Director of Public Prosecutions v Zwiersen

[2016] VCC 1060

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00411

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY ZWIERSEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	06 July 2016
DATE OF SENTENCE:	21 July 2016
CASE MAY BE CITED AS:	DPP v Zwiersen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1060

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Ms M. Tittensor	Nevin Lenne Gross

Pages 1 - 12

 

 

HIS HONOUR: 

1Bradley Mark Zwiersen, you pleaded guilty to two charges of negligently causing serious injury, three charges of conduct endangering persons.  You have also pleaded guilty to some related summary offences, driving whilst exceeding the prescribed concentration of alcohol, driving whilst more than the prescribed concentration of drugs present in your blood, driving a motor vehicle that was no fitted with an approved alcohol interlock device by the holder of a driver's licence that is subject to such condition, having more than one passenger in a motor vehicle while the holder of a licence which required such a limitation and driving a motor vehicle with a blood alcohol content in excess of zero being the holding of a licence which was subject to that condition.

2The prosecution summary tendered at the plea was exhibited and will be retained on the court's file.  For purposes of this sentence, it will suffice to describe the circumstances of the offending in this way.

3On the night of 31 October 2014, a dual cab utility was driven by you on the Buffalo River Road generally south at a minimum speed of 141 km/h, which caused the vehicle to leave the roadway when you lost control of it and eventually it travelled onto the grass verge, causing the vehicle to trip and roll a number of times before coming to rest back on its wheels against a post and wire fence.

4As you lost control of the vehicle due to its excessive speed, you tried to negotiate a left hand curve and your vehicle began to rotate travelling across the roadway and off the road.  You then steered back onto the road surface by over steered causing it to rotate in the opposite direction onto the verge before the start of the roll which was caused by tyres digging into the earth.

5The speed zone was 100 km/h as defined by speed signs at that location and conditions were generally good.  There were no faults with the vehicle that would have contributed to these events.  The ute was registered to the father of one of the passengers, your friend.  It had seating and belts for five people but that evening, it contained six people with the sixth person lying across the laps of the men seated on the bench at the back.

6At the time of these events, you were 20 years of age.  You are now 21.  At the time, you were the holder of a probationary licence and you were subject to a demerit points bond which commenced on 21 August 2014 and was in place for a year.  You were required to display red P plates which you were not on the night, have a zero blood alcohol level, which you did not on the night, and you were only permitted to carry one peer passenger.  From April 2014, you were supposed to drive a vehicle with an interlock device. 

7Earlier in the evening, Jack Rouse, who was 18 years old, Wilson McNally, aged 20, Matthew Dwyer, aged 20, Jack Hodges, aged 21, William Toohey, aged 20, and Jack Daley came to your home in Myrtleford.  All except Daley were drinking alcohol.  You all drank until you left in two cars for the Railway Hotel.  The evidence in the depositional statements disclose that you drank a substantial amount of alcohol as did most of the others.  Daley drove McNally and Toohey, dropped them off before going home.

8At the hotel, you all drank more alcohol.  Some of you then proceeded to another hotel and were later joined by the others despite you and Toohey being banned from that establishment.  CCTV footage inside the hotel shows you stumbling around in the bar area and being unsteady on your feet.  The group eventually gathered outside the hotel and then walked to the ute with the intent to drive to a party in Lake Buffalo.

9The sensible precaution of having a designated, non-drinking driver was not adopted, although it could have saved damage and injuries.

10You got into the driver's seat with the other five men seated in the vehicle.  Daley stated that when you have beer, you leave your brain at home and, "You can't reason with him," he said.  Hodges states that you were definitely over the limit and should not have been driving.  However, he took the seat in the front passenger seat.  Toohey as well acknowledged all of you had too much to drink to drive, but did not think too much about it as he took his seat in the ute, on the back seat.

11Rouse suffered minor injuries as did Toohey and Hodges.  Dwyer, seated in the rear cabin area, suffered life threatening injuries and was transported to the Alfred Hospital by air ambulance helicopter.  Wilson McNally was also on the laps of Toohey and Rouse and unrestrained by a seatbelt.  He suffered life threatening injuries and was similarly transported to the Alfred.

12When samples were gathered from you, alcohol and ecstasy, MDMA, were detected.  At the scene, the police had conducted a preliminary breath test and had secured that sample.

13Dr Odell, an experienced forensic physician with the Victorian Institute of Forensic Medicine compiled a report in which outlined the findings and his opinion.  The total body content of alcohol at the time of the collision was equivalent to a blood alcohol concentration of between 0.15 and 0.199.  This is three to almost four times the prescribed minimum of 0.05.  Although the actual blood alcohol content while driving may have been lower.

14The blood level of MDMA was probably higher than the 0.08 micrograms per litre found in the blood sample.  With this level of blood alcohol, further affected by the presence of MDMA, you would have been incapable of proper control of the motor vehicle.

15Matthew Dwyer suffered multiple injuries.  He had a left orbit floor fracture of the bone which supports the eyeball, an ear laceration and partial amputation resulting in long-term scarring and disfigurement.  A manubriosternal subluxation of the breast bone, six to eight rib fractures with a collapsed lung and haemothorax, that is a collection of blood within the cavity around the lung.  An injury to the abdominal wall causing a partial herniation of the appendix, a haematoma to the top of the right kidney, kidney bruising, an injury to the pancreas, minimal aortic injury to the major blood vessel, which can be catastrophic and can cause rapid death.  He had an L5 vertebral fracture, L2, L4 transverse process fractures, L3, L4 spinas process fractures, a fracture of the sacral alar, a part of the pelvis.  As a result, Mr Dwyer had several admissions to hospital and operations including spinal surgery and surgical repair of the orbital floor.

16Following the spinal surgery, a deep wound infection of the bone graft area created serious complications for him.  A number of these injuries are considered life threatening, substantial or protracted as explained in the statement of Dr Sungaila. 

17Wilson McNally suffered multiple injuries, bilateral scalp haematomas indicting blunt trauma to both sides of the head, diffuse axonal injury, which is a serious brain injury involving brain haemorrhages and increased brain pressure.  The treatment consists of the insertion of a drain into the ventricles of the brain.  There may be a variety of long-term cognitive deficits following this injury.  He suffered extensive pulmonary contusions, right and left pneumothorax, manubrial fractures with retrosternal haematoma as well as front rib fractures, a Grade 3 right renal lacerations, neck column factures, lumbar spine posterior fractures with thoracic spine bone bruising.  He required breathing via an endotracheal tube and a bronchoscopy.

18Hospital records as of January 2015 noted McNally still suffered problems with short term memory and concentration.  The brain injury is likely to cause long term sequelae.

19A victim impact statement was received from McNally's mother.  She writes of the devastation of the family of the effect on her son and his hospitalisation and recovery.  He has suffered depression, social anxiety and frustration.  The financial and social impact on him and on his family has been considerable and continues to upon each of them, significantly.  I take that statement into account.

20Though no victim impact statements were received from the others, I infer from their injuries, particularly that of Mr Dwyer, that similar sequelae will follow in his case.

21Negligent causing serious injury carries a ten year maximum penalty, while conduct endangering persons has a maximum of five years.  In 2008, the parliament increased the maximum penalty from five to ten years.  So I take into account the maximum as indicating the fundamental gravity of the principal offence.

22The degree of negligence required to constitute negligently causing serious injury is constituted by acts or omissions taking place in such circumstances which involve such a great falling short of the standard of care, which a reasonable person would have exercised and which involved such a high degree of risk that serious injury would follow, that the act or omission merits punishment under the criminal law.

23The consequence of imprisonment have a dual purpose.  To punish the offender and to deter drivers, particularly young drivers, from driving irresponsibly.  Although the car is an integral part of all of our lives, a car driven negligently is capable of producing catastrophic consequences for victims.  You were indeed fortunate that you did not kill one or more of your friends and / or yourself.

24In this case, the negligence displayed was of a high degree.  The speed at which you were travelling on a dark road at night far exceeded the applicable limit.  Your blood alcohol reading and the presence of MDMA aggravated this negligence and when in control of a vehicle with which you were not familiar, and carrying the lives of five others dependent on your driving.  This involved a great departure from the standard of care required of a driver and in my view, falls within the higher rank of seriousness of this mid-level category of offending, although short of the worst imaginable case.

25In my view, with the context of your culpability being high, I consider the recent decision of the Court of Appeal in Harrison [2015] VSCA 106 and the view expressed by the Court that there should be some increase in the sentence imposed in order to give effect to the parliament's decision to increase the maximum penalty. In following the reasons in Harrison, I do not consider myself bound by the sentencing practices for these offences of recent times.  I have reviewed the case as outline in the body of the decision, the chart provided in that case as well as the circumstances in Harrison and Rigogiannis themselves.  Rigogiannis appears a comparable circumstance case held that a sentence of four years with a non-parole period of two years and nine months would have been inadequate and the sentencing judge not been constrained by current sentencing practice.

26The objective seriousness of the offence is such that the importance of general deterrence and denunciation is primary in this sentence.  As the importance of these factors increase, there is a corresponding diminution in the mitigating effects of factors such as your youth and prospects of rehabilitation.  It is precisely because just an offence as the present is frequently committed by young offenders who display all too often a tendency to drive dangerously that your youth must be given less weight.  I consider however that this aspect is important nevertheless and I must temper the penalty with considerations of mercy because of your age.

27The policy of the criminal law to encourage the rehabilitation of the youthful offender remains a significant and profoundly correct policy and it therefore remains relevant.  Ultimately, the best protection for the community remains in the rehabilitation of a young offender.  I will give appropriate weight to your youthfulness as a worthy object of this sentence.

28I take your personal circumstances into account.  First, I accept that your plea was indicated at an early stage and will receive a discount on your sentence as a result of the plea.  I also take into account the utilitarian value of the plea.  You have avoided an expensive and unnecessary trial.

29You have two relevant prior convictions.  In May 2013, without conviction, you were placed on a bond for careless driving and failing to report after the careless driving concerning going around a corner too fast and crashing into a post.  I note that on the occasion, you were ordered to attend the Cool Heads Program.  A program designed to educate and inform young drivers about the dangers of driving at speed and negligently.  Unfortunately, such a well-regarded program failed to change your behaviour.

30In July 2013, only a couple of months later, your licence was cancelled.  You were disqualified for six months for exceeding the prescribed concentration of alcohol when it was between 0.07 and 0.09.

31These priors are very relevant and show that in the short driving history that you have had, you have shown basically a disregard for the privilege that is your driving licence and the road law generally.  They inform the assessment as to your prospects of rehabilitation.  Despite these priors, in view of your general background and recent resolve and your age, your prospects remain probably good.

32However, these priors have weight in considering principles of specific deterrence, emphasising that the punishment of the court must deter you from such future conduct as well as others.

33I accept you are remorseful and showed great concern for your friends involved and injured in the accident.  You did express this concern at the time, that emergency services and police attended and during your interview.  I accept that you are regretful of your actions and as a result of living in a small rural community, you have also experienced personal and public denunciation.  This has been expressed, I was told, both by physical confrontations and through social media, which can make and has made life difficult.

34You were raised by your parents in Porepunkah.  They separated when you were about 14 and you moved with your mother and siblings to Myrtleford.  She re-partnered and you have a good relationship with your stepfather.  Your father is now back in the district having had a period of employment in Perth.  You were educated partly through Year 12 and you began an apprenticeship.  You have been active in sports throughout your life and have played local football.  You have had a number of part time jobs during schooling and your apprenticeship was in civil constructions, which you have completed.

35One of the significant impacts of the sentence will be that your current employment will be affected.  You were able to secure employment with Precision Skate Parks, a company that designs and constructs skate parks.  It is, you have indicated, your dream job with good future prospects.  Your offending has significantly jeopardised this future and in a serious consequence of your incarceration, it will impact on you and I take that into account.

36You began drinking at about 17 and although your patterns have varied, you engaged in binge drinking on occasions but your social and recreational activities are clearly linked to the consumption of alcohol.  Heavy drinking is clearly problematic for you.  When this is coupled to a lack of maturity, poor understanding of risks posed by alcohol, predisposition to risk taking behaviour, this drinking is always going to present you with significant problems.

37Mr Newton, an experienced psychologist, diagnosed you with an alcohol use disorder.  Nothing is clearer to the court, particularly in the country, where the link between recreation and alcohol is so ingrained that there is a desperate need for a change of culture when it comes to the consumption of alcohol.

38In June 2013, if only to emphasise these problems, you were assaulted by glassing at a local hotel.  You suffered a number of deep lacerations to the face requiring surgery.  The upshot was ongoing facial paraesthesia and facial droop.  This matter had a significant psychological impact on you and it was not long after that you were dealt with for your drink driving.  You suffer from nightmares currently as a result of these matters and ongoing anxiety.

39In November 2014, you consulted a GP over your distress and were referred to counselling with Trent Jones and have continued to see him over a period of months.  In April of last year, you commenced a relationship with a young woman.  Whether this survives your predicament is yet to be seen but for the moment, she is supportive of you and appears to be a steady influence in your life.

40I was told that you have made efforts to change your drinking patterns, though you still drink.

41I take into account that there was a delay of almost 11 months before you were charged, though that time was largely due to the desire to see how the serious injury would resolve, but with the procedural time taken after, that represents a significant period during which the threat of reclusion has been over your head.  I take this into account, although you have been on bail during that time.

42I sought an assessment from Community Corrections in relation to your suitability for a community corrections order so as to avail myself with that option in sentencing.  It is of note that while you express remorse to the interviewing officer, you also appeared to minimise your conduct to emphasise the voluntary nature of other people's presence in the car and that the decision as to who was to drive had been left to a game of chance, which was considered a somewhat blasé attitude by the interviewer.  You admitted that you continued to have issues with alcohol.  I should say that the contents of the assessment have not influenced me, or my ultimate disposition.

43I accept that you have the significant support of a loving family and friends and they are positive factors in your prospects for rehabilitation.

44I have considered the imposition of a combination sentence and have simply concluded that it is inappropriate in all the circumstances for such an option as it would not adequately satisfy the sentencing purposes of punishment, deterrence and denunciation.  I have taken into account the report of Mr Newton.  I take into account particularly his opinion that you are likely to internalise the punitive aspects of sentencing in a particularly intense fashion with some risk that you may manifest more intense anxiety related symptoms in the period of your incarceration.  Some mental health care during your sentence will be recommended.

45I accept your relative immaturity in the context of incarceration is a matter that I should take into account.  I have in this context also read the brief letter of Mr Jones about your current counselling appointments.  I have taken into account the references which were tendered on your behalf.  Your mother has written extensively of your friendly, caring and generous nature.  I take her letter into account as I do with that of your father.  Your grandfather and mother have eloquently written of your family orientation and the predicament you have undergone.  Your Grandmother as well as your step-grandfather have also of your respectful and generous qualities.  Your uncle, Joshua, your stepfather, your girlfriend, Breanne, your employers present and past have all contributed with fulsome testimonials about your good character and attest to the changes you have endeavoured to make to your life.  I have read each of these letters and I take them into account in my final disposition.

46On Charge 1 of negligently causing serious injury, you are convicted and sentenced to three years' imprisonment.  On negligently causing serious injury, you are convicted and sentenced to three years' imprisonment.  On Charges 3, 4 and 5 each of conduct endangering persons, you are convicted and sentenced to six months on each.  I order that nine months on Charge 1 be cumulative on Charge 2, the base sentence, and one month on each of Charges 3, 4 and 5 be cumulative on Charge 1.  That makes a total effective sentence of four years.  I order a non-parole period of two years and six months.

47But for your plea, I would have sentenced you to five years with a three and a half year non-parole period.  I understand there is no pre-sentence detention.

48In relation to the summary offences, on drive whilst exceeding prescribed concentration of alcohol, you are fined $500.  On exceeding prescribed concentration of drugs, Charge 14, you are fined $500.  On the breach of the alcohol interlock condition, you are fined $300.  On the breach of a licence condition in relation to passengers, Charge 18, you are fined $300 and in relation to the double zero, you are fined $200.  That is a total of $1800.

49I take into account that you have already been suspended from driving for some 20 months, which time you have already served.  I order that your licence be cancelled and that you be disqualified for a period of three years from today.

50You have been in custody in relation to this matter from the date of the plea.  I note that you have spent 15 days by way of pre-sentence detention, excluding today, which will be noted in the records of the court and will be dealt with administratively by Corrections.

51Was there an order for 464ZF?

52MR DEVLIN:  There was an application for 464, a forensic sample and there was a further - sorry, Your Honour, there was an application for 464 for a forensic sample.

53HIS HONOUR:  I do not think that was objected to, Ms Tittensor, is that correct?  Yes.

54MR DEVLIN:  I just want to make sure that I have not missed anything.

55MS TITTENSOR:  That is the only sample mentioned in the prosecution.

56HIS HONOUR:  I think that is right.  I will order that you undergo a procedure for the obtaining of a biological sample pursuant to that section.  I should inform you that when a request is made of you for a mouth scraping, which is not a painful procedure, for the obtaining of a sample for a DNA database, if you do not consent to that sample being taken, then an authorised police officer can use reasonable force to obtain a blood sample from you, do you understand?  I will sign that order when it is available to me.

57MR DEVLIN:  As Your Honour pleases.

58MS TITTENSOR:  If Your Honour pleases.

59HIS HONOUR:  Thank you.  I see that your family is in court, I will remain on the bench before you are removed.  Thank you, you are excused.

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