DPP V Haynes

[2022] VCC 59

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 21-02177

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY BRUCE HAYNES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2022
CASE MAY BE CITED AS:	DPP v HAYNES
MEDIUM NEUTRAL CITATION:	[2022] VCC 59

REASONS FOR SENTENCE

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR P. D'ARCY	Office of Public Prosecutions
For the Accused	MR S. MOGLIA	Armstrong Legal

HIS HONOUR: 

1Jeffrey Bruce Haynes, you have pleaded guilty to one charge of negligently causing serious injury.  That crime carries a maximum penalty of 10 years' imprisonment.  You have also pleaded guilty to two uplifted matters, one of committing an indictable offence whilst on bail and one of having drugs in your system whilst driving.  That indictable offence on bail carries three months.  The other matter has only a monetary penalty and in these circumstances what I am going to do is simply convict you and discharge.  That makes it a second conviction, which means that on that charge you will be losing your licence for 12 months and it will be cancelled and you disqualified for that period of time.

2On the charge of negligently cause serious injury your licence will be cancelled and you will disqualified from obtaining one for a period of 18 months and I direct that the two loss of licences be served concurrently.  I note from your counsel's submissions that you have not been driving in any event.

3The circumstances are that you are now 54 years of age.  You pleaded guilty at a very early opportunity and you get the benefit of that.  I accept that your plea of guilty and your conduct since all this has occurred, together with your remaining at the scene and accepting responsibility, indicates very appropriate remorse.  You must also get the utilitarian benefit of that plea of guilty.

4Trials such as this when they are conducted cause grief to everybody, emotional distress and the simple waiting for everybody concerned.  It has been avoided here and that is important.  You have now spent a significant period of time under worry as to what would ultimately be the outcome and I accept that plays a part in all this.  Your plea of guilty comes during the time of what I would describe as Worboyes and I accept that the plea of guilty would attract a utilitarian discount greater than might otherwise be the case and it should be an observable one.  Any sentence of imprisonment that I impose I am well aware will be undergone under COVID circumstances.  That includes being isolated, lack of personal visits, all sorts of difficulties, and I take those matters into account.

5You do have prior matters that have come before a court, including 0.05 and other types of driving offences; however, they are of some antiquity and it is not the situation here that there is any suggestion you were intoxicated or incapable of driving because of drugs and I will deal with that again in a moment.

6A brief summary of the matter is that you were the holder of a Victorian driver's licence and at the time of this incident you were on bail for possessing a drug of dependence.  At approximately 3 am on 10 May of 2021 on the Princes Highway near Fulham, which is a dual-lane highway with a speed limit of 100 kilometres per hour, you were travelling eastbound and unfortunately were in fact in the westbound lane.  Shortly prior to the collision people near Kilmany saw you travelling past them in an eastbound direction and you drove past them in the adjacent lane.  They did not think much of it until they reached the section of highway where it becomes a single lane.  They then realised that the vehicle they had passed had been travelling down the incorrect side of the highway.

7John Csillag was driving westbound on the Princes Highway at this time in his Ford Mondeo.  He pulled into the right-hand westbound lane to overtake a large truck being driven by Mr Marsh.  At that point when he was commencing to overtake he was hit head-on by you.  You had driven down the incorrect side of the highway for an unknown distance.  You were driving a Ford Falcon.  Both vehicles were traveling it seems within the speed limit.  There is certainly no suggestion of any speed over the limit.  Conditions were foggy, there was low visibility, and I will come back to that again in a moment.

8The force of the impact rotated Mr Csillag's vehicle clockwise and the truck driver was able to stop and went to the vehicle where Mr Csillag was trapped.  As I understand it, he was in the vehicle for some time before he could be extricated from it.  You, to your credit, were standing nearby, remaining at the scene.  A preliminary breath test was conducted on you and it was a negative result.  You, again to your credit, told First Constable Walton who arrived that you were driving the vehicle and you also said the same to the Country Fire Authority people that arrived.  Shortly after that, your own condition deteriorated and you were taken in an ambulance to hospital.  Mr Csillag was eventually freed by SES and CFA people and was transported to the Royal Melbourne Hospital in a serious condition by helicopter.  The injuries that he sustained I will refer to in a moment. 

9The situation is that you must have been on the incorrect side of the road for at least 700 metres as that was the first location at which you could have turned on to the incorrect side of the road.  It is not suggested that that occurred and I accept that you have no memory of this incident at all any more, and it would appear that you at some stage have verged on to the incorrect side of the road and remained there.  That means that you had been driving or alleged to be driving on the incorrect side of the road for at least 1.3 kilometres, perhaps more.  During that period of time you had driven past and failed to see warning signs, large red signs which appear and which essentially tell you that you are on the wrong side of the road.

10A short time prior to this you had stopped in Yarragon where you had had a sleep and in your record of interview you said that you may have fallen asleep.  I accept as was described that it was an extremely foggy night and I am very careful in circumstances such as this as to how I regard or how I view the moral culpability of the offending.  You did have methylamphetamine in your system and it is not put, as someone seems to have reported recently, in this case it is not put that that in any way contributed to the collision.  The reason that is referred to in court is because it is an actual offence itself.

11There is no suggestion of alcohol. It is a situation where I accept for these purposes that you did not make a deliberate act to get on to the wrong side of the road.  It was not an act of bravado, it was not an act of recklessness.  Unfortunately, it was a situation where I suspect, hampered by the thick fog, you either failed to, which you must have, or were unable to come to an understanding that you in fact were on the wrong side of the road.  It was in those circumstances that unfortunately Mr Csillag just waited for that moment in time to pass, clearly him having no knowledge whatsoever of your presence as he came around from behind the truck.

12I am well aware of the decision of Stephens which goes through all the aspects of moral culpability, and in this situation clearly a number of people would have been put at risk.  No one has given me the time frames for all this but clearly on the wrong side of the road in the middle of the night for in excess of a kilometre is putting a number of people at risk.  There is no suggestion of speed, no suggestion of intoxication, no suggestion of erratic driving, no suggestion of competitive driving.  I do not accept it was ignoring the warnings, I think it was probably not apprehending them.  No suggestion you were trying to escape police. 

13Any degree of sleep deprivation is problematic.  You said in your interview that you may have fallen asleep.  I certainly could not find that beyond reasonable doubt and accordingly it does not feature in this as an aggravating fact.  You did stop and your car was apparently in good condition.  You were not in a hurry and there is no suggestion you were on the phone or no distractions or anything like that.  This is simply a situation where in those circumstances in heavy fog you have not realised where you were and it has had dreadful consequences.

14In an objective sense from those points of view I regard the offending as at the lower end of seriousness; however, as I will explain in a moment, the injuries by Mr Csillag in my view are very serious injuries indeed and those matters have to play a part in this as well.

15The Crown opening which has been tendered has information that was provided by Mr Csillag and I have also read the victim impact statement.  In these circumstances I do not think quoting from them in any detail is going to assist anybody.  It is quite clear that he suffered dreadful injuries to his legs and I will refer to those in a moment.  He is unable to work.  He has gone from being a breadwinner to a dependant.  It has attacked his self-esteem, his ability to play with his children has been affected.  It has basically, as he said in his victim impact statement, been a life sentence for him.  Hopefully some sort of assistance can be given him.  He struggles to walk, he certainly cannot run.  Essentially, in terms of his physical capacity to enjoy life it has had dreadful consequences.

16He said that since the incident he has had ongoing wound care - this is back at the time when he made his statement - dressings changed.  Every third day he has had infections, he has had to go to physiotherapists, cannot move his right knee more than about 65 degrees.  As I understand it he still has difficulty with weight bearing on his legs and he does not think he will ever be fully weight bearing again.  He is in constant pain, he takes strong painkillers and he has ongoing circulatory problems in his feet.  He has also suffered ongoing issues with his pancreas and bowel due to that trauma.  He lost his independence, he is completely reliant on other people.  He certainly for a period of time could not shower or use the bathroom himself and he cannot be left alone for very long.  The children had to go and live with their grandparents for five weeks due to his inability to look at them.  It appears that he has PTSD-like issues relating to the collision and for a long time just seeing headlights gave him anxiety.

17He describes the serious financial stress that all this has caused him and in the victim impact statement just says that he basically has a carer and home help and is constant pain.  He has difficulty with mobility and socialising is challenging.  He says that a lot of the plans and hopes that he and his partner had for the future with their children have been taken from him by what occurred.  I fully understand his concerns, being a hardworking man over a long period of time, that he has lost being the breadwinner in his family and it has put a lot of strain and pressure on both himself and his wife.  He says he is grateful he is alive.  He still has his legs, he can still use them, that is about all he can get from it.  They are very serious injuries indeed in my view. 

18We will be going through this in a moment, but your counsel put forward sensible submissions about dispositions and suggested in those that a community corrections order would be sufficient by itself.  It is my view, taking all the matters into account and bearing in mind the authorities he gave me about objective circumstances, that anything other than a custodial order would be appellable.  In this situation I think that I am entitled to a certain degree of mercy for you, but it has to be a custodial sentence to reflect what you through your inadvertence and negligence did to the driver of the other vehicle.  Any further examination of what took place I think is inviting speculation.  How you got there, I do not know.  The fact is that you stayed there and this is what happened.

19Having read all the material and heard your counsel's submissions I have determined that what is known as a combination sentence is within range.  It may be somewhat lenient, but I believe it is within range.  I am well aware of the authorities of Boulton and Bradshaw and I think in this situation I do not have to go through all the details of that.

20I have had you assessed for a community corrections order.  You have been assessed as being acceptable, as being a low risk of reoffending.  Again, as is his wont, your counsel gave me a very succinct and helpful submissions so far as your background is concerned.  He pointed out as already indicated that you remained at the scene, that you have pleaded at the earliest opportunity, you have demonstrated true remorse, and I accept that.

21Your personal history is that you grew up in St Albans, went to year 11 and commenced a career of fulltime work.  You had a workplace injury in 2020 and up until then you had a solid work history and were known, and I have no doubt this is correct, to be reliable, diligent and caring.  In 2019 leading up to this day after almost 20 years your relationship with your partner broke down and the family home had been sold.  You have become close friends and she is now very supportive of you and in fact you have been bailed to live with her in Epping.

22In late 2020, after 25 years as a building manager at a university, you were dismissed from your position and you underwent spinal fusion surgery for your back injury in October of 2020.  In early 2021, as he points out, over a relatively short period you lost your relationship, your job, you home, and your health.  In an endeavour to resurrect yourself you moved to Mirboo where you were living at the time of the collision.  I accept that you had become isolated and self-medicated with cannabis and methylamphetamine.  I accept on the material  before me that you have not used either drug since this occurred.

23You yourself were airlifted to the Royal Melbourne Hospital.  You were in hospital for 14 days and underwent various surgeries.  Your injuries have prevented you from returning to work and you suffered from ongoing cellulitis, which I have no doubt is very painful.

24By June 2021, after the impact, you sought treatment for depression and were referred to a psychologist and you have complied with that treatment and you have been seeing the psychologist on a regular basis.  In September of 2021 you were certified as suffering a total and permanent disability.  Dr Barth, the forensic psychologist, who is not your treater, saw you in December of 2021, and I have read his report.  He found you were suffering depressive symptoms with anxiety and in remission from drug use.  He assessed you as having a very fragile self-esteem and prone to becoming overwhelmed, with limited coping skills.  He observed, and I accept this, he sees this often, overt signs of not only remorse but indeed shame for what you have done.  I accept his opinion that you not having driven since the incident and the efforts that you have made subsequent bode well for rehabilitation.

25I am aware of various decisions in regard to sentencing for this charge and each matter has to be looked at in its own light.  I accept that you have suffered a significant extra curial punishment in the injuries which you yourself have sustained and I simply take that into account.

26I have indicated I think - if I have not, I do now - that any sentence of imprisonment will be undergone under COVID conditions and I am aware of the increased risks and the restrictions that such a person faces in custody; in fact, indeed, I am very aware of it.  In these particular circumstances I think that the opinion of Dr Barth that you will be a vulnerable prisoner brings into play not so much Verdins but those old decisions that gaol will be harder for you than it would for a person of normal disposition or firm disposition, and I take that into account as well in terms of the length of the sentence that I impose.

27Your rehabilitation is well underway and that is very much to your credit and the prospects of you reoffending are assessed by Corrections as being low, and certainly in this way I would think that that is a very accurate assessment.  Obviously offending such as this calls very much for general deterrence.  I think in your situation specific deterrence does not play such a significant part.  Denunciation in these circumstances arises usually where there has been intoxication or reckless driving or some sort of deliberate actions.  Obviously there has to be an appropriate punishment.  As I say, I think general deterrence plays a significant role here.  Others have to be aware that whilst we cannot ever expect to have perfect drivers on the road, everyone has to take as much care as they possibly can and the horrendous consequences of all this for
Mr Csillag amply show why that has to be.

28Accordingly, taking all those matters into account and the authorities that were helpfully provided to me by your counsel, on the charge of negligently causing serious injury, nine months' imprisonment. 

29On the charge of indictable offence whilst on bail, one month's imprisonment concurrent. 

30You will then if you agree be placed on a three-year community corrections order.  It will be with conviction.  I have had you assessed and you are found to be suitable and the conditions that I impose will be those recommended by Corrections.  That will be treatment and rehabilitation for drug use, though I accept that you have abstained since the day of this collision, and treatment and rehabilitation for mental health, which would seem to me a very significant factor in your circumstances.  I do not propose to put in place work hours, I do not do that when there has been a significant custodial sentence, it seems to me to be gratuitous and achieves no useful purpose.

31However, what you will have to understand is should you breach this community corrections order by offending of this nature or anything approaching this nature you will be brought back before me for resentencing and I think the result of that would be very different to what has occurred here.

32As I have already indicated, any licence in total is cancelled and disqualified for 18 months.  Is it 24 months for the licence?

33MR D'ARCY:  That's right, Your Honour.  The opening at p10 said 18 months.

34HIS HONOUR:  That is where I got that from, yes.

35MR D'ARCY:  That's right, and it's an error apparently.

36HIS HONOUR:  All right, thank you. 

37MR D'ARCY:  I apologise that it's a bit late but it is in fact 24 hours.

38HIS HONOUR:  Yes, thank you for that.  That is on the negligent serious?

39MR D'ARCY:  Yes.

40HIS HONOUR:  All right, that is 24 months.  The 12 months for the other is still concurrent.

41MR D'ARCY:  If Your Honour pleases.

42HIS HONOUR:  You will need to sign that before I do a 6AAA.

43MR MOGLIA:  If I could approach the dock, Your Honour?

44HIS HONOUR: Yes, of course, I would ask you to. Thank you, Mr Moglia. That CCO is in place and will commence upon release from custody. Pursuant to s6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 24 months with a minimum term of 15 months.

45MR MOGLIA:  If Your Honour pleases.

46HIS HONOUR:  There are no other orders I need to make?

47MR MOGLIA:  No, Your Honour.

48HIS HONOUR:  Thank you, Mr Moglia.  Do you want to talk to your client before he is taken?

49MR MOGLIA:  I would be grateful for that.

50HIS HONOUR:  Yes, thank you.

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