DPP v Byast [2020] VCC 2051

3 The details of your offending are contained in the summary of prosecution opening for plea (Exhibit "A"). All of your offending occurred on 4 December 2018. You first offended on that day when you attended Geelong Police Station at approximately 5:30am. Later, you committed further offences when you were driving your motor vehicle at approximately 8:40am.

4 At 5:30am on 4 December 2018, you attended Geelong Police Station to collect a mobile phone which you had accidently dropped there the previous night. You behaved in an aggressive and erratic manner and abused members of the police. You started yelling and banging on the front counter and, after being given your mobile phone, were asked to leave the station. You refused to do so, despite being asked on multiple occasions over a period of approximately 15 minutes. CCTV footage (part of Exhibit "B") shows you to have been wandering around in the foyer of the police station swinging a piece of clothing, dropping your backpack and other possessions in a central area of the foyer where members of the public would need to go in order to access the counter, and behaving in an aggressive way towards a member of the public who was seated in the foyer. This conduct comprises Summary Charge 1, behaving in a riotous manner in a public place.

5 Having been asked repeatedly to leave the foyer of the police station where you were being a nuisance, you then slapped Leading Senior Constable Quinlivan between the shoulder blades with an open palm, after he and another officer had made a further request for you to leave. Your conduct in striking the officer comprises Charge 1 on the indictment, assaulting an emergency worker on duty. Multiple police officers arrived and attempted to escort you towards the door, but you resisted and continued to yell and scream. You were then sprayed with OC foam to the face to subdue you and handcuffed and taken back to the police station. You were charged and released at some stage after 6:00am.

6 As previously stated, you committed further offences whilst driving your motor vehicle at about 8:40am. Shortly prior to that time, Mrs Melissa Lovell got into her vehicle to drive to work. After checking that there was no traffic, she turned left out of her driveway to travel east in Weller Street, West Geelong. By the time she reached the third house from her own home, she observed your vehicle heading towards her at an excessive speed. Weller Street is a two-way street which is only 7 metres wide from kerb to kerb. At the relevant time there were vehicles parked on either side of the road and it was not possible for two vehicles to pass each other. Weller Street crosses Pakington Street. The area is a very busy commercial area with shops and other businesses present, particularly near the intersection of Pakington and Weller Streets. The speed limit in Weller Street was 40 kilometres per hour.

7 Mrs Lovell had no time or space to take any evasive action as she looked in horror at your vehicle rocketing towards her. You made no attempt to slow down or divert the course of your vehicle or to brake prior to colliding head-on with Mrs Lovell's vehicle. The force of the impact pushed Mrs Lovell's vehicle backwards onto the kerb and into shrubbery in a garden area adjacent to a car park on Weller Street. Evidence of reconstruction experts is that your vehicle's air bag inflated and data from its control module shows that 4.6 seconds prior to the collision your vehicle was travelling at a minimum of 108 kilometres per hour. At 1.6 seconds prior to the collision, your vehicle was travelling at 122 kilometres per hour, at which time the air bag inflated. At the time of the actual impact with Mrs Lovell's vehicle, your vehicle was travelling between 125 and 135 kilometres per hour.

8 CCTV footage in Weller Street (part of Exhibit "B") shows the grossly excessive speed of your vehicle leading up to the collision and the enormous force of its impact with Mrs Lovell's vehicle. The footage shows that, as the boot of your vehicle buckled, a host of items sprayed out of it and landed in the front of residential properties in Weller Street. There is a cloud of billowing white smoke visible as your vehicle then proceeds to collide with the rear of a parked white utility on Weller Street and push the utility into the back of a black hatch back vehicle which was parked in front of it. Mrs Lovell was trapped in her vehicle and she suffered very extensive injuries to which I will later refer. This is the conduct comprising Charge 3, negligently causing serious injury. Your vehicle continued in a westerly direction and ultimately came to rest after mounting a footpath on the northern side of Weller Street, by which stage it had rotated and was facing east, that is, back in the direction from which you had come.

9 Police took statements from witnesses who describe that, prior to entering the section of Weller Street which is to the west of Pakington Street, you had been driving your vehicle along the eastern section of Weller Street towards Pakington Street at a very fast rate of speed. You failed to stop at a STOP sign on the eastern side of Weller Street before entering Pakington Street. A witness who was travelling north in Pakington Street had come to a stop at a pedestrian crossing which was approximately 5 metres to the south of the intersection with Weller Street. He noted that you did not slow down, but continued straight across Pakington Street travelling "so fast that it was just a blur". CCTV footage of your vehicle driving in Weller Street prior to the collision shows that you have your right arm hanging outside the front driver's side window as your vehicle travels at great speed. It is very obviously a busy built-up area with both commercial and residential premises along Weller Street. Within seconds of the collision having occurred, a vehicle is seen to pull out of the car park near where Mrs Lovell's vehicle ended up. In the immediate aftermath of the collision, quite a number of pedestrians are seen in the area, as well as vehicles driving in and out of the car park. It is miraculous that there just happened not to be a pedestrian on Weller Street or any other moving vehicles as you drove along it at such an insane speed towards Mrs Lovell's vehicle. Your driving conduct immediately prior to the collision comprises Charge 2, namely, reckless driving which placed or may have placed persons in danger of serious injury.

10 Following the collision, police located two green bags of cannabis, one in the rear of your vehicle and one in debris which had come from your vehicle. They also located inside your vehicle two small zip lock bags which respectively contained 0.4 grams and 0.5 grams of MDA. Your possession of cannabis comprises Charge 4 and your possession of MDA comprises Charge 5.

11 Following the collision you were taken to the Royal Melbourne Hospital and admitted to intensive care. You had a fractured pelvis, double compound fracture of the lower right leg, crushed C5 and C6 vertebrae and an injury to your lower back. A sample of your blood taken at Royal Melbourne Hospital was analysed and found to contain 9ng/mL of Delta-9-tetrahydrocannabinol. This forms the basis of the Summary Charge 9, driving whilst exceeding the prescribed concentration of drugs.

12 Your horribly irresponsible driving has caused far reaching consequences for Mrs Lovell and her family. Mrs Lovell had watched in horror, powerless to protect herself, as your vehicle headed directly towards her. She was then trapped in her vehicle for approximately an hour before emergency services could free her. She had sustained serious injuries, but was conscious. She was in terrible pain, struggling to breathe and felt very ill as she waited to be cut out of her vehicle. She was taken by ambulance to Geelong Hospital and later transferred to the Royal Melbourne Hospital. She suffered a laceration to her liver, fractures to her eighth, ninth and tenth right ribs, fractures to her sacrum and pelvis, a retroperitoneal haematoma, fractures to the talus and medial malleolus of her right foot, fractures to her first and fifth lumbar transverse processes, a laceration to her left thigh and a fracture to her left wrist.

13 On 5 December 2018, Mrs Lovell underwent pelvic fixation surgery at the Royal Melbourne Hospital and was later transferred to Epworth Hospital in Geelong where she spent four months of inpatient rehabilitation. She was seriously incapacitated whilst an inpatient and required assistance with virtually every basic activity of daily living. She was unable to effectively use her right leg or her left wrist.

14 On 12 April 2019, Mrs Lovell was discharged to undertake outpatient rehabilitation, which she engaged in twice per week. It included intensive physiotherapy and she ultimately progressed from using a wheelchair to a walking frame. Unfortunately, her pelvic fracture failed to heal and, on 31 March this year, she underwent further surgery by way of a repeat fixation procedure, this time with a bone graft. This surgery was complicated by a large interoperative bleed which meant that the procedure was not able to be completed and, thereafter, she remained dependent upon a wheelchair to mobilise. On the day following the plea hearing she was due to, again, undergo repeat surgery to try to assist the fracture of her pelvis to heal.

15 Mrs Lovell courageously read aloud a very eloquent Victim Impact Statement (part of Exhibit "C") which should leave you in no doubt about the dreadful effects of your offending behaviour. She and her husband have two children, who were aged two years and six years respectively at the time you collided with her vehicle. Apart from the pain and daily challenges she has suffered because of her injuries which have resulted in her spending a total of six months in hospital over the past two years, being unable drive and being in a wheelchair two years after the collision, she has been unable to care for and participate in the lives of her children in the way that she would have done, and they have been traumatised by her absence and disability. A report from her physiotherapist (Exhibit "F") confirms that Mrs Lovell has reduced walking and sitting tolerance, an inability to engage in high impact activities such as running or aerobics because of her pelvic and ankle fractures, difficulties with sitting and accessing work environments and has the potential of ongoing pain and sensory changes from scars and scar tissue.

16 Mrs Lovell grieves her inability to carry out her role as a mother and worries about the pressures that this has placed upon her husband. In addition, having spent many years studying at university in order to pursue a vocation of working with disadvantaged youth, she has not been able to return to her career. She misses her independence. She suffers adverse psychological consequences by way of Post-Traumatic Stress Disorder and anxiety relating to the trauma of the collision, for which she requires professional counselling. She has gone from having a full and active family, work and social life to being someone who now tires easily, at times cannot follow conversations and forgets details, and has had to rely on others to assist her with many things, including the preparation of meals, childcare and transport. She is vulnerable both physically and psychologically. She feels unsafe outside her home and fears the unexpected, and is anxious about what the future holds for her.

17 A Victim Impact Statement by Mrs Lovell's husband (part of Exhibit "C") reveals the psychological trauma he has suffered. He heard the massive explosion caused by the collision and then ran outside to realise that his wife was the person whose vehicle had been struck. He has a daily reminder of this terrible realisation because the collision site is in such close proximity to their home. He writes of the upheaval in his work life and home life and of having to use his leave to be there for the children, who were frightened about their mother being in hospital. He describes suffering stress on multiple levels-psychological, physical and financial. Like Mrs Lovell, he has needed to seek professional psychological assistance to help him cope, and he describes in poignant terms all the special occasions and milestones in the children's lives which have been missed by his wife.

18 You are presently aged 47 years, having been born on 5 November 1973. You come before the court with an offending history dating back to 1993. You have twice in the past driven with a blood alcohol level exceeding .05 per cent, twice committed the offence of careless driving, on seven occasions driven in excess of the speed limit, on five occasions driven whilst disqualified or your authorisation has been suspended, and on one occasion have assaulted police.

19 In a plea on your behalf by Ms Buckley, the Court was told that the offending for which I must sentence you occurred in the context of you experiencing a relapse of Bipolar Affective Disorder, and you were in a state of mania at the relevant time.

20 Ms Buckley stated that your parents separated when you were five or six and, thereafter, your father played no role in your life, and your mother raised you and your younger sister on her own. You attended secondary school but left in Year 10 to work at a petrol station, and later worked for a few years with an uncle who was a property developer. In your mid-twenties you bought a pizza shop which you operated with your former partner for approximately seven years. You then went on to own a bar in Geelong, which you also ran with your former partner, but this business closed in 2008 when you found yourself in a state of financial distress. Shortly after that you were diagnosed with Bipolar Affective Disorder. You have not worked since and have been in receipt of a disability support pension.

21 Tendered on your behalf at the plea hearing were two reports of a psychiatric assessment by Dr Clare McInerney, respectively dated 2 November 2020 (Exhibit "1") and 30 November 2020 (Exhibit "2"). She records that, following your diagnosis of Bipolar Affective Disorder, you have had approximately thirteen psychiatric admissions between 2008 and 2020, some of them necessitating involuntary treatment. Your counsel stated that you have also been the subject of several Community Treatment Orders. Your treatment records at Barwon Health confirm that your Bipolar Affective Disorder is complicated by longstanding, poor insight and inadequate treatment compliance, and active substance misuse. Over the years you have suffered a dependence on meth‑amphetamine, although your health records document that this has been infrequent in recent years. However, you have a long-term ongoing dependence upon cannabis. You told Dr McInerney that you had consumed cannabis on the evening that you went to the police station, that is, the evening before your offending at the police station in the early hours of 4 December 2018, followed some three hours later by the catastrophic driving offences.

22 In her first report, Dr McInerney referred to your Barwon Health records and noted that you had a history of not complying with anti-psychotic medication and had been put on depot medication, but you told her that some three years ago you decided to test whether you continued to need psychotropic medication by gradually reducing the dose of your depot medication.[1] You were weaned off depot medication completely by August 2018, and changed to oral anti-psychotic medication, but she noted that all records indicated that you did not comply with oral anti-psychotic medication. Your mother apparently called Barwon Health the day before your offending, seeking urgent medical healthcare for you, because she reported that you had broken sleep, irritability, and were argumentative and raising bizarre themes in conversation. At a team meeting, it was decided to offer a mental health appointment to you on 5 December 2018 but, tragically, this came too late, as by this stage the terrible collision had occurred.

23 Dr McInerney noted that your Bipolar Affective Disorder presents as a severe mood disorder characterised by recurrent bouts of mania associated with grandiose and persecutory delusions, so that you become highly disorganised, erratic and unpredictable in your behaviour, which is hostile and risk-taking.[2] She stated that you respond reasonably well to psychotropic medication but have poor insight and impaired judgment, and also have a history of problematic substance abuse. This had included methamphetamine. She was unable to clarify the frequency of such use, but stated that it is clear that use markedly affects your mental health. It also includes long-term ongoing and regular cannabis abuse. She stated:

"Mr Byast's mental illness is very severe, significantly impacting on his functioning. It impedes his ability to seek help appropriately both for his physical and mental health problems.

He has displayed disordered behaviour for several years; in my view this is most likely the result of chronically active psychotic symptoms, combined with the disinhibiting effects of substance misuse."

24 She considered that the evidence suggested to her that you were experiencing a relapse of Bipolar Affective Disorder and were manic at the time of offending, and "this relapse occurred as a result of non-compliance with antipsychotic medication and substance misuse". She noted that you had used cannabis at the material time, but did not consider that the offending "can be explained solely by intoxication".[3]

25 In her second report, in response to a question from your solicitor as to whether mania would have influenced your behaviour at the time of offending, she stated that "severe distractibility is an established feature of mania", and:

"This distractibility will have been exacerbated by his lack of sleep (a feature of mania) and agitation (an established feature of mania) and may also have been exacerbated by recent cannabis use."

26 The latter appears to be a watering-down of her earlier definitive statements in Exhibit "1" that both your bipolar disorder and cannabis use contributed to your offending.

27 Your counsel conceded that, at the time of the collision, you were a daily user of cannabis and that you had admitted to having taken it on the previous night. However, she submitted that the Court could not be satisfied beyond reasonable doubt pursuant to s89C of the Sentencing Act that, at the time of committing Charges 2 and 3, you were under the influence of the drug cannabis, which contributed to the offence.

28 After carefully considering the material before me, I accept your counsel's submission. There is no evidence as to what time you had taken cannabis on the evening prior to the collision or as to the anticipated rate at which cannabis would be eliminated from one's bloodstream. Nor is there evidence as to how the concentration of cannabis found in your blood stream would be expected to have impacted upon your driving skills, if at all. In these circumstances I cannot be satisfied beyond reasonable doubt that, at the time of committing either Charge 2 or Charge 3, you were under the influence of cannabis which contributed to your offending. Further, given that you were a daily user of cannabis and there is no evidence as to whether there may have been some concentration of cannabis still in your blood stream from usage earlier in time than the evening before the collision, I cannot be satisfied beyond reasonable doubt that it was an aggravating feature of your offending that you would have been aware that cannabis was still present in your blood at the time of your driving. This is a distinct consideration to whether you were aware that, given you had a Bipolar Affective Disorder, you should not have been using cannabis.

29 Your counsel conceded that, during your lengthy history of treatment with Barwon Health, you had been told that you should not be using cannabis and, in her first report (Exhibit "1"), Dr McInerney had noted that "Barwon Health records documented poor engagement with drug rehabilitation counselling."[4] Hence, although I am not satisfied beyond reasonable doubt that, at the time of offending, you were under the influence of the cannabis in your bloodstream and that contributed to your offending on Charges 2 and 3 in that it impacted upon your driving ability, I am satisfied beyond reasonable doubt, in accordance with Dr McInerney's opinion, that your state of mania in the weeks and months leading up to, and at the time of, the offence was related to you having ceased taking antipsychotic medication by August 2018, together with the disinhibiting effects of ongoing substance abuse in those weeks and months, both intermittent methamphetamine use and daily cannabis use. My view is supported by the contents of a letter dated 16 January 2019 from Dr Hamish Gunn, psychiatric registrar at Royal Melbourne Hospital, which recorded:

"Impression on initial review was of a manic relapse on (sic) BPAD in the context of being unmedicated since August, recent death of friend and ongoing cannabis misuse."[5]

30 Charge 3, negligently driving a motor vehicle causing serious injury, is an offence which punishes driving that would have constituted manslaughter by criminal negligence if Mrs Lovell had died. It involves criminal negligence which is negligence of a high order involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances and a high risk that death or serious injury would result from such negligence. The maximum penalty of 10 years' imprisonment is an indicator of the seriousness of this offence. Cars are potentially very dangerous weapons if not driven properly. Every driver of a car owes a duty to take reasonable care towards other road users. In determining where your offending on this charge falls on the scale of seriousness, I must look at the degree of departure from the standard of care which a reasonable person would have exercised in all of the circumstances, as well as the seriousness of the injuries caused.

31 There are very grave aspects to this offending, which are as follows: Weller Street was a narrow street which, at the relevant time had cars parked on either side of it such that it would have been obvious to all road users that two vehicles could not pass each other; it was both a residential and commercial area which was busy in terms of both vehicular and pedestrian traffic; it had a speed limit of 40 kilometres per hour and the speed at which you were travelling at the time of impact was in excess of three times that limit; the weather was fine and visibility was good and there was no reason why you should not have seen Mrs Lovell directly ahead of you travelling in the opposite direction; not only did you not decrease your speed and not brake but the evidence is that you increased your speed in the seconds prior to the collision. The objective seriousness of this offending is high.

32 All of the circumstances which I have just mentioned created a high risk that your driving would cause death or serious injury and, indeed, the injuries which you caused to Mrs Lovell are serious. The ongoing consequences to her physical and psychological pain and suffering, and detriment to her life because of that, and the impact upon her husband and her children and their quality of life, have been devastating.

33 It is clear that, generally, in sentencing for such offending, emphasis must be placed on denunciation of your conduct, general deterrence and just punishment. Given that you have a very poor driving record, some emphasis must also be placed on specific deterrence.

34 I am mindful that the Court of Appeal noted, back in 2015, that current sentencing practices, then, for the upper category of this offence of negligently causing serious injury were inadequate. By way of general guidance the Court considered that sentences of 6 or 7 years would be well within range for serious examples of this offence.[6]

35 Balanced against the objective gravity of your offending is the fact that you unhappily have suffered Bipolar Affective Disorder for many years and continue to suffer that disorder. The prosecution does not dispute the opinions of Dr McInerney that, at the time of your offending, you were experiencing a relapse of Bipolar Affective Disorder and were in a manic state. I have already referred to Dr McInerney's description of the features of your disorder in her first report.[7] She noted that the severity of your mental illness impedes your ability to seek help appropriately for both your physical and mental health problems.

36 In her second report, Dr McInerney stated that, at the time of your driving offences, the evidence suggested that you were heavily preoccupied with your inner world and had just had an altercation with an acquaintance a short time before. She expressed the view that you most likely experienced such extreme distractibility due to your mania that you either did not see Mrs Lovell's oncoming vehicle or did not register that you were going to crash into it. She stated that severe distractibility is an established feature of mania. However, she also stated that this distractibility would have been exacerbated by your lack of sleep (a feature of mania) and agitation (an established feature of mania) and may also have been exacerbated by recent cannabis use. She noted that risk taking behaviour and unpredictability and dangerous driving are established features of your illness. Overall, she considered that you had a diminished level of mental functioning as a result of your chronic mental illness which affects your ability to manage your stress and adversity. However, as I have already noted, she clearly stated in her first report that the relapse of your condition occurred as a result of non-compliance with antipsychotic medication and substance misuse.

37 Dr McInerney noted that you respond reasonably to psychotropic medication. Indeed, following this offending, whilst you were being treated in hospital for your physical injuries, you were placed on Olanzapine and your mental state gradually improved. At the time of the plea hearing on 7 December 2020, you were being managed by fortnightly depot injections of Zuclopenthixol from Barwon Health, which apparently replaced the Olanzapine tablets. At some stage, the dosage increased from 200 milligrams per fortnight, as mentioned in the report of Dr Denton from Kardinia Health dated 25 November 2020,[8] to 300 milligrams per fortnight as mentioned in Dr McInerney's report.[9] Dr McInerney also noted that the 2020 mental health records from Barwon Health documented an overall more stable mental health situation since you had resumed taking long acting injectable antipsychotic medication albeit that you had not ever achieved full remission and had longstanding reduced functioning.

38 Ms Buckley, on your behalf, acknowledged that the seriousness of your offending was such that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period. Nevertheless, she submitted that the Court should find that your long term Bipolar Affective Disorder impaired your mental functioning at the time of offending so as to reduce your moral culpability and, therefore, the emphasis to be placed upon denunciation, general deterrence and specific deterrence, in accordance with the principles in R v Verdins.[10] She also drew to the Court's attention the opinion of Dr McInerney expressed in her second report that your chronic mental illness affects your ability to manage stress and adversity and, thus, would be likely to impact upon your ability to cope with the stress of imprisonment, you would be more likely to develop low mood or anxiety and would be more likely to have a relapse of your mental illness, as well as being more vulnerable to others because of it.[11] Accordingly, Ms Buckley submitted that the Court should find that principles five and six in Verdins case applied, in that a term of imprisonment would weigh more heavily upon you than upon a person in normal health and there was a serious risk that imprisonment would have a significant adverse effect upon your mental health.

39 In response to your counsel's submissions, Mr Grant for the prosecution submitted that each of the limbs of Verdins case has a role to play in your case, however, it is difficult to determine the extent to which those principles should reduce your moral culpability due to the fact that your relapse into a state of mania at the time offending was attributable to you failing to take antipsychotic medication as you knew you should have done. In addition, although I have indicated that I am not satisfied beyond reasonable doubt that you should necessarily have been aware that cannabis was in your bloodstream at the time of driving and, hence, would have affected your driving, I have indicated that I am satisfied beyond reasonable doubt that your abuse of illicit substances in the weeks and months prior to your offending contributed to your relapse into a state of mania.

40 Whilst there should be some reduction in your moral culpability attributable to your Bipolar Affective Disorder, I do not consider that the full benefit of the principles in Verdins case should be applied in your case as it is apparent that, over a considerable number of years you have been non-compliant with your antipsychotic medication which, if administered regularly, keeps your bipolar condition well controlled. Although Bipolar Affective Disorder is an unenviable affliction, yours is not a disorder which is resistant to treatment. You have shown a repeated disinclination to be responsible about your mental health and, despite being made aware that you should not be using illicit drugs, you have continued to do so. The latter factor, in combination with your non-compliance with medication, led to your state of mania increasing in the weeks and months leading up to the day of the collision.

41 Whilst it is plain that your non-compliance with anti-psychotic medication is not an aggravating factor which should increase the sentence to be imposed, that factor, coupled with your substance abuse, makes you a risk to the community, as does your lack of insight and lack of motivation to improve your situation. The balancing of these matters makes for a difficult sentencing exercise. Ms Buckley noted that, in accordance with the history which you gave to Dr McInerney, you had been distressed by a death of a friend in recent times before the offending and, on the day of the offending had had an argument with another friend very shortly before getting into your vehicle and committing the offending on Charges 2 and 3. Whilst I acknowledge that a person with Bipolar Affective Disorder is more liable to be destabilised by such stressors, the fact of the matter was that you were already destabilised and had been for weeks and months since going off your antipsychotic medication and continuing to use illicit drugs.

42 I do take into account that serving a prison sentence with your mental illness would be more onerous than for somebody without that illness. I also accept that there is a risk that your mental health may deteriorate in prison, particularly if you become stressed and cease complying with your antipsychotic medication in circumstances where you cannot be subject to a Community Treatment Order whilst in custody.

43 Another factor which I take into account in sentencing you is that you have suffered extra curial punishment by way of the serious injuries sustained by you in the collision. You were flown by air ambulance to the Royal Melbourne Hospital and treated for a compound fracture of the right tibia and fibular which required reconstructive surgery and a skin graft from the left forearm over the right lateral ankle. You also fractured two metatarsals of the right foot, two cervical vertebra (C5 and C6), your pelvis (which required fixation with plates and screws), and sustained a wound to the abdomen (which required surgery and a skin graft) and a puncture wound to the right thigh muscle. You remained in the Royal Melbourne Hospital until 24 January 2019 for treatment of these injuries, together with treatment of your Bipolar Affective Disorder by way of administration of Olanzapine. Upon being discharged from Royal Melbourne Hospital, you were admitted to the Grace McKellar Centre for inpatient rehabilitation. However, against medical advice, you discharged yourself from there on 14 February 2019.

44 Even after this dreadful collision with such catastrophic consequences, you again ceased to comply with your antipsychotic medication and to abuse illicit substances and also neglected follow up treatment for your own physical rehabilitation. You required a Community Treatment Order under the Mental Health Act in August 2019 and began receiving fortnightly depot injections which have continued to the present time. Your counsel stated you have ongoing limited mobility and require walking sticks or a wheelchair in order to mobilise. You have become morbidly obese. Recently, you have had problems with a weeping wound on your right ankle and, in addition to your depot injections, have required Voltaren medication from time to time, as well as Ventolin for asthma. I accept that, on top of your mental health problems, these physical injuries and limitations add to the burdensome nature of your time in custody and your problems with mobility increase your vulnerability to adverse attention from other prisoners.

45 I also take into account that, following your remand into custody by me on 7 December 2020, you have been required to be in isolation for 14 days because of the requirements of the COVID-19 pandemic. This is a particularly onerous way in which to commence your first ever sentence of imprisonment. I acknowledge that, in prisons, there are ongoing restrictions due to the pandemic, including reduced out of cell time and availability of programs, as well as the prohibition on contact visits. These make serving a term of imprisonment more onerous and, although I am unable to project how long such restrictions may continue in prison, I do take them into account as best I am able.

46 You are entitled to a discount on your sentence because you have pleaded guilty to the offences. You were unrepresented for the first couple of committal mention hearings but, at the third committal mention on 17 April 2020, you pleaded guilty to the offences, thereby accepting responsibility for your offending and facilitating the course of justice. Your pleas of guilty have extra utilitarian value given that no criminal trials were able to be run during the pandemic until a limited number began last month. I also take into account that you have exhibited some remorse by expressing regret for your offending[12] and stating that you were upset that your actions had led to the injury of another person.[13] I note that Dr McInerney opines that, due to your chronic mental illness, you have a blunting of normal emotions and a relative inability to express feelings or display remorse that might be considered typical in this situation.[14]

47 Unhappily your offending comes on top of a record of very poor driving and a disregard for the law and I have already noted that you have a prior conviction for assaulting police. Having said that, the assault of Leading Senior Constable Quinlivan, which comprises Charge 1, was towards the lower end of the scale. However, it did come in the context of you having been asked repeatedly to remove yourself from the foyer of the Geelong Police Station where you were making a nuisance of yourself. Police have a hard enough job without having people physically assault them.

48 As far as Charge 2 is concerned, your conduct endangering others was serious given your high speed (between 108 and 114 kilometres per hour) and disregard of a STOP sign and the fact that it was a busy residential and commercial area where pedestrians and vehicles were present. I am conscious that the offending on this charge occurred whilst you were in a manic state, immediately prior to your offending on Charge 3. While recognising that these are two discrete offences, I acknowledge that the principle of totality is an important one in all the circumstances.

49 I consider that Charge 4, possession of cannabis, Charge 5, possession of MDA and summary Charge 9, driving with an excess of the prescribed limit of an illicit drug, are appropriately dealt with by way of fines. I am mindful that your offending on summary Charge 1, behaving in a riotous manner, was proximate in time to your offending on indictable Charge 1, the assault of Leading Senior Constable Quinlivan. I consider that a fine is appropriate for summary Charge 1.

50 Whilst acknowledging that being afflicted by a mental health condition like Bipolar Affective Disorder is very challenging for you, your life could have been better had you been prepared to engage with treatment for it, as well as treatment for substance abuse. Your years of non-compliance with your antipsychotic medication and your years of substance abuse leading up to this offending, together with the fact that, even after such a monumental collision causing serious injuries to Mrs Lovell and yourself, you again ceased to comply with your antipsychotic medication and abuse substances, causes me to be pessimistic as to your prospects of rehabilitation. The following statement of Dr McInerney underlines the dilemma of the challenges you face in rehabilitating yourself and the fact that those same challenges make you an ongoing risk to the community:

"Given the close link between Mr Byast's mental illness and offending, reducing the risk of recidivism requires very assertive management of Mr Byast's mental health and management of his substance misuse".

"If Mr Byast were to achieve or approach abstinence from cannabis and methamphetamine, this would both markedly improve his mental health prognosis and reduce his risk of coming into contact with the criminal justice system. His mental illness makes it more difficult for him to develop and sustain the motivation to abstain".

51 Doing the best that I can, I have structured a sentence which endeavours to achieve denunciation, deterrence just punishment and the protection of the community, whilst bearing in mind your need for treatment for your mental health and drug abuse issues. I am mindful that your life is not an easy one both psychologically and physically and that you have minimal supports in the community and will need a great deal of structure and supervision in order to reintegrate into the community, where your mother seems to be your main support. I consider that you are likely to need very intensive supervision for your many needs in order to reintegrate back into the community. This has caused be to assign a longish potential parole period. However, whether you are granted parole is entirely a matter for the Adult Parole Board.

52 On Charge 1, assaulting police, you are convicted and sentenced to be imprisoned for a period of 3 months.

53 On Charge 2, engaging in reckless conduct that placed or may have placed other persons in danger of serious injury, you are convicted and sentenced to be imprisoned for a period of 2 ½ years.

54 On Charge 3, negligent driving causing serious injury, you are convicted and sentenced to be imprisoned for a period of 6 years.

55 On Charge 4, possessing cannabis, you are convicted and fined $200.

56 On Charge 5, possessing MDA, you are convicted and fined $200.

57 On Summary Charge 1, behaving in a riotous manner, you are convicted and fined $300.

58 On Summary Charge 9, driving with more than the prescribed concentration of drugs present in your blood, you are convicted and fined $500.

59 The base sentence is that imposed on Charge 2 of 6 years. I order that 1 month of the sentence imposed on Charge 1 and 10 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 3 and upon each other. Save for such cumulation, the sentences are to be served concurrently.

60 The Total Effective Sentence is thus 6 years and 11 months' imprisonment. I order that you serve a period of 4 years' imprisonment before becoming eligible for parole. I declare a period of 10 days' pre-sentence detention to be time reckoned as already served under the sentence imposed this day.

61 On Charge 3, pursuant to s89(2)(b) of the Sentencing Act, I order that all licences to drive be cancelled and that you be disqualified from obtaining such a licence for a period of 5 years.

62 On Summary Charge 9, pursuant to s50(1E)(a) of the Road Safety Act, I order that all licences to drive be cancelled and that you be disqualified from obtaining any such licences for a period of 6 months concurrent with the period of disqualification imposed on Charge 3.

63 On Charges 4, 5 and Summary Charge 9, I order pursuant to s78(1) of the Confiscation Act 1997, that there be forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. This order refers to 54.2 grams of cannabis and 0.9 grams of methylenedioxyamphetamine.

64 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 9 years and 3 months with a non-parole period of 6 years.

[1] Paragraph 3.3, page 3 of Exhibit "1"

[6] Harrison v R; Rigogiannis v R [2015] VSCA 349 at [141]

[7] Paragraph 23 of these sentencing remarks

[10] [2007] VSCA 102

[12] Exhibit "1", paragraph 9.5, page 5

[13] Exhibit "2", paragraph 3.4, page 4