DPP v Thurston
[2023] VCC 165
•10 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM THURSTON |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2022, 11 July 2022, 8 September 2022 | |
DATE OF SENTENCE: | 10 February 2023 | |
CASE MAY BE CITED AS: | DPP v Thurston | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 165 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords:
Culpable driving causing death - Negligently causing serious injury - Drive while disqualified – Category 2 Offence - High powered vehicle – Under the influence of cannabis – Fishtailing – Tailgating – 18-Month-old child in car - Early plea of guilty - Burden of custody due to COVID-19 pandemic – First time in custody – Fair prospect of rehabilitation - General and specific deterrence.
Legislation Cited:
Firearms Act 1996 (VIC), Sentencing Act 1991 (Vic) ss 5A(2)(b), 11A, 87P
Cases Cited:
Worboyes v R [2020] VSCA 169; Brown v R [2019] VSCA 286; DPP v Drake [2019] VSCA 293; Verdins, Buckley and Vo [2007] 16 VR 240, R v Franklin (2009) 52 MVR 544, Harrison and Rigogiannis v The Queen (2015) 49 VR 619, McGrath v The Queen [2018] VSCA 134; DPP v Gany (2006) 163 A Crim R 322.
Sentence: 11 years’ imprisonment; 7 year and 9 month non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Ms T. Bolton | Garde-Wilson Lawyers |
HER HONOUR:
Introduction
1Adam Thurston, you have pleaded guilty to an indictment containing the following charges:
(i)Culpable driving causing death, which carries a maximum penalty of 20 years’ imprisonment;
(ii)Negligently causing serious injury, which carries a maximum penalty of 10 years’ imprisonment;
(iii)Handling stolen goods, which carries a maximum penalty of 15 years’ imprisonment;
(iv)Possession of a trafficable quantity of firearms, which carries a maximum penalty of 1200 penalty units or 10 years’ imprisonment.
2Related summary charges were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to those charges, namely driving whilst disqualified, which carries a maximum penalty of two years’ imprisonment or 240 penalty units; using an unregistered motor vehicle, which, in your case, carries a maximum penalty of 25 penalty units; use a drug of dependence, namely cannabis, which carries a maximum penalty of five penalty units; possess cartridge ammunition, which carries a maximum penalty of 40 penalty units; and display incorrect number plates, which carries a maximum penalty of 10 penalty units.
3The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening for Plea dated 8 April 2022 (Exhibit A). The prosecution also relied upon:
· Prosecution Submissions on Plea dated 5 May 2022 (Exhibit B);
· Victim Impact Statement of Kate Leslie Brown dated 20 April 2022 (Exhibit C);
· Victim Impact Statement of Scott Kevin Lipscombe dated 22 April 2022 (Exhibit D);
· Victim Impact Statement of Heather Jean Lipscombe dated 22 April 2022 (Exhibit E);
· Victim Impact Statement of Lorraine Conway dated 17 March 2022 (Exhibit F);
· Victim Impact Statement of Stephen George Lipscombe dated 13 April 2022 (Exhibit G);
· Victim Impact Statements of Tayla Brown, William Brown, Olivia Brown, Harris Lipscombe and Nicholas Lipscombe dated 22 April 2022 (Exhibit H);
· Victim Impact Statement of Matthew William Brown dated 20 April 2022 (Exhibit I);
· Victim Impact Statement of Jennifer Scholz dated 19 April 2022 (Exhibit J);
· Victim Impact Statement of Elizabeth Anne Cawsey dated 31 March 2022 (Exhibit K);
· Footage of the collision scene walkthrough, taken from Exhibit 3 of the depositions (Exhibit L);
· A CCTV compilation, taken from Exhibit 10 of the depositions (Exhibit M);
· A photograph folio, taken from Exhibit 2 of the depositions (Exhibit N);
· Pages 116 and 315 of the depositions (Exhibit O);
· Psychiatric court report by Dr Elena Bhattacharya dated 29 June 2022 (Exhibit P);
· Victim Impact Statement of Jill Bartlett dated 10 July 2022 (Exhibit Q); and
· Two photographs with scale superimposed (Exhibit R).
4In addition to the matters developed in oral argument, your counsel relied on:
· Defence Submissions on Plea filed 4 May 2022 (Exhibit 1);
· Psychological report authored by Alison Mynard dated 5 April 2022 (Exhibit 2);
· Bundle of Forensicare letters (Exhibit 3);
· Bundle of certificates of courses completed in custody (Exhibit 4);
· Bundle of character references prepared by Patrick Aheard, Craig Holloway, Megan Thurston and David Thurston (Exhibit 5);
· Letter of apology from you dated 5 May 2022 (Exhibit 6);
· Further Defence Submissions on Plea filed 8 July 2022 (Exhibit 7);
· Character reference from William Paul Cassie dated 24 July 2022 (Exhibit 8);
· Addendum psychological report authored by Alison Mynard dated 4 September 2022 (Exhibit 9); and
· Further Submissions on behalf of the Accused (Exhibit 10).
5Since the conclusion of oral hearings in the plea in mitigation of penalty, I have received the following documents which I will now mark into evidence:
· Psychological report by Alison Mynard dated 9 October 2022 (Exhibit 11); and
· Bundle of certificates of courses completed in custody (Exhibit 12).
6I interpolate that no further oral hearing has been sought. I have had careful regard to all exhibited documents, as well as the matters addressed in the oral plea in mitigation of penalty.
Circumstances of the offending
7By way of background to these charges, on 2 April 2019, you were sentenced in the Ballarat Magistrates’ Court in relation to charges of failing an oral fluid test within three hours of driving, driving whilst exceeding the speed limit, refusing to accompany police to provide a sample of oral fluid for testing, and driving whilst your authorisation was suspended. In consequence, your licence was cancelled, and you were disqualified from driving for a period of four years.
8
On the date of your offending, 20 May 2021, you were 32 years of age, unemployed, and living with your partner, Millie-Jean Kellett, and your
one-and-a-half-year-old son, Elijah, at an address in Alfredton. You owned a black-coloured 2012 Holden Senator GTS V8 sedan, which is a high-powered vehicle. It was unregistered and had stolen Victorian registration plates affixed.
9At about 10.30am on that day, Shannon Cree, a friend of your partner, attended at your house. While she was there, she observed that you were smoking cannabis using a bong, and you smoked a bong or two at the house.
10You invited Ms Cree and Ms Kellett to join you and your toddler for a drive in your unregistered high-powered vehicle with the stolen plates attached. You placed Elijah in the child seat in the centre rear position of the Holden before sitting in the driver’s seat. Ms Kellett sat in the front passenger seat, and Ms Cree sat in the rear passenger side seat.
11You then drove the Holden from your home in Kilkenny Drive, Alfredton, north on Dorset Drive, past the Alfredton Primary School at the intersection of Lawrie Drive and Cuthberts Road. This is the offending referable to your Charge 3, of handling stolen goods (which is the stolen number plates), and your summary charges of driving whilst disqualified, using an unregistered motor vehicle, and displaying incorrect number plates.
12You drove your vehicle east on Cuthberts Road where you drove past the roundabout at Towong Street.
13A witness who was walking his three dogs nearby made the following observations of your driving:
I heard a car engine accelerating. It was travelling west along Cuthberts Road, Alfredton. I could hear the engine labouring as if the wheels were spinning. I saw the vehicle fly straight through the roundabout at the intersection of Cuthberts Road and Towong Street.
14After the roundabout at Towong Street, you began following a witness who was driving in her white-coloured Mazda 3. She noticed that your Commodore was doing fishtails behind her, that is that your car was accelerating, making a loud noise, which caused the rear end of your vehicle to go from left to right with no traction on the rear wheels. She observed that you would accelerate and come right up behind the rear of her vehicle, to the point where she could not see the headlights anymore, and then you would reduce your speed, which you did on at least two occasions.
15Another witness observed you come through the roundabout and noted that it seemed to her that the front of your Commodore looked like it was going side to side. She thought that the driver of the car was going to “lose it”, and she thought the Commodore was doing “way, way over [the speed limit]”.
16Your progress was also captured on CCTV cameras outside businesses on Cuthberts Road, which I have observed.
17A number of other witnesses were concerned at the speed at which you were driving and the erratic nature of your driving.
18Meanwhile, Robyn Lipscombe, the victim of your first charge, was at Aldi on Sturt Street in Alfredton doing some shopping. She paid for her shopping shortly before you started driving your car, and she left the store and got into her vehicle, a grey-coloured Mazda 3 sedan. She drove onto Arthur Street and west towards Learmonth Street. She approached the intersection of Arthur Street and Learmonth Street, where she patiently waited for a clearing in the traffic so that she could perform a right turn onto Learmonth Street.
19Upon approaching Arthur Street, where Mrs Lipscombe was stationary, the driver in front of you activated her left indicator. As this driver turned left, and Mrs Lipscombe accelerated onto Learmonth Street to perform a right-hand turn, your vehicle collided with the driver’s side of her vehicle.
20Your vehicle then lost power and both vehicles continued south on Learmonth Street. Your vehicle came to rest facing south in the northbound lane, and her car came to rest facing south-west, mounted on the grass median strip.
21The impact was very loud, and you caused Mrs Lipscombe’s car to be pushed across the opposite side of Learmonth Street.
22The victim of your second charge, your passenger, Ms Cree, had been using her mobile phone throughout the journey and did not see how the collision occurred, but she felt the collision and felt the airbags inflate. She then saw you out of the vehicle with Elijah, and she got out of the vehicle and called out for help. She was assisted by other persons at the scene as she was in significant pain.
23A number of persons assisted at the scene and called 000.
24A registered nurse, Hannah Fox, came across the scene shortly after the collision and parked her vehicle and approached you. She observed that you appeared to be drug-affected. She told you that she was a nurse and asked if everyone was okay, and you said that everyone was fine and that you were unlicensed, and you falsely told her that the collision was not your fault.
25You asked her to check Elijah for any injuries, and she did so, but did not observe any injuries and noted that he was alert. Ms Fox then assisted Ms Cree.
26Police, paramedics and members of the fire brigade attended the scene.
27First Constable Jack Hughes arrived at the scene and activated his body worn camera and then approached you. He asked you if you were driving one of the cars, and you replied:
I was in the black car, man, and she’s come out of the street and I’ve fuckin t-boned her. So there’s a lady turning left. She’s come out of the street and I’ve t-boned her. But the shit thing is I’ve got no licence, mate. So that’s the shit thing, I got no licence. So at the end of the day it’s my fault regardless.
28When First Constable Hughes asked you if you were travelling at the speed limit, you responded:
I was going the speed limit, then I got a pull around the car. I put my foot down to go around the other car.
29You told First Constable Hughes that your vehicle had the wrong plates, that it was unregistered, that you were not meant to be driving, and that you had no licence. All of that last part is correct.
30Mrs Lipscombe was cut out of her vehicle by firefighters. She suffered multiple injuries and died at the scene. This is the offending referable to your Charge 1, culpable driving causing death.
31Ms Cree suffered multiple injuries and was taken via ambulance to Ballarat Base Hospital, where she underwent surgery. She suffered the following injuries:
· a laceration to her spleen, resulting in the spleen being removed;
· bruising to her pancreas and duodenum;
· a torn colon;
· an L1 spinal fracture;
· fractures to her fifth, sixth and seventh ribs on her left side.
32This is the offending referable to your Charge 2, negligently causing serious injury. She was later transferred to the Royal Melbourne Hospital for management of her spinal injury.
33Ms Kellett suffered minor injuries and eventually made a short statement to police stating that she had received legal advice, and declined to provide any information about the collision. Elijah suffered suspected seatbelt bruising to his abdomen but no other injuries, and you suffered minor injuries.
34You were taken to the Ballarat Base Hospital for treatment and a blood sample was taken at 1.50pm, approximately two hours after this incident. You were arrested and placed under police guard whilst you were at the hospital.
Investigation and interview
35At approximately 3.35pm that day, detectives from the Major Collision Investigation Unit attended the scene and an investigation into your collision was conducted. Photographs were taken and a video-recorded walkthrough was conducted at the scene.
36Your vehicle was searched and, in the rear centre armrest compartment behind the child’s seat, police located a .32 calibre Smith and Wesson double-action revolver, and a 6-millimetre JAM Marlin break open single shot pistol, a firearm barrel, a round of ammunition, a metal spring and metal rod.
37Both firearms were unregistered and you were not the holder of a firearms’ licence, nor were you authorised to possess, carry or use cartridge ammunition. Your possession of the trafficable quantity of firearms is the subject matter of your Charge 4, and your possession of the cartridge ammunition is the subject of your related summary offence.
38On 24 October 2018, a Family Violence Intervention Order had been made against you for a period of three years, and you were therefore a prohibited person under the Firearms Act 1996.
39Detective Senior Constable Robert Hay, who is a collision reconstruction expert, attended and conducted an examination of the scene. In his opinion:
The minimum speed of the Holden Senator would be between 108 to 124 kilometres per hour. In the 2.5 seconds prior to the collision the Senator was being driven in such a manner that the wheels had broken traction and were spinning.
40By your plea, you accept driving at the lower end of this bracket albeit that the applicable speed limit was 60 kilometres per hour.
41A video-recorded drive through of the scene, as I have said, was later captured by police, and police obtained CCTV footage from a number of premises along the route that you drove.
42On 16 June 2021, an examination was conducted of the Holden Senator by Dale Woodland, a forensic officer and mechanical investigator in the Collision Reconstruction and Mechanical Investigation Unit. The examination did not reveal any fault, failures or conditions with the vehicle that could have caused or contributed to the collision.
43The blood sample obtained from you was analysed and was found to contain approximately 11 milligrams per millilitre of THC, which is the active component of cannabis L. This is the offending referable to your related summary offence of using a drug of dependence. Your blood also contained therapeutic levels of Morphine, Diazepam and Nordiazepam.
44In the opinion of Dr Jason Schreiber, Forensic Physician at the Victorian Institute of Forensic Medicine:
[You were] driving after using a range of sedating drugs.
The THC level found in [your] blood was high and indicated recent drug use. The sedating drugs were within effective therapeutic levels and were likely to compound the adverse effects of cannabis.
It is possible to attribute [your] driving behaviour and collision to disinhibition, impaired alertness and impaired functioning caused by the consumption of cannabis, or other sedative drugs. The combination of all the drugs mentioned above are likely to have additive impairing effects.
THC at this level alone, the sedative drugs alone, or their combination would have prevented [you] from having proper control of [your] motor vehicle.
45On 21 May 2021, you were discharged from the Ballarat Base Hospital and were taken to Ballarat Police Station. You were assessed by a forensic medical officer and were deemed fit for interview.
46A record of interview was conducted, and you admitted to your involvement in the collision. You admitted your vehicle was unregistered and that you were not licensed to drive. You told police that you got the number plates from a mate, and you told police that your driving leading up to the collision was not sensible, but that you were not “driving too stupid because of me kid”. You denied driving erratically, but told police you would not have been sitting on the speed limit.
47You admitted that you had smoked probably three or four bongs, maybe even five bongs, on the morning of the collision.
48You told police that you put your foot down to overtake the driver in front and you said to police you would have been doing over 60, but could not say how fast, and you told police that you knew the guns, barrel and ammunition were in your vehicle, but would not say who they belonged to.
Effect on the victims
49As a result of your offending, you killed Robyn Leslie Lipscombe and seriously injured Shannon Cree.
50
I received Victim Impact Statements in this case from Mrs Lipscombe’s identical twin sister, her loving husband, her two children and their spouses, her
sister-in-law, her grandchildren, and her dear friends. Each author spoke of the profound loss and grief that you have caused them. It is difficult to do justice to the way in which that loss is articulated without reading directly from the statements themselves, which is largely what I intend to do.
51Stephen Lipscombe, Mrs Lipscombe’s loving husband, told me:
Robyn was my soulmate of more than half a century and wife of 48 years. With her love, kindness and support we built a life together, raising our two children as we moved around Victoria for my work before settling close to family in Ballarat. … Robyn went out of her way to look after people. She was kind, gentle, caring and always put the needs of others first. … She immediately made you feel safe, comfortable and special. Robyn loved people, remembered stories and faces from years ago and made a special effort to look out for those who might need extra care or just someone to talk to. … We had a wonderful, happy and enriching life together and we were looking forward to more travel and adventures in coming years. …
On Thursday, May 20, 2021, Robyn did not return home for lunch. This was very out of character for her and I attempted to call and text her, but received no reply. Her absence and lack of contact made me feel anxious and very uncomfortable, I sensed that something was wrong and my worst fears were realised when two young police officers came to the door and delivered the devastating news that Robyn had died following a motor incident. I relive those moments every day, experience nightmares and insomnia and am overwhelmed by grief and sadness at the loss of my treasured wife. It’s impossible to comprehend that the last time I saw Robyn she was heading out to complete some errands and that she died without her family with her or being able to say goodbye and tell her what she meant to us. In the space of a few seconds every aspect of my life and my plans for the future was impacted. The trauma and grief of the way Robyn died is something I cannot reconcile. I have lost my life partner, the person I shared nearly every day, meal and decision with for more than 50 years. I miss everything about Robyn, with daily tasks prompting me to recall painful memories of happier times. … In addition to the overwhelming loss and grief, my own mental health and wellbeing continues to be impacted by seemingly simple things. I have never been an anxious person, but I now feel enormous worry and concern when I know someone is travelling or even driving as part of his or her normal activities. …
I have no choice but to accept that the rest of my life will be without Robyn, that she won’t be here to enjoy our grandchildren grow up and experience everything she was looking forward to as a wonderful wife, parent, grandmother and friend. I’m heartbroken to think of the things that Robyn will miss. Important milestones with our children and grandchildren and the day to day conversations, activities and events that she won’t get to share. The integral role she played in nurturing and caring for us, sharing her experiences and love can’t be replaced.
52Kate Brown, Mrs Lipscombe’s daughter, told me that her mother was a compassionate, loving and kind woman, with a beautiful selfless nature and a smile that would light up any room. She described their extremely close relationship, and the fact that she is so proud to called her “my Mum”. Ms Brown told me of her mother’s involvement in her brother, Scott, and her lives, throughout school, and in the community. She said:
As I grew older that connection grew stronger. Our daily phone calls to one another were like a security blanket to us both. … There were not many days that we didn't call each other sometimes multiple times, … A quick 5-minute phone call with Mum could sometimes last a good 30 minutes trying to get a word in. But I loved it, I found it comforting.
53Ms Brown told me of her exceptional distress and trauma upon hearing the tragic news of her mother’s death. Understandably, she is still coming to grips with her loss. Ms Brown is mourning the fact that her mother will not be present at the milestones of her beloved grandchildren’s life events. As a result of your offending, you have caused Ms Brown sleepless nights, where she wakes up in a panic thinking about how her mother felt and the thought of her being all alone. Understandably as well, she is upset that they never got a last goodbye.
54Mrs Lipscombe’s son, Scott Lipscombe, told me that his mother was kind and gentle with an amazing, caring nature, and a wonderful connection with people. I was told:
Her selflessness was boundless. Her sensitivity to assist and make things better when things were difficult always came at the best possible time. The comfort of home-cooked meals, slices, or just a simple chat on the phone really gave you the confidence to deal with life's troubles.
55Mr Lipscombe told me of his mother’s joy at being Nanna to her five grandchildren, and also told me of the love and support that she had for her family. Mr Lipscombe feels a deep sense of loss and sadness, and said:
The trauma and grief of losing a parent is extremely difficult. The sheer impact and trauma I have watched my father go through since her death has been truly painful.
56Mrs Lipscombe’s daughter-in-law, Heather Lipscombe, told me of meeting her future mother-in-law just shy of 20 years ago, and how Mrs Lipscombe immediately made her feel comfortable and welcomed, and reflected on Mrs Lipscombe’s generosity and warmth. Heather Lipscombe told me of the sound her husband made as he cried out for the loss of his mother, which she sadly relives. I was told of the few shocking days in the aftermath of your crime, and the family’s immense grief.
57Mrs Lipscombe’s son-in-law, Matthew Brown, also told me of the terrible shock of hearing the news of his mother-in-law’s exceptionally painful passing, the family’s enormous grief, and the void that is left.
58Mrs Lipscombe’s grandchildren, Tayla, William and Olivia Brown, and Harrison and Nicholas Lipscombe, told me that their “Nanna was one of the most amazing people we knew, she was a kind-hearted loving lady.” I was told she taught her grandchildren so many new things each week, including how to cook, be creative, read and write and do so many more things. Her grandchildren told me of her loving nature, and their adventures together. You have caused her grandchildren to experience a decline in mental health, depression and anxiety, including as to their lost opportunities for future sharing.
59Jennifer Scholz, Mrs Lipscombe’s identical twin sister, told me:
My life has never been the same since that day, as being the identical twin sister, the emptiness and loss you feel is enormous and surreal. I feel half of me has gone and this is with me every day and is still very raw to this day.
She is always in my thoughts, night and day. Many nights I go to bed and cannot sleep as my mind drifts into thoughts of anxiety, depression and sadness and the wish that I could change everything to have her back again; the thought that you won’t see her face to face and to be able to give her a hug, talk to her, love and laugh together.
60She later continued:
There are many thoughts and things in my mind that break my heart – that Robyn has been taken away from me forever; the absolute loss of a beautiful person, a loving, caring and devoted sister, wife, mother, grandmother and friend. She was too good a person that I will miss so much and it hurts me deeply that she was taken from me so tragically. The day before it occurred, we were talking happily with one another and then less than 24 hours later she was gone, just like that! The last time I saw her was in March 2020 on our 70th birthday and due to COVID we hadn’t had the opportunity to see her since then.
61Elizabeth Cawsey, Mrs Lipscombe’s sister, told me of her regular telephone contact (which she described as “lovely chats”) over nearly 50 years in spite of a separation in their residences. Like the other authors, Mrs Cawsey feels a huge feeling of loss to not be able to share and celebrate special occasions such as Christmas and birthdays.
62Jill Bartlett, Mrs Lipscombe’s sister-in-law, described Mrs Lipscombe as caring, kind, compassionate and reliable, who would do anything she could to help anyone. She also told me of the family’s shock and trauma as a result of their tragedy, and that “The feeling of total disbelief is still vivid now.”
63Mrs Lipscombe’s friend, Lorraine Conway, told me that they had enjoyed a wonderful friendship of 54 years. She said:
A friend I believe is a person you can trust, relate to, share your ideas and thoughts without judgement, give support be it physical or emotional, always there to lend a hand or call to say hello, the person you immediately pass on your news be it exciting, happy, sad or worrying. Robyn was all this to me. … We shared our lives …
I no longer have Robyn to call, to visit, to share a meal, a glass of wine or a brandy, to have a laugh or share a hug. A huge part of my life is missing. … My sadness and grief do not go away.
Plea of guilty and timing, introduction to remorse
64You were charged and remanded into custody following your interview on 21 May 2021, and your matter was initiated in the committal mention stream in the Magistrates’ Court. Your matter resolved on 21 October 2021 as a plea of guilty to proceeding charges, and you were committed for trial. I accept and take into account in full mitigation of penalty that these pleas of guilty were entered at the earliest possible opportunity prior to your committal for the offences, and well prior to this court allocating a date for trial. You have saved the court, the witnesses and the community the time and expense of a complicated and arduous trial.
65Not only is your plea of significance in its own right, but it is also of very considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger upon the listing of trials. Moreover, I consider that your pleas, especially in respect of your driving charges, to be accompanied by remorse and insight, to which I will return, I mitigate sentence on the driving charges on each of these bases.
Personal circumstances
66At the time of your offences, as I have said, you were aged 32, and you are now 34 years of age.
67You were the second of two children born to your parents, and grew up in Ballarat. You were heavily involved in sport as a child and teenager.
68I understand that you observed physical abuse from your father towards your mother growing up, and your parents separated for 12 months when you were about four years old. You have held a grudge against your father ever since. When you were aged 12, your father hit your mother and broke her nose.
69You attended schooling until Year 11. You then commenced a carpentry apprenticeship with a friend, but as you told Alison Mynard, clinical psychologist, you were not getting paid properly. You then tried roof tiling for a period of time and then changed to concreting.
70You worked as a welder on the railways for 11 years from the age of 18, but you injured your back in a work-related incident in September 2019 and eventually left this employment in January 2020. I understand you held a management role for the last three to four years of your employment.
71You then started receiving WorkCover, and you had back surgery in April 2020.
72At the age of 18, you were injured in a hit-and-run accident, and were taken to hospital. A steel rod was placed in your lower leg. You started using cannabis to help with your nerve pain management. Your recovery was slow, and you needed to learn to walk again.
73The injury sustained in 2020 at work was eventually diagnosed as three bulging discs, and you have had surgery on your L4 and L5 vertebrae. There is a recommendation that you should have your discs fused together.
74You have a history of driving offences, with the earliest infraction being an appearance at Ballarat Magistrates’ Court in August 2007. On charges of exceeding prescribed concentration of alcohol (0.122%), and careless driving, you were convicted and fined, and your license was disqualified on the major charge for 15 months. You appeared again before the Ballarat Magistrates’ Court in July 2014 for speeding, and that speeding occurred while your license was suspended, and you were convicted and fined. That suspension of license was for reasons which do not appear on the list of prior convictions that I have been provided. You received Traffic Infringement Notices for speeding in March 2018, leading to a month’s suspension from driving, in April 2018, and twice in December 2018, all with the same effect on your license, and also a Notice for driving a motor vehicle whilst prescribed concentration of drugs was present in your system in May 2018, which led to three months’ suspension from driving. In April 2019, the Ballarat Magistrates’ Court convicted you for failing oral fluid test within three hours of driving, speeding, driving whilst suspended, and refusing to accompany police to provide sample of oral fluid for testing, and you were convicted and fined, and your license was cancelled and you were disqualified from driving for four years from that date with a note that you are not to be relicensed except by order of a Magistrate. This was the disqualification order that you breached whilst speeding in your high-powered car in the offending before me. You are a man who has shown little capacity to observe the onerous conditions and restrictions that a driver’s license requires.
75I was provided with a bundle of references on your behalf, and I was told that you are a good worker, and that you are caring and honest. Your mother supports you and in fact feels guilty about what you have done, given her sense of care towards you. Your referees have spoken of your remorse.
76I have mentioned your past use of cannabis, and I understand that you would have three to five bongs mixed with tobacco most mornings, and you described it to Ms Mynard as being “like having a Valium to feel relief, instantly relaxing [you] to feel normal.” You told Ms Mynard that your use of cannabis escalated to two ounces per week.
77In the past you have used ecstasy and speed, but stopped using these substances after your leg was injured in the hit-and-run. More recently, you have used methamphetamines and you told Ms Mynard that you developed an addiction.
78At the age of 18, you commenced a relationship with your ex-wife, and you were married for 10 years. You have a son aged 12, and a daughter aged seven with your ex-wife, from whom you were separated when you were 28 years old. You reported to Ms Mynard that your ex-wife mentally and physically abused you, and cheated on you. You also reported to Ms Mynard resentment around your
ex-wife’s materialism and use of your then considerable wage, and it is apparent that you still harbour resentment.79You told Ms Mynard that you had the children for 18 months on your own after the separation, and you raised them as a single father, and on Father’s Day weekend in 2018, I understand you characterised your ex-wife as taking the children for an access visit, and never returning them. She successfully sought an intervention order against you, which has prevented your contact with her and the children. This is the background and context of your prohibition from possessing the firearms secreted in your car.
80You and your current partner have a now three-year-old child together, who was of course in the vehicle during your period of grossly negligent driving.
81Ms Mynard has related and explained her understanding of your psychological history, which I will report in detail, as her interpretation of the history and empirical testing is inconsistent with that of Dr Elena Bhattacharya, forensic psychiatrist, from whom I obtained a Forensicare report.
82Ms Mynard initially recounted that you reported that you were diagnosed with ADHD as a child when you were in Grade 4, but you said your parents did not want you to take medication. You reported to Ms Mynard a history of anxiety, which justified your use of cannabis or Valium in your mind, and also a history of depression, and I understand that you started an antidepressant in 2021 but did not find that to be effective.
83Ms Mynard does disclose that you were tearful in her attendances upon you, including when you spoke of the guilt and remorse that you felt when thinking of “the victim and her family” [sic], which I infer to mean notwithstanding that there was another victim of your Charge 2.
84You told Ms Mynard that your offending occurred in the context of you being at home, waiting for a friend to arrive to drive you, and after about two hours, you were going to get some cigarettes. Your car had been fixed two weeks before, and you had owned this car from 2015, notwithstanding that you had been unlicensed for the previous four years. You admitted to driving the car prior to this incident, when you picked it up from the auto electricians, and you also drove it to put air in the tyres and to get McDonald’s. You told Ms Mynard, “This was the third time [you] had driven the car unlicensed.” You called the car your “pride and joy” and you told Ms Mynard you “wanted to take it for a drive.” Apparently, the victim of your second charge, Ms Cree, had offered to drive, but you insisted that you wanted to drive, and also insisted on taking your toddler son with you to go to the petrol station to get cigarettes.
85Significantly, you reported that [you] “avoided driving past [your] sister’s place, because [your] parents may have been there and seen [you] driving.” You admitted to Ms Mynard that you “did ignore [your] feelings of guilt and [knew] there were several red flags to not drive but [you] had always been impulsive and a risk taker.”
86Ms Mynard considered that at the time of your offending, you suffered from what she said was ADHD and depression, with chronic pain from your back injury, that you had been self-medicating with cannabis, Xanax and alcohol. She said there is also a history of trauma linked to the suicide death of a friend, your car accident at 18, and your experiences as a child. Ms Mynard considers that you did not suffer from PTSD prior to the current incident, but then concluded you do “reach the DSM V [sic] for PTSD [sic].”
87I will set out Ms Mynard’s reasoning in relation to your Attention Deficit Hyperactivity Disorder, later the subject of contradiction and re-interpretation:
These conditions impacted him in the following way regarding his actions on the day of the offending: his ADHD tendency to be impulsive resulted in his decision to drive unlicensed [sic] (even though he had alternatives for someone else to drive) and may have contributed to his decision to speed up just before impact. In addition, his impulsive nature may also have resulted in a tendency to act without thinking of consequences, and even when he did have a fleeting thought about police pulling him over unlicensed, he did not apply much thought to this, and dismissed it.
Mr Thurston’s depression that he had over many years appears to have impacted him regarding his offending in several ways. At the time of the offending, there were several impulsive behaviours of concern. Despite waiting several hours [sic] for his friend to arrive to drive them to the shops, and even though she arrived, Mr Thurston still decided to drive. He made this decision to drive impulsively, without thinking through the possible consequences. His behaviour may have reflected some tendency for impulsivity to speed up after the other driver had turned the corner nearby him that then led to the accident. As part of Mr Thurston’s ADHD, impulsivity is a symptom of this and, in the past, he has shown a propensity to act without thinking clearly, of possible consequences of his behaviour.
88In the course of the plea in mitigation of penalty, I confessed to a lack of understanding of the linkages in this reasoning process, and I requested a report be provided from Forensicare, to which I have referred.
89Dr Elena Bhattacharya of Forensicare interpreted your circumstances differently.
90You told Dr Bhattacharya that approximately two weeks prior to the alleged offences, you had your car fixed and were keen to drive it. Whilst your friend, Shannon, offered to drive, you wanted to drive the car since it had been repaired. You shared with Dr Bhattacharya that although you wanted to visit the service station near your house, you took the “long way round” in order to avoid your sister’s house, which is consistent with your explanation to Ms Mynard that you wanted to avoid being seen by your parents, who would disapprove of you driving while suspended. You shared with Dr Bhattacharya that you had stolen number plates on your car. You continued to maintain to Dr Bhattacharya that you were driving at a speed well in excess of the speed limit, but well below the one alleged in the offences to which you have pleaded guilty. You deny driving erratically, in spite of the overwhelming evidence from the other witnesses relied upon in this case. You accepted that you had been smoking marijuana in the morning and had had “a couple of bongs”. You concede great regret for what had occurred, and you told Dr Bhattacharya, “I wish it was me that died instead of her.”
91You shared with Dr Bhattacharya a matter which has been substantiated in the certificates provided to me, which is that your time on remand in prison has been very productive, involving your completion of a great number of certificate courses, which I commend you for.
92Dr Bhattacharya notes that Ms Mynard considered that you met the criteria for Post-traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, persistent depressive disorder and cannabis use disorder. Further, Dr Bhattacharya extracted Ms Mynard’s suggestions in relation to the linkage between these conditions and your offending in the context of a different conclusion as to diagnosis and potential linkages with offending.
93Dr Bhattacharya opines that you have had a history of depressive disorder which you have self-medicated with cannabis, methamphetamines, alcohol and other illicit drugs in the past, and more recently, you have used benzodiazepines and sedative medication.
94In Dr Bhattacharya’s opinion, the drugs in your system at the time of your offending would have caused a sedative effect on you and the combination of those drugs would have compounded each other and prevented you from having proper control of your motor vehicle.
95As regards Attention Deficit Hyperactivity Disorder, you reported to Dr Bhattacharya that you were not diagnosed with this condition as a child, which differs from the account which you gave Ms Mynard, which was so influential in her conclusion. In Dr Bhattacharya’s view, which I accept, given the diminishment of any symptoms of this potentially undiagnosed condition:
… it is not clear if this is still relevant to [your] current functioning and it is certainly not clear if this was relevant to [your] functioning prior to the index offence or at the time of the index offence. However, there does seem a degree of impulsivity in [your] nature which may have contributed to [your] decision to take [your] actions on that day.
96In Dr Bhattacharya’s conclusion:
… in my opinion he was suffering from a depressive disorder at the time of the index offence which subsequently worsened when he was recepted to prison. I am not clear that he was suffering from any symptoms of
post-traumatic stress disorder at the time which would have influenced his actions on the day. … It seems clear that the use of the sedative medication as well as cannabis would have affected his driving on the day and his reasons for taking these medications are related to mental and physical illness in the first instance. He also has denied that he was driving erratically at the time.97Dr Bhattacharya concluded that it was not clear that you were suffering from any symptoms of post-traumatic stress disorder, as I have said, but finds that you may have experienced some symptoms of post-traumatic stress disorder following the incident where you were having intrusive dreams and nightmares, which have improved following your usage of the medication Avanza. As is the opinion of Ms Mynard, Dr Bhattacharya opines that you have a mental disorder which means that a custodial sentence may weigh more heavily upon you than it would on someone who does not have this condition.
98Following receipt of this report, Ms Mynard elected to provide further reports, dated 4 September and 9 October 2022. She clarified with your mother that, whilst you believed that you had been diagnosed with ADHD as a child, the diagnosis was never made, and you were reported to have just been “very energetic,” with qualities in childhood of hyperactivity, impulsivity and inattention. Ms Mynard administered a structured clinical interview with your mother and examined seven of your school reports from earlier decades and opined that you did present with numerous symptoms of inattention, restlessness and hyperactivity and impulsivity during your primary and secondary school years.
99Ms Mynard administered the Wechsler Adult Intelligence Scale, which disclosed in you very low ranges of verbal comprehension performances on the whole, in borderline ranges. The verbal comprehension index measures a person’s ability to access vocabulary, express oneself in a meaningful manner, and apply reasoning skills to information presented verbally. Your perceptual reasoning ability was assessed to be within the low average range for your age on associated measures. Your working memory abilities fell within average ranges for your age and strength. You have great difficulty with following multi-step instructions, and your processing speed abilities fell within the very low range overall. Ultimately, Ms Mynard opines that you present with a range of difficulties with your learning, cognitive functioning and expressive and receptive language skills. Ms Mynard appears to have revisited her earlier repetition of your account to her:
His distractibility, impulsivity, and inattentiveness were noted throughout his schooling years. ADHD was not diagnosed when he was young, however he was ‘borderline’ regarding his symptoms and continues to have various strong indicators of ADHD symptoms into adulthood.
100Ms Mynard considers that you have difficulties with inhibitory control as an underlying issue that manifests in your specific comprehension deficits. Apparently, this may impact on your decision to drive unlicensed (her terminology) and your difficulties with addiction and inhibitory control at the time of your offences – here, I interpolate that Ms Mynard has not considered that your difficulties with inhibitory control did not extend to driving on the day using a more direct path which may have taken you past your parents’ house.
101Dr Bhattacharya was invited to render a further opinion, but declined to do so. I indicate that where there is a difference in opinion between the authors, I have preferred the opinion of Dr Bhattacharya. This is without professional criticism of Ms Mynard, who experienced foundational difficulties with a diagnosis based upon her reliance of your misapprehension of your childhood diagnosis.
102It is fair to describe your counsel’s submissions in relation to the questions arising from these competing opinions as lightly pressed. In my view, and consistent with the prosecution’s submissions, I find that your mental health presentation, including trauma, and depressive symptoms, are relevant to the sentencing exercise, in that they mean that the service of your inevitable sentence of imprisonment will weigh more heavily upon you than it would a person in ordinary health. I mitigate sentence on the basis of this fifth Verdins factor, as pressed by your counsel and accepted by the prosecution.[1]
[1] Verdins, Buckley and Vo [2007] 16 VR 240.
103Your impulsivity and processing capacities have not impaired your ability to achieve long periods of stable employment, and you are productive prisoner and have been engaged in a significant number of certificate courses. Your impulsivity no doubt influenced you to drive where others would have appreciated that this course was impermissible and criminal, however, I consider that this does not influence my evaluation of your moral culpability and it does not enliven other Verdins factors.
104Consistent with the impression that you have given to the experts, and as set out in your brief letter to me, I find that you are remorseful for killing Mrs Lipscombe, and though you have not expressly adverted to experiencing remorse for seriously injuring Ms Cree, I am prepared to infer remorse for this offence as well. I mitigate sentence on this basis as I have previously indicated. You were unwilling to provide instructions to your counsel as to the circumstances leading to your possession of a traffickable quantity of firearms until I pressed the issue, and I was told that you were possessing these on behalf of an associate. I am unable to infer remorse given this limited address, though I have recognised your plea in the sentencing exercise in respect of this charge as previously indicated.
Objective seriousness of the offences, moral culpability
105You have pleaded guilty to charges including a charge of culpable driving causing death, and a charge of negligently causing serious injury. Your very significant negligence lies in you driving a high powered motor vehicle whilst exceeding the speed limit, namely between 108 and 124 kilometres per hour in a 60 kilometre per hour zone; the fact that you were driving whilst under the influence of cannabis to such an extent as to be incapable of having proper control of the vehicle; and performing an overtaking manoeuvre in these circumstances and causing the collision, which led to you killing a much loved woman, and seriously injuring another. If you had observed any one of the standards expected of a reasonable person, you may not have caused Mrs Lipscombe’s death, as she was able to be seen clearly, and was of course observing the road rules to which you are so indifferent and have been for such a long time. Though you are remorseful for the effect of your behaviour, you continue to minimise your purported understanding and acceptance of the speed you were traveling, and your state of influence of drugs, in your discussions with the experts who have provided reports to me.
106Your offending occurred during one of your numerous periods of disqualification after your many earlier driving infringements. Your car was unregistered and had stolen number plates. Your driving was erratic in the minutes prior to your collision, including you driving at excessive speed, causing your vehicle to fishtail, tailgating and driving on the incorrect side of the road. This display of negligent driving occurred in a built-up residential area at a point mid-morning on the day.
107This was also so notwithstanding that you had others in the car including your
18-month-old son, which undermines the way that you characterise yourself as a caring father.108You have heard how your behaviour has affected not just your direct victims, but so many others who have lost their beloved relative and friend. As you continue to work through your remorse, I must remind you of just how self-centred, and idiotic your actions were, and how they have left many with a legacy of trauma and despair from their senseless loss.
109You are a person who I am told is prone to impulse, but only those impulses that allow you to act out and achieve an agenda – for instance, at that moment, you wanted to drive your “pride and joy” to buy cigarettes, in spite of your disqualification, your state of drug consumption, and your absolute indifference to the safety of others. You were not so impulsive that you did not take a moment to plan a route that would minimise the risk that your parents may see you and may lead to consequences. I am concerned that your impulsive nature may lead to you deciding to drive in the future, and having regard to your history I consider it fair and appropriate to send you a message via an order that you are not permitted to drive for a significant period of time from today. This is as a result of your continued indifference to the consequences of your repeated decisions to drive in violation of the rules which protect the safety of others.
110I am well familiar with the statements of principle in cases like yours relied upon by the prosecution, and accepted by your counsel.
111In R v Franklin, Warren CJ stated:
Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences.[2]
[2] (2009) 52 MVR 544, [12].
112Negligently causing serious injury is also a serious offence. In Harrison and Rigogiannis v The Queen, the Court of Appeal stated:
The motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. … The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly.[3]
[3] (2015) 49 VR 619, [106]-[107].
113I accept the view expressed by the prosecution, substantially accepted by your counsel that the objective gravity of your offending and your moral culpability are of a high level.
114As part of the search of your vehicle, your cache of two unregistered firearms was found behind your toddler’s car seat. You are a prohibited person. The firearms were unregistered. You have provided no proper explanation or justification for your offence. This is a traffickable quantity of firearms.
Purposes of sentencing
115In cases of this nature, the need for general deterrence is high; in order words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour.[4] I must give significant emphasis to this objective of sentencing, as well as the need to denounce your behaviour and to punish you for your offending. I must also impose sentences that specifically deter you from acts of further driving, given your long history of driving offences and your self-confessed impulsivity when it comes to acts that bring your enjoyment, like driving, even for no real reason, like your journey to buy cigarettes this day, in spite of your second victim’s offer to drive your unregistered car with its stolen plates.
[4] McGrath v The Queen [2018] VSCA 134, [68]; DPP v Gany (2006) 163 A Crim R 322, [35].
116I am concerned about your prospects for rehabilitation given your long history, but having regard to your family support and apparent appreciation of the salutary effects of this, your first period in custody, I am prepared to infer that you have at least fair prospects for rehabilitation from your temptation to drive illegally, and given your appreciation of the consequences of your actions, that you are unlikely to commit a further act of causing serious injury or death. I intend to impose a long period of parole eligibility pursuant to this finding.
Sentencing submissions, and relevant sentencing principles
117The offence of culpable driving causing death is a Category 2 offence under the Sentencing Act1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a) to (e) can be established. None of the exceptions apply.
118The standard sentencing regime applies in your case to the offence of culpable driving causing death, and the standard sentence for this offence is eight years’ imprisonment.
119The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In considering the impact of standard sentencing on your case, I have considered the decisions, inter alia, of Brown v R,[5] and DPP v Drake.[6] In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement, therefore, is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point. It does not affect the established “instinctive synthesis” approach to sentencing, nor does it require or permit “two‑stage sentencing” and does not otherwise affect the matters which I may or must take into account in sentencing.
[5][2019] VSCA 286.
[6][2019] VSCA 293.
120Pursuant to s5A(2)(b) of the Sentencing Act 1991 (Vic), having regard to current sentencing standards in relation to the standard sentence offences, I can only pay regard to sentences previously imposed where culpable driving was the subject of a standard sentence scheme. I am of course familiar with those sentencing standards, and have read the recent cases drawn to my attention by the Learned Prosecutor.
121After careful reflection I will indicate that, whilst I agree with the prosecution contention as to the characterisation of the seriousness of this example of that offence, the sentence that I am about to impose in respect of Charge 1 is less the standard sentence. I have had regard to the application of s11A of the Sentencing Act relating to the calculation of a minimum period of parole eligibility.
122It was appropriately conceded by your counsel that I am confined to a sentence involving a head sentence and minimum period before parole eligibility. I have been mindful of the totality principle of sentencing in structuring my sentence including in respect of orders for cumulation.
123Culpable driving causing death and negligently causing serious injury are each “serious motor vehicle offences” under s87P of the Sentencing Act, and I must disqualify you from driving for a period of at least 24 months. Pursuant to s89C(2) of that Act, I find that your offence of culpable driving was committed whilst you were under the influence of a drug, which contributed to that offence.
124As I have mentioned, your pleas of guilty was entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID‑19 pandemic. There was a significant utilitarian benefit in you entering pleas of guilty to the preceding charges.[7]
[7]Worboyes v R [2020] VSCA 169
Sentence
125I now impose the following sentences:
· On Charge 1, of culpable driving, you are convicted and sentenced to imprisonment for a period of seven years and six months imprisonment. This is the base.
· On Charge 2, of negligently causing serious injury, you are convicted and sentenced to four years imprisonment. 18 months of this sentence will be served cumulatively upon the base and upon other sentences.
· On Charge 3, of handling stolen goods, you are convicted and sentenced to 12 months' imprisonment. Three months of this sentence will be served cumulatively upon the base and upon other sentences.
· On Charge 4, of possession of a traffickable quantity of firearms, you are convicted and sentenced to three years' imprisonment. 18 months of this sentence will be served cumulatively upon the base and upon other sentences.
· On related summary offence – Charge 9 – driving whilst disqualified, you are convicted and sentenced to 18 months' imprisonment. Three months of this sentence will be served cumulatively upon the base and upon other sentences.
· On remaining summary offences of using an unregistered motor vehicle, using a drug of dependence, possession of cartridge ammunition, and display incorrect number plates, you are convicted and discharged.
126This is a total effective sentence of 11 years' imprisonment, and you are ordered to serve seven years and nine months before parole eligibility.
127All licenses are cancelled and you are disqualified from obtaining a license for 15 years from today.
128Pre-sentence detention I will reckon as 631 days including today.
Section 6AAA Sentencing Act 1991 declaration
129Were it not for your pleas of guilty in this case, I would have imposed a sentence of 14 years’ imprisonment with a minimum of 10 years before parole eligibility.
130Now, Ms Parkes, I remember there was an application for a forfeiture order?
131MS PARKES: Yes, Your Honour, pursuant to the Firearms Act. Yes.
132HER HONOUR: And it was in relation to the firearms - - -
133MS PARKES: Yes, that is right.
134HER HONOUR: - - - and the ammunition.
135MS PARKES: That is right. Yes.
136HER HONOUR: I will make that order.
137MS PARKES: Thank you, Your Honour.
138HER HONOUR: Are there any other ancillary orders sought - - -
139MS PARKES: No other orders.
140HER HONOUR: - - - or any other matters that I need to include in my order?
141MS PARKES: No, Your Honour.
142HER HONOUR: Thank you. We will now adjourn until the next hearing please.
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