Director of Public Prosecutions v Stevenson
[2023] VCC 277
•3 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE GORDON STEVENSON |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 March 2023 | |
CASE MAY BE CITED AS: | DPP v Stevenson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 277 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Lombardo [2022] VSCA 204; DPP v Browne [2023] VSCA 13
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
1Blake Gordon Stevenson, a jury has found you guilty of one charge of dangerous driving causing death. This charge was laid in the alternative to a charge of culpable driving causing death of which the jury found you not guilty. The facts underlying this offending are as follows.
2On 12 September 2020 at about 5:20pm, you, who were then aged 18 and the holder of a probationary driver’s licence, were driving a 2001 Holden Commodore along Coach Road, Shepparton. You had two passengers, Blake Payne, who sat in the front passenger seat, and Anthony Purcell-Thompson, who lay across the back seat. You wore a seat belt but your passengers did not and both were asleep immediately before the collision.
3Coach Road is a two-way, two-lane undivided road with a single lane in each direction which essentially runs north to south. The lanes are divided by a single broken painted white line and the bitumen road edge adjoins grass shoulders. The area is classified as rural. At the time the speed limit on that stretch of road was 100 kilometres per hour.
4While travelling, you passed a cyclist, Stephen Merrylees, who was travelling in the same direction. You overtook Mr Merrylees at a reasonably safe distance away from him moving at least partly into the right-hand lane but at a speed alleged by the prosecution to be between 140 and 149 kilometres per hour. This alleged speed was an issue between prosecution and defence during the trial. Between 100 to 200 metres ahead of Mr Merrylees, you started moving back into the left lane but over corrected and lost control of the car. It travelled off the road, collided with a group of trees, rolled and then caught fire outside 335 Coach Road. Mr Purcell‑Thompson was thrown from the vehicle as it rolled, coming to rest amongst shrubbery and debris approximately 2 metres from the rear of the car. You and Mr Payne were trapped in the burning car. Virtually every panel of the car was extensively damaged as a result of crashing into trees.
5Residents from nearby houses assisted at the scene, Mr Payne was able to escape the burning car and he and residents assisted you to get out. You lay on the ground covered with a blanket. Police and ambulance paramedics and firefighters attended the scene. Senior Constable Damien McBay, who had been performing duties in the area in a divisional patrol vehicle, approached you and asked who was driving the car. You immediately replied that it was you.
6Mr Purcell‑Thompson who was only 21, suffered multiple serious injuries and, although taken by air ambulance to the Alfred Hospital in Melbourne, tragically did not survive and died shortly after 10:00pm. You also suffered a number of serious injuries and were also taken via air ambulance to the Royal Melbourne Hospital. Mr Payne, who fortunately received lesser injuries, was taken to the Shepparton Hospital.
7The maximum penalty for dangerous driving causing death is 10 years’ imprisonment, together with the mandatory cancellation of any driver’s licence and disqualification from obtaining a further licence for at least 2 years. Dangerous driving causing death is a Category 2 offence.
8At the time of the collision, the road was dry. It was a bitumen road in good condition and there were no other motor vehicles present on it. Visibility was good. Inspection of the Commodore by police revealed no mechanical faults that could have contributed to the collision. As I have said, Mr Purcell‑Thompson was only 21 when he was killed. You, he and Mr Blake were friends who had worked together as shearers and on the day of the collision had driven to the Albury-Wodonga border in order to travel to New South Wales to obtain shearing work. When you reached the Covid-19 border check point, you were refused entry to New South Wales as your permits permitted you to work in Moama but not Albury. You then decided to drive to Shepparton to visit a friend of yours, first stopping in Wodonga where you went to KFC, drove around the town and visited a shop. You then drove on towards Shepparton, the collision occurring on the way.
Victim Impact
9Mr Purcell‑Thompson’s tragic death has caused immense grief and distress to his family. I received long and eloquent victim impact statements from his siblings, Jesse Purcell-Tamihana, and Ellen Purcell-Thompson and his mother, Jacinta Purcell Thompson. Each read their victim impact statements aloud in court at a plea hearing on 15 December 2022. I was also presented with many photographs of Mr Purcell‑Thompson with family members and his young daughter. It was clear in the more than two years since the collision that the grief and distress experienced by Mr Purcell‑Thompson’s mother, brother and sister has not abated and they continue to suffer very high levels of anguish and emotional trauma. Each family member described acute ongoing psychological stress, drastically changed lives involving the withdrawing from society in order to deal with the ongoing grief, symptoms of Post-traumatic Stress Disorder, sleeplessness, depression, grief and overall emotional devastation. Ellen Purcell‑Thompson wrote:
“My statement does not sum up the amount of damage this has caused. These words will never equate to the pain, trauma, and devastation that Anthony’s death has caused for me and my family.”
10Jacinta Purcell-Thompson wrote:
“My emotions are very close to the surface, something that I used to be very good at managing and hiding. I cry a lot...even in public. I struggle most days to be fully functioning at work. I have withdrawn from most social situations as I feel like an imposter. My life feels like a roller coaster of emotions and I can hit the bottom at unexpected times. I have days where the pain is all consuming and I cry all day thinking about my son.”
11She also wrote:
“My motivation for living is improving but everyday is a struggle. Physically I now experience anxiety and heart palpitations. I am in a constant state of trauma, my entire body is always tense and I feel like one day I may explode.”
12In addition to describing his diagnosis of Post-traumatic Stress Disorder, the need for weekly therapy, nightmares, sleeplessness and overall grief, Mr Jesse Purcell‑Tamihana wrote of the added distress caused by Covid restrictions allowing only 10 people at his brother’s funeral. All three family members continue to be traumatised by the memory of Mr Purcell‑Thompson’s injuries which they saw as they sat around his bed in hospital. There is no doubt Mr Purcell‑Thompson was a greatly loved son, brother and father and that his premature death has caused and continues to cause the utmost grief and distress to his surviving family.
Personal Background
13I now turn to your personal circumstances. You are now 21 years old and were 18 at the time of this offending. You have no prior convictions. You had a difficult childhood. You are the eldest of three children born to your parents and have two younger sisters, Kathryn and Clare, aged 16 and 18, to whom you are close. You were born in Albury-Wodonga, but from an early age were exposed to alcohol, drug abuse and significant family violence as both your parents were regular ice and cannabis users. Your father was also a violent alcoholic and his violence was a daily feature in your life. You witnessed attacks upon your mother and you were also a target of your father’s violence from a young age; for example, he broke your nose on more than one occasion before your ninth birthday. When you were seven the family moved to Melbourne in the hope that your parents could distance themselves from associates who abused drugs and alcohol. Within months of the move, your parents had an argument over the telephone during which your father threatened to kill your mother, prompting her to flee with yourself and your sisters to Adelaide by bus to live with extended family. You have seen your father only a few times since then.
14In Adelaide your mother re-partnered with your stepfather, Michael Drury, who your counsel told me was a positive role model and heavily involved in your life. Your mother and Mr Drury have separated but you maintain a close relationship with him. Some years after the move to Adelaide your family returned to Melbourne to be closer to your maternal grandmother who was unwell. Midway through your high school years the family relocated to Warrnambool and have lived there ever since.
15You had a disrupted early education attending seven different primary schools between Victoria and South Australia. You attended two high schools completing your education at Terang College near Warrnambool. You were bullied throughout your schooling because you were overweight and your family was poor and this caused you sufficient anxiety to leave school at the end of Year 9. You were also often the primary carer for your two younger sisters whom you helped get ready for school in the morning, taking them to school, making and packing their lunches and school bags and cooking dinner each night for the three of you.
16You started working at age 13 on a dairy farm and became the sole breadwinner in the household, becoming responsible for paying rent, utilities and buying groceries. After leaving school you continued working on a dairy farm and also completed a Certificate II in Automotive which is a general automotive mechanic pre-apprenticeship. When you were 16 you took on work as a truck jockey with a calf truck and then spent about 18 months travelling Australia as part of a carnival where you set up, operated and dismantled carnival rides. You then returned to Victoria and began work on a dairy farm where you met Mr Payne and Mr Purcell‑Thompson. Mr Purcell‑Thompson arranged shearing work for the three of you and you were all working together as shearers in the Bendigo and Echuca regions at the time of the collision.
17Although you have no prior criminal history, you did go on to develop a somewhat troubling drug and alcohol habit. You began smoking cannabis socially when you were 13 after being introduced to it as the youngest employee on the dairy farm and you smoked it nightly from age 15 as a means of self-medicating untreated anxiety. You first used ice at age 15 but your use of it was strictly social, you began smoking it up to three times a week with friends after work. You told neuropsychologist, Leanne Kennedy, whose report dated 20 November 2022 was tendered on the plea, that this methamphetamine was provided to you for free. You also used at times that did not interfere with your employment or lead to criminal offending.
Current Situation
18You received a number of serious injuries as a result of the collision. They included an open fracture of your right femur, left femur, left radius and ulna and right radius and ulna. You suffered fractures to 11 ribs, fingers on your left and right hands, right ankle and left wrist. You also suffered lacerations to the liver and your right kidney and a soft tissue injury to your right forearm. One finger was dislocated and you suffered burns to your shoulder, arms and back together with wounds to the scalp. Your lungs collapsed and you went into haemorrhagic shock. Your injuries required numerous plastic and orthopaedic surgeries and you remained at the Royal Melbourne Hospital for 18 days. Following the initial treatment, secondary infections arose requiring additional surgery to your knees and anterior cruciate ligament. On discharge from the RMH, you were transferred to the Acquired Brain Injury Unit at Epworth Rehabilitation where you remained until 19 November 2020.
19You continue to suffer the physical effects of your injuries which include daily ointment application to scarring on your back, chest, arms and legs caused by the burns; your left ring finger is permanently fixed at a right angle; you suffer osteoarthritis in each knee; and you continue to suffer from pain and scarring in your legs, arms, back and chest.
20You have also been left with a traumatic brain injury. Testing by Ms Kennedy revealed significant ongoing issues including reduced cognitive proficiency relating to memory and processing speeds. She also diagnosed you as suffering a Post Traumatic Stress Disorder characterised by frequent nightmares, poor sleep, depression and anxiety. You were unable to work until October 2021 when you began employment on a dairy farm but due to your injuries could not continue with this job and left that in February 2022. I received a written reference from your former employers, Bernard and Roslyn Whitecross, who wrote positively of your employment with them but noted that “because of injuries sustained in the accident he found the physical aspects to the job challenging. By mutual agreement it was decided that he should look for work more appropriate to his physical capabilities.”
21Since May 2022, you have worked casually milking cows and undertaking odd jobs for Brendon Rhea. In a written reference to the court, Mr Rhea confirmed your employment, describing you as reliable, punctual and trustworthy and open in discussing your forthcoming court appearance with him. He described you as “genuinely remorseful”.
22After the collision you met your current partner, Kellena, who shortly after meeting you discovered she was pregnant with twins to her former partner. You supported Kellena through her pregnancy and you now live with her and her baby girls as well as your sister, Kathryn.
23You have no memory of the collision but continue to suffer distress and remorse over causing the death of Mr Purcell‑Thompson. You have suffered an amount of ostracism in your own community and online abuse as a result, although you continue to enjoy the support of your partner and extended family.
24Turning to Ms Kennedy’s report, she diagnosed you as suffering PTSD complicated by guilt. This was exacerbated by the delay in resolution of the charges against you. I will refer to this later in my sentencing remarks. Ms Kennedy wrote:
“He suffered a severe traumatic brain injury along with physical injuries requiring multiple surgical procedures with the months following the collision. Due to repeated anaesthesia / surgery the previous assessor concluded that the brain injury is more likely to be ‘moderate’ rather than severe. Mr Stevenson demonstrated general abilities at a level commensurate with premorbid functioning, however working memory remained variable and processing speed was impaired to borderline. He was particularly slow when the tasks involved writing or drawing. In addition, Mr Stevenson continues to suffer significant PTSD symptoms that impact on daily functioning.”
25It was Ms Kennedy’s opinion following testing that you suffer from:
(1) reduced cognitive proficiency, that is with working memory and slowed processing speed;
(2) your verbal working memory is the low-average range scoring in the 9th percentile for working memory and visual working memory; that is, 92% per in your sample age group performed better than you;
(3) your psychomotor speed was severely impacted where you scored in the 3rd percentile, being the extremely low to borderline range;
(4) your list learning fell in the low-average range for you age and education; and
(5) your memory impacts your day-to-day functioning and you are now dependent on others such as your sister and partner due to deficits in memory.
26On your release from rehabilitation, you were referred to the psychological support organisation Headspace but, your counsel informed me, the waiting lists in your regional area were extremely long and it was four weeks before you could be seen. On that occasion you were referred to Lifeline and a counsellor, neither of which you found helpful. Ultimately it was Ms Kennedy’s opinion that you had complex treatment needs and were in urgent need of psychiatric and psychological therapies administered by a team experienced with treating PTSD complicated by guilt and it would seem that neither of the services were adequate to your needs. In their absence you returned briefly to ice use as a means of self-medication but almost immediately abandoned this. More concerningly, after avoiding alcohol due to your father’s example you have increasingly turned to it as means of self- medication. You told Ms Kennedy that previously you would have a couple of drinks after work but then began drinking between five and 20 cans of mixed spirits a night and you also drink five or six large cans of Red Bull each day. However, your distress continued on unabated and you planned to hang yourself on a beach but fortunately rang your stepfather who talked you out of it and extended family were able to intervene. Ms Kennedy wrote:
“He demonstrated significant psychological distress and remorse from the collision that resulted in the death of his friend.”
27She wrote that because you have had insufficient therapy you continue to suffer from grief and adjustment issues and PTSD. It was her opinion that you are in:
“urgent need of psychological therapy and psychiatric therapy to manage his PTSD, manage his emotions and adjustment to his situation, and to monitor his mood for potential regression to suicidal thoughts.”
28Ms Kennedy said you told her that you felt shocked that your friend had died and expressed guilt that you had been the person driving the car, writing:
“He expressed difficulty with adjusting to the cognitive changes resulting from the collision, the pain from the physical injuries, and the psychological pain from the death of his friend as a result of the collision while Mr Stevenson was the driver.”
29Ms Kennedy noted that these difficulties which she described as “already significant” did not “include the stress of the court case and the possible legal consequences that he will be facing.” As I have already stated, it was Ms Kennedy’s opinion that you have good prospects for recovering to what she described as a reasonable level if you can find “a team of therapists with whom he can engage appropriately and who are experienced with treating PTSD complicated by guilt.”
Legal considerations
30As I have stated, dangerous driving causing death is a Category 2 offence, whereby a term of imprisonment must be imposed unless the offender falls within one of five legislative exceptions set out in s5(2H)(a) to (e) of The Sentencing Act. It was conceded by the prosecution that you fall into the exception contained in paragraph (c)(ii) that is:
“the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment”
31In her report Ms Kennedy gave the opinion that your difficulties with processing speed and working memory are likely to lead to everyday forgetfulness and these aspects of brain injury are likely to leave you vulnerable in the situation of imprisonment. She further noted, as I have already stated, that you have complex treatment needs which are that you are in urgent need of psychiatric and psychological therapies administered by an appropriately experienced team. She opined that this may not be available in a custodial setting and that your mental health is likely to deteriorate if you were sent to prison. She stated:
“In my opinion imprisonment would weigh more heavily on Mr Stevenson given that he is struggling to cope with the aftermath of the motor vehicle collision; coping with the death of his friend in the motor vehicle collision, the injuries he sustained, the disturbed sleep due to nightmares, and the social isolation from his social group. His struggle led to a plan to suicide and an attempt to follow through on that plan. His difficulties with processing speed and working memory are likely to lead to everyday forgetfulness even though his basic memory abilities are intact. These aspects of brain injury are likely to leave him vulnerable in the situation of imprisonment.”
32On the material before me I accept that your impaired mental functioning would result in you being subject to a substantially and materially greater than ordinary burden or risk of imprisonment and that you do fall into the exception described in s5(2H)(c)(ii).
Plea Offer
33It is appropriate at this stage that I turn to the chronology of this matter through the legal system. You first made an offer to plead guilty to dangerous driving causing death on 8 June 2021 which was prior to the committal hearing.
34A contested committal hearing was held but it was of a confined nature involving only the examination of Mr Merrylees, Senior Constable McBay and Detective Sergeant Jenelle Hardiman, a collision reconstructionist with the Victoria Police, who also gave evidence at the trial. The plea offer was again made on 13 April 2022 and 9 November 2022 and on each occasion that offer was rejected by the prosecution. I regard this as a significant issue in the sentencing exercise I must undertake and will expand upon it later in these sentencing remarks.
References
35I received a number of other references in support of you, including a reference from your partner’s mother Mandy Newell, who described the remorse you have expressed to her for your offending, you telling her you wished that it was your life that had ended and not Mr Purcell‑Thompson’s. She described you as a father figure to her twin granddaughters since their birth and said you were kind and considerate. Family members and friends also wrote references attesting to your hardworking nature and describing you as respectful, kind and struggling to overcome the injuries you received in the collision and your ongoing remorse for causing the death of Mr Purcell‑Thompson.
36Youth Justice assessors Amelia Catchlove and Kathy Taylor wrote in their 14 December 2022 report as to your suitability for a Youth Justice Centre Order dated 14 December 2022, that you were :
“… able to demonstrate sincere victim empathy; and that you “continue to experience mental health symptoms of anxiety, depression and PTSD as a result of coping with the grief of losing his friend.”
and also able to express
“… profound ….empathy for the family of the victim, their friends and the wider community. Mr Stevenson presented as genuinely remorseful for his actions causing the death of his friend and stated he will have to 'live with the guilt of what he has done every day.'”
37The authors also wrote:
“Mr Stevenson has demonstrated a desire to become a productive member of society through his accomplished repertoire of pro-social behaviour including his lengthy employment history, significant reduction in substance-use and parenting of his two children.”
38The report noted you had a supportive family and that you are particularly close to your paternal grandmother, aunt and former stepfather.
39It was noted that you had become self-destructive on notification of Mr Purcell‑Thompson’s death and turned to drugs and alcohol as a means to cope with what had happened. The authors wrote that you had had a tumultuous childhood “marred by domestic violence perpetrated by his biological father, parental substance use, transience and poverty” which included two notifications to Child Protection. Ms Catchlove and Ms Taylor wrote:
“Despite his trauma history, Mr Stevenson demonstrates a waning motivation for delinquency through his extensive employment history and lack of police contact while subject to bail.”
Case Law
40It is clear from the authorities that ordinarily dangerous driving causing death will attract a substantial term of imprisonment to be immediately served. (See DPP v Lombardo [2022] VSCA 204 and DPP v Browne [2023] VSCA 13.) However, at paragraph [97] of Lombardo their Honours McLeish, Niall and Kennedy JJA stated:
“It should be noted that whether or not an exception in s 5(2H) applies, nothing in s 5(2H) limits the relevant sentencing considerations or requires particular weight to be accorded to any individual matter. Sections 5(2HC) and 5(2I) are expressly directed to the issue of whether substantial and compelling circumstances exist and are silent as to the application of the instinctive sentencing synthesis. Subsections 5(3) and (4) make it plain that, subject to the requirement for a custodial sentence in s 5(2H) (where applicable), ordinary principles of parsimony and proportionality apply. This means that there is no statutory requirement that a sentencing judge, in a case where an exception applies, leans towards a term of imprisonment — quite the opposite.”
41However, in DPP v Browne, their Honours Kyrou, T Forrest and Kennedy JJA, at paragraph [40] referred with approval to the decision of Stephens v The Queen (2016) 50 VR 740 where the court stated (in their Honours words) that:
“although the offence of dangerous driving causing death encompasses a very wide range of conduct, it ‘is likely to receive a significant term of imprisonment’. The Court went on to say that, where an offender’s level of moral culpability is low, it may be appropriate for the sentencing court to depart from the usual disposition of a custodial sentence.”
Submissions
42The prosecutor Mr Singh submitted that the moral culpability of your actions should be classified as being in the mid-range of this type of offending. He submitted that the speed was simply too fast in the circumstances, resulted in a needless loss of life and according should attract a term of imprisonment with a period of non-parole to be served as the only appropriate sentence.
43Ms Brennan on behalf of the defence submitted that in the circumstances of this case, a Community Correction Order was an appropriate response.
(1) Ms Brennan submitted that relevant to the assessment of gravity it was significant that aggravating features of driving such erratic driving, pursuit, hooning, mechanical faults with the car, fatigue, intoxication, or disregard of warning signs, were absent from your driving. She submitted that therefore the matter fell into a lower category of offending of this kind.
(2) Ms Brennan pointed to the three offers to plead guilty to dangerous driving causing death, the first made prior to committal before the trial. She submitted in the two years between the date of offending and the date of sentencing, the more serious charge of culpable driving had hung over Mr Stevenson. Further stress occurred when the June 2022 circuit at which yours was the first trial listed – was cancelled.
(3) Ms Brennan submitted that as you were 18 years old at the time of the offending and still fall to be sentenced as a young offender the court is required to place greater value on your rehabilitation in the sentencing exercise.
(4) She submitted the violent, unstable and difficult upbringing you endured meant the principles of Bugmy v R (2013) 302ALR 192 were enlivened in a general sense.
(5) Ms Brennan submitted that your impaired mental functioning owing to your traumatic brain injury and Post-traumatic Stress Disorder enlivened Limbs 2, 4, 5 and 6 of Verdins. (See R v Verdins {2007} VSCA 102)
(6) She submitted your lack of prior convictions and that the character references on the plea demonstrated that you are otherwise a young man of exemplary character.
(7) Ms Brennan submitted you have good prospects of rehabilitation. She submitted remained you are a young offender who has the benefit of strong family support, ongoing employment, a good employment history, stable accommodation, a clean record, demonstrated insight and remorse into your offending and noted that in the delay between offence and sentence you have remained offence free. She noted that whilst your alcohol and cannabis use need to be addressed, neither of them were a catalyst in your offending nor have been a cause for conviction since the offending.
(8) Finally she submitted that as you continue to suffer from physical injuries, a deterioration in your mental health, interruption to your employment due to ongoing physical limitations and social isolation which in some instances has included being a target for online abuse, there has been extra curial punishment, that is punishment additional and separate to any penalty imposed by the Court.
Conclusions
44I accept the prosecution’s submission that consistent with the guilty verdict, the jury found that you were driving at a speed that was dangerous to the public, which involved a serious breach of the proper management or control of your car and that created a real risk that members of the public could be killed or seriously injured. Mr Singh did concede that it could be inferred from the verdict that the jury was not satisfied beyond reasonable doubt that your driving created a high risk of death or serious injury, nor that your driving was grossly negligent in the circumstances.
45Much of the evidence on the trial revolved around prosecution and defence experts as to the calculation of the speed at which you were travelling. The effect of the evidence of the defence expert, Dr Shane Richardson was that the formula applied by the prosecution expert, Detective Sergeant Hardiman in concluding that your speed was between 140 to 149 kilometres per hour at the time of the collision was incorrect and resulted in an over-estimation of the speed. In my view the jury verdict does not allow me to draw any conclusions as to the speed of your driving or to determine whether the jury accepted Detective Sergeant Hardiman’s evidence on that point, which also underlay the prosecution allegation of Culpable Driving of which you were acquitted.
46The finding of guilt on the lesser charge confirms only that the jury were satisfied that the car was travelling at such a speed that it amounted to a serious breach of the proper management or control of the vehicle and that this created a real risk members of the public would be killed or seriously injured. In those circumstances, I could not be satisfied you were travelling at the speed alleged by the prosecution and must instead sentence you on the factual basis that that it was a speed that was in the all the circumstances dangerous.
47Putting aside the tragic consequences of this driving, it is difficult to determine where in the range of seriousness this type of driving offending falls. Absent the aggravating features outlined by Ms Brennan but bearing in mind the definition of Dangerous Driving Causing Death, I am able only to reach the conclusion that it fell somewhere between the lower end (but I emphasise not the lowest end) of the range and mid-range of seriousness for this offence.
48No submissions were urged upon me by the prosecution as to a lack of remorse on your part and I regard this as entirely appropriate. Notwithstanding that you pleaded not guilty to the charge of Dangerous Driving Causing Death at trial, that defence was based on a submission to the jury that they could not be satisfied on the evidence that you were not travelling at a considerably lower speed than that alleged by the prosecution and that the collision could have been caused by an unknown factor such some activity within inside the car. Bearing in mind the three previous offers to plead guilty to this charge, it is my view that you are entitled to the benefit attached to those offers in moderating any sentence to be imposed in this case.
49I am satisfied of your extreme remorse for this offending, little comfort though it may be to Mr Purcell‑Thompson’s family. I am satisfied that despite your descent into particularly alcohol use, you have good prospects of rehabilitation. I am satisfied that despite an extremely difficult upbringing you have remained offence free, compiled a good work history, and continued to work as best you can despite your ongoing physical difficulties including a traumatic brain injury, You have continued to work, become a father figure to your partner’s infant children, and remained offence free despite a lack of appropriate professional support. Unfortunately during Covid and post-Covid times those services have generally been in short supply in the community, particularly in country regions. Given Ms Kennedy’s opinion as to the complexity of the treatment you require I am satisfied that what was made available to you was likely inappropriate and inadequate.
50I also note Ms Kennedy’s observation that you are anxious to avail yourself of whatever treatment can be given and I am satisfied, given your offence free history to date against the odds, that with the appropriate professional support you present no danger to the public in the future. You enjoy good support from your grandmother, aunt and stepfather as well as your partner. These together with your proven track record of prosocial behaviour apart from this admittedly serious offending, lead me to conclude that protection of the community and specific deterrence are principles which require little emphasis in the sentencing exercise I must undertake.
51I am also satisfied that you have suffered extra curial punishment via the effects of the serious injuries you have sustained in the collision. I also accept that in your case Limbs 2, 5 and 6 of Verdins have application. In cases where impaired mental functioning (which it is accepted you suffer), be it temporary or permanent, is relevant to sentencing the following principles apply to be taken into account by the Court.
(i)That condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. (Limb 2)
(ii)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a custodial sentence will weigh more heavily on the offender than it would on a person in normal health.” (Limb 5).
(iii)Where there is a serious risk of imprisonment it will have a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.” (Limb 6).
52I am satisfied that the nature of your physical injuries, which includes impaired cognitive functioning does mean a term of imprisonment would weigh more heavily upon you than it would upon a person in normal health. I am further satisfied on the material there is a serious risk imprisonment that would have a significant effect on your mental state. Finally I am satisfied your physical injuries, including your traumatic brain injury, should have a bearing on the kind of sentence that I impose and the conditions in which that sentence should be served.
53It is my view that those injuries should be dealt with by appropriate treatment of the kind suggested by Ms Kennedy and which would not be available in a custodial setting.
Delay
54Finally, I turn to delay which I regard as being of significance in this case. With the greatest respect to the Director of Public Prosecutions, in my experience it is most unusual for a charge of culpable driving causing death to be laid on the basis of speed alone. During their deliberations the jury asked for examples of culpable driving. With the consent of both counsel I advised that it usually involved fatal collisions involving driving where speed was combined with intoxication, or where an offender ran a red light whilst pursued by police, and gave as an example of speed alone a scenario proffered by the learned prosecutor of an offender driving at 160 kilometres per hour in a 40 kilometres per hour limit zone.
55At the end of the day, you were convicted of a charge to which you had three times previously offered to plead guilty, including on one occasion before committal and were acquitted of the charge to which you pleaded Not Guilty. The necessary determination of this matter by jury trial caused a significant delay which was exacerbated by the pandemic restrictions on the court’s capacity to hear such cases. This has added greatly to the anxiety and stress you have been experiencing as a result of and since the fatal collision.
56The carriage of this matter has had a second more complicating effect. You were 18 at the time of this offending. The trial before the jury began on 24 November 2022, and the Crown case closed on 28 November 2022. The defence then called evidence from one expert witness, Dr Shane Richardson and you exercised your right to remain silent. (Given your total lack of recall of the collision this was not unexpected.) Following final addresses the jury retired to consider its verdict from about 11:20 am on 30 November 2022 and returned its verdict on December 1.
57You turned 21 on 25 December 2022 at which stage you became ineligible for placement on a Youth Justice Centre Order which first requires a suitability assessment by Youth Justice, normally taking about ten days. I ordered that assessment at the first sentence hearing which was held on the afternoon of December 1 because of the time constraints I have described. That assessment finding you suitable was delivered on 14 December 2022.
58At a further plea hearing on 15 December 2022 I formed the opinion, given the prosecution concession that you fell within the exception in s5(2H)(c)(ii), and further consideration by me of DPP v Lombardo that you may also be eligible for placement on a Community Correction Order. The court year finished on 16 December 2022. Community Corrections indicated it could not provide the required assessment in that time. Defence counsel understandably asked that I seek that assessment rather than proceed to a Youth Justice Detention Order effectively ruling out the Court’s capacity to place you on such an order. I must take some responsibility for not also ordering a Community Corrections Order on December 1, however it is my view that delay also contributed to this undesirable situation.
59Having said that my ultimate decision as to the appropriate sentencing response to your offending is based on the factors I have previously outlined.
60I have had regard of course in particular to the decisions of the Court of Appeal in both DPP v Lombardo and DPP v Browne. It is my view that the moral culpability of the offender in DPP v Browne was of a significantly greater order than that demonstrated by you and can be distinguished on that basis. The accused in that case was also a mature man in his early thirties who wilfully disregarded specific warnings relevant to the particular kind of vehicle he drove and with a young child on his knee.
61I also take into account your youth at the time of this offending. You still remain to be sentenced as a youthful offender meaning that issues of rehabilitation assume a larger significance in the sentencing exercise before me than were you of more mature years.
62In sentencing you, I have had full regard to the seriousness of your offending leading to the premature death of Mr Purcell‑Thompson and its continuing devastating effect upon his family.
63As you do fall into the exception contained in s5(2H)(c)(ii), I do not need to consider the restrictions surrounding the application of other exceptions such as contained in s5(2H)(e) and s5(2)(I). You have been found suitable for placement on a Community Correction Order. The assessing officer noted that despite your continuing injuries it was not anticipated that this would prohibit you from undertaking unpaid community work. As their Honours stated at paragraph [99] in DPP v Lombardo:
“A community correction order is a punitive sanction. Apart from the burden of complying with its conditions, the person serving the order is under threat of imprisonment for its contravention, together with resentencing for the relevant offence.”
64Whilst your offending could not be categorised as falling at the lowest level of moral culpability, it is my view that the mitigating factors to which I have referred are such that I should deal with you by placement on a Community Correction Order. The length of this order and the community hours you will be required to undertake will reflect the seriousness of your offending. In placing you on this order, I make it clear that this was most serious offending but in the circumstances of this case, your youth, relative immaturity at the time of offending, your ongoing physical injuries including a traumatic brain injury, your severe psychological difficulties, your efforts over a long period of time to plead guilty to the offence for which you were ultimately found guilty, your evident remorse, your excellent prior history and prospects of rehabilitation are such that a lengthy Community Correction Order best represents both the punitive and mitigatory features of this case.
65I will therefore place you on a Community Corrections for a period of four years. The core conditions of the order are as follows:
(i)During the order you must not commit an offence punishable by imprisonment
(ii)If you do you will be brought back to Court and re=sentenced for this offending
(iii)While on the order you must leave Victoria without the permission of Community Correction.
(iv)You must report any change of address or employment to Community Corrections within 48 hours of the making of that change.
(v)You must report to and receive visits from Community Corrections
(vi)You must not attend upon Community Corrections under the influence of drugs or alcohol
(vii)You must obey all lawful directions of Community Corrections.
66The following special conditions will also apply:
(i)You will undertake 300 hours of Unpaid Community Work
(ii)You will undergo assessment treatment and rehabilitation for drug and alcohol use.
(iii)You will undergo assessment treatment and rehabilitation for mental health difficulties.
(iv)You will be under Supervision conditions.
(v)You will attend Judicial Monitoring as directed.
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