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DPP v Price (a pseudonym) [2023] VCC 1712 (28 September 2023)

Last Updated: 10 November 2023

IN THE COUNTY COURT OF VICTORIA
AT GEELONG
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for Publication




DIRECTOR OF PUBLIC PROSECUTIONS


v


JUSTIN PRICE (a pseudonym)[1]

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JUDGE:
HIS HONOUR JUDGE GAMBLE
WHERE HELD:
Geelong
DATE OF HEARING:
21 September 2023
DATE OF SENTENCE:
28 September 2023
CASE MAY BE CITED AS:
DPP v Price (a pseudonym)
MEDIUM NEUTRAL CITATION:
[2023] VCC 1712

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW – Sentence.

Catchwords: Negligently causing serious injury – Failing to stop and render assistance after a motor vehicle accident – Victim struck by vehicle at night while standing on roadway outside his house – Collision caused by the accused veering onto incorrect side of the road – Vehicle had been driven only a short distance and not at an excessive speed – Victim sustained spinal injury requiring surgery and lengthy and ongoing rehabilitation – Significant physical and emotional consequences for victim – Early plea and remorse – No prior criminal history – Relevant subsequent convictions for offences committed before and after this driving incident – Very dysfunctional and disadvantaged upbringing – Positive but guarded prospects of rehabilitation.

Legislation Cited: Crimes Act 1958, s 24; Road Safety Act 1986, s 61; Sentencing Act 1991 ss 18, 87P, 89.

Cases Cited: Bugmy v The Queen [2013] HCA 37; DPP v Hermann [2021] VSCA 160; Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

Sentence: 3 years and 3 months’ imprisonment with a non-parole period of 20 months. But for the pleas of guilty, the sentence would have been 4 ½ years with a non-parole period of 2 ½ years.

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APPEARANCES:
Counsel
Solicitors
For the Prosecution
Mr R. Pirrie
Office of Public Prosecutions



For the Accused
Ms A. Patterson
Tony Hannebery Lawyers


HIS HONOUR:

Introduction

  1. Justin Price, you have pleaded guilty to an indictment containing one charge of negligently causing serious injury[2] and one charge of failing to stop and render assistance after a motor vehicle accident.[3]
  2. The maximum penalty for negligently causing serious injury is 10 years’ imprisonment. Because the victim suffered serious injury as a result of this motor vehicle accident, the maximum penalty for the charge of failing to stop and render assistance is 10 years’ imprisonment or a fine of 1200 penalty units.
  3. Upon conviction for each offence, the court must cancel any driver’s licence and permits held by you and disqualify you from obtaining any others. The disqualification period must be for not less than 24 months for the offence of negligently causing serious injury alleged in Charge 1,[4] and for at least 4 years for the offence of failing to stop and render assistance alleged in Charge 2.[5]
  4. Prior to the date of this incident, you and the victim Christopher Ostler had never met. You were then aged 27 and he was 25.

Circumstances of the offending

  1. The circumstances of your offending are set out in the typed summary of prosecution opening,[6] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you fall to be sentenced was also discussed during the course of the plea hearing. I have had regard to that opening and to those discussions when determining the appropriate sentence in your case.
  2. On the evening of 16 July 2019, Mr Ostler was at his St Leonards home with his partner Samantha, and two other people. Upon answering a knock at the front door at approximately 10.10pm, Mr Ostler saw a female he knew named Maddison Lockman and a male he did not know, who was you, Mr Price. A verbal altercation then ensued between the three of you which culminated in Mr Ostler telling you and Ms Lockman to leave.
  3. You and Ms Lockman agreed to leave and were in the process of walking back to the vehicle in which you had arrived, when Mr Ostler followed you outside and instigated another argument in the driveway.
  4. After you and Ms Lockman got into the vehicle, you drove it north past 4-5 houses, to a position approximately 40 metres from Mr Ostler’s house.
  5. You then turned the vehicle quickly, either by way of a U-turn or a three-point turn and drove south along the street, back towards Mr Ostler’s house. As you did so, you accelerated and drove onto the incorrect side of the road, causing the vehicle to collide with Mr Ostler and cause him serious injury. The speed of your vehicle at the time of impact is unknown. However, there is no suggestion that you were driving at an excessive speed.
  6. When struck, Mr Ostler was standing on the road in front of his house, about two to three steps in from the gutter. There were no other pedestrians or parked vehicles in the area at that time. The street was not well lit, although there were some streetlights and some other light coming from Mr Ostler’s house and the headlights of the vehicle you were driving.
  7. Your conduct as just described forms the basis for the offence alleged in Charge 1 on the indictment, negligently causing serious injury. It is important to note that whilst the prosecution allege that you intentionally drove onto the wrong side of the road where you knew the victim had been standing moments earlier, it is not alleged that you intended to hit the victim with your vehicle nor that you collided with him while having a reckless state of mind as to the causing of serious injury. Rather, it is alleged that your actions were criminally negligent in the sense that you drove the vehicle in circumstances that involved a great falling short of the standard of care a reasonable person would have exercised in all of the circumstances and that your conduct involved a high risk of death or serious injury. I make it clear that you will not be sentenced on any other basis than that charged in the indictment to which you have pleaded guilty.
  8. Although Mr Ostler attempted to jump out of the way as the vehicle got close, he was struck by the front of the vehicle and, after making contact with the windscreen, was thrown to the ground.
  9. You failed to stop the vehicle immediately after the collision. Instead of stopping, you drove away from the collision scene without providing any assistance to the victim, not even by calling 000. That failure on your part is the basis for the offence alleged in Charge 2 of failing to stop and render assistance following a motor vehicle accident.
  10. In order to prove such an offence, the prosecution must prove, to the criminal standard, that the driver failed to immediately stop and render assistance while knowing that the accident had occurred and someone had been seriously injured as a result or that the driver ought to have known. In my view, the evidence as a whole, including your answers in the record of interview, is sufficient to establish that you ought to have known that there had been an accident involving a pedestrian who was seriously injured but not that you in fact knew those things. In such circumstances, your level of moral culpability is not as high as it would have been had you been proven to have known that the victim was seriously injured at the time you chose to depart the collision scene.
  11. Fortunately for Mr Ostler, his partner called an ambulance which arrived at the scene a short time after the incident.
  12. Mr Ostler was airlifted to the Alfred Hospital in a stable condition. The serious injury he sustained included a fracture to his L2 vertebral body and a minimally displaced fracture of the tip of the sacrum.
  13. On 17 July 2019, he was required to undergo surgery by way of a T12-L3 posterior spinal fusion during which a metal plate was inserted into his spine.

Update regarding the victim’s medical condition

  1. For some time, the prosecution had been seeking an update on Mr Ostler’s medical condition. On the morning of the plea hearing, the prosecution received and tendered without objection, a report from Dr Joseph Slesenger, a specialist occupational physician. Dr Slesenger had been asked by solicitors acting for Mr Ostler in a pending civil proceeding, to assess Mr Ostler. He conducted an online clinical assessment on 6 July 2023, following which he prepared a report dated 11 July.[7] To assist him with regard to that assessment and the preparation of any report, Dr Slesenger had access to a large volume of medical reports, notes and other information relating to Mr Ostler.[8]
  2. I have had regard to the relevant parts of the report of Dr Slesenger. For current purposes, I note the following:
  3. Dr Slesenger also noted that Mr Ostler told him that he had been having significant mobility issues and had been unable to care for his children since being injured.

Victim impact

  1. The impact of this offending on the victim is one of the matters to which this court must have regard. Clearly, it has been significant until this point in time and will no doubt continue into the foreseeable future.
  2. Apart from the serious physical consequences, Mr Ostler has also been psychologically impacted, including by way of experiencing nightmares and flashbacks after the incident.
  3. On any view, the victim’s quality of life has been materially diminished and it seems unlikely that he will ever be able to resume the lifestyle that he was able to enjoy before being injured.

Interviewed and charged on summons

  1. At the plea hearing, I was informed that there was a delay of some months before the police were able to progress the investigation of this matter due, in part, to the fact that the victim could not identify the offender by name and to the fact that the vehicle involved did not belong to either you, Mr Price, or Ms Lockman.
  2. However, as soon as you became aware that police were making enquiries in relation to Ms Lockman, you handed yourself into police.
  3. As a result, you were interviewed by police about this matter on 2 June 2020, some 10 ½ months or so after the incident.
  4. During the interview, you told police that you had attended at the victim’s home with Ms Lockman because you were seeing her at the time and she wanted to retrieve one of her Tupperware containers from Mr Ostler. However, an argument unexpectedly developed because she apparently owed some money. You told police that Mr Ostler’s behaviour on that night was confrontational and intimidating. In response, you just wanted to drive away and ended up doing a U-turn. In relation to the collision, you told police that while you were aware that something had struck the windscreen, you were not really aware that you had struck Mr Ostler. You also said that it brought back memories of when you, as a four-year old child, had been struck and injured by a vehicle outside your home. You could not estimate the speed of your vehicle at the point of impact but indicated that it occurred only a couple of seconds after you had turned the vehicle around. You described your state of mind at that time as ‘just scared and intimidated’. As for Ms Lockman, you noticed that she was upset and crying.
  5. Following that interview, you were charged and released on summons.

Guilty plea

  1. In order to understand that your plea should be treated as an early one, the following procedural history needs to be taken into account.
  2. The police charges were initially filed in the Magistrates Court with a view to the matter being prosecuted summarily by Victoria Police. The matter resolved when Mr Price agreed to plead guilty to the primary charge of recklessly causing injury and to a further charge of failing to stop and render assistance. However, at the summary plea hearing, the presiding magistrate refused to hear the matter summarily and uplifted it to the indictable stream while indicating that he thought a more serious charge of intentionally causing serious injury should be laid. As a result, the Director took over carriage of the prosecution and the matter proceeded to a committal hearing and, ultimately, to this court. After being case managed, the matter resolved on 9 May 2023 to the charges contained in this plea indictment.
  3. That history is somewhat unusual, including as it does, an earlier intention by the accused to plead guilty on a more culpable basis than ultimately indicted on, and then a situation where he was charged with an even more serious offence at the instigation of a magistrate. To have run a committal in order to test the allegation that he deliberately caused the victim serious injury is understandable and not to be held against Mr Price.
  4. Given all of those matters, Mr Price’s plea is appropriately to be seen as an early one. It demonstrates his remorse, his acceptance of personal responsibility for what occurred, and his preparedness to facilitate the course of justice.
  5. I note that the prosecution agreed that Mr Price’s plea should be treated as an early one in all of the circumstances.
  6. Clearly, any delay in this matter being finalised is not, in any way, attributable to you, Mr Price. I take into account the anxiety that you would no doubt have experienced while waiting to learn your ultimate fate, including the basis on which you were to be sentenced.

Time spent on remand

  1. Although you were initially released on summons for this matter on 2 June 2021, you were remanded in custody on 6 August 2021.
  2. On 15 August 2022, you were sentenced on unrelated charges to an aggregate sentence of 180 days’ imprisonment for which an equivalent number of days were declared as pre-sentence detention.
  3. However, you remained in custody on the current matter until being released on CISP bail on 9 December 2022.
  4. You were then remanded in custody in respect of other unrelated charges on 27 July 2023 and have remained in custody ever since. On 3 August 2023, you consented to your bail being revoked on the current charges and, from that time, you have been held on remand for those charges.
  5. At the plea hearing for this matter held on 21 September, the prosecution and defence agreed that you had spent a total period of 362 days on remand for this matter up to but not including that date.
  6. The total period up to but not including today’s date, is 369 days. That period will be formally declared as a period of pre-sentence detention at the conclusion of this sentence hearing.

No prior criminal record

  1. At the time that you committed the subject offences on 16 July 2019, Mr Price, you had never been found guilty or convicted of any criminal offences.

Subsequent criminal record

  1. However, you do have a relevant subsequent criminal history which is relevant to any assessment of your prospects of rehabilitation and the weight to be given to such other sentencing principles as specific deterrence and protection of the community.
  2. As I have already noted, on 15 August 2022, some 3 years or so after your current offending, a magistrate imposed an aggregate sentence of 180 days for a number of unrelated offences. Whilst a number of the charges were withdrawn and struck out as part of the resolution process, the number of remaining charges for which you were ultimately sentenced was significant and included the following:
  3. A number of those offences were committed before the driving incident of 16 July 2019 in which you seriously injured Mr Ostler, namely an unlawful assault on 24 July 2017, a theft and handle stolen goods on 18 February 2018, a theft on 3 December 2018, a theft on 1 February 2019, a fail to appear on 12 March 2019, and a possess cannabis on 3 April 2019.
  4. The remaining offences were committed after the subject offending of 16 July 2019. The relevant offending dates and periods of those offences can be gleaned from the tendered court super case sheet dated 10 May 2022[9] read in conjunction with the defence email of 21 September 2023.[10] They include the following:
  5. To the extent that there is any explanation of any of the offending encompassed by the subsequent criminal record, I note that the unlawful assault of 24 July 2017 was an incident of domestic violence, a number of the thefts related to petrol station drive offs, the possession of weapons charges related to a number of knives, a baton and a taser, the reckless conduct endangering serious injury offence committed on 6 October 2019 involved you standing by and verbally encouraging Ms Lockman to drive a vehicle at another person, and the unlawful assault and criminal damage offences committed on 7 August 2020 involved a domestic violence incident with Ms Lockman in which you made physical contact with her and damaged some of her clothing.
  6. In relation to that subsequent criminal record, the number and wide ranging nature of the offences is of concern as is the period over which those offences were committed. Of particular concern, given the nature of the current offending, is the reckless conduct endangering serious injury offence and, to a lesser degree, the fail to stop vehicle on police direction and unlawful assault offences.
  7. To some extent, that record demonstrates the serious nature of your drug addiction and, implicitly, the underlying issues which have led you to have recourse to drugs.

Personal circumstances

  1. I now turn to consider your personal circumstances, Mr Price.
  2. You are now 30 years of age.
  3. On any view, your upbringing was a very sad, dysfunctional and disadvantaged one, through no fault of yours. You were conceived as a result of your then 31 year old mother engaging in unprotected sexual intercourse with a 14 year old boy who was staying over at her house. The victim was not able to report the matter until years later, by which time you were about 11 years old. She was charged and ultimately pleaded guilty, receiving a 15 month term of imprisonment which was wholly suspended. That offending has left an unfortunate legacy for both you and your father. I have no doubt that it has impacted on your relationship with him as well as with your mother. The case received some publicity at the time, which exposed you to hurtful behaviour at school and in the community, including online. Your father’s family were hostile towards your mother and you perceived that they blamed you in some way for what occurred. You still struggle to this day with the whole situation and experience internal conflict over your relationship with your parents. It is very regrettable and sad that you have to confront and try and deal with such a situation despite being in no way to blame for what your mother did.
  4. In the early years, you were raised by your mother in Werribee. When you were about 4, you were struck by a vehicle outside your home. Your injuries were sufficiently serious to require a 3 week hospitalisation and a skin graft procedure. Ever since, you have suffered chronic anxiety as a pedestrian or passenger in a vehicle. Your later diagnosis of PTSD is related to this incident. When you were about 9, you moved to your father’s home. Not long afterwards, police charged your mother with the sexual offending against your father that resulted in your conception.
  5. At 14 years of age, you left your father’s home and went to live with your maternal grandmother in Castlemaine. She had only recently been released from gaol after serving a substantial sentence for drug trafficking. In her home, you received very little supervision or discipline. She spent the youth allowance you were then receiving. Following a disagreement, you left her home at age 17.
  6. During the entirety of your childhood, you were exposed to parental and familial drug use. Your maternal grandparents and an uncle were also drug users. When you were only 7 years of age, your twenty year old sister died from a heroin overdose.
  7. While growing up, you were also exposed to significant violence. Among the incidents you witnessed were two family members being stabbed, in separate incidents, a brother being severely beaten by police, your mother being hit in the head with a hammer by a neighbour, and a man being beaten with a pole by one of your brothers. Two of your brothers have significant criminal records and gang connections and are currently in custody.
  8. After moving out of your maternal grandmother’s home, you resided with your then partner who was living with her mother and autistic brother. After four months, her mother asked you to leave and you became homeless. Four months later, your maternal grandmother was diagnosed with cancer and you moved back in with her.
  9. Soon afterwards, you formed a new relationship and commenced to live with your then partner in a share house in Bundoora. When she fell pregnant, the two of you went to live with her mother in McArthur. Further moves followed as her mother did not approve of you. The two of you had three children together. They were born in 2014, 2015, and 2017, respectively. When the relationship ended in March 2019, you became homeless and were denied access to your children.
  10. In June 2019, you formed a new relationship with Ms Lockman while each of you were homeless. You managed to obtain transitional housing in Point Cook but moved out in April 2020 in order to live with a paternal uncle in Truganina. You remained living there until being remanded in custody in August 2021.
  11. Your mother has ten children. She formed a new relationship with a man when you were still quite young. Of your nine maternal half-siblings, six are older than you and three are younger. You also have three paternal half-siblings.
  12. Your mother has a history of drug use and spent time in and out of prison. Each of your older half-brothers have also spent time in prison.
  13. Your counsel described your relationship with your father as ‘strained’ and you currently have little contact with him.
  14. However, you have more regular contact with other members of your family.
  15. Whilst you were in custody for this and other matters, gaining access to your children was a significant motivating factor. However, when you were released from custody, you tried to see your daughter at school on her birthday and this led to her mother (your former partner) obtaining a family violence intervention order prohibiting you from contacting your three children. You have had no contact with those children since March 2023.
  16. In very recent times, you formed a new relationship whilst you were on bail. At the plea hearing, your counsel indicated that your new partner was supporting you in court and that she believed she was pregnant with your child.
  17. In light of your upbringing Mr Price, it is very much to your credit and somewhat remarkable that you advanced as far as you did at school and managed to avoid problematic drug use and criminal offending whilst a child and adolescent and even into your early adult years.
  18. Despite the many challenges you faced, you successfully completed Year 12. Although your academic performance was reasonably good, you were unable to put in as much work as you would have liked on account of your unstable home environment. You were severely bullied at school due to your family’s criminal behaviour and, most notably, because of your mother’s well publicised offending against your father.
  19. After completing school, you obtained a Certificate II in retail. You also commenced, but did not complete a Certificate III in Commercial Cookery, due to financial stress. You also managed to complete 10 months of a 12-month chef apprenticeship, after which you worked as a chef in various businesses in Castlemaine.
  20. Later, you worked in carpentry with one of your uncles. Although not formally qualified, you proved adept and proficient in that trade.
  21. You have not worked since first being incarcerated other than for a brief period with your uncle which you brought to an end in order to focus on your CISP and other bail obligations.
  22. You began drinking alcohol excessively while a teenager but managed to cease when you were aged 19.
  23. You began using cannabis at the remarkably young age of eight by secretly accessing your maternal grandmother’s stash of the drug. That continued until you were aged 11. You resumed use of that drug between the ages of 19 and 20.
  24. In her written submissions, your counsel indicated that in 2019, you were using GHB, MDMA and cocaine, as well as 5-7 grams of cannabis on a daily basis. That ceased when you went to live with your uncle but resumed during your involvement with Ms Lockman. It then ceased when the two of you separated.
  25. You have experienced mental health issues in the past, particularly in the context of the break-down of the relationship with the mother of your children. You have attempted suicide and required inpatient psychiatric treatment on a number of occasions.
  26. The psychologist, Ms Gina Cidoni assessed you on 4 March 2022 while you were at Port Phillip Prison and again, on 24 August 2023, while you were at the Metropolitan Remand Centre.
  27. In her opinion, you meet the diagnostic criteria for the following clinical conditions and personality disorders:
  28. In her view, your negative experiences and unresolved feelings around these, affect you profoundly and are a major contributor to your significant unrest and escape seeking through substance use. And, that substance use has exacerbated your mental illness.
  29. She assessed your general risk of re-offending as moderate. In her view, that risk would reduce if you could maintain abstinence from drugs and alcohol as any relapse would increase your propensity to engage in impulsive, reactive and irrational behaviour, particularly with your underlying mental health conditions.
  30. As you remain vulnerable to relapse into substance abuse, she recommends drug treatment and counselling, as well as targeted behaviour therapy and trauma focused interventions and therapy to increase insight into your underlying mental health issues and develop techniques to manage your symptoms more effectively.
  31. Ms Cidoni expressed some concern about the onerous nature of custody for you in her first report dated 4 March 2022.[11] In her later report of 24 August 2023,[12] she noted that you told her that you found more stability and comfort within the structured routine of prison life. It is somewhat incongruent in that context, that Ms Cidoni then refers to various possible impacts that imprisonment may have on you, particularly when you had already been in custody on two separate occasions by that time. Ms Cidoni found it difficult to make a clinical diagnosis at that time due to your recent use of drugs, the symptoms for which can resemble those of various psychological disorders. She noted your increased and heavy use of drugs in the lead up to your current offending.
  32. Ultimately, your counsel submitted that there was a sufficient basis to consider the principles in Bugmy v The Queen.[13] However, she acknowledged that there was an insufficient evidentiary basis for engaging any of the principles in Verdins. I consider that approach to have been very sensible and proper in the particular circumstances of this case and will approach my sentencing task accordingly.

Matters in mitigation

  1. Your counsel was able to rely on the following matters in mitigation, Mr Price.
  2. Your early plea to these charges spared the victim the ordeal of having to give evidence at trial and facilitated the course of justice. The utilitarian value of that plea is greater as it was entered during the COVID-19 pandemic when this court is facing trial backlogs. Accordingly, the sentencing discount you receive will be greater than it would have been in pre-pandemic times.
  3. I am satisfied that you are genuinely remorseful for the criminal conduct in which you engaged on this occasion.
  4. The time that you have spent on remand for this offending has been more onerous on account of the restrictions that Corrections Victoria have had to implement and, in some respects maintain as a result of the COVID-19 pandemic.[14] Whilst such restrictions will ease as the risks associated with the virus decrease, I am satisfied that the burdensome nature of imprisonment for people in custody will continue for at least the short to medium term.
  5. I also take into account the fact that you do not yet have an entrenched criminal lifestyle and have only limited experience with the prison environment. Furthermore, you have an understandable concern that other prisoners who harbour ill-will towards your brothers may learn of your familial connection and target you. For those reasons too, I accept that prison for you is not an easy environment in which to exist.
  6. Consistent with what was said by the High Court in Bugmy, and the subsequent observations made by the Court of Appeal in DPP v Hermann,[15] the profoundly deprived background to which you were subjected can and should be taken into account in a general way, including when assessing your level of moral culpability for this offending. Such a turbulent upbringing in which you were exposed to personal trauma (including a personal identity crisis), substance abuse and serious violence during your formative years has no doubt shaped your psychological development and subsequent behaviours and contributed to the emergence of your mental health challenges and maladaptive coping mechanisms. It surely is the mark of a humane society to make some allowance for that and to view your moral culpability as reduced.

Gravity of the offending

  1. Apart from matters personal to you, Mr Price, this court must also have regard to the nature and gravity of these offences.
  2. Given the relatively high maximum penalty that attaches to each of these charges, such offences must be viewed as being inherently serious.
  3. The seriousness of any given offence of negligently causing serious injury is largely informed by the degree of negligence involved and the seriousness of the serious injury caused.
  4. In this case, I consider the degree of negligence to be neither high nor low in the spectrum of conduct that can be encompassed by criminal negligence. The driving was of a short duration and over a relatively short distance and did not involve speeding. However, it did involve crossing onto the incorrect side of the road in an attempt to hurriedly leave the scene, and at a time very shortly after you had seen the victim standing in that vicinity. The inherent dangerousness of driving a vehicle in that way is patently obvious. A motor vehicle is a potentially dangerous and even lethal object if driven dangerously, particularly near pedestrians. And that is so even in the absence of excessive speed, although of course the higher the speed the greater the danger.
  5. When assessing the seriousness of the injury caused in this case, one must bear in mind that the spectrum of injuries that are embraced by the legal definition of serious injury is reasonably broad and reaches to the catastrophic. In light of the nature and enduring effects of the spinal injury caused to Mr Ostler, I consider that the serious injury suffered by him is somewhere between the two extreme ends of the spectrum but likely closer to the higher end than the lower end.
  6. The physical and psychological impact of this offence on the victim has been very significant and long lasting. The quality of his life has been markedly reduced and is not likely to revert to what it was before this incident.
  7. As for the offence of failing to stop and render assistance after a motor vehicle accident, it is of moderate severity given the type of conduct that can be charged under the relevant provisions of the Road Safety Act 1986. As I noted earlier, whilst this offence is serious, it would have been even more serious had you actually known that you had struck and seriously injured Mr Ostler. You should have known that and so you are criminally liable for leaving the scene as you did.
  8. Each of the two offences to which you have pleaded guilty have different elements and involve separate and distinct criminality on your part. That said, it must also be borne in mind that those offences are closely connected in a temporal sense.
  9. When viewed globally, it must be said that your offending on this occasion was serious and deserving of relatively significant punishment. So much was in effect acknowledged by your counsel when she conceded that the court was obliged in all the circumstances to impose a sentence comprising a head sentence with a non-parole period.
  10. In determining the appropriate sentence, this court must have regard to the relevant sentencing principles and it is to those that I now turn.

Relevant sentencing principles

  1. For offending of this type, denunciation and general deterrence are significant sentencing considerations.
  2. Serious injuries caused by the criminally negligent driving of motor vehicles is unfortunately not uncommon and of real concern to the community which expects the courts sentencing offenders to denounce such conduct in unmistakable terms.
  3. The courts must play an important role in seeking to discourage those in the community who are minded to drive in a criminally negligently fashion, from doing so. The purpose of doing so is to prevent or at least reduce the number of such incidents and thereby the number of people who are seriously injured and, ultimately, the degree to which the community is negatively impacted by such preventable behaviour. In this context, any sentence imposed must be of some significance if this sentencing objective is to be satisfied. Other would-be offenders must be made to pause and reflect on whether it is worth driving in such an egregious fashion given the risks to others and the likely consequences to those offenders if such risks are realised.
  4. Whilst not as significant, specific deterrence and protection of the community have some role to play in this sentencing exercise given the nature and seriousness of this offending and the substantial number of other offences for which you have been convicted subsequently, some of which were committed after the date of the current offences.
  5. Importantly, this court must punish you in a manner and to an extent that is just in all the circumstances. All relevant matters considered, a relatively significant term of imprisonment is appropriate and unavoidable.
  6. Rehabilitation is another important sentencing consideration. You are now 30 years of age. At the time of this offending, you were 27 and had no previous findings of guilt or criminal convictions. That is a significant matter, especially given the nature and extent of the negative experiences to which you had been exposed while growing up. You have a proven work history and were assessed as intelligent by Ms Cidoni. However, your life has become somewhat derailed in more recent years as you have grappled with relationship difficulties, problems accessing your children and drug abuse. Your mental health issues have been exacerbated. You have now amassed a not insignificant number of convictions in a relatively short period and you need to address that slide as a matter of urgency. I accept that you have some insight and are motivated to do so. Ms Cidoni’s recommendations are eminently sensible ones and it is to be hoped that you receive the sort of professional assistance she refers to, if not during the remainder of your sentence, then during a targeted period of supervised release into the community in the event that you are deemed suitable for parole. I accept that you are motivated to engage if provided such assistance, and that you want to try and reconnect with your children and live a more productive life on release. You will no doubt be assisted in that regard if you can obtain employment upon your release and, following a connection gained while in prison, there is a reasonable chance of you getting a job that will not require you to have a driver’s licence..
  7. Doing the best that I can on the available material, I have assessed your prospects to be reasonably positive but somewhat guarded. Much will depend on whether you receive the professional drug and mental health treatment you so obviously need and on your level of engagement, motivation and discipline, if you do.
  8. Totality is another relevant consideration. Whilst there is a need to properly reflect the different nature of the offence in Charge 2 by way of a modest order for cumulation, the close temporal proximity between the two offences which were committed as part of the one short criminal episode, warrants a degree of restraint in the level of punishment to be imposed.
  9. Parsimony is not to be forgotten in this sentencing exercise. It is in both the community’s best interests, as well as yours, that you spend no longer in gaol than is necessary in the interests of justice. The time that you have spent there to date has been relatively limited and imposing a crushing sentence on you at this point would likely negatively impact on your prospects of rehabilitation.

Sentencing submissions

  1. In her sentencing submissions, your counsel urged the court not to impose a sentence that would be crushing in nature. In her submission, any sentence imposed should allow you the opportunity for release on a lengthy period of parole.
  2. For their part, the prosecution referred to the serious nature of this offending and submitted that a head sentence with a non-parole period was warranted.

Analysis

  1. The submissions made by the parties were entirely appropriate given the nature and seriousness of this offending. The sentences that I intend to impose will result in a head sentence for which a non-parole period will need to be fixed.
  2. I have given somewhat more emphasis to the matters in mitigation when it comes to determining the length of the non-parole period. In my view, it is appropriate to fix a relatively disparate non-parole period in this case. Mr Price has never previously received a lengthy sentence, let alone one with a non-parole period. He should be provided with as much assistance as possible on his release in the event that the Adult Parole Board deems him eligible for such release before his sentence expires.

Sentence

  1. Mr Price, after having carefully considered, balanced, and weighed all of the relevant sentencing considerations in this case, I have decided to sentence you as follows. You will be convicted on each charge and sentenced to the following terms of imprisonment.
  2. On Charge 1, negligently causing serious injury, 3 years.
  3. On Charge 2, failing to stop and render assistance after a motor vehicle accident, 18 months.
  4. The sentence of 3 years imposed on Charge 1 will be the base sentence.
  5. I order that 3 months of the sentence imposed for Charge 2 is to be served cumulatively with the sentence of 3 years imposed on Charge 1.
  6. The total effective sentence is therefore 3 years and 3 months.
  7. In respect of that head sentence, I fix a non-parole period of 20 months.

Pre-sentence detention

  1. Pursuant to s 18 of the Sentencing Act 1991, I declare that Mr Price has served a total of 369 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6AAA indication

  1. Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the charges for which he has been sentenced today, Mr Price would have been sentenced to a total effective sentence of 4 ½ years with a non-parole period of 2 ½ years.

Licence Cancellation and Disqualification

  1. In all of the circumstances of this case, I do not intend to exercise my discretion by exceeding the mandatory minimum periods of licence disqualification which are, on any view, significant periods. In that context, I note that it would not assist Mr Price’s rehabilitation if the disqualification periods were even longer. Accordingly, I make the following orders.
  2. In respect of each of the two charges in the indictment, any driver’s licences or permits held by Mr Price are cancelled.
  3. In respect of Charge 1, he will be disqualified from obtaining any further licences or permits for a period of 24 months.
  4. The period of disqualification for Charge 2 will be 4 years.
  5. The two periods of disqualification will commence today and run concurrently. The total period of disqualification is therefore 4 years.

Other matters

  1. Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Patterson?
  2. MS PATTERSON: No, Your Honour.
  3. HIS HONOUR: Mr Pirrie?
  4. MR PIRRIE: No, Your Honour.
  5. HIS HONOUR: Ms Patterson, providing the custodial officers don’t have any objections, you will be permitted to have a brief conversation with your client in the dock once I leave the Bench. That does not include any of his supporters, it’s restricted to you.
  6. MS PATTERSON: Yes, Your Honour.
  7. HIS HONOUR: Please adjourn the court sine die, Mr Tipstaff.

[1] To ensure that there is no possibility of identification of a victim of sexual offending, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the accused.
[2] Charge 1 on Indictment L11643537.2 laid pursuant to s 24 of the Crimes Act 1958.
[3] Charge 2 on Indictment L11643537.2 laid pursuant to ss 61(1)(b) and 61(3) of the Road Safety Act 1986.
[4] See ss 89(1) and (2) of the Sentencing Act 1991.
[5] See s 61(6) of the Road Safety Act 1986.
[6] Dated 7 September 2023 (Exhibit A).
[7] The report was tendered as exhibit C.
[8] As detailed in pages 2-3 of his report.
[9] Exhibit 7.
[10] Exhibit 8.
[11] Exhibit 2.
[12] Exhibit 3.
[13] [2013] HCA 37.
[14] See Worboyes v The Queen [2021] VSCA 169.
[15] [2021] VSCA 160.

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