R v Scott [2012] VSC 514

2 On the evening of 18 March 2011, you met up with a number of friends in Shepparton. The plan was to celebrate your 19th birthday, which was the next day. There were five occupants in your vehicle. Jodie Turvey was the designated driver. While driving laps of the main streets of Shepparton CBD, you and your friends made stops at McDonald's and a store called "Premix King", which specialises in "Alcopop" style drinks.

3 Throughout the evening, you and the other passengers of the vehicle consumed alcoholic beverages. Turvey continued the role as designated driver and did not drink alcohol.

4 On the night in question, there was a party at 52 Gilchrist Street, Shepparton. The party was to celebrate the 18th birthday of a resident of that address, Matthew Ormiston. You were not invited to the party. However, after receiving a telephone call, you directed Turvey to drive to the party. I accept that you went there to talk to someone, rather than to attend the party uninvited.

5 A short time after your arrival at 52 Gilchrist Street, you were confronted by Matthew Ormiston. Ormiston made it clear to you that you were not welcome at the party and demanded that you leave immediately. Words were exchanged, resulting in Ormiston headbutting you. Ormiston's assault on you caused your nose to bleed.

6 Upon seeing the altercation developing, another person at the party intervened. You and your friends got back into your vehicle, and Turvey drove away from the party. At this time, you were upset, agitated and angry. You were making threats. You told Turvey to pull over, and you said you were going back. Your friends protested. They just wanted to go home. However, despite the protests from the other occupants of your car (including Turvey, who told you you had had too much to drink), you demanded she pull over and let you drive. It was your car.

7 Turvey pulled over and you took over driving. At this time, you were aggressive, significantly affected by alcohol and angry.

8 You did a burnout and a U-turn, and drove back down Gilchrist Street towards the party. You passed the party. You were yelling things out the window to the effect, "I'm going to kill him" and "Come on, dog, come and get me", or "Come on, one on one". You then executed another U-turn back down Gilchrist Street towards the party.

9 By this stage, there were a number of people out the front of 52 Gilchrist Street, variously on the footpath and some of them on the road. You drove your car at or towards a number of young people standing on or near the right hand side of the roadway. The evidence discloses, and I am satisfied beyond reasonable doubt, you were travelling in excess of the speed limit when you hit Ms Brea Danielle McLaren, an innocent bystander. Further, as I have said, as your vehicle approached Ms McLaren, you were travelling on the wrong side of the road. While you swerved your car to the left at what appears to be the last minute, there is no evidence of you attempting to brake. Ms McLaren was stationary at the time of impact.

10 After Ms McLaren was struck, she became airborne, hitting the bonnet of another vehicle parked in the street. An ambulance arrived a short time later. Ms McLaren was found to be in an "immediately life-threatening condition". She was conveyed, lights and sirens, to Goulburn Valley Base Hospital. On arrival, she was unconscious and non-responsive. Death was pronounced at 2.45am on 19 March 2011.

11 Following the collision, you fled the scene. After learning that Ms McLaren had died, you said you could not take the blame for it because you would lose your daughter. A plan was hatched. You participated in the plan. Your car was moved into a vacant garage, and then wiped down and the garage secured. Pressure was placed upon one of your passengers, Simone Croxford, for her to assume responsibility for the driving. You made a false statement to police, claiming that Simone Croxford was the driver.

12 Ultimately, you were arrested on 21 March 2011, after it came to light that you were in fact the driver of the vehicle. You were interviewed and essentially made a no comment record of interview.

13 As recounted by your counsel, you have a great love for your mother, father and siblings. However, as stated by him, you come from a "dysfunctional background". You grew up in the Shepparton area and, at about the age of 11, you were removed from your family by the Department of Human Services. You attended the Gowrie Street Primary School in Shepparton until about that time, but had practically no schooling at all from then on.

14 In 2007, you fulfilled eight requirements in partial completion of the William Angliss Qualification Certificate II in Hospitality (Operations). However, to date, you have never had regular employment. It would appear that from the age of 17, you have been on a disability pension for depression and anxiety.

15 While in remand, you have completed a number of workplace and work activity modules and qualifications that might one day stand you in better stead to engage in some form of gainful employment. I have had regard to all of the various certificates and references that were tendered on your behalf.

16 At about the age of 15, you were involved in an unprovoked assault where you were stabbed in the neck with a knife. As put by your counsel, you started drinking at the age of 16, and also taking marijuana from that time. Presently, you have a four year old daughter. However, she is currently in the care of the Department of Human Services.

17 On 4 October 2012, you were interviewed and assessed by a consultant psychiatrist, Dr Anthony Cidoni. Dr Cidoni provided a report in which he stated that you described a longstanding history of depression since childhood - which depression got worse when you were stabbed in the episode to which I have just referred.

18 Dr Cidoni gave evidence that you had been treated with an anti-depressant in the past since age 15, but that the dosage was "fairly low-ish" and, in any event, you were not taking the medication in the six months prior to these offences. In Dr Cidoni's report, Dr Cidoni noted that you have never seen a psychiatrist or had contact with public mental health services; stated that you expressed a significant degree of remorse; stated that your remorse "is genuine and palpable"; diagnosed you as suffering from a chronic or long-term depressive condition, which he said caused you a significant degree of symptoms and impairment in your functioning; noted that you also had some anxiety and post-traumatic stress disorder symptoms; and concluded that in his opinion, "the risk of re-offending is low and the prospect of rehabilitation excellent".

19 However, in cross-examination, Dr Cidoni agreed that remorse was a problematic concept "because obviously there is a self-serving component of someone in a difficult situation such as this". Additionally, he conceded that there were a number of risk factors present so far as re-offending was concerned, and your risk of re-offending would depend upon you cooperating with treatment and the adequacy of that treatment. All of that said, it must be noted, and I accept, that by pleading guilty you have also shown remorse.

20 However, while I accept that you have shown remorse, the totality of the evidence (and in particular your conduct after these offences) leads me to believe that your remorse is not quite as significant as Dr Cidoni's written report might suggest. Further, while you might be said to have some prospects of rehabilitation, nothing in the material suggests that these are any greater than anyone else with your past history might have.

21 You have an unsatisfactory prior criminal history. Although matters prior to this offence have been dealt with without conviction, your prior offences include dangerous driving, unlawful assault, wilfully damaging property, assault police and recklessly causing injury. Indeed, you committed the present offences while on bail for fraud charges involving the alleged obtaining of telephone services without payment.

22 However, of particular concern, is an episode of driving engaged in by you on 9 August 2009 (albeit you were only 17 years of age at this time). On that occasion, you had consumed alcohol and became involved in an argument which resulted in you being slapped in the face. You became enraged and were removed from the premises where the argument occurred. You then got into your motor vehicle and deliberately collided with another vehicle before reversing back and colliding with this vehicle again. You then left the scene. A short time later, you returned to that location and drove your vehicle onto the footpath, causing people to have to jump out of the way to avoid being hit. You then left the scene again and did not return. The similarity between your behaviour on that night and the conduct with which you fall to be sentenced today is striking.

23 I have read the Victim Impact Statements of Ms McLaren's mother, Barbara Hall; her daughter, Tanisha Morritt; her sister, Kylie-Anne Hall; her aunt, Rita Black; her aunt and uncle, Josephine and John Foldi; and her cousin, Mark Foldi. They are moving documents which demonstrate the great loss suffered by Ms McLaren's family. There is no doubt that Ms McLaren was much loved, and the loss to those closest to her is immense. Nothing I say, and no sentence I impose, can or will assuage their entirely justified feelings of grief, outrage, anger and loss at what you have done, and at what has occurred.

24 There is simply no equating the loss of a human life with any period of years of imprisonment that I might or can impose on you.

25 In addition to the Victim Impact Statements to which I have just referred, I have also read the Victim Impact Statements of two of your passengers, Ms Turvey and Ms Croxford. In sentencing you, I have also had regard to these statements.

26 In the case of a youthful offender like you, rehabilitation is usually said to be more important than general deterrence because punishment may in fact lead to further offending. It is correctly said that the incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the Court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach.[1] That said, in the circumstances of this case, the primacy of rehabilitation as a sentencing consideration must be moderated by the need for the Court to express the community's denunciation of your criminal conduct and to deter you and others from engaging in similar conduct in the future.[2]

27 By your plea of guilty to manslaughter by criminal negligence, you admit that your actions in driving your vehicle on the night in question fell so far below the standard of care a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that your actions merit criminal punishment. This was a serious example of the crime of manslaughter by criminal negligence. Further, your conduct immediately after the collision and over the following hours demonstrated an initial lack of remorse.

28 While I accept that the medical conditions diagnosed by Dr Cidoni reduce your moral culpability to some extent, and that these conditions could mean that a sentence of imprisonment will weigh more heavily on you than it would on a person with normal mental health,[3] the conditions described by Dr Cidoni are by no means at the most serious end of the spectrum.[4] They are matters to be weighed in the synthesis, but only to the extent of their established severity. As was rightly conceded by your counsel, the considerations of general deterrence, specific deterrence and denunciation are also relevant in this case.

29 Taking into account the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act, and having regard to the principles of parsimony and proportionality, I sentence you to eight years and six months' imprisonment for the manslaughter of Brea McLaren and 12 months' imprisonment for failing to stop after an accident contrary to s 61(1)(a) and (3) of the Road Safety Act. I direct that six months of the term of imprisonment imposed in respect of the second charge be served concurrently with the term of imprisonment imposed in respect of the manslaughter of Ms McLaren, making a total effective sentence of nine years. I fix a non-parole period of six years. If you had not pleaded guilty, I would have sentenced you to a period of imprisonment of 11 years' imprisonment with a non-parole period of eight years.

30 Pursuant to s 89 of the Sentencing Act and s 61(6)(a) of the Road Safety Act, I cancel your licence to drive a motor vehicle, and disqualify you from obtaining a driver's licence for four years commencing 12 months before the expiration of the non-parole period I have fixed.

31 I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 258 days in custody, and I direct that this fact be noted in the records of the Court. I will also make the order sought pursuant to s 464ZFB of the Crimes Act 1958.

[1] R v Misokka [1995] VSC 215, per Vincent AJA.

[2] Cf DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 477 [53]-[54].

[3] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[4] Routinely, this Court, in its civil jurisdiction, sees litigants with markedly more significant mental health conditions than those described by Dr Cidoni in his evidence in this case.