Director of Public Prosecutions v Walter
[2015] VCC 980
•16 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-00466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS WALTER |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 June 2015 |
| DATE OF SENTENCE: | 16 July 2015 |
| CASE MAY BE CITED AS: | DPP v Walter |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 980 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to one charge of drive in manner dangerous
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: R v Ibbs [1987] 163 CLR 447; Hall v R [2010] VSCA 349; R v Jurisic (1998) 45 NSW WLR 209; DPP v Neethling [2009] 22 VR 466; R v Tokova [2006] VSCA 156; Boulton v R [2014] VSCA 342; DPP vBertuch [2014] VCC 1026; DPP v Neethling [2009] VSCA 116
Sentence:Convicted and ordered to serve a Community Corrections Order of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Gilligan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci (Plea) Mr T. Hargreaves (Sentence) | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
1In this matter, Mr Gilligan appeared on behalf of the Director of Public Prosecutions. Mr Gullaci appeared on behalf of Mr Thomas Walter, the defendant, and Mr Hargreaves appears this day.
2Mr Walter pleaded guilty to one charge of dangerous driving causing injury. The seriousness of such is indicated by the fact that the maximum penalty provided is five years.
3I should indicate that this particular provision was relatively recently put into the Crimes Act 1958 (Vic) to allow for this type of crime, where the dangerous driving does not get to the extent of involving death, however it does involve serious injury. There was, in the past found by Parliament, a lacuna in that regard, because you went from a culpable driving causing death, down to a summary dangerous driving charge, and that was the purpose of this legislation. As I said, the maximum penalty prescribed by Parliament for this offence is five years.
4
At the time of this offence being committed, Thomas Walter was 19 and he is now 21. The victim was, and is, Nicholas James, who was 17 at the time. The crime occurred on 22 December 2013 at South Road, west of the intersection with Nepean Highway. As I said during the plea, an intersection
I have probably driven through thousands of times myself. An intersection that one, from a personal point of view, would fail to perceive could produce the consequences of this accident.
5However, the accident occured some 43 metres from the intersection, and came about, without precisely knowing the physics involved, but clearly as a result of coming around that corner too fast. The car went out of control and hit the first pole, which was located in the median strip. Unfortunately the person who bore the brunt of that impact was indeed Mr James.
6
The accident happened at 3.30 in the afternoon. The circumstances surrounding it were mundane, to say the least. The boys were returning from a Christmas shopping trip down at Southland. The speed limit at that area is
70 kilometres. The reconstructed speed, by the experts, and the evidence in this case was that at the time that the car started to swerve, it had been doing, as a maximum, some 75 kilometres per hour.
7The issue of course is at what speed can one do the left-hand turn at that intersection from the designated lane? One does not know for sure from the circumstances of this case, except to say that the speed was too high, and very shortly after, Mr Walter lost control. No doubt, as a result of legal advice given, as a combination of all those factors that I speak about, speed, loss of control, and perhaps inexperience, in that Mr Walter has only been licenced for a very short time, Mr Walter pleaded guilty to this offence.
8There was, in the materials, no evidence of any mechanical fault. There was no evidence of any drink consumed, or drugs, or prior skylarking, by way of driving of the car committed by Mr Walter.
9One of the first principles involved in a sentencing matter is to determine the degree of culpability, or the objective heinousness, as is described in the law. The High Court in R v Ibbs [1987] 163 CLR 447 [452], described the process Courts must go about in each case to determine the objective heinousness of a crime. Such process was specifically adopted by our Court of Appeal in Hall v R [2010] VSCA 349.
10It was submitted by the learned prosecutor, and indeed by defence counsel, that the degree that I should objectively determine of culpability or heinousness in this matter, was mid-level. Objectively I find that it is lower than that, given all the circumstances. As I say, many of the usual aggravating factors of driving, itself were simply not present. The factors of drink and drugs, skylarking, driving in a grossly negligent manner that we regularly see here, were simply not present.
11There were subjective factors put to me in mitigation of this crime. Firstly was that the fact, which I recognise, that in the circumstances, this is a very valuable plea. Given the aspects that led to this tragic event, a plea of guilty has, of course, utilitarian benefits, in that it saves the community the cost of the trial. In this case, of course, it saves Mr James and his family the trauma of a trial. And as I say, in my view, given the surrounding circumstances that normally make up crimes of this sort, it was a very valuable plea.
12
There is, in regard to Mr Walter's background, no prior offences whatsoever. He is a person of prior good character and that is exemplified by the matters tendered on his behalf in Exhibits 6 through to 9. He is a person, as
I have indicated, of obvious young age. He has demonstrated, by his plea, remorse for this crime and I was particularly impressed by the letter of apology he lodged with the Court, Exhibit 5, which I felt to be genuine and sincere. As I said, where a person injures a friend to such a degree, one could not imagine that one would otherwise than be totally remorseful and impacted upon by that consequence and the circumstances for the rest of his life.
13The materials before the Court show that at the time, Mr Walter was not subject to any psychological or psychiatric impediment. The only thing that one could say is that he was somewhat, at the time, emotionally immature. I am quite certain that as a result of this experience, that immaturity has been overcome.
14It was put to me by Mr Gullaci that Mr Walter has excellent prospects of rehabilitation and it seemed to me on all the material that I should accept that. Further, that in the 18 months that has elapsed between time of offence and the time of this plea, that there has been no further offending. All of those matters, I think, are beyond dispute and indeed Mr Gilligan referred to a number of those matters in the materials that he put before this Court.
15The fundamental difficulty about this case, and its tragedy, is the catastrophic consequences that came about from this crime. That consequence is not so much an aggravation, because this crime is made up of its very elements of the causing of a serious injury. However, this very element of the crime is such that the serious injury is of grave magnitude.
16The victim impact statements that were tendered were heartrending to say the least. The oral evidence of Mrs James, for which I thank her, was bravely given. I have read her victim impact statement, Exhibit E, and I have observed and taken some time to look at the photographs.
17Indeed Mr James' own victim impact statement, Exhibit D, was impressive, if I might say, and I thank you for that. I think it is appropriate to record his comments, and the paragraph that I thought I would read, is what he says about his future. It is headed, ‘What my future looks like:’
“I won't be able to walk properly for a long time and if not ever. I can't finish school/uni. I have lost my independence, so that makes me require help for just about everything. My future will just about…my future for a long time will be dependent on someone else. I hope my dependence might change but it might not. It has severely affected my family's life because I am dependent on people's help for just about everything, like eating dinner. I fear that I still haven't learnt where or what all the trouble with my injuries are.
18
It was indeed those statements of both Mrs James and Nicholas James that led me to ask for the updated medical material, and I was much assisted by that. The materials identified first, it should be recorded, the actual injuries caused by this accident. And it is to be remembered that this accident happened -
I am not sure how many seconds, but it could not have been long from the time they came around that intersection. As a result of getting out of control, trying to right the matter and then finally smashing into this pole, there was severe traumatic brain injury caused. The Glasgow Scale at the scene was 3/15. There were seizures at the accident scene. It was necessary for Mr James to be intubated and ventilated, with eventually the need for a tracheotomy.
19Mr James was, for a prolonged period, in a minimally conscious state and had an acute hospital stay. Indeed he then required an extensive impatient rehabilitation stay. He suffered multiple pelvic fractures, with displacement of the sacrum and fractures of the pelvis. He also suffered a fracture to the L2 transverse process and pulmonary contusions.
20The following impairments upon the report by physiotherapist Dr Kelly Gibson, Exhibit L, are impairments that Mr James is really going to be left with on a permanent basis. Nicholas has visual impairments, in which he reports double vision, with recent eye surgery, he has left-sided weakness, which affects his upper limb, his trunk and lower limb, he has increased muscle tone problems and rigidity presentations; reduced strength of the left elbow, wrist and finger flexors; reduced range of motion of the left shoulder; ataxia, which essentially predominantly is to the right side and affects the right upper limb, lower limb and trunk; spasticity of the right lower limb and muscular culture; and problems with the pelvis.
21In regard to Nicholas’ function, which I will not detail, as he set out in his own statement, he needs assistance for many of the normal tasks of life. He needs physiotherapy three times a week, in conjunction with physiotherapy directed for home and gym programs, which he is assisted with by his carers.
22The opinion of Dr Gibson was that, "Most of the impairments will be permanent in nature.” However, functionally, it was hoped that Nicholas will demonstrate improvements in physical function, although of course, as said in his own victim impact statement, the degree of that at this stage is unknown. Nicholas will require ongoing assistance, however, Dr Gibson expects improvements as to his current ability to walk. The end result, which only confirms the statements made in Nicholas' own victim impact statement, is that it is anticipated that Nicholas will require ongoing physiotherapy intervention, likely for many years.
23It is not necessary for me to read further details out from the report of consultant physician Dr Vaidya Bala, Exhibit K, except that he confirms those matters and notes that Nicholas's quality of life is not going to be the same as he had enjoyed prior to this injury. I would have thought that is unfortunately very obvious. I thank the James family for having provided those reports to the Court. They are of much assistance.
24As I said during the plea, there is nothing that can be done in this Court that physically or mentally is going to assist Nicholas or the family. That is the tragedy of many of these cases that come before this Court. The hope is that the impact of this sentence, the impact of the tragedy and its dissemination throughout the community can change or alleviate people's driving habits and perhaps alert the community to the danger of just even the slightest failure to observe the road roads, as is demonstrated here.
25As I have said, whatever happens in this case does not change or alleviate the gross changes to the life of Nicholas and his family, that I have just demonstrated. There is, of course, if you look from Nicholas' point of view, nothing that this Court can do and nothing that I can impose, insofar as Mr Walter is concerned, that assists or changes his life in any way. He still has to encounter these problems.
26How the Court sentences in cases such as this, has been looked at over a number of years, in particular by the Court of Appeal in New South Wales. What I am about to say, and the comments from R v Jurisic (1998) 45 NSW WLR 209 [222] ‘Jurisic’, was approved by our own Court of Appeal, in DPP v Neethling [2009] 22 VR 466, which the learned prosecutor referred.
27In Jurisic Chief Justice, as he then was, Spigelman, said as follows:
"It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, Courts do and should have regard to the moral sense of the community and to the community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy."
28Within that short quotation, is demonstrated the issues that particularly concern a Judge when sentencing, in circumstances where, as you have heard, I have classified the objective criminology at a low level. In circumstances where there are not present other aggravating factors, but where we have a serious injury, which is so traumatic and dramatic. Clearly in these circumstances, a Court cannot pass a sentence, which effects the Old Testament principles of an eye for an eye.
29A Court must balance all of the factors that I have referred to, in order to determine the appropriate sentence, specifically the factors set out by our Parliament in s.5 of the Sentencing Act 1991 (Vic), and particularly now the factors set out in s.5(4C).
30Mr Gullaci in regard to Mr Walter, sought a Community Corrections Order, without any period of imprisonment being imposed.
31Having analysed all of the factors, Mr Gilligan, on behalf of the Director of Public Prosecutions, put to the Court that it was the Director's view that, despite the nature of the injuries received, that such a sentence was within range.
32Without, at the last plea, deciding the matter, I called for a Community Corrections Order assessment report and I indicated at the time that Mr Walter should not take the view that as a result of calling for such a report, that I had come to a concluded view. As I said, that report was tendered and is now Exhibit J. I thank again Mr Richard Temple-Camp for that report.
33The full ramifications of a Community Corrections Order have been explained to Mr Walter and he has signed a document saying that he understands those. Importantly, insofar as the report to the Court was concerned, it was a positive report. It suggested that, given all of the circumstances, he was appropriate for the imposition of a Community Corrections Order and the conditions sought were unpaid community work and supervision. As is obvious, there being no psychological issues, there was no other conditions, which could have been imposed.
34As I said, the process of balancing in a sentence of this type is particularly difficult. We have, as I said, the mitigatory factors. We have the need for a denunciation of criminality of this type within the community. We have the dealing with Nicholas' injury, which is so catastrophic. There are, of course, sentencing fundamentals that are set out by the Court of Appeal when dealing with young persons who have no prior offences. And those matters were set out by the Court of Appeal in R v Tokova [2006] VSCA 156.
35In particular the Court of Appeal provides that even when dealing with a serious offence of this magnitude, a Court is constrained by the principles of rehabilitation when dealing with a young man, with no priors. In other cases, such as R v Mills [1998] 4 VR 235, which is often quoted here, those principles are concentrated upon, especially when one is considering the alternative of placing a young man in a prison environment where the community might understand the particular risks involved.
36In the written plea of Mr Gullaci, there was reference to a recent case of Boulton v R [2014] VSCA 342 ‘Boulton’, which was a guideline judgment, referred to now by nearly every defence counsel in every plea. The issue as to young offenders is appropriately detailed at paragraph 108 of that matter.
37The Court of Appeal said this, when considering imprisonment for serious offences for young people:
"Imprisonment is often seriously detrimental for the prisoner and hence the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worst still, the forced co-habitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community's advantage."
38The learned prosecutor referred me to two cases for consideration, both of which I have considered closely. The first was a sentence of my sister Judge, Judge Pullen, in DPP vBertuch [2014] VCC 1026, which was pronounced by Judge Pullen on 12 June 2014. There is, in the facts of that case, much similarity where the person driving lost control as they were making a bend, however, travelling at 72 kilometres per hour in a 100 kilometre zone, albeit there was a 30 kilometre ‘advisory sign’. Again, whether through inexperience, or other factor, there was just too much speed at that time, the determination again made by the experts was that the speed was too high for the corner.
39The only difference in that case, there was a minimum degree of alcohol, in the sense the driver had registered a reading of .05. A determination was made, by Judge Pullen, of a low level of culpability. As the prosecutor gave the matter to me for consideration, I have certainly taken that matter into account.
40The other case I refer to is DPP v Neethling [2009] VSCA 116 ‘Neethling’. Neethling, of course, involved behaviour that was far more culpable and sustained over a longer period. So the facts are not close, although it did involve, again, a young man, but the culpability was much more extensive and certainly not of the degree that has been indicated. However, I have looked at both of those cases in the circumstances.
41Given all of those matters and balancing them as best as I can do, and balancing the factors that I have indicated, I have determined upon the following sentence.
42Would you stand please Mr Walter.
43Perhaps in me asking you to stand, there is some irony, just in that simple comment, given the circumstances of this case. I do intend, given the submission made in this case by Mr Gullaci, and given the assistance I have had from the Crown in the matter, to impose a Community Corrections Order. It will be for a period of four years.
44However, I want you, Mr Walter, to fully understand what is involved. In the past there have been Community Correction Orders, which have been flouted regularly by parties. It was the view of the Government that this should not happen and this is the reason why we got the current Community Correction regime. It is necessary for you to understand the regime that you are going to be under for the next four years.
45You will be required, among other conditions, to complete a significant number of hours of unpaid community work. I have determined that that should be a period of 400 hours.
46The core conditions are that you must not commit, whether in or outside Victoria during the period of the order, that is the next four years of your life, any offence punishable by imprisonment. I want to tell you that that can include a driving offence for which you can be disqualified. It can include offences which you do not realise carry with them the potential of gaol. I do not expect you to commit another offence. As I said before, from what I understand of your background and what your family have told and the character references have indicated, I think you are the type of person we will never see again. However, you, as I said, will personally have to live with the consequences of your action on this day.
47You must report to the Community Corrections Centre at Moorabbin within two clear working days after the making of this order. You must notify the Secretary of the Department or nominee, of any change of address within two clear working days. You must not leave Victoria, except with the permission of the Secretary the Department of Justice, and that means, you cannot go on any holiday anywhere outside Victoria for the next four years without such permission. You must comply with any direction given by the Secretary that is necessary for the Secretary to give, for you to comply in those circumstances.
48As to the 400 hours, you must perform that amount of hours over the period that I have determined, that is the four years. That probably means, once you have determined these issues with Regional Manager, that there will be many weekends that it will be necessary for you to perform that work.
49It is very important that you remember how important it is to do that. The Community Corrections Services are very diligent about these matters now, and if you are reported and you breach those, which again I do not suspect that you would do, but they are matters that can bring you back to this Court. In addition you will be supervised, as recommended, over such a period. The most important thing, of course, again, which I do not anticipate, is that you do not commit any crime. You can, indeed, it has not been ordered or recommended, but you can talk to the Regional Manager about a program that they have, which is the Road Trauma Awareness Program and I would recommend that you do that.
50Mr Walter, I will only impose this if you consent to same. I understand from the report that those matters were also explained to you by the officer, but it is necessary for me, before I formally impose that order, to ask you if you fully understand it and to advise you that if you contravene any of those provisions and come before me, by way of breach, not only are you now subject to a further period of imprisonment as a result of such breach, but you come before me to be re-sentenced on this matter.
51I think, in the circumstances, Mr Hargreaves, you perhaps might just talk to your client about those matters.
52MR HARGREAVES: Yes. Thank you, Your Honour.
53HIS HONOUR: Mr Hargreaves?
54MR HARGREAVES: Mr Walter consents to the order and - - -
55HIS HONOUR: Yes, Mr Walter, I understand you understand all of those conditions. Can I tell you, in the circumstances of this case, especially given the consequences to your friend, Nicholas James, I would be terribly disheartened if I had you back in front of me. Do you understand?
56Given my confidence about the fact that Mr Walter will effect an appropriate rehabilitation, Mr Prosecutor, it is not my intent to impose a forensic order in this case.
57MR GILLIGAN: If Your Honour pleases.
58HIS HONOUR: The only other matter is, I must impose, it is another form of penalty prescribed by the Parliament, and that is that your licence be cancelled and disqualified for 18 months, which is the minimum period prescribed.
59And that is very important, Mr Walter. That is one of the matters that can, and it does, have with it a gaol offence, so it would be very much something that you are just going to have to do for the next four years. That is, you do not drive a car. Do you understand? Your licence is suspended and cancelled. I realise that is an imposition on a young man, but in the circumstances of this case, again, it is not such and imposition.
60Mr Hargreaves, if you would just have your client sign the document.
61MR HARGREAVES: Yes, certainly, Your Honour.
62
HIS HONOUR: Yes, before I leave, can I thank all the family members in this case. These are not easy cases and I thank everyone for the manner in which they have conducted themselves, and in particular, Nicholas James,
I thank you for your attendance and your words.
63Yes, thank you all.
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