Director of Public Prosecutions v Westerman
[2020] VCC 24
•29 January 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01940
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYN WESTERMAN |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21 January 2020 | |
DATE OF SENTENCE: | 29 January 2020 | |
CASE MAY BE CITED AS: | DPP v Westerman | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 24 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing serious injury – instance of momentary inattention - exceed prescribed concentration of drugs while driving
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bausch v The Queen [2019] VSCA 235; Bell v The Queen [2018] VSCA 281; DPP v Jani [2019] VCC 1155; DPP v Neethling (2009) 22 VR 466; DPP v Oates (2007) 47 MVR 483; DPP v Tran [2018] VCC 428; DPP v Woo [2016] VCC 244; DPP v Yu [2019] VCC 1805; Humphries v The Queen [2010] VSCA 161; R v Bernath [1997] 1 VR 271; R v Olbrich (1999) 199 CLR 270; Wright v The Queen [2015] VSCA 333
Sentence: Dangerous driving causing serious injury: Community Correction Order for a period of three years
Exceed prescribed concentration of drugs while driving: Fine of $991.32
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Brown (Plea) Ms J Parker (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr J Lavery (Plea) Ms M Foley (Sentence) | Victoria Legal Aid |
HER HONOUR:
1 Lyn Westerman, you have pleaded guilty to one charge of dangerous driving causing serious injury, which carries a maximum penalty of five years’ imprisonment as well as a mandatory licence cancellation and disqualification of at least 18 months. You have also consented to the uplifting of, and pleaded guilty to, one summary charge of exceeding the prescribed concentration of drugs (that is, zero) while driving, which carries a maximum penalty of a fine of up to 12 penalty units as well as a mandatory minimum licence cancellation and disqualification for a period of at least three months.
Circumstances of offending
2 The circumstances of the offending are set out in detail in the Summary of Prosecution Opening which was tendered at the plea hearing, and I sentence you on the basis of the facts set out in that document. I summarise those facts briefly.
3 On the morning of 11 November 2017, David Clutterbuck left his South Geelong home on his bicycle, which was black, white and red in colour. He was wearing a black and white jersey with high-visibility shoulders and sleeves. His bicycle had flashing lights affixed at the front and the rear. Mr Clutterbuck cycled to Barwon Heads to catch up with ‘the bike team’. He then left Barwon Heads to ride his bicycle back to his home.
4 At about 11:00am he was about five minutes away from home, riding northerly along Breakwater Road. He approached the roundabout at the intersection of Breakwater Road and Carr Street in Breakwater. He surveyed the area, noting there were no vehicles to which he needed to give way, and then entered the roundabout at approximately 15-20km/hr.
5 You had been shopping in town that morning and were on your way to your sister’s house. You were driving your Holden Vectra in an easterly direction along Carr Street. You slowed down as your vehicle approached the roundabout and entered the roundabout at a speed of approximately 5-10km/hr.
6 Mr Clutterbuck was already in the roundabout when you entered. He saw your vehicle enter the roundabout at the last moment but at that stage was unable to slow or stop. The front end of your vehicle on the driver’s side collided with the front wheel and fork of Mr Clutterbuck’s bicycle, causing him to be thrown from his bicycle and land on the road.
7 Mr Clutterbuck lay on the road, unable to move any part of his body and was having trouble breathing. Paramedics attended the scene and transported him to hospital. He suffered severe, permanent and devastating spinal and other injuries to which I will refer shortly.
8 Police also attended the scene and conducted a preliminary breath test which was negative. You told police that you did not see Mr Clutterbuck until the last second. You were advised by police to go home. Your conduct in colliding with Mr Clutterbuck in the circumstances outlined above is the subject of the indictable charge of dangerous driving causing serious injury.
9 Police attended your home and performed a preliminary oral fluid test which was negative. You then complied with a police request to accompany them to the Geelong Hospital for the purpose of providing a blood sample. A blood sample was collected at 1:40pm. The sample later tested positive for Delta-9-tetrahydrocannabinol (‘THC’), commonly known as cannabis, at a level of 13ng/ml. Your conduct in driving with this illicit substance in your bloodstream, at above the prescribed level, is the basis of the uplifted summary charge.
10 The prosecution tendered a forensic report by A/Professor Morris Odell, dated 6 September 2018, concerning the level of THC, which is the active ingredient of cannabis, in your bloodstream. He noted that a level of THC above about 7ng/ml about two hours and 40 minutes after the collision, suggests consumption of cannabis within the preceding few hours. He stated that the blood level would have been much higher at the time of the collision but cannot be back-calculated. He opined that your driving skills would have been adversely affected by the effects of cannabis at the time of driving. However, because of the way THC is handled in the body, blood levels of THC are not directly related to impairment in the same way that applies to other drugs such as alcohol, and for this reason, it is not possible to attribute a crash risk reliably to any given blood level of THC.
11 You participated in a recorded interview with police on 11 November 2017 in which you stated you were not distracted by anything at the time of the collision, that you saw the roundabout sign before entering the roundabout, and that you slowed to a low speed when entering the roundabout. You said that you did not take any evasive action because you just did not see Mr Clutterbuck. You agreed that he was visible, but that you did not see him.
12 You also participated in a field interview on 27 August 2018, after the blood test results had been obtained, and admitted consuming ‘four cones’ of marijuana before going to bed on the night before the collision.
Procedural history
13 The charges were filed on 6 September 2018 and the prosecution acknowledges that there was a delay in initiating charges which cannot be attributed to you.
14 A committal hearing was listed but vacated after you agreed to plead guilty to the substantive charges. The prosecution concedes that your plea of guilty was entered at the earliest stage in the proceedings.
The victim
15 Prior to the collision Mr Clutterbuck was very fit and active, cycling regularly, doing a range of domestic tasks including cooking, and enjoying a full social life.[1]
[1]See the report of physiotherapist Kristy Heyes dated 15 January 2020 (Exhibit 3)
16 Immediately after the collision, Mr Clutterbuck was transported to hospital in Geelong and then transferred to the Alfred Hospital in Melbourne due to the severity of his spinal and other injuries. He underwent surgery on 11 and 12 November 2017. He was then in Intensive Care on the Acute Spinal Ward at the Austin Hospital for five weeks. During that period, he suffered a number of significant complications including: dysphagia requiring a PEG feeding tube; chest infection; throat thrush; sleep disturbance; and neuropathic pain.
17 Mr Clutterbuck was transferred to the Royal Talbot Rehabilitation Centre on 22 December 2017, but suffered breathing complications which required further hospital admission. He remained at the Royal Talbot Rehabilitation Centre until 24 July 2018, when he was discharged into interim accommodation while modifications were made to his home.
18 Although he has had some flickers in triceps function, Dr Clements has diagnosed Mr Clutterbuck as being left with C4 ASIA A quadriplegia.
19 As a result of his spinal injury, Mr Clutterbuck suffers from significant weakness, spasticity and stiffness of his arms and legs. He has no voluntary leg movements and only limited movements of the arms. He has suffered impairment to his bowel and bladder functions and has a permanent suprapubic catheter in place which makes him vulnerable to frequent urinary tract infections.[2] He requires full assistance with all of his personal care (including showering and toileting) and with eating and drinking. He is mainly fed through a PEG tube. He now requires the assistance of two carers to reposition him in bed and to operate a mechanical hoist to move him from his bed to a wheelchair or toilet chair. He requires the use of a motorised wheelchair which fully supports his head and trunk. Once he is placed into the wheelchair, he is able to operate it at home, but requires supervision outdoors. Unfortunately, he cannot spend extended periods of time in his wheelchair due to pain and fatigue, and therefore spends many hours per day in bed.
[2]See the report of Dr Joseph Virgona dated 16 January 2020 (Exhibit 4)
20 In addition, Mr Clutterbuck suffers severe neuropathic pain and spasms in his back, legs and arms which has proved very difficult to control and which have impacted on his ability to sleep, his level of arousal (due to the medication he takes for it), and his overall quality and enjoyment of life. His General Practitioner, Dr Virgona, stated that he takes about 36 tablets per day for his conditions.
21 In addition to his spinal injuries,[3] Mr Clutterbuck also sustained a mild to moderate traumatic brain injury from the accident with multiple effects on cognitive performance including reduced speed of processing, concentration, memory, problem solving, and attention, as well as sleep disturbance.
[3]See the psychological report of Dr Leonie Cole dated 19 January 2019 (Exhibit 5).
22 Mr Clutterbuck’s mental health, which was previously sound, has suffered significantly as a result of the permanent injuries sustained in the collision. According to his treating psychologist,[4] he now suffers from Depression with Anxious Distress. He presents frequently with low mood, and expresses feelings of hopelessness, helplessness and low self-worth. He is distressed by the loss of physical independence, by the loss of intimacy with his wife, and has expressed guilt for the ways in which his injuries impact on the lives of his family.
[4]Ibid.
23 Overall, his doctor reports that Mr Clutterbuck’s condition has been more complex than for most quadriplegic patients, and that he requires ongoing physiotherapy, occupational therapy and medical treatment.
24 In his Victim Impact Statement, which was read out in court by the prosecutor, Mr Clutterbuck set out in detail the devastating impact of his injuries upon his life. Where he was once a fit, sociable and very active husband, father, grandfather and friend, he is now fully dependent for all his daily activities of living on his permanent carers. He feels he has lost his dignity. He has undergone multiple surgeries but still has very limited movement in his arms. He is PEG fed, has a permanent catheter, and suffers regular infections which require hospitalisation. His body cannot regulate its own temperature and he always feels cold. He suffers muscle spasms and severe neuropathic pain requiring high doses of medication daily. These medications keep him in a haze and prevent him communicating meaningfully with his family. He also suffers from severe sleep apnoea which requires him to sleep with a CPAP device. This restricts his ability to call out at night and makes him feel trapped. His brain injury has affected his memory. His vocal chords have been damaged and he struggles to project his voice. He is depressed and anxious. He is also grief stricken about all that he has lost: his independence, his role as husband, his ability to play with and look after his grandchildren, and his ability to travel with his wife and friends. His distress is compounded by the impact that his condition has had on his wife and his children.
25 Carolyn Clutterbuck read out her Victim Impact Statement in which she set out in detail the impact that her husband’s injuries have had on their lives. They can no longer do activities together; they have 12 different carers permanently rotating through the home; and the days revolve around his needs, his pain and the many emergencies requiring hospital admissions. She can no longer focus on her successful professional career. She has become depressed and now takes antidepressants for the first time in her life. She is distressed about Mr Clutterbuck’s physical and emotional pain, the toll his situation has taken on their children and friends, and about her inability to help them all. She misses the family the way it used to be.
26 Anne Clutterbuck, Mr Clutterbuck’s sister, provided a Victim Impact Statement which was read out in court by the prosecutor at her request. She has been deeply affected by the drastic change in his circumstances and worries about him daily.
27 James and Ben Clutterbuck, Mr Clutterbuck’s sons, each provided Victim Impact Statements, which were read out in court by the prosecutor, in which they expressed the traumatic impact upon them of the dramatic change in their father’s circumstances. They are extremely distressed to see him lose his independence and suffer physical and emotional pain, as well as being unable to play with and care for his five granddaughters.
28 Daniel de Gois, Mr Clutterbuck’s stepson, provided a Victim Impact Statement which was read out in court by the prosecutor, in which he stated that his mental health has suffered as a result of seeing his stepfather’s suffering and the suffering of his mother and family members.
29 Victim Impact Statements provided by Mr Clutterbuck’s friends, Stephen and Irene Brameld and Stephen Hede, were also read out in court by the prosecutor. Mr and Mrs Brameld have had a long friendship with Mr and Mrs Clutterbuck, and have enjoyed travelling with them, going out with them, and doing outdoor activities with them, such as cycling and hiking. They have been very distressed by Mr Clutterbuck’s tragic current circumstances, as well as by the toll it has taken on his wife. They find it difficult to cope with the fact that their close friends will not be able to participate in a large part of their future plans.
30 Mr Hede has known Mr Clutterbuck for 40 years and they, and their young children, spent holidays each year together. The two men cycled together regularly, particularly after Mr Clutterbuck retired. They took part in a number of organised rides, and on occasion rode in a group with their wives. Mr Hede is distressed at seeing Mr Clutterbuck lose his independence and his ability to participate in further holidays and has observed the substantial toll that his injuries have taken on Mrs Clutterbuck.
Personal circumstances
31 I note that you were supported in court by your sister and a work colleague.
32 Your personal circumstances were set out in the report of Mr Jeffrey Cummins dated 13 December 2019.[5] You are now 62 years of age and were aged 60 years at the time of your offending. You have two siblings, neither of whom has had any trouble with the law. Your family lived in Queensland for a number of years because your sister suffered from asthma. You attended school there until halfway through Year 9. Your family then moved back to Geelong and you worked in various jobs. When you were 18, and pregnant with your first child, your father, with whom you had been very close, left home abruptly with a work colleague. As a result of the stress of your parents’ separation, you lost the baby. You have had no further contact with your father but remained very close to your mother.
[5]Exhibit A.
33 You married at age 18 and have two sons, neither of whom has had trouble with the law. Your marriage broke down when you were 30 years old after your husband became controlling and demanded that you work two jobs. You then had a relationship with a man called ‘John’. When that relationship broke down, you needed to obtain an intervention order in order to stop him stalking you. You suffered some kind of emotional breakdown at that time, taking an overdose of prescription medication. You spent four days in hospital and then saw a number of mental health practitioners until the age of 50. Between the ages of 36 and 40, you were in a satisfactory relationship. You have been single since then.
34 You smoked cannabis daily from the age of 34 until around May 2018. You have never gambled. You have no criminal or driving history.
35 You moved in with and cared for your mother for three years before she died of a heart attack in 2013. For the past seven years you have been a volunteer at an opportunity shop.
36 You worked in retail when your sons were young, and kept working casually in shops and as a cleaner until the age of 40, when you were diagnosed with anxiety and severe depression in relation to the emotional and physical abuse you suffered at the hands of your former partner, John. You have been taking antidepressant medication (Dothiapin) since that time. Since your mother died, you have also been taking a mood stabiliser, Zyprexa, at night. You had a heart valve replaced in mid-2019.
37 Throughout your interview with police and your interview with Mr Cummins you repeatedly expressed remorse for your offending, stating that you feel terrible about the injuries sustained by Mr Clutterbuck. You told police you knew you should not smoke cannabis but had been doing so every day for many years and did not think it would have affected your judgment when you were driving.
38 A letter from your treating doctor[6] indicates that you suffer from peripheral vascular disease and chronic renal impairment. Your aortic valve repair puts you at greater risk of stroke or heart attack. You have been living a better lifestyle lately, not smoking and trying to exercise regularly. You will require specialist monitoring for life for your renal, cardiac and vascular conditions.
[6]See the letter of Dr Simon Bennison dated 13 December 2019 (Exhibit C).
Submissions
39 The prosecution did not dispute that you were driving without distractions and slowly at the time of the collision, and that the collision was caused by a momentary inadvertence or lapse of concentration on your part in not seeing Mr Clutterbuck on his bicycle. It was conceded that there were no aggravating features of your manner of driving on that morning. However, the prosecution submitted that the presence of THC in your bloodstream was an aggravating feature of the offence of dangerous driving causing serious injury, even though it was conceded that the precise impact of that THC in your system cannot be quantified, and that there is no clear nexus between the drug and your dangerous driving.
40 The prosecution accepted that you are a person of good character, who pleaded guilty at an early stage but submitted that the sentencing principles of just punishment and general deterrence play a significant role in the sentence to be imposed, and the appropriate disposition was one of a combination sentence or the imposition of a term of imprisonment with a non-parole period.
41 It was submitted by your counsel on your behalf that an assessment of your moral culpability in relation to the charge of dangerous driving causing serious injury must have regard to the following matters: you have held a licence for 40 years and have an unblemished driving record; there is no evidence of your travelling at excessive speed before the accident; rather, it is accepted that you slowed at the roundabout sign and entered the roundabout at a low speed of around 5-10km/hr; you were not engaged in any distracting activity at the time of the collision such as talking on your phone or adjusting your radio; there is no evidence that you were fatigued; and there were no defects in your car. You told police that the collision was caused by your own stupidity in simply not seeing Mr Clutterbuck. In addition, it was submitted there is no evidence that you were impaired in your driving at the time of the collision due to having THC in your bloodstream. In all the circumstances, it was submitted that the cause of the collision was a momentary lapse of concentration in which you just did not see Mr Clutterbuck. The mistake you made has also been life changing for you in terms of your own ongoing sense of guilt for the impact of Mr Clutterbuck’s terrible injuries on his life and on the lives of his family.
42 In mitigation, your counsel relied on your immediate acceptance of complete responsibility for the collision, your early plea of guilty, additional heartfelt expressions of remorse, both to police and in your interview with Mr Cummins; the absence of any prior convictions including any driving matters; the fact that you stopped using cannabis altogether after the collision; your low risk of reoffending and your excellent prospects of rehabilitation.
43 It was submitted that since your defective driving resulted from a momentary lapse, the court need not give great weight to the principle of specific deterrence.
44 Finally, it was submitted on your behalf that the imposition of a Community Correction Order (‘CCO’), which is intrinsically punitive, on the charge of dangerous driving causing serious injury, would serve the sentencing principles of denunciation, just punishment and general deterrence. You were assessed on 21 January 2020 as being at moderate risk of reoffending (because of your history of cannabis use) but as suitable to undergo a CCO with recommended conditions of community work; supervision, drug treatment and rehabilitation, and programs to reduce reoffending. It was suggested that some of the hours undertaken for treatment and rehabilitation could be counted as hours of unpaid community work.
Sentencing considerations
Dangerous driving causing serious injury
45 The law says that general deterrence is to be given considerable weight in the sentencing process for the offence of dangerous driving causing serious injury and that, as a result, unless the offender’s level of moral culpability is low, the offender is likely to receive a significant term of imprisonment.[7]
[7]DPP v Oates (2007) 47 MVR 483, 487 [22]; DPP v Neethling (2009) 22 VR 466, 472 [30].
46 Where the offender’s moral culpability is low, such as when the dangerous driving consists of momentary inadvertence which results in serious injury or even death, courts have imposed Community Correction Orders.[8] This is because the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a CCO is a punitive disposition which is capable of addressing all relevant sentencing considerations. The law also says that a sentencing judge must consider all the relevant considerations in the specific case before them.
[8]For the offence of dangerous driving causing death see, e.g., Bell v The Queen [2018] VSCA 281 (‘Bell’); DPP v Tran [2018] VCC 428; DPP v Yu [2019] VCC 1805; and for the offence of dangerous driving causing serious injury see, e.g., DPP v Woo [2016] VCC 244; DPP v Jani [2019] VCC 1155.
47 When assessing the gravity of your offending in relation to the charge of dangerous driving causing serious injury, I am satisfied on the evidence before me that you were driving carefully prior to the collision, saw the roundabout sign, slowed to a speed of 5-10km/h when entering the roundabout, and that the collision was caused by your failing to see Mr Clutterbuck in that roundabout in a moment of inadvertence or inattention. There were no features of your driving which are commonly present in cases of dangerous driving such as excessive speed; use of mobile phones or other distractions; erratic or aggressive driving; competitive driving or showing off; ignoring of warnings; or escaping police pursuit. I am satisfied that your offending represents a low order of gravity and moral culpability.[9]
[9]See, e.g., Bell [2018] VSCA 281, [54] (Ashley JA).
48 The fact that you pleaded guilty to having THC in your bloodstream at the time of the collision is not an aggravating circumstance in relation to the offence of dangerous driving causing serious injury in this case for the following reasons.
49 The law says that the presence of THC in your bloodstream at the time of the collision cannot[10] logically bear on the gravity of the offending by way of dangerous driving unless some causal connection could be positively established,[11] and established beyond reasonable doubt.[12] In the absence of such connection the drugs could not be said to aggravate the conduct which caused the serious injury.[13]
[10]Bausch v The Queen [2019] VSCA 235, [31] (‘Bausch’).
[11]R v Bernath [1997] 1 VR 271; Humphries v The Queen [2010] VSCA 161; Wright v The Queen [2015] VSCA 333.
[12]See Bausch; R v Olbrich (1999) 199 CLR 270 at 281, [27].
[13]Bausch, [31].
50 In this case, there was no evidence that showed beyond reasonable doubt that the cannabis you smoked the night before the collision caused your momentary inadvertence at the time of the collision. There was also no evidence capable of establishing beyond reasonable doubt that you knew or should have known that you were in fact affected by THC at the time of the collision. For this reason, the law prohibits me from treating the fact that you had THC in your bloodstream at the time of the collision as an aggravating factor when considering the offence of dangerous driving causing serious injury.
51 I note that the prosecution referred to the THC reading in your bloodstream as being “in the mix” in relation to the offence of dangerous driving causing serious injury. If, by this expression, the prosecution was inviting the court to regard the presence of THC in your system at the time you committed the offence of dangerous driving causing serious injury as an indicator of general disregard for your responsibilities as a driver, the law forbids this reasoning. This is because the law says: firstly, that you are to be separately punished for the presence of THC in your blood by way of a separate offence. Secondly, in the absence of evidence of the probable effect of the THC it cannot be concluded beyond reasonable doubt that you disregarded a probable risk. Thirdly, such disregard could not on the evidence be causally linked to the offending.[14]
[14]Bausch, [32].
52 What makes this case of dangerous driving causing serious injury a serious example of this kind of offending is the seriousness of the injuries suffered by Mr Clutterbuck. This case highlights the very real possibility or risk that even momentary inattention when driving can cause catastrophic injuries to other road users, particularly to cyclists who are physically vulnerable when on the roads. It also highlights the need for motorists to take special care when driving to maintain a constant lookout for all other road users.
53 I acknowledge the very moving Victim Impact Statements referred to above, particularly those of Mr and Mrs Clutterbuck, as starkly demonstrating the tragic consequences of this collision for Mr Clutterbuck. The sentence I impose can in no way be a measure of the losses and suffering experienced by Mr Clutterbuck and his family. In addition, the impact of the offending on victims is only one of the large number of factors which I am required by law to take into account when imposing a sentence.
54 In sentencing you, I must also have regard to the sentencing principles of denunciation, just punishment, specific and general deterrence, rehabilitation, and parsimony as well as to current sentencing practices.
55 General deterrence remains a central sentencing consideration in cases of this nature. While this is a case of momentary inadvertence, it is clear that the consequences of such momentary inadvertence can have devastating consequences when collisions occur. As such, a message must be sent that drivers must remain vigilant at all times in looking out for the presence of other road users, and that failure to do so may result in criminal charges and sanctions.
56 I also take into account that until this offending you have lived 60 years or so unblemished by any criminal or any driving history. You have stopped smoking cannabis. For this reason, specific deterrence is of little relevance in your case. I consider that you have very strong prospects of rehabilitation and are unlikely to reoffend.
57 I also take into account the matters relied on in mitigation. Your early plea of guilty demonstrates your acceptance of responsibility and has avoided the need for a trial which would be expensive and stressful for all concerned. Your plea has therefore facilitated the course of justice and you are entitled to appropriate credit for that. I am also satisfied on the material before me that you have expressed remorse from the outset over and above the plea of guilty, and that you have been very distressed by the impact the accident has had on Mr Clutterbuck and his family.
58 You have been assessed on 21 January 2020 as suitable to undergo a CCO with recommended conditions of unpaid community work, supervision, drug treatment and rehabilitation, and any offender specific programs.
59 In all the circumstances, I consider that on the charge of dangerous driving causing serious injury the relevant sentencing principles can be properly accommodated by a disposition in the form of a CCO.
Exceed prescribed concentration of drugs while driving
60 I turn to the uplifted summary charge of exceeding the prescribed concentration of THC. The prescribed concentration is zero ng/ml. Your blood sample revealed a concentration of 13ng/ml of THC in your bloodstream some two and a half hours after the collision. Neither party made submissions in relation to the appropriate disposition for this charge.
Sentence
61 Would you please stand. On the sole charge on the indictment, that of dangerous driving causing serious injury, you are convicted and sentenced to a three year Community Correction Order with conditions of unpaid community work, drug treatment and rehabilitation, supervision, and participation in programs and/or courses that address factors relating to your offending behaviour.
62 In relation to the Community Correction Order, you will be required to complete 200 hours of unpaid community work. I direct that up to 100 hours of your participation in drug treatment and rehabilitation may be credited towards hours of unpaid community work.
63 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, three years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Geelong within two clear working days, which will be 31 January 2020. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
64 OFFENDER: Yes, I do, Your Honour.
65 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
66 OFFENDER: Yes, I do, Your Honour.
67 HER HONOUR: I also order that all licenses and/or permits held by you be cancelled and that you be disqualified from obtaining any such license or permit for a period of 18 months from today.
68 On the uplifted summary charge of exceeding the prescribed concentration of drugs while driving, you are sentenced to a fine of six penalty units, being $991.32. I also order that your licence be cancelled for three months.
69 Pursuant to s 6AAA of the Sentencing Act, I indicate that on the charge of dangerous driving causing serious injury, but for your plea of guilty, I would have imposed a sentence of six months’ imprisonment in combination with an 18-month Community Correction Order.
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