the Court of Appeal in the leading case of R v Harrison, R v Rigogiannis [2015] VSCA 349 at paragraph 44:

'The objective gravity of a particular instance of NCSI by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.'

49In my opinion this was a very serious example of the offence of NCSI.  I have arrived at this conclusion for these reasons.

50(1) There were life threatening and life changing injuries sustained by Farnsworth and Smythe.  I shall quote from the prosecution opening dealing with injuries, medical treatment and prognosis, '28 - Farnsworth was airlifted to the Royal Melbourne Hospital by MICA paramedics.  His medical file was reviewed by Dr Jason Schrieber from the Victorian Institute of Forensic Medicine. 
Dr Schrieber states that Farnsworth's injuries included (i) traumatic brain injuries including multiple traumatic bruises with bleeds in the brain requiring emergency specialist treatment; (ii) two lower jaw bone fractures requiring emergency specialist treatment; (iii) injuries to the lungs including a complete collapse of the left lower lung segment, right lung collapse with progressive build-up of pressure in the pleural space compressing and potentially displacing the area separating both lungs and obstructing the heart circulation system requiring immediate life-saving emergency treatments; (iv) injuries to the left ear including deep lacerations, perforation of the left ear drum and detachment of part of the outer ear (partial ear amputation). 29 - Farnsworth's treatment consisted of the insertion of a pressure monitor into the brain, surgery with open reduction and internal fixation of the lower jaw bone, lifesaving decompression and chest train insertion to treat lung collapse and intubation to maintain breathing including a surgical cut into the airway right below the larynx.'

51Dr Schrieber's opinion is that; (i) Farnsworth sustained serious life threatening injuries and he would have been dead, 'Without the immediate treatments by paramedics and the procedure at the hospital.  (ii) there was evidence of blunt trauma to multiple body parts including the head and chest, namely a, "Combination of injuries with a cumulative effect"; (iii) there were multiple injuries to organs associated for life such as the brain and lungs; (iv) life threatening complications occurred in the course of emergency procedures; (v) the bone fractures will take an extended time to heal and in fact may not fully heal; (vi) Farnsworth may suffer seizures in future due to his injuries and is likely to have ongoing disabilities and psychological problems; (vii) there are likely to be cosmetic implications with scars and disfigured body parts due to the injuries.

52'30.  Smythe was initially treated at the Robinvale Hospital but due to the severity of his injuries he was transferred to the Royal Melbourne Hospital.  Following complications upon his release from the Royal Melbourne Hospital Smythe received emergency surgery at the Mildura Base Hospital where he remained as an inpatient for about one month.

53'His medical file was reviewed by Dr Schreiber who states that Smythe's injuries included the following:  (i) multiple abdominal injuries including a 5 centimetre laceration to the right abdomen, blood collection in the abdominal wall, the abdominal cavity and around the kidney, a small tear in the membrane attaching the intestine to the abdominal wall, a detachment of the intestinal pouch and a transection of the abdominal artery; (ii) open injuries to the nose (deep lacerations), the scalp on the left side of his head and the right eyelid and eyebrow.

54'31.  Smythe's treatment consisted of life-saving emergency trauma, abdominal surgery including an opening of the abdominal cavity, evacuation of hematomas, repair of abdominal blood vessels, repair of small bowel tears, excision of the right side of the colon, specialist plastic surgery including the suturing of the lacerations around the right eye and on the nose and the stapling of scalp lacerations.  Dr Schreiber's opinion is that; (i) Smythe sustained serious life threatening injuries; (ii) there was no doubt that without the treatments received by paramedics and in hospital Mr Smythe would be dead; (iii) there was blunt trauma to multiple body parts including the head and torso, namely a combination of injuries with a cumulative effect; (iv) there was a risk of digestive problems or abdominal complications by adhesions with pain in the future; (v) Smythe will have scars and psychological problems are likely; (vi) his future quality of life will be poor due to the injuries.'

55(2) The degree of negligence was high.  I accept Dr Odell's opinion that your blood alcohol reading while driving may have been lower than the range of 0.177 per cent and 0.225 per cent but I am satisfied beyond reasonable doubt that at the time of driving you were at least three times over the legal limit of 0.05 per cent;

56(3) You were unfamiliar with the road;

57(4) You were driving at an excessive speed in all the circumstances;

58(5) You were carrying two passengers;

59(6) Shortly prior to the accident your passenger, Farnsworth, had asked you to slow down but you had not heeded this request;

60(7) The manner of your driving shortly prior to the accident was erratic.'

61There are three victim impact statements in respect of Jamie Farnsworth.  The first is a brief statement from Jamie Farnsworth himself.  He described being in ICU for 17 days and then being sent to Epworth Rehabilitation and remaining in PTA for 28 days.  In simplistic terms he describes being upset that he cannot be around his friends or be with his father or be in Robinvale.

62He has had to move to Queensland to be with his mum and Mandy in order to participate in rehabilitation.  He feels upset and frustrated that his brain is not working properly and it is taking him a long time to get better.  He concludes his brief victim impact statement with these words:  'I am really annoyed that I don't have my licences anymore and that I can't work.  I missed the harvest this year and I would have made a lot of money and I enjoyed working.  The change in my life because of the accident really annoys me.'

63There is a more detailed statement from Farnsworth's mother, Deborah Gillam.  She describes in graphic terms the fact that nothing could prepare her for the shock she received when she walked into the ICU to see her son with tubes everywhere, 'So battered up not knowing if he will live or die'.

64She describes her reaction and the fact that no amount of information provided to her by doctors, nurses, or via brain injury brochures could prepare her for the shock involved in seeing what was involved in her son's attempts at recovery.  She describes the toll the accident has taken on the family.

65A particularly detailed victim impact statement has been provided by Mandy Farnsworth, Jamie Farnsworth's sister.  She describes in detail her observations of Farnsworth as he received treatment and attempted his rehabilitation.

66The following comments from Mandy Farnsworth succinctly describe her reaction to her brother's plight:  'There's nothing I would not do to change what has happened to my brother, Jamie, as grateful as I am he is still alive.  I struggle every day.  I find it hard to look Jamie in the eyes because when I do it's a reminder that my little brother is no longer the same.  When I look into Jamie's eyes I no longer see the happy, bubbly spark full of life brother.  Instead I see pain, suffering, extreme frustration, anger and hurt.  I look into Jamie's eyes and search for my best friend and I'm left with blank stares, lifeless looks, a shell of who Jamie once was.  I'm left wanting to scream, yell and full of pain.  I just want my brother back.'

67You have admitted before me numerous prior convictions.  There are approximately 25 court appearances between 15 December 1997 and
5 December 2016 involving convictions for motor vehicle offences, offences of dishonesty, violence, drug offences and breaches of court orders.

68In addition to these prior convictions there are a number of speeding fines dealt with by the Queensland State Penalties Enforcement Registry.  The nature of these prior matters, particularly the prior motor vehicle offences and speeding fines, is highly relevant to my task of sentencing you today.

69Your offending in respect of motor vehicles commenced in 1998 when you were an unaccompanied learner driver in a motor vehicle and you were convicted and fined $250.  As these prior motor vehicle offences involved drink driving and speeding I shall refer to them all.

70On 28 September 2000 at the Townsville Magistrates' Court you were convicted and fined $200 for unlicensed driving.  On 18 October 2001 at the Townsville Magistrates' Court you were convicted and fined $400 for unlicensed driving.  On 5 December 2005 without conviction you were fined $150 for speeding.

71On 22 April 2010 without conviction you were fined $200 for speeding.  On
17 September 2010 at the Townsville Magistrates' Court without conviction you were fined $800 and your licence was disqualified and you were disqualified from obtaining a licence for four months for driving a motor vehicle under the influence of liquor (less than 0.150).

72On 21 September 2012 you were without conviction fined $200 for speeding.  On 28 January 2013 without conviction you were fined $220 for speeding.  On 23 May 2015 without conviction you were fined $366 for speeding.  On
8 November 2013 without conviction you were fined $220 for speeding.

73On 1 January 2014 without conviction you were fined $146 speeding, and finally on 6 May 2014 at the Townsville Magistrates' Court without conviction you were disqualified from obtaining a licence for six months for unlicensed driving.

74I have had regard to the principle of totality.  There are two victims, both of whom were seriously injured.  There ought be a degree of cumulation to recognise the separate victims.  There must be a proportionate sentence for each charge and cumulation to ensure appropriate recognition of the harm occasioned to both victims.  Finally, the principle of totality must not be infringed.  I have endeavoured to undertake this task.

75As I have stated the pre-sentence detention is 647 days.

76As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of your extensive and relevant prior history.  General deterrence is also of considerable importance in a case such as this.  This has been consistently emphasised by superior courts in the leading cases of R v Harrison and R v Rigogiannis to which I have already referred.  The Court of Appeal stated, and I quote at 106:

'The motor vehicle is an integral part of our society.  Most adult citizens drive cars.  A car driving negligently is capable of producing catastrophic consequences for victims.  When the degree of negligence of the driver increases there is a corresponding increase in the likelihood of devastating consequences.  The most serious instances of the offence of NCSI by driving demonstrates negligent conduct of the very highest order.'

77At 107:

'The law thus provides for a particular penal consequences for those who drive in a negligent manner and cause serious injury.  The primary purposes for the sanction are two-fold, to punish the offender and to deter drivers from driving irresponsibility.'

78Further in that judgment of dealing with the fact that offenders are predominantly youthful the Court of Appeal made the following observations at 116:

'The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened.  As the importance of these factors increases there is a corresponding diminution in the mitigating effect of factors such as the offender's youth and prospects for rehabilitation.'

79I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  It was not in issue that an immediate custodial sentence is required.  Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows.

80Charge 1, convicted and sentenced to five years' imprisonment.  Charge 2, convicted and sentenced to five years' imprisonment.  I direct that 12 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, otherwise the sentence is to be served concurrently.

81The total effective sentence is six years' imprisonment.  The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account and I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

82In all the circumstances I direct that you serve a minimum term of four years before becoming eligible for parole. There is a mandatory licence disqualification. I impose a disqualification of four years from this date. As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have spent in custody is 647 days which is to be reckoned as time already served under the sentence.

83I direct that such be noted in the records of the court. I shall make the disposal orders sought by the prosecution. Finally, pursuant to s.6AAA of the Sentencing Act I state the sentence and non-parole period I would have imposed but for the plea of guilty is eight years with a non-parole period of six years.  Does that cover all the formalities?

84MS KARAMICOV:  Yes, thank you, Your Honour.

85HIS HONOUR:  Thank you.  The prisoner can be removed.  I will stand down.

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