Director of Public Prosecutions v Taylor
[2019] VCC 193
•1 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01037
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN TAYLOR |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2018 and 1 February 2019 | |
DATE OF SENTENCE: | 1 March 2019 | |
CASE MAY BE CITED AS: | DPP v Taylor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 193 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of causing serious injury intentionally and one charge of failing to stop and render assistance after a motor vehicle accident. Also two summary charges of unlicensed driving and committing an indictable offence whilst on bail – total effective sentence 4 years’ detention in Youth Justice Centre
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991; Road Safety Act 1986; Confiscation Act 1997
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr JJ Jassar | Bayside Solicitors |
HER HONOUR:
1 Ryan Taylor, you have pleaded guilty to one charge of intentionally causing serious injury, which carries a maximum penalty of 20 years’ imprisonment. You have also pleaded guilty to one charge of failing to stop and render assistance after a motor vehicle accident, which carries a maximum penalty of 10 years’ imprisonment.
2 In addition, you have consented to two summary charges being transferred to the County Court pursuant to s145 of the Criminal Procedure Act 2009 and have pleaded guilty to those charges. Those charges are: driving whilst unlicensed, which carries a maximum penalty of 60 penalty units or 6 months’ imprisonment; and committing an indictable offence whilst on bail, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.
3 Your offending conduct is outlined In a summary of prosecution opening (Exhibit “A”). On 12 February 2018, you were driving whilst not licensed to do so. You had been to a friend’s house looking for Ms Camille Chalker and her boyfriend, Mr Kayden McLeod. Ms Chalker was your former girlfriend of some three years, with whom you had recently broken up a few weeks previously. Prior to 12 February 2018, there is evidence that you had been harassing Ms Chalker, Mr McLeod and Mr McLeod’s mother. As you drove into Tucker Street, Cranbourne, you saw Ms Chalker and Mr McLeod crossing the road. You yelled at Mr McLeod through the window and revved your engine and then accelerated and crossed onto the wrong side of the road and struck Mr McLeod with the car. The impact was sufficient for Mr McLeod to be thrown into the air. You then drove off at high speed, making no attempt to stop or render assistance.
4 At the time of committing these offences, you were on bail for offences of burglary, theft and committing an indictable offence whilst on bail. Those offences were subsequently dealt with at the Dandenong Magistrates’ Court on 5 October 2018, at which time you were convicted and fined $1,500.
5 Mr McLeod was taken by ambulance to the Emergency Department of the Alfred Hospital. The history taken was that he had been struck in the hip and went onto the bonnet and was propelled in front of the car for approximately 2 metres before landing in the gutter. He was complaining of left shoulder pain and pain to the back of his head where a “golf ball” sized haematoma was noted to be present. He suffered the following injuries:
·A comminuted fracture through the blade of the left scapular extending to the acromion, which was managed conservatively by his arm being placed in a sling.
·A left occipital scalp haematoma, with an overlying small scalp laceration in the left occipito-parietal region and a non-displaced left occipital fracture. The fracture was managed conservatively by Mr McLeod being placed in a neck collar.
·An injury to his cervical spine comprising atlantoaxial subluxation, with disruption of the transverse band of the right cruciate ligament. This was managed by use of an Aspen collar.
·Multiple graze abrasions on the right hand, left knee, left and right shoulders and left lower back.
6 At 10.20pm on the evening after your offending, you handed yourself into Cranbourne Police Station. You stated that you saw the victim, Mr McLeod, walking on the road and put your foot down to hit him. You then drove off, took the car to a friend’s house, had dinner and spoke with your father and then came to the police station. You stated that, after the collision, you wanted to get out and bash the victim because it made you angry that Camille Chalker was with him and that you had been looking for the victim in order to fight him. You stated that you planted your foot on the accelerator when you were about 2 metres away from the victim and you thought you were travelling at about 40 to 60 kilometres per hour. You stated that you had never had a licence.
7 You are presently aged 19 years, having been born on 8 March 1999. You come before the Court with three prior appearances in the Children’s Court.
·On 24 March 2016 you came before Melbourne Children’s Court. This appearance involved numerous offences including reckless conduct endangering life (which involved you speeding through a red light and being pursued by police), recklessly causing injury and contravention of a family violence intervention order, committing an indictable offence whilst on bail, intentionally damaging property, criminal damage and unlicensed driving. Without conviction, you were released on a Youth Supervision Order for a period of 12 months.
·On 14 February 2017 you came before Frankston Children’s Court. The charges involved driving whilst disqualified, using an unregistered motor vehicle and failing to wear a motorbike helmet. Without conviction you were fined $175.
·On 28 April 2017 you came before Dandenong Children’s Court. The charge was dishonest retention of stolen goods. Without conviction you were fined $100.
8 In a plea on your behalf, Mr Jassar urged the Court to note that you were still only 18 years of age when you committed these offences. Ms Chalker had been your girlfriend for over three years. Mr Jassar stated that, as you told police in your record of interview, Ms Chalker had told you she was only seeing Mr McLeod because she wanted you to change and this caused you jealously, insecurity and anger.[1] Only a couple of weeks prior to this offending, your parents had demanded that you cease living at their home because you were using methamphetamine regularly. You had moved into a motel, where you were living at the time of this offending. During this period Ms Chalker had come and spent four nights with you at the motel and this further increased your confusion and jealousy. This was also referred to in your record of interview.[2] Mr Jassar stated that, even though Ms Chalker was right beside Mr McLeod when you hit him with the car, she declined to make a statement to police. Moreover, she rang you from the hospital after Mr McLeod had been taken there, requesting that you bring her handbag into the hospital. I agree that these matters do suggest some degree of ambivalence of attitude of Ms Chalker toward you. However, it could in no way excuse your appallingly violent act of using a car as a weapon to seriously injure Mr McLeod.
[1] Answers to Questions 59 and 60 in Record of Interview
[2] Answer to Question 70 in Record of Interview
9 Mr Jassar asked the Court to accept that this offending had occurred impulsively in the context of you being jealous and angry and suffering a low mood and using drugs whilst on your own in unstable accommodation at a motel. He tendered a report from Dr Paul Grech, psychologist, dated 2 September 2018 (Exhibit “1”). Dr Grech took a history that you had learning difficulties and a diagnosis of ADHD as a child, albeit that you were not medicated. You attended Cranbourne East High School but finished halfway through Year 9. You had played football for a local team but “went off the rails” after the age of 15, when you began using ice, cocaine and GHB. He noted that on the Beck Depression Inventory, you reported highly elevated scales of psychological distress and met the criteria for an anxiety or depressive disorder in the moderate range. He noted that, since being remanded in an adult prison, you were extremely distressed by many symptoms, including having to avoid certain things, places or activities because they frighten you and feeling uneasy that people are watching or talking about you, or will take advantage of you.
10 Dr Grech stated that you expressed a high level of remorse and insight into your offending behaviour and acknowledged that it was extremely fortunate that the victim was apparently making a good recovery from serious injuries and had not lost his life. He considered that you may benefit from treatment relating to drug use and psychological difficulties and that you had indicated your willingness to pursue this. He stated that you presented as an impressionable, young-looking man, of below average stature and immature personality, and that your pre‑sentence detention in the adult system would have potentially adverse effects in relation to rehabilitation.
11 Mr Jassar stated that you had had a difficult time in adult custody at the Metropolitan Remand Centre since being remanded in custody a year ago. Exhibit “5” shows that you were involved in incidents at the prison in March, April, July and October 2018 which resulted in you spending a total of 41 days in management units under conditions of 23 hours per day lockdown. Mr Jassar stated that this has been very onerous for you as a 19 year old serving your first ever custodial sentence. Nevertheless, you have endeavoured to make the most of your time in custody and have undertaken a considerable number of courses in managing sleep, emotions, anxiety, communications and relationships and harm reduction. In addition, you have completed courses in workplace safety arrangements and traffic management at Box Hill Institute. Further, you have engaged in a positive manner with a learning plan to assist you with education and training and work skills. This plan has a goal of qualifying you to undertake a Certificate I Construction Pathways course as part of an adult education program at Box Hill Institute (Exhibit “4”).
12 Mr Jassar asked the Court to accept that as a youthful offender you are motivated to rehabilitate yourself and should be given an opportunity to do so. A number of references were tendered as Exhibit “2” and Mr Jassar asked the Court to note that, when not in the grip of drug use, you were capable of hard work and had spent about four years working for your father, who runs his own business transporting mobile homes and caravans, as well as undertaking removal of cars and scrap metal. In addition, you had been involved with a number of community activities as a volunteer. This is attested to in a reference by Kelly Murphy, a professional counsellor and social worker, who has worked with you during informal mentoring sessions. She has known you and your family for approximately eight years and describes you as a polite and generous young man with a big heart and in whom she has seen much potential. She states that you have taken a wrong direction, but violence is not something she associates with you, and she believes that you have the capacity to be a good member of the community given the right supports and friendships.
13 Also tendered on your behalf was another reference from Steven Clarke, who is the chief executive officer of the Victorian Provincial Racing Club and a former police officer of 10 years. He states that he has known you for 10 years and you are from a good, honest, loyal and hardworking and loving family. He saw you struggle with adolescence and fall in with the wrong crowd, but believes that your true character is that of an honest, well-mannered and hardworking person and that, removed from toxic influences, he believes that you now have a maturity to make better choices and allow your natural character to shine through. He notes that your father is again willing to offer you employment and he has seen you work hard in that employment in the past. Similar sentiments are expressed in a reference from Pastor Sean La’brooy, who has also known you for 10 years.
14 The final reference was from your father who stated that, prior to using drugs, you were a different person with whom he could sit down and have a conversation but, once you began to use drugs, your attitude changed and you did not care about anything and did not treat anyone with respect and all you wanted to do was sleep. He stated that you were asked to leave home because of your actions and lack of care for the family but, since being in custody, you have had an opportunity to think about the consequences of your actions. He stated that he is prepared to have you back to work for him and the family have moved to a new locality to get away from the bad influence that local friendships had on you. He says you have expressed remorse to him and believes that you are genuinely wanting to change your ways and make the right choices.
15 Mr Taylor, you should be in no doubt as to the seriousness of the charges. To use a car to intentionally injure someone is a most brutal form of assault. It carries a high risk of injury to the person and a high risk that any injury caused will be serious, as was the case with your victim. To know that you had struck your victim and, then, to have driven off without rendering assistance, is extraordinarily callous behaviour. Moreover, there is evidence that this appalling act of driving was committed by you at a point some 200 metres prior to when you would have passed a primary school at 3.30pm. This was a time when parents and children would be in the area for the end of the school day. There is evidence from two witnesses, Chance Byrne and Jason Slinger, who were travelling behind your car and witnessed the incident. In their statements to police they state that, after striking your victim, you drove off at speed towards the school and turned down William Street. Mr Slinger stated that you nearly hit another woman crossing the road. He stated that, at that time of day, it was pretty busy with people arriving and leaving after picking up their kids from school. He stated that the woman you nearly hit appeared to be a parent walking to the school.[3] This is an aggravating feature of your offending conduct.
[3]Exhibit “D” and in particular paragraphs 11 and 12 of Mr Slinger’s statement.
16 As a consequence of your deliberate conduct, your victim was in hospital for three days and was discharged on 15 February 2018 wearing a neck collar for the occipital skull fracture and an Aspen collar for the cervical spine subluxation. Photographs taken at the hospital show these to be awkward and uncomfortable immobilising devices, as well as showing some nasty looking wounds requiring dressing on your victim’s shoulders and up and lower back.[4] Your victim’s discharge plan included him being reviewed as an outpatient in both the neurosurgical and orthopaedic units. By 6 April 2018, although the pain in the victim’s left shoulder was improving and an x‑ray revealed his spine to be stable, he was instructed to wear the collar for another four weeks and told to do no heavy lifting using his left side.[5] When last seen at the orthopaedic outpatient clinic on 4 May 2018, it was noted that your victim was to have ongoing management by a private physiotherapist.[6]
[4]Exhibit “H”.
[5]Statement of Dr Angela Williams dated 19 October 2018 page 4, Exhibit “F”.
[6]Statement of Dr Timothy Amos dated 6 December 2018 page 2, Exhibit “G”
17 A Victim Impact Statement by the victim’s mother made on 28 November 2018 was tendered as Exhibit “B”. She described the shock of learning of her son’s injuries and her anguish about the possible long term effects of them. She stated that, when her son was discharged from hospital, she had to become his personal carer to help shower and clean him and had to change her work to fit in with this, which left her physically and mentally exhausted. She described ongoing concerns about safety and the fact that your crime has changed her son’s behaviour and personality.
18 A Victim Impact Statement by the victim himself made on 27 February 2019 was tendered as Exhibit “H” and read out by the prosecutor. Mr McLeod speaks of the shock and panic occasioned by your behaviour and waking up in hospital with severe injuries. He describes his inability to leave the house and socialise while he was wearing the neck brace, his reliance on his mother’s care and his concern about whether he would be able to continue his roof tiling apprenticeship or ever work again. These are understandable and foreseeable consequences of your offending conduct.
19 Extracts from the records of your victim’s general practitioner at Cranbourne Park Family Care Clinic were tendered as Exhibit “J”. It is clear that he has suffered ongoing anxiety requiring the prescription of Valium since your attack. On 14 January 2019, a mental health care plan was prepared for him, noting mixed anxiety and depression and poor concentration and short term memory. He was also reporting trouble with balance and his eyes and was referred for an MRI scan of his brain, however, the scan was reported as showing no acute intracranial pathology. (Exhibit “E”) A medical certificate from Cranbourne Park Family Care Clinic dated 27 February 2019 was tendered as Exhibit “H”. This states that Mr McLeod is currently stable following the incident in February 2018.
20 The potential for serious life-threatening injuries when one receives a head injury or cervical spine injury is referred to in Dr Angela Williams’ report. It is fortunate that your victim’s injuries were not more serious and that he received prompt medical attention, even though you drove off and left him. In sentencing for these offences, the Court must denounce your conduct and place emphasis upon general deterrence, so that others who might be minded to use a car as a weapon and then go off and leave the person they have injured without assistance will know that they will meet with just punishment. Unfortunately, you have committed acts of violence in the past and there is also a need for some emphasis upon specific deterrence, although I accept that given that you have been on remand in an adult prison for over a year, you have had time for reflection and there is perhaps less need for this now than would have been the case at the time of your offending. Nevertheless, in all the circumstances, there can be no doubt that only an immediate custodial disposition will suffice to indicate the gravity of this offending.
21 Your counsel urged that you be assessed for suitability for a Youth Justice Centre order. Accordingly, the matter was adjourned to 1 March 2019 to enable this to occur. A pre-sentence report from Adrees Shah, case manager, endorsed by Bridget McGeoch, team leader at Southern Melbourne Youth Justice, dated 26 February 2019 was tendered as Exhibit “L”. The report noted that you appeared remorseful and hopeful that the victim would recover, but you had attempted to minimise the seriousness of your victim’s injuries. The writer considered that this could be due to your age and immaturity giving you a lack of insight.
22 The report concluded that you are suitable for a Youth Justice Centre order. The author assessed you as having reasonable prospects of rehabilitation. In support of this conclusion the report noted the support of your family, who encourage pro-social behaviours and who have maintained contact with you whilst you have been in adult custody; the fact that you have had no previous custodial sentences; and a relatively limited involvement with Youth Justice, during which you did demonstrate an ability to engage with support services and completed a Youth Supervision Order. Further, the report stated that you expressed pro-social goals for the future and had acted to address your offending by utilising opportunities to undertake programs both in the community during the Youth Supervision Order and also whilst in custody. In particular, the report considered that you would benefit from offence-specific programs and rehabilitative services that would be offered to you at Malmsbury Youth Justice Centre, which would improve your prospects of rehabilitation.
23 The report also assessed you as particularly impressionable, immature or likely to be the subject of undesirable influences in adult prison. It noted that you were only 18 at the time of the offending and that the offending demonstrated a level of impulsivity, indicating immaturity. Also, you had reported that older prisoners have attempted to stand over you, particularly at Barwon Prison where you are the youngest prisoner in the unit. The authors considered that this may render you vulnerable to undesirable influences in adult prison. However, it was also noted that there have been concerns about your behaviour towards other prisoners and that you have been involved in eight incidents during your period of remand, which included four physical altercations with other prisoners.
24 I have wrestled with this sentence because clearly the nature of your offending on Charge 1 and Charge 2 is very serious. It is so offensive that the community would understandably expect an appropriately punitive period of imprisonment to be imposed by a court. However, it is also accepted that, where an offender is a young offender, it is usually desirable for a court to make a sentencing disposition which maximises the offender’s rehabilitative prospects and gets him away from the potential adverse influences of an adult prison system. This is because, where an offender is young, his stage of mental and emotional development may be more open to attempts to positively change his behaviour than an adult who has many years of established anti-social behaviour. In the long run, it is thought that the community is better served and protected if a young offender can be rehabilitated.
25 In some cases, the circumstances of offending are so grave that considerations of a young offender’s rehabilitation may need to be subjugated to the sentencing objectives of denunciation, deterrence, just punishment and protection of the community. I do not regard your case as one of those, for although there is evidence that you had been looking for Ms Chalker and the victim for a short time before your offending, there is no evidence that you expected to find them in Tucker Street. Hence, I consider that your offending in driving the car at your victim is appropriately characterised as an impulsive and rash act, rather than a pre-planned one.
26 I consider that your family support and good work history are positive factors in your favour. Prior to your offending, your family made it clear that they would not tolerate your antisocial behaviour at home whilst you were taking methamphetamine. In addition, your father provided strong moral guidance in encouraging you to give yourself up to the police on the evening after your offending. Many family members were present in Court during your plea hearing and they have visited you regularly during your period in custody on remand. It is to your credit that you have used your time on remand to improve your education, which is very limited.
27 Although you have been involved in incidents of violence in custody, I also take note of the content of Dr Grech’s report that you feel anxious and on edge and feel you need to watch your back whilst in adult custody. I accept that you were young and immature at the time of your offending but you need to get the message, Mr Taylor, that the fact that you have been in a relationship with someone does not mean that you own them. You need to learn how to regulate your emotions. You have been involved in a number of violent incidents in the past. Such violence does not accord with your personality as described in your references. On the balance of probabilities I consider it related to your immaturity and use of illicit drugs, like ice, which hype you up and make you less able to control your anger. I consider it likely that, if you can be supported to steer clear of using drugs, then your prospects of rehabilitation are likely to be very much enhanced.
28 In sentencing you, I have taken into account your pleas of guilty which were entered at an early stage, namely, within three months of your arrest at a committal case conference so that the matter proceeded by way of hand-up brief. I have some reservations about how remorseful your pleas of guilty are, given that only a few days ago, you gave a history to the case manager assessing your suitability for a Youth Justice Centre order in which you denied that you had been looking for Ms Chalker or your victim, claimed that you did not intend to hit your victim (as distinct from scaring him) and attempted to minimise the seriousness of your victim’s injuries. Nevertheless, you are entitled to a meaningful discount on the sentence which otherwise would have been imposed because, by your pleas of guilty, you have facilitated the course of justice, saved the cost and time of a trial and spared the victim having to give evidence.
29 In arriving at the sentence which I propose to impose, I have determined that, notwithstanding the gravity of your offending, it would be wrong of this Court not to give a sentence which would maximise what I consider to be your reasonably good prospects of rehabilitation. In this regard, I particularly note that the authors of the pre-sentence report note that your offending has the characteristics of family violence and that you would be able to access support in relation to this through a variety of programs that are available through Youth Justice. These include youth offending programs, a driving program, psycho-social program, alcohol and drug program, youth family violence program and the adolescent violence intervention program. It seems to me that it is appropriate to make a disposition where you would have access to such programs which you would not necessarily have in an adult system. Moreover, your anxiety about being in the adult system and the number of incidents in which you have been involved whilst on remand, cause me to conclude that it is undesirable that you remain in an adult prison any longer in that you are likely to have your violent tendencies made worse there and, hence, your prospects of rehabilitation are likely to diminish.
30 The maximum term of a Youth Justice Centre order is 4 years’ imprisonment. I consider that I should not declare the period you have served in adult custody (382 days) as pre‑sentence detention, even though I acknowledge that it has been onerous for you. Rather, I propose to take it into account as a factor in sentencing. Having done that, I consider that a Youth Justice Centre order is capable of serving the sentencing principles of denunciation and general and specific deterrence whilst still reflecting the concern that as a young offender you be given the maximum opportunity to rehabilitate yourself.
31 Pursuant to s32 of the Sentencing Act 1991, having received a pre-sentence report and taking into account the other material put before me on the plea, I am of the belief that there are reasonable prospects for your rehabilitation and that you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. Further, I have taken into account both the nature of the offence and your age, character and past history. In all of the circumstances, I have determined that, in your case, a sentence involving confinement in a Youth Justice Centre is justified.
32 On Charge 1, intentionally causing serious injury, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of 3 ½ years.
33 On Charge 2, failing to stop and render assistance, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of 12 months.
34 On the summary charge of driving whilst unlicensed, you are convicted and sentenced to a period of detention in a Youth Justice Centre for a period of 2 months.
35 On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a period of detention in a Youth Justice Centre for a period of 2 months.
36 The base sentence is that of 3 ½ years of detention imposed on Charge 1. I order that 4 months of the sentence imposed on Charge 2 and 1 month of the sentences imposed on each of the summary charges be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is thus a period of 4 years’ detention in a Youth Justice Centre commencing from today.
37 I am mindful that s33 of the Sentencing Act directs that sentences of detention should be served concurrently unless otherwise directed. I have so directed in order to give recognition to the discrete nature of your offending on Charge 2 and on each of the summary charges, recognising that you have prior offending for both unlicensed driving and committing an indictable offence whilst on bail.
38 I am mindful of s35 of the Sentencing Act which provides that any period that an offender has been held in custody must be reckoned as a period of detention already served unless the Court otherwise orders. I make it plain that I have otherwise ordered. However, in arriving at the sentence which I have imposed, I have already taken into account the 382 days which you have spent in adult custody since you were arrested. Accordingly, I make it clear that that period of 382 days is not reckoned as time already served under the sentence of detention imposed this day.
39 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 6 years’ imprisonment with a non-parole period of 4 years.
40 On Charge 2, pursuant to s61(6) of the Road Safety Act 1986, I order that all licences or permits to drive held by you be cancelled and you be disqualified from obtaining a further licence or permit for a period of 6 years.
41 Pursuant to s34(1) of the Confiscation Act 1997, I order that property by way of a 2000 model white VX Holden Commodore registered number ZLA424 be forfeited to the Minister. I decline to make a forfeiture order in relation to one gold Apple iPhone 7 as it was not involved in the commission of any of the offences for which you have been sentenced.
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