Director of Public Prosecutions v Thomas
[2018] VCC 772
•29 May 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01807
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERON ANDREW TIMOTHY THOMAS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat (sitting in Melbourne) | |
DATE OF HEARING: | 17 May 2018 | |
DATE OF SENTENCE: | 29 May 2018 | |
CASE MAY BE CITED AS: | DPP v Thomas | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 772 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Sharpley | Office of Public Prosecutions |
| For the Accused | Ms A. Burt | Emma Turnbull |
HER HONOUR:
1 Kieron Thomas, you have pleaded guilty to one charge of negligently causing serious injury, the maximum penalty applicable is ten years’ imprisonment, one charge of causing injury recklessly, the maximum penalty applicable is five years’ imprisonment, one charge of failing to render assistance after an accident where a person suffered serious injury, a maximum penalty of ten years’ imprisonment, one charge of possession of a drug of dependence, specifically methylamphetamine, the maximum penalty applicable is 30 penalty units or one year’s imprisonment for a first offence.
2 You have also agreed to me hearing and pleaded guilty to a number of summary offences, pursuant to s.145 Criminal Procedure Act 2009.
3 You have pleaded guilty to Summary Charge 20, driving a motor vehicle whilst exceeding the prescribed concentration of drugs, the maximum penalty applicable is 12 penalty units, Summary Charge 1, state false name when requested, the maximum penalty applicable is five penalty units, Summary Charge 2, state false address when requested, the maximum penalty applicable is five penalty units, Summary Charge 3, being a learner driver driving a vehicle without an experienced driver, the maximum penalty applicable is 20 penalty units, Summary Charge 4, using an unregistered motor vehicle on a highway, the maximum penalty applicable is 25 penalty units, Summary Charge 5, driving without L‑plates displayed, the maximum penalty applicable is three penalty units.
4 Summary Charges 1-5 occurred on 15 January 2017. The charges on the indictment and Summary Charge 20 occurred on 16 February 2017.
5 It is not necessary for me to recount in great detail the facts of this matter, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
6 I turn then to a brief summary of your offending, relevant to Summary Charges 1-5 inclusive.
7 On 15 January 2017 at about 9.50am, you were intercepted in Ballarat driving a Holden Berlina, Registration 1FV 4UJ. The registration of the vehicle had expired, having been cancelled on 13 January 2017. You were driving the vehicle with Christopher Clark in the passenger seat (Summary Charge 4). You were 18 years of age at the time.
8 Police advised you the vehicle was unregistered and requested your driver’s licence. You said you did not have it on you and instead produced a Proof of Age card in the name of Chris Armistead of an address in Ballarat.
9 Licence checks were conducted on both you and Clark. Clark was confirmed as holding a learner’s permit only. Armistead, the male on the Proof of Age card, was confirmed as not having a licence.
10 While checks were being conducted, you attempted to leave. Police advised you that you would be receiving penalty notices in relation to the traffic matters. You requested they be sent to your mother’s address at 55 Boundary Road, Clunes. You and Clark then left the area on foot before police made further enquiries or returned the Proof of Age card.
11 The informant discovered that the driver was actually you and that you lived at 55 Boundary Road, Clunes and were not Chris Armistead of the address in Havelock Street, Ballarat, as had been stated by you (Summary Charges 1 and 2).
12 You only hold a learner’s permit and did not have an experienced driver with you in the car, nor were there any L‑plates displayed (Summary Charges 3 and 5).
13 When interviewed on 16 February 2017 you made full admissions to that offending.
14 I turn to a summary of your offending, referable to the four charges on the indictment and Summary Charge 20, again when you were 18 years of age.
15 The first victim is Sherridan Rizzoli, who at the time of the collision was 42 years of age. She was on her way to work at the Ballarat Hospital at the time of the collision (Charges 1 and 3).
16 The second victim of your offending is Christopher Clark. He was 25 years of age at the time of the collision and a passenger in your car (Charge 2).
17 On Monday, 13 February 2017, you purchased an unregistered Holden Commodore, OUD 623.
18 On Thursday, 16 February 2017, between approximately 2.00 and 3.00am, you drove that vehicle to Victoria Park, Clunes, injected yourself with methylamphetamine while seated in the car then went to sleep.
19 At approximately 4.00am you woke and called Clark, asking him if he wanted to go for a ‘spin’. At some time between 5.00 and 5.30am you picked up Clark. From there you both ‘drove around for a while’.
20 At 5.54am you were seen by police driving in an easterly direction on Norman Street before turning right to travel in a southerly direction along Dowling Street, Wendouree.
21 The brake lights on your car were not operating properly, prompting police to activate their vehicle’s emergency lights with the intention of intercepting you.
22 When the police did this you deliberately accelerated, driving at approximately 100 kph in a 50 kph an hour zone in an attempt to evade police.
23 As you approached the intersection with Howitt Street you slowed down, as the traffic control signal for your lane was red. There was another vehicle stopped at the lights in the middle lane waiting for a green turning arrow in order to turn left. Despite the traffic control lights being red, you drove through the red arrow and turned left into Howitt Street. Police followed you through that intersection.
24 You continued driving in an easterly direction in the left lane along Howitt Street, in a continued attempt to evade police, increasing the speed of the car to approximately 120 kph in a 60 kph zone. Police stopped following you and notified police radio communications of your evasion and manner of driving.
25 As you travelled toward the intersection of Creswick Road you passed two other vehicles in the right lane, traveling at the speed limit. As you approached the intersection you saw the red traffic control lights applicable to your lane and attempted to slow down. The light had been red for some time, however, you continued into the intersection against the red light.
26 At about 5.55am, Ms Rizzoli was driving her Mazda, AKP 158, along Creswick Road through the intersection with Howitt Street, in compliance with green traffic control signals applicable to her.
27 Upon seeing her vehicle, you took your hands off the steering wheel, took your foot off the accelerator and onto the brake, then collided with her.
28 Your vehicle struck the passenger side of her car at approximately 98-110 kph, before both vehicles continued out of control through the intersection, causing your vehicle to hit road signs and come to rest at the north-east side of the intersection.
29 Ms Rizzoli’s vehicle rotated clockwise, prior to colliding with an electrical pole, which caused substantial damage to the passenger side of her vehicle.
30 In summary describing your offending, you were the holder of a learner’s permit. You were operating the vehicle after injecting yourself with methylamphetamine approximately three to four hours prior. You were operating an unregistered vehicle which you had purchased just three days prior and were operating the vehicle without being accompanied by an experienced driver. You failed to stop on police direction and excessively exceeded the speed limit, in an attempt to evade police. You entered the intersection of Dowling Street and Howitt Street against the red traffic control light applicable to your lane.
31 You then exceeded the speed limit upon turning right into Howitt Street, travelling past other vehicles travelling in the right lane of Howitt Street, while driving at an excessive speed. You entered the intersection of Howitt Street and Creswick Road against the red traffic control light applicable to your lane.
32 As I discussed with your counsel, you did not take evasive action beyond applying the brake, rather you took your hands off the steering wheel. You had the opportunity to desist driving prior to the collision, following first becoming aware of police on Norman Street. You were an inexperienced driver and you knew it, two lessons you told police. Yours was not a case of momentary inattention.
33 Following the collision with Ms Rizzoli the ambulance arrived. Your passenger, Clark, momentarily blacked out but upon regaining consciousness was able to exit the passenger side of the car and crawled to the grass nearby.
34 You had an injury to your knee as a result of the collision. You climbed out the driver’s side window and ran off in an easterly direction along Howitt Street, ending up at the home of Charmaine Hedges in Redan (Charge 3, fail to render assistance where a person suffers serious injury, Ms Rizzoli).
35 At approximately 6.00am when police spoke to Clark, he told them you had been driving the vehicle and had taken ice about twenty minutes before the collision.
36 Ms Rizzoli was taken by ambulance to the Ballarat Base Hospital and treated for multiple fractures to her pelvis, fractures to her spine, fractures to her left ulna and fractures within her sacrum. She was air-lifted to the Royal Melbourne Hospital and remained for four days, before being transported to St John of God Hospital, Ballarat, where she remained for four weeks. Ms Rizzoli has required ongoing treatment since the collision for the significant injuries she sustained.
37 Material relevant to her injuries and treatment was before me. A statement from Dr Liubinas, Ballarat Group Practice, dated 25 July 2017, which confirmed her hospital attendances (Exhibit G). Dr Liubinas summarised Ms Rizzoli’s injuries as resulting in possible long-term problems for her, pain, cognition, anxiety.
38 In an addendum report dated 12 September 2017, Dr Liubinas referred to a hernia that had been missed and subsequently operated on and repaired. On 1 August 2017 Ms Rizzoli described shoulder pain that was overlooked, due to the severity of her other injuries. On examination she displayed limited range of movement.
39 Recent medical reports were also received from Dr Csongvay, Orthopaedic Surgeon, dated 9 April 2018 (Exhibit D).
40 Ms Rizzoli had been gradually returning to work, albeit on modified duties. Sensory damage in her right hand remained unchanged and she had associated mild weakness in that hand, with occasional spasms in the affected fingers. There had been some very minimal sensory changes to the nerve at the elbow, which the doctor did not believe could be improved by intervention.
41 There was a report from Louise Boin, Clinical Neuropsychologist, dated 2 February 2018. Ms Rizzoli’s then ability to work had been limited due to her physical limitations. She had difficulties with ‘short-term’ memory and was fatigued. Her then treatment involved physiotherapy once a week, gym and hydrotherapy three times per week, seeing a psychiatrist periodically and her general practitioner every month.
42 In Ms Boin’s opinion, Ms Rizzoli’s ongoing psychological distress included significant post-trauma symptoms and symptoms of anxiety, depression and stress. Her sleep was sub-optimum.
43 In a further report from Ms Boin, dated 11 May 2018, she referred to findings suggestive of significant brain injury. Ms Rizzoli met the criteria of PTSD. In addition to some signs of brain injury, there was ongoing psychological distress. Testing results showed disturbance of executive functioning.
44 Ms Rizzoli’s PTSD and ongoing symptoms of anxiety, depression and stress warranted ongoing treatment.
45 Your passenger, Clark, was taken by ambulance to Ballarat Base Hospital and treated for fractures to his sternum and to two ribs. He discharged himself against medical advice.
46 At 8.30am police attended at the property in Redan and you were arrested. During the arrest, police located a sport “bum bag” which had a deal bag containing a rock of ice (Charge 4, possession of a drug of dependence). You described that as 1.5 points of ice, valued at $70.
47 You were taken to Ballarat Base Hospital. When cleared by medical staff eight hours later, you were taken to Ballarat police station, where an interview was conducted.
48 During the interview, you said you had used methamphetamine for about six months and used it for the first time in about a week and a half before picking up Clark. You said when police put their headlights on it freaked you out, and you decided to put your foot down. You said it was a stupid idea. You ran a red light and crashed into someone. You said you decided it would be a good idea to ‘evade’ the scene and did.
49 You said you used methamphetamine and had injected it in your arm between two and three that morning when in the car. You said you fell asleep, woke, then called Clark. You had no idea whether the car was registered. You said it had some faults, but you thought it was mechanically sound.
50 You said the police vehicle behind you turned their lights on in Forest Street. That was when you took off, as you did not want to get caught and go to gaol.
51 I note this was the reason proffered by you in your record of interview to explain your driving.
52 You said you were travelling at a 100 kph. It was starting to become light and you had your lights on.
53 You said the police car pulled away after you hit a certain speed. You said you were just stuck in the ‘little mind-space’ of getting out of there. You said you wished you had made a different decision.
54 You said you attempted to put your brakes on and had slowed to about 85 kph when you hit the car. You did not stop at the red light, as you wanted to ‘get out of there’.
55 You said you were doing 120 kph in Howitt Street and that you passed two vehicles doing about 60 kph. When approaching the intersection, you said you tried to slow down as you realised how fast you were going. You saw Ms Rizzoli’s car, took your hands off the steering wheel, your foot off the accelerator and collided with the other car.
56 You said the traffic light would have been red for some time. You said it was not ‘full’ braking by you, as you still had your ‘left’ foot on the accelerator and you did not brake as hard as you thought you did. You said you did not try any evasive action.
57 You said you were unconscious at first, then took your seat belt off and turned briefly to see if your passenger, Clark, was all right. He seemed to be fine, so you jumped out of the window and started running. Clark told you to sit there and wait, but you did not.
58 You said you hid in someone’s garden and were going to return to the crash site to see what damage you had done, but could not pull yourself together enough to go there. You thought you had killed the lady in the car, so you went home and did not phone anyone.
59 You thought you were going to gaol and that you were going too fast to stop. You did not know your vehicle was unregistered. You knew you were a learner driver and had only driven with a licensed driver twice. You said you had not had any driving lessons, you did not know anything about cars. You said Clark only had a learner’s permit. You did not contact anyone to report the collision, as you were ashamed of yourself.
60 Your offending, you acknowledged, was reckless and dangerous to everyone around you, everyone else on the road and your passenger. You said what happened that day was all your fault and no one else’s. That is correct.
61 The bum-bag located at Winter Street, you said, was yours, but the point and a half of ice was not yours.
62 On 1 March 2017 a blood sample was taken from you after your arrest and analysed and it contained less than 1.0 mg/L methylamphetamine. (Summary Charge 20.)
63 On 24 March 2017 police attended at a collision repair centre and conducted a mechanical inspection of your car. No mechanical fault was located which could have caused or contributed to the collision.
64 On 14 June 2017 police conducted an analysis of the collision scene to determine the speed of the vehicles in the collision. They opined your vehicle was travelling on Howitt Street between 98 and 110 kph when it entered the intersection and that Ms Rizzoli’s Mazda was travelling between 60 and 68 kph when your vehicle collided with hers.
65 You have admitted a limited prior criminal history.
66 You appeared at the Ballarat Children’s Court on 2 September 2013 on a charge of theft. Without conviction, the matter was proved and dismissed and you were released on entering an accountable undertaking for a period of 12 months to 1 September 2014.
67 You next appeared at Maryborough Children’s Court on 12 May 2016 on a charge of theft from a shop. With conviction, the charges were proved and dismissed and you were released upon entering an accountable undertaking for a period of 12 months, ceasing on 11 May 2017. This offending before me occurred during the course of that undertaking. As I discussed you’re your counsel, this could have been your perception of ‘going to gaol’.
68 It is concerning that both the offending of 15 January 2017 and 16 February 2017 breached the undertaking, although I stress you are not being sentenced for that breach by me. You were, however, not deterred from this offending by a Court order.
69 By way of chronology, the first committal mention was on 8 June 2017 and bail was granted on 14 June 2017. On 22 June 2017 a second committal mention was adjourned, awaiting the report of Detective Sergeant Mehegan.
70 A third committal mention was on 3 August 2017. A committal hearing was listed and leave was granted to cross-examine Ms Mehegan and Leading Senior Constable Morton.
71 On 6 September 2017 at a committal hearing, the witnesses were not required, as the matter resolved. There was an application for summary jurisdiction, which was denied. The matter then proceeded by way of straight hand‑up brief for a plea hearing in this Court and the related summary matters were also transferred.
72 You have pleaded guilty to these charges and you are entitled to have that taken into account in your favour, and I do so. The community has been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial, in particular I refer to the civilian witnesses and specifically, Ms Rizzoli and Mr Clark.
73 I also take into account in your favour, you intimated early your intention to plead guilty to these charges. It is apparent you involved legal representatives from an early stage, who endeavoured to resolve your offending to a suitable indictment and ultimately that occurred. I also note your admission to your offending at the time of your interview with police.
74 I am prepared to accept that in your case, your pleas of guilty indicate remorse for your offending. I also accept you have expressed remorse to a number of people since this collision.
75 There were three victim impact statements before me, which were read to the Court. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks. But I have, however, read all statements. There is no doubt your offending has had an ongoing, significant detrimental impact upon Ms Rizzoli. I note there was not a statement from Mr Clark.
76 Ms Rizzoli, in her statement, described that on 16 February 2017, the collision changed her life and her family’s life forever. She was taken to Ballarat Base Hospital, where her family and friends were contacted and arrived. She had little recollection of her time in hospital.
77 She was taken to the Royal Melbourne Hospital and admitted to the trauma ward. While in Emergency at that hospital, her daughter fainted and had to be admitted.
78 The following week, her family drove up and back daily, taking time off work, sleeping in waiting rooms. The emotional strain on her family that week had an unimaginable impact on them and continued to do so.
79 Ms Rizzoli still suffered night terrors, waking up sweating and shaking. She was paranoid as she went about her daily life, thinking that ‘if it’s happened once, it will happen again’. She had flashbacks of the collision. She was scared while driving, she felt like she could not blink because she might miss something and be hit again. She had panic attacks while driving her family in the car, feared if she drove, she would put other people’s lives at risk. She no longer drove through that intersection, as it brought her severe anxiety. She saw a psychiatrist to assist with that.
80 Prior to the collision, she was outgoing, fun, happy, bubbly, active, social, a bold extroverted individual, who enjoyed anything and everything social. She no longer saw herself as any of those things.
81 To say that she was a different person, was an understatement. She described herself now as nervous, scared, anxious, angry, introverted, unsafe and depressed. Those feelings and emotions were now part of her personality.
82 She avoided all social events, did not want to go out in public, did not want to go to the shops.
83 The details of the collision, her injuries, her financial and emotional state and everything in between, had dictated all her conversations in the past eight months. She felt like the collision had defined her life. You took the feeling of being safe away from her.
84 She had an uncontrollable need to feel vigilant and ready for something to happen. It was exhausting and uncomfortable for her when in the community or social settings. She was often housebound and alone.
85 She described the injuries she sustained: five pelvic fractures, both sides of her sacrum broken, three broken ribs, two breaks in her left wrist, two broken vertebrae, severed nerves in her right arm, a large hernia, a fluid pocket in her left shoulder and cuts and abrasions to various parts of her body.
86 As a direct result of your offending, she could not work at all for five months and then only able to return to work for one hour, three times a week. She had to have a major operation to repair a large traumatic hernia and was in hospital for four days, unable to drive again for weeks. She was completely housebound again due to her lack of mobility and pain. She had to return to the surgeon twice to have her wound drained.
87 Her injuries had limited all her previous weekly physical activity, including walking and exercising. The long-term impact on her life physically included chronic pain, due to the broken vertebrae in her back, which would never repair.
88 She had only about 70 per cent movement in her wrist. She suffered low-level chronic discomfort and weakness in the muscles. The nerves that were severed in her right arm had not healed and may require surgery.
89 There were current physical limitations on her everyday life, including things she had taken for granted prior to the collision, housework, washing, unloading the dishwasher. Those were now difficult and often left her physically stuck in a position and unable to move. In the worst case, she needed to call out for help from anyone who might be there to help her.
90 She never thought putting on shoes and socks or getting dressed would be a challenge for her. Up until a few months ago, that is prior to the date of her victim impact statement, family members were dressing her, assisting her to shower and to go to the toilet. She now dressed herself and put on her own shoes and socks, but still experienced discomfort and a level of restriction of movement when doing so.
91 She had spent five months undergoing rehabilitation at an inpatient and outpatient facility. Rehabilitation was daily initially, then three times a week. She relied heavily on family members to take her to appointments. She was still attending those at the time of her victim impact statement, which I said was sworn 7 October 2017.
92 At the time of this collision, she was working at Creswick Hospital, thoroughly enjoying her job. As a result of the collision she could no longer work. When she did try to work one hour, three times a week, she struggled. She was also faced with further surgery.
93 She had huge financial commitments and expenses she could not meet, as she was unable to work. She struggled not only financially, but with enjoyment of life.
94 At the time of swearing her victim impact statement, it was unknown when or if she could ever return to her full working capacity, or live completely independently. She felt like she took one step forward, then three steps back.
95 There were two other victim impact statements which I have also read and will only summarise briefly in these sentencing remarks.
96 A victim impact statement from Laurinda Sholten, sworn 17 May 2018. On 16 February, she said her life changed forever when, Ms Rizzoli, her sister was involved in a car collision.
97 When Ms Sholten saw Ms Rizzoli at hospital, Ms Rizzoli was a mess, with cuts and abrasions and a lot of pain in her lower back, left wrist and stomach and was wearing a neck brace, and that it was very confronting. She had to pick glass out of her hair and mouth and kept reassuring her to stay strong.
98 Throughout the morning, doctors would come in and out, checking on her, sending her off to X-rays and MRI tests, which revealed multiple fractures.
99 She came to Melbourne with Ms Rizzoli while Ms Rizzoli spent the next week in Royal Melbourne Hospital. It was terrible for the family to see here in such pain.
100 Ms Rizzoli was transferred to Ballarat and spent the next four weeks at St John of God in the rehabilitation ward, enduring intensive therapy to get her moving again. Ms Sholten would visit her daily to cut up her lunch and sit with her.
101 While in hospital, they had to postpone a family holiday, which had been to take their mother to Fiji, her home, to see relatives. Significant costs were incurred in cancelling that holiday.
102 Ms Rizzoli was discharged into her care and stayed with her for five months. They had to modify their home to accommodate her special needs in a significant number of ways, as she outlined within her victim impact statement and at their cost.
103 Ms Rizzoli’s daily needs involved helping her to the toilet, with showering, dressing and cutting up her meals.
104 Ms Sholten had to do the laundry and dispense her medication, as Ms Rizzoli could only use one arm. Ms Rizzoli was totally dependent on her for everything.
105 Ms Sholten found it very difficult juggling everything, getting Ms Rizzoli up and ready, showered and dressed and also caring for her own family and the business that she was running.
106 There were numerous appointments for Ms Rizzoli to attend each week. It was stressful making sure Ms Rizzoli did not miss any appointments.
107 Ms Sholten became Ms Rizzoli’s full-time carer, chauffeur, counsellor and shoulder to cry on. Ms Rizzoli became fully dependent on her physically and mentally, which was degrading and undignified for Ms Rizzoli. Ms Sholten also struggled to be the support that she needed to be. Ms Rizzoli’s struggles had affected the whole family unit, as she described in her statement.
108 Ms Rizzoli had always been a strong, outgoing, capable person in the family. Now she was nothing of her former self, rather withdrawn, quiet, anxious, depressed, sleep-deprived and with no self-confidence. She also had difficulty interacting with others and had been diagnosed with social anxiety and PTSD. The collision had caused immense trauma, not only to Ms Rizzoli but to the whole family, who struggled every day as a result of the collision.
109 There was also a victim impact statement from Madeline Moore, who heard of the collision from her aunt, Ms Sholten. She was overwhelmed with panic and had an anxiety attack at work upon receiving the news. They followed the ambulance to the Royal Melbourne Hospital, then took the rest of the week off to drive up and back every day to sit with her. Every day that week they got bad news about her condition.
110 When Ms Rizzoli returned to Ballarat, Ms Moore went to hospital every day at lunchtime and after work to see her. She described Ms Rizzoli as her best friend, role model and ‘parent’ for most of her life. It was heartbreaking watching the person who made her lose everything they were.
111 Previously, Ms Rizzoli had been loud, fun, social and the life of the party. Now she could not be more the opposite. Ms Rizzoli had so much anxiety in public that they do not go shopping. Ms Rizzoli no longer wanted to because her body was so damaged from the collision and surgery.
112 Ms Rizzoli’s days were filled with medical appointments and attempts to return to work. Ms Rizzoli had previously been an independent person. It has been hard watching her live her life so restricted and depressed.
113 Regarding the impact of offending on victims, the Courts have referred to the notion of social rehabilitation. In DPP v Toomey[1], his Honour Justice Vincent referred to social rehabilitation, citing DPP v DJK[2] (allowing of course, as I do, for the very different charges in that case to yours). His Honour said:
“With respect to those statements, I repeat comments I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would, of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements, he said, provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, His Honour said, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[1] (2016) VSCA 60
[2] (2003) VSCA 109
114 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). But I am conscious, however, I must not allow the effects upon victims to swamp the sentencing process. I am particularly conscious of that in cases such as this currently before me.
115 Counsel who appeared on your behalf, Ms Burt, prepared a written outline of submissions, which I have read and she addressed those during the course of your plea hearing. Ms Burt also tendered a number of reports that she relied on during the course of the hearing and she called evidence.
116 I indicated at the commencement of your plea hearing that I had read all material filed on your behalf and the transcript will reveal that discussion. Additional material was also provided during your plea hearing.
117 Ms Burt referred, within her submissions, to the offence of negligently driving a motor vehicle, the charge before me, and the statements made by the Court in Harrison and Rigogiannis v R[3], in which the Court concluded that:
"Current sentencing for offences at the upper end of seriousness is inadequate and needs to be uplifted. Inevitably, such a change will have a flow-on effect on sentencing for mid-range and low range instances of negligently causing serious injury by driving."
[3] [2015] VSCA 349
118 Ms Burt, correctly from that decision, noted the Court’s concerns regarding such offending, including the often young age of offenders.
119 I also discussed with Ms Burt the recent decision of DPP v Barry[4] and Gurovski v The Queen[5]. Barry, I note, was a Director’s appeal. The facts in that case bear some similarity to yours, although Barry was 36 at the time of the collision and I note the victim’s injuries resulted, in that case, in amputation of the victim's leg above the knee. The Court considered the impact of DPP v Dalgleish[6] and current sentencing practices for the offence of negligently causing serious injury (paragraphs 45-49).
[4] [2017] VSCA 344
[5] [2018] VSCA 3
[6] [2017] HCA 41
120 The Court referred to the objective gravity of offending to be assessed by reference to the degree of negligence displayed and the seriousness of the injuries to the victims (paragraphs 62-64). The Court observed Barry’s ‘substantial mitigatory circumstances’ did not justify the sentence imposed by the judge at first instance when considering general, specific deterrence, just punishment and denunciation.
121 In Gurovski, the Court discussed objective gravity of the offending and injuries to the victim (paragraphs 57-60).
122 Ms Burt conceded your offending involved more than momentary inattention. It involved drugs and speed, which placed your offending as more serious.
123 In my opinion, your offending fell towards the ‘higher’ end of the spectrum (not the highest end), but above mid-range.
124 I am required to consider the injuries to Ms Rizzoli and in doing so, I am conscious of the two extremes of injury on the ‘scale’. Not in any way diminishing the injuries sustained by her, they were fortunately for her, not in a Barry or worse case. I stress again, I am not diminishing her injuries, rather I am conscious of where if must place them or ‘fit’ them on the scale, as I discussed with counsel.
125 Regarding failing to render assistance, Ms Burt noted other members of the public were able to assist Ms Rizzoli at the scene and that was so. However that, in my opinion, is not the point. That was more good luck than good management on your part. You ran from the scene. It is an obligation on all drivers to render assistance after a collision. To ‘run’ or depart, was very callous and cowardly behaviour by you.
126 A number of mitigating factors were relied upon by Ms Burt. You pleaded guilty, which she submitted indicated remorse by you. I accept you are now remorseful for your offending. You have expressed your remorse to a number of people, apparent in the material before me. You have also written to Ms Rizzoli, expressing remorse.
127 As previously stated, your pleas of guilty have utilitarian value and I have taken that into account in your favour. You also admitted, as I said, your offending to police.
128 Ms Burt referred to your expressions of remorse in the interview and that you wished you had made a different decision. I very much hope that remains your current view.
129 Ms Burt submitted you had a relatively low full-scale IQ and a difficult personal history, described within her written submissions (paragraph 20). Disadvantaged background has been referred to recently in the decision of DPP v L’Eveille[7]. It is a relevant sentencing consideration in your case.
[7] [2018] VSCA 60
130 Ms Burt referred to an incident when you were seriously assaulted in 2016 and the injuries you sustained at that time. The offender had earlier this year been sentenced to a significant term of imprisonment.
131 You had spent 118 days in adult custody, prior to being bailed in June 2017 and I was told that that had had a profound effect upon you. I discussed that with Ms Burt and I accept that is so.
132 I even requested further information about your imprisonment and heard evidence from Ms Hosking, Acting Assistant Commissioner for Corrections, which was of great assistance. The relevant authorities are aware of your vulnerabilities.
133 Ms Burt relied heavily on the material before me and submitted that, given your age, the relevant sentencing principles were found in R v Mills[8]. I am aware of Mills case and the importance of rehabilitation of youthful offenders. I am very conscious of your age, you have just turned 20, as at your sentencing hearing.
[8][1998] 4 VR 235
134 Rehabilitation of a young offender is important when sentencing and as I discussed with Ms Burt, I am very conscious of the steps taken by you since this offending towards your rehabilitation and I commend you for that. But whilst rehabilitation is a very important sentencing consideration, it is not the only consideration. I am aware your rehabilitation ultimately benefits the community and that at the time of offending and sentence, you are somewhat immature.
135 Relevant considerations when sentencing young offenders were summarised in Ms Burt’s submission (paragraphs 23-31).
136 But it is important to note that Mills case is not of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offending, as well as the offender (see DPP v Lawrence[9]).
[9] [2004] 10 VR 125
137 In R v Connolly[10] the court said:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community, may need to be reflected in the sentence imposed.”
[10] [2004] VSCA 24
138 Further, In R v Tran[11] at 462, Court of Appeal Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised, the word "usually" is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[11] (2002) 4 VR 457
139 Ms Burt submitted you have had a number of mental health issues, including a pre-existing diagnosis of ADHD and referred to the report of Jenny Brennan in 2012, when you were 14 years of age, which noted poor executive functioning, an inability to see the whole picture, a history of attention difficulties and poor impulse control, associated with ADHD.
140 You had been attending a health group for major depression and PTSD and since this collision, you had been prescribed medication.
141 Ms Burt referred to a report from Ms Lechner, who described you as impulsive in nature, with a low tolerance for frustration. Drug use, she said, would aggravate your poor impulse inhibition, poor judgment and decision making.
142 Ms Burt submitted you had demonstrated that you were a person willing to engage in treatment and had done so in the past for other issues, including disclosing your own sexual abuse. Ms Burt also referred to you having, since June 2017, been on supervised bail with Youth Justice, abiding by all conditions, including curfew and abstaining from drug use.
143 Ms Burt submitted you had strong relationships with your family, however, in Ms Lechner’s report, you described ambivalence in your family relationships. But I understood members of your family were in Court to support you.
144 Ms Burt referred to your subsequent drug and alcohol treatment on bail and that Olivia Whykes described your level of engagement, insight and commitment for sustained positive change and motivation, as very high. You had been abstinent from drug use since the collision. You were future-focused and wanting to study.
145 Ms Burt urged Principles 2, 5 and 6 in R v Verdins and Ors[12] applied in your case.
[12](2007) 16 VR 269
146 Mr Sharpley submitted none of the Verdins principles were enlivened. That the evidence required to establish Verdins relevant, relied upon Principles 2, 5 and 6 was not present.
147 In my opinion, whilst Verdins is not enlivened in this case, I can and do take into account your vulnerability and immaturity if sentenced to imprisonment in an adult prison, consistent with general sentencing principles. This has caused me concern and prompted my interest in hearing from Ms Hosking. It is important that those entrusted with your case are aware of those issues, including your anxiety and depression.
148 Ms Burt’s primary sentencing submission was that you be placed on a community corrections order, with no further time to be served, by way of either detention or imprisonment. Should I not consider such a disposition appropriate in all the circumstances, then detention in a Youth Justice Centre was her secondary submission, without abandoning her primary submission.
149 But I turn then to the documents received by me.
150 A supervised Bail Progress Report, dated 3 August 2017, from Kirsten Mende, Youth Justice Case Manager. Ms Mende also gave evidence before me confirming your positive attitude to supervised bail since June 2017. You had progressed extremely well, attended all appointments as required and abided by conditions of your bail.
151 You had been attending weekly appointments with Ms Whykes, youth alcohol and drug worker. Her work with you had focused on relapse prevention and you were committed to staying on the right path.
152 You had expressed a desire to return to study or training and were referred to the Reconnect Program through Federation University.
153 There was a further Supervised Bail Progress Report, dated 23 October 2017, prepared by Mr Aidan Murphy, who reported you continued to do well on supervised bail, attending the majority of appointments as required. You had reflected on your offending, demonstrated remorse for it and regret for your then lifestyle. You demonstrated a good attitude towards making positive changes to your drug use, peer associations and lifestyle choices in general.
154 You were, at the time of that report, living with your fiancée on the family property in Clunes and had engaged in Reconnect program through Federation University. You had attempted one of the courses, however only attended one or two classes, before you felt anxious and had panic attacks.
155 You had shown an interest in being linked with an employment agency. In your involvement with Mr Sandford of the Reconnect Program, you were always polite and engaging. You were still engaged with Ms Whykes, who advised she was impressed with your engagement and commitment to counselling sessions.
156 You had been experiencing anxiety associated with PTSD following being the victim of a serious assault in July 2016. You were referred to Ms Coralie Holding, mental health nurse practitioner of Clear Thinking Mental Health Group.
157 In a Bail Progress report of 16 May 2018 prepared by Kirsten Mende, she confirmed you continued to progress well. You demonstrated a good attitude towards making positive changes regarding your drug use, peer associations and lifestyle choices.
158 In December 2017 you began working with Michelle Tapera from AMP Employment Services and had been committed to finding employment.
159 You have recommenced playing football for Clunes.
160 The author noted, as do I, that you had made efforts to make positive changes in all areas of your life. You had also completed a traffic management course and continued to undertake casual employment.
161 There was a psychological report prepared in 2012 by Jennie Brennan, Psychologist, to which I have already briefly referred. In 2009 assessments were undertaken by a psychologist at the Acquired Brain Injury Clinic. At the time of that report you were 14 years of age. The author’s conclusion was that your cognitive functioning was at the low end of the low average range of ability. It was thought that your challenging behaviours at the time were likely driven by poor executive functioning, inability to see the whole picture, a history of attentional problems and poor impulse control associated with ADHD.
162 There was a report from Ms Whykes, Ballarat Community Health, A&OD Youth Outreach Worker, who confirmed you were referred to the program on 16 June 2017. You had attended regular weekly appointments and not missed or rescheduled any appointments. You demonstrated a high level of commitment to maintaining positive changes. As at October 2017 you had been nine months abstinent from illicit substances and demonstrated a high level of insight into the positive impact abstinence had on your wellbeing. You participated well in the sessions.
163 There was a report from Ms Holding, Clear Thinking Mental Health Group, dated 19 October 2017. You had attended two sessions for treatment of major depression and PTSD and had engaged well. There had been an improvement in your mental health since commencing medication.
164 There was a further report from Ms Holding, 17 April 2018. You had been attending fortnightly counselling sessions since 8 August 2017 to treat PTSD following yourself being the victim of the assault in 2016. I discussed that assault with your counsel. Symptoms of your PTSD were likely to have been exacerbated following your incarceration in prison and I am very conscious of that.
165 You were currently being treated for depression, including distress and remorse in relation to the collision currently before the court. Your treatment had also involved counselling relating to a history of childhood sexual abuse.
166 You met the DSM‑V criteria for major depression and post-traumatic stress disorder and child sexual abuse.
167 You had engaged well at each session, taking responsibility for your past behaviour, including past substance abuse. You were compliant with prescribed medication and random urine drug screening was a component of ongoing treatment.
168 You are currently playing football for the local football club, engaged with previous non-drug-taking friends and had made new friends within the football team.
169 She described you as actively seeking opportunities to redeem yourself in the eyes of the community, a matter I discussed with Ms Burt.
170 Your prognosis for recovery she thought was positive.
171 The author referred to you, since release from prison in June 2017, as having gone to significant lengths to make amends for your previous offending behaviour. You had ceased contact with previous negative friendships and had no links with them.
172 You were described by her as very remorseful for your offending.
173 There was correspondence dated 21 November 2017 from Detective Senior Constable Mathew Hayes, confirming the assault upon you in 2016.
174 There was a report from Carla Lechner, Consultant Psychologist, dated 31 August 2017. Following the assault in 2016, you developed symptoms of depression and anxiety and relapsed into ice abuse.
175 You described being regretful for your offending. Ms Lechner noted your cognitive, emotional and social immaturity.
176 Further details were provided in her report regarding your background and history. You described yourself as an average student. At nine years of age, being the victim of sexual abuse. Apparently the perpetrator was charged, however the matter did not proceed to court.
177 You were diagnosed with ADHD until 13 years of age. You studied Year 11 and 12 at Maryborough Learning Centre in 2016.
178 After leaving school you did not work for approximately two years, rather described yourself as ‘hanging out with the wrong crowd, smoking weed, out all night, driving cars around, going shooting, lots of stupid stuff, just trying to fit in’.
179 You worked as a farm-hand for two years and a stable-hand for six months on a casual basis in 2014 to 15. You had also worked as a casual employee in 2016 with Rainbow Serpent, setting up festivals.
180 Although not formally assessed, you impressed as being of ‘low average’ intelligence and Ms Lechner noted the report of Ms Brennan, referring to your IQ of 80.
181 In the opinion of Ms Lechner, you were able to identify triggers to your negative feelings, but were not able to manage them in an adaptive manner.
182 She described you as not having any real social network, with a history of moving from group to group, trying to find acceptance and approval.
183 Turning to your drug and alcohol history, you said you began smoking marijuana at 14 and increasing your use to 14 grams a day. You said you stopped smoking cannabis in January 2017, a month before your offending on the indictment and you are now abstinent. You admitted using other illicit substances, as described within her report. You said you began using ice at the start of 2016, stopped for three months after you were stabbed, then relapsed again.
184 You acknowledged your role in this offending and made no attempt to shirk responsibility or minimise the seriousness of it. You said you felt dreadful about the victim’s injuries and wished that it was you instead.
185 In her summary and opinion, Ms Lechner says, at the time of this offending, you were abusing ice on a regular basis, having relapsed after being the victim of a stabbing in mid-July 2016.
186 You had a history of behavioural dysregulation, arising from complex developmental trauma. You coped poorly with stress and would benefit from a range of treatment services.
187 Ms Lechner described you as being raised in a fairly chaotic family environment.
188 At interview you impressed as cognitively, socially and emotionally immature, with limited capacity to reflect on the impact your behaviours had on yourself and others.
189 You expressed regret for your behaviour, being particularly sorry for the injuries suffered by the victim.
190 In the opinion of Ms Lechner, your actions related to recent drug use, depressed mood, poor consequential thinking skills and a strong desire to please others.
191 Before me was correspondence also from you to Ms Rizzoli, dated 17 May 2018. In that letter you apologised for the trauma caused by your offending. You said you were truly sorry. You did not think of the consequences of your actions and regretted your selfish decision. You never thought your behaviour, addiction and decisions would affect others in such a way. You wished her a full and speedy recovery.
192 There was a reference from Karen Vagg (undated) who has known you for the past 12 years. She referred to your ‘disrupted’ background and involvement with the ‘wrong people’. You had been ‘clean’ for 16 months, doing jobs for people around town, playing football and with a girlfriend.
193 There was a reference from Noel (Doug) Garth, dated 14 May 2014 (could mean 2018), I assume, who had known you for six years, on a personal level and as your football coach. You had taken responsibility for your offending and worked hard to regain respect in the club and the community. You volunteered at the club whenever help was needed.
194 There was a reference from Chris McLennan, Director Football Clunes, dated 10 May 2018, who has known you for at least ten years. You asked to leave the football club in 2015 after some ‘off field indiscretions’, however sought re-inclusion in the 2017 season. You are courteous and respectful.
195 You also sought to be re-included in 2018 and were welcomed back to train with the senior football team. You had played five games this season in the reserves.
196 You had expressed remorse for your past ‘indiscretions’ and discussed being "clean" from drugs. He had seen a marked improvement in your discipline since returning to football. You were doing your best to improve your life and stay "clean", with a different circle of friends.
197 There was also a reference from SM Kelman and AJ Shugg (undated). You were employed by Dr Shugg on a casual basis from 3 February 2018, working an average three mornings a week. You were able to listen to advice and discussed wanting to do a course in horticulture. You had also requested additional work in the Creswick and Clunes townships, advertising on the Clunes Community Notice Board.
198 You displayed an extraordinary sense of responsibility for your future.
199 I also received correspondence regarding your medication summary as at 16 May 2018. You are currently prescribed Fluoxetine, Seroquel and Seroquel XR tablets.
200 Correspondence was also before me from Debra Coombs, Victorian Government Solicitors Office, confirming your entry into prison on 28 February 2017 into Melbourne Assessment Prison, then on 1 March, being moved into protection, as outlined in her correspondence. Your subsequent placements are in protection units. I am aware that you have been in protection whilst in prison and of the resultant limitation upon your activity in custody. Whilst there is no evidence before me, I accept, in part, based upon the evidence of Ms Hosking, you would likely serve any sentence of imprisonment as a protection prisoner.
201 Ms Burt, not surprisingly and appropriately, relied heavily upon your youth and your efforts towards rehabilitation since this collision. She called evidence from Ms Kirsten Mende, who gave evidence you had always attended from ‘Day 1’ for supervision. You had shown a lot of remorse and victim empathy. You wanted to contribute to society and move on with your life.
202 You had completed courses to assist you obtain employment and you had had a number of offers of jobs, but as I understood, you had not accepted anything for any duration, awaiting the outcome of this hearing.
203 You had a lot of contact, she understood, with Ms Whykes. She described you as motivated to engage, wanting to be a better person. That all your goals were to be a better person. You had done all she had expected of you and engaged well throughout that process.
204 In answer to questions from Mr Sharpley, she said she had not discussed with you the reason for your driving the way you did on this occasion, nor why you tried to get away from police. Nor had she discussed with you your use of ice, shortly prior to your offending behaviour.
205 Ms Burt referred to you having been assaulted in prison recently and details of your instructions were provided. I can understand why you did not report those offenders to prison authorities. Also, following being placed in protection, you described a couple of ‘sexual incidents’ which made you feel uncomfortable. You described feeling an ongoing threat to you in custody.
206 In summary, Ms Burt relied heavily upon your youth, rehabilitation since your offending, vulnerability in adult custody, admissions made to the police in the record of interview as reflective of your remorse and regret for your offending. Also your successful participation in supervised bail since June 2017. That you had addressed your drug use.
207 Ms Burt observed that a term of imprisonment must always be the last resort of the court, she is correct. And I have given anxious consideration to the appropriate disposition in your case, mindful as I am, not only of the seriousness of your offending and the injuries to your victim, but also in particular, your age and the importance of rehabilitation.
208 Ms Burt conceded appropriately your offending required a sentence reflecting general deterrence and denunciation.
209 Mr Sharpley, who appeared on behalf of the prosecution, submitted that in relation to the spectrum of offending and its gravity, your offending fell in the “higher” part of the spectrum and I agree as I have previously described. That there were a number of aggravating features, he said, of your offending, as previously outlined. He submitted yours was a very serious example of this type of offending. I agree.
210 Mr Sharpley submitted, surrounding the offences charged, you were driving whilst unlicensed, failed to stop for police, your speed on two occasions was excessive, you went through one red arrow and one red light, there was no evasive action taken by you, other than attempting to brake, you were on an undertaking at the time, there were two victims of your offending.
211 Mr Sharpley submitted offences such as this were frequently committed by young offenders who had a limited driving history and good character. He submitted general deterrence and denunciation played a significant role in sentencing for this offending. He said your offending was a particularly egregious example.
212 The prosecution submission was that only a term of imprisonment in an adult prison would be an appropriate disposition for all your offending. Any other disposition would not reflect its seriousness.
213 Mr Sharpley submitted a community corrections order would not be appropriate, nor reflect all relevant sentencing considerations and nor would detention in a Youth Justice Centre.
214 He submitted yours was deliberate transgressive driving, a deliberate decision, in that you did not have any driving experience. You had been taking ice. The offending, he said, fell in the higher range of negligently causing serious injury. He also referred to the seriousness of the offence of leaving the scene and failing to assist the victim, and I discussed that with both counsel.
215 Mr Sharpley conceded that, if I thought such was appropriate, you could be required to serve a shorter non-parole period, which would enable you to be in the community for a significant period of time, with supervision.
216 At your plea hearing it was submitted that I could, if I considered it appropriate, sentence you to detention in a Youth Justice Centre for up to 4 years.
217 Prior to today, I had my Associate at my direction, email both counsel as to whether that was in fact correct. Such a maximum penalty only applies to offences committed on or after 30 November 2017, your offending in January/February 2017. The maximum period of detention would be 3 years and not 4.
218 Although not extensively discussed during your plea hearing, the focus being on Charge 1, negligently causing serious injury, your other offending, especially Charge 3 on the indictment, is also serious, as I discussed with counsel. That offending carries a maximum penalty of 10 years.
219 In Vasilevski v The Queen[13] the Court noted the increase in sentence from two years to ten years in 2005:
“That fivefold increase in the maximum sentence makes it plain that Parliament intended general deterrence be given significant weight in the exercise of the sentencing discretion in a case such as this. As Santamaria JA observed in Tokay:
‘[T]he maximum penalty for a contravention of s.61(3) of the Road Safety Act 1986 (Vic) has increased fivefold since June 2005. The maximum is now ten years. That maximum penalty reflects the serious community concern and disapproval of the failure to stop (not your case) and failure to render assistance (the latter being of course the charge before me). Several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury and have referred to the fact that offenders must expect a substantial term of imprisonment.’”
[13] [2018] VSCA 7
220 To enable me to fully further consider disposition, I requested Ms Mende prepare a report for your suitability or otherwise for a Youth Justice Centre disposition, to enable me to consider same. Again I note at the time of that request, the maximum, however, could only have been three years detention. I made it clear to you, my request for such a report, even if favourable, would not necessarily lead to the imposition of Youth Justice Centre detention for your offending.
221 By ordering that report, I have not ignored Ms Burt’s primary submission that a community corrections order be imposed, without any detention or further imprisonment.
222 In that regard, I am mindful of the decision in Boulton & Ors v R[14] and the subsequent pronouncements of the Court of Appeal relevant to principles relevant to community corrections orders. A community corrections order has both a punitive and rehabilitative aspect to it and in Boulton, the Court was urged to "rethink the conventional wisdom about whether prison is really the only option".
[14] [2014] VSCA 342
223 Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[15], Alam v The Queen[16], Marocchini v The Queen[17], Hutchison v The Queen[18] and relatively recently, Gul v The Queen[19], of course being mindful, as I am, of the different offending in those cases from yours.
[15] [2015] VSCA 95
[16] [2015] VSCA 48
[17] [2015] VSCA 29
[18] [2015] VSCA 115
[19] [2016] VSCA 82
224 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean sentencing principles, as stated by the Court of Appeal and other Courts relevant to your offending, now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
225 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges. Further, I note Priest JA observed in Hutchison that:
“It should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
226 In my opinion, to impose a community corrections order for the offending before me, would not adequately or appropriately address all relevant sentencing considerations.
227 Regarding your rehabilitation prospects, I have been impressed by your efforts since this offending. I do have some concerns, however, overall consider your prospects of rehabilitation to be good. When weighing all relevant sentencing considerations, I must seek to maximise your chances of rehabilitation, as they may be. Whilst an element of immaturity is a consideration, that does not explain the extent of this offending.
228 In imposing the sentence I have, I am of course very mindful in the matters of mitigation raised by counsel on your behalf.
229
I received a Suitability for Youth Justice Centre report from Ms Mende and
Mr Murphy and I have read that report. You maintained your remorse for your offending.
230 You had recently, since your plea hearing, been transferred to Ravenhall Prison.
231 On 24 May 2018, Ms Nicholson from the Placement Classification Unit advised Youth Justice that there had been four reports made in relation to you in March 2017 whilst remanded in adult custody, where you threatened to self-harm, were stood over and sexually harassed and the victim of an assault.
232 Ms Nicholson also informed Youth Justice, there was a report made 22 May 2018, just recently, which involved three prisoners referring to you as ‘a dog’ and threatening to harm you. You are also not able to obtain your prescribed medication, Seroquel, while in custody.
233 The authors refer to the Malmsbury offence-specific programs that would be available to you, offered at the Malmsbury Youth Justice Centre, as set out within the report. You would also have access to Parkville College to provide education and vocational classes.
234 You were considered suitable for a Youth Justice Centre disposition (paragraph 5 of the report). In brief summary, you have had no previous custodial sentences in Youth Justice. You displayed a positive response to prior supervision, also acted to address offending-related issues. You demonstrated good prospects for employment in the community. You had some pro-social peers in the community, particularly the Clunes Football Club. You had good family support, including support from your fiancée. You had pro-social goals and plans for your future. You were a young offender at 19 years of age/20. You had a history of exposure to domestic violence and sexual abuse as a young child, which impacted upon your mental health. You were also the victim of a serious stabbing in 2016, which had a significant impact on your mental health and vulnerability.
235 You have been diagnosed with ADHD, major depression, post-traumatic stress disorder, as well as child sexual abuse, which added to your vulnerability. You had a history of self-harm, having twice attempted suicide.
236 Your current experience in remand in adult custody had been negative. It was the opinions of the authors, you would be subject to undesirable peers in adult custody that could potentially have a detrimental effect on you, as well as further entrench you in the criminal justice system.
237 I am very conscious of the concerns raised by all the authors of all the reports and that is why I have taken some time to summarise them. They are certainly in my mind.
238 In my opinion, despite the matters in mitigation of your sentence, a Youth Justice Centre disposition is not appropriate and would result in a manifestly inadequate sentence.
239 In my opinion, to impose a Youth Justice Centre detention, even up to 3 years, would not reflect all sentencing considerations. In my opinion, the only appropriate sentence is a term of imprisonment with a non-parole period. In determining the length of that non-parole period, I have concluded that the period I have determined will enable you, should you be paroled (a matter to be determined by the Adult Parole Board), would give you a greater opportunity to continue your rehabilitation with assistance in the community. That non-parole period is perhaps relatively regarded as short.
240 When sentencing you, I apply the principle of totality and note, in particular, Charges 1, 2 and 3 on the indictment involve the same incident.
241 I sentence you as follows:
242 On Indictment No.H10449701, on the charge of negligently causing serious injury, you are convicted and sentenced to 3 years’ imprisonment.
243 On the charge of causing injury recklessly, which is Charge 2, you are convicted and sentenced to 9 months’ imprisonment.
244 On the charge of failing to render assistance after an accident where a person suffers serious injury, ie Charge 3, you are convicted and sentenced to 12 months’ imprisonment.
245 On the charge of possessing a drug of dependence, you are convicted and sentenced to 1 month’s imprisonment.
246 On Summary Charge 20, you are convicted and fined $400.
247 On Summary Charge 1, you are convicted and fined $75.
248 On Summary Charge 2, you are convicted and fined $75.
249 On Summary Charge 3, you are convicted and fined $150.
250 On Summary Charge 4, you are convicted and fined $100.
251 On Charge 5, Failing to display L‑plates on a vehicle, you are convicted and fined $50.
252 Charge 1 is the base sentence and I direct that 4 months of Charge 2 be served cumulatively upon Charge 1 and 6 months of Charge 3, be served cumulatively upon Charge 1, and 7 days of Charge 4, be served cumulatively upon Charge 1.
253 For clarity, the orders for cumulation are upon each other and upon the base sentence.
254 That results in a total effective sentence of 3 years, 10 months and 7 days' imprisonment and I direct you serve a period of 20 months before you are eligible for parole.
255 As I say, in setting the non-parole period, I am conscious that this is a short period before you can be considered for eligibility for parole and when sentencing you, of course, I do not assume that you will receive parole. But I have determined the length of the non-parole period to reflect your prospects of rehabilitation and further assist your rehabilitation when back in the community.
256 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words, if you had pleaded not guilty to the charges on the indictment and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months. That does not apply but I have to state that.
257 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 131 days in custody (up to and including 28 May 2018) by way of pre-sentence detention and I direct that that be entered into the records of the court, but I want that checked.
258 Now, as Charge 1 is a serious motor vehicle offence, pursuant to s87P(b) Sentencing Act, I must cancel your learner’s permit and I disqualify you from obtaining a further one for a period of 5 years (s89(1)(a) and (2)(b) Sentencing Act 1991). In so determining the length of that cancellation and disqualification, I am mindful of your rehabilitation, as discussed in R v Lefebure[20].
[20] [2000] VSCA 79
259 The prosecution also sought a finding, pursuant to s89C Sentencing Act 1991, that your offending occurred while under the influence of a drug which contributed to your offending. I so find.
260 The prosecution made application for forfeiture in relation to the crystallised substance seized, relevant to Charge 4. Your counsel consented to the order being made in those terms and I make the order in the terms sought.
261 The prosecution also made application, pursuant to s464ZF Crimes Act 1958, for a forensic sample. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be on the basis of the seriousness of your offending and your prior convictions, prior court appearances. It will be for a saliva sample. I must advise you, the authorities may use reasonable force in order to obtain that sample. Have a seat thanks. Right, now, anyone need help with the maths? It all adds up, does it? Three years, ten months and seven days?
262 MR SHARPLEY: It adds up, Your Honour, and 131 days is the correct figure.
263 HER HONOUR: One hundred and thirty-one?
264 MR SHARPLEY: One hundred and thirty-one.
265 HER HONOUR: I had a hundred and - 131, no - yes, you are quite right.
266 MR SHARPLEY: Yes.
267 HER HONOUR: Do you agree with 131?
268 MS BURT: I agree with 131, yes, Your Honour.
269 HER HONOUR: Excellent. Now, is there anything further in this matter?
270 MR SHARPLEY: Could I hand up those orders, Your Honour?
271 HER HONOUR: Yes. Apart from that, anything needs clarification, sentence wise, or not?
272 MR SHARPLEY: No, Your Honour.
273 HER HONOUR: All right. All right, Mr Thomas, thank you very much, could you go out please.
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