Director of Public Prosecutions v Wilson

[2018] VCC 368

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01137

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT WILSON

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2018] VCC 368

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr M. Roper
For the Accused	Ms R. Avis

HER HONOUR:

1Robert Wilson, you have pleaded guilty on indictment to charges of reckless conduct endangering persons and to causing serious injury negligently.  You have also entered guilty pleas to related summary offences, namely driving whilst disqualified, fraudulently use number plates and committing an indictable offence, namely Charge 1, whilst on bail.  All charges are alleged to have occurred on 6 February 2017.

2Reckless conduct endangering persons carries a maximum penalty of five years imprisonment and causing serious injury negligently carries a maximum of ten years imprisonment.  Driving whilst disqualified carries a maximum penalty of two years imprisonment in your particular situation, fraudulent use of a registration plate carries a maximum of two months' imprisonment and committing an indictable offence whilst on bail carries a maximum of three years imprisonment.  These maximums reflect the seriousness with which Parliament regards these offences.

3The details of your offending are set out in a document entitled "Crown opening on Plea" and dated 25 September 2017.  It has been exhibited as Exhibit P1.  The contents of this document were agreed by your counsel and will be annexed to these reasons.  In short compass, shortly after 11 pm on 6 February 2017, you were driving a 1995 Ford Courier Utility north along Hotham Street Preston, when you entered a roundabout at the intersection of Dundas Street and narrowly avoided a collision with a marked police sedan.

4This understandably caught the attention of police and they followed, attempting an interception by activating warning lights and sirens.  At the time, the vehicle you were driving was displaying false registration plates.  This comprises the summary offence of fraudulently using number plates.  You made no attempt to stop and continued at speed, with police at pursuit.  As you entered an intersection at Raglan Street, Preston, you clipped a gutter causing your vehicle to bounce.  You approached the intersection with Bell Street and applied your brakes.  As a result, you lost traction and skidded into Bell Street.  Bell Street was controlled by a stop sign.  Your vehicle continued to accelerate to evade police. 

5You continued east along Bell Street for approximately 700 metres before you crossed to the wrong side of the road at a break in the median strip.  You continued to drive at speed, estimated to be around 100 kilometres per hour, as you drove on the wrong side of Bell Street.  The posted speed limit was one of 60 kilometres per hour.  As you approached the intersection of Lahinch and Victoria Street, you again applied the brakes as you approached a red traffic control signal.  Your vehicle skidded into the intersection and collided with a 1996 Mercedes Sedan being driving by your victim, Ms Danielle Redding, who had entered the intersection from Lahinch Street on a green light.

6Ms Redding was taking her 16 year old passenger, Ms Chloe Lowden, home at the time.  Your vehicle drove front on into the rear passenger driver's side door.  Your vehicle came to rest on the nature strip of the southeast corner of the intersection, having travelled approximately 22.1 metres from the point of impact.  The Mercedes which had been driven by Ms Redding travelled 14.25 metres from the point of impact, and its front airbags deployed.  You ran from the scene, but were blocked by police and were subsequently captured and arrested.  This action is not the subject of a charge and will not be taken into account in your sentence.

7You were required to undergo a preliminary oral fluid test which indicated the presence of an illicit drug.  This was later identified to be both methylamphetamine and Delta-9-tetrahydrocannabinol.  You were conveyed to the Austin Hospital with minor injuries.  Ms Redding, as I will come to detail, was not so fortunate.  You were interviewed by police on 7 February 2017 and chose to give no explanation for your offending.

8At the time of your offending, your licence had been cancelled and disqualified from 28 October 2015.  This comprises the summary charge of driving whilst disqualified.  You were also on an undertaking of bail dated 16 January 2017, which had required you to appear at Melbourne Magistrates' Court on 2 March of 2017.  Your offending was therefore in breach of your bail order and this comprises the charge of committing an indictable offence whilst on bail.

9In my view, it is an aggravating aspect of your offending, that you were the subject of a bail order at the time.  It is also an aggravating aspect of your offending that you were not entitled to be a road user, at the time, given your disqualification.  It is my understanding that your driving from the point where you accelerated away from police, until the point that your vehicle intercepted with that of Ms Redding's, comprises the charge of reckless conduct endangering persons.  I note that this offence is particularised as relating to Chloe Lowden and to other persons. 

10The impact of your vehicle with that being driven by Ms Redding, in circumstances where you were under the influence of drugs, were travelling at high speed and skidding through a red light which resulted in serious injury to Ms Redding, comprises the charge of negligently cause serious injury.  Footage was played to me today of a period of your driving, as recorded from two retail outlets and has been marked at Exhibit P3.    As a result of the collision, Ms Redding sustained ten rib fractures on her right side and two on her left side, along with a punctured lung and lacerated liver.  She required incubation for three days, due to agitation and hypoxia. 

11She also required two surgical operations over the first three days of her admission, in order to stabilise and repair the damage to her rib cage.  That repair required the fixing of five titanium plates to secure displaced damaged ribs.  She also suffered blunt force to her head, a subdural hematoma and multiple bruising over her body.  Ms Redding spent nine days at the Royal Melbourne Hospital and then was transferred to Brunswick Rehabilitation Hospital for four weeks.  Upon release, she moved in with a friend to care for her while her recovery continued.  Ms Redding's passenger, Chloe Lowden, was fortunate to sustain no injuries which is clearly a good fortune more than good management on your part. 

12In the decision in Harrison and Rigogiannis v The Queen (2015) 49 VR 619, the Court of Appeal conducted an extensive review of sentences imposed for the charge of negligently causing serious injury by driving. It did so in order to determine the then current sentencing practice for that offence, in circumstances where the offending was said to fall within the upper range of seriousness. The court found that the offending of each of those offenders fell within the upper range of seriousness and had it not been for the constraints of then current sentencing practices, the sentences imposed would have in fact been inadequate.

13Harrison was sentenced to three years and six months imprisonment, with a non-parole period of two years and Rigogiannis was sentenced to four months imprisonment, with a non-parole of two years and nine months on a negligently cause serious injury charge.  The court in Harrison was critical of sentences for negligently causing serious injury by driving, including those in the upper range of seriousness, as having remained inappropriately clustered at under four years imprisonment in circumstances where the maximum penalty had increased from five to ten years imprisonment in 2008. 

14In Harrison, the court held that on sentencing for negligently cause serious injury by driving, the court should not be constrained by existing sentencing practices and should from that point, impose higher sentences for those which fell within the upper range of seriousness, and, as would naturally follow, the sentences which could be described as mid-range and lower instances of such offence would also increase.

15In a subsequent decision of the Director of Public Prosecutions v Dalgliesh, [2017] HCA 41, the High Court held that a sentencing court will fall into error, treating current sentencing practices as restrictive on the position of a sentence that would otherwise be appropriate, in all the circumstances of the case. Dalgliesh does not affect the conclusion of the court in Harrison, that the current sentencing practice for the offence of negligently cause serious injury by driving was inadequate.  It does not affect the principles which are to be applied by sentencing Judges, in assessing the objective gravity of the offending, in cases involving negligently cause serious injury by driving.

16The court is required to assess the gravity of your offending.  The objective gravity of your offending is to be assessed by reference to firstly the degree of negligence displayed, and the seriousness of the injuries caused to your victim.  I would describe your offending, particularly that as it relates to negligently cause serious injury, as being at the mid to upper end of the scale, in terms of its objective gravity.  This is also the submission of the prosecution and no issue was taken with the description by your counsel.

17Your driving is a very serious example of negligently cause serious injury, given your manner in driving, the ingestion of drugs and the fact that you were disqualified from driving at the time.  The injuries to your victim are objectively serious.  I also find the charge of reckless conduct endangering serious injury to be at least at the mid-level, considering the degree of risk your driving involved, potential harm associated with that risk and your foreseeability of it, given your history.  Your driving was erratic, at high speed, interfered with road users and placed them, yourself and police members in pursuit at risk of grave harm.  At various stages, you were driving at high speed on the wrong side of the road.  Charge 1 and 2 on the indictment need to be seen in the context of your prior history for multiple driving offences. Your level of culpability is high. 

18I have had recourse to the victim impact statement authored by Ms Redding which was read to this court and additional photos of her in hospital were provided this day.  You can be under no illusion as to the impact of your offending upon her both physically and mentally, and that impact is enduring to this day and likely to be so into the future. 

19I do take into account matters personal to you as raised by your counsel in her detailed written submissions and on your behalf during your plea.  These include, in brief compass, that at the time of the offending, you were 31 years of age and are now 32 years old.  You have a younger sister, have never married and do not have any children of your own.  During your upbringing, you were exposed to domestic violence committed by your father against your mother.  Your mother unfortunately had her own mental health and drug issues.  You and your sister were placed in foster care for the first time when you were only six years of age.  For the years that followed, you were placed in and out of foster homes, occasionally returning to your mother.

20At approximately twelve to thirteen years of age, you were placed in the care of friends of your mother, referred to in the submissions, as "Cliff and Jeanette".  This, I am told, was an extremely negative environment, with Cliff exposing you to drug use and criminal offending, even encouraging you to be involved in both.  You left formal education at approximately fourteen years of age, when you were expelled during Year 8 of your education.  At the age of twenty-one, you returned to live with your mother and play a role as her carer.  Your ability to perform this role has been marred by your constant drug use and various periods of incarceration.  You have an extremely limited employment history. 

21It would appear that many of your difficulties have come about because of the negative aspects of your upbringing.  You commenced using drugs from the age of thirteen years and from the age of seventeen, commenced using methylamphetamine.  You commenced heroin from the age of eighteen years and you have also been a regular abuser of alcohol.  You have not sought rehabilitation outside the criminal justice system and drug use has had its natural consequence in your resort to criminal offending. 

22These matters set the context for the lead up to your criminal offending and the lifestyle that you have effectively been leading for at least the last twenty years.  A reference authored by your mother tells me about your background.  She also speaks of your remorse for your offending behaviour.  I do take the contents of her letter into account.  I also accept that your mother is a source of support for you.

23Your prior history is such that any court should show extreme caution as to your prospects for rehabilitation.  It is a history which contains an extensive history for driving related offending, including two separate occasions when you have been charged and dealt with for driving in a manner dangerous.  There are numerous prior appearances relating to careless driving, driving whilst disqualified and in breach of the road rules.  You also have a history of dishonesty and breaching court orders by way of bail orders, orders not to drive and breach of supervisory orders.  Overall, it would appear that you have a general disregard of the rules which are designed to protect road users from drivers such as you. 

24Whilst you are not to be punished again for that history, nor will you be, it is relevant to assessing your prospects for rehabilitation as I have already referred.  It is also relevant to specific deterrence and the need to protect the community from you, particularly as it relates to your driving.  I am satisfied that in circumstances of you committing such offences in breach of bail, when disqualified from driving, and have committed such a serious example of such offending, that weight also need to be given to general deterrence.

25I have had recourse to a report dated 12 February 2018 authored by
Martin Jackson, neuropsychologist.  He was requested to assess you in order to determine your current level of cognitive functioning and to provide opinion as to whether there was any evidence of neuropsychological disorder.  He found that you have a full scale IQ of 85 and that you are a man of estimated average pre-morbid abilities.  That there is no evidence of disorder of impulse control.  Your planning and organisation skills are also in the average range and that you display a range of intact cognitive functions.   He found that there was no evidence of acquired brain injury from any source. 

26From a neuropsychological point of view, Mr Jackson found that you had the cognitive abilities to be involved in and to benefit from, rehabilitation.  I have taken the contents of this report into account.  I have also had recourse to report from Mr Jeffery Cummins, consulting clinical and forensic psychologist dated
6 March 2015.  He found that your general level of insight was clouded by history of drug use and mental health problems.  He described your mental health problems as complex.

27In Mr Cummin’s opinion, you suffer from major depressive disorder of moderate severity and recurrent in type.  He was also of the opinion that your history of illicit drug use has relevance to your mental health history.  He was of the view that you needed ongoing and intensive mental health treatment and that your prognosis was guarded.  I take the contents of Mr Cummin’s report into account.  Notably, he does not necessarily draw a direct link between these conditions and your offending.  He does not offer any opinion as to how these conditions would impact on your time in custody.  I note that three reports of
Dr Aaron Cunningham were also tendered.  He opined that you suffer from autism spectrum disorder.

28Mr Cummins nor Mr Jackson agreed with this diagnosis.  Ultimately, it was not pressed that I should find that you do suffer from that condition, nor was any basis on which such finding would impact on your sentence proffered on your behalf.  Whilst it appears that you are someone that has been diagnosed with schizophrenia, the evidence before me is that your condition is currently being managed.  In combination of the reports provided, which include those to which I have already referred, I am not satisfied that the decision of Verdins and others has application. 

29In assessing your prospects for rehabilitation otherwise, I am told that you have successfully completed a number of courses whilst on remand and confirmation of this has been tendered.  This is to your credit.  You have gained employment within the prison system, in the kitchen, which I understand is a well sought after position.  You have also been the victim of an assault within the prison system, which has left you with injuries to your leg.  I am told that you have undergone two separate operations and are presently still undertaking physiotherapy. 

30This has made you somewhat fearful in the custodial setting and has placed some difficulty on your physical ease of movement.  I am satisfied that this aspect has made your time in custody more difficult than it has been for you in the past.  You have told your mother and Mr Cummins that you see the events of 6 February 2017 as life changing for yourself, as well as it has obviously been for your victim, in the sense that you do not wish to return to drug use or to driving offences.  I can only hope that your present resolve remains live until the point in time that you are released into the community.

31You have pleaded guilty without testing any of the evidence.  I accept your plea of guilty represents you taking responsibility for your offending behaviour.  Your plea of guilty, clearly has utilitarian value and has saved the court time and expense, as well as the trauma associated with victims being required to give evidence.  I am satisfied that your plea is a demonstration of some remorse and facilitates the course of justice.

32The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim. 

33I am also required to balance the interest of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.  I also adhere to the principles of both totality and proportionality.

34Your counsel contends that I should consider a longer than usual period on parole, given your previous compliance with parole orders and the benefits of having your supervised release into the community.  I am satisfied that there are benefits in your supervised release into the community.  I am not satisfied that all the relevant sentencing considerations can be properly accommodated by taking such a course. 

35I now turn to sentence. 

36In relation to Charge 1, reckless conduct endangering persons, you are convicted and sentenced to two years imprisonment.  In relation to Charge 2, negligently cause serious injury by driving, you are convicted and sentenced to four years and four months imprisonment.  All licences held are cancelled and disqualified for a period of four years.  This is the base sentence.  Nine months of Charge 1 is cumulative on Charge 2. 

37Bearing in mind principles of totality in relation to the related summary offences, you are to be dealt with as follows: 

The charge of driving whilst disqualified, you are convicted and sentenced to twelve months imprisonment.  All licences are cancelled and disqualified for a period of two years.  Two months of this sentence is cumulative on other sentences imposed this day.

On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to two months imprisonment. 

On the charge of fraudulent use of number plates, you are convicted and sentenced to fourteen days imprisonment.  Each of those sentences on those two charges are wholly concurrent with each other, and the other sentences imposed this day.

The total effective sentence is one of five years and three months imprisonment.  I direct that you serve three years and nine months before being eligible for parole and that 371 days are reckoned as served.

38Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed, if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective of six years and nine months imprisonment, with a minimum of four years and three months, before being eligible for parole.  Is there anything further?

39MR ROPER:  No, Your Honour.

40MS AVIS:  No, Your Honour.

41HER HONOUR:  All right, well we will stand down.  If you could remove the prisoner and I will stand down very temporarily.  Thank you.

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