Director of Public Prosecutions v Werps
[2021] VCC 2094
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01587
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY WERPS |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 16 December 2021 |
CASE MAY BE CITED AS: | DPP v Werps |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2094 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion | Office of Public Prosecutions |
For the Accused | Mr J. Anderson | Stary Norton Halphen |
HIS HONOUR:
1Timothy Joel Werps, you have pleaded guilty to one charge of culpable driving causing death and one charge of negligently causing serious injury. Those crimes carry maximum penalties of 20 years and 10 years respectively. You also pleaded guilty to one uplifted charge and on that matter I simply convict and discharge.
2You are now 19 years of age and were 18 years of age at the time of the offending. You are clearly still a very young person. I am well aware of the authorities in regard to this type of offending, that youth and a lack of priors, which exists in your case as well, sometimes take second place to general deterrence and certainly they assist you and are taken into account, but they do not have the weight that they have in other matters.
3You pleaded guilty at the earliest reasonable opportunity and I accept that your plea of guilty is accompanied by remorse. It is unfortunate in this particular situation that a very different impression has been created in my view by the bail conditions that were imposed upon you. You were basically being kept silent for a whole period of time, not allowed to contact any other person involved with the matter and not allowed to put any matters on Facebook.
4Unfortunately that has been interpreted perhaps by people who did not understand those bail conditions as showing a lack of remorse. I do not think that is the case at all and the Crown agree in this particular situation that you have indicated remorse. You have certainly indicated it in terms of the psychological report that has been filed and, as I have said, I will be taking that very much into account.
5You also get the utilitarian benefit of that plea of guilty. Trials such as this are devastating to everybody concerned and you have removed the need for any people associated with the deceased boy or his seriously injured friend to give evidence.
6In these particular days with COVID you get the benefit of what is known as a Worboyes discount. That is that a discount is given, and it must be a recognisable one, for pleading guilty in circumstances where the court system is so overloaded.
7You also are going into custody in a situation where there will be COVID in existence, as I understand the situation, upon going into custody. I know you have done some time in the past, but you will be placed into quarantine and your custody will be more difficult than it would have been had there been no COVID. I cannot anticipate what is going to occur in respect of that, but I do take this into account as best I can.
8You have no prior convictions of any description. You have no prior traffic matters and that is a somewhat unusual set of circumstances. What has been described in the psych report, and I will be dealing with that a moment later, is that you do have a tendency to act recklessly to impress others. That you have been able to get to this age, bearing in mind it is only 18, without any court appearances gives me some confidence in your capacity to rehabilitate.
9A summary of the offending is contained within the Crown opening, which is tendered and on file, and I will be just doing a brief resume from that. This is one of the many situations that certainly as a circuit judge, which I do a lot of, I have encountered. For some reason in the country in particular when young boys or men get together these sorts of matters usually arise out of some drunken, drugged, ridiculous agreement.
10Boys of your age and the age of young Jye and the age of young Ben seem to think that they are bullet proof. They seem to have no concept of mortality and in circumstances where alcohol, drugs and motor vehicles are concerned situations such as this exist. I will be saying right from the outset that general deterrence clearly has to play a very significant part in the sentencing process, but the general deterrence has got to be understood not to apply just to the driver of the vehicle, it will also have to apply to other young men who are in these situations, or see friends in these situations, to endeavour to do something about trying to avert them.
11I do not know how that is done other than by education. General deterrence for people of your age, I have my doubts about it; however, the Court of Appeal said that that is the case and that is exactly what I propose to endeavour to do in this given situation.
12You were 18 years of age at the time of the offending and you are now 19. At the time you were living in Bendigo, in Year 12 at the Bendigo Secondary College.
13At 3.11 am on Monday, 28 September 2020 a dreadful collision occurred on McRae Street in Bendigo. A blue Commodore being driven by you travelling in a southerly direction along McRae Street at a high speed travelled across the southbound lanes, tram lines and northbound lanes. You finally hit a power pole and a tree. You then hit a wooden front fence of a home and a Ford Ranger utility that was parked in the driveway, before coming to rest in the front garden of the neighbouring house.
14The rear seat passenger of the Holden, a Jye Ronnie Eiffert died at collision scene. I have had read to me, and have read on two occasions now, a very significant number of victim impact statements. It is very close to the most that I have seen in situations such as this. Jye was obviously a very much loved and very much missed young man. He was clearly a vibrant person, good at sport, and all the references speak very highly of him. He is sorely missed and I am well aware that in circumstances such as this the distress for family and friends is ongoing, as clearly exemplified in those victim impact statements.
15Situations such as this often result in emotional difficulties that people have, anger that can go on for ages. I am also aware that in these circumstances in a country town there are all sorts of events that occur between people, friendships end, people give all sorts of different versions as to what occurred and it has a serious consequence to a community. All those matters are the consequences of your driving, the loss of a very, very much respected and liked young man and discord within the community.
16The front seat passenger, Ben Hart, was 18 at the time. Jye, if I have not mentioned it, was 16, about to turn 17. Benjamin, that is an Aboriginal boy, was airlifted to the Royal Melbourne Hospital with very serious injuries. I will be going through those again in a moment. I have had victim impact statements from him and from his mother and each of those effectively recognises the dangers of young men in groups in these situations.
17You were treated at the hospital for minor injuries.
18I do not have to go into great detail about the scene. McRae Street is the main road through the Bendigo township. People who know Bendigo would know it is a two-way, four-lane road, two lanes in each direction. The lanes are divided by tram tracks and painted white lines. It is a bitumen road obviously. The outer edges of the roadway are concrete, then there is grass nature strips and concrete footpaths on both sides. The parking lanes are lined with trees and power poles. Where this occurred is a residential area, which adds to the seriousness of it. The speed zone for that stretch in McRae Street is 60 kilometres per hour.
19At the time of the collision the vehicle was being driven by you with the two passengers in it, as I have said. You were the holder of probationary licence that has conditions of zero alcohol and no more than one passenger between the age of 16 and 21 in the vehicle. There was also a condition for automatic transmission only, though I am not sure whether this car was automatic or not.
20At the time of the collision young Jye was 16 years of age. He, from the material before me, was the rear passenger in the vehicle. He died from head injuries. He had not been wearing a seatbelt then or during an earlier trip he had made in the vehicle with you in the hours leading up to the collision. I will be referring to that again in a moment.
21Benjamin was 18 years of age. He was the front seat passenger and, as a result of his injuries, he was eventually taken to the Royal Melbourne Hospital. He suffered a severe traumatic brain injury and other injuries to his body. He was unable to complete his year exams due to the injuries and it is not known how he will manage further study.
22He so far as injuries was concerned sustained extensive trauma to his head, chest, abdomen, back, pelvis. It resulted in many injuries, which this is something of the list. There was bleeding and bruising of the brain, bleeding in the abdomen, bruising to the heart, multiple fractured ribs and flail chest, air and blood within the chest, a complex fractured pelvis, two vertebral fractures, two fractured collarbones. The fractured pelvis still causes him difficulties in terms of running as he endeavours to get back into contact sport.
23As a result of his injuries he required emergency massive blood transfusion, placement of chest tubes and open adnominal surgery. The doctor from the Victorian Institute of Forensic Medicine said that were it not for those immediate interventions he would certainly have died. Subsequent to that, there have been a further series of interventions and it is again put by the doctor that had those interventions not occurred he would also in all probability have died.
24He required surgery on his pelvis and collarbone. He was in intensive care for a week, two weeks in the trauma centre, one month in a rehabilitation hospital and at least several months of out-patient care at a rehabilitation centre. He required four visits to the operating theatre for seven different operations.
25As I read the victim impact statement, now he still has ongoing cognitive and physical difficulties, though he is working hard to avoid that. I gather from his victim impact statement that these injuries and his inability to function properly have caused him to become further involved, from what I can gather, in the use of drugs. It is imperative that that be addressed in some way.
26So as a result of this, there is one young boy dead and one young boy with injuries probably for the rest of his life.
27You at the scene underwent a preliminary breath test. You were then taken to Bendigo Base Hospital and provided a blood sample. The preliminary breath testing device said that the lowest possible reading that could be attributed to the sample was 0.108. The sample of blood was later analysed by a forensic toxicologist for drugs and alcohol. The result of that sample was 0.164 grams of alcohol, which at the time of the collision was probably around about 0.130 per 100 millilitres of blood and 13 nanograms per millilitre of THC. That is, I accept, a high level of THC and indicative of recent ingestion of it.
28The material in the brief indicates clearly from other witnesses that you had been using cannabis in the hours leading up to the collision and there is no dispute about that. The evidence from the surgeons is that a combination of alcohol to that level together with cannabis as well would severely interfere with your ability to drive a vehicle. It is problematic whether you would be able to have proper control over a vehicle on either of those bases, let alone when they are together.
29Another factor, which in this situation is inexcusable really, is that shortly prior to the impact taking place, a couple of seconds, you were travelling at around about 160 kilometres an hour in a 60 kilometre zone.
30The lead-up to it is so unfortunately common, as I have said already, I am not going to go into that, with young men. At 9.26 pm on Sunday, 27 September you, Mr Eiffert, Mr Hart and Mr Lees had caught up to have a few drinks. The four of you drank alcohol and smoked cannabis together and Mr Lees, Jye and Ben also took ecstasy. You did not.
31At approximately 9.38 the group of five left the house together. You drove to Woolworths in Epsom and various things were purchased. One of the other men purchased a Gatorade to make 'bong' for smoking cannabis. During that drive you apparently showed the group that the steering on your Holden appeared heavy and you had to use both hands to turn corners.
32I am not quite sure what that is about, because I understood the mechanical examination afterwards did not reveal any steering problems, but that may or may not be the case. Apparently at no time during that trip did you drive otherwise than in a proper manner. You returned at approximately 9.46 pm to the house and you and the others continued drinking alcohol.
33At approximately midnight Mr Lees, Jye and Ben decided they wanted more ecstasy. You drove them to an unknown address in Flora Hill to purchase ecstasy. Ben was seated in the front seat and Jye was seated behind him in the back. Mr Lees was also in the back. During that journey, Mr Lees, who survived obviously, stated that you reached speeds of between 180 to 210 kilometres per hour through the back roads. He apparently filmed a portion of that drive on his mobile phone.
34About 20 to 30 minutes later the group of you returned to the house. At that stage Mr Lees, Jye and Ben took more ecstasy. It was clear that these drugs and alcohol were having a significant effect on all of you. You, I point out again, did not have any ecstasy. It was a situation where I cannot quite work out whether she was just trying to keep the keys from you or not. She as I understand it resided at those premises. She did not use any drugs or alcohol that night and at one stage you got a bit aggressive when she had your car keys.
35In any event at approximately 3.09 am on Monday, 28 September the four of you, that is Mr Lees, Jye, Ben and yourself, decided to go to Bendigo to purchase some food. In your record of interview your memory was that you were going to purchase some more drugs. Whilst walking to the car Mr Lees considered your earlier high-speed driving and decided he was not going to go. It just unfortunate that he could not talk the other three of you out of it.
36Again the situation was that Ben was in the front seat and Jye was in the back seat. Mr Lees said to the all of you you probably should not go. In any event your vehicle was captured on CCTV footage passing a Caltex petrol station at 3.11 and shortly after that you lost control on a slight right-hand bend in the road. As I have said, the car travelled onto the northbound carriageway. It then rotated in a clockwise direction before the passenger side impacted with a wooden electricity pole and a large tree.
37It further impacted two property fences and the rear of a Ford utility which had been parked in the driveway. The impact sheared the pole to the ground, which is some indication of the force of it. There was CCTV, but it does not actually capture the crash.
38Jye was treated at the scene but unfortunately died. Mr Hart was trapped in the front passenger seat and was extracted by emergency services. As I have indicated, he ended up in the Royal Melbourne Hospital. You suffered minor injuries and were able to get out of the vehicle.
39When police spoke to you at the scene you originally denied being the driver of the vehicle; however, I note that you were arrested and during the course your record of interview in a reasonably short period you had the decency to own up and say that you needed to come clean. You then conducted with the police what I accept to be a truthful and honest record of interview.
40You put your own speed at about 130 kilometres an hour; however, the accident reconstruction people said that the speed was mostly likely 160 and that you braked and oversteered the vehicle to the right. I do not quite understand the evidence about the braking, whether you pulled on the handbrake or what had happened, but in any event it went from your end, which is a sliding, into a spinning skid.
41At impact with the police it is estimated that the sedan was traveling somewhere between 103 and 131 kilometres per hour and it was unable to be determined why you oversteered the vehicle. It was said steering systems inspections showed no signs of malfunction or failure. The hydraulic power system could not be checked.
42When you spoke to police you agreed that you had been consuming alcohol prior to driving the vehicle. You did not recall using cannabis the night before but certainly admitted that you had used the day before. You did say there was a steering issue. you did not even remember the drive to Flora Hill and, as I said, you thought the trip to Bendigo was to pick up drugs for the other boys, not food. As I have said, you said you were doing 120 to 130. You said you felt the steering go and braked.
43I do not think I need to explain in any detail at all the consequences of driving that drug-affected, that drunk, that fast with that little experience of driving that you had. You were remanded and kept in custody for what I am accepting as 68 days pre‑sentence detention. As I indicated, you have no prior criminal history, no traffic offences. In this situation there were earlier matters that had to be resolved, which people probably did not understand, but there was no contested committal and it has essentially been no contest other than on a factual basis since that day that you owned up in that record of interview.
44The situation is that for culpable driving, the standard sentence is eight years. The matters I take into account there are contained within a matter of R v Brown and they are well known to all judges and most lawyers. It is simply a factor to take into account in the sentencing synthesis. It is treated as a legislative guide post, it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing.
45I am obliged to point out the facts, matters and circumstances which I conclude bear upon the judgment that is reached about the appropriate sentence to be imposed. For the reasons that were discussed during the course of the plea it has to be regarded as a very serious example of culpable driving when one looks at it objectively. The speed was ludicrous for that situation. You were drug affected. You knew you had people in the car and at least one of those people as a matter of law should not have been in the car. You knew you should have had no alcohol in your system at all and it has just resulted in tragic consequences.
46The Crown said there is high moral culpability. I struggle with that concept with someone who is only 18 years of age. I think it is more a matter of general deterrence than moral culpability. This is what young men sometimes do when affected by alcohol and somehow or other general deterrence and education have to talk them out of it. As indicated during the course of the plea, certainly in the country areas it has just got to be driven home to people that this concept of driving drunk, driving in groups, has to stop.
47I then indicated, I, as a child playing under 12 cricket with the whole team in the back of a ute, those sorts of decisions and that sort of non-appreciation of the dangers just have to be dealt with and I do not know how that is achieved, to be brutally honest about it all.
48I do not think there is much else I can really say about the offending. It is obviously serious. It calls for the application of specific deterrence, though in your situation I would be very surprised if you were to do anything like this again. It obviously calls for denunciation. It calls for an appropriate and just punishment and in particular calls for general deterrence.
49So far as community protection is concerned I think that is really bound up with general deterrence rather than applying community protection against you. As I have said, I would be very, very surprised if anything like this every happens again.
50It is agreed that the only sentence open is a very significant one of custody. It is a very big decision to be sending a 19-year-old into adult custody for this long a period of time. What I am saying is that I would ask and recommend that the Adult Parole Board at a very early date look at you in terms of transferring you back to Youth Justice. Even if that is only for a period of time which enables you to become used to being in custody, it may be of some benefit not just to you but to the general community as a whole. I have no power to direct that, I simply point out that with your age and, it appears clear from the materials that you are more immature than even your age suggests, that would be a significant matter or they would be significant matters to consider.
51I then look at matters personal to you. I have been given very sensible, if I might say so, sentencing submissions from your counsel. I also have read a number of times now a report from a psychologist Mr Barth. There are references on your behalf and importantly, in my view, there are a number of CISP reports, which is the Youth Justice bail set of circumstances who say that for extended periods of time that you did get bail you have been doing the best you can.
52You have been attending courses, you have been turning up to appointments. There is not much more than you could have done with that. As your counsel pointed out, in one sense you have already done a year's parole without reoffending. You clearly prior to all this had drug issues, you had alcohol issues. I accept from the CISP people, I accept from your counsel, that since you have been on bail you have been abstinent from drugs and it is to be hoped that that can be continued.
53It is a very difficult situation to assess prospects of rehabilitation, risk of reoffending, when one is sentencing one so young for such a significant period of gaol. However, in these circumstances I take the view, as your counsel has suggested, that your prospects of rehabilitation should be very good. The risk of you reoffending, if you stay abstinent and get a degree of psychological assistance, should be very low indeed. I am comforted in that view, if I have not already said so, by the fact that despite your difficulties you were able to get to the age of 18 without even a single traffic matter or a single Children's Court appearance.
54Your present circumstances are that you do have no dependents, but you do have a girlfriend who you have been seeing for a few years and she has asserted she will remain loyal to you. I have read the references that have been tendered on your behalf, those from people who know you from church and also a letter from your employer.
55You in terms of history had started working at Red Rooster during your early teens. You have been working on bail as a cleaner and as a janitor for a period of about five days a week since you have been on bail. That is very much to your credit. Often in these situations people such as yourself simply drop their bundle and do nothing. You are at least showing an intent to rehabilitate yourself.
56You finished employment in October of this year due to your expectation of being sentenced in this matter at an earlier date. I fully understand why you did that. Yo have been doing casual labouring leading up to it.
57It is clear from the report of Dr Barth that you are very immature. He goes through your drug and alcohol usage and clearly you have problems with it. Your risk of reoffending, as I have indicated and as the Crown submitted, is going to be dependent upon your remaining abstinent and I am confident that you can in fact do so.
58Whilst you have been on bail not only have you been with the CISP program but your original period in custody was spent in some fairly frightening circumstances for one so young who had never been to gaol before. After two nights in hospital, you were one night in the Bendigo cells, one night in the Melbourne custody centre, 14 days' isolation at the MAP, in which you were unable to see friends or family or anybody, and then at Ravenhall with had no face-to-face visits.
59After being bailed at very strict conditions, you have been reporting to the Bendigo police station. I have already indicated it is unfortunate that it seems to happen often in these situations that the bail conditions are such that when they are complied with the families of victims and their friends think that there is no remorse.
60But you have clearly been in a situation where you have been in a curfew between 8 o'clock and 7 o'clock at night. You are unable to go out unless in the company of certain persons. You are not to consume alcohol or drugs, not to go anywhere near where the victim's families lived or worked or attended school, not to go on Facebook or do any of those things. You have been following the lawful directions of Youth Justice and you are not to post or communication on any social media about the matter or even communicate with Ben Hart.
61The reports that I have got show that there has been complete compliance, is the expression they used, with that. In addition to that you have also engaged with Alcoholics Anonymous.
62I have referred to the prospects of rehabilitation, I have referred to fact that you are so young. I have referred to the early plea of guilty and I have referred to the standard sentence. I have to be careful to try and endeavour not to impose a crushing sentence; in circumstances such as this that is in the eye of the beholder what is crushing. What is crushing is to have a young member of a family, full of life, whole life in front of him, no longer in the community, deceased, and another young man or boy who has been injured in such a way that it will probably haunt him for the rest of his life.
63But I do have to look at, if I can in your set of circumstances, being as I have said only 19 years of age, I also have to look at the question of totality.
64I have been given the assistance by counsel of a number of comparative cases. I understand in standard sentencing I am not allowed to look at ones previously and there is no real argument about those cases. Some of those people you were younger than, some had far greater alcohol readings. Some had far more prior convictions. But they do give a general idea of the sort of sentences that I would impose under standard sentencing or within the realms of standard sentencing in this day and age.
65I do not think there is much more I can say to either you or to the families of the victims. It just falls upon me then to sentence.
66On Charge 1 you are sentenced to be imprisoned for a period of eight years. On Charge 2 you are sentenced to be imprisoned for four and a half years.
67I realise that is a significant sentence in a matter that has a maximum penalty of 10 years, but they are very serious injuries.
68I direct that 15 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. That gives a total effective sentence of nine years and three months. Because of the standard sentencing legislation there are restrictions placed on what I could with a minimum term. In these circumstances I am going to give you the lowest minimum term I can according to law, because I think your prospects of rehabilitation are good, and in that period of time it will be a matter for the authorities as to when and where they release you back into the community. Accordingly the minimum term will be five years and nine months.
69I direct that 68 days be reckoned as having been served under this sentence. Pursuant to s6AAA of the Sentencing Act, which is designed to indicate what would have happened had you fought this out and lost a trial and what the sentence would have involved, I would have given you 13 years with a minimum term of nine.
70MS CHAMPION: The licence, Your Honour.
71HIS HONOUR: All right. Well, what I'll do in these circumstances, I know there's aspects of this but if he's going to be living in the country it's important to when he is rehabilitated he has the prospect of getting a licence back. So what I'll do is I'll disqualify him from - cancelling the licence, disqualifying him from obtaining that licence for a period of five years. No other orders?
72MS CHAMPION: That's everything, Your Honour
73HIS HONOUR: Yes, thanks. Thanks, Ms Champion. That's, Mr Anderson.
74MR ANDERSON: Your Honour, thank you.
75MS CHAMPION: If Your Honour pleases.
76HIS HONOUR: Yes, you can take him downstairs.
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