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HIS HONOUR: Stephen Thompson, you are to be sentenced for one charge of negligently causing serious injury. The maximum sentence is ten years imprisonment.
You pleaded guilty before this court on 8 December 2015. When interviewed by police on 5 March 2015, you made a full and remorseful confession. Committal went by hand-up brief, after which you pleaded guilty and the matter was listed for plea hearing in these March sittings at Mildura.
You receive the benefit of your plea of guilty and a high level of cooperation, both from an early time. For example, it is important that your victim has not suffered the stress of giving evidence about what happened to her and the aftermath of that. You have also expressed your remorse in a letter to her, conveyed through the police informant.
At your plea hearing, which ran on 15 March, Mr O'Doherty for the Crown tendered a written Crown opening and the victim impact statement of Alexia Naef. That was read before me in court. Mr Halpin, for you, tendered a number of letters of character reference, the psychological report of Ian Joblin, dated 6 July 2015, your letter of apology to Alexia Naef, the letter or report of Dr Tom Callaly and Chris Harvey of Mildura Base Hospital concerning treatment of your mental health problems there in February to August 2015 and certificates related to rehabilitation programs completed by you in remand custody.
The circumstances of your offence are comprehensively stated in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter. In February to March 2015, you were struggling with the terminal illness of your mother, additional burdens related to family properties and, I would find, a very heavy drinking habit. It was pointed out that you were referred to Mildura Base Hospital mental health services on 17 February, about three weeks prior to your offence.
The tendered report, Exhibit 4, states:
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Mr Thompson had presented to the emergency department following engaging in acts of deliberate self-harm and voicing vague suicidal ideation in response to a range of psychosocial stressors. Upon assessment, Mr Thompson was discharged home into his own care, with regular community follow up to monitor his mental state and risks.
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On Wednesday 4 March, you seem to have begun drinking at lunchtime. Between then and the time of offending, you drove between Nichols Point, Irymple and the Red Cliffs Hotel. These are areas on the outskirts of Mildura and entail, I was told, journeys as to each of at least ten kilometres. The inevitable finding is that, having drunk eight stubbies of beer at your home, you were progressively more affected by alcohol until after, almost three hours at the hotel, you began to drive to your home at Nichols Point. You decided to take the back roads, after finding difficulty holding a position within marked lanes on the main road. At about 8 pm, travelling north along Cureton Avenue, Nichols Point, you failed to negotiate a left-hand bend, went to the wrong side and on to the gravel shoulder. Upon attempting to correct, you lost traction and struck Alexia Naef, who had been riding her bicycle with a friend toward you. Expert examination at the scene reveals that you continued about 35 metres after striking her, before coming to rest and that you had been travelling at about 60 kilometres per hour.
At approximately 10 pm, you underwent a breath alcohol test, which revealed a concentration of .292 per cent. You were too intoxicated to be interviewed until the following afternoon. Expert evidence reveals uncertainty about the exact level of alcohol concentration at the time of offence. However, it is conceded to be very high. I find that you were very intoxicated.
Alexia Naef was very seriously injured. Paragraphs 6 and 7 of the Crown opening state as follows and I quote.
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The victim was treated at the Mildura Base Hospital, where she was treated for a fractured fibula, a fractured coccyx, her pelvis was fractured in three places, a fractured L4 vertebrae, partial scalping.
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Initially she spent three days in hospital. She then returned to hospital for treatment for a morel - lavellee lesion to her left leg (deep bruising, requiring constant drainage), where she spent an additional eight days having the lesion or bruise treated and drained.
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The victim impact of Alexia Naef is a powerful statement of not only the physical and emotional impact of your offence; but also her determined battle to return to health and her former life. The physical injuries have been painful, distressing and highly debilitating. The medical treatment has been long, arduous and punctuated by frustration and disappointment. The psychological impact has been very high. There are symptoms of fear, anxiety, night terrors and depression. Financial and social life has been affected. I am not complete.
The final two paragraphs of her statement are as follows.
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"I feel as if I have lost my ability to be a contributing part of society in relation to my professional work, self and my ability to function vocationally. Prior to the accident, I was on the path to becoming a registered psychologist and hoping to do so by the end of this year. I was working as a psych intern with children who have their own complex trauma histories. Not only have the therapeutic relationships been broken with my vulnerable clients, I am still unable to work with them until the traumas of my own experience have been resolved. I also will no longer be able to finish my registration training by the end of the of the year, which also ends my hopes of beginning a doctorate next year.
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This event has changed my life forever. It has tested my character and strength. I now see the world in a very different way, which will last a lifetime. This journey has challenged my ability to forgive, to understand and offer compassion and yet, despite what has happened to me, despite the ongoing obstacles I have had to overcome, I have still found capacity for these abilities deep within my soul and I offer them to you, Stephen Thompson."
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Before me, Ms Naef stated that there will be further surgery on her knee, ongoing physiotherapy and psychological treatment. Doctors are guarded, but hopeful, about full recovery. If that is to be, it will take some time.
You are a 52 year old man. You live in the Mildura area and work as a vineyard manager. There seem to be two family properties. Your mother died of cancer in early February. You were not able to attend the funeral, because of your remand situation. Your father and a sister supported you in court. You have a younger brother and sister, and an older brother. After leaving school at Year 10, you completed an apprenticeship and worked as a builder in this area for a number of years. In recent years, you have taken up further responsibility for the family vineyard. You have married, but are divorced, having separated about three years ago. You have two sons, aged 17 and 19. They live with their mother. The separation of your family and related concerns have had an impact upon you, ongoing at the time of the offending.
You have one prior court appearance. In April 1987 you were convicted for driving under the influence and above the prescribed alcohol concentration. It is now almost 30 years old and you are entitled to consideration of your good character. The character evidence tendered speaks well of you. However, I have noted the then blood alcohol reading to have been .200 per cent. More particularly, your reading at the time of this offence was very high. Mr Joblin's report does not state a clear diagnosis of alcohol dependence. However, it is difficult not to be concerned about this. At least, you have been a very heavy drinker at given times; as to this offending, at a time of emotional and psychological distress.
Perhaps consistent with this, there is a subsequent allegation of a driving offence involving intoxication. In September 2015, you were found or intercepted by police after a minor, single car accident. You and your female partner were at the scene. You were observed to be intoxicated. You are charged as being the driver. I was told that you deny that and will contest the charges. Having heard the circumstances alleged, instinct causes me considerable concern. For example, guilt of such an offence may significantly impact upon assessment of your remorse for this offence and prospects for rehabilitation. However, you do not stand as guilty of the subsequent matter and I resist using it in such ways.
Mr Joblin diagnoses clinical depression. Your psychological state, already under treatment, deteriorated as a result of the offence. It appears that the police called a CAT team on 5 March. The Mildura Hospital mental health services report goes on to state:
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Mr Thompson was reassessed in the Mildura police cells on 5 March 2015 following concerns raised by police that he was acutely suicidal following the incident and subsequent charges currently before the court. Upon assessment, Mr Thompson was transported via ambulance to Mildura Base Hospital, where he was admitted to the mental health inpatient unit as a voluntary patient to contain his risk of suicide.
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Mr Thompson remained a voluntary patient of the mental health inpatient unit until 16 March 2015, at which time he was discharged home into the care of his parents. The formal discharge diagnosis given to Mr Thompson on this occasion was 'situational crisis' and 'alcohol dependence'.
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Outpatient treatment, including by medication and counselling, continued until August. Diagnoses seem to be depressive and anxiety disorders and alcohol dependence in remission.
Mr Halpin's submissions included reference to comparative Court of Appeal judgments, which included the case of Harrison and Rigogiannis v R[2015] VSCA 349, which stated: then present current sentencing practices for this offence to be too low. As put by Mr Halpin, it set down guidelines for future sentencing. Mr Halpin pointed to parts of the judgment which stated that present sentencing practices remain a relevant consideration where there has been a plea of guilty presuming sentence on the basis of such practices. You entered a plea of guilt prior to the handing down of judgment in Harrison and Rigogiannis. I propose sentencing you by reference to current sentencing practices as relevant. That is, not by reference to the guideline range stated in that case. The Crown has not argued against this.
Nevertheless, I see this as a very serious example of negligently causing serious injury. Comparative cases, including those raised by Mr Halpin, give some but not absolute assistance. Here, the level of negligence was high, given your very high level of intoxication and decision to drive some distance along back roads. You are a mature man, cautioned by your earlier, albeit very old, experience of conviction for drink-driving. Your intoxication clearly caused the misjudgement or failure to control, which in turn caused the very serious injuries suffered by Alexia Naef. Those injuries and their impact upon her have been very great.
Accordingly, relevant sentencing considerations include deterrence, particularly general deterrence, your moral culpability, which cannot be seen as reduced by intoxication, and the need to condemn your offence. The proportionate punishment must be a substantial term of imprisonment.
I have taken into account mitigating and moderating factors. They include the following.
1. Your plea of guilty and cooperation. You have expressed remorse at the scene, to police in interview, by your letter to Ms Naef and by your plea.
2. Your personal and psychological circumstances. This includes at the time of offending and since. Mr Joblin's report lists a number of psychological stressors existing for you at the time leading to the offence. They related to various family problems and your high workload. Mr Halpin did not rely upon the so-called Verdins principles, arising out of your psychological symptoms. They should still stand as a relevant part of the personal context for your sentence. I do find that imprisonment has been and will continue to be more difficult for you because of your fragile psychological state.
3. Your otherwise good character over many years. Despite misgivings about the subsequent allegations, I must see you as having genuine prospects for rehabilitation.
4. You were remanded without bail for the subsequent charge or charges. However, you remained on bail for this offence until it was revoked on 16 November. I find that my declaration of pre-sentence detention related to this proceeding before me can only run from that date. However, the so-called lost time from mid-September to mid-November can be taken into account in the way such cases as R v Renzella permit. That is a period of approximately two months.
I feel that I have given proper consideration and weight to such moderating factors. However, as stated, this is a serious example of the offence and the sentencing purpose of general deterrence must be seen as the primary purpose. Having taken into account what I see to be the relevant matters, I sentence you as follows. Stand up please?
For one count of negligently causing serious injury, you are sentenced to imprisonment for three years and ten months. I set a minimum term before eligibility for parole of two years. Under s.18 I declare a pre-sentence detention
MR LEW: One hundred and twenty-two days, Your Honour.
HIS HONOUR: Yes, of 122 days.
MR LEW: Not including today.
HIS HONOUR: I usually include today. I note the time. I declare a pre-sentence detention period under s.18 of 123 days. Had you not pleaded guilty and been convicted, of course, I would have imposed a sentence of six years, with a minimum term of four years. Your licence will be cancelled. Licences under the Motor Car Act, or the Road Safety Act, will be cancelled and you will be disqualified for a period of two years from applying for such licences, but running from 5 March 2015. Yes Mr Lew, what other matters need I address? Sit down please Mr Thompson.
MR LEW: Your Honour, there's an application for
HIS HONOUR: Sit down please?
MR LEW: Your Honour, there's an application for a 464ZF order.
HIS HONOUR: Yes, well I - I can't remember, Mr Middleton, what the position was from your side of the Bar
MR MIDDLETON: Your Honour, it wouldn't be opposed, Your Honour.
HIS HONOUR: Yes. I don't think - this is very - this is very serious offending. It's very serious.
MR MIDDLETON: Yes.
HIS HONOUR: In fact, we discussed during the course of the plea and in fact, ironically, the further charges, as yet presently unproven. They throw up an example of how forensically such - such forensic examples may be relevant to investigation.
MR LEW: Yes Your Honour.
HIS HONOUR: So for those reasons, I'll make the order. I'm sorry Mr Thompson, would you stand up again? I wanted to say something else to you. I'm going to make an order that you provide a sample of your saliva. You do that by - by a cotton swab inside your mouth. If you cooperate in that, it's over, or that is it. If you don't cooperate, then a blood sample may be taken by injection and reasonable force used. I've - I've stated my reasons for making the order. I'm now going to sign it. It will be arranged in the custodial or prison environment. You can take a seat now. You can take a seat now. Today is the 17th? Yes. I'll sign the order. Yes, I'll hand those back down. Thank you. Is there anything else I need to do Mr Lew?
MR LEW: No Your Honour.
HIS HONOUR: All right. Thank you. Thank you Mr Lew for assisting. Thank you for your attendance today.
MR LEW: Thank you.
HIS HONOUR: I note that there are people here in support of Mr Thompson. If they wish to speak to him briefly, they may do so
MR MIDDLETON: Thank you Your Honour.
HIS HONOUR: but it must be brief.
MR MIDDLETON: As Your Honour pleases. Thank you Your Honour.
HIS HONOUR: If you could supervise that Mr
MR MIDDLETON: Thank you. As Your Honour pleases.
HIS HONOUR: You can speak to him now.
MR MIDDLETON: Thank you Your Honour.
HIS HONOUR: Ms Naef couldn't make it - couldn't make it today?
VOICE FROM THE BODY OF THE COURT: No.
HIS HONOUR: There's no need for an explanation. It was utterly her choice. If you - if you would pass on my regards and my wishes for her successful recovery and - and a good future life, I'd be obliged. Thank you. Good, thank you. Mr Thompson must be taken into custody now. Thank you. Thank you Mr Middleton.
MR MIDDLETON: Thank you sir.
HIS HONOUR: Thank you for your assistance during the course of the - the circuit.
MR MIDDLETON: Thank you Your Honour.
HIS HONOUR: They'll see you again soon, I hope?
MR MIDDLETON: As Your Honour pleases. Thank you Your Honour.
HIS HONOUR: Thank you. I'll return in a short time to sentence Mr Chol. I'll be ready to do that within the time that he's brought over, I would think? All right. So we'll do that now.