R v Anderson
[2015] VSC 449
•27 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
No. S CR 2014 0160
| THE QUEEN |
| v |
| ELI JAMES ANDERSON |
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JUDGE: | BEACH JA | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 August 2015 | |
DATE OF SENTENCE: | 27 August 2015 | |
CASE MAY BE CITED AS: | R v Anderson | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 449 | |
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CRIMINAL LAW – Sentencing – Recklessly causing serious injury - Recklessly causing serious injury by abuse of a motor vehicle – Conduct endangering life – Failing to stop after an accident – Failing to render assistance after an accident – Relevance of character - Relevance of chronic depression – Serious offending – Competing sentencing considerations - Total effective sentence of 5 years imprisonment with non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson | Ms V Anscombe, Acting Solicitors for Public Prosecutions |
| For the Accused | Mr G A Georgiou SC | Michael Brugman Barristers & Solicitors |
HIS HONOUR:
Eli James Anderson, you have pleaded guilty to one charge of conduct endangering life contrary to s 22 of the Crimes Act 1958 (charge 1), one charge of recklessly causing serious injury contrary to s 17 of the Crimes Act (charge 2), one charge of failing to stop after an accident contrary to s 61(1)(a) of the Road Safety Act 1986 (charge 3) and one charge of failing to render assistance after an accident contrary to s 61(1)(b) of the Road Safety Act (charge 4). The maximum term of imprisonment for recklessly causing serious injury is 15 years. The maximum term of imprisonment in relation to each of the other three offences is 10 years.
In addition, you have pleaded guilty to the related summary offences of offensive behaviour contrary to s 17(1)(d) of the Summary Offences Act 1966 and common assault contrary to s 23 of the Summary Offences Act. The maximum terms of imprisonment for those offences are two months and three months respectively.
At about lunchtime, on Saturday 15 March 2014, you were driving a black Land Rover Defender in Geelong. You picked up a friend, and then went to a bar to pick up two work mates. You then went to a hotel for lunch. You then commenced drinking alcohol — first over lunch at the hotel, and later at a friend’s house throughout the afternoon and into the evening. At some time in the course of the evening you left your friend’s house and went to another bar where you continued to consume alcohol. At about 1:00 am, you left this bar and walked to a nightclub known as Rumors. You were refused entry due to your behaviour and level of intoxication. One of the crowd controllers on the door, Christopher Pritchard, was known to you. You became aggrieved at being refused entry to the nightclub. You approached Mr Pritchard at the door of the nightclub on a number of occasions. You became agitated, swearing excessively, at the entrance to the nightclub. At one stage you lowered your pants and exposed your penis towards Mr Pritchard. This event constitutes the charge of offensive behaviour.
Next, you came at Mr Pritchard and threw a punch at him, striking him with a glancing blow to the head. These events constitute the charge of unlawful assault. Mr Pritchard brought you to the ground. You were injured in this process. You became very upset and angry while on the ground. You were trying to hurt Mr Pritchard, and you made threats towards him.
Police were contacted, and came to the scene. They observed blood from an injury to your forehead. The police effectively gave you the option of going to hospital in an ambulance, or being arrested. You chose to go to hospital. Thereafter you were heard to utter a series of threats towards, amongst others, Mr Pritchard. It is plain from this evidence and various calls and text messages, that you sent at around this time, that you had strong feelings of animosity towards Mr Pritchard at the time you went to the hospital and thereafter.
Within five to 10 minutes of your arrival at the Geelong Hospital, you left the hospital. Within about an hour and a half you were driving the black Land Rover Defender that you had been driving earlier. The vehicle you were driving was fitted with a large bull bar. You drove the vehicle towards Rumors nightclub at a fast rate of speed along Little Malop Street before turning into the street in which the nightclub was situated. You then drove towards the nightclub straight at security staff standing in the doorway of the nightclub. You struck one Damian Forbes with the front of your vehicle. Mr Pritchard, who was in the vicinity, managed to jump out of the way. It was the driving of your vehicle at Mr Pritchard that constituted the charge of reckless conduct endangering life. It was the striking of Mr Forbes with the front of your vehicle that constitutes the charge of recklessly causing serious injury. CCTV footage of your driving shows you approaching the nightclub at significant speed along the street, then slowing, then turning left toward the nightclub façade. During the turn, you appear to accelerate, before applying the brakes just before colliding with Mr Forbes and then the nightclub, off which your vehicle appears to bounce.
In circumstances where you knew or ought reasonably to have known that you had collided with Mr Forbes resulting in him suffering serious injury, you did not immediately stop your motor vehicle; nor did you render any assistance. It was these events that constitute the charges of failing to stop following an accident and failing to render assistance following an accident.
You reversed your vehicle and, in making good your escape from the scene, you collided with a parked car before driving forward.
Mr Forbes suffered a significant puncture wound to his left leg, which caused his femoral artery to split and resulted in significant blood loss. He also sustained several broken teeth. Initially, there were concerns he may not survive his injuries. He was rushed to Geelong Hospital where he underwent emergency surgery. He remained in hospital for a period of eight days before being discharged.
You are 33 years of age, having been almost 32 at the time of your offending. You have had a good upbringing, and have a very supportive family. You are single and have worked doing carpet laying on and off for 16 years. You have an excellent work history, always having been in work. Your employment history also includes employing others.
Since your offending you have been examined by a psychiatrist, Dr Cidoni; a neuropsychologist, Mr Jackson; and a clinical psychologist, Mr Pereira. I have had regard to their reports that were tendered on the plea. Dr Cidoni has expressed the opinion that you suffered from a major depressive disorder and alcohol dependence. However, at the time of his examination (19 November 2014), Dr Cidoni did not think that your depressive disorder was prominent or required medication. Dr Cidoni thought that alcohol was a more prominent factor in your offending than depression. Additionally, Dr Cidoni said that he believed you have a significant amount of regret about your offending; that you would be very vulnerable if incarcerated; and that you have very good prospects of rehabilitation.
Mr Jackson has expressed similar views in his reports. In his opinion, the most likely cause of your behaviour on the night of this offending was severe alcohol intoxication with associated cognitive and behavioural problems. Neuropsychological testing by Mr Jackson disclosed that while your perceptual intellectual abilities are in the average to high average range, your verbal intellectual abilities are in the low average range. Severe alcohol intoxication is, of course, not a mitigating factor.
In his report, Mr Pereira has expressed the opinion that you have suffered over your life from chronic depression. He also said that currently you remain highly engaged in the process of therapy and the possibility that this affords you to bring about a substantial change in your life. Mr Pereira is of the view that ongoing therapy will be of paramount importance in maintaining your momentum for change, and that any interruption to the current therapy would likely result in significant impairment to your depressive state. Additionally, Mr Pereira gave oral evidence confirmatory of the opinions expressed in his report.
In coming to an appropriate sentence for your offending, I have had regard to the opinions of Dr Cidoni, Mr Jackson and Mr Pereira. I accept that at the time of your offending you were suffering from a chronic depressive condition of sufficient significance to mitigate the sentence that might otherwise be imposed upon you because a sentence of imprisonment may, to some extent, weigh more heavily on you, because of that depressive condition, than it would on a person with no psychological issues. Additionally, I accept that imprisonment may have an adverse effect on your mental health.[1]
[1]See R v Verdins (2007) 16 VR 269.
While you have prior convictions for being drunk in a public place and criminal damage (for which you were sentenced to an aggregate fine of $500 without conviction in 2007), as those offences occurred some years ago and I do not regard them of any real relevance in sentencing you.
On the plea, your counsel tendered 16 letters of reference that are a testament to your good character.[2] I found these letters to be impressive. They disclose you to be a person of very good character but for the offending for which I must sentence you. Plainly the offending you engaged in during the early hours of 16 March 2014 was out of character for you.
[2]There was a 17th letter tendered on the plea, but that letter spoke more to the quality of the parents of the accused than the accused, as its author stated that he did not really know the accused personally.
I accept that you have expressed significant remorse for your offending, and that you are remorseful. By your pleas of guilty you have further shown that remorse; and in addition you have saved the community the expense of a trial, and your victims the ordeal of giving evidence. You are entitled to a discount both for the utilitarian benefit of your plea and for the remorse you have shown.
Having regard to your very limited prior criminal history and the evidence tendered and called on the plea, I am prepared to accept that your prospects of rehabilitation are fairly described as very good. That said, your prospects of rehabilitation are plainly linked, at least in part, to your ability to overcome the substance abuse problems that are described in the various reports to which I have referred.
This was very serious offending. Indeed, it was disgraceful. The lack of regard you showed for the people at whom you drove was breathtaking. Your offending has had serious consequences for your victims, and in particular your primary victim, Mr Forbes. I have read the victim impact statements in this case a number of times. They more than amply demonstrate the effects and consequences of your offending. Specifically, Mr Forbes continues to suffer from the serious injuries you inflicted upon him when you drove your vehicle at, and collided with, him.
Your counsel submitted that this was an appropriate case for a short sharp sentence of imprisonment coupled with a community correction order.[3] Notwithstanding your previous good character, your plea of guilty, your demonstrated remorse and very good prospects of rehabilitation, the psychological matters to which I have referred, and giving full effect to s 5(4C) of the Sentencing Act, in my view that sentencing disposition is not appropriate. The objective seriousness of your offending, using as you did, a Land Rover with a bull bar as a weapon with which to frighten or injure, requires an immediate term of imprisonment, and one that is longer than any period that might be capable of being combined with a community correction order.
[3]See generally, Boulton v The Queen [2014] VSCA 342.
However, in fixing such a term of imprisonment, I have accepted your counsel’s submissions on the issues of totality and cumulation, so as not to fix a total effective sentence that is too high for all of these offences that occurred in a relatively short period.
Taking into account the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act, and having regard to the principles of parsimony and proportionality, on charge 1, I sentence to a term of imprisonment of two years; on charge 2, I sentence you to a term of imprisonment of four years; on charge 3, I sentence you to a term of imprisonment of nine months; and on charge 4, I sentence you to a term of imprisonment of nine months. The sentence on charge 2 will be the base sentence. Nine months of the sentence on charge 1 and three months of the sentence on charge 3 will be served cumulatively on each other and on the base sentence. On the summary charge of offensive behaviour, I order that you be convicted and discharged; and on the summary charge of common assault, I sentence you to 14 days’ imprisonment. I will not order any cumulation in respect of the sentence imposed upon charge 4 or the sentence imposed on the summary charge. This makes a total effective sentence of five years. I fix a non-parole period of three years.
Pursuant to s 6AAA of the Sentencing Act, I declare that if you had not pleaded guilty, I would have sentenced you to a period of imprisonment of eight years with a non-parole period of five years.
Pursuant s 61(6)(a) of the Road Safety Act, I cancel your licence to drive a motor vehicle, and disqualify you from obtaining a driver’s licence for seven years.
I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of five days in custody, and I direct that this fact be noted in the records of the Court.
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