Director of Public Prosecutions v Wilson
[2023] VCC 2015
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01793
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON WILSON |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2023, 23 October 2023 | |
DATE OF SENTENCE: | 2 November 2023 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2015 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea following sentence indication hearing - Negligently causing serious injury reckless conduct endangering serious injury; failing to render assistance after motor vehicle accident.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2020] VSCA 169
Sentence: Total effective sentence of 2 years 6 months imprisonment with a non-parole period of 1 year 8 months imprisonment; 24 days presentence detention; 6AAA declaration – 3 years 2 months imprisonment with a non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.J. Pickering | Office of Public Prosecutions |
| For the Accused | Mr J. Portelli | Leanne Warren & Associates |
HER HONOUR:
Introduction
1Aaron Wilson, you have pleaded guilty to an indictment containing one charge of negligently cause serious injury, which carries a maximum penalty of 10 years' imprisonment; one charge of reckless conduct endangering serious injury, which carries a maximum penalty of five years' imprisonment; and one charge of failing to render assistance after a motor vehicle accident, which carries a maximum penalty of 10 years' imprisonment.
2At the hearing of your plea in mitigation of penalty, one related summary offence was uplifted into the hearing, and you provided your permission for me to deal with that charge in the hearing, and you pleaded guilty to that charge, namely failing to report accident to police where a person injured, which carries a maximum penalty of eight months imprisonment or 80 penalty units in the circumstances of this case.
3The circumstances in which you came to commit those offences are set out in the summary of prosecution opening for plea dated 2 October 2023, which was tendered by the prosecution in your case (Exhibit A).
4In addition to the matters developed in oral argument, your counsel relied on plea submissions dated 6 October 2023 (Exhibit 1), a psychological report prepared by Rebecca Fakhri dated 29 September 2023 (Exhibit 2), a bundle of three character references (Exhibit 3), and a letter of apology from you (Exhibit 4).
5I have had careful regard to each of those documents in formulating my reasons for sentence, as well as considering carefully the matters developed in oral argument, when determining the appropriate sentences in your case.
Circumstances of your offending
6Your offending occurred on 24 March 2021. At the time, you were aged 36, and were residing at the Shakespeare Caravan Park, in Hamilton. You were the holder of a full Victorian drivers licence and were the registered owner of a green 2009 Holden Commodore.
7At approximately 3.00 am on that date, you drove the Commodore out of the caravan park, with Bryce Neill, then aged 17, and Robert Howarth, then aged 25, as your passengers. You drove to an address in Dempster Street, Hamilton to collect Molly Richardson, who was then aged 20. You then drove around the back roads of Hamilton, and Mr Neill moved into the back seat, with Ms Richardson, and Mr Howarth in the front seat.
8You drove towards Warrnambool, along the Woolsthorpe-Heywood Road. The speed limit was 100 kilometres per hour, and Ms Richardson estimates that you were driving at speeds exceeding 50 kilometres per hour above the limit over the next 45 minutes.
9At approximately 3.40 am, your Commodore was approaching the intersection between Woolsthorpe-Heywood Road and Penshurst-Warrnambool Road, where your Commodore was seen by witness Timothy Featherstone, who was driving a prime mover on the Penshurst-Warrnambool Road.
10At this time, the road was wet and it was raining, with poor visibility.
11As you approached the intersection travelling east, and Mr Featherstone approached the intersection travelling north, he slowed the prime mover, as he was concerned that you were going to cause a collision.
12He had his high beam lights on, to try to warn you of his approach to the intersection, and he observed that you were then travelling in excess of the speed limit.
13
You failed to obey the Give Way sign at the intersection, and entered the intersection at approximately 120 to 140 kilometres per hour. Mr Featherstone did not see any brake lights activated. The Commodore mounted a concrete skirt of the traffic island in the intersection and became airborne, crossed a grassed nature strip, and collided with a tree approximately 35 metres from the roadway.
Mr Featherstone could see the rear of the Commodore lift up, as it went through the intersection.
14The force of the impact between your car and the tree caused the Commodore to rotate 180 degrees, and the front passenger side wheel was torn off. All of the airbags activated. This is the offending referable to your Charge 2 of reckless conduct endangering serious injury; and is part of the offending referable to your Charge 1 of negligently causing serious injury.
15Mr Featherstone drove into a mobile phone signal about 10 minutes away and called Triple 0 for help.
16You were uninjured, and able to leave the vehicle, and you encouraged the other occupants of the car to flee with you from the scene. Mr Howarth and Mr Neill were fortunately able to exit the Commodore unassisted, but Ms Richardson was initially unable to escape the Commodore without help. You left the scene on foot, saying to Mr Howarth that you were going for help, but you did not return. This is the conduct referable to your Charge 3 of failing to render assistance after a motor vehicle accident; and your related summary offence of failing to report accident to police where a person injured.
17At approximately 7.15 am, which I interpolate is approximately three and a half hours after your offending, you arrived at the Hawksdale Post Office and asked for a phone charger. About 30 minutes later, you were collected by an unknown person. You did not return to assist the other occupants of the Commodore.
18As a result of your offending, Ms Richardson suffered serious injuries and was treated at the scene by ambulance paramedics before being airlifted to The Alfred Hospital for treatment. The serious injury that was caused by you negligently driving a motor vehicle comprised:
· comminuted spiral fracture through the mid-shaft of the femur;
· a ruptured spleen requiring the removal of her spleen;
· laceration of the kidney and adrenal glands; and
· collapsed lung.
19Ms Richardson was understandably unable to work after her serious injury due to the mental trauma, and she now finds it difficult to travel as a passenger in a vehicle.
20
Dr Jason Schreiber of the Victorian Institute of Forensic Medicine opines that the injuries were life threatening, that without the multiple treatments at hospital,
Ms Richardson would be dead or have severely impaired functioning, that she will have permanent scarring from the collision, and that she will have no capacity for work as a result of the injuries for a significant period. The serious injury that you caused Ms Richardson is the balance of your offending referable to your Charge 1, of negligently causing serious injury. Here, I interpolate, that whilst
Ms Richardson has not provided a victim impact statement, I infer that you have caused her a significant and lasting serious injury, and enduring trauma as a result of your negligence. You also left her in the state of serious injury that you caused her without rendering or summoning assistance or reporting the incident to police. I am relieved to say there was another person at the scene who could assist her after you abandoned her in that state.
21Mercifully, Mr Neill and Mr Howarth were largely uninjured, and were taken to hospital for observation only.
Police investigation, arrest and interview
22Police attended the scene, and a sketch of the intersection was made. The Commodore was examined by Victoria Police mechanics who stated that there were no faults or failures in the vehicle which would have caused or contributed to the collision.
23
You were uncontactable for four days, and police arrested you in Colac on
28 March 2021. You provided a partial 'no comment' interview, as is your right; however, you also provided the following comments in explanation of your collision:
· when you went around the corner, the traction control must have been off, as you slid across the grass, and you were doing all you could to control the car;
· you tapped the brakes prior to entering the intersection;
· you claimed you were driving at the speed limit of 100 kilometres per hour;
· you could not remember any other vehicles being in the area;
· you left the scene to get help, but then saw that ambulances were present so you did not return. You also told police that you were disoriented and scared.
Plea of guilty and timing, introduction to remorse
24You were charged on 13 February 2022, which is a period of ten and a half months after the date of your offending. The matter proceeded in the committal stream at the Magistrates' Court, culminating in a committal hearing, which proceeded by way of straight hand up brief on a plea of not guilty to all charges, without the need for witnesses (save and except for one witness who was required to attend for compulsory examination) being cross-examined. I will indicate that I put the examination of that witness to one side for the purpose of the present discussion. The matter proceeded through a series of procedural listings in this court, and following a sentence indication hearing on 11 July 2023, I provided an indication as to the total effective sentence I would be likely to impose if the matter resulted in a plea of guilty, and you indicated an acceptance of this indication.
25This is a plea of guilty that has occurred at a middle stage of proceedings, but prior to the court setting the matter down for trial, and without causing stress and inconvenience to any witnesses who would otherwise been called to give evidence at committal or at trial.
26You have also saved the court and the community the time and expense of a trial. This is of special utilitarian significance in the current era, where at the time of your plea, the effects of the pandemic continued to linger upon the listing of trials.
27I take into account in mitigation of sentence your pleas of guilty and their timing, the utilitarian benefit of those pleas, and also the fact that I find your pleas are indicative of some remorse, evidenced by those pleas, your explanations of your offending to forensic psychologist Rebecca Fakhri, and your letter of apology. I mitigate sentence on each of these bases and will return to the issue of remorse when I turn to your personal circumstances momentarily.
Personal circumstances
28You are now 38 years of age and as I have mentioned, you were 36 at the time of your offending.
29You were the only child born to parents who separated when you were aged around three, and at that time you lived with your mother. You and your mother moved to Geelong, and you relocated to Mooroolbark when you were aged around six. Your mother re-partnered when you were eight or nine, and I am told that your mother has worked in a nursing home in Nunawading for approximately 30 years, and your stepfather works in a senior welding role at an organisation in Mitcham.
30You have two younger half siblings born in 1995 and 1997.
31You attended the Bimbadeem Heights Primary School, followed by two years at Heathmont College, then your family moved to Coleraine, and you completed years 9 and 10 at Pembroke College in Hamilton, and you left school in the first term of Year 11.
32You then reconnected for the first time with your biological father, and when you were aged 17, your father agreed that you could come and live with him in Terang. After that move, you found work as a concreter, and remained in this role for around four or five years.
33At the age of 20, you commenced a long-term relationship, which lasted for around 14 years, and there are three children to that relationship. All three of your children now reside with their mother in Ballarat. The relationship broke up in 2018, and I understand this to have been a great cause of distress and anguish for you.
34Over the last 14 years, you have worked across a number of different industries, including at a knackery, in forestry, at a nursery and in irrigation. Your counsel has told me that in the last two years you have returned to concreting work.
35After your separation, you went to live with your mother at her home in Chirnside Park, and there you worked performing irrigation work for parks and arenas around Melbourne, but unfortunately you lost this job during the COVID‑19 pandemic.
36In early 2020, you moved to your grandmother's house in Drysdale, and you provided assistance to her in the form of yard work, shopping and cleaning in exchange for board. You eventually moved back to Hamilton, and your counsel has described this period, as involving you spending time with people that you would not normally associate with.
37I have received a letter from your stepmother, who has told me that about six months ago, after losing contact for three years, you contacted her out of the blue, and asked if you could come and live with your father and her. They took you into their home, and you and your father immediately undertook the big job of bringing their overgrown garden into order. You have been living with them for six months, and you have provided your father with assistance in the care of his pancreatic condition, diabetes, and arterial flutters, and have also been of support to your stepmother, who is aged 72, has cataracts and struggles to care for her partner without your assistance.
38These six months have represented a turning point for you, you have enrolled in a myotherapy course and once the consequences of your actions are behind you, you intend to commence a career in myotherapy, start up a lawn mowing and handyman service, and return to support your father in his daily needs. I am prepared to allow some modest mitigation of sentence on the basis that this sentence interrupts the good work that you have provided in support of your father and stepmother, and your lack of ability to care for them while you are serving this sentence weighs upon your mind.
39You have appeared before the court on five previous occasions, including an appearance in January 2002, where you were placed on a good behaviour bond without conviction for the offence of shop steal; an appearance in September 2004, where on charges of burglary and theft, you were without conviction placed on a community based order; and an appearance in December 2014, on offences of cultivate and possess cannabis, where you were fined without conviction.
40In September 2018, on charges of cultivate, possess, traffic and use cannabis, you were convicted and placed on a community corrections order for 12 months. This community corrections order was breached, and you were fined with conviction in November 2019.
41I have also been provided with your prior history under the Road Safety Act 1986, and I note in May 2006, you committed offences including exceed prescribed concentration of alcohol, being a learner driver, drive without an experienced driver, drive without L plates and drive without L plates displayed, for which you lost your licence for six months and were fined; and in August 2020, you were convicted of speeding, and your licence was suspended for three months.
42Concerningly, whilst this offence occurred on 24 March 2021, in the weeks surrounding the event, you committed three other serious driving offences for which traffic infringement notices issued, i.e.:
· on 28 March 2021, a traffic infringement notice was issued for driving a motor vehicle whilst a prescribed concentration of drugs was present in blood or oral fluid, with the date of offence being 2 February 2021, leaving your licence being suspended for six months from 28 March 2021; which was four days after this event;
· on 23 April 2021, a traffic infringement notice was issued for exceeding the speed limit by 25 kilometres per hour or more, but less than 30 kilometres per hour, with the date of offence being 12 March 2021, for which your licence was suspended for three months from 23 April 2021; and
· on 26 April 2021, a traffic infringement notice was issued, again for you driving a motor vehicle, whilst a prescribed concentration of drugs was present in blood or oral fluid, with the date of offence as being 28 March 2021, a mere four days after this very serious offence, for which your licence was suspended for six months from 26 April 2021.
43The facts of your present offending, which involved you leaving the scene otherwise than in accordance with your obligations, and being uncontactable for a period of days, have meant that police were unable to test your breath and blood, which would have occurred in the aftermath of your offending, had you complied with your obligations.
44
I have the benefit of a psychological assessment and report prepared by
Rebecca Fakhri in this matter. She has told me that you were diagnosed with depression in 2019 by your general practitioner, and were prescribed anti-depressants, which caused you unpleasant side effects, and led to you discontinuing that medication between 2019 and the beginning of 2023, when you started taking Desvenlafaxine, and Diazepam. You have from then until now remained compliant with this medication and told Ms Fakhri that it has made a noticeable improvement in your mood. She considers that you have symptoms of anxiety, and depression. Fortunately, you have never experienced admission to a psychiatric ward, or any experience of psychosis. You have, however, experienced suicidal thoughts between 2019 and 2022.
45In 2019, your cannabis usage escalated to your using ecstasy and methamphetamine. Concerningly, your usage of methamphetamine continued in the approximately eighteen months after your offending, until a period twelve months ago.
46At the commencement of this year, you referred yourself for alcohol and other drugs counselling, and you engaged in five sessions via telehealth.
47Ms Fakhri considers that in 2018, you would have met the criteria for adjustment disorder following the breakdown of your relationship, and this condition has potential to develop into a major depressive episode of general anxiety disorder if the symptoms do not abate. The author, somewhat generously in my view, attributes your Stimulant Use Disorder to 'self-medication', as opposed to considering that perhaps your persistent use of drugs to excess, could have exacerbated your inability to cope with the challenges you faced at the time.
48At the time of your assessment, your psychometric results indicated that you were experiencing moderate symptoms of anxiety and depression, apparently mitigated by your use of appropriate medication. You experience anxiety in connection with these proceedings, which I hope will resolve somewhat once you can put the actual court hearings behind you. As submitted by your counsel, Verdins factors five and six are potentially enlivened, and I am prepared to allow some modest mitigation of sentence in acceptance of that submission.
49In relation to your offending, you provided Ms Fakhri with a self-serving account, which is difficult to reconcile with the alleged circumstances of offending. In relation to your charges of leaving the scene, I sentence you on the basis that you did just that, as I have not been provided with any evidence that you waited at the scene until an ambulance arrived (apparently summoned by a person not yourself). Ms Fakhri noted the evidence of your remorse.
50Ms Fakhri has administered relevant testing and has opined that you are a moderate risk of reoffending, based inter alia upon your criminal priors, ongoing mental health issues, substance use, and psychosocial circumstances including engagement with negative peers. I am cautious about your prospects for rehabilitation based on these factors, but I do note that you have ceased drug use in the past twelve months, and in the last six months, you have sought out circumstances that support you socially, such as the company of your family, your course, and your interest in developing your small businesses.
Objective criminality; moral culpability; purposes of sentencing
51I consider each of your indictable offences to be reasonably serious examples of that offence. You were travelling at a speed considerably in excess of the speed limit at a time when the road was wet and visibility was poor, so that care was needed, you failed to give way, and the inevitable result was causing one of your young passengers serious injury and endangering the other two. Rather than take responsibility for your actions, you left the scene. This served your own purposes, and ignored your responsibility at least to Ms Richardson, who was by then seriously injured. Your conduct was shameful and self-serving, and your moral culpability is high, as I hope you appreciate.
52In cases of this nature, the need for general deterrence is high; in order words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need for specific deterrence, and the need to denounce your behaviour and to punish you for your offending. This is especially so given your driving history, and the fact that this negligent driving occurred in the midst of a spate of other driving offences. This is your first period in custody which I trust and infer with be of salutary effect upon you and I take that into account.
53The sentencing exercise also obliges me to allow for your rehabilitation, which I intend to do.
Sentencing submissions, and relevant sentencing principles
54I note that there has been a delay in the finalisation of the matter of over two and a half years, during which the sentence which you face has weighed heavily upon you. I mitigate sentence on this basis.
55As I have mentioned, your pleas of guilty was entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID‑19 pandemic. There was a significant utilitarian benefit in you entering pleas of guilty to the preceding charges.[1]
[1]Worboyes v R [2020] VSCA 169
56I have taken the totality principle of sentencing into account in structuring my sentence, as I am obliged to do.
Sentence
57On Charge 1, of negligently cause serious injury, you are convicted and sentenced to two years imprisonment, which is the base.
58On Charge 2 of reckless conduct endangering serious injury, you are convicted and sentenced to 15 months' imprisonment, three months of which must be served cumulatively upon the base and upon other sentences.
59On Charge 3 of failing to render assistance after a motor vehicle accident, you are convicted and sentenced to 21 months' imprisonment, three months of which must be served cumulatively upon the base and upon other sentences.
60On the related summary offence, you are convicted and sentenced to four months' imprisonment, to be served concurrently.
61This is a total effective sentence of two years and six months' imprisonment, and I order that you serve one year and eight months before parole eligibility.
s6AAA Sentencing Act 1991 declaration
62Were it not for your pleas of guilty in this case, had your matter proceeded to trial, but resulted in guilty verdicts, I would have imposed a sentence of three years and two months' imprisonment, with an order for parole eligibility.
63I declare that you have served 24 days of pre-sentence detention which is to be deducted administratively from this sentence.
64In the circumstances of the case, I will cancel your client's licence and disqualify him from driving for a period of five years from today.
65Thank you, I will stand down then.
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