Director of Public Prosecutions v Azzopardi

[2017] VCC 861

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01815

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY JOHN AZZOPARDI

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JUDGE:	HIS HONOUR JUDGE MULALLY
WHERE HELD:	Geelong
DATE OF HEARING:	17 June 2017
DATE OF SENTENCE:	26 June 2017
CASE MAY BE CITED AS:	DPP v Azzopardi
MEDIUM NEUTRAL CITATION:	[2017] VCC 861

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. A. Flynn	Office of Public Prosecutions
For the Accused	Ms S. Pratt	Paul Vale Criminal Law

HIS HONOUR:

1Gordon Ibbs was much loved.  He was on all accounts, a thoroughly decent man.  In a life well lived, he was a truly dedicated and loving husband, and a caring and engaged father.  A picture of Gordon Ibbs given by his wife, his daughter and his elderly sister in their victim impact statements, makes it clear that to Gordon Ibbs, his family meant everything to him.

2His other love was riding his bike.  He was still an active cyclist at aged 77.  On 10 May 2015, Mother's Day, he set out for a ride, but he never came home.  Gordon Ibbs, like all cyclists and all road users, was entitled to believe that everyone else on the road would act responsibly, safely and show proper regard for their fellow citizens.

3You, Bradly Azzopardi, fell well below the standards expected of drivers.  On 10 May 2015, you chose to drive from your parents' home in Anakie, towards where you were living in the northern suburbs of Geelong.  You did so in circumstances where you presented a serious risk to other road users, including Gordon Ibbs, on his bike.

4Mr Ibbs was an experienced cyclist and was riding close to the left hand edge of the Geelong Ballan Road.  Responsible drivers would have been able to pass him, without any risk or problem whatsoever.  Put simply, Mr Ibbs was there to be seen.  You, Bradley Azzopardi, did not see him.  You drove into him at high speed killing him instantly.  As I said, Mr Ibbs was there to be seen, but you Bradley Azzopardi, knew as you got into your car and drove, that your eyesight was poor, inadequate to safely drive on our roads.

5You suffered from an eye disease, Keratoconus.  You had known of your deteriorating eyesight from at least 2014.  You had seen specialists at the Eye and Ear Hospital on 31 March 2015.  You had attended an appointment with specialist optometrists at the Australian College of Optometry on 30 April 2015, for the purpose of getting special corrective lenses.  This was less than ten days before you killed Gordon Ibbs.

6The specialists at both clinics asked you about driving, to which you responded that you had lost your licence for three years.  This was not true.  While you had lost your licence, the disqualification was for 12 months from October 2014.  You went onto tell the clinicians that in effect, as a consequence, you did not drive.  In terms of what you did a short while later, this was not true either.

7In fact, you had already displayed a complete distain for orders that you were not to drive.  It seems that whatever licence you had was suspended at a point sometime prior to 23 January 2014.  Notwithstanding that suspension you drove and on 23 January 2014, you appeared at the Magistrates' Court at Geelong on two charges of drive while suspended.  This resulted in a court ordered suspension of your licence for two months from 24 April 2014. 

8You were back before the Magistrates' Court three weeks later on 10 February 2014 for a further charge of drive while suspended.  These court appearances and orders for you not to drive had little if any impact on your behaviour, as you were back before the Magistrates' Court on 20 October 2014 for two more offences for drive while suspended.  As well as one charge of careless driving, and one charge of driving over 100 kilometres in a 60 kilometre zone.

9The magistrate sentenced you to two months imprisonment, but mercifully to you, suspended that sentence for a period of 12 months.  Importantly, the magistrate cancelled any licence you had and disqualified you from driving for 12 months.  Thus at the time of your driving which killed Gordon Ibbs, you were disqualified from driving and you were on a suspended gaol term for similar offending.  I will say more of your offending behaviour shortly.

10To return to your eye disease.  It is of note, it was shortly after your driving on 10 May 2015 that you re-attended the Eye Clinic and over the next three months, you appeared to have secured the appropriate hard lens needed to overcome your poor eyesight.  The evidence from the eye specialist was that your eyesight was inadequate for driving before the corrective lenses were fitted.  You were aware of your significant visual difficulties that led you to see the specialist in Melbourne and ultimately, too late for Gordon Ibbs, to get the appropriate lenses.

11Thus, you drove on 10 May 2015, knowing of your poor eyesight.  You drove also knowing that it was illegal for you to drive at all and that to do so, was to breach a suspended gaol sentence imposed for illegal driving in the recent past.  Absolutely everything made it or should have made it clear to you that you should not have been driving.  However, you put your own selfish and unimportant desire to drive, what was your recently purchased car, above the safety of other law abiding road users.  Mr Ibbs and his family sadly suffered the dreadful consequences of this selfish and criminal conduct, having driven into Mr Ibbs at high speed, propelling him and his bike a very significant distance down the road. 

12Unfortunately, for the family and for you, your criminality did not stop there.  You simply kept driving, not stopping as any decent person would.  There can be no other conclusion that you knew immediately that you had hit someone and at the very least, you had caused serious injury.  You did not stop as the law requires, but drove off and then set about considerable efforts to hide the fact, that you were the driver that had killed Gordon Ibbs.  You learned quickly that Mr Ibbs had died.  This fact and with some time to reflect, did not see you come forward.  On the contrary, your car was taken to a remote place, set on fire and destroyed. 

13Almost two years to the day from killing Mr Ibbs, you indicated that you would plead guilty to dangerous driving causing death and failure to stop.  Two crimes with a maximum terms of ten years imprisonment.  In the interim, you had conducted contested committal over two separate dates.  After a number of directions hearing in the County Court, a trial date was fixed for 22 May 2017.  Your plea of guilty, once indicated, was formalised with an arraignment on
11 May 2017. 

14Also, you have pleaded guilty to three summary offences of driving while disqualified, resisting arrest and an unlawful possession of cartridge ammunition.  I am required by the Sentencing Act to assess the gravity or seriousness of your crimes and your moral culpability.

15These matters, and in particular your moral culpability, have been said to be central to the sentencing process for the offence of dangerous driving causing death.  Thus in my assessment of the gravity of the offence of dangerous driving causing death and your moral culpability in committing that crime, I am guided by the principles expressed by a Court of Appeal in the DPP v Neethling and Stevens v R.

16What is immediately apparent is that by reason of the particular circumstances, some instances of this offence may be more or less serious than others.  The absence of some all too common aggravating circumstances such as the excessive speed, alcohol or drugs, at a level that impairs driving, or aggressive driving or driving while fatigue, I do not necessarily render a particular example of dangerous driving causing death as not serious, or less serious, than those offences involving such features.

17As was said by the Court of Appeal in Stevens:

"Moral culpability in respect to criminal conduct, does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors.  Both the dangerousness and moral culpability, fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offending.

18What was said in Neethling was that various criteria, earlier identified in a number of appellate decisions in New South Wales, were applicable to the sentencing task in Victoria.  However, in Stevens, the court made clear that these were not to be seen as some simply checklist, nor an exhausted list.  That said, of the eleven matters set out in those decisions, the following are relevant here.

19Firstly, the number of persons put at risk, which in this case must be all road users in your vicinity for the time that you drove.  Secondly, the length of time that others were put at risk, which in this case is significant, given how far you had driven.  Most particularly from Anakie to the site of the collision with
Mr Ibbs.

20Thirdly, the ignoring of warnings, which in your case were the self-evident propositions that your eyesight was poor.  As I said, I will say more of this matter shortly.  Your failure to stop is also a factor set out in the appellant decisions which can add to the gravity and moral culpability.  But as I must sentence you for that separate crime, I will vigilantly ensure that you do not suffer double punishment for this conduct.

21Also, as is the case generally in sentencing, prior relevant criminal conduct can add to the gravity of the offending.  Here you had consistently showed contempt for orders of the court not to drive, unless you are authorised to do so.  The appellate courts in New South Wales identified that the presence of some of these criteria could lead to a conclusion that the driver had in effect abandoned responsibility.  This concept was adopted in Neethling and spoken of in terms that abandonment of responsibility could occur in a moment, such as the illegal and risky overtaking manoeuvre that was undertaken by the inexperienced driver, Mr Neethling.

22Here in my view, you abandoned your responsibility as that phrase is used in the cases I have mentioned.  But yours was not a momentary matter, some ill-considered lapse.  Yours was a deliberate conscious decision to drive in circumstances where you knew you could not see sufficiently well enough to drive safely.  Your decision to drive in all the circumstances was an egregious one.

23Prosecution brought to my attention the Court of Appeal decision in Harris v R.  In that matter the accused pleaded guilty to negligently causing serious injury, where the danger involved - in the driving was that the accused had a risk of an epileptic fit.  The Court of Appeal in considering the gravity of the offence and the accused moral culpability concluded that:

"The risks associated with driving in that condition significantly increases his moral culpability.  The Sentencing Judge in careful reasons, rightly concluded that this was an aggravating circumstance that increased the objective gravity of the offending conduct".

24Your counsel argued there were more serious aspects of Harris' conduct involving deceptions to enable him to drive with his condition.  While that may be so, the point is not whether the conduct in Harris was more serious than in this case.  Rather that, in knowingly driving in all the circumstances of your inadequate eyesight, that is a matter I can and should see as elevating your moral culpability and the objective gravity of your crime.

25Taking into account all the circumstances, together with all the submissions made on the point, in my view, yours is a particularly serious example, of the offence of dangerous driving causing death.  As your counsel pointed out in his very helpful written submissions, this was a case where the dangerous driving was particularised as driving where your eyesight was impaired to the point where you struck a cyclist who was visible.

26In these circumstances, if it be necessary, given that your plead is an admission of the elements, I make it clear that on all the evidence, including that of the eye clinic specialist, Dr Bruce, I am satisfied to the criminal standard, that is, I am satisfied beyond reasonable doubt that you drove knowing your eyesight was inadequate to enable you to drive in a safe manner, and that to do so, was to drive in a manner dangerous to the public.

27Based on all the matters set out above, I have come to the conclusion that your moral culpability for the crime of dangerous driving cause death was especially high.  Nothing of moment in respect of the circumstances of the offence was put forward, nor could there be, to mitigate the high moral culpability involved.

28The consequence of my assessment of the gravity and moral culpability is that yours is plainly one of those cases, squarely to be considered in the terms set out by the Court of Appeal in the recent case of Stevens.  There the assessment and view of the court was that:

"The sentencing practice for serious examples of dangerous driving cause death is inadequate and need to be uplifted".

29I must separately consider the gravity and moral culpability of your crime of failing to stop.  In my view, the seriousness of simply continuing to drive so as to avoid your responsibilities, knowing that you had collided with a cyclist at high speed is grave offending. 

30Also, your failure to stop displayed especially high moral culpability.  It was reprehensible and callous behaviour.  The fact that, as it turned out, there was nothing that could be done for Mr Ibbs is not a matter of mitigation, but more the absence of an aggravation.

31As I have briefly said in the introduction, the impact of your crimes on Mr Ibbs' immediate family was immense.  Your leaving the scene and subsequent conduct left them bewildered, as to how someone could do such things.  It significantly added to the intensity and duration of their psychological pain.

32A great sense of loss continues and was obvious from the heartfelt words written by them, revealing how they have been needlessly caused deep and enduring grief.  I cannot adequately summarise the victim impact statement of Mr Ibbs' wife, Mrs Ibbs.  His daughter Ms Christensen and his older sister,
Ms Lewis.

33Those who heard what was read in court could not fail to appreciate the dreadful loss, and at the same time, the utter decency of each woman, as they struggled to find the words, the right sentiment, for what were deep emotions so hard to describe.  Mrs Ibbs spoke of her enduring love for her husband and how much she missed his affection, his selfless care for her during her years of ill health.  She wrote:

"On 10 May, I felt my heart was cut out of me and I became numb.  I still feel that way".

34She spoke about the struggle to stay at home.  However, as it turned out, she had to give up her home and her pet.  She said this though with great nobility:

"Finally I believe there are consequences for all actions, some good, some not so.  But I want you to know Bradley, that despite the trauma of losing Gordon and all that has ensured, I hold no grudges or hatred.  In fact, I forgive you completely and wish for you, when all this is behind you, a life of peace and happiness.  A life of no regrets".

35Ms Christensen wrote of how close she was to her father over her whole life.  She spoke of how they shared cycling together, it being their joint love and passion.  She spoke of her ongoing need for professional psychological help.  She was willing at first to understand of how someone may have panicked and driven off, but she could not understand or abide, the lengths taken to avoid responsibility.  It was a cruelty she especially appalled.  She wrote almost in summary:

"That Dad's death has profoundly affected me on so many levels.  This impact statement only vaguely portrays some of the issues and pain that has occurred.  My father's death and all the ongoing difficulties that has resulted, has had a huge toll on my personal relationships between myself and my husband, and the relationship between me and my mother".

36She concludes:

"My life prior to my father's death was in so many ways an innocent, happy one.  Now it is a lot darker and sadder".

37She spoke of reminding the court that her father was not just another case.  She said:

"He was a good kind hearted person.  He was my dad.  Throughout his life, he was persistently loving, caring and hardworking.  He was highly loyal to his family and no matter how hard things got, he never gave up.  I truly have the utmost respect for my father and there is not a day that goes by that I do not think about him or miss him".

38Mr Ibbs' elder sister said:

"To Gordon family was precious.  He was a man who was always there to lend a hand to anyone in need of help.  With Gordon's passing, there is a great gap left in our lives.  A gap that will never heal or be filled by any other".

39As to your personal circumstances Mr Azzopardi, you are a single man now 26, being 24 at the time you committed the offences.  You were raised, as was your younger sister, by your supportive parents who did their best.  You attended a number of primary schools, but struggled both with learning at the most basic level and socially.  It seems you responded often by challenging the authority of the school staff.  You finally left school at age 14.  Unfortunately, you left illiterate.

40Once you had left school, you did much better.  First with those that operate the program Hand Brake Turn, which helps troubled young men by teaching and encouraging them in all manner in automotive trades.  You were a good mechanic and held a good job as a mechanic for four years.  Because of your unfortunate illiteracy, you could not or did not feel you could complete the theoretical components of an apprenticeship and so you did not secure a formal qualification.  That is unfortunate.

41You moved to work for a relative as a nurseryman and again, worked hard for a number of years in that profession.  I have taken into account the reference tendered from your uncle outlining your better qualities that he saw.  You also worked at a local abattoir.  Your work history is solid and to your credit.  You had a promising career as an amateur boxer, but your eyesight problem brought that to an end.

42Your plea of guilty means that I will impose a lesser sentence than would have been the case had you pleaded not guilty, and been found guilty by a jury.  The benefit of your plea is that precious resources were not expended in a trial and the family of Mr Ibbs did not have to ensure the additional stresses of a trial.  Save for the plea of guilty being of itself an expression of remorse, nothing was said or put forward evidencing your remorse.  Often remorse is a very prominent feature of cases such as these, and accordingly, sentences are set taking into account the extent of expressed remorse.

43It is seen as important in the sentencing mix, both as an appropriate and pathetic response to the death of a fellow citizen and also as a solid foundation, or indicator, of the offender's prospects of rehabilitation.  In your case, the absence of explicit remorse does not aggravate, but you do not have in your favour, the considerable mitigatory benefit of genuine remorse.

44Our community can often better understand a court extending some mercy, if the offender has made a terrible mistake on the road, taken a life.  But the offender is immediately or shortly thereafter expressing appropriate and genuine remorse for what they have done.

45Likewise, the community is more likely to endorse a measure of leniency if an offender has in the past, abided by the road rules.  That is not the situation here.  Your prior driving convictions are most concerning.  Elevating the need for deterrence to you and the need to protect the community from you.

46Your distain for court orders to prevent you driving is indicative of an emerging propensity to act as you please, irrespective of the consequences and the requirements of an ordered society, where we are all subject to important road rules.  The fact that you committed these offences, including the offence of drive while disqualified, when subject of a suspended gaol sentence is particularly troubling.

47Also in terms of your personal circumstances, your character and your prospects for rehabilitation, understandably I take into account how you have behaved after this offending, as it is relevant.  In your case, you quickly turned a serious criminal activity, engaging in trafficking drugs of dependence between 27 July and 6 November 2015 and also on 27 August 2015.

48The full circumstances of those crimes were described by Judge McInerney in his sentencing remarks of 17 November 2016.  His Honour imposed a total sentence of two years and four months, with a minimum non-parole period of fourteen months.  A total of 78 days that you had spent on remand was declared as part of the sentence imposed.

49I will return to the sentencing principle of totality shortly.  However, the point to be understood at this stage is that despite your young age and relatively limited prior convictions, I am guarded about your prospects of reform.  I note from the psychological report of Mr Joblin prepared in November in 2015, for another court hearing, he expresses concern at your admitted impulsive demonstrations of aggression, your various serious problems with binge drinking and Mr Joblin expressed an opinion in late 2015,as I have described, that you have "Very serious problems that certainly involve psychological factors".  He concluded, "Treatment is an imperative".  Unfortunately, there was no time for treatment as you were remanded in custody on 23 November 2015. 

50As mentioned, I must take into account the principle of totality.  Thus I have in respect of all of the five offences before me, to revisit the penalties that I propose to ensure that in the end, the sentences and in particular, any orders for cumulation, result in a sentence that in total meets in a proportionate way, the crimes you committed, no more and no less.

51Additionally, I must consider that you have been in custody since 23 November 2015, now 581 days on my calculation.  Of that, 170 days will be declared as part of the sentence that I will impose.  The sentences imposed by Judge McInerney, would have seen you eligible for parole in or about October 2017.  Your total sentence concluding in or about December of 2018. 

52I will ensure that my sentences do not operate in combination with the sentences that you are undergoing, so as to result in an overall period of imprisonment that is too severe and crushes your sense of hope and any prospects of reform.

53I will fix, as I must, a new minimum non-parole period with these factors in mind.  That said, your previous drug trafficking cannot simply be overlooked and simply be absorbed into this sentence.  My duty is to ensure that the sentence I impose meets the sentencing purposes that are set out in the Sentencing Act. 

54The dominant sentencing purposes in this case are denunciation of your crimes.  This denunciation must be more than my firm words spoken today and perhaps thereafter forgotten.  Denunciation must have a practical element.  Your appalling conduct has consequences and it is now that you must meet your just deserves in the form of a significant period of time in prison.

55I must, by my sentence, also reaffirm for our community the importance of decent values.  That is the value of a human life and that those who take a life by dangerous driving, and then try to avoid the consequences by failing to stop, will be sternly punished.

56Further, I must, by my sentence, deter you from continuing to commit crimes in the future.  Importantly, I must send a message to other road users that taking care is a duty and that all cyclists are entitled as any other road user, to be on the road and to enjoy our roads safely.

57Cyclists are more vulnerable to death and injury than most other road users.  Thus drivers must take special care to ensure that they are able to see cyclists, as you did not.  Then move past them with care and responsibility.  In your case, given the circumstances where you drove with inadequate vision, and given your prior driving history, I must also weigh into the mix your sentencing purpose of protection of the community.

58Your rehabilitation is not overlooked and I will allow for a period of potential parole.  However, given the matters that I have spoken about, your rehabilitation must yield to the other sentencing purposes.  I have, as I must consider the dreadful impact of your crimes on the victims.  I have considered other sentences imposed for these crimes, including those referred to me by counsel.

59With that said, I am required by the decision in Stevens, to ensure as far as my sentence can do so, that there is an uplift in sentencing for serious examples of dangerous driving causing death, which this is.  I must take into account the maximum term for the offences.  As detailed in Stevens, the maximum term for dangerous driving causing death was doubled to ten years.  This expression by our Parliament of the greater seriousness of this crime, as was detailed in Stevens, cannot be ignored.

60The maximum term for failing to stop was increased in 2005 fivefold, from two years to ten years.  The Court of Appeal in a number of cases have made it clear to Sentencing Judges that this offence with a ten year maximum, ought see the imposition of substantial terms of imprisonment. 

61In respect to the penalties handed down in other cases involving crimes of this nature, and taking into account consistency in sentencing, I confront the complication of your existing sentences, that in the end makes direct comparisons hard.  I must also mark separately, your driving while disqualified and your violence in resisting arrest.

62As I am about to announce the sentence, I pause to state what is perhaps obvious and that is, the length of the term of imprisonment that I am about to announce, is not to be taken as a measure of the value of the life of Gordon Ibbs.  The value of his life, to those who cared for him, was and is immeasurable.  My sentence is solely what I consider to be the punishment that is just and appropriate in all the circumstances.

63Doing the best I can, I impose the following sentences and you can stand please, Mr Azzopardi.  For committing the crime of dangerous driving causing the death of Gordon Ibbs, you are sentenced to be imprisoned for five years.  For committing the crime of failing to stop, you are sentenced to be imprisoned for four years.  For committing the crime of driving whilst disqualified, you are sentenced to six months imprisonment.  For committing the crime of resisting arrest, you are sentenced to two months imprisonment.  For committing the crime of possession of the ammunition, you are convicted and fined $300. 

64I order that two years and six months of Charge 2, the failure to stop, and three months of the summary charge of drive whilst disqualified, and one month of the summary charge of resist arrest be cumulative upon each other and on the sentence imposed on Charge 1.  The total sentence is seven years and nine months.

65I order that this sentence be concurrent in part with the sentences that you are undergoing.  I order this sentence that I have imposed is concurrent with 12 months of the head sentence imposed by Judge McInerney.  Thus this sentence is to be in part cumulative with the sentence you are currently undergoing and that is to the extent of 16 months.

66In light of all these matters, I set a new minimum non-parole period of six years and nine months.  It has been reckoned that you have served 170 days that are attributable to this sentence and I declare that 170 days - or that 170 days, is part of the sentence and I will ensure that this declaration is entered into the records of the court.

67Had you pleaded not guilty to these offences and then found guilty of them, I would have imposed a sentence, although complicated by the various matters relating to concurrency and cumulation with the sentence imposed by Judge McInerney, that in the end, the sentence that I would have imposed would have been a sentence of ten years and with a minimum term of eight years.

68I must by law order that your licence is cancelled and that you are disqualified from driving.  I am able to state that this should operate from a date in the future, so as to ensure that you do not drive after your release from prison.  When you are released, will be for others to determine not me, and as such, I nominate a date that is in my view appropriate to achieve what I consider is some significant time that you should not have the privilege of driving up release.  Thus I cancel any licence and disqualify you from driving for a period of five years from
10 May 2023.

69There are other orders for forfeiture, which I intend to make.  I will sign those orders.  Is there anything further?  Is the matters relating to the mathematics right?  About the matters on indictment and the summary matters?

70MS FLYNN:  Yes, as I understand it, Your Honour.

71HIS HONOUR:  Thank you.  Ms Pratt.

72MS PRATT:  Agreed, Your Honour.

73HIS HONOUR:  Thank you.  Take a seat, Mr Azzopardi.  The orders relating to the disposal of burned out car shell and forfeiture orders relating to the ammunition of phone and numberplates.  Is there anything further required now?

74MS FLYNN:  No, thank you Your Honour.

75MS PRATT:  No, Your Honour.

76HIS HONOUR:  Thank you.  Mr Azzopardi, as I indicated to you before, you must go with the prison officers now.  Thank you.  I thank counsel for their - including Mr Farrington who is not there, but Ms Pratt this morning for their very considerable assistance. 

77I thank the families involved and friends that have displayed significant dignity in dealing with a difficult matter.  Thank you.

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