Director of Public Prosecutions v Trueman

[2016] VCC 883

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02152

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL PATRICK TRUEMAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2016
DATE OF SENTENCE:	27 June 2016
CASE MAY BE CITED AS:	DPP v Trueman
MEDIUM NEUTRAL CITATION:	[2016] VCC 883

REASONS FOR SENTENCE
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Subject:  Culpable driving
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  11 years' imprisonment, 7 1/2 years non parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Harris
For the Accused	Mr C. Terry

HIS HONOUR:

1Michael Trueman, on 11 March 2016 you pleaded guilty to two charges of culpable driving causing death for which the maximum penalty for each charge is 20 years' imprisonment.  You have also pleaded guilty to a charge of negligently causing serious injury for which the maximum penalty is ten years' imprisonment.  In addition, you pleaded guilty to a charge of possession of a drug of dependence for which the maximum penalty is 30 penalty units or one year imprisonment.

2Through your counsel you consented to a summary charge of driving a motor vehicle whilst disqualified, being dealt with by me, and you pleaded guilty to that charge.  Because you have prior convictions for this offence the maximum penalty is 240 penalty units or imprisonment for two years.

3In each of the charges of culpable driving causing death, the culpability was that you drove a motor vehicle whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

4The circumstances of your offending are contained in a prosecution summary which was admitted into evidence as Exhibit A.  That document was read in open court by the prosecutor Ms Flynn.  Your counsel, Mr Dann QC, and
Mr Terry did not suggest that the prosecution summary was inaccurate.  I treat it as a proper basis upon which I can proceed to sentence you for your crimes.

5Because the summary was read in open court by the prosecutor it is not necessary for me to again set out what is contained in it other than in a very abbreviated way.  These sentencing remarks, however, must be read in light of what is contained in the prosecution summary, the content of which I have taken fully into account.

6At the time that you pleaded guilty you also admitted a number of prior convictions.  I will return to these later.  However, on 25 June 2015, some 48 days prior to this offending, you were convicted in the Broadmeadows Magistrates Court on charges of driving with a blood alcohol content exceeding .05% and driving whilst disqualified.  You were placed on a Community Corrections Order with conviction for a period of 24 months and conditions were imposed relating, inter alia, to your need to undergo treatment and rehabilitation for drug and alcohol use.

7This offending is therefore aggravated by the fact that it occurred within a short time after you were placed on a Community Corrections Order for driving offences, including drink driving and driving whilst disqualified.

8On 12 August 2015, at about 9:41 am, a group of elderly residents from a nursing home in Rosebud were in a small minibus being driven by a volunteer and commencing what they all hoped would be an enjoyable outing.  As the bus was travelling in an easterly direction along Eastbourne Road in Rosebud it collided with a white Commodore sedan being driven by you.  At, or shortly after your vehicle turned left into Eastbourne Road from Jetty Road, you lost control of the vehicle allowing it to cross onto the wrong side of the roadway and collide with the bus.  As a result of the collision, Katharina Nensteil suffered fatal injuries and died at the scene.  She is the victim named in Charge 1.

9Betty Fox also suffered serious injuries and was conveyed from the scene by ambulance but she passed away in the Alfred Hospital the following day . She is the victim named in Charge 2.  Alby Maxwell also suffered serious injuries from which he continues to suffer significant ongoing, physical impairment which is graphically described in a moving victim impact statement from his wife tendered in evidence.  He is the victim named in Charge 3.  Other passengers received minor injuries and these are not the subject of charges.

10After the collision police found a quantity of the drug ice and equipment to enable its consumption in your possession.

11Earlier in the morning you had taken the motor vehicle which belonged to your friend, Alex Girotto.  You first travelled to Carnegie to retrieve some money left behind the previous evening by Girotto.

12A number of persons witnessed you driving in the lead up to the collision.  You were observed travelling along the Mornington Peninsula Freeway at a speed greater than the speed limit of 100 km/h.  You apparently attempted to overtake other vehicles travelling in the same direction as you when you lost control of the vehicle at a point just west of the intersection of Eastbourne Road and Jetty Road, which is controlled by a roundabout.  You executed a left hand turn to travel west but you were driving too fast at the time you turned and you did not have control of the car.

13One of the witnesses observed your vehicle lose control and heard a loud revving of the engine around the same time.  The witness saw the back of your car slide to the right as it travelled sideways across the solid, white line and onto the incorrect side of Eastbourne Road, putting it on a collision course with the minibus travelling in the opposite direction.

14Another witness who was driving in the same direction as the minibus observed your vehicle accelerate heavily as it moved into the right-hand lane.  She saw your vehicle travelling towards her but fortunately she was able to take evasive action and she later saw the collision occur in her rear vision mirror.

15The driver of the minibus saw your vehicle out of control before the collision and tried to take evasive action but was unable to avoid the collision. The front of your vehicle collided with the front passenger side of the bus in the right southern eastbound lane of Eastbourne Road.  Marks left on the roadway and gutter show that your vehicle struck the northern gutter of Eastbourne Road before the collision.  This means that at one point your vehicle was completely on the incorrect side of the road, in fact nearly off it.

16You admitted to being the driver at the collision scene.  Police attending observed a small canister containing numerous pills protruding from the pocket of the jacket you were wearing and a subsequent search of the jacket located a glass ice pipe and a small, plastic bag containing ice.  This is the basis of Charge 4.

17A subsequent preliminary drug test was positive and a blood sample later furnished by you when analysed detected methylamphetamine 3.45mg/L and amphetamine 0.97 mg/L in your blood.  Dr Maurice Odell, a well-known and experienced toxicologist, opined that your blood contained extremely high levels of both substances.  He was not aware of any other Victorian cases where levels of methylamphetamine or amphetamine were as high as the levels detected in your blood.  He further stated that drivers of motor vehicles, who are intoxicated with these substances, are more likely to drive dangerously, speed and take risks compared with drivers who are not drug affected.  He said that the typical side effects include speeding, inappropriate lane changes, erratic driving, rapid and non-stop speech, disorientation, agitation, irrational and violent behaviour and cognitive impairment.  It was his opinion that such enormous levels of drugs in the bloodstream would render a person incapable of being able to drive a motor vehicle properly.

18At the time of this collision you were so affected by the drug ice that you were incapable of being able to drive the motor vehicle you were driving properly.  The way that this collision occurred, and the observation of your vehicle by witnesses prior to the collision, show that you were not driving your vehicle properly and you lost control of it.  Also, there is evidence to show that in the couple of days leading up to the collision you had no quality sleep.

19You were also injured in the collision and taken to the Dandenong Hospital and you were released two days later into the custody of the police who had arrested you.  You declined to answer questions, as is your right, but you did convey to the police your regret and sorrow at having caused this collision and the consequent deaths and injuries.

20I regard your moral culpability for this offending as high.  You have been a drug addict for a long time and you knew that the taking of illicit drugs brings you into contact with the law.  You knew that having taken the drug ice you could not properly control the motorcar.  Evidence put before the magistrate by your lawyers in June 2015 stressed that you must not take drugs because it causes you to fall foul of the law.  The magistrate gave you yet another chance at rehabilitation and placed you on a Community Corrections Order with appropriate conditions.  This was all designed to rid you of drugs.  Yet almost immediately after receiving the Community Corrections Order, and the advice of your doctor, selfishly you chose to take the drug ice in such a quantity that it was almost inevitable that someone might be killed or seriously injured if you were to drive a motor car.  Yet selfishly you got behind the wheel hell bent on doing what you wanted to do.  Now two thoroughly decent people have been killed and another is suffering what sounds like a miserable existence, because of injuries suffered at your hands.  Each of these persons was dearly loved by their respective families.  They continue to live in deep sorrow and are aghast at the violent manner in which you caused their loved ones to die and to suffer.

21The community too is aghast at this kind of behaviour.  Lives are being ruined both directly and indirectly by the use of the drug ice, as this case demonstrates.  The courts, by sentencing, must step in to protect the community from offenders like you who have shunned previous opportunities given to them to rehabilitate themselves.

22I admitted into evidence a number of victim impact statements from the relatives of your victims.  A number of them were read to the court by the makers in what was a very moving part of the plea and the others were read by the prosecutor.    

23Pursuant to s.5(2)(d)(a)(a) of the Act, in sentencing you I must have regard to the impact which your offending has had on the deceaseds' family, relatives and close friends.

24This accident has had terrible consequences for all concerned as can be seen from the victim impact statements.  I have re-read the victim impact statements again before passing sentence.  What comes through is that each of the persons killed by your crime were decent, elderly citizens who were much loved by their families, who were just trying to live out their respective lives happily and in peace.  Mr Maxwell was just trying to do the same.  The victim impact statements from his relatives reveal that he is now living out his days in continual suffering in what must be a miserable existence for him.  One can well understand the profound and prolonged sense of grief and loss that each of the relatives and friends of your victims feel.  I have taken note of your expressions of remorse both at the scene of the collision to police and since to Associate Professor Carroll, and I acknowledge that you understand the level of harm you have imparted to the victims and relatives of your crimes.  In passing sentence I have had full regard to the impact which your offending has had on these people. 

25You have been in custody since 14 August 2015 and, as at the date of your plea, you had served 212 days in pre-sentence detention.

26This matter resolved into a plea at a committal mention on 3 December 2015 and you were committed to trial on the basis of a straight hand up brief.  You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty you have saved the time and costs of a trial, and you have saved the victims and their families from having to give evidence reliving these events.  Because you have pleaded guilty at the earliest available opportunity you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.

27In addition, I treat your pleas of guilty as evidence of genuine remorse on your part for your offending and for the harm that you have inflicted on those who were injured and the sorrow that you have brought to bear to the relatives who lost loved ones as a result of your crimes.

28I now turn to deal with a number of matters concerning your background circumstances.  You were born on 8 February 1992.  At the time you offended you were aged 23 and you are now aged 24.  You are therefore still a young man and I treat you as a youthful offender for the purposes of sentencing.  You can still have a worthwhile life after your eventual release from prison.

29As I said earlier when you were arraigned in this court you admitted a significant number of prior convictions.  Between 2008 and 2010 you appeared on five occasions in the Children’s Court.  I refer to these matters only for the purpose of setting out your history, which shows that you have had a troubled life for a significant period of time.  In the Children’s Court you were dealt with for a variety of offences many of which concerned the driving of motor vehicles and some of which concerned dishonesty offences.  You had three convictions in the Children’s Court for drink driving offences as well as convictions for driving in a dangerous manner (on two occasions) and driving whilst disqualified (on two occasions).  None of the sentences imposed involved detention.

30Your first appearance in an adult court was in February 2012 when you were dealt with for a number of dishonesty offences, as well as unlicensed driving and driving with a blood alcohol content exceeding .05%.  Six months later you appeared before the Armadale Magistrates Court in New South Wales.  On this occasion you were dealt with for driving offences, including driving under the influence of alcohol.

31Seven months later, on 9 August 2012, you appeared before the Melbourne Magistrates' Court where you were dealt with for a number of dishonesty type offences, but also you were again convicted of the charge of driving whilst disqualified and for refusing to accompany a police officer for breath analysis.  On this occasion you were convicted and sentenced to a 12 month Community Corrections Order and there were conditions imposed to assist you with treatment and rehabilitation for drugs and alcohol and with your mental health.  This disposition did not assist you with rehabilitation.

32Nine months later you again appeared before the Melbourne Magistrates' Court where you were dealt with for attempted theft of a motor vehicle and possessing cannabis.  Ten months later you appeared in the Perth Magistrates' Court charged with stealing a motor vehicle.  This was followed by your most recent prior conviction before these offences at the Broadmeadows Magistrates' Court on 25 June 2015 where, as I said earlier, you were dealt with for exceeding .05 and driving whilst disqualified and sentenced to a further Community Corrections Order with conditions framed to assist you with your rehabilitation..

33No doubt because of your young age, and because of your troubled childhood and upbringing, the courts that you have previously appeared before were lenient towards you and tailored the sentences imposed in an endeavour to bring about your rehabilitation.  This is proper application of principle when sentencing young or youthful offenders.  Until these offences for which you have now been on remand for some time, you had not previously received a sentence involving a term of imprisonment.  Sadly, both from your perspective and that of the community, the non-custodial dispositions repeatedly imposed upon you in both the Children’s Court system and the adult court system did not assist you to rehabilitate yourself.

34I was provided with a very helpful written outline of your background by your counsel which I marked as Exhibit 1 on the plea.  I borrow from that document to set out a number of very relevant matters about your background.

35You were born and raised in Rosebud, Victoria. Your mother was a schoolteacher and your father had been in the navy.  Your parents separated shortly prior to your birth and you have had what I was told and accept as only sporadic contact with your father.  I was also told and accept that your mother was a victim of domestic violence while she was pregnant with you and your father was somewhat violent towards you when you did have contact with him.

36You had an older brother, Sean, who was about two years older than you.  He died from what seems a very complicated illness when you were aged about four years.  Shaun was hospitalised on numerous occasions and your mother, not unnaturally, devoted much of her time caring for and visiting Sean in hospital.  You were left in the care of your grandparents or aunties and neighbours and when you did see your father I was told and accept that he was somewhat violent towards you.  A court order was put in place to enable your father to have supervised access with you but he would frequently not arrive for access visits.  Between 1994 and 1995, when you were aged about two to three years, your mother lived in hiding with you and your brother.

37Sean was hospitalised in July 1996 and he passed away on 12 August 1996.  His death is said to have had a profound effect upon you and I will return to this little later.  At this juncture I note that this offending occurred on the 19^th anniversary of his death, and at the time that the collision occurred you were on a journey to place flowers on his grave at a cemetery on the Mornington Peninsula.

38At the time of your brother’s death you were attending kindergarten.  Your mother had been spending a lot of time attending to your brother and you struggled with having been constantly separated from your mother.  You were diagnosed with childhood depression by a child psychiatrist, Dr Edhouse.

39You commenced your primary school education in preparatory at St Joseph’s Primary School in Sorrento in 1997.  Even at that time you were a patient of
Dr Edhouse.  The following year in 1998 you changed schools.  You were a student in Year 1 at Boneo Primary School and you were referred to the Royal Children’s Hospital learning difficulties department.  In 1999 (Year 2) you changed schools again back into the Catholic education system where a psychologist was allocated to you and you continued to see Dr Edhouse and this also continued in the following year (Year 3).

40In 2001 (Year 4) you transferred to De La Salle College but you continued to have difficulties at school and you were referred to the childhood and adolescent behaviour unit where you were allocated a psycho therapeutic nurse.  The following year (Year 5) you had further difficulties at school where you were bullied and it is said that you were the victim of homophobic attacks so much so that you had to be moved to another school.

41In 2003 (Year 6) you attended Malvern Central School where you were suspended a number of times including for an incident involving self-harm.

42The following year 2004 (Year 7) you attended yet another school East Bentleigh Secondary school.  During this year you were referred to a private psychiatrist, Dr Bornstein, and you continued to see a psycho therapeutic nurse.  There were a number of suspensions and your mother was advised to send you to what is described as a “special school”.  You were sent to a boys boarding school in Hamilton which did not suit you and you were suspended on a number of occasions.  You were then sent to Bentleigh Secondary College, and then to Perth where your father was living, to complete Year 7.

43In 2005 (Year 8) you attended John Curtin College in Perth and you were  living with your father who physically abused you and you were neglected by him.  He suffered from a lung infection and you again suffered homophobic bullying at school.  Your mother moved to Perth in an endeavour to help you.

44In 2006 (aged 14) you moved in with your mother in Perth.  You went missing from school and suffered from anorexia.  You were self-harming and overdosing.

45In 2007 (aged 15) you were admitted to hospital suffering from alcohol poisoning.  You could no longer live with your mother due to problems in your relationship with her.

46Between 2007 and 2010, having reached Year 11, you left school and you were living in residential care housing.  Your drug use increased as did your offending resulting in the Children’s Court appearances that I have earlier referred to.  You were attending the Albert Road Clinic for psychiatric treatment.

47Between 2010 and 2015 you were living with a friend in private accommodation and you commenced a relationship with a man named Les whom you met on the internet.  The relationship lasted three and a half years.  You obtained a diploma in hospitality and you worked in hospitality, waiting in cafes in Brunswick, and you have also worked doing body piercing.

48In 2015 you commenced a Certificate III in hairdressing at the Melbourne Hairdressing Academy.  This was shortly before the offending and you were paid for shifts and you were effectively employed like an apprentice.  You were placed on a Community Corrections Order, as I have said, in June 2015.  This offending occurred on 12 August 2015 and you have been in custody since
14 August 2015.

49At the time of the offending your relationship with Les had broken down and you were living in accommodation in Coburg.  In the time leading up to the offending you had drug and alcohol issues.  In December 2014 you attended at Victoria House in Prahran suffering from suicidal tendencies.  You stayed there for two months between December and January 2015.  You commenced a new relationship and your partner informed you that he was HIV positive.  That apparently occurred the day before the offending.  You contacted him and told him that you wanted to go to your brother’s grave and you were very emotional.  But instead of supporting you, your partner accused you of being selfish.  You spoke with your mother who thought that someone would take you to your brother’s grave.  You obtained the drug ice from your friend Alex and you administered yourself with it, and when Alex would not drive you to your brother’s grave you did so yourself.  Amongst all of this you were apparently told that Alex was also having a relationship with the person whom you thought to be your partner, the person who was HIV positive.

50I received into evidence a letter from your mother.  She was unable to attend court as she suffers from stage 4 ano-rectal cancer.  I received into evidence as Exhibit 7 a letter from Peter MacCallum Cancer Centre confirming this.  Your mother’s letter was a touching and comprehensive document in which she outlined your troubled childhood, and she confirmed the circumstances leading to your brother’s death and the effect that had upon you as a child.  Amongst other things she said this:

51“You will have heard about the start of school.  Michael was highly able, but he scribbled black over everything he did.  He panicked if someone new came into the classroom, or if he didn’t know exactly where he was.  His behaviour began to deteriorate with him frequently coming home with extensions of the truth. An example of this was that one boy in his class had only one kidney.  Michael came home and told me the child had died.  He had not.

52Michael broke up games that had two boys playing.  He began getting into trouble, eventually becoming known as the troublemaker.  He desperately wanted friends.  One time I found hidden under his bed a book entitled “How to Make Friends and Keep Them”.  It was well thumbed.”

53Your mother’s letter confirms that you attended many schools, as I have set out above, and she sought help in relation to your mental health from various agencies.  In her words:

54“There was precious little available in the form of psychiatric help.  The system both in Victoria and WA was such that if a person was in a psychiatric crisis they were to attend a public hospital emergency department.  There one would have to wait to be seen by a medical doctor, then wait for any substances to wear off and then one might see a psychiatric nurse, who gave out a phone number and sent the person home”.

55Your mother’s letter highlights the frustration she endured in seeking appropriate treatment for you.  She said that she found it near impossible to find a psychiatrist who would treat an adolescent with a dual diagnosis of borderline personality disorder and substance abuse, which are the two diagnoses made of you by treating doctors.  In the days before your offending your mother had identified a residential program designed to detox and rehabilitate you in Warburton, but as events transpired it was too late.  Your mother points out that since your time in custody you have detoxed in a harsh but successful way.

56From all of that history, which I have set out above according to the evidence given to me, it is obvious that you have had a deeply troubled and difficult life throughout.  All of that helps to explain your offending but it does not excuse it. 

57I admitted into evidence a number of exhibits in the form of psychiatric reports.  They reveal a lot about your psychiatric history and I now turn to them.

58I admitted into evidence as Exhibit 3 a short psychiatric report from psychiatrist Dr Don Bornstein of the Albert Road Clinic.  He treated you between October 2002 and March 2004 and he had some further contact with your mother between October 2004 and September 2005.  He first saw you at  age ten, your teacher having reported that you were attention seeking, immature, aggressive and displaying independent behaviour.  He says this:

59“The most worrying aspect of his immature development was his exaggerated tendency to denial of, and to face up to, his difficulties, which continued through the period that he attended here.  As part of this pattern, he became quite intimidating towards those who confronted him, and especially towards his own mother.  Because of this, after an initial trial period of therapy with Michael alone, it seemed more productive to see him together with his mother, and during these sessions there was some attempt to confront Michael in a supportive manner.  I then tried to work with his mother on her developing firm, clear and appropriate boundaries for Michael.  However, escalating problems occurred in response to his mother setting limits.  In a fluctuating manner Michael was intermittently verbally abusive, highly emotional, ran out of the house, sometimes without any clothes on, and would climb on the roof and refuse to come down.  At other times he would burst into tears, or proclaimed that he wanted to die.”

60Dr Issy Osowicki is another psychiatrist that has treated you.  I admitted into evidence as Exhibit 4 a brief report from him dated January 2010, to the effect that as at the date of the report he had been treating you for just over one year for what he described as long-standing, personality problems best described as borderline personality.  Amongst other things he said:

61“He has identity issues, labile mood and frequent suicidal acts.  There have recently and in the past (sic) many episodes of risk-taking, antisocial acts which predictably result in him running into trouble with the law.  I have arranged to see Michael on a regular basis and provide psychological and pharmacological help which he needs.  Michael has been attending on a regular basis and takes a mood stabiliser, antidepressant and antipsychotic medication.”

62Closer to the time of offending that we are concerned with, Dr Sayed Assadi also provided a psychiatric report dated 31 May 2015, which I admitted into evidence as Exhibit 5.  He was treating you as a psychiatrist at regular intervals from February 2015 and at the time of preparation of the report, which was prepared for your court appearance in June 2015, he had most recently seen you as a patient on 18 May 2015.  You gave Dr Assadi what he describes as a long-standing history of psychological problems.  You told him that you had been diagnosed with borderline personality disorder, as well as anxiety and depression, by previous psychiatrist and you reported current depressive and anxiety symptoms and fleeting suicidal ideation without any suicidal intention or plan.  According to the report of Dr Assadi you reported a history of alcohol abuse and alcohol related driving offences, and you reported a history of drug abuse including LSD, ecstasy, cocaine and heroin.  In February 2015 you told Dr Assadi that you had been smoking one to two grams of cannabis a day.

63Dr Assadi opined that you were suffering from borderline personality disorder characterised by unstable interpersonal relationships, impulsivity, frequent suicidal behaviour, affective instability, and anger issues.  He said that you tend to show depressive and anxiety symptoms in reaction to psycho/social stresses.  He also noted that you have a significant history of drug and alcohol abuse including amphetamine -like drugs.  He added that people with borderline personality who abused drug and alcohol are more impulsive and clinically less stable than those without substance dependency.

64In his report, which was dated 31 May 2015, and provided to your solicitors about two and a half months immediately before this offence, Dr Assadi provided this telling prognosis:

65“Borderline personality disorder is a chronic condition and needs ongoing psychological treatment.  Mr Trueman is likely to show worsening of behavioural issues (including impulsivity and affective instability) if he abuses drug (sic) and alcohol.  Therefore, it is of paramount importance for him to avoid alcohol and drug abuse.

66Mr Trueman tends to develop anxiety and depressive symptoms with stress.  He is currently receiving antidepressant, Duloxetine, as well as anxiolytic, Clonazepam.  He is likely to show worsening of depression and anxiety if he is sentenced to prison.”

67I have concluded that there is no doubt that despite all of your problems you were told in clear terms by your treating doctors of the importance of avoiding alcohol and drugs.  You ignored that advice, consuming a large quantity of ice before you began to drive the motor vehicle so that you were driving under its influence.

68A further psychiatric report was tendered in evidence as Exhibit 6 from Associate Professor Andrew Carroll dated 29 February 2016.  Dr Carroll has not treated you and the report was prepared for forensic purposes for the purpose of this proceeding.  Dr Carroll interviewed you from prison via video link for a period of 69 minutes.  He was provided with documentation which included your prior criminal history, the committal brief and the report of
Dr Assadi which I have referred to above.  According to your psychiatric history given to Mr Carroll you had been diagnosed at the age of 17 as suffering from depression, anxiety, borderline personality disorder and post-traumatic stress disorder.  You told Professor Carroll of symptoms consistent with chronic post-traumatic stress disorder.  Dr Carroll said that the relevant stressors appear to have been frequent episodes of bashings and other physical abuse at the hands of co-residents whilst in institutional care in your teenage years.  But the reports from your treating psychiatrists are bereft of any mention of these now asserted facts.

69Professor Carroll diagnosed you as suffering from borderline personality disorder and post-traumatic stress disorder, based upon the information he was given.  Whilst I am prepared to accept that you do suffer from an ongoing borderline personality disorder with depression and anxiety, I do not accept the opinion that you also suffer from post-traumatic stress disorder.  It would appear that Associate Professor Carroll was provided by you with history that differs from what the treating specialists have recorded.  Associate Professor Carroll was constrained by a 69 minute interview via video link.  I accept and prefer the findings and the opinions of your treating doctors, and the opinion of Dr Assadi and I act on these opinions.

70Mr Dann submitted in reliance upon the opinion of Associate Professor Carroll that I should find that your moral culpability for this offending is reduced because you suffered from borderline personality disorder and post-traumatic stress disorder at the time of offending.  It was argued that these conditions caused you to take the drugs that you did and you were not thinking properly when you got behind the wheel of the car and drove it.  Because of this he submitted that any sentence I should pass should not give full weight to application of the principles in sentencing known as general and specific deterrence.  I do not accept that submission.  You knew fully of the possible consequences for you if you consumed ice.  You had been warned by your doctors.  You chose to take the drug.  You chose to drive the car.

71I do accept that at the time of offending you were suffering from borderline personality disorder of long-standing and you were suffering from depression and anxiety.  But at the time of offending, as I have set out above, the levels of methylamphetamine in your blood meant that you were incapable of driving a motor vehicle properly and you had been warned by your treating doctors that you were to avoid illicit drugs and alcohol.  Whilst you were not affected by alcohol at the time of offending, you were grossly affected by the drug ice.  As I said before, I regard your moral culpability as high.

72I accept that because of your borderline personality disorder and your depression and your anxiety, your time in prison will be more burdensome than it would be for a prisoner not afflicted with these problems.  I accept you may be at risk of self-harm.  I also accept that because of your sexuality and borderline personality disorder you are vulnerable to other prisoners and may be the subject of bullying.  For these reasons and, depending upon prison classification of you, your time in prison will likely be in a protective situation making the sentence that you serve harder than for other prisoners.  In passing sentence I have taken all this into account.

73I have also taken into account the fact that whilst in prison you are unlikely to have many visitors.  Your mother is too ill to visit you and I acknowledge that her ongoing serious illness will be a concern for you whilst you are in prison.

74After the plea concluded I received from your solicitors a letter from your general practitioner, Dr Jayawardena.  This letter advises that you have been diagnosed as suffering from fibromyalgia which causes pain.  There is no evidence as to what part of your body is affected, nor the basis of the diagnosis.  The diagnosis seems non-specific by a general practitioner and there is no specialist opinion such as might be expected from, say, a rheumatologist.  I have treated this evidence on the basis that you suffer from non-specific general pain which is difficult of treatment because of your drug addiction, making your incarceration more uncomfortable than for most, but I do not place a great deal of weight upon this evidence as a mitigating factor.

75In passing sentence there are number of principles that must be addressed.

76General deterrence: Appellate courts in all jurisdictions in this country have repeatedly said that the crime of culpable driving is very serious and that the sentencing court must be guided by principles of general deterrence.  Put shortly, the sentence I impose must send a clear message to those who may offend as you have, that if convicted there will be a stern sentence imposed.  Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend as you have, that if they do so and they are detected the punishment from the court will be condign.  In cases such as this, application of the principle of general deterrence will be a very important factor in sentencing.  Offending of the type that you have engaged in will not be tolerated in this society. 

77Secondly: specific deterrence is also an important objective in the sentencing disposition for you.  You have many prior convictions for driving offences, as I have already set out.  I regard your prospects for a full rehabilitation as poor.  Whether you can rehabilitate yourself, as with so many other young offenders, depends upon whether you can rid yourself of drugs.  The sentence I pass must reflect appropriate application of the principle of specific deterrence to try to ensure that you do not reoffend in this way.  In this regard what His Honour Justice of Appeal Priest said in Pasznyk v DPP [2014] VSCA 87 at paragraph 74 is apt where His Honour said:

78“Were it not for the appellant’s antecedents, I would have been minded to say that the sentence passed in this case paid insufficient regard to current sentencing practices.  Emphasising once more, however, that the appellant is not to be punished again for his prior convictions, in my opinion they do set this case apart from most other cases of culpable driving.  The appellant’s circumstances are different from many (if not most) of those convicted of culpable driving.  He had been warned by previous sanctions not to repeat his behavior, yet he was heedless of those warnings (on this occasion with fatal consequences).”

79In passing sentence I am conscious of the fact, as I said earlier, that you are still a relatively young man who must be given the chance to rehabilitate so that you have a worthwhile life after prison.  I am conscious that the overall sentence I pass must have proper regard to totality and not be a crushing sentence.

80Thirdly, the sentence must reflect the community’s denunciation of your crime. 

81     Fourthly, s.5(2)(b) of the Act requires me in sentencing you to have regard to current sentencing practices for this kind of offending.  As I indicated above, I have taken current sentencing practices into account.  In doing so I have had full regard to the latest sentencing snapshot for these offences published by the Sentencing Advisory Council, and I have also had full regard to a summary of similar culpable driving cases where there were multiple deaths, provided to me by your counsel.  In reading the cases in particular I have had regard to the discussion of the Court of Appeal as to current sentencing practices of this kind for this kind of offending in Nei Lima Da Costa Junior v. The Queen [2016] VSCA 49 at paragraphs 54 to 66.

82     Finally, I must impose a punishment which is, in all of the circumstances, just.

83On the plea there were submissions made relating to whether I should have regard to the Court of Appeal decision in Harrison and Rigogiannis [2015] VSCA 349. That decision directed change in sentencing practices relative to Charge 3 on the indictment, negligently causing serious injury. In arriving at an appropriate sentence for Charge 3 I have considered only current sentencing practices for that offence as at the time when you indicated that you would plead guilty, that is the current sentencing practices operative before the relevant Court of Appeal decision. A summary of comparable sentencing in cases of negligently causing serious injury by driving is provided by the Court of Appeal in the Harrison and Rigogiannis decision itself, and I have had regard to these in arriving at an appropriate sentence on Charge 4.

84Could you please stand, Mr Trueman.

85On Charge 1, culpable driving, you are convicted and sentenced to a term of imprisonment of eight years;

86On Charge 2, culpable driving, you are convicted and sentenced to a term of imprisonment of eight years;

87On Charge 3, negligently causing serious injury, you are convicted and sentenced to a term of imprisonment of four years;

88On Charge 4, possession of a drug of dependence, you are convicted and sentenced to a term of imprisonment of one month;

89On the summary charge of driving whilst disqualified you are convicted and sentenced to a term of imprisonment of nine months.

90I direct that two years of the sentence imposed on Charge 2, and one year of the sentence imposed on Charge 3, cumulate upon the sentence imposed on charge 1 and on each other making a total effective sentence of 11 years' imprisonment.

91I direct that you serve a minimum term of seven and a half years before you are eligible for consideration to be released on parole.

92I declare that there has been 320 days pre-sentence detention and that 320 days be reckoned as having been already served under the sentences passed this day, and be entered into the records of the court and be deducted administratively.

93The offence of culpable driving is a “serious motor vehicle offence” within s. 87P of the Sentencing Act 1991.  Upon conviction for this offence a court must cancel any licence to drive a motor vehicle that you may have and disqualify you from obtaining a licence for a minimum period of two years.  Having regard to the gravity of your offending, any licence that you may hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a driving license for a period of ten years from 12 August 2015.

94Pursuant to S. 6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of 15 years' imprisonment and I would have fixed a minimum term of ten years.

95The prosecution sought the making of a Forensic Sample Order and that application was not opposed by your counsel.  Having regard to the serious nature of your offending and your past prior convictions, and because I consider it to be in the interest of justice to do so, I have made an order that a forensics sample be taken from your body and the reasons for my doing so are set out in the order itself.

96Are there any questions arising out of that for me, counsel?

97COUNSEL:  No, Your Honour.

98HIS HONOUR:  Very well.  Mr Trueman, as I've indicated, I've a made a forensic sample order which means that a police officer may approach you whilst in prison to take a sample from your body, which is a swab from your mouth.  Do you understand?

99PRISONER:  Yes.

100HIS HONOUR:  I've also been asked to sign the disposal order, which I'll sign, which relates to the drugs found on Mr Trueman's person.  Yes, would you remove the prisoner please.

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