R v Porter, Jay
[2011] VCC 1298
•23 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-00543
| THE QUEEN |
| v |
| JAY PORTER |
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JUDGE: | Judge Gullaci | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 August 2011 | |
CASE MAY BE CITED AS: | R v Porter, Jay | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1298 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. O'Doherty | |
| For the Accused | Dr G. Lyon SC |
HIS HONOUR:
1 Jay Porter, you have pleaded guilty to a charge of culpable driving causing death, the maximum penalty of which is 20 years' imprisonment. Section 89 of the Sentencing Act provides for the cancellation of any licence held by you for a period of disqualification such as the court deems appropriate. You have also pleaded guilty to a related summary charge of driving whilst disqualified, the maximum penalty of which is four months imprisonment or 30 penalty units. Section 28 of the Road Safety Act provides for the cancellation and the disqualification of any licence held by you for a period that the court deems appropriate.
2 The circumstances of your offending have been set out in a summary of Crown opening which has been read into the court record and not challenged by your counsel and I do not propose to repeat all of the detail, however, I will refer to aspects of it.
3 At approximately 610 pm on Friday 12 March last year, a fatal motor vehicle collision occurred on Switchback Road in Churchill. This collision occurred when a Holden Commodore station wagon driven by you which had been travelling west on the roadway to the left and collided with a concrete utility pole. As a result of the collision, the vehicle erupted into flames. Switchback Road at this location is a rural two lane two way road with provision for one lane of traffic to travel in each direction east and west.
4 Located north and south of the roadway was a grass reservation leading to fenced paddocks. Located along the grass reservation both north and south were intermittently placed white coloured flexible guide posts constructed of plastic material. Attached to these guideposts were red and white reflectors. The speed zone in the area is 100 kph and the road surface was in good condition.
5 The deceased, Stephen Leeson who was 19 years of age was the front passenger of the Holden at the time of the collision. You were the driver of the Holden at the time of the collision.
6 At the time you were not licensed to drive a motor vehicle. Your licence had been cancelled and disqualified by the Latrobe Children's Court on 5 October 2009 for a period of 15 months.
7 Subsequent to the collision, a blood sample was obtained by you on your admission at the Alfred Hospital. The sample was later analysed and found to contain not less than 0.23 grams of alcohol per 100 millilitres of blood. Your blood was also found to contain 0.2 millilitres of the drug, Oprazolan.
8 The circumstances leading up to the collision were that you and Mr Leeson were friends and had been friends for many years. On the Thursday night, 11 March you had been out together and consumed alcohol. You both stayed at your home address that night.
9 The following day, the two of you spent the afternoon outside the front of the Porter premises and consumed a quantity of Carlton Draught stubbies. You were both observed throughout the afternoon to exhibit signs of increased intoxication.
10 Between 5.30 and 5.40 pm a neighbour returned home and saw a group of males on the front yard of the Porter premises drinking beer. At approximately 6 pm that neighbour observed the Holden station wagon leave the address with you driving and Mr Leeson in the front passenger seat.
11 As I noted above, the vehicle was driven on Switchback Road in a westerly direction towards the collision scene. The vehicle was observed to travel across the road surface to the right and impact with a number of guideposts erected along the right side of the road. The vehicle then travelled back across the road to the left and off the road surface where the front passenger side of the vehicle impacted a power pole, rotated in anti-clockwise direction and erupted in flames. The force of the collision broke the power pole at the base, causing power lines to fall onto the roadway. You were able to remove yourself from the vehicle. Mr Leeson was trapped in the vehicle and engulfed by flames before emergency services could arrive.
12 Dr Singhala, a forensic physician with the Victorian Institute of Forensic Medicine examined the blood results obtained from the sample taken from you and expressed the opinion "In summary, the level of Oprazolan found in Mr Porter's blood is sufficient to cause gross impairment so that it would not have been possible for him to have proper control of a motor vehicle. The impairment is likely to have been increased by alcohol."
13 Senior Constable Meehan of the Major Collision Investigation Unit investigated the data collected from the scene and expressed the opinion "When the Holden Commodore impacted with the pole, it was travelling between 74 and 93 kph. It is not possible to determine whether the vehicle was slowing or accelerating whilst travelling across the grass verge. There was no evidence of steering input or emergency braking."
14 You were subsequently interviewed by police on 20 May 2010. You acknowledged the collision date, the location and that you were involved in the collision, however, on legal advise, you answered "no comment" to all other questions.
15 I turn to factors personal to you. You were 19 years of age at the time of the collision and are 20 now. You were brought up in the Latrobe Valley area. You commenced your secondary education at Kurnai College in Churchill but when your parents separated, you went to live with your father at Emerald for a year and attended Emerald College.
16 You then returned to Kurnai College with you resumed living with your mother. You left school at the end of year ten and commenced an apprenticeship for a few months but that fell through. You have worked in a variety of jobs including potato picking, labouring at Mt Isa and Darwin and you have worked at various plantations in eastern Victoria. In 2011 you began working at the Wonthaggi Desalination Plant as a labourer.
17 A report from the psychologist, Ms Matthews, was tendered on your behalf. Ms Matthews concluded inter alia (1) that you began using alcohol at the age of 13. By the age of 15 you were drinking most weekends; (2) that you would binge drink to get drunk on most weekends; (3) that you have experimented with other drugs and had consistently used cannabis frequently before the collision and now you use it occasionally; (4) that you report using Xanax for the first time leading up to the collision; (5) that you have no mental illness; (6) that you present with feelings of guilt and remorse; (7) that you present in the adolescent stage of development; (8) that you are not substance dependant; (9) that alcohol and Oprazolan would have been exacerbating factors in your poor driving on that day; (10) that you will benefit from drug and alcohol education.
18 I turn to factors to be taken into account in your favour; (1) your plea of guilty was entered at the earliest opportunity and this entitles you to a sentencing discount; (2) you are a youthful offender who faces the prospect of a term of imprisonment in an adult prison for the first time; (3) you have demonstrated clear regret and remorse and have remained close to the deceased's family who have forgiven you and are present in court to support you; (4) you have good work ethic and history of employment; (5) you have family support; (6) in my view you have good prospects of rehabilitation.
19 I turn to submissions of your counsel. Your counsel, Dr Lyon, S.C. in a carefully prepared and crafted series of submissions, sensibly conceded that the circumstances of your offending warrant the imposition of a term of imprisonment to be immediately served. Dr Lyon submitted an appropriate range of sentence was six to seven years as the head sentence, with a minimum term in the range of three to four years.
20 Dr Lyon relied on the matters listed above as matters to be taken into account in your favour and in addition, relied on his written submissions and the contents of the report of Ms Matthews, together with some references tendered on your behalf.
21 The learned Crown prosecutor submitted that the circumstances of your offending warrant an imposition of a term of imprisonment in the range of six to seven years as the head sentence with a minimum term of four to five years.
22 Relevant sentencing considerations for crimes such as this involve a combination of factors; the seriousness of the offence - in your case offences; your culpability for their commission, your personal history and circumstances, mitigating factors that exist in your case and the prospects of your rehabilitation.
23 In my view, as I stated above, you have good prospects of rehabilitation, yet whilst disqualified and under the influence of alcohol and Xanax, you got behind the wheel of a motor car and the result was the death of your passenger, your friend.
24 Time and time again, this type of offending comes before these courts. Young people die needlessly on our roads. It is the duty of this court and all other courts to do everything possible to deter others from the same type of offending that you have pleaded guilty to.
25 Often such offending is committed by good people with limited or no prior convictions who are in stable work place employment, good history of employment and who have good prospects of rehabilitation. In your case, despite all of these matters which exist in your favour, the sentence of the court must be one that deters you from getting behind the wheel of a car in similar circumstances in the future.
26 You knew that your licence was cancelled. You knew you were disqualified. This had occurred in October 2009 yet for some reason you had access to your car, you drove your car leading to the death of the victim in March 2010.
27 By your criminal offending, not only have you impacted on your own life, but the lives of the family of your friend, the victim and your own family. They too, no doubt, have suffered. No sentence imposed by this court will ever bring your friend back to life. You are extremely fortunate that his family are strong, resolute, have grieved no doubt for long periods of time for the loss and will continue to grieve for their loss but they have chosen to forgive you. With that forgiveness comes a responsibility on you to make something of your life, for you to become fully rehabilitated, be a contributing member of the community. That is what you have to face and that is what you should aspire to.
28 This type of offending is prevalent and calls for the imposition of significant terms of imprisonment to deter others. However, there is still a need and a requirement for the court to consider your needs which often go hand in hand with the community needs. If you are rehabilitated and never get behind the wheel of a car in circumstances like this in the future, then that’s to the benefit of the community. The community is better off. They are protected from you because you would not do what you have done in the past.
29 The court further has an obligation to ensure when dealing with a young person, in my view, not to impose a sentence which is crushing. I have carefully considered the minimum term and have determined that there are good reasons for fixing a minimum term that enhances your prospects of rehabilitation.
30 These reasons include (1) your age at the time of offending. You were only 19. (2) that you face a term of imprisonment in an adult prison for the first time in your life; (3) that you have good prospects of rehabilitation; (4) that it is in the interest of the community for you not to spend a protracted period of time in prison exposed to the negative influences of other more experienced offenders; (5) the matters personal to you and (6) the seriousness of your criminal offending.
31 Taking all of those matters into account, the formal order of the court is as follows:-
32 On Charge 1, culpable driving causing death, you are sentenced to a term of imprisonment of five years and six months. I fix a minimum term of three years before you become eligible for parole. I order any licence held by you is cancelled. You are disqualified from obtaining any licence for a period of three years from today's date, being 23 August 2011.
33 On the summary charge of driving whilst disqualified, you are sentenced to a term of imprisonment of two months, concurrent with the sentence imposed on Charge 1 on the indictment. Any licence held by you is cancelled and you are disqualified for a period of two years in respect to that charge. That disqualification is to commence today and is to run concurrent with the cancellation of your licence on Charge 1. I have limited the cancellation to the period that you will be in custody so that when you are released and in order to enhance your work prospects, that you may then be eligible to apply for a licence.
34 Pursuant to s.6AAA of the Sentencing Act, I am required to inform you what sentence I would have imposed, had you pleaded not guilty and been found guilty by a jury. I would have imposed a head sentence of seven years and six months and fixed a minimum term of four years and six months. I hasten to add that is not the sentence of the court today. That is the sentence I would have imposed had you pleaded not guilty and been found guilty by a jury. The purpose of indicating that sentence to you is to make you and other members of the community aware of the value of your plea of guilty to you in these circumstances.
35 That completes my remarks. Mr Porter is excused now.
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