Director of Public Prosecutions v Worboyes

[2020] VCC 1099

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02468

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER WORBOYES

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2020
DATE OF SENTENCE:	24 July 2020
CASE MAY BE CITED AS:	DPP v WORBOYES
MEDIUM NEUTRAL CITATION:	[2020] VCC 1099

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – 1 charge reckless conduct endanger serious injury – 1 charge recklessly cause serious injury – 1 charge accident, fail to stop, serious injury – Skid meet or illegal hooning event – victim was an attendee of the illegal hooning event – Cooperation with the police -

Legislation Cited: s. 23, s.17 Crimes Act 1958 - s.61(3) of the Road Safety Act 1986 - s.89A(2) Road Traffic Act

Cases Cited:DPP v Pepper [2015] VCC 948 - Harrison v The Queen [2015] VSCA 349 – DPP v CharlieDalgliesh (a pseudonym) [2017] VSCA 360 - Ibbs v R (1987) 163 CLR 447 – DPP vWeybury [2018] VSCA 120 – Spanjol v The Queen [2016] VSCA 317 - Guseli [2019] VSCA 29 – Boulton v The Queen [2014] VSCA 342 - Hutchinson v The Queen [2015] VSCA 115 – Azzopardi v The Queen  [2011] VSCA 372

Sentence:Total effective sentence of 2 years and 5 months imprisonment, with a non-parole period of 1 year and 4 months imprisonment. With conviction order that Mr Worboyes’s motor vehicle licence be cancelled and disqualified for a period of 4 years from 1 April 2019.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Office of Public Prosecutions
For the Director of Public Prosecutions	Mr C. Nikakas	Haines and Polites

HIS HONOUR:

1Mr Worboyes, you have heard the matters that have been very competently put on your behalf by Mr Nikakis and you have heard the issues that I have raised today.  It is necessary so it is on the public record, but most importantly, for you that I deal with these matters before I pronounce sentence.  So it is going to take a little bit of time and I apologise for that, but you will understand it is important and in your interest, that you, when you finally get a copy of this sentence, fully understand the reasons for the sentence. When I come to the end, I will ask you to stand when I pronounce the sentence.

Circumstances of the Offending

2Mr Tyler Worboyes, is an apprentice roof tiler.  He is now aged 26, having been born on 28 March 1994 and was 25 at the time of this offending.  In the plea that was heard before me on 12 June 2020, Mr Hannan appeared for the Director and Mr Charlie Nikakis for the defence.  The particular criminal behaviour that we are concerned with took place at Derrimut on 27 March 2019 and the relevant indictment number is K10889924.

3The first charge on that indictment is one of by reckless conduct, in this instance driving, placing persons in danger of serious injury. That took place at approximately 11:00 pm on 27 March 2019, and involved a burnout conducted by Mr Worboyes at an industrial estate in Australis Drive, Derrimut. It is an offence against s.23 of the Crimes Act, the seriousness of which is demonstrated by the fact that Parliament has prescribed a maximum penalty of five years imprisonment.

4In regard to those circumstances, Exhibit C was tendered.  It is CCTV footage which I have watched a number of times. It does not cover the actual circumstances that are involved in Charge 2, however, it does show us Mr Worboyes at the meet.  It shows us that when he took off to do his burnout, it was some 45 seconds, not a long period, till when he returned.  Thereafter, he stopped for four or five seconds, that is, after returning to a position where you can see him on the CCTV, and then drove off. 

5The second charge, which happened in the actual intersection, was of recklessly cause serious injury to the victim, Mr Gueli-Quaresma. Such is an offence under s.17 of the Crimes Act, Parliament has prescribed a maximum penalty of 15 years imprisonment.

6The third charge in the indictment is one of fail to stop after the accident, actually it is the render assistance aspect which is important here, when he ought reasonably to have known that a serious injury had resulted. This is a breach of s.61(3) of the Road Safety Act, for which the maximum penalty again is quite high, having been in recent times increased because of the number of times where people leave the scene of an accident. It was agreed prior to the plea, that Mr Worboyes' culpability was reduced, it was acknowledged by the amendment that he was pleading guilty on the basis of constructive notice only.  Hence a reduction in criminal culpability. 

7The prosecutor tendered Exhibit A which was the prosecution summary in this matter and Mr Nikakas accepted that the facts set out there were the facts upon which I am to sentence Mr Worboyes.

8In regard to the victim, Exhibit B was tendered, which was the medical discharge report from the Royal Melbourne Hospital.  What I want to do is read Exhibit A, which at [6], [7], and [8], gives an excellent summary of the consequences of this crime. [6] says this:

'The victim sustained immediate serious injuries.  He was unconscious while people around him were trying to arouse him.  After a short time, he was able to be aroused.  He suffered immense pain to his back and hips.  Others kept him still, face down until an ambulance arrived'.

9[7]:

'The victim arrived at the Royal Melbourne Hospital at 12.15 on 28 March complaining of tenderness to the lower spine and pelvis.  A CT trauma scan was performed, revealing: (a) Left superior and inferior, pubic ramus fracture with complete left sided sacral fracture, extending to the face joining the L5 vertebrae. The unstable spinopelvic fracture required surgical stabilisation'.

10[8]:

'The victim underwent an L4 sacrum posterior spinal infix on 31 March 2019.  He was discharged from the Royal Melbourne Hospital on 4 April, with a view to have surgery in six months, to remove the spine metalware, to allow more flexibility of the lower spine'.

11As has been indicated this morning, the victim impact statement has been updated.  The original victim impact statement, Exhibit D, spoke firstly as to the physical impacts.  Mr Gueli-Quaresma says:

'I'm no longer able to pursue a career of a fully qualified mechanic.  My healing will be a long term journey.  I'm fortunate to have a caring and loving family, but, the mental healing is dependent on me alone.  This path is long and a work in progress.  I am to have further surgery in October'.

12As counsel have said this morning, part of the reason for the adjournment was to receive an update. Exhibit D1, tendered today, is a further victim impact statement dated 22 July 2020.  I read from [1]:

'I've had multiple injuries, including three breaks in my pelvis, spinal distortion and nerve damage on both sides of my lower back.  Undergoing physio, MRI scans and counselling'.

13As to Mr Gueli-Quaresma’s financial loss, he is still not back at work.  Mr Gueli-Quaresma says he does not know when he will return to work.  He estimates his loss to date of some $70,000 and I think as rightly put by Mr Nikakis, those matters no doubt will be taken up by TAC. I think one has to take into account the circumstances of how this accident occurred and that Mr Gueli-Quaresma, may well have some issues in such claim.

14At [4] under the emotional trauma, Mr Gueli-Quaresma says he struggles to find happiness on a day to day basis.  Under [5], he notes that he would no longer be able to continue in his career as a mechanic, no doubt because of the flexibility needed and will need to take on the challenge of adapting to a new career.  I have not heard Mr Nikakis challenge any of that.  It seems to me in the circumstances, given the injuries, a very restrained and reasonable reaction.

15In the record of interview, if I again come back to the learned prosecutor's summary at [13], Mr Worboyes cooperated with the police.  I have read this record of interview a number of times and clearly, given his age and the type of event, he no doubt had no perception of the change in his life that was going to be brought about by what happened.  As Mr Worboyes said, he was home with friends during the day and they agreed to go to the skid.  That he attended Australis Drive, there were hundreds of people there and he was in his own ute, watching others do a skid.  He made the decision that he was going to do a skid, planted his foot and entered the intersection, as I indicated for the time period as shown on the CCTV.  He thought to achieve that, would travel at somewhere between 40 to 50, in circumstances where there are hundreds of persons standing about, answer, 166.

16At 174 in the record of interview Mr Worboyes said 'What you do is you plant the foot and you make the tyres spin'.  At 176 he confirmed the speed, that was referred to in [13] of the prosecutor's summary.  As the prosecutor points out, and this is set out at 179, he went into the intersection, did his skid and then there was a lot of smoke and all that and people were saying 'Stop, stop the car'.  Mr Worboyes said he got out and saw what happened.  He did not know what to do at the time.  He saw someone on the ground.  In his driving, he had not felt anything.  He said he tried to help at the time, but he was in danger.  They were bashing the car and screaming out at him and as a result, he felt he was scared and decided to decamp.

17As I said, as shown on the CCTV, apart from getting out of the car and looking, Mr Worboyes then did stop again.  He said at approximately 184 'I've never been in trouble all my life.  Apparently I've just hit someone.  It was such a bad feeling'.  The officers were pushing him insofar as asking him why did he do it.  The answer probably is as true as reality is, he simply said in answer to question 388, 'Everyone else does it'. At answer 384 he said, as to his actions it was 'Crazily dangerous' and with that, no one will disagree.

18As correctly put by Mr Nikakis, Mr Worboyes has no criminal priors as such, however, he does have concerning driving priors.  These priors under the Road Traffic Act, are made convictions pursuant to s.89A(2) of that Act.  Mr Worboyes has had three suspensions of license from age 18 through to 24.  All of those suspensions relate to speed, where he was between at least 25 and up to 35 kilometres over the speed limit.

19Apart from those infringements, Mr Worboyes has also had an appearance in Moama in September of 2013, when being a probationary driver, he was over the appropriate figure. He had a reading apparently of .049 and as such, lost his license for some six months. Pursuant to the provisions of s.61(6) of the Road Safety Act, he has to suffer loss of license and cancellation for a minimum period of four years, I intend to make such order date from 1 April 2019.  There is no pre-sentence detention.  I have signed the forfeiture order this morning which is not objected to by Mr Nikakis.

20Given that the prosecutor was aware, having read the defence submissions, Exhibit 1, that ultimately Mr Nikakis was seeking from this Court a community corrections order in some form. The prosecutor in, Exhibit D, submitted, for the purposes as set out in the Sentencing Act, but the particular purposes of general deterrence and denunciation, that in this case a period of gaol was inescapable, to use his words.

21Mr Hannan submitted to the Court the sentence needs to deter the very audience which was attending this skid.  Also as to, in particular, Charge 2, he submitted that the serious consequences of this reckless driving need to be taken into account.  In particular, that these injuries to the victim took place from the deliberate action, albeit it is a reckless charge, to utilise his car in that way, where he was well aware of the hundreds of persons there, and of persons located close to the road.

22In his submission, the prosecutor referred me to a number of decisions.  The first of those was DPP v Pepper [2015] VCC 948, which was a decision of my brother Judge Mullaly of 4 June 2015, where serious injury was caused to a passenger in circumstances of speed.  In fact, it was to three passengers, one passenger became a partial paraplegic as a result. The prisoner had no priors and indeed, had very strong character evidence was presented.  He was, a young offender and had to be sentenced as such, being as I understand, 19 at and 20 at the date of sentence.  As a result, he was given YTC of 16 months. 

23His Honour at [79], [85] and [95] spoke in particular of the tension between the need for rehabilitation, when one is dealing with young offenders, of whom I put Mr Worboyes in such category, despite his older age, and appropriate punishment for serious offending.  Importantly of course, when looking at this as a yardstick comparison, the maximum that could be imposed for the offence before Judge Mullaly, being a charge under s.319(1)(a), was five years.  Here in regard to Charge 2 of course, the maximum set by Parliament is three times that.

24I was also referred by the prosecutor to DPP v Tait (2017) VCE 415, a determination of Judge Wilmoth. This had in fact been a trial under the charge of which Mr Worboyes faces, that is a s.17 Crimes Act, in which the jury had acquitted Mr Tait. Hence, Her Honour had to deal with the sentence under s.23 of the Crimes Act which had a maximum again of five years. The facts probably are the most similar here, as this was also a skid meeting, however, in particular, the marked difference is that no injury had been caused, and this was only a s.23 count.

25Again at [10] of that determination, Her Honour spoke of the tension when sentencing, between the very important concept of rehabilitation and the serious offending. In the circumstances of that case, Her Honour gave a community corrections order with a conviction. It is to be noted that like Mr Worboyes, the prisoner in that matter, had similar driving priors. In particular, at [122] and [123], the Court looked at types of aggravating behaviour associated with such driving, which seems to me to be similar to the types of things one has to contemplate here, being a s.17 case, but being a s.17 case brought about by driving. It was noted insofar as the aggravating factors set out therein by the current President, that at least two would not be relevant here, and that is, the driving taking place by way of intoxication and the inattention. Clearly there is plenty of attention here to achieve a result by way of the skid, however, unfortunately not enough attention as to the risk.

26I also note the guideline judgment in Harrison v The Queen [2015] VSCA 349, relating to a s.24 offence, where it is to be noted that the maximum in that matter was increased in 2008 to 10 years.

27All of the above, with the limitations that I have expressed, can be used to some degree as yardsticks. But of course as detailed by the Court in Dalgliesh [2017] VSCA 360. What this Court must do is deliver individualised justice to Mr Worboyes, based upon the circumstances of this case.

Criminal and Moral Culpability

28Coming then to the issue of criminal and moral culpability.  On the spectrum of seriousness for offending, as detailed by the High Court in Ibbs v R (1987) 163 CLR 447, [452], and by the Court of Appeal in Weybury [2018] VSCA 120, [34] and [54], I classify Charge 1 as being on such spectrum as between low to moderate. Charge 2 as moderate, in particular given the limited aggravating factors, despite the recklessness, and Charge 3, I assess as low.

Role of the Victim

29Coming then to what I discussed with the learned prosecutor this morning, the Spanjol factor. Spanjol [2016] VSCA 317 being a decision of the Court of Appeal in Victoria.  This is based upon the statement of the victim, which is in depositions at p.22.

30The victim was driven to an area close to where the skid meeting was to take place by an ex-girlfriend.  He was aware of the skid meeting and walked to the particular position where he was located.  He was one of hundreds of young persons at this meeting, predominantly male I presume, and right at the edge, that is, between the footpath and on the road.

31He was apparently watching a VX Commodore, which had come through earlier than Mr Worboyes and was now through the intersection.  He then apparently was watching another Commodore also skidding and then though he was not clear about it, he noted the headlights of a ute, which was obviously
Mr Worboyes' ute.  The Court of Appeal in Guseli [2019] VSCA 29, [67], as to consideration of what is known as the second limb of Spanjol said the extent of its operation has not been determined.

32In this case, and I make no criticism, but it is something that I have to take into account, the victim had  gone voluntarily to this skid meeting, had placed himself on the edge of the road where cars were going to perform donuts in front of him, in circumstances which I consider he thereby, exposed himself to obvious risk, and as such, the second limb in Spanjol is established.

33As pointed out in Guseli, the focus must of course never be moved from the admitted reckless driving of Mr Worboyes.  I do, however, in the circumstances, consider that a modest reduction in sentence should be effected, due to the operation of the Spanjol second limb.  This comes about because the meetings are notorious.  As Mr Nikakis submitted, to attend was a breach of a local bylaw,  which prohibits attending such an event or encouraging people at such an event. Based upon his own statement, the victim has failed to keep a proper lookout as to Mr Worboyes' car and failed to concentrate on that car, given that he was at the edge of the road, because he was looking at the others who had previously come through.

34I make the point that Guseli of course was a culpable driving case, and I refer to this only for the parallel.  However, as made clear by the Court in Guseli, [71], Mr Worboyes has an obligation to take reasonable care.  It was clear to him that there are hundreds of people attending at this, 'hoon event’, and he was well aware of people being close to the road, where the victim was located.  Hence, despite the findings I have made about the victim's role, the standard of care to be maintained by Mr Worboyes was not diminished by the victim's failure to not expose himself to obvious risk. As I say, in all the circumstances, insofar as punishment, while this does not reduce the criminal culpability, a modest reduction in sentence will be as part of the synthesis taken into account by me. 

Plea of Mr Worboyes

35I then come to the plea of Mr Nikakis.  He tendered Exhibit 1, his written submission dated 1 June 2020 and spoke to that submission.  As to the offending, he described it being a spur of the moment decision.  Well that is true in the sense of attending this meet, but clearly it was not a spur of the moment.  He was indeed waiting in line to performing this driving.  He waited for people in the intersection to complete their donuts and then entered quite deliberately, seeking to do the same himself.

36As Mr Worboyes indicated in the record of interview, he had done such donuts on a number of occasions before and was well aware that in the recent past, people had been injured at these meets, by such activities.  I do accept, however, that as Mr Nikakis said, his cooperation in the sense of his record of interview was full and frank.  It was also put that the offending really only took a short time.  Well given the type of offending, it is almost implicit that a short time is involved, as the CCTV shows,  it is only 45 seconds from the time he left stationary position, having gone through the intersection, to arriving back, after having made contact with the victim.

37As to Charge 3, I accept on the basis of the comments made in the record of interview as to what happened to him after he got out of the car, and in particular, the statements made by the victim in his statement, as to the manner in which the driver was spoken to, that Mr Worboyes was subject to threats that the car had some form of attack made upon it.  Clearly, as the CCTV shows, he subsequently stopped, but drove off again after 3 to 4 seconds.  I also accept that he went to the hospital to enquire as to the victim, however, was rebuffed by the victim's friends, and perhaps family.  I also accept that he voluntarily went to the police the next day and ultimately made the record of interview on 1 April 2019.

38As I have said, Mr Nikakis correctly submitted there are no criminal priors, but there are relevant driving priors.  I accept the remorse shown and indeed, as referred to this morning, insofar as Exhibit E is concerned, that remorse is further demonstrated in the report made to the Community Corrections officer.  I accept that Mr Worboyes has been open and cooperative to the authorities in this matter.

39I consider that his plea was particularly valuable. A lot of these authorities, as has been demonstrated by me, given the cases given to me by the learned prosecutor, do not involve this more serious charge under s.17. The alternative of course under the Crimes Act is one of s.24. I do take into account that this is, to s.17, a very valuable plea. By that plea, I accept Mr Nikakis' submission that Mr Worboyes is entitled to an appropriate discount, not only because it is a valuable plea, is utilitarian effects justice and I accept demonstrates remorse by Mr Worboyes. He is a person who has strong family support. He is a person who has an excellent employment history.

40I take into account, all of the circumstances as set out by Mr Nikakis in [11] and spoken to by him in his oral submissions. Further the COVID-19 risks that this Court is well aware of, and were further spoken of by Mr Nikakis today, clearly we all know of the imminent risks in the present system and consequential stress and inconvenience to prisoners.

41On being sentenced to gaol, a person is going to be subject, at least initially, to a fourteen-day isolation.  One is equally going to be subject when one is out of that, to half day lockdowns in any prison in the current system.  One is also going to be subject to a totally reduced number of visitors, be it friends or family, and of course the situation of living in an environment where such risks exist.

42Mr Nikakis further spoke of the experiences that Mr Worboyes has had since this accident.  The dramatic consequences have been something at which I should take account of.  He, in his plea, asked me to look at the role of the victim which I clearly have and that is the reason why in the end, he sought from me, a community correction report.  As I said to Mr Nikakis at the time, that should not be taken as an indication that I had formed a view on the matter, clearly I had not, but that I would take into account all those matters in considering that issue.  Again, that is why Mr Nikakis has been given further opportunity this morning, follow the tendering of the positive CCO report, Exhibit E.  In that regard, I want to thank the officer, Mr Squerzi for the preparation of such report.

43However, in considering such submission, not only do I take into account the submission of the learned prosecutor that such is not appropriate, but I also take into account the authorities that relate to Boulton [2014] VSCA 342. In particular, the comments made in Hutchinson v The Queen [2015] VSCA 115, by Priest JA who said 'that Boulton should not be seen as a get out of gaol free card,’ in situations where a sentence of imprisonment is necessary in a given case, to satisfy the various purposes for which a sentence may be imposed'. I am reading from [17].

‘One of the purposes for which a sentence may be imposed is of course to punish the offender to an extent, and in a manner which is just in all of the circumstances,’

44Which is really another way of quoting the Dalgliesh principle that I earlier spoke of.  But His Honour went onto say this:

'There will be cases, indeed many cases, where having regard to the seriousness of the offending, a community corrections order will be insufficiently punitive to satisfy the need to punish an offender in a manner which, in all the circumstances, is just'.

45Unfortunately, in this case Mr Worboyes, despite the valiant efforts of your counsel, I have concluded that those principles apply here. It would not be just to allow you to be sentenced by way of a community corrections order in any form.  It is inescapable, as was put by the prosecutor, that you must be sentenced to a period of gaol on the totality of the circumstances in this case.

46The event in which you took part was inherently dangerous to your knowledge.  You were aware that such events had previously caused injuries. On this day, you willingly, by your reckless behaviour, not only participated, but firstly created a risk to all who were there, and caused serious injuries to Mr Gueli-Quaresma.

47As you have heard today, and as confirmed in the two victim impact statements, as a consequence of your criminality, you have caused grave physical and mental impact to him, the full consequences of which are still unknown.  In those circumstances, the principles of general deterrence and denunciation, as put by the learned prosecutor, are particularly important.  Specific deterrence is also a factor in this case, given your particular priors.

48I accept that, as earlier put by Mr Nikakis, you have limited criminal priors and that there has been otherwise on your behalf, good plea material.  You are still relatively young and obviously I accept, the principle of rehabilitation is particularly important, and I do take it into account.  However, given the serious consequences and injuries to Mr Gueli-Quaresma and the risk created by your driving, and your objective criminality, the role of rehabilitation must in the sentencing calculus, be necessarily reduced, to use the words of Azzopardi [2011] VSCA 372, [34] to [36]. Yes Mr Worboyes, if you will please stand.

49On Charge 1, the charge of conduct placing another in danger of serious injury, Mr Worboyes you will be sentenced to a period of imprisonment of one year.  On Charge 2, the recklessly cause serious injury, you will be sentenced to a period of imprisonment of two years.  On Charge 3, failing to stop and render assistance at the accident, you will be sentenced to a period of imprisonment of six months.  Using the sentence on Charge 2 as the base sentence, I order that three months of the sentence on Charge 1, and two months of the sentence on Charge 3, be served cumulatively upon the base sentence, making a total effective sentence of two years and five months.

50In regard to that sentence of which you will be sentenced today of two years and five months imprisonment, I order that the period that you must serve before being eligible for parole is a period of one year and four months.  There is no pre-sentence detention. 

51Mr Worboyes, probably this is the last thing you need to hear, but I am required by Parliament to tell you that it is important to understand the effect, and the benefit to you, of pleading guilty.  Had you not pleaded guilty, the sentence I would have given you is not 26 months with a minimum of 16, but a period of 38 months with a minimum period of 29 months.  It is of course very difficult, given all of the factors put to me, and that I have taken into account, to make that assessment as required by Parliament on the basis of only one factor, your plea of guilty.  However, I do as best as I can.

52As I said, your license will be cancelled and you will be suspended from obtaining another license for a period of four years from 1 April 2019. I have signed the forfeiture order. 

53Mr Worboyes it gives me no joy to sentence a young man like you to gaol.  I hope when you read these sentencing remarks, you will understand that there was no alternative, given your behaviour on this day.  Mr Nikakis any matters I need to attend to?

54MR NIKAKIS:  No, Your Honour.

55HIS HONOUR:  Mr Prosecutor?

56MR HANNAN:  No, Your Honour.

57HIS HONOUR:  Yes Mr Worboyes can be taken down, thank you.  Good luck Mr Worboyes.  Yes I thank counsel for their assistance in this matter which clearly I did not find easy, but unfortunately that is part of the job.  Yes thank you both.

58MR HANNAN:  Your Honour pleases.

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