Director of Public Prosecutions v Vucko

[2019] VCC 514

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01830

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON VUCKO

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Vucko
MEDIUM NEUTRAL CITATION:	[2019] VCC 514

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Porceddu	Office of Public Prosecutions
For the Accused	Mr. C. Terry

HER HONOUR: 

1Simon Vucko, you have pleaded guilty to three charges.  They are reckless conduct endangering life, theft, possession of a drug of dependence, and you have also pleaded guilty a summary charge of unlicensed driving.

2The summary of opening for plea outlines the facts and CCTV footage showed at the plea hearing, showed the moment just prior to an accident which is the subject of these offences.  In summary, it is as follows;

3On 5 November 2016, you were driving west on Toorak Road, heading towards the intersection of Burke Road.  The car you were driving, an Audi Q7 wagon, was stolen by you the previous evening from outside the owner's premises in Mount Waverley.  That is the theft charge. 

4You were travelling at very high speed, and were witnessed by paramedics who were stationary at Burke Road intersection, to become airborne for approximately ten metres.  On landing, the force was significant enough to cause gouge marks in the road.  The car veered across the wrong side of the road, mounted the nature strip and collided with a brick fence. 

5Skid marks ran for approximately 50 metres from the collision location.  Bricks from the fence were thrown into the front yard area of residential premises, landing on and around the owner's vehicle and causing damage to it and to the garage roller door behind the vehicle.  It was about 2.30 am when this accident occurred. 

6This is another instance, where, through fate and good fortune, two paramedics stationary in the ambulance at the intersection, observed you and were immediately able to attend upon you. 

7They assessed your Glasgow Coma Score as 3/15.  They performed intubation and chest decompression.  It took approximately 35 minutes to extract you from the vehicle.  A blood test taken some hours later, demonstrated that you had methyl amphetamine in your system. 

8You sustained a range of serious injuries in this accident, including multiple spinal and thoracic fractures, right and left lower limb injuries, significant abdominal trauma and a severe traumatic brain injury.  I will return to these and to your recovery.

9At the outset, it is safe to say that the theft of the motor vehicle and your driving behaviour and drug-affected state at the time of this collision was symptomatic of the lifestyle you were living at that time.  You were, at that stage, 37 years old and had a serious prior criminal history, dating back to 1998 and which had seen you incarcerated on at least three occasions.

10It was conceded on the plea that the circumstances of the accident and of your past criminal history, would undoubtedly have resulted in a sentence of imprisonment for the current offences.

11The issue on the plea, however, and the issue most relevant to my sentencing of you, is the impact of your severe traumatic brain injury and cognitive deficits on  your personal recovery.

12That recovery includes the apparent epiphany you have had about your past behaviour and your stated and observed determination to work towards a positive future. 

13Before I go to that, turning to the objective seriousness of the offending.  I accept that the seriousness of this accident relates to the very high speed at which you were travelling, even though that cannot be quantified exactly; the fact that you had drugs in your system; the fact that you crossed over to the wrong side of the road and the impact of the actual crash.  The fact that you were in a stolen vehicle and were unlicensed at the time of this incident further aggravates the seriousness of the offending.  It is only by good fortune here that
no-one else was seriously injured or killed.  Fortunately, the accident occurred late at night when the roads were quieter.  However, I do not place much weight on that fact, given the intersection of Toorak Road and Burke Road can be busy at anytime of day.  In my view, it was good luck. 

14Those circumstances of the accident do require general deterrence to play a primary role in sentencing.  Too often these courts see the drastic consequences of young men driving at speed and drug-affected.  Sentences must deter others and must express the community's denunciation of such behaviour which often places innocent people at serious risk.

15The dramatic consequences for you are amply outlined in the reports which attest to the significant physical injuries and severe traumatic brain injury you sustained. 

16The impact of those matters has been ongoing since the date of this accident and will be life-long.  In terms of your trajectory since that time, in summary you were initially at The Alfred Hospital and in a coma for several weeks, if not months.  Upon emerging from that coma, you displayed aggressive and concerning behaviours for a period of time.  You have no recollection of the incident, nor of that period of your recovery. 

17You moved from The Alfred to the Epworth in Richmond in the Acquired Brain Injury ward and then to Caulfield Rehabilitation which was a secure facility.  You remained there for about a year and a half. 

18The TAC became involved and conducted a thorough assessment of you.  In line with the fact that the acute phase of your recovery had passed and you were no longer displaying aggressive behaviours, you were then assessed as suitable to transition to the TAC facility called, TLC.  You have been in that accommodation for roughly 12 months. 

19Returning to the specifics of your injury.  The initial scan of your brain revealed multiple areas of bleeding, in particular, bilaterally within your frontal lobes, a large area in your left temporal lobe and a left lateral intraventricular haematoma.  You also sustained spinal fractures, and injury to your right vertebral artery.  You underwent surgery on the day of the accident, and as I have said, you were in a coma for some time. 

20The full extent of your ongoing treatment is contained in the report of neuro-psychologist, Rachel O'Meara.  Your admission and recovery initially was complicated by hospital-acquired pneumonia, persistently low Glasgow Coma Score and deep vein thrombosis. 

21You transferred to the Caulfield Rehabilitation Unit on 23 December 2016.  Your state of post traumatic amnesia endured for some 10 to 11 months post injury, indicative according to her and the other reports she had relied on, of an extremely severe traumatic acquired brain injury.

22Indeed, in May 2017, there was a further frontal subdural haemorrhage which was managed conservatively.  In September 2017, there was again evidence of significant diffuse cerebral atrophy, and in December 2017, so just over one year post-accident, a further frontal subdural bleed was identified, but was again able to be managed conservatively.

23According to Ms O'Meara, your functional recovery during your inpatient rehabilitation admission was impacted by severe global cognitive impairment and behaviour of concern.  You were appointed a guardian through the Office of the Public Advocate and a financial and legal administrator through State Trustees, both appointed by VCAT.

24Your behaviours of concern initially required full-time security over two months and one-to-one nursing support.  However, the reports note that these behaviours ceased by early December 2017.  That improvement was attributable to a combination of medication changes, recovery from major surgery and repeated episodes of delirium and resolution of post traumatic amnesia.

25Despite the improvement of your behaviour, nevertheless neuro-psychological assessment conducted in December 2017 still identified a range of ongoing severe cognitive deficits. 

26As at the time of Ms O'Meara's report in May 2018, your problem behaviours had improved to the point you were then awaiting the transfer to the TLC, Transitional Living Centre. 

27At that point, your orthopaedic injuries were well-healed, despite ongoing impact on your mobility and severely limited range of motion in your right shoulder, and bilaterally in your knees and ankles.  You had, however, by then demonstrated significant improvements in communication and cognition.  You were able to administer your own medication with prompting, and you were participating, as at the May 2018 phase, in individual and group therapy. 

28Ms O'Meara did note some functional improvement since being assessed in December 2017, however she stated that all performances were remaining within the extremely low-range. 

29The primary issues she identified in terms of your cognitive facility, included impaired memory, reasoning and insight, reduced initiation, difficulty sustaining effort as well as risk of poor financial management and reduced awareness of your limitations and the severity of your cognitive impairment.  For those reasons, it was considered you would benefit from a period in supported accommodation to transition you in the hope that you could optimise your potential for independent living. 

30As at May 2018, you were noted to have reduced endurance, speed and steadiness, reduced balance, you needed a rail and additional time for climbing stairs.  You had reduced movement in your ankles and knees with associated pain and reduced elevation in your right shoulder.  You were continuing to suffer fatigue. 

31You were able to acknowledge difficulty with a number of cognitive skills since the motor vehicle accident. 

32In terms of the impact of this accident on your cognitive function, Ms O'Meara assessed you as having a full scale IQ of 67, which is in the extremely low range.  That is, on the second percentile or below. 

33Overall, she said you demonstrated severe impairments across a number of domains including perceptual intellectual skills, psycho-motor speed of information processing and sequencing.

34You had severe difficulty noted across most aspects of executive functioning, and your capacity for new learning was extremely low.  Your language skills remain intact, but verbal fluency was severely below your pre-morbid expectations. 

35Ms O'Meara did note a past history of a head strike with loss of consciousness when you were a teenager.  You were at that time, admitted to Monash Medical Centre for approximately one month.  You apparently experienced loss of hearing and facial hemiparalysis for approximately 18 months. 

36She also noted your pre-accident lifestyle including substance abuse since you were approximately 16 years of age and up until the time of this car accident.  You commenced using alcohol from about 13 years of age, a past history of daily cannabis use as well as amphetamine and heroin use.  I was told by your counsel that you were in fact a heroin-user throughout your 20s and included experiencing one or two overdoses while using heroin which required treatment with Narcan.  You later became a user of amphetamine and methyl amphetamine and were so using up until the time of this accident.

37While allowing for your head strike sustained in childhood, and the extended period of significant substance abuse which may have contributed to some cognitive impairment, Ms O'Meara concluded that your traumatic brain injury was likely to be the primary factor underlying the deficits apparent on testing. 

38The report of Ms O'Meara was requested to determine your fitness to stand trial.  Her conclusion was that you clearly demonstrated impairment in your mental processes performing severely below pre-morbid expectations across a number of cognitive domains and qualitatively, you also demonstrated notable difficulty with sustained attention, planning and organisation.  She concluded that cognitive profile was consistent with the extremely severe traumatic brain injury, signified by clinical indicators from the time of the accident. 

39She concluded that given you were by then nearly 18 months post-accident with limited evidence of improvement in cognition over the past four months, she stated it is likely that you will continue to experience severe impairment of your mental processes in the future, although some further improvement may be possible.  Ultimately, she concluded that you were unfit to stand trial.

40Six months after the assessment by Ms O'Meara, you were assessed by forensic psychologist, Dr Dion Gee, of the Institute of Forensic Mental Health at the request of the OPP. 

41Dr Gee stated that in line with the previous investigations, informal assessment suggested your cognitive capacities were consistent with an individual in the extremely low to borderline range of functioning, although with clear features of neuro-cognitive compromise.  You were able to demonstrate, according to Dr Gee, only partial insight into your mental health needs and neurological compromise. 

42By then you had been living at the TLC for some months.  Dr Gee opined that you are labouring under significantly compromised cognitive, behavioural and emotional functioning.  You meet, according to him, diagnostic criteria for a major neuro-cognitive disorder due to traumatic brain injury co-morbid with
poly-substance use disorder in sustained remission. 

43He described your neuro-cognitive compromise in the following terms.  “The enduring and insidious nature of this neuropsychopathology continued to interfere with his ability to function productively, thwarts his capacity to meet basic primary human needs across many life domains, and somewhat derails his capacity for adaptive behaviour.”  He, too, assessed you as being unfit to stand trial. 

44Given the severe nature of your cognitive impairment, your counsel submitted that the principles of Verdins are applicable to my consideration of sentence.  I am satisfied that limbs 2, 4, 5 and 6 are all applicable here, given the significant cognitive deficits you now suffer as a result of this accident.

45In relation to limb 3, that is, whether this condition should work to moderate general deterrence, in my view, the very fact of your severe injuries should have a generally deterrent effect on like-minded individuals, even though we know these sort of accidents frequently do not. 

46As far as the sentencing consideration, however, your condition resulting from this offending, does not really impact on the importance of general deterrence in my view.  In other words, it is still a primary sentencing consideration. 

47In addition to the opinions contained in both expert reports, I also had the benefit of hearing evidence from Ms Trish O'Ryan, who is your current case manager.  She is a social worker by training but has previously worked in prisons and prisoner sentence management for 15 years, before becoming employed with an organisation called Co-Health, that is a community health organisation. 

48The team which Ms O'Ryan works in, undertakes specialised care planning and assessment service, mainly related to persons who have brain injury and who are referred to them by the TAC or prison services.

49She has experience in training and working with persons with brain injury and indeed, four of her current five clients have brain injury. 

50She met you approximately six months ago, though had known of your case for about six months prior to that.   That was in the context of the TAC conducting an assessment of you.  She described that as a 60 page document which takes  into account your pre-accident disposition and your life for about ten years prior to the accident.

51Although Ms O'Ryan did not conduct that assessment, she has come to understand your background and your criminal history through reading that material, and the number of reports related to you. 

52She gave evidence that she initially had some real concerns about placing you, given your early problem behaviours.  However, she says she has seen a remarkable transformation in you.  It seems this transformation started before her involvement, given you were deemed suitable to transfer to Caulfield.  However, on her own observations, she says the type of change that you have demonstrated, is one she has never seen in any other client. 

53She describes you as genuinely remorseful for your past lifestyle and offending.  She says you described the accident as the best thing that has happened to you. 

54Ms O'Ryan gave evidence about the TLC.  She described it as consisting of six different units, with 24/7 staffing by Occupational therapists from the Epworth Hospital.  Doctors are also frequently on site.  You have your own unit and she described you as one of their best clients.  You are now at a stage where you are able to come and go independently. You take care of your own activities of daily living.  You are able to use public transport and you now stay at your mother's house every weekend.  You were able to return and remain with your mother for a week at Christmas.

55Staff assist you determine the timetable for the week which assists you to keep things on track.  You are engaged with mentoring groups, with the gym and running groups, with regular appointments with your doctor.  You also now work at a friend's factory shop in Coburg one day a week and you're currently looking for more paid employment.  The doctors liaise with TLC staff as to what is required for you medically.

56Your progress has been such that you have now been assessed as suitable for a further transition to an even less restrictive, but still supportive facility.  That is a facility called RIPL, which translates to Residential Independent Pty Ltd. which operates six houses located in and around Melbourne.  Those residences are owned by the TAC and run by ARBIAS. 

57According to Ms O'Ryan, your acceptance into that accommodation is a huge achievement.  Only three places existed and there were approximately 40 applications.  You underwent a rigorous assessment before becoming the successful applicant.  You signed a lease for that accommodation a couple of weeks ago, and the construction is expected to finish in the near future, whereupon you will be transitioned.

58The success of your application for that accommodation is another acknowledgement of your positive progress since the accident and what Ms O'Ryan described as the extreme change in your behaviour since that time.

59Her comments are consistent with the material in the reports, and consistent with the observations made of you by your brother.  Your older brother, Mario, was an impressive witness.  He gave frank evidence about your pre-accident destructive lifestyle and the impact it was causing, not just for you, but for your family. 

60Your brother is a person who worked as security in a nightclub over about 12 years.  He was well-versed with observing the ravages of drug-abuse and certainly observed your decline.  He was aware of your criminal behaviour. 

61At the time of the accident, he had cut you off from contact with him and his wife and young children.  The phone call he received advising him of your hospitalisation was one, he says, he had been expecting; however, in the context of your drug addiction.  He said your family were told at the time of your admission at The Alfred Hospital and in the weeks following, that you were not expected to survive. 

62He gave evidence as to your recovery, your ongoing physical and mental limitations, but also as to your awakening.  That is, he and your family have observed that this car accident has changed you; you have reconnected with them, including staying at your brother's house, forging a relationship with his children and as I have said, reconnecting with your mother.

63He says that you have not used any illicit substances including during the time when you were staying at your mother's over Christmas, and most importantly, you have expressed your determination to stay substance-free.  It seems you are now able to view your history through the prism of this accident, to express your remorse for your past behaviour and to express a new-found determination and interest in your own future.  In short, he said, if he did not believe in you, he would not be here.

64Ms O'Meara also noted that you expressed you were very regretful of your past offending behaviour and the major impact this had on you and your family.  She says,

"He was emphatic that he did not want to return to any substance abuse in the future and has not resumed use of any substances since his injury.  He was keen to continue engaging in counselling to reduce his risk of relapse and recidivism."

65Those sentiments are consistent with comments made in the report of neuro-psychologist Mr Delaney from Caulfield Rehab Service in December 2017, namely that you were demonstrating increasing insight into your circumstances and were highly motivated for positive change.  Similar sentiments were also expressed to Dr Gee.

66I accept the positive changes that have been described and which have occurred since November 2016.  Given your prior history you will, of course, need to maintain your determination, in particular, to abstain from drug-use.  That will always present as a risk to you.

67To that end, Ms O'Meara opined that creation of an explicit plan for avoiding any potential triggers for relapse into substance use, and previous negative peer influences and from assistance with becoming engaged with more positive peer networks should be developed. 

68Your counsel submitted in essence, that those aims could be achieved within the framework of a community correction order. 

69The prosecution, while conceding that a CCO is appropriate, submitted that you should be sentenced to a term of imprisonment prior to the commencement of that order.  Given the matter was originally to proceed as a fitness investigation, which was to be uncontested by the prosecution, I find that submission somewhat incongruous. 

70More particularly though, Ms O'Meara says as a result of your executive deficits, you will be vulnerable to being exploited by others and therefore it will be important that plans are made to minimise this risk.

71Mr Delaney and Ms Brown of Caulfield Rehab described you as vulnerable to exploitation and misdirection from others as a result of your difficulty with impulse control, judgment and decision-making. 

72Given those opinions regarding your particular vulnerability to being exploited by others and your lack of insight into the impact of your cognitive deficits, in my view, it would be potentially catastrophic to your rehabilitation to put you back in a setting where you are surrounded by offenders, some of whom may be past associates, many of whom may be battling their own substance issues. 

73Placing you back into the milieu of persons in the prison environment, to my mind, would be a dangerous course for you and ultimately, if you were to fall prey to those influences, it would be a dangerous course also for the community. 

74Further, if you are imprisoned, you will lose your placement at the new RIPL accommodation.  No-one who works in these courts could be ignorant of the considerable demand for a facility such as this.  That consequence, to my mind, would also be potentially devastating. 

75You would also lose your current placement at TLC.  Therefore, the vulnerability of your position, should you be incarcerated, extends in my view, beyond that term of imprisonment and could have significant ramifications for your ongoing stability.

76For completeness, I am satisfied that you have suffered significant extra-curial punishment by way of your injuries, and I agree that these will serve for you as a life-long form of punishment and reminder.

77Higher courts have stated that such injuries can be considered, even though they result directly from the commission of the crime itself.  Although I understand that part of your recovery was in a locked facility, that was for your own health and wellbeing and safety, and does not seem to me to fall into the category of quasi-judicial detention.

78I accept the submission that there is a place for the exercise of mercy in the circumstances of this case.  This is a man whose life had truly deteriorated in a world of substance abuse and criminal behaviour.  Thankfully, no-one else was hurt by this accident.  Thankfully, the impact on you has led you to an epiphanous moment whereby you now recognise the sad state your life was in, and do not want to return there. 

79You have entered a plea of guilty to these charges.  You have expressed your genuine remorse, not only for this offending, but for your past history of offending.  In all the circumstances, I propose to sentence you as follows; if you can stand up please Mr Vucko. 

80In relation to the charge of reckless conduct endangering life, and theft of the motor vehicle, you are convicted and sentenced to a three-year community correction order.  The terms of that order will be that you are to undertake 100 hours of unpaid community work.  You are to undertake drug testing and treatment as directed by the Office of Corrections, and you are to undertake assessment and treatment for any mental health condition that they direct you. 

81In relation to the charge of possess drug of dependence which was the small amount of methyl amphetamine, you are convicted and fined $50. 

82In relation to the charge of unlicensed driving, you are convicted and discharged, however in relation to your licence, you are disqualified from obtaining a licence for three months. 

83All right, you can have a seat there.  The community correction order, Mr Vucko, will be printed out, and I will ask you to sign it and your counsel will explain that to you, and obviously if you do not comply with that order or if you were to commit any further offences, you would be breached and you would come back before me and I would have to re-sentence you. 

84There was also the disposal order which I will sign in the terms sought. 

85MR PORCEDDU:  Thank you. 

86HER HONOUR:  Just a slight amendment in relation to the unlicensed driving, which might be neater, which is that I record a conviction and then attach the disqualification to that rather than recording it as convicted and discharged.

87MR PORCEDDU:  Yes, Your Honour.

88HER HONOUR:  Yes.  All right, thanks very much.  All right, so Mr Vucko, you understand the conditions of that order, and no doubt you will be supported in your completion of that order I am sure by those who are already doing good work with you.  All right, have you got a date yet to move to your new premises?

89OFFENDER:  Yes, middle of May, middle of May. 

90HER HONOUR:  Terrific, all right, well good luck with everything.

91OFFENDER:  Thank you very much.

92HER HONOUR:  All right, thanks counsel. 

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