Director of Public Prosecutions v Caelli

[2015] VCC 1471

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01057

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT CAELLI

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2015
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v Caelli
MEDIUM NEUTRAL CITATION:	[2015] VCC 1471

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai (Plea) Mr G. Martin (Sentence)	OPP
For the Accused	Mr S. Pascoe	Doogue O’Brien George

HER HONOUR: 

1Grant Caelli, you have pleaded guilty to one charge of dangerous driving causing serious injury.  The offence occurred on 30 September last year.  You were in the course of your employment, driving a truck, a five tonne tipper truck, belonging to your employer, loaded with concrete mix and screenings along Separation Street in Northcote. 

2You approached a pedestrian crossing at the Northcote Library.  As you approached it, the lights changed to amber and then to red.  You went through the pedestrian crossing and as you did so you struck a four year old who, with her father and younger brother had been waiting at the pedestrian lights to cross.  The lights for the pedestrians were green at the time the child stepped onto the crossing.  The lights for traffic were red.

3The child was struck on her head by the passenger sidestep of the truck.  She received a serious, very significant wound to her head which knocked her down and rendered her unconscious.  It was immediately clear that this was a very serious head injury.  She received what was, and has been acknowledged to be, a life threatening injury and, as the medical reports reveal, had she not been able to be taken to the Royal Children's Hospital as quickly as she was and treated, she would have died.

4A CT scan when she was first taken to hospital revealed a depressed and comminuted that is a multiple fragment skull fracture along the right frontal and parietal bone.  The fracture itself had penetrated the dura, the lining of the cranial cavity, and cut the underlying brain surface.  There was bruising and swelling to the brain, which was herniating out through the open wound left by the fractured skull.  A significant portion of the child's skull had to be removed in order to remove the dead, swollen and bruised brain tissue.  She suffered significant blood loss.  She needed for a considerable period an external ventricular drain to reduce the high intracranial pressure, which was obviously risking causing further significant brain damage to her.

5Her post-surgical course was described in the medical reports as complicated.  For 21 days she could not remember anything.  She had paralysis down her left side and there was significant ligament damage to her head and neck.  She required three weeks as inpatient and was in rehabilitation for an further month, had to wear the collar for six weeks and for a considerable time after that had to wear a helmet to protect her damaged skull.

6She has had since then intensive rehabilitation.  That has included physiotherapy, occupational therapy, speech pathology, clinical pathology, neuropsychology, general medical treatment, dental treatment.  There has been a need for significant social worker assistance and intervention with the family. 

7By the time she was discharged from rehabilitation she was able to walk, talk and she had normal upper limb function, but she suffers and continues to suffer ongoing cognitive fatigue, impulsivity and distractibility, clearly as a result of the damage to that of her brain.  It is unclear at this stage, 12 months after, what impact that is going to have on her long-term in terms of her cognitive functioning and her capacity to engage properly and fully in employment.

8The current medical reports indicate that the doctors are pleased with the way she is progressing, but she continues to suffer cognitive fatigue.  She has ongoing communication difficulties and high level balance problems.  She is under continuous review by a rehab team and she is still receiving occupational physiotherapy once a week and speech pathology fortnightly.  It is likely that she will require further surgery because the amount of bone that was lost either by the force of the original impact or as a result of the surgical procedures required to remove the fragments and to reduce the pressure in the brain, means that she had suffered significant bone loss in her forehead.  It is unlikely at this stage to, the doctors think, to mend satisfactorily on its own, so that further surgery and interventions such as plates will still be required. 

9

Her long-term prognosis is unknown.  She has clearly made a significant recovery but it is just unknown as to what impacts it will have on her continued development.  It is very hard to measure in a child of four what her

pre-accident state was and what her post-state accident will be.

10The consequences for this child are obviously significant.  It is a shocking, serious, life-threatening traumatic injury she suffered and the last year of her life has really been, instead of just a normal four year old's upbringing, focused and centred around pain, treatment and rehabilitation. 

11The consequences for her parents as evidenced by the incredibly moving victim impact statements have been devastating, in fact catastrophic.  It has triggered a very serious depressive state in the mother, and it is clear from her victim impact statement that she is deep into depression and will require significant time and assistance before she is likely to be better.  It has triggered incredible feelings of pain and guilt in her father because he was the one was standing with the child at the intersection when she stepped onto it with the green light. 

12He feels guilty and his wife and his wife's family blame him.  It has led to a break up of their marriage and a dashing for both of them of the hopes and dreams that they had of a life and a future for their children and themselves.  It is a powerful indication that when collisions like this occur, the victims are not just the victim who suffers the actual impact.  The impact spreads far and wide beyond that.  Having just become a father yourself and already being the father of a number of young children, I am sure you have an understanding of just how devastating this is within a family and for a family's view of its future.

13This in my view sits at somewhere between the mid and the low range of culpability, or within that spectrum.  Although there is an absence of a number of the aggravating features that have been identified as associated with higher level culpability dangerous driving causing death or serious injury cases, there was no impairment by drugs or alcohol, no fatigue, no erratic driving over any period and no unlicensed driving, no trying to escape a police pursuit, nonetheless, there are three features which in combination take this above low level offending in my view. 

14You were driving on a busy, narrow, single lane each way road, in an area you were familiar with.  There was a school, a library and across the road from the library, the Northcote Plaza.  Traffic lights controlling a pedestrian crossing permitted people to cross Separation Street from the library to the plaza.  It was, as you knew generally, and were aware of specifically on the day, a road way and a crossing where pedestrians, including children, congregated. 

15You were driving a large, heavy truck, with a full load of concrete and screenings.  The truck was a five tonne truck and the weight of the load almost doubled its weight.  It was, as you knew and told the police, slow to respond both to the accelerator and to the brake when under full load. 

16You were travelling in a 40 km per hour zone.  You told the police you believed the speed limit was 50, except during school hours.  The photos clearly show the 40 km per hour speed sign on the approach to the lights.  You told the police you were unsure of your actual speed.  This was when you were interviewed after the collision, so after you are aware that you had hit this child and the severity of her injuries.  You said then that you were travelling, you thought, at 40 or 50 km per hour.  Taking that outer range, although 50 does not sound like a great speed, or a long way over the speed limit, it is 25 per cent greater than the speed limit and for the driver of a heavy, slow stopping truck in a narrow street in a built up area, that is a significant excess.

17There is a five second time lapse between the commencement of the amber phase of the lights for traffic and the pedestrian lights turning green.  At 40 km per hour, with the load you had in your truck, you could have stopped in 12 metres or less.  That would have had you stop 43 metres from impact.  The amber phase lasts for three seconds.  Had you braked at any time before that three second amber light phase came to an end, you still would have come to a stop in that heavy, slow stopping truck, more than 10 metres short of the point of impact.

18You told the police that as you approached the crossing, you saw people congregating at the crossing and you noted the light was amber.  You admitted you had thought about stopping but said you already had momentum going and thought you could get across the crossing.  Although you said you thought when you saw the light it was amber and you were already in the crossing, that cannot be right.  On the light phases analysis that I have referred  to, even if you had been travelling at 40 km an hour and you had seen the light just before it turned red, you still had time to stop, a good 10 metres short of that point of impact.

19Therefore, the conclusion is inescapable.  You did not pay attention to the speed sign, the 40 km limit.  You could have stopped in time once you saw the amber light.  You did see it, but you made a conscious, calculated decision to proceed.  As you said to the police, you thought you could get away with it.  You entered what you knew to be a crossing at which people were congregating on a red light.  This is not a moment of inattention, but a deliberate decision to run a red light.  Even if, as some of the evidence suggests, the child stepped onto the crossing at the moment that the lights went green for pedestrians, that five seconds between the time the light first went amber and the time that your light went red and the green light went on for the pedestrians is one that makes it clear that it is this conscious decision by yours and not any contributing behaviour of the child or her father.

20The need for just punishment, denunciation and deterrence looms large in such a case.  Drivers of heavy vehicles in built areas such as this with schools, libraries, shopping and community centres, where people of all ages congregate, waiting to cross the road with the safety of traffic lights at a pedestrian crossing, must obey road rules.  The consequences for those they imperil by running red lights and by driving without being aware of the speed limit applicable in the area are, as this case demonstrates, devastating. 

21This child may make a full recovery or manage to live a full and happy life despite the long-lasting impact of her injuries, or she may suffer life-long consequences and may never be able to fulfil what otherwise would have been her potential.  But as I have already noted, she is not the only victim.

22The consequences for her parents are life-changing and heart rending, and all of this for a selfish decision to keep going when you could have safely and easily stopped, even if that had meant that that heavy slow truck you were driving would have been slow off the mark when the light turned back to green for vehicles.

23Dealing then with matters personal to you, you are a 39 year old man with a very limited driving and other criminal history.  In your late teens and early 20s, you were once convicted of driving at a high speed and twice for exceeding the prescribed concentration of alcohol.  In 2009, after a 12 year gap in driving offences, you were again convicted of exceeding the prescribed concentration of alcohol.  You have no other driving offences, including it would appear no other speeding or minor traffic infringements since that 2009 conviction. 

24You have a number of minor convictions for drunkenness and possession of a small amount of cannabis between the ages of 18 and 30.  There are no other criminal offences, and again none for the past eight years.  The relevance therefore of your driving and other criminal history is low given the age of those matters.  It is safe to say that you have had it brought home to you personally in what was your youth, the consequences of disobeying the law.  But over the years you have shown consistently along your advance into your 20s and 30s, the gradual maturation we so often see in young men who push boundaries in their youth but then put that behind them.

25At 39 years of age you are in a stable relationship and you have just become a father again for the fourth time.  You have three children from your first marriage, they are all under ten.  You have played, and still play a significant role in the lives of those children.  Your first wife suffered mental illness it would appear, consequent upon the triggering of post-mental depression and for a considerable period, you gave up work to care for her and the children.  You have shown a devotion to the children throughout the time that your marriage was intact and thereafter.

26You grew up in the country.  You completed your schooling without difficulty.  You started but did not complete a university course.  You played professional football for some years, moving to South Australia for that and ultimately moved back to rural Victoria when your marriage broke up before moving to Melbourne.  You have had a good, somewhat varied work history, but a good and it would appear consistent and continuous work history. 

27You have now returned to study, and you are close to completing a science biotechnology and environmental management course.  You are earning high grades, showing the potential that allowed you to complete your VCE easily, get into and commence your first university course but a greater maturity and preparedness to study and apply yourself now.  You have maintained employment during your studies.

28You do not suffer, as the reports reveal, from any mental illness, psychological condition, behavioural problem or any substance abuse which blights your life.  That means in these circumstances, you have no conditions or circumstances which might aggravate or mitigate the offending and, significantly, no impediments to your continuing to live a responsible and offence free life.

29I accept that your risk of reoffending in this or in any other way is low, so the need for specific deterrence is low, and that your prospects for rehabilitation are clearly good.  You were cooperative with police, remaining at the scene, obviously distressed and concerned but sensitive to the circumstances, that is that you were the driver.  You pleaded guilty at the earliest possible stage, and as I noted earlier, participated in an interview with the police. 

30Those factors support the other evidence before me that you accept responsibility for your driving and the consequences, although I noticed that Ms Bhai pointed out in the course of the plea that you maintained to the psychologist who assessed you, that you believe you exercised appropriate judgment on the day in the circumstances.  As I have said, I do not accept that.  That clearly, in that sense, is accepted by you by reason of your plea of guilty.  But not surprisingly having regard to the gravity of the consequences of that moment of conscious decision that you made, you may still be somewhere on the path towards accepting the full responsibility by accepting it was not the appropriate decision in the circumstances.

31Mr Pascoe submitted that the appropriate disposition following the decision of the Court of Appeal in Boulton v The Queen [2014] VSCA 342 was a community correction order. The maximum sentence for this offence is a term of imprisonment of five years. The Sentencing Advisory Council has not been able to collate sufficient statistics since the decision in Boulton was handed down to be able to provide any sensible pre and post Boulton statistical analysis of sentencing trends for this offence, in consideration of the greater availability of a CCO since the regime was introduced and since the guideline judgment was delivered.

32The authorities in respect of dangerous driving causing death and serious injury before then all indicated, notwithstanding the significant personal circumstances and powerful mitigatory factors of an offender, that in most cases a sentence of imprisonment with a component to be immediately served was appropriate.

33If your circumstances only were to be taken into account, I would agree that this is a matter that could be dealt with solely by way of imposition of a community correction order.  But given the nature of the driving as I have characterised it in the finding I have made, as to where it sits in the range of gravity, I have come to the view that the sentence must include a component, although a modest one, of imprisonment immediately served in order to address those needs of denunciation, general deterrence and just punishment that I have indicated.

34Having come to that conclusion, the question for me then was whether that should be directed to be as part of a combination sentence or whether I should impose a term of imprisonment and fix a non-parole period at a very low figure.

35I ultimately decided that the needs of deterrence which has led me to the decision that there had to be a period of imprisonment immediately served meant that the punitive purposes of the sentence were also served by that and that there was no need for a further punitive element to be imposed by way of a community correction order condition such as unpaid community work.

36I also consider that there was no need to impose any rehabilitative focused conditions as exist in a community correction order, as you do not suffer from any psychiatric, psychological or intellectual impairment or any behavioural problems, which would benefit from programs designed to address causes of reoffending and encourage rehabilitation.  Similarly, given the stability in your family life, and your educational and vocational capacities, and your demonstrated commitment to fulfilling those potentials, and the absence of psychiatric, psychological or intellectual impairment or behavioural problems, and the absence of any recent criminal history, that you are not in need of supervision, another condition often imposed under a community correction order.

37I have therefore decided that neither the rehabilitative, supervisory, or punitive conditions of a CCO are necessary for you in the circumstances.

38I therefore determine that the appropriate course to take is to impose a term of imprisonment, proportionate to the gravity of the driving and taking into account those significant mitigating factors in your favour, and to impose a very significant gap between the head sentence and the non-parole period. 

39I have decided not to make any order on your licence, again there is punishment enough in my view in the sentence I am to impose, and there is no need for any community protection or any other supervision that might be achieved by a cancellation of licence.

40Could you now please stand Mr Caelli.  On the charge of dangerous driving causing serious injury to which you pleaded guilty you are convicted.  You are sentenced to be imprisoned for a period of 12 months, and I fix the period of three months as the time that you must serve before being eligible for parole. 

41I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would have sentenced you to a period of imprisonment of two years, and I would have fixed the period of 12 months as the time that you would have had to have served before being eligible for parole. 

42I must remain on the Bench whilst you are in the dock and until you are removed Mr Caelli but I remain here so your partner can speak to you before you are taken out.  I am afraid you are not allowed to touch, but you can speak to him, so you can approach the dock and speak to him.  No other orders were required were there?  We will adjourn.

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