Director of Public Prosecutions v Street

[2020] VCC 1987

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00463

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS STREET

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2020
DATE OF SENTENCE:	8 December 2020
CASE MAY BE CITED AS:	DPP v Street
MEDIUM NEUTRAL CITATION:	[2020] VCC 1987

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran (Plea) Ms S. Jankovic (Sentence)	Office of Public Prosecutions
For the Accused	Mr A. Sim	Balmer & Associates

HIS HONOUR:

Introduction

1Thomas Street, you have pleaded guilty to one charge that on 27 May 2019, you failed to stop your vehicle immediately after a motor vehicle accident and render such assistance as you could at the scene of the accident in circumstances where a person was killed.

2This is an offence created by s.61(3) of the Road Safety Act 1986. It carries a maximum penalty of 10 years' imprisonment or a fine of up to 1,200 penalty units, which is $198,264.

3There is also a requirement to cancel any licence or permit to drive a motor vehicle which you hold and whether or not you hold such a licence or permit, disqualify you from obtaining a licence or permit. Since you are a first offender for the purposes of s.61 of the Road Safety Act 1986, the minimum period of disqualification is four years.

Circumstances

4Shortly after 6 pm on Monday, 27 May 2019, you were driving your motor vehicle west along Ballarat Road, Ardeer.  Your vehicle was in outer of three lanes for westbound traffic.  It was dark and had begun to rain.

5Near the intersection of Ballarat Road and Verdant Avenue, the deceased[1] walked into the path of your vehicle while crossing Ballarat Road.  She was struck by the front of your vehicle.  She then struck by the windscreen, penetrating it and ending imbedded within the cabin on the passenger's side.  These events meant her death was instantaneous.

[1] Abiol Manyang.

6At the time, the deceased was temporarily residing at a motel with two of her daughters.  The motel was on the north side of Ballarat Road, a short distance from the point of collision.

7You drove for another 220 metres before pulling over into a service road.  You got out of the vehicle and removed the body, placing it on a grassed area between the footpath and the roadway.  On that side of Ballarat Road are community facilities such as motels.  On the other side are private residences.

8You then drove away at a fast rate.  At about 7 pm, a passing driver noticed the body.  The police were notified.  An ambulance attended at about 7.53 pm.

9Meanwhile, you drove to your home in Cairnlea.  You drove your vehicle into the backyard and parked it between two other vehicles.  You removed its rear number plate and then covered it with a car cover.

10You shared the home with two others.  You told one of them, Jake Woolsey, you thought you had hit someone.  After some counselling by Mr Woolsey, his girlfriend and her parents, you went with them to the Sunshine Police Station the next day at 12.45 pm.  You were arrested and interviewed.

11During your interview, you admitted driving your vehicle when it was struck by the deceased, leaving the scene and driving to your home.  You admitted covering the vehicle but denied removing the rear number plate.  You admitted taking a shower when you arrived home.  Overall, you were largely co-operative with the police and that co-operation is some evidence of remorse.

12At the time of the collision, your motor vehicle was unregistered, having had its registration cancelled on 13 January 2019.  This constitutes a separate charge.  The cancellation arise out of hoon driving, whether by you or someone else.  Nevertheless, you knew its registration was cancelled and should not have been driving that motor vehicle at the time of the accident.

13A mechanical inspection of your motor vehicle revealed no issues which could have caused the collision.

14At the police station a sample of your blood was taken and analysed.  It revealed the presence of cannabis.  However, the prosecution does not say its presence in your blood contributed to the cause of the accident.  Plainly, the analysis did not find the presence of alcohol.

15A sample of the deceased's blood was also analysed to reveal a very significant blood alcohol content.

Criminal history

16Excluding this matter and your appearance in court on 15 July 2020, you have appeared before a court on three occasions and have been found guilty or convicted of a total of 17 charges.  These appearances occurred between
14 April 2009 and 30 October 2019.  The charges relate to your driving and included driving at a speed dangerous and recklessly causing injury.  You were penalised by fines and an adjourned undertaking.

17On 10 October 2019, there were nine offences, including two charges of driving while you licence was suspended and one charge of driving while disqualified.  You were fined a total of $800.

18On 15 July 2020, you appeared in court charged with offences involving a firearm, dishonesty, breaches of bail and three relating to driving.  You were sentenced to 120 days' imprisonment and fined $1,000.  Any licence or permit to drive a motor vehicle was cancelled and you were disqualified from obtaining a licence or permit for 18 months.

19The fact you offended while on bail for the present charges is significant, I will summarise the circumstances behind those charges.

20On 10 June 2020 at 11.15 pm, police officers found you in a parked motor vehicle in a service station.  The registration plates of the vehicle showed the number YES 086.  The figure O or zero had been stuck over the figure 8.  The true plates had been stolen from a vehicle on 22 April 2020.

21You were seated the driver's seat.  You were alone.  After being removed from the vehicle, the police noticed a black, imitation handgun on the driver's seat.  You had been sitting on it.  According to the police, it had a remarkable resemblance a real firearm.  In the driver's door was a knife.

Guilty plea

22You were charged with the present offences on 28 May 2019.  There was a committal mention hearing on 2 October 2019.  You were committed for trial at a second committal hearing on 18 March 2020.  The first committal mention hearing was adjourned at your request.  Your situation was complicated by your further offending and the revocation of your bail.  You pleaded guilty to these charges on 28 September 2020, having intended to do so on 17 September but was prevented by problems with the audio-visual link.  For much of the time you were unrepresented.

23They are not early pleas of guilty.  Being unrepresented and lacking legal advice led to your indecision about the course to take.  I will take these pleas as coming in the middle of the court's processes.

24The pleas of guilty are some evidence of remorse.

Victim impact statements

25I have heard and read five victim impact statements from members of the deceased's family:  her husband; her children; and her first cousins.  Unusually for these statements in my experience, they reveal a good deal of the deceased's background.

26She was born in Khartoum but raised by her grandmother in a rural part of what is now South Sudan.  In 1991, the civil war came to her village and she and her brother were abducted.  They were forced to walk thousands of miles until reaching a settlement camp at the Ugandan border.  She met and married her husband at one of these settlements.

27With her husband, she was involved indirectly in the liberation movement which led to the creation of South Sudan.  It was her ability to raise their family which enabled her husband to fight on the 'frontline', as he put it.  Nevertheless, the civil war saw the deaths of many members of her family, including, most probably, her mother.

28She was the mother of five children.  Culturally, her husband feels stranded with their daughters, not knowing how best to raise them as a mother would.  Her death has deprived him of his great love.  It has affected him both mentally and physically.

29Despite their background, this is her children's first experience of death of a loved one.  Her second eldest daughter is pregnant.  She will not have her mother present at birth and helping her, which is so important in her culture.  She misses her mother so much, she feels she will never get over the death.

30Most of the statements assert the writer's disbelief in your actions with the deceased immediately after the accident.  In effect, they pose the question:  how could you do that to her?  They do so because they loved her.

31She was greatly respected, admired and loved by her community.  She was greatly loved by her family, including her extended family.  She shared with some of them experiences to which no one should be exposed.  She made a large contribution to her community as a Sunday School teacher, cultural educator and mentor to many young people.  She was a leader in that community.  As an indicator of the regard in which she was held, her funeral was attended by about 5,000 people.

Pre-sentence detention

32Subject to what counsel put to me, excluding today, there are 92 days of
pre-sentence detention.

Personal

33You are now 32.  You are the eldest of four children.  Your parents separated when you were three.  Your mother re-partnered and lived with them.  Your step-father was violent to her.  You witnessed the violence.  Childhood exposure to family violence can have serious effects.  Ms Cokorilo, a psychologist, groups this exposure with the death of your father and your homelessness as the traumatic experiences in your life.

34From about five years old, you lived with your father and had little contact with your mother through fear of your step-father.  You lived with your father until you were 21.  You then went to South Australia where you met your mother again.  After about 12 months, you returned to this state to live with your father again.  Unfortunately, he died two years later.  His death affected you greatly and still does.

35After your father's death, you could not afford the rent of your home.  You left your home and were homeless for a brief time.

36Your contact with your mother has been on and off since you were 21.  However, on your release from prison, you would like to live with her after she has moved from South Australia.

37Throughout primary and secondary school, you struggled, leaving you with weaknesses in reading and writing.  During secondary school, you were teased and isolated.

38After leaving secondary school in Year 10, you have enjoyed almost continuous employment.  You started an apprenticeship in diesel mechanics.  However, you did not finish, completing only 18 months.  You worked as a labourer briefly, a motor mechanic for a year, in the aluminium industry for five years and as an arborist for five years.  At the time of the offence/offences and until June 2020, you worked at Bob Jane T-Mart as a foreman.  You started there as a tyre fitter, progressed to being a wheel aligner and ultimately, a foreman.  You expect to return to that employment upon your release from prison.

39There has been only one significant intimate personal relationship in your life, between 18 and 21.  There have been no others for you find connecting with people difficult for you, for you lack confidence and are shy.

40As with so many others who appear in this court on criminal charges, you have a history of drug use.  You started smoking cannabis at 18.  Your use was daily for two years and then on weekends.  Before your remand, you smoked a joint after work to relax.

41At 24, you and your father smoked methylamphetamines on the weekends. You stopped after twelve months when your father became ill.  After he died, you started again, smoking up to a quarter of a gram daily.  After two years, you sought the help of your general practitioner.  He or she prescribed a medicine, which worked.  You have not used methylamphetamine in the past five years.

Psychologist

42I have already mentioned the psychologist, Sandra Cokorilo.  At the request of your solicitors, she interviewed you on 14 October 2020.  Her report was admitted into evidence[2].

[2] Report dated 7 November 2020.

43Ms Cokorilo took a detailed history from you.  Your step-father was violent to you and very violent to your mother, breaking her nose on one occasion.

44Your father had been your best mate.  His death deprived your of that friendship and, unfortunately, your father's parents ceased contact with you.  Since then, you have had no support from any part of your family.

45One issue stood out for me.  First, you told Ms Cokorilo of an attempt at suicide when you were 21, following the breakdown of your relationship.  You were prescribed anti-depressant medicine for twelve months afterwards.  Second, you told her of another attempt after you were remanded into custody and were placed on suicide watch for four days.  You told her you were miserable and anxious about the accident and the consequences it may have on your life.  Third, you told her that you think about suicide but do not have plans at present.

46Apart from how you presented to Ms Cokorilo, you undertook three of her tests.  Overall, she concluded you were suffering from recognised psychological disorders:  Major Depressive Disorder; and a Generalise Anxiety Disorder.  Although she did not diagnose another disorder, Post-traumatic Stress disorder, she considered most of the symptoms of that disorder were present.

47From what you told her, she suspected you suffered from Autism Spectrum Disorder and suggested a psychiatric examination to determine if this was the case.  Intellectually, one of her tests pointed to you performing at a low level.  Again, she suggested formal testing.

48How did these matters relate to the principal offence?  In her report, she says[3]:

'It is likely that factors outlined above have contributed to Mr Street's offending behaviour.  His low intellectual capacity and coping resources and poor problem-solving abilities are inferred to have played a significant part in his poor decision-making at the time of the accident. He became overwhelmed, panicked and was in shock, unable to think clearly, make calm, rational choices and consider the wrongfulness or consequences of his conduct.  To his credit, he presented himself voluntarily and made full disclosures to the police in the hours following the accident'.

[3] At [100].

49Ms Cokorilo considered you a low risk of re-offending based on few prior matters with no convictions, a history of prosocial function including stable accommodation and employment, no criminal belief system, a willingness to seek treatment and your deep remorse.

50Reading her report, Ms Cokorilo mistakenly thought the charges heard in the Magistrates’ Court on 15 July 2020 were in fact part of the charges before me.  She did understand the offences were committed at different times, May 2019 and June 2020.  When it came to the circumstances of current offending, she described the circumstances of the 29 May 2019 while overlooking the other charges.  In my opinion, her assessment of your risk of re-offending is flawed.  The offences for which you were sentenced in July were committed the previous month, or largely so, while you were on bail for these charges.  I cannot accept her opinion that your risk of re-offending is low for your offending in June indicates that that is not so.

51Ms Cokorilo used what she called 'a cognitive screening instrument' to assess your intellectual capacity.  It indicated you had low intellectual capacity.  I must say that indication sits uneasily with your ability to hold the position of foreman.  One expects the requirements of that position to include the making of decisions and the giving of directions to your fellow employees.  Nevertheless, my uneasiness is an insufficient basis to reject the indication given by her screening instrument.

52Finally, she commented on the effect of imprisonment[4]:

'Imprisonment would likely weigh more heavily on Mr Street than a person without his conditions.  His impairment in emotional regulation can cause undue stress and along with intrusive and hyperarousal symptomatology, it is likely to make imprisonment more onerous for him than an individual without his conditions.  Access to programs and treatment in prison is generally reduced and with the current COVID-19 pandemic, it is unlikely his mental health will be adequately treated'.

[4] At [108].

Discussion

53Objectively, your actions after the accident were dreadful.  You did not stop immediately but drove on for another 220 metres.  You did not render assistance but removed the body from your vehicle, placed it on a grassed area and drove away.  One of the deceased's daughters described your action as dumping her mother on the side of the road as 'if she was just some worthless animal'.  As it turns out, there was no assistance you could have rendered to her personally because of her death.  But you should have sought assistance.  At the very least, you needed to contact emergency services and arrange for an ambulance to attend.  Instead you drove away, leaving the scene of the accident when you should have stayed.  It took almost an hour for her body to be noticed by another motorist.

54After driving home, you hid the motor vehicle in the back yard by parking it between two other vehicles, removed its rear registration plate and covered it with a car cover.  You showered.  These were deliberate attempts or steps to conceal your involvement in the accident.  However, these steps were relatively short-lived for you admitted your offending to the police the next day.  The fact you were encouraged to do so by others is immaterial.  The important thing is that you did.

55It is not suggested your driving led to the accident except, as I said earlier, you should not have been driving that particular motor vehicle at the time.  This is not a case where you should not have been driving at all.  Presumably because of the miniscule quantity of cannabis in your blood, the prosecution does not submit its presence meant you should not have been driving.

56My sentence on the principal offence relates to the events immediately following the collision.  So that you and the victims understand my sentence, I will quote a passage from the case of R v Mohamed[5] which explains the scope of my task:

'It goes without saying that because there is nothing in this sentence which goes to the driving or the actual cause of death, cases such as this are very unsatisfactory from the point of view of the victims, but the law can only punish the conduct the particular offence prohibits or otherwise makes criminal'.

[5] [2009] VSCA 158 at [18].

57I was referred to the case of Wassef v R[6] where Redlich JA gave the leading judgment.  His Honour quoted from the Minister's Second Reading Speech to the Bill which increased the maximum penalty for this offence from two years imprisonment to ten years.  In part, the Minister said in May 2005:

'The Victorian community has been rightly concerned about recent cases where drivers have left the scene of an accident in which a person has been killed or seriously injured without rendering assistance.  Failing to stop in those circumstances is a despicable and cowardly act.  The Bracks government has listened to community concerns about this very serious issue, and as a result the penalties for drivers involved in an accident in which a person is killed or seriously injured who fail to stop and render assistance will be substantially increased.

The maximum penalty of 10 years jail is between the maximum penalties that apply to the offences of dangerous driving causing death or serious injury (5 years) and culpable driving causing death (20 years).

This will help to ensure that a person who suspects that he or she may be charged with one or other of these offences (for example because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene'.

[6] [2011] VSCA 30.

58Part of the rationale for the increased penalty does not apply in your case.  It is not suggested you left the scene of the accident because you suspected being charged with another offence.  You were not affected by alcohol:  you were driving home from work.  You were not affected by drugs.  Your driving itself did not contribute to the occurrence of the accident.

59In the same judgment, His Honour quoted a passage from the judgment of Lasry AJA in R v Harding.  I will quote the first sentence of the passage[7]:

'The object of the section is to force drivers to stop when particular events occur'.

[7] At [28].

60As was said in the case of Sarikaya v R[8]:

'The fivefold increase in the maximum sentence makes it plain that Parliament intended that general deterrence be given significant weight in the exercise of the sentencing discretion in a case such as this'.

[8] [2015] VSCA 236 at [34].

61General and specific deterrence are important considerations in your case.  My sentence should send a message generally that a driver must stop immediately and render assistance and the same message to you.  Hand in glove with specific deterrence is the need for my sentence to protect the community from you.

62Although the deceased's daughter used strong language in describing what you did, she does express what I believe would be the general view:  that what you did was despicable and cowardly.

63In sentencing, remorse is significant if it instils a determination in the offender not to re-offend.  The events in June 2020 lead me to doubt the value of your remorse in that regard.

64Similarly, I am uncertain about your prospects of rehabilitation or reformation.

65Your counsel referred me to the case of R v Verdins[9] which explains how a person's mental impairment may be taken into account in sentencing.  In that case, the court set out six principles or limbs.  Your counsel relied on five of the six.  I will deal with each.

[9] (2007) 16 VR 269.

66As the prosecutor submitted, the court in Brown v R[10] re-iterated the need to give careful consideration as to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged.  It requires a rigorous examination of the evidence[11].

Limb 1

[10] [2020] VSACA 212.

[11] [2020] VSCA 212 at [62].

67The first limb concerns an offender's moral culpability.  Your counsel relies upon Ms Cokorilo's opinion, which I have already quoted.

68I daresay most persons involved in a similar accident would be overwhelmed, in shock and panicking.  However, your mental impairment did affect your ability to realise the wrongfulness of your actions in not stopping immediately, not rendering assistance and deliberately concealing your involvement.  I doubt anyone in your circumstances without your impairments could make calm decisions, however, they would better realise the wrongfulness of what they had done, the need to stop immediately and render assistance and not hide their involvement.  Your moral culpability is reduced to a minor extent.

Limb 3

69The third limb concerns general deterrence.  General deterrence is one of the purposes of sentencing and it is to deter other persons from committing offences of the same or a similar character.  To be effective, general deterrence relies on a significant identification between you as the offender and any other person.

70Your counsel relies upon the same matters he relied upon for limb 1.  Most, but not everyone, would identify with you.  To a modest extent, general deterrence should be moderated.

Limb 4

71The fourth limb deals with specific deterrence.  This is another purpose of sentencing.  It is the deterring of you from committing offences of the same or similar character.  I do not consider there should be any moderation of the sentence.  On the contrary, my sentence should emphasise the need to force you to stop immediately and render assistance if a similar or somewhat similar circumstance arose again.

Limb 5

72The fifth limb links the offender's condition with whether a particular sentence will weigh more heavily on the offender than it would on a person in normal health.

73I have already quoted Ms Cokorilo's view that imprisonment will be more of a burden to you than to those in normal mental health.  I accept her view.  This is a mitigatory factor.

Limb 6

74Limb 6 links the offender's condition and a serious risk of imprisonment having a significant adverse effect on his or her mental health.

75It is the fact of your suicide attempt after being remanded together with your deteriorating depressive and anxiety conditions makes this limb very relevant to you.

76Although Ms Cokorilo notes your suicide attempt after being remanded, she does not explore this issue.  It is one thing to think about suicide as you do, it is entirely a different matter to attempt it.  Attempting to commit suicide is a powerful indicator of mental ill-health.  The expectation of a deterioration in your symptoms of depression and anxiety are troubling.  These matters mean there is a serious risk of imprisonment having a significant adverse effect on your mental health. This is an important mitigatory factor.

77Your counsel submitted, primarily, I should consider a sentence of imprisonment and a community correction order.  Parliament has imposed a significant limit on the length of imprisonment when combined with a community correction order.  Owing to that limit, it is inappropriate to sentence you to imprisonment coupled with a community correction order.

Sentence

78On the charge of failing to stop immediately and render assistance, I sentence you to 24 months' imprisonment.  I will set a non-parole period of 15 months' imprisonment.

79On this charge, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit to drive a motor vehicle for five years.

80On the charge of using an unregistered motor vehicle, you are fined $750.  I will refer the collection of this fine to Fines Victoria.

S 6AAA

81If you had not pleaded guilty, on the first charge, I would have sentenced you to 32 months' imprisonment with a non-parole period of 20 months' imprisonment.  On the other charge, I would have fined you $1,000.  The period of disqualification would have been six years.

Pre-sentence detention

82As I said earlier, on the basis that there has been 92 days of pre-sentence detention I will declare that period as time already served.

Forfeiture

83The Crown no longer seeks forfeiture of your motor vehicle for the simple reason it does not now exist.

Disposal order

84I will make the disposal order as sought.

85Are there any other matters that counsel wish to raise?

86MR SIM:  No, Your Honour, not from me.

87MS JANKOVIC:  No, Your Honour.

88HIS HONOUR:  Mr Sim, do you want me to keep the link open so that you can have a discussion or chat with Mr Street?

89MR SIM:  I'd be very grateful, Your Honour, thank you.

90HIS HONOUR:  Excuse me.  As often happens in these cases there is a member of the media that is requesting access to a summary of prosecution opening, the summary of the defence response, CCTV and photos and the victim impact statements.  There was no CCTV/photos admitted into evidence, so that issue does not arise.

91As to the other three matters, that is the summary of prosecution opening, summary of defence response and victim impact statements, I presume is meant there, do either of you wish to make any submission?  Perhaps you go first, Mr Sim.

92MR SIM:  I've got no issue with the summary of prosecution opening,
Your Honour.  I've leave it to my friend as to whether there's any issue with the victim impact statements being released.  In terms of the defence response, in my experience those documents aren't normally provided.  I'd probably urge Your Honour to not - I mean what I've said in the oral hearing has been a nuts and bolts and I'd submit that that shouldn't be provided to the media in the usual way.

93HIS HONOUR:  All right.  Ms Jankovic, do you wish to say anything?

94MS JANKOVIC:  Your Honour, I have no difficulty with the summary of prosecution opening.  My understanding is that victim impact statements are not usually provided to the media, however that's a matter for the court,
Your Honour.

95HIS HONOUR:  Yes, well I will provide the summary of prosecution opening on the basis of what both you have put to me.  I will not provide the summary of defences response.  As I said there is no - there was no CCTV/photographs admitted into evidence in this proceeding and I will not provide the victim impact statements.

96However, if the particular person of the media was listening I did attempt to isolate the important points from those victim impact statements and if the person was listing then hopefully he was able to take that in.  So of the things sought, only the prosecution opening will be provided.

97MR SIM:  As Your Honour pleases.

98MS JANKOVIC:  As Your Honour pleases.

99HIS HONOUR:  Well I will get my tipstaff to adjourn the court and I will ask my associate If he can arrange an opportunity for Mr Sim to speak to his client.

100Ms JanKovic, do you want a similar opportunity to speak to victims in this matter.  I presume they have gathered together in one place and have been able to listen to what is been going on.  And I understood from my tipstaff there was probably an interpreter for some of them at least.  Do you want that ‑ ‑ ‑

101MS JANKOVIC:  Yes.

102HIS HONOUR:  ‑ ‑ ‑ that opportunity after Mr Sim's had his chance?

103MS JANKOVIC:  I would be grateful, Your Honour, if the court could accommodate that.

104HIS HONOUR:  Well, I ‑ ‑ ‑

105MR SIM:  I'll just be two or three minutes I expect, Your Honour, at this stage.  We can have a video link conference with Mr Street in the next few days.  If I can just have two minutes with him today and then my friend can speaker to the deceased's family members.

106MS JANKOVIC:  Thank you.

107HIS HONOUR:  Well I do not mind how long either of you take, as long as my associate can arrange it.  I will adjourn the court, I will have the court adjourned temporarily.

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