Director of Public Prosecutions v Stocker
[2017] VCC 770
•13 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01394
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLERISSA STOCKER |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 June 2017 | |
CASE MAY BE CITED AS: | DPP v Stocker | |
MEDIUM NEUTRAL CITATION: | [2017] VCC | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Bourke | |
| For the Accused | Mr T Guthridge |
HER HONOUR:
1 Clerissa Stocker, you have pleaded guilty before me to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury. The facts underlying your offending are as follows.
2
On 30 March 2014, you were driving a Holden Commodore along the Western Highway towards Stawell and your two sons, then aged four and six, were in the car with you. At about 12.50pm, your car veered into the opposing lane of traffic and eventually collided with a Mazda sedan being driven by Geoffrey Cassells. His wife, Kathryn Cassells was a front-seat passenger.
Mrs Cassells died in the collision and Mr Cassells received life-threatening and permanent injuries, which affect him seriously to this day. You had left your home address in Rupanyup with your two children to watch a “burn-out competition” in Stawell. The journey was about 70 kilometres in length, involving a driving time of about one hour.
3 The Western Highway, is a single carriageway with one lane of traffic in each direction. The Cassells were travelling towards Horsham and behind them in a jeep was Ms Julie Krause who saw your car drifting over the centre white line. At this point, the Cassells’ car, which was in front of her, had to swerve over to the wrong side of the road to avoid a head‑on collision with your vehicle. You then corrected your steering towards your own side of the road and collided with the Cassells’ car in a near head-on collision. Ms Krause stopped her car, and she and her partner, Andrew Fowkes, went to the scene, removed your children from the car and looked after them. Both children were injured in this collision.
4 Other members of the public also stopped to assist until police arrived at the scene. Acting Sergeant Young spoke to you to establish your involvement and asked you how the accident occurred. You replied “I don’t know, I think I fell asleep”.
5 A post-mortem examination of Mrs Cassells’ injuries from the collision revealed she had suffered rib fractures, ruptured liver and fractures to her pelvis, both bones of her right leg, her left femur, radius and ulna, together with bilateral haemopneumothoraces. Her death as a result of this collision underlies Charge 1 on the indictment, dangerous driving causing death.
6 Geoffrey Cassells suffered a severe traumatic brain injury, fractures to two back vertebrae and multiple rib fractures. He underwent an emergency craniotomy resulting in traumatic amnesia for 93 days and marked and lasting cognitive impairments, to which I will refer to later.
7 A breath test of you revealed no alcohol on you but you were then administered an oral fluid test which indicated the presence of illicit substances in your saliva. You admitted to using illicit drugs. A blood sample was taken at the hospital to which you were conveyed, and you were released after a medical examination.
8 In an interview later that day with Stawell police, you said that you thought you had drifted “over the line a bit” and had looked up, seen a car and tried to steer back.
9 Your mobile phone was seized shortly after the collision. Analysis of it showed you had sent and received 60 text messages up to 3.54am on the morning of the collision, and that you resumed using your phone at 7.59am that morning. That indicated the maximum rest period you could have had the preceding night was only four hours and five minutes.
10 Analysis of the blood sample proved positive for methylenedioxy-N-methylamphetamine – 0.22 milligrams; methylenedioxyamphetamine – 0.02 milligrams; methylamphetamine – 0.21 milligrams; amphetamine – 0.02 milligrams; and tetrahydrocannabinol – 10 milligrams.
11 Professor Morris Odell, of the Victorian Institute of Forensic Medicine, found that the drug levels in your blood after the collision were relatively high. He found that it was highly likely you were experiencing rebound fatigue from amphetamine use and that the circumstances of the collision strongly suggested it occurred due to you being in a fatigued and sleep-deprived state and falling asleep whilst driving. He was also of the view that the presence of these illicit drugs in your system would most likely have negatively impacted your ability to drive a car.
12 Professor Naughton, a respiratory and sleep disorders physician, reviewed relevant materials and gave the opinion that the collision was a direct result of your excessive sleepiness. He believed this was likely to be multi-factorial ‒ sleep deprivation, disrupted sleep due to phone calls and poor quality sleep due to illicit drug ingestion.
13 Investigation and reconstruction of the collision by police revealed that the Mazda driven by Mr Cassells' had braked prior to impact and was skidding as it crossed into the eastbound lane, that there was no evidence that either vehicle was speeding, that the collision occurred wholly in the eastbound lane, and that when the Mazda first began skidding, it was wholly in the westbound lane. That is the lane appropriate to the direction it was travelling At the time of impact, your car was 0.52 centimetres in the westbound lane ‒ that is, the wrong side of the road. No mechanical fault was found with either vehicle which would have contributed to the collision. It is the Crown case that fatigue caused by lack of sleep, the ingestion of illicit drugs and resultant rebound fatigue, and the effect of those drugs which Professor Odell believed would most likely have negatively impacted on your ability to drive, in combination, rendered your driving dangerous in all the circumstances.
14 The maximum penalty for dangerous driving causing death is 10 years’ imprisonment. The maximum penalty for dangerous driving causing serious injury is in fact ten years' imprisonment, I was advised, Madam Prosecutor it was five years but in 2009 the penalty was doubled from five years to ten years as I understand it.
15 INSTRUCTOR: I'll check that, Your Honour.
16 You ran a contested committal hearing where witnesses were called, and the matter resolved to the current charges on 12 October 2016 prior to the trial commencing. It is conceded that, from the outset, you had offered to plead guilty to the charges which you in fact now face. Originally you faced charges of culpable driving which you resisted.
17 I now turn to your personal circumstances.
18 You are twenty-seven years of age and the mother of two boys, now aged nine and seven. You were born in Queensland and your parents separated when you were six. You have an older half-brother and a younger brother. Your father was a drug user. Your mother then married a man who was emotionally controlling and abusive of you and your younger brother. You reportedly moved between your parents’ homes in Queensland but, as a teenager, you ended up living with your father, as did your younger brother, Quade. You enjoyed school, but your home life was unstable, and after a particular fight with your father at age sixteen, you left his home and lived with friends for about a year. In that time, you met the father of your children, Keith, a man 10 years older than you who had a history of amphetamine use, and you subsequently developed a heroin habit. You continued to attend school, however, and almost completed Year 12.
19 You soon became pregnant to Keith when you were sixteen, but miscarried. Your first child, Myles, was born when you were nineteen. Keith went on to become abusive and violent, and was ultimately diagnosed with a bipolar condition. Your mother, Leah Marie Davis, in a long statement, described how you and Keith purchased a house in Rupanyup, a remote rural town in Victoria, Keith later telling your stepfather, Michael Davis, with whom you enjoy a good relationship that he purchased the house there in order to set up a hydroponic cannabis crop. Your mother also described the financial difficulties you encountered whilst with Keith, who regularly used illicit drugs, including amphetamines and heroin, and he also spent money on speedway cars.
20 In May 2011, Keith was killed in a single car accident when he crashed into a tree. By this time, you had had your second child, Bastion. The children were three years and 18 months old, respectively, at the time of the accident, and were in the car with him. Both were seriously injured. Myles suffered multiple broken bones, while Bastion sustained a serious skull fracture and, for a time, was in a coma. Both children were in hospital for around three months. Myles, when he was born, was found to suffer from Hirschsprung disease, a serious disease of the colon which required constant flushing of the bowels and which he suffered in the first few months of his life. Following the accident, he was also diagnosed with Kawasaki’s disease, which is inflammation in the walls of the arteries, affecting the lymph nodes and skin and mucus membranes inside the nose, mouth and throat. You received a lump sum in compensation for Keith’s death, but, according to your mother, you were pressured by many friends, and indeed your own father for financial assistance and the money was apparently gone in two years.
21 You told psychologist, Dr Remy Glowinski, whose report dated 19 February 2017 was tendered on the plea, that you began smoking cannabis from the age of fifteen and were permitted to smoke it at your father's home. You said you had developed a regular cannabis habit from the age of sixteen, using about 2 to 5 grams per day, and that following Keith’s death in 2011, you again began using on a daily basis. Also following Keith’s death, you were introduced to methamphetamine, or ice, by a subsequent partner, which you initially used on a fortnightly basis but, in the months leading up to this accident, it had become a daily habit of up to about 0.2 grams a day. You told Dr Glowinski you had used LSD on three or four occasions, and MDMA, or ecstasy, on a few occasions, but did not like either substance.
22 You have some prior criminal history, the most significant being a conviction for trafficking cannabis in 2002, which apparently related to you being found in possession of half a pound of cannabis, which in fact apparently belonged to Keith and for which offence you were placed on a suspended sentence and a Community Based Order, which you completed without incident.
23 Your children were fortunately unharmed, beyond minor injury, in the offending which has brought you before this court.
24 In terms of employment, you worked as an apprentice chef and shop assistant in the years leading up to the birth of your children. You are currently unemployed and receive Centrelink benefits.
25 Following the collision, the children were placed by the Department of Human Services into foster care, but were eventually released into the care of your mother and stepfather, and you and your sons lived with your parents in Bracken Ridge, Queensland, for six months, during which time the Department of Human Services withdrew from the case. You returned to Rupanyup at the end of 2014, when you were charged. The children both attended Rupanyup Primary School and reports from their teachers indicate they were progressing well and that you have cared for them very well.
26 Throughout the proceedings, you have continued to be supported by your mother and stepfather. Your mother, in a long statement to this court, expressed a desire that you and your children move to live near her and your stepfather, with whom you also enjoy a good relationship, to “supply the support and positive influence that she so badly needs”.
27 Psychologist, Professor K F Bennet, in his report dated 24 March 2016, diagnosed you as suffering both a dependent personality disorder and what he described as a severe and permanent post-traumatic stress disorder associated with your partner’s fatal motor vehicle accident, which he said the 2014 collision had intensified and further debilitated you.
28 This diagnosis was supported by Dr Glowinski, who also found that you had a poly-substance abuse disorder, the main substances being amphetamines and cannabis. He also stated it was possible your post-traumatic stress disorder symptoms were being dulled by substance abuse, that is you were self-medicating. He described you as a highly vulnerable individual with multiple psychosocial needs. I certainly accept that the years following your partner’s death were lonely and difficult ones, with you experiencing some hostility from the residents of Rupanyup. You admitted to Dr Glowinski that you often turned to drugs because of loneliness. I do accept that you have cared for your children in the interim, in an appropriate, loving and attentive way.
29
The situation of each of your children is certainly one requiring some examination by this court and reports as to their current psychological and physical conditions were provided. It is because at law the court is required to take into account, what can be termed, exceptional conditions of hardship suffered by family members, should another family member be gaoled. In his report dated 1 May 2017, psychologist, Dr Simon Kennedy, in relation to Myles, noted that he had been evaluated by a clinical neuropsychologist as having cognitive functioning in the average range of intellectual abilities, but neurological examination had indicated no permanent impairment from a neurological point of view as a result of 2011 accident.. Bastion, who suffered extensive skull fractures with other multiple fractures, was found following the accident to have suffered frontal and temporal lobe contusions and
Dr Kennedy noted that it was indicated he had an acute brain injury. He also noted that a neuropsychological evaluation in March 2013 suggested Bastion’s verbal and performance IQ scores were within the borderline range of intellectual abilities “with Bastion having significant levels of behavioural and mood disturbance with significant levels of hyperactivity, aggression and atypical behaviours”. He went on “It was concluded that there was clear evidence of decline in cognitive functioning after the accident, that is the 2011 accident, with hyperactivity and poor attention span, with the conclusion that there was an organic brain injury in the accident due to head trauma and emotional and behavioural disturbance due to brain injury.”
30 Further evaluation in 2016 also disclosed a neurocognitive disorder due to traumatic brain injury, as well as a separation anxiety disorder. Dr Kennedy interviewed both boys and stated, “Considering the fact that there have also been problems associated with their early years through exposure to their parents’ problems, both children are acutely vulnerable. Bastion suffers from separation anxiety and Myles has ongoing bowel problems.” He went on, “Despite the above, it is also clear that the children have a positive relationship with their mother, who appears to have attempted to resolve her own psychological and substance abuse problems, and is well connected to treatment services.”
31 Turning to that aspect briefly, it appears that whilst you attended court-mandated drug and alcohol counselling in 2012 pursuant to the Community Based Order, this amounted to about eight sessions. You have attended counselling once recently, but did not progress with it. It appears you have basically undertaken illicit drug abstinence of your own accord in the years since the collision which has brought you before this court.
32 In relation to the children, unsurprisingly, Dr Kennedy stated that incarceration produced significant negative effects on these children, as it would on any child, and was inevitably likely to cause permanent psychological difficulties for them, particularly so in this case where you are the only parent living. He believed their experience of any incarceration of you would likely be traumatic and likely to have a permanent effect on each child. He concluded, “Both children have vulnerability and behavioural difficulties already, and as such it is likely there would be marked exacerbation of those behavioural difficulties in the absence of the parental attachment.” It does appear, however, that the medical conditions suffered by Myles are well controlled and that, in terms of presenting difficulties, these are more to be found in relation to Bastion, who exhibits impulsive and sometimes aggressive behaviour as a result of the closed head injury he received in the 2011 accident.
33 I received a large number of victim impact statements in this matter, and they made most distressing reading. I will refer briefly to each, beginning with the statement of Daniel Krause, the son of Mrs Cassells.
34 Mr Krause described the immense shock of seeing his stepfather, Geoff, in ICU, stating “This, along with the many other visits after the first, is something I have nightmares about.” He said “Nightmares have become a constant thing after this horrible collision, I dream about my mum and Geoff being conscious in the twisted car wreck, my mother’s mangled body while she gasps for her last breath. I dream about the blunt trauma that they were subject to in those few microseconds when the cars collided.” This interferes significantly with his sleep. Mr Krause said that he turned to alcohol, ultimately spiralling into depression and alcoholism, his then relationship broke down, he took a promotion which involved a move to Sydney in order to “get away”, but had great difficulty with his new colleagues “to a point where work paid for external mediators to resolve the conflict”. He stated that the impact this would have on his future career within the company was still unknown “but I attribute my erratic behaviour solely to the collision and subsequent snowball as a result of the collision”. He noted that within the same company he had, prior to the accident, been awarded a trophy for the most outstanding contribution in Victoria. He stated “Within the space of a year I went from being the top of my game to barely holding to my position within the company.” He stated, unsurprisingly, that the impact would be something that would last the rest of his and his family’s lives. He concluded “The family Christmas we will never have again, the Mother’s Day we will not celebrate, the grandmother that will never be, the loss of a friend, a wife, a sister, a mother, a truly caring, loving person that was my best friend and mother.”
35 Mrs Cassells’ sister-in-law, Julie Krause, who was in fact driving the car which was following the Cassells, although this was not known to her, stated that she felt immense guilt at not being able to save her sister-in-law, had lost enthusiasm for life, became terrified of driving to the point she ultimately had to see a counsellor, and spoke of the great anguish she suffered at being unable to comfort her niece, Mrs Cassells’ daughter, as she was a witness and there were contested proceedings on foot and so they were forbidden from speaking.
36 Wendy Orchard, Mrs Cassells’ eldest sister, noted that hers was a close family and that Mrs Cassells, the youngest, was dearly loved and had left a huge hole in the lives of her relatives. Mrs Orchard was unable to sleep, eat or function, was still grieving, and has had to seek treatment for depression. The situation of her brother-in-law, which I will refer to later, which is also something which continues to cause her ongoing distress.
37 Another sister, Ros Potter, spoke of her distress and anger on hearing of her sister’s death, of ongoing sleeplessness, of brooding intensely over the injuries suffered by her sister, as she is a nurse and has some knowledge relating to the injuries Mrs Cassells suffered, of eating poorly stating, “I don’t feel as if I’m the same person anymore. I’m cynical, pessimistic, intolerant and very unhappy and I’m scared how much anger and frustration I have within me.” She thinks constantly of Mr Cassells current situation.
38 A third sister, Pauline Huff, wrote of the enduring pain, the emotional roller coaster, the difficulty in grieving, the continuous bad days, and the enduring grief around missing a clearly dearly loved sister.
39 Melinda Dine, a daughter of Mrs Cassells, wrote of her extreme grief, the fact that her mother missed her wedding, stating “I always pick up the phone, I should ring her, but remember she is no longer with us and that is always devastating.” Ms Dine stated that, in addition, she experienced high levels of anxiety when travelling, so that every day her daily commute to work either by car or public transport “is fraught with high anxiety that something bad could happen at any moment”. She described herself as incredibly jumpy and as avoiding driving, or even travelling as a passenger, as much as possible. On one recent trip, she experienced a severe panic attack. Ms Dine also spoke about the plight of her stepfather, who now lives in supported care and suffers a severe acquired brain injury, stating, “I witnessed a man, who was once happy-go-lucky, not even able to tell anyone his own name or shower unsupervised.” Mr Cassells, I note, continues to suffer from post-traumatic amnesia. She stated, “He was not in a state to be told his wife had passed away, nor would he remember if he was told. There were times when I’d visit him and he thought I was my mother and would get so upset at me that I hadn’t visited him. I had to go along with pretending I was his wife.” Ms Dine also spoke of one aspect, that was repeated throughout the victim impact statements, which was an enduring sense of the ripple effect this had had upon her extended family as a whole, and a sense of guilt by many families at being unable to adequately console and care for other distressed and grieving members of the family whilst legal proceedings were on foot.
40 It is clear Mrs Cassells was a dearly loved sister and mother, that her death has had a most severe impact upon all members of her close-knit family who continue to grieve and suffer emotional trauma, and it is only to be expected, unfortunately, this will continue for some time to come and the court very fully recognises that and I hope I haven't left anyone's victim impact statement out. I went through very carefully. Thank you.
41 Turning specifically to the injuries suffered by Mr Geoffrey Cassells, it is clear from the medical reports I received that those injuries continue to be severe and ongoing, and impact catastrophically upon his quality of life. He lives in supported care and will never work again. He continues to suffer “significant gaps”. While he is now able to shower and dress himself, and prepares his own meals, he must continue to live in supportive accommodation. The latest report, which was an update from his general practitioner, Dr Elizabeth Ellis, dated 1 November 2016, noted that she had been treating him since April 2015, and that in the time she had been treating him, she had not noticed any significant change or improvement in his level of functioning. She stated that he suffered cognitive impairment and required carer support on a regular basis. She said he would never be able to be employed again. He has been unable to retain his driver licence, which has caused him a great deal of grief and distress, as has his inability to return to his hometown due to his need for ongoing support. He is on antidepressant medication. In summary, he received a severe traumatic brain injury, which affects his quality of life at all levels.
42 In her victim impact statement, Mr Cassells’ daughter, Kahli Cassells, wrote that, “The collision has changed my father’s life forever.” Mr Cassells’ memory did not recover sufficiently for three months for him to be told of his wife’s death. He had previously embraced the culture of a small country town. Presented as a vigorous outgoing man, he was on the football club committee, taught first aid and was a leader volunteer in the Country Fire Association. All those activities are now denied to him. She stated, “His brain is broken. It ticks over with thoughts and memories that don’t stay long enough for him to grasp them.” His family now has the responsibility of looking after his affairs, and Kahli notes “He has lost his independence and he will be forever dependent on his children”.
43 I have gone into the victim impact statements in some detail. This was a terrible and tragic accident involving the death of one beloved family member and the permanent disabling of another. It is quite clear Mr and Mrs Cassells were and are much loved family members, and respect for the ongoing grief and trauma suffered by those family members meant, in my view, that particular respect and attention should be paid in these sentencing remarks to their loss and trauma.
44 Your counsel submitted I should deal with you by way of a straight CCO, involving no custodial penalty. I have made it clear I regard this as a completely inadequate response to this offending, and that I accept the prosecution submission that a term of imprisonment is appropriately imposed in your case and indeed I made that clear to you at the last previous hearing and adjourned sentencing for a longer period of time then I otherwise would. Understanding that you had to make arrangements for your children.
45 The sentencing principles a court must have regard to in cases of dangerous driving causing death and dangerous driving causing serious injury, are encapsulated in the Court of Criminal Appeal decision of Neethiling [2009] VSCA 116. There the court referred to and approved a number of decisions from the New South Wales Court of Criminal Appeal, they being general propositions which I now outline.
46 (1) General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or dangerous driving causing serious injury.
47 (2) a person who kills or seriously injures another while dangerously driving is likely to receive a significant term of imprisonment.
48 (3) the sentence imposed must take into account variations in the moral culpability of the person responsible.
49 (4) a custodial sentence is usually appropriate except where moral culpability is low.
50 An assessment of moral culpability is crucial component of the sentencing process in such cases.
51 The court detailed nine features which may aggravate the seriousness in such cases and five of them, in my view, being present in your case.
52 (1) The extent and nature of the injuries, they being here, death and permanent, serious and life changing disability.
53 (2) The number of people put at risk, both the Cassells, other road users and your children.
54 (3) The degree of intoxication of substance abuse. I refer here to the expert opinions of Dr Odell and others as to your ingestion of drugs and their likely effect on your driving and the quality of the limited sleep you had had before driving on that day.
55 (4) The length of the journey where others were exposed to risk, that being a 70 kilometre journey.
56 (5) The degree of sleep deprivation which was in my view significant when combined with drug use.
57 It was submitted by your counsel that other aggravating features such as excessive speed, erratic, aggressive or competitive driving prior to the collision, ignoring warning signs, driving while escaping police pursuit or failing to stop were not present in this case and therefore this meant that your driving fell into a less serious category.
58 It was also submitted by your counsel that your decision to drive should be categorised as a mistake. I do not agree with this decision. All drivers are obliged to make appropriate decisions around their driving including their capacity to drive at all. In my view your decision to drive a considerable distance after ingesting drugs and staying up most of the night was one where you all but abandoned your duty of care to other persons driving or passengers in other cars on the road. In my view your moral culpability is high.
59 By way of mitigation however, I do take into account your plea of guilty, which in relation to these charges I accept was made at an early stage. There has also been a considerable delay in this case as the prosecution sought a ruling in relation to the admissibility of certain evidence in this case which would have supported the more serious charge of culpable driving, which charge was resisted by you and that evidence ultimately being ruled out as inadmissible. I accept that this delay has been onerous for you.
60 I accept that you are genuinely remorseful for your offending.
61 I accept that you have had a difficult life, particularly since the death of your former partner, and with the injuries incurred by your then very young sons in that fatal collision. I accept that as a result you have developed a post-traumatic stress disorder which has remained largely untreated, you residing in a remote township and having sole care of your two sons both of whom, in particular Bastion, suffer medical and psychological difficulties. You appear to have dealt with this condition, on occasion, by medicating with illicit substances, as I have said.
62 I take into account that your post-traumatic stress disorder and the undoubted difficulties your sons will face in your absence will make service of a sentence more difficult for you. Whilst I accept the psychological material as to those negative effects arising from their separation from you, in relation to your son's, I do not find that they amount to the legal definition of exceptional hardship upon family members and hence are not to be applied as a mitigatory factor in this case.
63 I accept that you have reasonable prospects of rehabilitation given the evident strong support of your mother and stepfather who have travelled interstate to attend every hearing in this matter and who offer you and your sons a home on your release from prison.
64 Again, in my view however, your moral culpability is high, that there are a number of aggravating features present in this case.
65 I have also had regard, as I must, pursuant to s.5 of the Sentencing Act, to other sentences imposed in this court and also in relation to decisions from the Court of Criminal Appeal, supplied in a most useful table of sentences, by the OPP instructing solicitor in this case, for which I thank him and I have framed the sentence accordingly.
66 Before I hand down this sentence, I want to make something very clear to the family who have, as I have said, clearly suffered enormously and who have attended every hearing in this case, which must have been extraordinarily difficult for them. The sentence I am about to impose in no way can and is not designed to represent the value of the life lost and the life so significantly impaired. I want you to make that very, very clear. And it does not mean that the court fails to recognise the value of those lives or the extreme damage done and the enormous suffering that continues. I want to make it very clear to you all, that is, you expressed that so clearly in your victim impact statements and it is entirely and respectfully recognised by this court. I am obliged to sentence within certain parameters and what I am trying to say and it can be difficult for persons such as yourselves to understand this, I had regard to those sentencing parameter, looked at other cases; I am bound to do this, all right.
67
I just want to make it very clear to you, this sentence is what is regarded as a legally appropriate sentence, it is not designed to measure the life of
Ms Cassell, it is not meant to measure the quality of a life and the life designed by Geoffrey Cassell's. Is that really clear? I want to save you from any further suffering, if I may. It may not cause you any but it is very difficult for people to come to court and understand what all the processes are and I do hope in this process that I have been as clear as I possible could be and I hope that you do understand what has occurred. Could I just ask is there anyone at this stage that has got any questions, all right.
68 Nothing can take away your suffering but hopefully a court does not add to it, all right. As much as it can, the proceedings in themselves are inherently traumatic and I recognise that. Thank you.
69 Taking into account the adverse and mitigatory features of this case I therefore sentence you as follows. Could you stand up please.
70 On Charge 1, you are sentenced to four years' imprisonment.
71 On Charge 2, you are sentenced to three years' imprisonment.
72 I order that one year of the sentence imposed on Charge 2 be imposed cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of five years.
73 I order that you serve a minimum term of two years and ten months. Are there any pre-sentence detention days?
74 INSTRUCTOR: No, Your Honour.
75 HER HONOUR: Thank you. Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six years' and order that you serve a minimum term of four years. Thank you. Is there anything else that I need to deal with?
76 INSTRUCTOR: Your Honour, there is an application for a forensic sample order.
77 HER HONOUR: Yes.
78 INSTRUCTOR: And also - - -
79 HER HONOUR: You can have a seat, thank you, Ms Stocker.
80 INSTRUCTOR: Also, Your Honour, a mandatory licence cancellation and disqualification.
81 HER HONOUR: Yes, your licence is cancelled, you are disqualified from obtaining any further licence for a period of six years. Thank you. There's no objection to the - - -
82 MR BOURKE: No, Your Honour.
83 HER HONOUR: I need to inform you, Ms Stocker, that I have ordered that police take an intimate sample, which will be a swab from your mouth. Police are entitled to use reasonable force in order to obtain this swab should you resist them taking it, thank you. Just excuse me, I'll just finish this.
84 INSTRUCTOR: Your Honour, if I could mention, I did check those maximum penalty provisions. My understand was that it was ten years for Charge 1 of dangerous driving causing death and five years for Charge 2.
85 HER HONOUR: I don't think that's right. I think that that was increased in 2008 or nine.
86 INSTRUCTOR: There was an amendment in March 2008, Your Honour, which separated dangerous driving causing death and dangerous driving causing serious injury - - -
87 HER HONOUR: Right.
88 INSTRUCTOR: - - - into two separate offences.
89 HER HONOUR: Yes.
90 INSTRUCTOR: And Created those new penalty provisions of ten years and five years respectively. My reading of the current Crimes Act and the Crimes Act at the time of the offence, Your Honour, has a maximum period of five years for the cause of serious injury.
91 HER HONOUR: Still, I thought it had been increased.
92 INSTRUCTOR: Your Honour, I can hand up to Your Honour what I've been looking at.
93 HER HONOUR: Sure. Let me just call it up here.
94 INSTRUCTOR: Apologies, Your Honour - - -
95 HER HONOUR: No that's all right.
96 INSTRUCTOR: - - - iPad is a bit difficult.
97 HER HONOUR: Of course, as soon as I want to use this it decides it's going to asleep isn't it. I'm calling up the Victorian Sentencing Manuel.
98 INSTRUCTOR: Yes, Your Honour.
99 HER HONOUR: Because the act is so obscurely drafted. Not helping me.
100 INSTRUCTOR: Your Honour, what I have on my screen here is the Crimes Act, in operation at the time of the offence.
101 HER HONOUR: Yes.
102 INSTRUCTOR: Section 3(19).
103 HER HONOUR: Yes. So that's a driving death, thank you. It's five years.
104 INSTRUCTOR: Yes, Your Honour.
105 HER HONOUR: All right. Well look, I'm going to have to revisit that. All right, so when a judge refers in a sentencing remark to the maximum penalty, that is something that a law the judge has to have regard to. So if it's ten years then whatever percentage the sentence that you impose as a result of that maximum penalty, is a sort of an indication of the seriousness. And appeals can be made on the basis that a judge has either imposed a sentence that can be called manifestly indicate, that is not enough or manifestly excessive. One of the things a Court of Criminal Appeal will look at and what is required to be looked at, at law; is what percentage of the maximum a judge has imposed.
106 I have sentenced Ms Stocker in relation to the dangerous driving causing serious injury with the view that the maximum penalty was ten years and it appears that I am wrong about that. It's not going to effect the ultimate outcome but I'm going to revisit that instead of imposing three years for that sentence, I'm going to impose two years because of the percentage that it is of a five year maximum. Does that make sense to everyone? However, I'm still going to order that one year of that sentence be imposed cumulatively to the sentence imposed on Charge 1 and it still gives and effective sentence of five years, all right. Thank you.
107 INSTRUCTOR: As the court pleases.
108 HER HONOUR: All right, thank you very much. Yes, is that everything that I need to attend to?
109 INSTRUCTOR: Yes, Your Honour.
110 HER HONOUR: Nothing else. I thank counsel for their assistance and again I thank the family for attending on all these occasions. Thank you very much, we will stand down with another matter coming up. Thank you.
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