DPP v Castle

[2020] VCC 937

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

AT GEELONG
CRIMINAL JURISDICTION

CR 20-00298

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIANA CASTLE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	27 May 2020
DATE OF SENTENCE:	25 June 2020
CASE MAY BE CITED AS:	DPP v CASTLE
MEDIUM NEUTRAL CITATION:	[2020] VCC 937

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms A. Addamo	Leanne Warren & Associates

HIS HONOUR:

1Briana Castle, on 11 May 2019, you were driving north along Thompsons Road in North Geelong.  You crossed into the oncoming lanes and collided head on with a car being driven by the victim, Mr Georgi Jigalin.  The victim, then
88 years old suffered life-threatening injuries from which he did not recover.  He died two days later on 13 May 2019.

2You have pleaded guilty to the very serious crime of culpable driving causing the death of Mr Jigalin.  In addition, you have pleaded guilty to two charges of possession of a drug of dependence.  In the circumstances, I will say little about these crimes until passing sentence. 

3A more detailed outline of the circumstances was put by the prosecution in a written summary for the plea.  From that agreed summary and the video evidence tendered, together with the helpful submissions made on your behalf by your counsel, what can be said is that around 3.30 pm, on 11 May 2019 you were driving in a northerly direction along Thompsons Road.  You were driving at a speed well in excess of the 60 kilometre speed limit.  No precise speed can be calculated.  What is alleged is that your speed was in the range of 74 to 96 kilometres per hour.

4Further, by not adequately controlling your car, you allowed your car to travel to or be 1.48 metres onto the incorrect side of the road.  This is a very significant distance, meaning that collision was in practical terms, a head-on or like a
head-on collision.  The victim was driving well within his lane.  He had another car to his left.  Your poor driving left him with nowhere to go and no time to do so.

5As you fully accept, the collision and the victim's death is entirely your fault.  Further, in your blood at the time of the collision, was significant amounts of illegal drugs.  You had amounts of GHB and methylamphetamines, that would have impaired your capacity to drive safely.  The drugs you had taken meant that you were quite simply incapable of proper control of your car, as the collision causing the death of a perfectly innocent man reveals.

6Plainly, with the drugs you had taken, and were still in your system, you should not have been driving at all.  You should not have been driving, you should not have been driving so fast, you should have been in a state so you could keep your car in your lane.  What was put by way of broad context and explanation, was that 11 May 2019 was for you, personally a very sad day.  It was the first anniversary of your mother's death by suicide.  I will elaborate shortly on this matter and the other tragedies that you have suffered.

7For present purposes, it was said that you became particularly upset in the car as you drove because your mother's favourite song played at her funeral came on the radio, and you became emotional and distracted as your car drove down Thompsons Road.  The intensity of your emotions can be discerned by what was written by you in the notebooks you had with you in the car.  It was explained that these notebooks were kept by you as part of your treatment for grief at the loss of your mother.

8As I have said, I will return to these matters when dealing with your personal circumstances and your mental health at the time.

9You yourself were injured in the collision and spent two weeks in hospital with a ruptured spleen, punctured lung, bowl and kidney injuries.  You have slowly recovered, though you still suffer some ongoing difficulties in particular, abdominal pains.  This is a particular difficulty for you in custody.

10The offence of culpable driving carries a maximum term of 20 years.  In recent times, Parliament has classified culpable driving as a category 2 offence, requiring imprisonment unless certain specified criteria are established.  It is not said any of those criteria arise in your case.  It is simply not in dispute that the only sentence open to me is one of imposing imprisonment upon you.

11Parliament has also deemed culpable driving as a standard sentence offence. The standard sentence for culpable driving is eight years' imprisonment. Thus pursuant to s.5A(1)(b) of the Sentencing Act, eight years' imprisonment is the sentence for an example of culpable driving in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.  The standard sentence of eight years importantly is a legislative guidepost, as is the maximum term of 20 years' imprisonment. 

12The standard sentencing regime still requires me to apply the well-established process of an instinctive synthesis of all relevant matters relating to the offence and to you as the offender.  I must assess the overall gravity of your offence, as has always been part of the sentencing process.  I must as I will, explain how my sentence relates to the standard sentencing.  With respect to the gravity of your crimes as an overview, in considering all aspects of this example of culpable driving, this is a grave example of that always serious offence.

13That conclusion is established in my view by reason of the combination of the interconnected factors, being first, you were drug-affected and should not have been driving at all.  You were not capable of controlling your car, as to simply keeping it in your lane.  The risks drugged drivers present to other road users and to themselves remains in my view underappreciated, especially by drug users.  It is the responsibility of every driver to be alert, careful, and considerate of the safety and wellbeing of all other road users.  It is plain that taking drugs can and does impact on a driver's capacity such that others are endangered. 

14Secondly, you were driving well in excess of the speed limit, speeding on suburban roads is inherently dangerous, making collisions more likely and further excessive speeds increases the likelihood of serious injury or death if a collision does occur.

15Thirdly, you were on a major four-laned arterial road in Geelong.  Your duty was to remain in your lane, not drift out into the incoming traffic.  To do so involved a serious falling short of what is required of all drivers.  So, in this case, there is the conglomeration of excessive speed, drugs making you incapable of proper control, and the highly risky behaviour of failing to stay in your lane.

16As to your moral culpability, I have taken into account to a degree, your emotional distress arising from the fact that it was the anniversary of your mother's death and that memories were sparked by her favourite and funeral song coming onto the radio.  However, this is not a case of momentary distraction, far from it.

17I have also taken into account that you have previously driven whilst
drug-affected and received a warning by way of a penalty which cancelled your license.  This was in 2017.  Further to this, you were at the time of this collision, on an undertaking given to a court to be of good behaviour.  That penalty of the undertaking arose because you were dealt with by a magistrate in November 2018 for relying on a false document, in order to get re-licensed following the cancellation of your license for the drug driving.  Those are concerning relevant matters, that in my view, elevate your moral culpability in respect of this offending.

18Put simply, you should have learnt an important lesson about driving while affected by drugs, that you did not and ultimately caused the death of a decent, much-loved man leads to the inevitable conclusion that this and all other factors makes your moral culpability particularly high.  I do not re-punish you for your earlier offences, and I do not add this circumstance to my assessment of the gravity of your offending.  Rather, it only operates to elevate your moral culpability to some extent.

19Your other prior criminal culpability arise due to your connection to drug use and drug users.  They are relevant to my task of synthesising all matters for and against you.  They fall into the latter category.

20I have not yet spoken about the impact of the loss of the deceased to his family.  After some consideration, the family decided not to write any victim impact statements; rather, a member of the family spoke to the prosecutor about the sentiments of the wider family.  I will summarise those matters shortly.  However, what stands out is the great dignity and generosity of the family in these very sad circumstances.  It seems that the approach taken by them mirrors the decency and fine characteristics of the deceased himself.

21So much was explicitly said by the spokesperson for the family.  It was said that the family do not hold any ill feelings towards you, Ms Castle.  It was said that their father, Mr Jigalin was a generous man who had endured much in his life coming to this country as a refugee.  Having gone through what he had to go through, he never wanted others to suffer, and the family firmly believed they were speaking for him, when they emphasised that you should learn from this tragedy, use your time to become educated, so that in future you too, like
Mr Jigalin can be a decent, contributing member of your community.

22Mr Jigalin is much missed, and the sentiments expressed make it clear why that is so; he was a model and his family have absorbed what he stood for.  As I have said before, victims and what they say so often educate judges, and thus, the wider community as well without the fine and diverse qualities of decent members of our society.  That is the case here.  It again gives emphasis to why we must do what it is required of all of us, to respect and not endanger our fellow citizens, especially on the roads.

23As to your personal circumstances, you are now 27 years old.  You were 26 at the time of the offending.  You have many good years ahead of you, though unhappily for you, a portion will be spent in gaol.

24You were raised at first by your father and mother until they separated when you were eight or so.  You did maintain a good relationship with both your parents.  Your mother re-partnered, and you are close to your step-father and your two step-brothers.  You had an older brother, but he took his own life when he was 17.  You were then in Year 11 and just a year younger than he was.  To that point, it seems, you had been sure and steady at school and in your emotional life, but his death deeply affected you; you were close to him and his suicide was so inexplicable.

25You were unable to apply yourself and you left school, working at a supermarket for the next eight years or so.  Your emotional difficulties were further exacerbated when a year later, your father died very quickly after a diagnosis of pancreatic cancer.

26You took to using cannabis and ecstasy after your brother died in 2009.  You moved into the use of methylamphetamines in 2014.  Your drug use increased upon the death of another family member, 2017 again, sadly due to cancer.  You were unable to keep working.  Your mother was your main emotional support.  However, as referred to, she took her own life on 11 May 2018.  Your mother's suicide was deeply distressing to you, understandably.  You resorted to using drugs more frequently, including large amounts of GHB.

27Those that know you well amply describe this very difficult time for you.  Your step-brother wrote of how you were a bright personality with good prospects as a teenager.

28He went on,

'Unfortunately, Briana's life changed forever when her brother Shaun took his own life.  She struggled with her education afterwards and left school'.

29He spoke of tragedy striking again when your father died and he wrote,

'This is when I saw Briana get really affected.  She left her job and it was common knowledge she was experimenting with drugs to ease the pain of everyday life'.

30He wrote further,

'One year prior to Briana's offence, her mother Lisa took her own life.  It was apparent to me at this time, Briana's mental stability dwindled, and she moved from experimenting with drugs to using often'.

31He spoke to you of your response to what you had done.  He said,

'Briana was devastated to learn that she'd taken the life of someone else.  She insisted she send a letter to the family of the deceased in an attempt to ease any pain, not to defend her actions, but to console the family.  She informed me that she did write that letter through tears and struggle.  It is obvious to me that she will regret her actions that day for the rest of her life'.

32Your step-father, Peter Windus wrote in similar terms to his son.  A number of long-standing friends also wrote heartfelt letters and I have taken into account what all of them have had to say.

33As an example, Ms Kayla Innes whose occupation is in the field of mental health and family services, described you generally as being, 'A kind, caring, and loving woman' that she knew for many years from the age of about 17.  She said you have experienced multiple traumatic events throughout your teenage years and early 20's, in regard to the sudden loss of your mother and brother to suicide and the loss of your father to cancer.

34She says,

'In my opinion, Bri struggles with deep emotional pain, trauma, and ongoing grief, and has at times been known to try and mask the unbearable feelings and emotions she experienced with illicit substances in the hope of temporary relief from her reality.  Unfortunately though, this resulted in Bri making some bad decisions, driving whilst substance-affected and causing an accident resulting in the death of another.  This is something she will have to live with for the rest of her life and for what I know about Bri, I know she will forever regret getting into the car that day'.

35All that wrote letters emphasised your deep remorse.

36You were examined by a medico-legal psychologist, Ms Lechner.  She offered the opinion that you struggle with depression since the suicide of your brother, and the deaths of relatives that I have referred to, including the suicide of your mother.  Ms Lechner said you suffered from immense grief and used drugs to cope.  You told Ms Lechner you were yourself contemplating suicide, but your driving on 11 May 2019 was not at all a failed suicide attempt.  Your brother made this point, and it is a matter that I completely accept.

37Psychometric tests undertaken by Ms Lechner unsurprisingly revealed intense depression.  In my view, taking what Ms Lechner reported but also what has been written by those who know you best, your friends and family, and also what has been written by you yourself, make it clear you have suffered significant trauma, sadly with repeating aspects.  Your grief, depression, and self-medication by drug abuse are plainly, but deeply entrenched consequence of what has been your hard experiences over the past 10 years.

38What is evident is how deeply affected you are by what you caused that day; that is, the death of Mr Jigalin.  Those close to you who have seen you since the tragedy speak of how deeply remorseful you are.  I accept you are genuinely remorseful.  You feel for the family.  You wrote a letter to them which I will read some length.

39You said to them,

'I don't expect forgiveness, as I will never forgive myself for causing you this pain'.

40You explained to them that the day was the first anniversary of your mother's suicide, and you also explained to them the loss of your brother by suicide.  You refer also to the other tragedies.

41You say,

'I am not looking for sympathy.  I'm just trying to explain, I was not well mentally, physically, and emotionally'.

42You say,

'For the year after mum's death, drugs and alcohol were my coping mechanism, and through my turmoil, I have caused you, a completely innocent family, pain and suffering.  I am sorry for being the reason you are hurting.  I am sorry for being the reason your family will never be whole again.  I will never forgive myself for being the reason a life was lost'.

43You conclude,

'I know I'm still not okay and have an extremely long way to go.  I'll never be the same again, and neither will you.  I have made the worst mistake of my life, and I have to live with this for the rest of my life.  All I can do is vow to be a better person and get the help I desperately need so I never hurt anyone again the way I have hurt your family.  I am sorry from the bottom of my heart; I hope this letter brings some comfort'.

44You wrote to the court in an authentic way in the following terms.  You say to the court that you wish to express your sincere apologies and try what kind of person you are.

45You again emphasise,

'I am truly sorry that because I struggle with what I was going through, an innocent man lost his life, and innocent family was broken forever'.

46You explain how your increased drug use occurred after your mother's suicide.  You spoke of how counselling in the prison was helping you come to grips with your psychological trauma.  But that important work came to an abrupt end with the changes within the prison, due to the COVID-19 pandemic.

47You also add that you cannot see because of the COVID-19 restrictions, you cannot see your friends or the people that you see as your family, and you are a complete wreck.  But you are trying to find positive ways to manage your emotions.  You say that when you get out of prison, you are going to enrol in counselling courses, so I can put my life experience to good use.  You say that you are trying to come to terms with what happened, and that you are going to be spending a huge chunk of your life in prison, and it saddens you as you always wanted to have children and get married and continue with the memory of your mother and your brother to prevent if you could suicides.

48You say you are sorry for the pain you have caused; you are doing all you can to be the person you always wanted to be and not a disappointment to yourself, your step-father, and family.  You say that gaol is a place you never want to come back to.  You emphasise you have never suffered more than you have in the last nine months.  'I am so sorry'.

49As you said, you are doing all the educational, psychological, and vocational courses that you can in the women's prison.  That is to your credit.  You did proactively seek out counselling for your underlying grief and trauma.  This has been provided by West CASA who wrote of your progress, your commitment, and your growing insights.  These are important steps, the COVID-19 pandemic has as I have said, meant many important rehabilitative programs are unavailable or restricted.

50Prison is a much harder or more onerous place now due to the pandemic restrictions.  In particular, longer lockdown in cells, and not being allowed any visitors.  In your circumstances, I take into account to your credit all that you have done so far and have achieved in prison, and also by way of mitigation, take into account the harsher circumstances of your current incarceration.

51The steps that you have taken and the views that you have expressed do give me confidence that you will endeavour to and likely will achieve solid rehabilitative progress leading to you having a law-abiding future on your release.  I will do what I can to facilitate your rehabilitation but in practical terms, that is limited to allowing for a period of potential parole.  There are now aspects of the standard sentencing regime that impact on the ratio of the non-parole period to the head sentence.  I will deal with that when announcing the sentence.

52Your plea of guilty is an important expression of remorse.  It saved the deceased's family the trauma of a contested trial.  The community too has been saved resources, now so much more precious given jury trials are suspended, and delays are likely to be very considerable.  Your sentence will be less because of your valuable plea of guilty.

53As I have made clear based on many aspects of the evidence, you are deeply and genuinely remorseful.  You will never be the same.  You carry and will carry a heavy lifelong burden, which adds to the array of deep traumas you have had to endure in your life.  That said, it seems your remorse and contrition for the pain that you caused, makes you motivated to be a better, more positive person into the future.  This is important in many obvious respects.

54The purposes of this sentence are to denounce your criminal conduct, which caused the death of a decent man.  Most importantly, I must send a clear message to anyone who may think driving whilst affected by drugs is not highly risky and criminal behaviour.  The message is that if you drive with drugs in your system and kill another citizen, then you will go to gaol for many years.
As is the case here with you, Ms Castle, at your age, it will be some of the best years of your life.

55I have taken into account all aspects of the standard sentencing regime, including consideration of the relatively few sentences imposed for this crime under the standard sentencing regime thus far.  But each case is unique, as is this one.  By reference to all aspects that go to inform my instinctive synthesis, the sentence I will shortly announce in my view, properly reflects the gravity of your offence and the importance of courts and the justice system respecting the sanctity of life; to take another life is inherently serious.

56The sentence weighs properly the significant mitigatory matters personal to you and your deep remorse and plea of guilty.  It is always a grave step to impose a long sentence on someone such as you, but I cannot shirk that heavy responsibility.

57In the end, the sentence that I impose for Charge 1, culpable driving causing the death of Mr Jigalin, is eight years' imprisonment.  It is a sentence derived not because it is the figure for the standard sentence, but because of all factors including those arising because this is a standard sentence offence. 
The relationship to the standard sentence is because of the seriousness of the circumstances and the level of moral culpability and all the other factors I have mentioned probably at too great a length.

58The two offences of possession of the drug of dependence for Charge 2 and 3, I impose a sentence of one month for each of those charges.  Those sentences are to run concurrently with the eight year sentence on culpable driving.

59By operation of s.11A(4) the minimum non-parole period must be at least
60 per cent of the head sentence, unless it is in the interests of justice to be less.  In my view, a significant period of potential parole is well-justified in this case, but is not necessary, nor in the interests of justice, to be at the unusual level of less than 60 per cent.  The minimum term in my view that justice requires you to serve in prison is five years.

60You have already served 343 days in remand.  That figure having been reckoned; I declare that is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court, so that the prison authorities are left in no doubt that you have already served 343 days of the eight year with a minimum term of five years that I have just imposed.

61Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 10 years with a minimum term of seven years and nine months.

62I must make other orders and express findings. First, pursuant to s.89C(2) of the Sentencing Act, I find the offence of culpable driving was committed while you were under the influence of drugs, which contributed to the offence.

63Secondly, pursuant to s.89, I cancel your license and disqualify you from driving for a period of 28 months.

64Are there any other orders required?  There is an order or disposal in respect of various drugs and the like.  That order will be made.  Is there anything else required, Mr Moore?

65MR MOORE:  No, Your Honour.

66HIS HONOUR:  Ms Addamo.

67MS ADDAMO:  No, Your Honour.

68HIS HONOUR:  Thank you.  I will propose to leave the Bench and you may have some time, although you have to be careful about all that, Ms Addamo, with your client, as you would, if you were able to see her in a court room.  Follow what Mr MacIntosh says about how that - my associate about how that is to be done, to ensure that others that are online come off before you have your discussions.

69Thank you for your very considerable assistance in these difficult cases.

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