DPP v Mashayamombe
[2022] VCC 1828
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00612
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUNASHE MASHAYAMOMBE |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2022 |
DATE OF SENTENCE: | 13 October 2022 |
CASE MAY BE CITED AS: | DPP v Mashayamombe |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1828 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: s89C(1) of the Sentencing Act 1991
Cases Cited:Harrison v The Queen [2015] VSCA 349, DPP v Barry [2017] VSCA 344, Gurovskiv The Queen [2018] VSCA 3, Cook v The Queen [2021] VSCA 292
Sentence:Imprisonment, Total Effective Sentence 4 years and 10 months. Non-parole period 3 years. $200 fine. Licence cancellation and disqualification for 3 years. Offences found to have been committed under the influence of drugs.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | OPP |
For the Accused | Mr S. Collins | Victoria Legal Aid |
HIS HONOUR:
1Munashe Dominic Mashayamombe, you have pleaded guilty to one charge of negligently causing serious injury, one charge of reckless conduct endangering serious injury, and one charge of possession of cannabis.
2The facts of your offending are set out in Exhibit A, the agreed prosecution summary for plea.
3Your counsel informed me that I can treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.
4Very briefly stated, on 16 January 2021 you drove a Volvo station wagon to a friend's home in Mount Waverley. There you drank at least four shots of vodka and smoked cannabis.
5At about 5 pm you and your friends took an Uber into Melbourne. On the way you and your friends finished a 750-millilitre bottle of vodka.
6In the city you were refused entry to an entertainment venue because of your intoxication. You were placed in an Uber car and returned to Mount Waverley and your vehicle.
7At about 2.30 am on 17 January 2021 you decided to drive to your home in Northcote. You told police you considered whether you should drive in the state you were in but concluded that you did not think there would be many cars and, 'fuck it, I'm gonna be fine'. You headed home travelling on the west bound lanes of the Eastern Freeway.
8At about 3.06 am you lost control of the Volvo, you were travelling at between 118 kilometres per hour and 126 kph. You veered across the four lanes of west bound traffic, became airborne for about 20 metres, cleared the wire barrier between the east and west bound carriageway, landing on the east bound side of the freeway. You then collided head on with a Mercedes sedan driven by 35-year-old Victor Eskander.
9The Volvo rotated 180 degrees and the rear of your vehicle collided with the front of a Honda Hatch driven by a 23-year-old Mary Harne.
10Police arrived at the scene at 3.08 am and found you with bloodshot eyes, slurring your speech and intoxicated. Police located a small amount of cannabis in the Volvo and when you were taken to the Alfred Hospital, a small bag of cannabis was found by hospital staff when it fell out of your pants.
11A blood sample taken at 4.30 was analysed and found to contain firstly, delta-9-tetrahydrocannabinol at 8 nanograms per millilitre and blood alcohol of 0.164 per cent.
12Those readings reflected recent cannabis use and your blood alcohol level was over three times higher than the legal limit. You were totally unable to properly control a vehicle. Cannabis use increased the effect of your alcohol consumption.
13Mr Eskander was taken to the Royal Melbourne Hospital where he underwent four complex surgeries to repair a heavily commuted open compound right mid tibia fibula fractures. He suffered other soft tissue injuries and displaced fractures of his right eleventh and twelfth ribs.
14This medical intervention very likely saved his life. He would suffer pain and mobility issues and permanent scarring.
15Ms Harne was taken to hospital where she spent two days and her injuries included a fractured right hand.
16Your offending found in Charge 1, negligently causing serious injury, involved you failing to maintain proper control of your vehicle by driving under the influence of alcohol and cannabis and by excessive speed. That breach of duty of care caused serious injury to Mr Eskander.
17Charge 2, conduct endangering persons, relates to your conduct creating an appreciable risk that serious injury would be a probable consequence for other road users. Ms Harne did suffer an injury as a result.
18Charge 3 relates to the two small amounts of cannabis located in the Volvo and on your person.
19You were arrested and interviewed by the police on 10 November 2021. You made frank admissions as to your drinking, smoking and movements leading up to the collision. You pleaded guilty to these charges at an early stage.
20You have admitted a prior criminal history. In February 2019 you were placed on a community corrections order for 18 months on a charge of sexual assault by touching a child. I accept that that conviction is of little relevance to the offending for which I am to sentence you.
21Your personal history is set out in the submissions of your counsel (Exhibit 1) and in the report of psychologist, Carla Lechner (Exhibit 2).
22You were born in Zimbabwe in July 1997. You are now 25 years old, and you were 23 at the time of your offending.
23Your father died before you were born. You were raised by your grandparents in Zimbabwe. You were born HIV positive and are medicated for that condition. You told Ms Lechner that you were the subject of sexual abuse as a 10-year-old child. Your mother left you when you were 14. You were educated in Zimbabwe to Year 8 level and in 2012 you came to Australia to live with your mother and younger siblings.
24Here you attended Braybrook Secondary College for Years 9 to 12 and after school you commenced studying criminal justice at Swinburne but dropped out after nearly 12 months.
25You found work in hospitality and retail for a short time before gaining construction employment, painting the Westgate Bridge.
26In 2020 you worked in carpentry and started a two-year course in building and construction.
27Ms Lechner is of the view that you suffer unresolved Post-Traumatic Stress Disorder symptoms as a result of your childhood trauma and abuse. You use drugs to self-medicate your issues. You began to abuse alcohol in 2019 after a relationship breakup but claim to have moderated your alcohol consumption since the collision in January 2021.
28Ms Lechner is of the view that you likely suffer from clinical depression and are mildly psychologically distressed. Ms Lechner reports that you express remorse for your conduct and insight as to the actual consequences and potential consequences of your crimes. You expressed empathy for your victims. Ms Lechner concludes:
'His involvement with this matter has been a huge wake up call to significantly curtail his drinking and to take charge of the direction his life is taking.'
29You wrote a letter to the court expressing your remorse, it was irresponsible and dangerous actions. You claim to be attempting to improve your health and vow never to repeat your dangerous conduct. You say you will never again drink and drive.
30I do accept that you are genuinely remorseful for your crimes.
31References tendered attest to your remorse and plans to improve your life. You have become involved in sporting and community activities. You are said to have a kind and loving nature and that you are working hard to get yourself back on track. You are described as smart, humble, and respectful. I take the reference material into account in sentencing you.
32In addition, I take into account in sentencing:
(i), your early pleas of guilty. You have spared the community the time and expense of a criminal trial and your victim and witnesses the stress and trauma of giving evidence at such a trial. You are entitled to a reduction in sentence to reflect those pleas of guilty and the value of those pleas is greater because of the effect COVID-19 has had on our justice system.
(ii), I take into account your cooperation with police and the substantial admissions made when you were interviewed by the police.
(iii), I take into account your lack of relevant criminal history.
(iv), you were a relatively young man at the time of the collision, 23. Hopefully you are now maturing and developing consequential thinking.
(v), I accept that your prospects of rehabilitation are relatively good, provided you follow through with your stated intention to change your life and moderate your alcohol consumption and continue to focus on your health and physical fitness.
(vi), I take into account the fact that COVID-19 will make your time in custody more onerous for you. Visits, courses, and work opportunities have and will continue to be impacted by the effects of COVID-19.
33Your counsel referred me to many authorities in support of his submission that a combination sentence, that is a community corrections order and a gaol term, was appropriate in your case. Unfortunately, some of the authorities related to charges of dangerous driving, not negligently causing serious injury, which is a more serious criminal offence.
34The prosecution submitted that a combination sentence was in range in this case. I find that a somewhat startling concession. The Court of Appeal has made it abundantly clear that sentences imposed for serious examples of the offence of negligently cause serious injury have historically been inadequate. In the decision of Harrison v The Queen [2015] VSCA 349[1] the Court of Appeal held that higher sentences should be applied in the future. The Court stated:
‘...that sentences of six or seven years would be well in range for serious examples of the offence of negligently cause serious injury'.
[1]Harrison v The Queen [2015] VSCA 349
35In the subsequent case of DPP v Barry [2017] VSCA 344[2], the Court of Appeal upheld an appeal by the Director of Public Prosecutions in relation to a combination sentence imposed at first instance. Such a disposition was found to be manifestly inadequate and a sentence of five years with a non-parole period of three was imposed.
[2]DPP v Barry [2017] VSCA 344
36In Gurovskiv The Queen [2018] VSCA 3[3], in 2018, the Court of Appeal analysed the authorities and concluded that a sentence of six years imprisonment, or more, is open for offences of negligently cause serious injury by driving that fall within the upper range of seriousness, and that a sentence of five years imprisonment is open for offending in the middle to upper range.
[3]Gurovskiv The Queen [2018] VSCA 3
37In the recent case of Cook[4], the Court of Appeal again reviewed a sentence of five years and three months with a non-parole period of three years and eight months for negligently causing serious injury by driving. The appellant in that case demonstrated many mitigating factors on his plea. Nonetheless the Court found that the objective gravity of the appellant's offending was very high. The Court said at paragraph 40:
'The objective gravity of this offending is, in our view, very high. The appellant drank for hours. He made the conscious decision to drive, and then to drive with an appalling disregard for the safety of other road users. He drove while affected by alcohol (with a blood alcohol content of 0.107) and at a ferocious speed (in the range of 170 kilometres per hour) in Springvale Road — a busy, multi-lane road. The consequence of this gross negligence has been life-changing for [the victim], who was profoundly injured and lucky to survive.'
[4]Cook v The Queen [2021] VSCA 292
38The Court continued in paragraph 41:
'Ultimately, however, in this and in similar cases of high objective gravity, less weight will be accorded to personal mitigating factors than would otherwise be the case. This Court has observed that this offence and the similar offence of culpable driving causing death (which differs only in consequence) are frequently committed by young offenders and/or offenders of previous good character, many of whom have excellent prospects of full rehabilitation. The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed upon mitigating factors such as youth, previous good character, and rehabilitation prospects.'
39Both your counsel and the prosecutor accepted that your offending was serious. The prosecutor generally categorised your offending as - - -
40(Recording malfunction 09:45:39-09:46:02)
41- - - the whole content more than three times the legal limit.
(ii), you drove after consuming cannabis that exacerbated your lack of control.
(iii), you drove at a speed substantially above the speed limit applicable.
(iv), you lost control and veered across multiple lanes before crossing onto the wrong side of the divided freeway, and
(v), your decision to drive was made conscious of the risks of doing so and with an expressed indifference to the possible consequences.
(vi), no other person or factor contributed to the collision.
(vii), multiple people were put at risk by your driving. I find that that demonstrates your negligence to be at an upper level of culpability.
42The injuries sustained by Mr Eskander were clearly serious injuries. The injuries to his right leg in particular are gross. However, unfortunately this Court is often confronted with more serious injuries with larger and permanent consequences: total incapacity; quadriplegia and severe incapacity and brain injuries are somewhat the tragic consequences of stupidity and gross negligence on the roads.
43On the limited material available to me as to Mr Eskander's progress, I would regard his injuries as falling at the lower end of serious injury.
44It follows that the synthesis of the two relevant assessments is complex. This may explain the prosecution categorisation of your offending as mid-range level of seriousness.
45Ultimately, I am of the view that your offending should be seen as an upper mid-level example of the offence of negligently causing serious injury. This is so because of the consequences of your gross negligence were not as great as they could have been.
46Insofar as Charge 2 is concerned, reckless conduct endangering serious injury, it is to be noted that that offence only has a five-year maximum term of imprisonment. This charge relates to the appreciable risk of serious injury created by your driving to all road users. Here, you did injure Ms Harne. You put other road users at risk.
47I acknowledge that the same conduct, the way you drive, relates to both Charges 1 and 2 and I am conscious to avoid double punishment in your case. There are different elements in both Charges 1 and 2.
48Charge 1 relates solely to your negligently causing serious injury to Mr Eskander.
49Charge 2 relates to the others, other than Mr Eskander.
50Nonetheless, principles of totality require substantial concurrency in relation to Charge 2. Charge 3 warrants only a small fine.
51It follows although I have had you assessed for your suitability to undergo a community corrections order, I do not accept your counsel's submission nor the concession of the Crown, that a combination of a term of imprisonment and a community corrections order is within range or appropriate for your offending. General deterrence, denunciation of your conduct require a substantial custodial term be imposed. The Court of Appeal has repeatedly said so.
52I have given as much weight as possible to the matters in mitigation demonstrated in your case, but ultimately the objective seriousness of your offending requires such a sentence.
53On all charges you are convicted.
54On Charge 1, negligently cause serious injury, you are sentenced to be imprisoned for four years and six months.
55On Charge 2, reckless conduct endangering serious injury, you are sentenced to be imprisoned for 12 months.
56On Charge 3, possession of cannabis, you are fined $200.
57I order that four months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence.
58That is an effective term of imprisonment of four years and 10 months and I order that you serve three years of that sentence before being eligible for parole.
59Can anyone tell me what the pre-sentence detention is at the moment?
60MS GURRY: Yes, Your Honour, we have a calculation of eight days, not including today.
61HIS HONOUR: Do you agree with that Mr Collins? You are on mute, Mr Collins.
62MR COLLINS: Yes, I am. I do agree with that, Your Honour, yes.
63
HIS HONOUR: Thank you. I declare that eight days of the sentence I have just imposed, not including today, has already been served by way of
pre-sentence detention.
64I declare pursuant to s6AAA of the Sentencing Act 1991 that but for your pleas of guilty I would have imposed a term of imprisonment of seven years and six months, with a non-parole period of five years.
65On Charge 1 I order that any licence you hold be cancelled and you are disqualified from holding such a licence for three years from today's date.
66Pursuant to s89C(1) of the Sentencing Act 1991 I find, and I direct that it be recorded that Charges 1 and 2 were committed whilst you were under the influence of drugs and that drugs contributed to the offence.
67I make the disposal and forfeiture orders sought by the prosecution.
68MS GURRY: As Your Honour pleases.
69HIS HONOUR: Are there any other orders required, Ms Gurry?
70MS GURRY: No, there is not, Your Honour, thank you.
71HIS HONOUR: All right. Mr Collins?
72MR COLLINS: No, nothing. Nothing, Your Honour.
73HIS HONOUR: All right. I terminate the link and I will adjourn now till 10 o'clock.
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