Director of Public Prosecutions v Stoll

[2024] VCC 717

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01687

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA STOLL

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2024
DATE OF SENTENCE:	20 May 2024
CASE MAY BE CITED AS:	DPP v Stoll
MEDIUM NEUTRAL CITATION:	[2024] VCC 717

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Negligently cause serious injury; Driving under the influence of alcohol; previous charges of driving dangerously; fail to wear seatbelts; victim suffered brain injury. 

Legislation Cited: 87P(b) Sentencing Act 1991 (Vic) ;89C Sentencing Act 1991 (Vic)

Cases Cited: Veen v The Queen (No.2) (1988) 164 CLR 465; Dalgliesh v The Queen [2017] VSCA 360; Berichon v The Queen [2013] VSCA 319; Halket v The Queen [2016] VSCA 21; Da Costa v The Queen [2016] VSCA 49; Byast v The Queen [2021] VSCA 344

Sentence: Four years and three months imprisonment with a minimum of three years to serve before being eligible for parole.

PSD: 118 Days

6AAA: Six years' imprisonment with a minimum of four years to serve before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gray	Office of Public Prosecutions
For the Accused	Mr Y. Yehia

HIS HONOUR:

1Mr Joshua Stoll is now aged 27.  He was 26 at the time of this offending, having been born in July 1996.  He is a concreter and/or labourer by occupation and lives in Leongatha.  The plea was conducted at the Latrobe County Court, Ms Thorpe appeared on behalf of the Director and Mr Cash appeared on behalf of Mr Stoll.  Today, Ms Gray appears on behalf of the Director and Mr Yehia on behalf of Mr Stoll.

2Indictment No. N12675739 contains only one charge that on 10 December 2022 Mr Stoll negligently drove his car in a manner which caused serious injury to Mr Matthew Bull.  In the plea, Mr Cash accepted that Exhibit A presents the facts upon which I am to sentence Mr Stoll.  Negligently cause serious injury under the Crimes Act brings with it a maximum penalty of 10 years imprisonment.  It is also a serious motor vehicle offence for which pursuant to 87P(b) of the Sentencing Act 1991 (Vic), a minimum period of cancellation and disqualification must be made of 24 months. Pursuant to 89C of the Sentencing Act, if one makes a finding that alcohol was a cause of the collision, which I do in this case, notification has to be given to the Department of Transport.

3As I said, this driving and accident thereafter, took place on the Tamboritha Road in Licola.  Mr Stoll was travelling south upon Tamboritha Road, that being a road which has a 100-kilometre designation.  Going into a left-hand bend, Mr Stoll failed to negotiate the bend, and the car ended up down an embankment.  It is to be noted there was an advisory sign insofar as the bend was concerned which I will come to later.  The car rolled approximately 5 metres down the bank a number of times.  The front seat passenger, Mr Matthew Bull, was injured.  He was 23 at the time.

4Subsequently, a sample was taken of Mr Stoll's blood alcohol content and expert evidence which I will also detail later, estimates that at the time of the driving, taking it at the lowest that the estimate is, Mr Stoll would have been at least .131 per cent.  The background to this offending is that both Mr Bull and Mr Stoll with others had been camping in Licola.  As I said, there was nothing wrong with the vehicle.  It was tested and found to be in good condition as set out in Exhibit E.

5In addition to the one charge under the indictment, Mr Stoll is also charged with two summary charges.  The first is Charge 2, driving while disqualified, and it is to be noted, that is as I understand the background, the fourth such offence and the penalty imposed for such is 240 penalty units or two years' gaol. Charge 3 was a seatbelt charge, fail to wear a seatbelt, for which the maximum penalty is one of 10 penalty units. 

6Coming then to Mr Bull.  Firstly, it is noted that Mr Bull himself had no seatbelt on.  As a result of the accident, his injuries were such that he was conveyed to the Alfred hospital by helicopter. He required intensive care, where he was intubated and placed in an induced coma.  He suffered multiple fractures to his back and his neck.  He suffers still from post-traumatic amnesia.  He had a brain injury. 

7Insofar as the brain injury is concerned, the technical analysis of that injury described it as Glasgow Score 8 as set out in Exhibit B at 5.2.3.  In Exhibit D, trauma consultant and emergency physician, Dr Noonan from the Alfred Hospital described the totality of the injuries, but in particular the brain injury, as life threatening, Mr Bull was in hospital at the Alfred until 22 December when he then went into rehab and in rehabilitation until he was released from hospital on 5 January 2023.

8Exhibit B, the forensic medical report of Dr Jason Schreiber dated
16 January 2024, refers to a review of Mr Bull which was undertaken on
19 September 2023, approximately nine months after the accident. Dr Schreiber opined that Mr Bull would be left with lifelong impairments as a result of this accident.  Insofar as the need to assess the totality of the injuries as serious, they clearly speak for themselves, but the Court notes the opinion of Dr Schreiber, given at  5.2.9 at p8, of the report and subsequently at paragraph 6.4.2, that the totality of these injuries wrought upon Mr Bull certainly satisfy the definition of serious injury in the Act.

9Coming then to the prior offences of Mr Stoll, albeit still a relatively young man, his priors are certainly concerning.  Some nine months before this accident, he was convicted in the Magistrates' Court of drive manner dangerous and refusing a preliminary breath test.  He was given a 12-month community correction order and indeed was on that order at the time of the accident.  In February 2020, he was also convicted of exceed .05 per cent and careless driving. An analysis of prior offences show, four prior offences for drive while disqualified and then numerous criminal damage offences going back to November of 2015 when he was 18 years of age.

10As I have said earlier, this offending, that is, this accident that injured Mr Bull, took place only nine months after he had been placed on a community correction order for drive in a manner dangerous.  Such behaviour in totality is concerning to the Court.  I should however assure Mr Stoll that he does not come here to be sentenced again for those crimes.  Those matters have already been dealt with.  They are relevant however, as said by the High Court in Veen v The Queen (No.2) (1988) 164 CLR 465, at [477], in regard to antecedent criminal behaviour:

The first is that the antecedent criminal history of the offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.

11On the same page, they went on to say:

Where there is a continuing attitude of disobedience of the law, the Court can take into account matters of retribution, deterrence and protection of society which may all indicate a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal behaviour when it illuminates the moral culpability of the offender and/or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

12I should say in this regard I also take into account the determination of the Court of Appeal of this State in Berichon v The Queen [2013] VSCA 319, at [44] where the Court of Appeal said this:

The applicant had a very serious and disturbing prior history with respect to, (in this case, the use of firearms).  Although, of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.

13I come then to the submissions of the prosecution.  The prosecution made written submissions.  They submitted that the Court should conclude that this is a serious example, albeit that there was no victim impact statement filed, of negligent driving causing serious injury as a consequence of inappropriate driving on a public road while under the influence of liquor.  In that regard, the prosecutor stressed the need for personal deterrence given the prior offences.

14In regard to the negligent driving, the evidence in regard to the reading of .131 per cent at the time of the collision of Mr Stoll comes from the exhibit tendered today, that is the forensic physician, Dr Schreiber, who at paragraph 5.3 gave the opinion that a person driving with such a reading presents 'an appreciable risk of injury to himself and the public'.  As to the speed, the estimate was of course that the speed was in excess of the advisable speed of 40 – what is the problem, Officer?

15PRISON OFFICER:  Sorry, Your Honour, the accused will be taking a short break.

16MR YEHIA:  Apologies, Your Honour, it seems that Mr Stoll has a weak bladder.

17HIS HONOUR:  Right.  Yes, Officer, you can take him down.

18MR YEHIA:  Apologies, Your Honour.

19HIS HONOUR:  It is not a problem.  I might stand down for a short time.

20(Short adjournment.)

21HIS HONOUR:  I will just take the opportunity before I continue to mention the other summary charges here.  There were three charges.  Charge 2 was the drive while disqualified.  Charge 3 was driver fail to wear seatbelt and Charge 4 was fail to answer bail and that was a speeding charge, as I understand, which happened subsequently.  So, I had just in my sentence mentioned the analysis as to the alcohol reading and I was coming to the speed and as to the speed, as I have said, this road was zoned 100 kilometres per hour, albeit that an advisory speed sign prior to the bend was 40 kilometres per hour.

22The estimate of Mr Stoll's speed as he came around the bend was 52 kilometres per hour; hence, he was travelling well within the speed limit, albeit over the advisory speed limit.  The road was dry, the weather was fine.  There is also evidence apparently that the car may have been loaded with some wood that they had collected.  Insofar as the circumstances of the accident, given the material before the Court, the Court is unable to make a finding as to the cause of the collision beyond reasonable doubt. Of course, given the plea and the evidence, the only factor that appears to be relevant is the fact of his intoxication and that is the reason why I rely on the opinion of Dr Schrieber.

23Unfortunately, the victim as I have said was not wearing a seatbelt and while the matter is not relevant to the negligent driving of Mr Stoll, it was no doubt a contributor to the seriousness of his injuries.  The prosecution submitted that a combined sentence, that is a community correction order and a period in gaol was not appropriate, with which I agree and which I told Mr Cash.  As I have already mentioned, also at the time of the offence, Mr Stoll was on bail for a subsequent speeding offence and insofar as the prosecution submission was concerned, a number of cases were put to me by way of utilisation in the determination of the sentence in this matter. 

24The first of those was Halket [2016] VSCA 21 and the second was Da Costa [2016] VSCA 49. Both, in my view, were circumstances in excess of the seriousness of this matter. Da Costa in particular involved travelling through a red light at high speed in circumstances where the risk of serious injury is obvious. The matter of Cook [2021] VSCA 293 again involved very, very excessive speed, 170 kilometres per hour in an 80 kilometres per hour area, together with excessive alcohol. In my view, the sentence in Cook was more an appropriate consideration, than the sentences involved in the other cases referred to.

25I also considered the case of Byast [2021] VSCA 344. This involved again an excessive speeding of 108 kilometres per hour in a 40 kilometres per hour zone, but in addition to that, it was in a very small residential street where essentially there was only room for one car. The speeding in the circumstances led to a head-on accident, leading the Court not only to impose seven years' gaol, but to opine that the driving was appalling and totally irresponsible.

26Mr Stoll's driving was obviously deliberate in the sense that he has driven a car while intoxicated. However, as I cannot discern anything further about the driving, I discriminate from the cases that I have referred to. In this case I find the negligence is demonstrated by his driving in an alcoholic state.

27Insofar as the assessment of comparable cases are concerned, this was referred to by the Court of Appeal in Hasan v The Queen [2010] VSCA 352 where the following was said:

Following an appropriate study of comparable cases, together with the application of relevant sentencing principles, the judge will be in a position to identify the boundaries marking the range upon which the particular sentence must fall.  Up to this point, the exercise will have been largely objective but with an element of the subjective introduced by the process of instinctive synthesis without which the case for which the offender upon whom the sentenced is to be imposed cannot be assessed.

28I also refer to the determination of the High Court in R v Pham [2015] CLR 550, at [29], when they essentially refer to comparable cases as “yardsticks” which serve to illustrate, albeit not define, the possible ranges of sentences that a Court may impose. The history of the offence of course demonstrates that the Parliament in 2008 decided, given the preponderance of such offences, in order to protect the community to increase the penalty from a maximum penalty of five years to 10 years.

29The Court of Appeal in this State in Harrison v The Queen (2015) 49 VR 619, at [44], noted that the objective seriousness is to be assessed by the degree of negligence and the seriousness of the injuries. At [44] of that case, the Court said while a Boulton determination by way of a combined community correction order was a possibility, a Court must however look at issues of punishment, denunciation and deterrence in cases of negligently causing serious injury. 

30I finally determine that this offending is certainly not in the upper range of some of the cases as put to me by the prosecution.  I determine that the negligent driving in this case is of moderate objective seriousness, on the facts before the Court which is the alcoholic reading, the driving that led to the collision of which I do not know beyond reasonable doubt what that was. However clearly the collision occurred while Mr Stoll was in such a state, and of course the plea is made on such basis.

31In the submission put by Mr Cash, he described his plea as somewhat bold.  I agreed with Mr Cash and indicated to him that the circumstances were such that I did not think a community correction would be appropriate.  Nor did I think that even if I granted a combined period of imprisonment and a community correction order, that 57 days would be sufficient given the seriousness of the offence.  Mr Cash put to me the issues of delay and I accept that Mr Stoll has had to wait 15 months to get to this point.  In the totality of the operation of the criminal law, while I do not consider such a delay excessive, I do take it into account in the sentence.

32Mr Cash stressed Mr Stoll’s remorse, the utilitarian benefit of the plea and the assistance to justice by that plea.  Mr Cash made the submission which I accept that Mr Stoll is genuinely remorseful for the injuries that he has caused.  Mr Cash sought from the Court a merciful sentence based upon Mr Stoll's relative youth and hopes for rehabilitation.  Mr Cash put to the Court that Mr Stoll is a good prospect for rehabilitation.  Clearly that depends on him handling his propensity to excessively utilise alcohol.  In particular, in this matter I have considered the character report of Bronwyn Beech and clearly given her skills, I endorse the observation of the problems that Mr Stoll has come upon in his life because of excessive alcohol and that there is only one alternative for him, and that is long-term abstinence.

33On the evidence that was put by the character witnesses, clearly, despite this crime, Mr Stoll has not been abstinent, he breached a period of abstinence as referred to in Exhibit 3 by Ms Beech, it also appears from the evidence before the Court that he continues to consume alcohol.  I accept that he is a good character, apart from his driving record. I accept that he is a very good and hard worker.  I was impressed by the character statements.  He had the strong support of Stacey Patterson who is a clinical nurse specialist.  He had four strong supporting character witnesses.  Mr Dow, a friend for 15 years, confirmed that he was remorseful and keen to maintain abstinence.  His ex-partner, Ms Chilbert, who spent some five to six years with him and is parent with him to one of her children, spoke of his steps taken to assist the children despite the separation and the support that he gives her.  His employer, Mr Bracecamp, spoke of him being an excellent employee and to use his words 'a great worker', and that he relies on him and would find it very difficult to find a person that could work as well as he has. Such was confirmed by Mr Herrald and Mr Wilson (Exhibit 4).

34Finally, insofar as this sentence is concerned, I take into account the principles set out by the High Court in Dalgliesh [2017] VSCA 360. That joint judgment emphasised that you, Mr Stoll, are entitled by way of the administration of the criminal law to a sentence which is just and gives to you individualised justice based upon the facts of your case. It is just such a sentence that I have constructed in accordance with such principles. I will ask you to stand please.

35On the major charge in indictment No. N12675739, the charge of negligently cause serious injury to Matthew Bull, you will be convicted of such offence and sentenced to imprisonment for four years.

36Insofar as the summary matters are concerned, Charge 2, drive while disqualified, you will be sentenced to imprisonment for six months.  In regard to the no seatbelt charge, Summary Charge 3, you will be fined three penalty units.  In regard to Charge 4, fail to answer bail, you will be sentenced to imprisonment for three months.

37Insofar as the sentence of four years on Charge 1 on the indictment, I order that in regard to the drive while disqualified charge of six months, that three months of that sentence be served cumulatively upon the sentence imposed for the indictable offence, thereby making a total effective sentence of four years and three months. 

38As to that period Mr Stoll, I order that you must serve three years before being eligible for parole. That is, of the sentence of four years and three months before you are eligible for parole, you must serve a period of three years' imprisonment.  The pre-sentence detention Madam Prosecutor, was one hundred and eighteen days, which I declare to be served as part of this sentence and order that such declaration be entered into the records of this Court.

39The Parliament requires me to tell you the sentence that would have befallen you had you not pleaded guilty.  The purpose of that is to make sure that you understand the difference.  Had you not pleaded guilty, I would not have sentenced you to imprisonment for four years and three months with a minimum of three years to serve, but six years' imprisonment with a minimum of four years to serve.

40Mr Stoll, it is necessary for me in addition to take steps in regard to your licence.  Pursuant to the fact that this offence is a serious driving offence, your licence, albeit you do not have one, pursuant to s 89(2)(b) you will be excluded for a period of two years from today from obtaining a licence and notice of that order will be given to the Transport Department.

41Also notice will be given under 89C of my finding that this offence was contributed to by the consumption of alcohol by you.  Again, such notice has to be sent to the Transport Department.  I have signed the disposal order, Madam Prosecutor.  

42Finally, Mr Stoll, while no Court enjoys putting people in gaol, there was no option, as I told Mr Cash, given your criminal behaviour.  You have now in regard to your driving had a significant number of offences.  The hopes of the people who spoke on your behalf and the professional opinion in regard to you is such that you really cannot drink again.  You come out and start drinking again and you are likely to be engaged in further offending, and the next sentence will not be as merciful as this, I can assure you. 

43Yes, any matters from either counsel?

44MS GRAY:  No, Your Honour.

45HIS HONOUR:  Yes, Mr Stoll can be taken away.  I am sorry?

46MR YEHIA:  That concludes the matter, Your Honour.

47HIS HONOUR:  Pardon?

48MR YEHIA:  Nothing further.

49HIS HONOUR:  Nothing for you.  Yes, thank you.  Good luck, Mr Stoll.  Let us hope that intent to change your life happens.  Thank you.  Yes, thank you.  I will stand down.

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