Director of Public Prosecutions v Wale

[2015] VCC 119

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01926

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WALE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2015
DATE OF SENTENCE:	11 February 2015
CASE MAY BE CITED AS:	DPP v WALE
MEDIUM NEUTRAL CITATION:	[2015] VCC 119

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:             Dangerous driving causing serious injury

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton,Clements and Fitzgerald v The Queen [2014] VSCA 342

McAleer v The Queen [2015] VSCA 4

Sentence:2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ayres	Office of Public Prosecutions
For the Offender	Mr J. Fitzgerald	Victoria Legal Aid

HIS HONOUR:

1James Wale, you have pleaded guilty to one charge of dangerous driving causing serious injury.  This offence carries a maximum penalty of five years' imprisonment. 

2You are aged 19, having been born on 1 April 1995.  At the time of offending you were aged 18 and were the holder of a Victorian P1 probationary driver's licence which had been issued on 2 May 2013. 

3You have no previous convictions.

4The circumstances of your offending are as follows.

5You were the owner of a 1994 silver Holden Commodore sedan, and you and the victim, Edwin Pach, aged 19, were good friends at the time of the offending. 

6At approximately 6.40 pm on Friday 26 July 2013 you were driving the Holden Commodore in a southerly direction along Morris Road in Hoppers Crossing with the victim seated in the front passenger seat.  There were no other passengers in the vehicle. 

7Shortly afterwards the Commodore approached a T-intersection with Hogans Road, which terminates at that point and runs in a predominantly east-west direction.  The T-intersection is controlled by traffic lights facing both north and south-bound lanes of Morris Road as well as the terminating lanes of Hogans Road.  

8Morris Road is a four-lane, two-way divided bitumen road which runs in a predominantly north-south direction.  Two lanes of southerly traffic and two lanes of northerly traffic are separated by a grassed median divide with raised concrete kerbing.  As Morris Road approaches the T-intersection with Hogans Road, an additional (third) right-hand turning lane is provided for vehicles travelling south which intend to turn into Hogans Road in a westerly direction.  Large directional white arrows are painted on the road surface inside each lane at the T-intersection. 

9As you approached the T-intersection, your vehicle was travelling in the middle lane (next to the right-hand turning lane) which is marked with directional arrows requiring traffic to continue straight ahead in a southerly direction.  The traffic light facing you was displaying a green circle for traffic continuing south and a red arrow for vehicles in the right-hand lane intending to turn west into Hogans Road.  This red arrow had been displaying for between one to two minutes according to one witness. 

10A vehicle driven by Jessica Smith was stationary in the right-hand lane waiting to turn into Morris Road.  There were no vehicles behind her in the right turning lane.  As the Commodore entered the T-intersection, you executed a sharp right-hand turn towards Hogans Road against the red arrow from the wrong (middle) lane, and around Ms Smith's vehicle. At this time you had a clear uninterrupted view of traffic travelling north along Morris Road toward you. 

11At the same time a 1999 green Mitsubishi Pajero being driven by Natasha Valli along Morris Road from the opposite direction entered the T-intersection.  Her 12-year-old daughter was in the front passenger seat.  The traffic light facing Ms Valli was displaying a green circle for traffic continuing north.  The Pajero was driving within the speed limit. 

12Your west-bound vehicle crossed suddenly into the immediate path of the north-bound Pajero, which was only able to brake momentarily before inevitable impact.  The front of the Mitsubishi Pajero collided heavily with the left-hand side of the Commodore in a “T-bone” formation in the middle of the intersection.  The impact forced the front passenger door panel of the Commodore into the cabin space against where the victim was seated. 

13The Commodore was pushed sideways and rotated 180 degrees in an anti-clockwise direction before coming to rest facing east against a light pole on the centre median strip at the termination of Hogans Road.  The Pajero continued forwards and rotated 90 degrees in an anti-clockwise direction before coming to a halt in the middle of the intersection facing west, a few metres behind the Holden Commodore.

14As a result of the collision the Commodore suffered extensive damage to its front and rear passenger panels.  You opened the driver's door and got out of the vehicle.  However, the victim remained trapped inside the front passenger seat.  The victim had been wearing a fastened seatbelt prior to the collision.  The Pajero suffered moderate damage to its front bull bar, headlights, bonnet and radiator.  Ms Valli and her daughter were both distressed and in shock but not apparently physically injured.

15A number of nearby witnesses immediately called ‘000’ and attempted to assist the victim who was unconscious and bleeding from a head wound.  Police, fire brigade and paramedics attended the scene shortly afterwards. The passenger side panels of the Commodore were cut open and removed in order to extricate the victim from the vehicle.  

16Whilst still unconscious, the victim was intubated and conveyed by ambulance to the emergency department of the Royal Melbourne Hospital.  He was admitted to theatre with life-threatening injuries to his head, neck and chest and underwent CT and MRI scans, X-rays and neurological spinal examinations. 

17You were spoken to by police and ambulance paramedics at the scene, but did not have any apparent physical injuries and did not require medical treatment.  You were administered a preliminary breath test which indicated nil alcohol present. 

18Ms Valli was taken to the Alfred Hospital for general observation and later discharged.  As a result of the collision she suffered general soreness to her neck and back and was unable to return to work for some time. 

19At the time of the collision the weather was clear, the road was dry, the traffic was medium, visibility was good and the street lights were functioning properly.  The speed limit along Morris Road is 60 kilometres per hour. 

20A police collision reconstruction expert has determined that there is no evidence of excessive speed by either your Commodore or the Pajero at the time of the collision. 

21In causing serious injury to Edwin Pach, you drove your motor vehicle in a manner that was dangerous by:

i.failing to obey a traffic light signal by entering an intersection against a red turning arrow showing against traffic in that direction;

ii.failing to drive within the correct lane of traffic by turning right at an intersection from the wrong (middle) lane;

iii.failing to take account of oncoming traffic;

iv.failing to steer away from another motor vehicle to avoid a collision;

v.failing to exercise proper care or keep any proper lookout.

22On 21 November 2013 you were interviewed by police and stated that:

·"My memory's a bit hazy from the whole thing”;

·“I was coming from Wyndham Village Shopping Centre, and the light wasn't red, it turned amber as I was crossing the line and then I turned and I did not see the oncoming car”;

·before making the right-hand turn: “I didn't go around anyone …. I wouldn't deliberately go around someone to run a red light”;

·“I didn't see the [oncoming] car".

23Edwin Pach was admitted to the Royal Melbourne Hospital whilst unconscious, and as I have said was on life support, and was initially assessed as having a Glasgow Coma Scale rating of 3 to 4 out of 15.  He was placed in an induced coma for 10 days following the collision and remained under treatment at the Royal Melbourne Hospital Intensive Care Unit for two weeks.  On 7 August 2013 he was transferred to an inpatient rehabilitation facility attached to the Epworth Hospital where he stayed for two and a half months.  On 24 October 2013 he was transferred to a transitional living centre before being discharged into his family's full-time care in November 2013.  

24As a result of the offending Edwin Pach suffered injuries including but not limited to the following: 

·severe traumatic brain injury with post-traumatic amnesia of beyond five months;

·bilateral frontal intraparenchymal haemorrhage, in other words, bleeding inside the brain;

·soft tissue swelling over the left frontal skull;

·lacerations and bleeding to the left side of the head;

·a broken vessel in the left eye causing blurred vision;

·a punctured left lung;

·bruised right and left lungs;

·severe bruising to the chest and kidneys;

·cervical spine, that is, neck vertebrae, soft tissue swelling;

·cardiac injury.

25The following medical procedures were undertaken: 

·insertion of temporary intracranial pressure monitor;

·mechanical ventilation;

·

surgical tracheostomy.     

26Edwin Pach is now able to stand and walk without assistance and perform routine personal care tasks independently.  He is, however, unable to drive, suffers from memory loss and receives regular community-based rehabilitative care, including speech therapy and neuropsychology.  His overall prognosis has improved; however, he continues to exhibit ongoing significant cognitive impairment secondary to his severe traumatic brain injury, which is likely to remain. 

27You were charged on summons on 19 July 2014.  At a further committal case conference on 29 October 2014, you indicated an intention to plead guilty to one charge of dangerous driving causing serious injury and the matter proceeded by way of a straight hand-up brief. 

28I now turn to your personal circumstances. 

29As I noted earlier, you are now aged 19, you were 18 at the time of the offending and you have no previous convictions. 

30Your parents separated when you were about three, and you have been raised by your father and a stepmother.  You have a twin sister with whom you remain very close.  Your mother obtained custody when you were aged six, but left not long after when she began a relationship with a new partner.  Thereafter you returned to your father and stepmother. 

31You had a generally positive time through primary school, but found life difficult after Year 7 in secondary school.  You began to receive detentions and were suspended.  Your relationships with teachers were poor, you had little interest and by Year 9 you decided to leave. 

32Since leaving school you have maintained regular employment in a variety of fields, albeit for short periods.  You have attempted pre-apprentice carpentry and later a mechanics apprenticeship.  You ceased the carpentry after periods of bullying, and mechanics after two years.  Thereafter you have worked variously in fast food stores, in plastering, roof tiling and warehousing. You have recently obtained employment at an abattoir and enjoy the work. 

33For over two years now you have maintained a relationship with your partner, Bianca.  You live together and now have a daughter aged six months.  You get on well; however, it appears that Bianca may be suffering from post-natal depression and other disorders.  She does not feel confident, has social anxiety and is reliant on you for many of the activities about the house such as cooking and cleaning. 

34You have a history of substance abuse, including both drugs and alcohol.  You have had periods of binge drinking between 15 and 17, commenced using marijuana at 14 and graduated to amphetamines including methamphetamine.  Your cannabis use increased to a daily habit following the collision but ceased when your partner became pregnant, only to relapse when you received the summons for your court case. 

35A report from Mr Warren Simmons, consulting psychologist, was tendered on your plea.  Mr Simmons has observed social difficulties in your past, both at school and in employment, including bullying and your feelings of not being accepted.  In particular he regards an episode when you were severely assaulted at age 12 as being significant.  This experience appears to have resulted in long-term symptoms consistent with post-traumatic stress disorder further exacerbated by the collision being the subject of these charges.  The condition remains chronic, but fortunately the specific symptoms have abated somewhat over time.  It is unlikely to abate further without treatment.

36Psychological intelligence testing provided evidence of cognitive impairment or learning disability, which may explain the difficulties you encountered in secondary school and in maintaining some employment. 

37Mr Simmons specifically addressed whether, given your psychological profile, you would find imprisonment more difficult than a person not suffering with the same condition and be more vulnerable.  He wrote: 

"Given that Mr Wale demonstrates no significant anti-social personality traits or tendency towards criminal behaviour, and this is his first time in contact with the criminal justice system, it is almost certainly the case that incarceration will exacerbate Mr Wale's symptomatology and he will experience heightened levels of anxiety and distress in an environment which is alien to him.  It will also appear to be the case that his peer group is not one that is highly anti-social or criminal and therefore he will most likely find that environment more difficult to manage … It is almost certainly the case that Mr Wale will struggle in an adult prison and will be more vulnerable.  This is a world that is essentially alien to him given that he has in the past attempted to be a contributing member of the community to the best of his abilities, regularly obtaining employment, maintaining a long-term relationship and being a father to his daughter."

38Mr Simmons concluded by saying that you demonstrated clear remorse for what had occurred and struggled to come to terms with your actions given that it has had such a significant impact on your friend.  You readily understand that the victim may never get over what occurred. 

39Mr Simmons did not interview your partner, Bianca, but Mr Riordan, on behalf of Youth Justice, did.  He reports the following:

"Bianca stated that she has a learning disability, as does James, and she relies on James to explain everyday things to her, especially when they're out in public.  Bianca further stated that she suffers from extreme anxiety and has a fear of being out of the house.  She indicated that she will only go out of the house with James.  During the interview she became anxious and upset trying to explain her condition to me.  She was in tears explaining to me that of her reliance upon James.  Bianca stated that she has had this condition for some years but has never addressed the issue.  She further stated that she hopes to see a doctor in the near future but is reluctant to go as she is anxious and embarrassed.  James has tried to coax her to the doctor but to no avail as yet."

40The act of driving through and turning in an intersection in the face of a red traffic light is a serious instance of dangerous driving.  The probability of very serious injury resulting in permanent disability or death is high.  As a consequence the application of the principles of general as well as specific deterrence are important.  The injuries suffered by your friend, the victim, were severe, and he continues to exhibit ongoing significant cognitive impairment secondary to his severe traumatic brain injury, which is likely to remain.

41In mitigation I accept the matters submitted by counsel including:

·your plea of guilty and the early stage at which it was entered;

·you have suffered exacerbated psychological injury from your actions;

·you have expressed remorse and experienced guilt and sadness at the consequences to your victim;

·you have been deeply impacted by the results of your actions and are unlikely to re-offend in a similar way;

·your driving was not aggravated by speed, drugs or alcohol;

·you were a young and extremely inexperienced driver;

·you have no previous conviction for any criminal offence;

·you are a person of previous good character, in the sense that you have maintained a history of regular work, notwithstanding personal and social challenges;

·you have maintained a long-term relationship with your partner and have cared for her and your daughter in difficult circumstances;

·you are a young offender, and beyond the fact of your age, you are psychologically and cognitively vulnerable; and

·you have the support of your partner, your sister and your parents.

42The circumstances of this incident reflect a truly dreadful tragedy to the victim, a young man at the start of his adult life who is now physically and emotionally compromised.  Both his and his mother's victim impact statements speak eloquently of the anguish they and the rest of the family have endured. 

43In determining the appropriate sentence, I must assess the objective nature and gravity of the offence and the moral culpability of the offender.  On the prosecution evidence, which I accept, you proceeded into the intersection from the middle lane intending to turn right into Hogans Road in the face of a clear red arrow prohibiting a right-hand turn.  The fact that there was an obvious dedicated right turn lane to your right, that there was a vehicle in that lane, that that vehicle was stationary, together with the fact that the light had been red for a considerable time - perhaps not the extent indicated by the witness, but for a considerable time - suggests that your act was not mere inattention but a conscious decision to run the red light.  However, I am not satisfied beyond reasonable doubt that that was the case.  My doubt arises because the light for forward traffic was green, you were a very inexperienced driver, you were not travelling at speed and, importantly, your act of turning when you did put you straight in front of the vehicle which struck you.  In my view the inevitability of collision strongly suggests that it is improbable that you were aware of the Pajero when you made your turn and had simply been focused on the fact that you had a green light in front of you and not on the surrounding circumstances. 

44My finding, therefore, is that your driving was attended by inattention rather than by a deliberate act.  However, it was a high degree of inattention embracing a clear lack of appreciation of the full circumstances at the intersection, including the nature of the oncoming traffic.

45Balancing as best I can the authorities and the principles contained in the Sentencing Act 1991, including general and specific deterrence, the gravity of the offence, the denunciation of the offending conduct, the effect upon the victim and his family and principles of mitigation and rehabilitation in the context of your personal circumstances, I have determined that a sentence of imprisonment remains a serious consideration to achieve the purposes for which the sentence is imposed.

46The issue which has concerned me is whether some time in immediate custody is necessary and whether that time should be in adult or youth detention. 

47

You have been assessed for suitability for both a Youth Justice Centre order and also for a Community Correction Order.  Both reports have assessed you as suitable.      

48The Youth Justice Centre detention has the advantage of being a more appropriate institution given your age and background as well as the directly punitive aspect of immediate custodial detention, but suffers from the disadvantage of not having available a long-term court-directed program of supervision and programs directed towards your rehabilitation.  A Community Correction Order has the advantage of the latter, but if combined with a period in adult prison would involve a young and vulnerable person being placed in an environment which may prove to be corrupting and ultimately counter-productive to rehabilitation and contrary to the public interest.

49Mr Riordan from Youth Justice, an extremely experienced Youth Justice officer, further reported on this issue as follows: 

"It is my professional opinion that James would be at risk of significant contamination in either facility.  He would be an extremely impressionable first timer who may well be bullied and targeted by some of the more unscrupulous inmates.  As a consequence he may adopt undesirable prison behaviours in order to assimilate to the norms and mores of a closed central institution.   Clearly this scenario would hamper his current prospects for his rehabilitation, and possibly have an undesirable effect on him."

50I have been greatly assisted in the determination of this issue by the recent decisions of the Court of Appeal in Boulton, Clements and Fitzgerald v The Queen[1], and McAleer v The Queen[2].  Boulton recognises that a Community Correction Order is by its nature punitive and may be appropriate even for cases of objectively grave conduct involving serious offences.  It can provide substantial general and specific deterrence, and is likely to be a particularly important sentencing option in the case of a young offender where there may be perceived conflict between the need to punish the offender and the importance both to the community and to the offender of rehabilitating the offender. 

[1] [2014] VSCA 342

[2] [2015] VSCA 4

51

The court observed as follows:   

"The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control, and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.  The CCO also enables the offender to maintain the continuity of personal and family relationships and to benefit from the support they provide."[3]

[3] Boulton at [114]

52The court went on to say that in consideration also of s.5(4C) of the Sentencing Act, the sentencing court should ask itself a question along the following lines:

"Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"[4]

[4] Boulton at [121]

53Given the particular circumstances in this case, I do not conclude that imprisonment is the only option.  I consider that the sentencing purposes can be achieved by a sentence that does not involve your immediate confinement.  A CCO for an extended period, with supervision, punitive aspects of unpaid community work and programs directed to your rehabilitation would, in light of the particular extenuating circumstances of this case, fall within appropriate sentencing range.  .

54Mr Wale, could you please now stand. 

55On Charge 1 of dangerous driving causing serious injury you are convicted and ordered to serve a Community Correction Order for a period of two years. 

56The Community Correction Order commences today and ends on 10 February 2017.  The corrections centre you will attend is the Werribee Community Correctional Services at 87 Synnot Street, Werribee, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm this Friday, 13 February 2015.

57All the mandatory terms of the community correction order apply, and the additional conditions I impose are that:  

·   you be under the supervision of a community correction officer,

·   you perform 200 hours of unpaid community work as directed by the regional manager;

·   you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·   you undergo mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility if necessary;

·   you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager, and I particularly recommend a road trauma awareness program.

58I believe that you have already had the mandatory terms of the community correction order explained to you.  However, I will just go over them again now.  The mandatory terms are that:

·   you must not commit another offence for which you could be imprisoned during the time that that order is in force;

·   you must report and receive visits from a community corrections officer;

·   you must report to the community corrections centre, that is the Werribee centre, within two clear working days of the order starting, and as I have already indicated, that is this Friday 13 February;

·   you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·   you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·   you must obey all lawful instructions from and directions of community corrections officers.  Such directions may be given orally or in writing. 

59Do you understand and agree to those conditions, Mr Wale?

60OFFENDER:  I do.

61HIS HONOUR:  If you are ill, or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order.  In either case you must notify the Werribee Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

62However, I must warn you that if you breach any condition of this order, that is any condition of this order, you will be brought back before me.  You will be back before court, but it will be back before me.  One of the options open for me is to cancel the Community Correction Order and re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months, that is, apart from re-sentencing you. 

63Mr Wale, do you understand the consequences of breaching your Community Correction Order?

64OFFENDER:  Yes, I do.

65HIS HONOUR:  In saying that, when I say, "breaching any condition of the order", that includes breaching any of the requirements to attend for community service; do you understand that?

66OFFENDER:  I understand.

67HIS HONOUR:  If there are breaches, there will be a report, those reports will be then directed to the appropriate summons, you will be brought back before me and I will have to deal with you for that.

68I will ask you to sign the Community Correction Order shortly.  You may take a seat for a moment. 

69Pursuant to s.89(1) of the Sentencing Act, I further order that your driver's licence is cancelled, and you are disqualified from obtaining any such licence for a period of 18 months from today. 

70The order may be now provided to you through your counsel and I ask if you agree to that, if you would sign it, please.  Thanks, Mr Fitzgerald, can you assist?

71MR FITZGERALD:  If Your Honour pleases.

72HIS HONOUR:  There is one further matter.  At the plea hearing the Crown sought an order for the taking of a forensic sample.  As I noted in discussion at the time, in my view there are not sufficient reasons for such an order, and I do not make that order today.  Are there any other matters from either counsel?

73COUNSEL:  No, Your Honour.

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