Director of Public Prosecutions v Timpany
[2024] VCC 1254
•15 August 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-02177
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB JOHN TIMPANY |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2024 | |
DATE OF SENTENCE: | 15 August 2024 | |
CASE MAY BE CITED AS: | DPP v Timpany | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1254 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Pleas of guilty – conduct endangering life – dangerous driving while pursued by police – conduct endangering persons – driver motor vehicle under influence of drug – use unregistered motor vehicle on highway – failure to report full particulars of accident – police pursuit – car accident – criminal record – substance abuse – borderline to low-average intellectual abilities – attention deficit hyperactivity disorder – youthful offender
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269;
Sentence: 28 months' imprisonment with 19 months non-parole. Fines totalling $1000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | L. Dubroja | Stary Norton Halphen |
HIS HONOUR:
1Jacob John Timpany, you have pleaded guilty to the following charges.
Charge 1, that at Corio on 7 February 2023, without lawful excuse, you recklessly engaged in conduct, namely, driving a motor vehicle at an excessive speed and on the wrong side of the road on the Princes Highway, that placed Jesse John Webber in danger of death. This is the offence of conduct endangering life and has a maximum penalty of 10 years' imprisonment.
Charge 2, that at Norlane on 7 February 2023, knowing that:
(a) you had been given a direction to stop by a police officer, and
(b) a police officer was pursuing your vehicle,
you drove dangerously by driving on the incorrect side of the road into oncoming traffic at a speed dangerous to the public. This is the offence of dangerous driving while pursued by police and has a maximum penalty of three years' imprisonment.
Charge 3, that at Corio on 7 February 2023, without lawful excuse, you recklessly engaged in conduct, namely driving a motor vehicle at an excessive speed and on the wrong side of the road on the Princes Highway, that placed Kevin Robinson in danger of serious injury. This is the offence of conduct endangering persons and has a maximum penalty of five years' imprisonment.
2You also pleaded guilty to three related Summary Charges.
Charge 9, that at Norlane on 7 February 2023, you were driving a motor vehicle while under the influence of a drug to such an extent that you were incapable of having proper control of that vehicle. This offence, in the circumstances of your case, has a maximum penalty of 18 months' imprisonment.
Charge 12, that at Norlane on 7 February 2023, you used a motor vehicle on a highway, namely Princes Highway, which was not registered as required. This offence, in the circumstances of your case, has a maximum penalty of 50 penalty units.
Charge 13, that at Norlane on 7 February 2023, being the driver of a motor vehicle and where owing to the presence of such motor vehicle an accident occurred and property was damaged, you did fail as soon as possible to report full particulars of the accident to the nearest police station. This offence has a maximum penalty of 14 days’ imprisonment.
Circumstances of offending
3The circumstances of your offending are set out in Exhibit P1, the Summary of Prosecution Opening for Plea. You do not dispute the matters in that Summary and they form the factual basis upon which you are to be sentenced.
4The offences all occurred on 7 February 2023, shortly before midnight.
5Earlier that evening, you and Tom Donas were seen by members of Victoria Police driving at speed through the Norlane and Corio areas.
6Mr Donas told police investigators that you and he left an address in Donnybrook Road, Norlane at about 11.45 pm in his car, an unregistered Toyota Camry. You were driving the car and Mr Donas was the front seat passenger.
7Mr Donas stated that you saw police and took off down St Georges Road where you stopped to pick up Jesse Webber. Mr Webber got into the back of the car.
8According to Mr Donas, you were driving at a fast speed and on the wrong side of the Princes Highway while being pursued by police.
9You avoided a collision with at least three oncoming cars and a Mack tipper truck travelling towards you in a south-west bound lane of the Princes Highway. You then crossed the middle median strip, lost control of the car and struck a tree. The police pursuit lasted some 28 seconds.
10The collision resulted in serious injury to Mr Webber who was not wearing a seat belt. Mr Webber was taken to the Royal Melbourne Hospital and treated for multiple injuries including abdominal, cardiac and spinal injuries, a fractured arm and spine, and a collapsed lung. He also underwent surgery where a bowel resection was completed. You and Mr Donas both received minor injuries. You were admitted to the University Hospital at Geelong where you received debridement treatment for an injury to your left knee. You were discharged on 10 February 2023. Mr Donas was also taken to hospital for treatment.
11The car you were driving sustained significant crush damage across its entire front. The bonnet was forced back and up. The bumper rail was broken, and the engine and radiator were forced backwards.
12You were 24 years of age at the time of the collision. You have never held a driver's license. You had in fact been disqualified from driving on 19 December 2022 for a period of 12 months. A sample of your blood was obtained. Analysis showed methylamphetamine at 0.44 milligrams per litre and amphetamine at 0.09 milligrams per litre in your blood.
13Kevin Robinson, the victim in Charge 3, told investigators that at about 11.40 pm he left the depot in Lara and was driving towards Newcomb along the Princes Highway in a Mack Metro-Liner truck. He saw the headlights of a car driving directly at him from about 200 metres away, forcing him to slow his truck to avoid a collision. Mr Robinson stated the truck was carrying 16 and a half tonnes of asphalt stored at 166 degrees Celsius. He said if he had been involved in a crash and spilt the asphalt it would have been a significant incident given the temperature of the asphalt.
14CCTV recordings were obtained from seven locations. They show the car you were driving travelling at high speeds in the Norlane area prior to the collision. Dashcam footage was also obtained from Mr Robinson’s truck. The footage was played during the plea hearing.
15Police were able to calculate your speed immediately prior to the collision at 135 kilometres per hour.
16Summary Charge 13 is based on you, at approximately 11.49 pm that evening, mounting a traffic island and hitting a traffic control signal.
17On being discharged from hospital you were interviewed by police. You answered 'no comment' to their questions. You were charged and remanded in custody. At the time of this offending you were on bail for other offences and also on a community correction order (CCO).
18The charges against you resolved at a Committal Hearing before any witnesses were cross-examined. The case then proceeded by way of hand-up brief.
19You have admitted your criminal record. It extends to some 37 pages.
20Your most recent prior convictions were on 19 December 2022 for offences including reckless conduct endangering serious injury, dangerous driving while being pursued by police, failing to stop your vehicle on police direction and driving while disqualified. You were sentenced then to an aggregate sentence of 170 days' imprisonment and a CCO. You had not long finished that sentence of imprisonment before committing the current offences.
21In total you have five prior convictions for reckless conduct endangering serious injury occurring between December 2022 and January 2019; one conviction for reckless conduct endangering life in March 2017; four convictions for offences related to dangerous driving; ten convictions for driving while disqualified or suspended; and six convictions for failing to stop on police direction. You have in the past been placed on community correction orders and sentenced to terms of imprisonment. You have breached all previous community correction orders.
Personal circumstances
22You were born in December 1998 and, as stated, you were 24 years of age at the time of this offending. You are the only child of your parents. You have never met your biological father. You have a half-sister and half-brother born to your mother. Your younger half-brother has epilepsy and cerebral palsy and lives with one of your stepfathers. You instructed your counsel that your mother died in your arms in 2019 from a drug overdose.
23You report a difficult childhood impacted by your mother and stepfather's use of drugs, family violence and neglect. You grew up in Geelong and attended three or four different primary schools. You report being diagnosed with attention deficit hyperactivity disorder while in primary school. You experienced difficulty due to poor concentration and behavioural issues. You were suspended from school on many occasions. You started Year 7 but left soon afterwards as you were mixing with a negative peer group, using drugs and alcohol, and getting into trouble. You began to run away from home and using drugs and alcohol at around the age of 11. You were basically homeless from that time on, often staying with friends.
24You have spent significant parts of the last 10 years in detention and custody. You report having completed either Year 10 or 11 during your time at Parkville Youth Justice Centre.
25You have not engaged in any paid employment outside of detention or prison. At the time of your plea hearing, I was informed you were completing a course to improve your employment prospects upon your release.
26Tendered on your behalf is a report of Martin Jackson, consultant clinical neuropsychologist, dated 18 April 2024.
27You told Mr Jackson you started to use cannabis at around the age of 11, using it daily by the age of 12. You also started drinking alcohol at the age of 11, which also became a daily habit. You reported regular use of methylamphetamine, using up to a couple of grams a day. You have also used amphetamines, LSD, ecstasy, GHB, and Xanax. You said you have not had any counselling for your drug and alcohol use, but report that you are now receiving buprenorphine injections once every three weeks.
28You told Mr Jackson you have no recollection of this offending. You said that the first thing you could recall was waking up in the car after the accident.
29Mr Jackson assessed you as having borderline to low average premorbid verbal intellectual abilities and low average premorbid perceptual intellectual abilities. He stated there was no evidence of an acquired brain injury and that your clinical presentation and test performances were consistent with your previous diagnosis of ADHD.
30Mr Jackson stated that your cognitive capacity at the time of the offending would have been affected by the presence of methylamphetamine, although he was not able to say exactly how it affected you, other than that methylamphetamine does affect attention skills and executive functions. Your neuropsychological condition, he said, will not deteriorate as a result of you being imprisoned. From a purely cognitive perspective, Mr Jackson stated you have the intellectual ability, new learning ability, and executive functions to benefit and change through rehabilitation. However, he noted your offending has largely occurred in the context of drug and alcohol use, and therefore, you would benefit from drug and alcohol intervention. Mr Jackson stated that arguably you are at risk of becoming institutionalised, and that there is a risk of a lengthy period in prison increasing the probability of institutionalisation. This would increase the probability of you reoffending once released.
31Although you have previously been assessed by Mr Jeffrey Cummins, psychologist, and Dr Mathew Barth, psychologist, and while there are references to their assessments in Mr Jackson's report, I have not been provided with their reports.
Submissions
32Your counsel, Ms Dubroja, relied on the following matters in mitigation of penalty:
(i) Your pleas of guilty, which it was submitted, were entered at the earliest opportunity;
(ii) Your remorse, as indicated by your pleas of guilty and your comment to Mr Jackson that you felt 'disgusted' by your actions;
(iii) Your relative youth. At the age of 25 now you are still to be sentenced as a youthful offender, although it was conceded this consideration is moderated by reason of your relevant criminal history;
(iv) Childhood deprivation, as a result of you being raised in an environment marked by drug and alcohol abuse, violence and neglect since birth, and general reliance upon the High Court decision in Bugmy v The Queen,[1] particularly at paragraph [44].
[1](2013) 249 CLR 571
33Regarding your rehabilitation prospects, Ms Dubroja accepted that they depend on you engaging in appropriate treatment and being abstinent from drug abuse.
34Ms Dubroja acknowledged the importance of general and specific deterrence and community protection. It was conceded, properly so in my opinion, that a sentence of imprisonment with a non-parole period is the only appropriate disposition.
35Regarding your offending, Ms Dubroja highlighted that the pursuit was relatively short, lasting only 28 seconds, and that the collision with the tree occurred because you had taken action to avoid a collision with oncoming traffic.
36Notwithstanding your many prior convictions, Ms Dubroja submitted that you are not at a point where your prospects of rehabilitation are extinguished. She submitted that you are still young, have the ability to learn and change your behaviour, and there are no underlying entrenched anti-social values. Your prospects, Ms Dubroja accepted, depend very much on you remaining abstinent. I was informed that in custody, you are engaging in pro‑social activities relating to education, drug abstinence, and other courses. Your stepfather, Paul, visits you in custody and will allow you to live with him upon your release, provided you do not resort to drug use.
37Mr Hardjadibrata, who appeared on behalf of the prosecution, agreed with the sentence submission put forward by your counsel. He helpfully provided several comparative cases.
38Mr Hardjadibrata stated that Mr Webber sustained an acquired brain injury as a result of the collision, and although no medical reports were forthcoming, it is understood that he has recovered from his injuries. A victim impact statement was sought but not provided by Mr Webber.
Sentencing considerations
39There can be little doubt that the manner and speed at which you drove while being pursued by police was objectively very serious, even if it lasted only 28 seconds. In that relatively short period, you drove on the incorrect side of the road on the Princes Highway and faced at least three oncoming cars and a truck laden with hot asphalt. You knew that police were pursuing you. You sought to avoid apprehension. In so doing, you put the safety of the occupants of your car and other road users in great danger. The degree of recklessness in Charges 1 and 3, by driving at high speed on the incorrect side of the road was high, and the potential consequences catastrophic. You also knew that you should not have been driving. You were, as I have stated, disqualified from driving in December 2022. You told Mr Jackson that the judge in December 2022 warned you about where you were heading if you kept getting into trouble.
40You were also driving under the influence of methylamphetamine to such an extent that you were incapable of having control of the car you were driving. This is charged separately and so I do not have regard to it as an aggravating feature of the other driving charges.
41In assessing the gravity of your offending I have also had regard to the maximum penalty that may be imposed for each offence. The fact that you were on bail and on a CCO at the time of your offending are aggravating features of your offending.
42You were of a relatively young age when you committed these offences. You are of borderline to low average premorbid intellectual abilities and low average premorbid perceptual intellectual abilities. You have also been diagnosed with ADHD. Mr Jackson stated that you present with largely intact cognitive functions. I have regard to each of these considerations which, in my assessment, serve to reduce somewhat your level of moral culpability. Reliance was not, however, placed on any of the Verdins’[2] considerations by your counsel and, as I earlier stated, you were aware of the warning the judge had given you in late 2022.
[2] R v Verdins (2007) 16 VR 269
43I accept your counsel's submission that these offences all occurred in the course of what might be considered a single episode of driving, and that the totality principle is relevant and applicable. Each of the offences however are distinct offences, involving in the case of Charges 1, 2 and 3, separate victims. Although victim impact statements have not been provided, I have little doubt that in the case of Mr Robinson, at least, the sight of a car being driven towards him on the incorrect side of the road, at high speed, must have been a terrifying experience. I note that in his witness statement to police he expressed feelings of anger, confusion and frustration at your conduct. I am also conscious that in sentencing you I must exercise caution to not doubly punish you in respect of overlapping conduct and to not punish you for offences that are not the subject of a charge.
44I take into account the fact that you pleaded guilty to the charges. Your pleas of guilty were entered at an early stage and have facilitated the course of justice. You have saved the court and the community the time and expense of a trial. Importantly, you have spared witnesses from having to give evidence at trial. I am not, however, prepared to accept that your pleas of guilty are indicative of remorse. With the exception of you telling Mr Jackson that you were 'disgusted' by your behaviour, there is little else, in my opinion, that evidences genuine remorse.
45With regard to your prospects of rehabilitation, and notwithstanding your relative youth and rehabilitative efforts in custody, given your lengthy criminal history, I consider them to be guarded at best. You had only recently been released from custody and placed on a CCO when you committed the offences before me. You are not to be punished for your previous offending, but your criminal record is relevant to my assessment of your prospects of rehabilitation; the need to deter you from further offending; and the need to protect the community from you. As is clear from the submissions put to me on your behalf, your prospects of rehabilitation are very much tied in with your ability to remain abstinent from drug and alcohol abuse once you are living in the community. You require appropriate treatment to deal with those issues as well as your attention deficit hyperactivity disorder.
46I accept your counsel's submission that your prospects of rehabilitation are not extinguished and that your rehabilitation is a factor to which I must have regard. However, this was serious offending and I consider that the weight to be attached to your rehabilitation is less prominent than it might otherwise have been, particularly given the opportunities to rehabilitate extended to you in the past. I am also mindful of the fact that offences such as the ones to which you have pleaded guilty are often committed by young men, and often while under the influence of drugs or alcohol.
47In sentencing you, I consider that general deterrence must be given considerable weight. Incidents involving dangerous driving and endangerment to others through the use of cars are, unfortunately, not uncommon in our community. Persons tempted to behave in such a way should understand that if they do, they will be met with stern punishment, often measured in years of imprisonment.
48I also consider that there is a strong need that the penalty to be imposed deters you from further offending. You should understand that if you continue to offend, particularly in this manner, you are likely to receive ever increasing gaol sentences. Your behaviour must also be denounced. It was outrageous behaviour that had the potential to cause death, and it did in fact lead to serious injury in the case of Mr Webber. The protection of the community from you, particularly having regard to your shocking driving record is an important consideration in the sentence to be imposed.
49I accept that considerations referred to in Bugmy are be taken into account in a general way to mitigate your moral culpability. Your deprived background does not excuse your behaviour, but it is relevant to sentence.
50As was said in Bugmy:
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.'[3]
[3]Bugmy v The Queen (2013) 249 CLR 571 at [40]
51I am required also to have regard to current sentencing practice in relation to the offences to which you pleaded guilty. In sentencing you, I have had regard to the comparative cases provided by Mr Hardjadibrata as well as a number of other sentencing decisions of this Court and the Court of Appeal. The sentences passed in other cases may provide some assistance as an overview of the sentencing range for the type of offences under consideration. However, they are not precedents which must be followed unless they are capable of being distinguished. Each sentence must ultimately be decided upon its own facts and circumstances.
Sentence
52I turn now to the sentence. Having regard to each of the matters that I have just discussed, including the objective seriousness of the offences as well as your personal circumstances, I impose the following sentences.
53On Charge 1, you are convicted and sentenced to 20 months' imprisonment.
54On Charge 2, you are convicted and sentenced to 6 months' imprisonment.
55On Charge 3, you are convicted and sentenced to 14 months' imprisonment.
56On Summary Charge 9, you are convicted and sentenced to 6 months' imprisonment.
57On Summary Charge 12, you are convicted and fined $400.
58On Summary Charge 13, you are convicted and fined $600.
59The sentence imposed on Charge 1 is the base sentence. I direct that two months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 3 and two months of the sentence imposed on summary Charge 9 be served cumulatively on each other and on the base sentence. This makes a total effective sentence of 28 months' imprisonment. I direct that you serve a minimum period of 19 months before becoming eligible for parole.
60You have already spent a significant period in custody on remand on these charges. Pursuant to s18 of the Sentencing Act 1991, the period of 555 days not including today is reckoned as already served under this sentence.
61Had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of three years and three months' imprisonment with a non-parole period of 28 months.
62I also propose to make an order that you be disqualified from driving for a period of four years from today pursuant to s 50(1B) of the Road Safety Act.
63HIS HONOUR: Thank you both for your assistance. We will now adjourn the court.
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