Director of Public Prosecutions v Wilson
[2020] VCC 1177
•7 August 2020
AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-19-01830
Indictment No. K11652075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN WILSON |
---
| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 July 2020 |
| DATE OF SENTENCE: | 7 August 2020 |
| CASE MAY BE CITED AS: | DPP v Wilson |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1177 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Dangerous driving causing serious injury - plea of guilty
Sentence: Community correction order for a period of 2 years with a condition of 300 hours of community work.
Section 6AAA declaration: total effective sentence of 3 years’ imprisonment, with a non-parole period of 18 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague (Plea) Ms L. Treasure (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G. Hughan | Jay & Co Barristers and Solicitors |
HER HONOUR:
1.John Henry Patrick Wilson, you are to be sentenced today for the offence of dangerous driving causing serious injury. That offence carries a maximum penalty of five years' imprisonment.
2.Like many people who come before the court charged with this offence, you are a person of otherwise good character and history who, by reason of a simple and easily avoidable driving error, has caused devastation to the life of another.
3.The prosecution filed a detailed outline of the events relating to this charge[1]. I have had regard to all the content of that document and will only summarise the facts now.
[1] Prosecution Opening on Plea 22 July 2020 – Exhibit P1
4.On 16 July 2018 in the mid-morning, you were driving a work vehicle, a Nissan Navara utility, along Frankston-Dandenong Road in Dandenong. You had a passenger in the car. Driving conditions were good - the weather was fine; the road was dry and traffic, relatively light. Dashcam footage from a vehicle behind yours shows you driving in a wholly normal way up to the point of the incident.
5.Ms Pennie Martin was driving along the same stretch of road in a white Holden Commodore.
6.Both of you were approaching the intersection of Frankston-Dandenong Road and Jayco Drive. You were in the left-hand lane, and Ms Martin was in the right hand lane. Approaching the intersection, the road widened to include a turning lane on either side of the road.
7.The lights were amber as you both approached the intersection. There was a vehicle in front of you, which began to slow. You decided to change lane to the right-hand lane, so as to be first in the lane at the lights. You quickly changed lanes to the right-hand lane, crossing the unbroken line between the two lanes. You failed to conduct a comprehensive and adequate head check of the area of road to your right, and so you failed to observe and give way to Ms Martin's vehicle. She was forced to swerve to her right to avoid your vehicle, and as she did so she braked heavily. Her vehicle collided with the rear left-hand corner of a truck which was waiting to turn in the right hand turning lane.
8.The photos included in the Opening show the extent to which the Commodore travelled under the truck, and the CCTV footage from a nearby business shows the truck being jolted forward by the impact.
9.You had heard the collision, which distracted you, so that rather than stopping at the light, you drove through the intersection and parked on the other side of it. You got out and approached the victim's vehicle to try to assist.
10.The prosecution case is that your driving was dangerous because you changed lanes immediately prior to an intersection controlled by traffic lights, over a solid line and without performing a proper head check.
11.When the police attended the scene they spoke to your passenger and to you. Your passenger told police a false story, that is that you had changed lanes to avoid a collision with a vehicle in the lane to your left, which had cut you off. You adopted that story at the scene.
12.When formally interviewed, you abandoned that version of events and admitted changing lanes as you approached the Jayco Drive intersection once the lights had already turned orange. You said it was your intention to change lanes into the empty lane to your right and stop prior to the stop line at the intersection. You checked your mirrors and indicated prior to changing lanes but did not see any other vehicles in the right-hand lane. You told the police that you are not able to rotate you head fully to the right due to an injury.
13.Ms Martin suffered very serious life-threatening injuries. She was given first aid from bystanders and then emergency medical treatment from paramedics at the scene. She was found unconscious, in deep coma. She was airlifted to the Alfred Hospital and admitted to the Intensive Care Unit, and later transferred to a general ward.
14.Ms Martin suffered the following injuries:
14.1. Severe traumatic brain injury with bleeds on the front and rear aspects of both sides of the brain, and between the hemispheres, with tearing of the brain tissue due to the fast movement of the brain during the collision;
14.2. Loss of consciousness;
14.3. Twenty-two post-traumatic amnesia days;
14.4. Ongoing cognitive problems;
14.5. Facial bone fractures, including fractures of the frontal and outer walls of the right upper jawbone cavity, the floor of the right eye socket and the nasal bone;
14.6. Lung injuries, including air-filled cavity in the lung tissue from trauma and collapse of both lungs; and
14.7. Soft tissue injuries, including lacerations to the forehead, nose, tongue and right ear, and to her spleen.
15.She required extensive and ongoing treatment, which is set out in the Opening.
16.After 14 days at the Alfred Hospital, Ms Martin was transferred to the Alfred Health Caulfield Acquired Brain Injury (ABI) Rehabilitation Unit and she remained there as an inpatient for three months.
17.As of April 2019, Ms Martin still suffered from short term memory loss and had no recollection of the collision. At that time she was having five to six appointments per fortnight with specialists in neuropsychology, physiotherapy, speech therapy and occupational therapy. She was seeing a psychologist monthly and was still taking antipsychotic medication. She had lost her sense of smell and taste, although her mother said that she sometimes regained these senses to a slight degree, but not on a permanent basis.
18.Before this incident, Ms Martin was employed and living her own life. She was social, independent, and enjoyed the fellowship and spiritual benefits of her faith. In her victim impact statement, she has written of the physical and mental difficulties she now has by reason of the injury to her brain. These impacts include that her memory suffers, she is very anxious and has had issues requiring antipsychotic medication. Her ability to enjoy life, to meet friends and family, to take part in social gatherings and to attend church are all significantly reduced. Daily tasks are difficult. She cannot enjoy simple pleasures such as good food, as her senses of taste and smell are gone. She feels the lack of her independence – she has not been able to work, she must live with her mother, rather than by herself, she cannot control her own finances and, whilst permitted to drive, she does not do so.
19.Pennie Martin's mother, Jenny Napper, told the court of her own trauma in dealing with the initial events following the collision. I cannot do justice to her moving victim impact statement in these reasons. Her hopes and expectations for her own life have been sacrificed to the need to look after her daughter. The devotion and care she has given to her daughter is truly commendable.
Personal Circumstances
20.You are now 30 years old; you were 28 at the time of this offence. You and your family - that is your parents, yourself and two younger brothers - emigrated to Australia from Mauritius when you were 13. You learnt English and adapted reasonably well to the change of country and culture. You completed your VCE in 2008.
21.Whilst at school you played basketball, which you were very good at. You were accepted into the school's Basketball Academy program, and coached younger players and a team of players with disabilities. You also developed an interest in physical training and obtained a qualification as a personal trainer.
22.From your teenage years you have worked, initially after school in your uncle's cleaning business, and later at Hungry Jack's. Even as a teenager, you contributed financially to your family with your earnings. Your employment history shows you trying a number of different jobs, and in 2018 you obtained your current job as a sign installer with Southern USI Pty Ltd. Your employer provided a letter in support of you, in which he speaks favourably of you as a worker and a person. Importantly, he indicates that he will endeavour to continue to employ you in the event that you receive a term of imprisonment.
23.You are a devout Catholic, who prays nightly and attends church. I was told you pray not only for your family and friends, but also for Ms Martin. You are close to your family and you have good strong friendships with people who love and respect you. The references and evidence from your friends tell of your generosity, compassion and willingness to go out of your way to assist others. You have two rescue animals as pets and contribute to the RSPCA. You have applied to be a volunteer with the SES and the CFA.
24.You are engaged to be married to a young woman whom you have known for some years. Your marriage plans have been delayed by reason of this prosecution, but you have now set a date in the next year for your marriage to occur. Your fiancée has written a letter to the court about you, and given evidence on your behalf, about which I will say more a little later.
25.All the evidence before me indicates that, but for this incident, you are a decent hardworking member of our community, who does more than many to contribute to the community and lives of others in a positive way.
Mental Health
26.You sought the assistance of a psychologist for counselling last year. Dr Ho, your treater, has provided three letters to the court setting out your attendances. She refers to your stress and low mood, as well as 'a great deal of regrets, sadness, and remorse regarding the occurrence of this accident.'[2] These issues are reactive to the offending and the ongoing prosecution. In June this year, your depression, anxiety and stress were, according to a Depression Anxiety Stress Scale test, in the extremely severe range.[3]
[2] Dr Ho, 3 February 2020
[3] Dr Ho, 24 July 2020
27.Dr Ho's observations are supported by the letters from your friends and family, and your employer, who all note that since this incident you have struggled with the results of your actions, both in respect to care and concern for Ms Martin, and with respect to the potential outcome for yourself to this prosecution. Ms Croft gave evidence that you have expressed the feeling that your life has no value, that you feel that it should have been you who suffered rather than Ms Martin, and that you have not been the same person since the accident.
28.Your counsel also noted that you have struggled with the lack of contact with friends and family during the recent COVID-19 lockdown.
Matters Raised on the Plea
29.Your counsel covered a range of matters on your behalf in the plea hearing. In particular, I note the following matters:
29.1.First, you are clearly remorseful. This is evidenced by your admissions when interviewed, your plea of guilty at the earliest reasonable opportunity, your letter of apology which you read out to me, the evidence from Dr Ho, Ms Croft, your friend, Ms Dromart, and the letters provide to me, your participation in the Road Trauma Awareness course and your desire to use your experience as a lesson to others. I accept that you are genuinely sorry for your conduct, not only for your own situation, but with empathy, compassion and deep regret for the injuries and their devastating consequences to Ms Martin;
29.2.Secondly, your plea of guilty warrants a considerable discount in sentence for its utilitarian benefit, the facilitation of the administration of justice and as an indicator of remorse. Your plea and the facilitation of the administration of justice carries particularly strong weight in mitigation in light of the limitations upon the operation of the court due to the COVID-19 restrictions;
29.3.Thirdly, you are a person of good character with no prior convictions, nor subsequent matters. In addition, as I have set out earlier, you contribute to your family and the community, and the material before me indicates that you are a decent moral person;
29.4.Fourthly, whilst the passage of time between the offence and today is not extraordinary, and no blame is attributed to any party for it, nevertheless, during that time you have continued to lead a law-abiding life whilst these matters have been hanging over your head and causing you distress and anxiety.
30.Mr Wilson, I must balance the matters personal to you, the gravity of this offending, its effect on Ms Martin and her loved ones, and general sentencing principals and aims.
31.I accept that your failure to perform an adequate head check and observe
Ms Martin was due to momentary inattention or in advertence. The only factor relating to your driving in addition to this failing was that you performed this manoeuvre in breach of the Road Rules. Whilst this aggravates your offending, it does so only to a limited degree.32.The consequences of your actions must also be taken into account in assessing the gravity of the offending. Although unintended by you, the injuries suffered by Ms Martin were life-threatening and have and will have a profound effect on her and those who care for her.
Sentencing Principles
33.The principles of general deterrence, just punishment and denunciation all carry weight in the sentencing exercise. There is a real need for drivers to take proper care and drive safely. This case brings home all too clearly how a simple mistake can lead to tragic consequences. It is to be hoped that all drivers wish to avoid harming others by their driving, but the need to reinforce the necessity for care is important.
34.Another matter that must be considered is whether there is a need to deter you from committing any offence in the future. In your circumstances, I do not think there is such a need. As I have already canvassed, you are a person of good character, with a clear driving history and I am sure that you will be particularly careful on the roads in the future.
Current Sentencing Practice
35.I was referred to a number of decisions from the Court of Appeal and to sentences imposed by other judges of this court. Those cases are helpful to me in understanding the nature and length of sentences imposed in other cases and the principles and guidance regarding sentencing for this offence. As noted by the prosecution, the Court of Appeal has said that ordinarily a person in your position could expect to receive a term of imprisonment beyond that which can be combined with a community correction order.[4]
[4] Aston v R [2020] VSCA 225, [155]
36.On the other hand, the sentences provided to me demonstrate that non-custodial or combination sentences are not infrequently imposed for dangerous driving charges, whether they be for causing serious injury or death.
37.Whilst mindful of the guidance from the Court of Appeal, and taking all the various matters raised and relevant into account, there is one matter in particular that leads me to conclude that a non-custodial disposition can be imposed in your case. That matter is the COVID-19 pandemic and its effects on the value of the plea of guilty, and the additional burden of imprisonment. I am very mindful of the devastating injuries and damage caused to
Ms Martin and the life-long consequences for her and her mother. On the other hand, this is effectively a case of momentary inattention in driving, unaccompanied by any of the serious aggravating factors that can arise.38.Mr Wilson, I am now going to tell you your sentence. If you could just take yourself off mute, please? Thank you. Mr Wilson, you are sentenced on the single charge of dangerous driving causing serious injury to a community correction order with conviction for a period of two years, and with the condition that you complete 300 hours of community work.
39.I have not included in the order, a supervision or other condition, as you are addressing your mental health appropriately, and in view of your very good prospects of rehabilitation.
40.Pursuant to s.89(1) and (2)(a) of the Sentencing Act, your licence is cancelled, and you are disqualified from obtaining a further licence for a period of 18 months from today.
41.The prosecution has applied for a forensic sample order, and you have consented to such an order being made, and so I will make that order.
42.Pursuant to s.6AAA Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty, you would have been sentenced to a total effective sentence of three years, with a non-parole period of 18 months.
43.Now, Mr Wilson, so just to repeat, the sentence is a CCO, two years, with 300 hours of community work. I must tell you that a CCO can be breached if you do not comply with the terms of it or if you reoffended during its operation. And if you were to reoffend or breach the order, then you will come before me to be resentenced on this offence and on the breach. Now, do you consent to the making of such an order?
44.OFFENDER: Yes, ma'am - yes, Your Honour, I am sorry.
45.HER HONOUR: Yes. What will happen is that the paperwork for that will be emailed, I believe, by my associate to your instructing solicitors and you will need to sign that before you go home today.
46.OFFENDER: Yes, ma'am.
47.HER HONOUR: Is there anything else, Mr Hughan or Ms Treasure?
48.MS TREASURE: No, Your Honour.
49.MR HUGHAN: Nothing, Your Honour.
50.HER HONOUR: All right, thank you.
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