R v Kovacs
[2012] VSC 647
•20 December 2012
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0055 of 2012
| THE QUEEN |
| v |
| LUKE KOVACS |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2012 | |
DATE OF SENTENCE: | 20 December 2012 | |
CASE MAY BE CITED AS: | R v Kovacs | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 647 | |
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CRIMINAL LAW – Recklessly causing serious injury – Recklessly causing injury – Failing to stop after an accident which involved serious injury – Failing to render assistance after an accident – Unlicensed driving – Driving an unregistered vehicle – Plea of guilty – History of driving offences – Limited prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Ms P. Murphy | Victoria Legal Aid |
HIS HONOUR:
On 12 December 2012, you pleaded guilty before me to causing serious injury recklessly to Linda Jarman, to causing injury recklessly to Nicole James and Scott Norman and both failing to stop immediately and rendering assistance to Linda Jarman after the vehicle which you were driving had been involved in an accident in which Linda Jarman had been seriously injured. You also pleaded guilty to summary charges of unlicensed driving and using an unregistered motor vehicle.
You admitted a large number of prior convictions through your counsel Ms P. Murphy. I will deal with them later.
The maximum penalty for your offences are as follows:
· Recklessly causing serious injury : 15 years
· Recklessly causing injury : 5 years
· Failing to stop : 5 years
· Failing to render assistance : 5 years
· Unlicensed driving : not less than one month and not more than 2 years
· Driving an unregistered vehicle : 50 penalty units
The maximum penalties for each of the summary offences are higher than they otherwise would have been because of your history.
On the plea I received victim impact statements from Mark Andrew Jarman, husband of Linda Jarman, Paul Andrew Jarman, the son of Linda Jarman and Leah Nicole Norman, the daughter of Linda Jarman. Their position is a difficult one because their view of the case is that their mother did not recover from her injuries and died as a result.
I understand that point of view because it seems that, to a large degree, Ms Jarman did not recover from her injuries. She suffered complications and never regained her mobility. Her medical condition was complicated and the prosecution took the view that on the whole of the medical evidence a jury could not have been satisfied that you caused her death. I regard that decision as correct.
But it cannot be avoided that Mrs Jarman did suffer a great deal as a result of her injuries. The relationship with her husband, son and daughter was significantly affected because she was confined for most of that period to a wheelchair. Her husband was greatly affected by her suffering and her daughter in particular by the inability to join in activities that they had previously enjoyed together.
I have not received any direct victim impact material from either Nicole James or Scott Norman in relation to the other charges. Their injuries were less serious than those for Linda Jarman.
The plea was opened by the prosecution. I will summarise it. At about 8.30pm on Friday 19 August 2011, you, with your girlfriend Amber Renouf, your cousin Shannon Stevenson and his girlfriend Rebecca Coates, went to visit your father at 8 Gardenia Court, Frankston North. You had gone there in your girlfriend’s red Toyota Celica motor car. The registration had expired and it was known to be unroadworthy.
The two women in your group got into an argument with two women from 9 Gardenia Court. Renouf got into a fight with Nicole James, Linda James and Scott Norman. There was a dispute that arose in the group that Nicole James was knocked to the ground, where she continued to be assaulted by both Ms Renouf and Ms Coates. You eventually intervened and stopped the immediate consequences of that.
The group from 9 Gardenia Court came out to see what was going on and you and your group got back into the car and left. You left, with you as the driver, by driving quickly in reverse out of the driveway and turning left. When you had turned left, you continued to reverse your car at a fast speed towards the group. You were later to say it was your intention to frighten them, but in fact what happened was that you first of all struck Nicole James. Having struck her, you drove in the direction of Scott Norman and Linda James. Scott Norman was struck with the right rear of your car. He remained on his feet and got out of the way.
Linda James, who had been near him, was unable to get out of the way and was struck by the boot area of the car. She was thrown onto the boot by the force of the impact. Observers regarded your driving as calculated and deliberate.
You stopped momentarily and avoided a parked vehicle. You sped out of Gardenia Court. You had not stopped and rendered assistance as the law requires you to do. You made no attempt to otherwise report what had occurred to the police.
You left the scene and apparently disposed of the motor vehicle.
Linda and Nicole James were taken to the Frankston Hospital by ambulance. Linda James had two broken ankles which did not heal properly and she subsequently died on 30 January 2012. As I have already said, you fall to be sentenced for causing her injuries, not her death. Nicole James suffered leg injuries and Scott Norman a leg injury which was treated by his local doctor.
You were subsequently arrested on 7 September and interviewed. You made a number of admissions, the following of which are pertinent:
Q27: “I reversed out of the driveway, and my tyres and my brake pads were worn out, and I slammed on the brakes and it did slide back into them and someone went under the car, and then I dropped the clutch, I drove back over them and drove off.”
You admitted that you were driving an unregistered car. You admitted that the front brakes were not working. You then said:
Q81: “I’ve come down the driveway and I’ve pushed the clutch in, accelerated and let the clutch out real fast and it took off backwards, and then I pushed the clutch in and slammed the brakes on and it slid and knocked into three people.”
And later:
Q85-88: “…it’s what I fucked up… in between 20 and 40K … it’s fast – like, I come out of the driveway like …real quick …‘cos I was trying to scare them … but then I didn’t think properly and I forgot that my tyres are bald and my brake pads were metal and metal.”
Q90: “I knew they were there, I just backed out, not thinking that all my brake pads were metal to metal and my tyres were bald.”
Q114: “it is an accident, but I did- I did intentionally want to come back the driveway fast to hit them- like, not to hit them, but to scare them, you know?”
At question 121 you had admitted that you had made a decision to get rid of the car so you would not get caught. And later:
Q152: “…But then when I’ve looked at the driveway and they’re like, fuck, you know, yelling at, but we’re in the car, that’s when I’m like, ‘No, I’m going to scare them’.”
Q158: “Yeah, I should- I didn't know that if I flew out there it would have slid, but I wasn’t thinking at this stage because I just got hit in the head.”
You admitted that you had never been licensed and have been disqualified on a number of occasions.
There is no doubt that you drove directly and deliberately at the other group. Your plea means that you foresaw the probability that you might injure someone or you might seriously injure someone.
Given the knowledge of the state of the vehicle you were driving, I regard this as a reasonably serious example of offending of its kind.
Your familiarity with the vehicle seems inevitably to indicate that you had driven it previously. I am satisfied that you had little regard for the need for you to be licensed.
You were born on 18 December 1991. Your 21st birthday was two days ago. You have a formidable and serious list of prior offending for a young person. All of your prior appearances have been in the Childrens’ Court. Your first appearance was when you were 12 years old. I think you have about 19 discrete court appearances for about 140 charges. I have tried not to double count matters on appeals or matters for which you were dealt with twice because you breached earlier orders of the court. You were given a number of opportunities, being placed on probation, youth supervision and youth attendance orders before being sent to a Youth Justice Centre. When in custody, your behaviour appeared to have been satisfactory, and it certainly seems to have been during the present period of custody.
The predominant amount of your offending has been for dishonesty and driving, but you also have a number of prior convictions for the intentional destruction of property, particularly around the ages of 14 and 15.
You have two prior convictions for recklessly causing serious injury and prior convictions for reckless conduct endangering both life and serious injury. Much of the conduct relates to the use of motor vehicles. One recklessly causing serious injury involved a motor bike directed at a police officer and, as far as I can see, the reckless conduct charges related to motor cars or motor bikes.
Your background has been a very difficult one. Your parents divorced, having separated when you were six years of age. You have two younger brothers aged 19 and 14. You do not have contact with your mother or the older of those brothers. You have a number of half brothers and sisters, both of your parents have repartnered at some stage and you did not get on with either of those partners. You have a good relationship with your maternal half sister Skye and her three year old son. Your relationship with your father has been much better in recent times than it had been in your early history.
You have been in a relationship with Amber Renouf for two years.
Your upbringing, as I have already noted, was difficult and turbulent. At various times you have lived with either your mother or father, but your father was very violent towards you and your mother provided little or no discipline. You came under the care of the Department of Human Services and thereafter lived in a number of residential units. Your behaviour in those units was largely out of control and it was during that period that you were in trouble with the police frequently.
You had been diagnosed with ADHD (attention deficit hyper activity disorder) when you were five and you were treated for that with dexamphetamine until you were 12.
Your schooling was very limited and you have learning difficulties relating to your mild intellectual disability with respect to your verbal skills.
I received a report from Carla Lechner, Clinical and Forensic Psychologist, dated 17 April 2012. She was concerned that you might have an acquired brain injury as a result of being involved in a serious motor cycle accident in about June 2011, after you had been released from custody but a few months only before these events. The appropriate assessment has been carried out and you do not appear to have such an injury. Attached to Ms Lechner’s report were copies of pre-sentence reports which had been prepared for the Childrens’ Court in 2007 and 2009.
It does appear that over a relatively long period of time many people within the child welfare system did care about you and you were extended many opportunities which you were unable to take. You have often expressed good intentions, but they have not come to much. You have had some small periods of employment; you have liked the work, but you have not been capable of managing the relationships with your employers. You have been working while you have been in Port Phillip, and that is good discipline for you and a good training for you.
You have, over the years, used large amounts of cannabis and have occasionally used ecstasy and ice.
Ms Lechner reported under the heading, “Summary & Opinion”:
Luke Kovacs, aged 20 years, is before the Court pleading guilty to charges of reckless conduct, driving and related offences. The facts of this case are known to the Court, with this report focusing on Luke from a clinical perspective. I note that he has a prior history of offending that has arisen in the setting of an early diagnosis of ADHD that undermined his progress at school and the development of stable social relationships. His home life was “hectic” with Luke allegedly the victim of abuse by both parents. By his mid-teenage years he had left school and was running amok and abusing drugs, this further undermining his already limited capacity for impulse inhibition. Luke’s involvement in this matter occurred not long after his involvement in a serious motor-bike accident in which he may have sustained a head injury. He appears to have panicked in a situation that was escalating out of control. Luke requires a range of treatment services upon his release from custody.
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At interview Luke impresses as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour has on both himself and others. He is easily overwhelmed by social and emotional factors that further undermine his judgment and decision-making. He is impulsive in nature and has a low tolerance for frustration. He also finds it hard to tolerate any level of emotional distress, responding with increased substance abuse as a means of blocking out his anger and anxiety, or alternatively, channelling his feelings through anger. Luke is currently evidencing symptoms of depression at a “mild/moderate” level as measured by the Beck Depression Inventory. Further psychometric testing, albeit limited, indicates that his verbal reasoning and word knowledge skills are in the “extremely low” range, somewhat lower than one might expect and a further reason for more comprehensive neuropsychological testing.
Luke expresses regret for his actions. He reacted to an escalating situation in a panicked and ill-thought out manner, with no real anticipation of the possible consequences. He is deeply distressed at the injuries received by the victim on that day. Luke requires intensive treatment supports that assist him with problem solving and mood management (as outlined above). He would benefit from such programs both in custody and upon his release into the community.
Ms Murphy told me on the plea that you told her that for the first time you had been thinking about the future and know that you will have to learn how to hold down a job, something you have not been able to do in the past, although in the past you have expressed similar ambitions when you have been assessed in the Children's Court.
You had also said, at least in one of those reports, you would just do your time and get out and do your own thing. I am prepared to accept that you have moved on from that. This has been your first real taste of adult custody and it appears to have had a positive influence upon you. Your plea was made at a very early stage and, had it not been for the unfortunate death of Ms James, your case would have been disposed of some time ago.
You also had a charge of manslaughter hanging over your head for a number of months. I have taken into account in your favour your early plea, the question of delay, and the fact of the manslaughter charge hanging over your head. I am satisfied that you are remorseful.
You are young, and although you have a terrible history, I do not regard your prospects as hopeless. I am not sure how realistic your views are about the type of employment you might undertake when you are released, but employment will be available to you and you appear to have the ambition to take it up.
On the evidence, your prospects of rehabilitation have to be regarded as limited, but you may be able to do something with your life now that you have turned 21 which you have been unable to do in the past. Unless you make a decision to better yourself and approach the task in a determined manner, your prospects will be bleak.
I have taken into account your background, your mild intellectual disability and your mild to moderate depression. The offending is serious, your actions were entirely unnecessary and the consequences significant. I am obliged to take into account your history of serious offending and particularly your history relating to the driving of motor vehicles.
I am obliged to have regard to just punishment, denunciation, general and specific deterrence and I have done so.
On the charge of recklessly causing serious injury, you are sentenced to be imprisoned for four years.
On each of the charges of recklessly causing injury, you are sentenced to be imprisoned for nine months.
Six months of the sentence on Count 2 is to be served cumulatively upon the sentence on Count 1. Three months of the sentence on Count 3 are to be served cumulatively upon the sentences on Counts 1 and 2.
For failing to stop and failing to render assistance, you will be sentenced to be imprisoned for six months on each of those charges and three months of the charge on Count 5 are to be served cumulatively upon the sentences on Counts 1, 2 and 3.
In relation to the summary offences, for unlicensed driving you are sentenced to be imprisoned for three months and on the charge of driving an unregistered motor vehicle you will be fined $200.
Pursuant to the provisions of s 28 of the Road Safety Act 1986 in relation to Charges 1, 2 and 3, and pursuant to s 61 of the same Act in relation to Charges 4 and 5, you are disqualified from obtaining any licence for the period of five years from today.
I declare that you have served 470 days by way of pre-sentence detention and I direct that this declaration and its details be entered in the records of the Court. In relation to the total effective sentence, that is five years and I fix a non-parole period of three years before you are eligible for parole.
In relation to s 6AAA of the Sentencing Act 1991, I declare that, had it not been for your plea of guilty, I would have sentenced you to be imprisoned for seven years with a non-parole period of five years, and direct that that matter be entered in the records of the Court.
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