Director of Public Prosecutions v West

[2014] VCC 2137

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01679

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM WEST
BRODIE MCGREGOR

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2014
CASE MAY BE CITED AS:	DPP v West
MEDIUM NEUTRAL CITATION:	[2014] VCC 2137

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ayres
For Accused West	Mr D. Starvaggi
For Accused McGregor	Ms K. Blair

HIS HONOUR:

1Adam Phillip West and Brodie James McGregor, you have both pleaded guilty to two counts of negligently causing serious injury.  The maximum penalty in respect of this offence is ten years.

2The circumstances of this offending are set out in the summary of prosecution opening Exhibit A.  On Thursday 5 June 2014 you were both at the McGregor house with two friends, Sam Newman and Danika Pringle.  At the house, you both and Sam Newman shared some cannabis.  You all decided to go to the drive-in at Dandenong and travelled there in two cars.  You, Adam West were driving your blue car with Sam Newman as a passenger.  You, Brodie McGregor were driving Sam Newman's silver car with Danika Pringle as your passenger.  You both had your licences for a few months.

3You watched the movie in your respective cars.  Both Adam West and Sam Newman smoked more cannabis while watching the movie.  At the end of the movie at about 11.24 pm you left in the two cars and travelled in convoy to the South Gippsland Highway towards Cranbourne.  Once on highway, the cars driven by both of you were seen driving side by side at high speed over an eight to 9 km stretch of the road.  You both were observed speeding off when the lights changed.  At one stage, Danika Pringle told you, Brodie McGregor to slow down.

4At about 10 km down the road from the drive-in, your cars were seen travelling side by side.  Residents close by heard a loud noise of engines revving and approaching at high speed.  This was near the intersection of the highway in Lesdon Avenue, Cranbourne.  Shortly after this, the passenger side of the silver car and the rear driver side of the blue car collided.  You both lost control of your cars and rotated in a clockwise direction towards the median strip in the centre of the highway.  The rear passenger side door of the blue car hit a concrete light pole causing the car to come to a stop in the bushes in the median strip in the centre of the road.  The passenger side of the silver car then hit the blue car, causing it to come to a sudden stop.  The impact of this caused the concrete light pole to fall over the other side of the highway.  Both vehicles suffered extensive damage.

5You, Adam West were able to get out of the car and help Sam Newman out through the window of the car.  You, then with the assistance of an observer pulled Brodie McGregor out of his car on the driver's side.  Danika Pringle remained trapped in the car and soon thereafter both the cars were on fire.  A number of bystanders and other motorists were on the scene and 000 were contacted.  Attempts were made to put the fire out and to help those of you involved and injured.

6Shortly afterwards, emergency services arrived and put out the fire.  Danika Pringle was removed from the car by cutting off the roof and placing her on a spine board.  It was initially thought that she had died.  She was incubated and conveyed to the Emergency and Trauma Centre of the Alfred Hospital.  She was taken to theatre with life threatening severe burns and critical injuries to her head, neck, chest and limbs.

7Sam Newman was found lying semi-conscious on the median strip in the centre of the highway.  He was put on a stretcher with a cervical collar around his neck and taken by ambulance to the same area of the Alfred Hospital.

8You, Brodie McGregor were treated at the same for a laceration to the back of your head and cuts to your face.  You were also taken by ambulance to the Alfred Hospital but were discharged later in the day.  Quite miraculously, you, Adam West did not have any apparent injuries, did not require any medical treatment and walked away from the accident.

9You were both administered preliminary breath tests and samples of blood were also taken.  In respect of you Adam West a small amount of cannabis was present but there were otherwise no drugs or alcohol detected in either of your systems.  A reconstruction expert found based on the physical evidence at the scene of the accident that you were both travelling at a minimum of 126 km/h when your cars went out of control.  Neither of the cars had any mechanical fault that could explain the accident.

10The particulars of negligence for this offending are that (1), you were exceeding the speed limit by at least 46 km; (2), you were driving at an excessive speed so as to be unable to avoid a collision; (3), you were driving too close to each other and thereby you failed to allow sufficient distance and space to avoid a collision; (4), you failed to steer away from each other to avoid a collision; and (5), you failed to exercise proper care or keep any proper lookout.

11I accept that there are features highlighted by your counsel that are not applicable to the circumstances here.  The particulars of negligence did not include the effect of cannabis on your driving; and (2), there was no suggestion of alcohol or other drugs used as contributing to the accident.  That is not to say your offending was not serious.  It was.  You were driving your cars well over the speed limit, placing your own passengers but also other road users in clear danger.  One of your victims suffered life threatening injuries and the other, very serious injuries.  It is reflective of the serious damage that can be done with a criminally negligent and irresponsible use of motor cars.

12You were both interviewed by police.  You, Adam West made admissions to smoking cannabis earlier in the night and to speeding along the highway after the movie.  You were clearly remorseful and recognised that your actions in your own words were, "Pretty stupid".  You were interviewed again about a week later.  There you said,

"I know I shouldn't have been driving, but I dunno what made me think I could drive.  For some stupid reason I decided to drive anyway.  The thought didn't cross my mind at the time.  I wasn't thinking about anything else, just other than going home and going to bed".

13You admitted speeding with the other car, going between 100 and 120.  You also made a statement to police on 20 September wherein you stated,

"I know that Brodie and I were egging each other on and that if I didn't drive at high speed then Brodie wouldn't have also driven fast to catch up and the crash wouldn't have happened".

14You, Brodie McGregor were interviewed by police on 26 June almost three weeks after the accident.  You also admitted to smoking cannabis and speeding along the highway.  You told police you were driving your friend Sam Newman's car as you had written off your own car when driving in the country and smashing into a tree.  I was informed during the course of the plea that this incident had occurred when you driving on a dirt track in the country.  I do not regard that incident as aggravating your offending here.  Your memory of this accident was not good, although you did remember going up to 100, 110 where the accident happened.  "I just wanted to get home faster, just wanted to get home and go to sleep, probably not much traffic".

15A cursory observation of the photographs from the scene reveals the impact of your cars was such as to knock over the concrete light pole in the median strip in the middle of the highway.  Fortunately there were no cars coming the other way.  It also reveals a significant amount of damage to both the cars, particularly the dark blue vehicle.  It is incredible that anyone could walk away from this accident and also that no one was killed.

16Danika Pringle suffered the following injuries.  She was admitted to the Intensive Care Unit at the Alfred Hospital whilst unconscious and on life support.  Her Glasgow Coma scale rating was four out of 15.  She remained in ICU for two and a half weeks and underwent several operations and procedures in relation to burns to her face, arms and legs.  She spent further time in the Burns Ward though was transferred to Caulfield Rehabilitation Hospital as in inpatient on 7 August.  She remained there for approximately six weeks and then returned home.

17She suffered the following physical injuries to her head, neck, chest and limbs:  Third degree burns and scarring to 11 per cent of the total body surface area, in particular the head, face, neck, left thigh, right hand, left arm and shoulder.  A closed head injury or fractured skull with traumatic subdural haemorrhage and associated brain injuries.  A fractured left orbital cavity or eye socket.  Severe injury to the left eye resulting in blurred vision and partial loss of sight.  Left third nerve cranial palsy.  Left facial paralysis and motor speech disorder.  Fortunately this improved during the course of her inpatient treatment.  Her fractured neck.  Broken left arm and wrist.  Punctured left lung and associated infections.

18During her stay in hospital, she experienced overwhelming sepsis due to the multiple bacterial infections requiring high dose prolonged intravenous and oral antibiotics.  She also experienced left ear infection to her left ear which resulted in intermittent changes to her hearing.  She experiences ongoing and persistent left visual acuity in relation to her left eye injury and she receives regular ophthalmology review through hospital outpatient services.

19A neurological assessment was completed towards the end of her inpatient treatment which showed some decreased visual memory and processing speeds consistent with an acquired brain injury.  She suffers from post-traumatic amnesia and has no recollection of the incident or its aftermath.  As part of her rehabilitation she has undergone speech therapy and pathology for management of her facial and neck scarring from her burns and graft sites.  She is required to wear a compression facemask, vest and leggings for up to 23 hours a day to help reduce scarring.  She currently receives regular outpatient rehabilitative treatment such as psychological counselling, physiotherapy, massage and occupational therapy.  She initially needed assistance to walk, eat, shower and go to the toilet.  She is now able to walk unassisted and is being cared for at home by her family.

20She cannot drive and has been unable to return to her tertiary studies at Deakin University, nor to her part time employment as a medical receptionist.  I was informed it was uncertain at this stage to what extent various cognitive and physical deficit suffered by her will remain.

21Sam Newman was admitted to the Intensive Care Unit at the Alfred Hospital where he underwent surgery and CT scans and neurological spinal examinations.  He remained under treatment at the hospital for three weeks.  As a result of the offending he suffered the following injuries:  Fractured C2C3 cervical vertebrae or broken neck.  A perforated bowel requiring surgery to parts of the bowel and small and large intestines.  Severe lung contusion, that is bruising.  Bruising, swelling, lacerations and scarring to the abdomen and neck caused by seatbelt impact.  Extreme pain, soreness and tenderness to the abdomen, neck and head.  He was required to wear a halo neck brace and vest for three to four months following the incident to prevent any movement of his cervical spine.

22He has been unable to return to work as a plasterer and his physical activities and movements have been severely restricted.  He receives ongoing rehabilitation by way of physiotherapy and attends regular medical check-ups regarding his neck and spine.

23I have received and I take into account the victim impact statements provided by Sam Newman, his mother and close family members of Danika Pringle.  They set out eloquently the emotional and physical impact of these crimes.  In respect of Danika Pringle, the journey she has travelled in terms of her injuries, surgery and rehabilitation have been long and painful.  Although she did not provide a victim impact statement, I note her courageous attitude to her drastically altered life and her genuine forgiving attitude to both of you.

24Her mother provides insight into the nightmares suffered by parents of children who receive that phone call in the middle of the night regarding an accident involving their child. The uncertainty and panic felt. The trauma and emotional roller coaster suffered with your daughter in ICU and anxiety over a significant period of time, whether your daughter will survive and if so, how she will cope with such serious injuries in the future

"".

25Dealing with the trauma of family and friends, her involvement in the slow recovery process with her daughter and the practical assistance that she requires.  The shift to rehabilitation where her daughter was unhappy in that environment and the gradual return to home.  The continued appointments and psychological and physical effects of injuries still suffered by her.  Her daughter's loss of freedom.  As Danika's mother remarked, "This is only half the story".  Similar sentiments were expressed by her father, grandfather and aunt.

26In respect of Sam Newman, his life has changed since the accident.  He can no longer participate in sports which he had loved and were part of his life.  His injuries have restricted the enjoyment of work and life that he previously had.  He suffers fear and anxiety when in a car.  This is heightened when he is a passenger.  He feels a burden to his mother whose life has changed as a consequence of his injuries.  He suffers from nightmares relating to burning cars.  He felt like a freak having to wear the halo around his neck.  He is limited in his neck movement and suffers internal pains relating to injuries from the accident.  He is frustrated that he cannot work or be as active as he had been and he faces uncertainty regarding the long term effect of his injuries and the amount of physiotherapy needed.  His mother expressed similar sentiments regarding her son and the impact of this offending on her son and their family in their victim impact statements.

27In respect of you, Adam West, I was provided with a report from Ahn Jobling, forensic psychologist and heard evidence from your mother.  I also received a number of references from family members and friends.  I take this information into account.  You are currently aged 18 years with your date of birth 16 February 1996 and live with your mother and younger brother who is aged 14.  Since January of this year, your mother's new partner also lives with you.  Your father suffered an illness and died about two years ago.  Your mother gave evidence regarding the impact of your father's death.  Like any son, you thought your dad was invincible and you felt the burden of being the oldest man in the house after his death.

28You attended school in Cranbourne until Year 11 but left during the course of 2012 when your father died.  Understandably you were experiencing great difficulties at this time and could not concentrate on your studies and you were encouraged to seek employment.  You worked as a carpet layer for a short period but you then returned to school and completed Year 11.  You are currently completing a Year 12 Certificate in Business and Retail though you have been pre-occupied with these proceedings and the effect of them on any future plans.

29The following the death of your father you attended for counselling with a psychologist but this did not continue long term.  You were placed on anti-depressant medication and remain on it.  You do not appear to have difficulty with alcohol abuse.  However, you commenced to use cannabis in 2013.  You had difficulties with accepting your mother's new partner and spent more time with friends at their homes where you regularly engaged in smoking cannabis with the group.

30Mr Jobling states,

"It is my opinion that his cannabis use reflected the lifestyle he was leading which was in turn related to difficulties he was having, particularly the death of his father, the subsequent problems in 2012 and then the difficulties with his new mother's partner".

31The psychological impact of the accident with images of the burning car has been significant.  Mr Jobling is of the opinion that you have both a deep sense of remorse and contrition in respect of your involvement in and awareness of the seriousness of these offences.  Consistent with this view, you have participated in a positive lifestyle programme and attended a road trauma awareness seminar.

32You have strong family support.  Your mother gave evidence of your concerns, particularly in respect of Sam and Danika and the shattering of their aspirations to study or be involved in motor sport and psychology respectively.

33Brodie McGregor, you are currently aged 19 years, date of birth 14 October 1995 but was aged 18 at the time of this offence.  You, like so many other young men obtained your licence on your 18th birthday.  I was provided with reports from Carla Leckner, consultant psychologist and Nervana Saad, counsellor and family therapist.  Your mother also gave evidence and I received a number of references from family friends and those involved in your local basketball teams.  I take all this evidence into account.

34You are the second child of give children and live with your mother and siblings aged 21, 14, 11 and nine.  Your parents separated about five years ago and you have no contact with your father.  I understand that your father is aware of these proceedings and the accident and has not been in contact.  You also grew up in Cranbourne and went to school there until Year 11.  You have played basketball at a competitive level since you were about eight years of age and have worked as a referee to earn some money whilst at school.

35When you left school, you completed a four month pre-apprenticeship in motor mechanics and spray painting.  You have worked with a family friend assisting with their furniture removal business.  You were injured in the accident.  You were unconscious for a period of time and required 13 staples to the top of your head.  You reported you continued to suffer from head spins.  You also suffer nightmares, anxiety and flashbacks regarding the circumstances of the accident.

36Ms Leckner was of the opinion that you presented with symptoms of post-traumatic stress disorder as well as adjustment disorder with depression and anxiety.  You commenced counselling with the psychologist to assist you in dealing with these issues and have done so since 25 July.  Additionally, you have extremely strong support from your mother.  Ms Leckner indicated as follows:

"Brodie expresses regret and shame for his involvement in this matter.  His actions appear to be borne of youth foolhardiness, a lack of judgment and lack of driving experience with little or no consideration given to the potential consequences.  Brodie expresses victim empathy, stating 'I wish it was me, not her'".

37You also have successfully completed the road trauma awareness seminar.

38You both pleaded guilty at the earliest possible opportunity.  You have spared the community the time and expense of a criminal trial.  There has been no contested committal.  Victims were not re-traumatised by reliving the accident.  Accident experts were not challenged and you have both accepted responsibility for your actions.

39I accept that you have displayed genuine remorse for the injuries caused to your victims.  I accept that in addition to remorse you are both generally contrite understanding the impacts of your actions on your victims and their families and also the seriousness of these offences.  I was informed that both of you attended at the hospital with Danika's father.  That was no doubt a sobering experience for you both.  This remorse combined with your pleas of guilty entitle you to a significant reduction to the sentences that I would otherwise have imposed.  I also take into account a number of character references that were tendered on your behalf and the support of your family.

40Neither of you have any prior convictions.  The material provided to me reflects good character in both of you.  I was informed that both of you had only had your licences for a period of months before the accident.  Your pleas of guilty, remorse, family support and lack of any prior matters or any suggestion of any significant anti-social or rebellious nature all go well for your rehabilitation prospects.  You both have excellent prospects for rehabilitation.

41I also take into account your youth.  However, with offending of this serious nature, the object gravity of it and the prevalence of this kind of offending amongst young males in our community, general deterrence plays a significant role in the sentencing process.  As noted recently in our Court of Appeal they are relating to the more serious offence of culpable driving. 

“Numerous appellate decisions have considered sentences imposed on young offenders with a good family background, unblemished work records and no prior convictions who have been convicted of culpable driving. Such cases have emphasised that mitigatory factors of this kind do not ordinarily outweigh the importance emphasis which must be placed on deterrence and denunciation in sentences for offending of this nature.  As this court recognised in DPP v Neethling [2009] VSCA 116 43, driving is an adult responsibility.  That responsibility involves the necessity to make adult decisions and choices and an awareness that a failure to do so will result in the same consequences that apply to mature adults.  Those who have the privilege of holding a drivers licence must ensure they make a decision carefully and responsibility because the failure to do so may have catastrophic consequences including the death of others”, see CDPP v Hill [2012] VSCA 144 44.

42Similar sentiments are expressed in the victim impact statement by Danika's mum.  “I urge the court to set an example not only for this case but for all young drivers who are oblivious of the impact and turmoil an accident like this can have on family, friends, themselves, that is you and the public.  Messages are not getting through.  Accidents do happen but can be avoided if utter stupidity is taken out of the equation.”

43In sentencing you I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims including in this case the significant impact on them and the serious nature of their injuries.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible, offenders particularly young men like you are rehabilitated and reintegrated into society.

44During the course of this plea, I was provided with a number of sentences from other judges of this court for this offence and for other more serious offences involving driving where similar sentencing principles apply.  I was also provided with sentences from the Court of Appeal.  These are, however of limited assistance as each and every case needs to be given individual consideration and distinguishing features are easily identified, whether that be because of the circumstances of the driving or the individual offender.  Additionally many of these cases were before the maximum penalty before this offence was increased from five years to ten years.

45It was not suggested by any counsel that the same sentencing considerations were not equally applicable to the two of you.  I propose to impose the same sentence on both of you.  The Crown submitted that an immediate custodial sentence was the only appropriate disposition.  Neither of your counsel disputed that submission however it was submitted that in considering all the relevant sentencing considerations, I could impose a Youth Justice Centre order.

46On inquiry from me, the prosecution conceded that I would not fall into sentencing error if the sentence I imposed was for a period of three years, thus enabling me to consider both your suitability for a Youth Justice Centre order pursuant to s.32 of the Sentencing Act.  I have received reports of both of you and each has indicated that you meet the relevant criteria and are suitable.

47These cases involved a very difficult sentencing exercise.  The authorities are clear that in these kind of cases where the consequences of the driving are so serious I am required to send a message to other young drivers.  This happened because as one of you remarked, you were “young and dumb”.  I indicated you have both been assessed as suitable for a Youth Justice Centre order and that is the order that I propose to make.  Could you both please stand.

48In respect of Charge 1, you are both convicted and I order you to be detained in a Youth Justice Centre for a period of two and a half years.

49In respect of Charge 2, you are convicted and I order you to be detained in a Youth Justice Centre for a period of 18 months.

50I order that six months of the sentence imposed on Charge 2 be cumulative on the sentence imposed in respect of Charge 1.  That means that in respect of both charges, you are both to serve a total effective sentence of three years detention in a Youth Justice Centre.

51Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to these offences, I would have imposed on both of you sentences of imprisonment of four years with a non-parole period of three years.  Pursuant to s.464ZF, I require you, Mr Adam West to provide a sample to police as requested, in the draft order that - has that been provided to me yet?

52MR STARVAGGI:  Yes, Your Honour.

53HER HONOUR:  In the draft order that has already been provided to me. I understand Mr McGregor that you have already provided a sample.

54In respect of your licences, I am required to cancel and disqualify your licences for a period of 24 months, pursuant to s.89 of the Sentencing Act and I do so in respect of both of you from today's date.  Any licences you have are cancelled and you are disqualified from obtaining a licence for a period of 24 months.  Thank you.

55You can remove the prisoners, thank you.  10 o'clock Monday, thank you.

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