Director of Public Prosecutions v Carletti
[2013] VSC 424
•20 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 2012 0095
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CARLETTI |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2013 | |
DATE OF SENTENCE: | 20 August 2013 | |
CASE MAY BE CITED AS: | DPP v Carletti | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 424 | |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Failing to stop and failing to render assistance after a fatal accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Brown | Solicitors for the Office of Public Prosecutions |
| For the Accused | Mr C Dane QC | Ian Hone |
HIS HONOUR:
Daniel Carletti. You have been found guilty, by the jury empanelled on your trial, of one charge of dangerous driving causing the death of Gavin Dunne at Marong on 1 January 2011. The jury also found you guilty of one charge of failing to stop after a fatal accident, and one charge of failing to render assistance after a fatal accident. The jury acquitted you of the charge of culpable driving causing the death of Gavin Dunne.
At the time of the incident which gave rise to those charges, Gavin Dunne and you had been friends for some time. On the evening of 31 December 2010, you travelled together in Gavin Dunne’s Ford utility to Bridgewater, in order to attend a New Year’s Eve party there. You left the party shortly after midnight. At about 12.30 am, you attended at the Marong Family Hotel, which is located on the north east corner of the intersection of the Calder Highway and the Calder Alternative Highway.
When you entered the hotel, you, Daniel Carletti, were observed to behave in what was described as a ‘confident and cocky’ manner. You intruded into other people’s conversations when you were not invited to do so, and you otherwise made something of a nuisance of yourself in the main bar. By contrast, Gavin Dunne was observed to behave in a normal, calm and quiet manner. You then made your way to the beer garden, where you became embroiled in a heated argument with another patron. The bar staff intervened and separated you from the other patron. Gavin and you then returned to the main bar, and then you both went outside. There you had an argument with Gavin. You wanted him to give you the keys to the utility, but, sensibly, he refused to do so.
At the conclusion of the argument, Gavin Dunne then walked off to the utility, which was parked in the centre of the extension of the Calder Alternative Highway. He drove off in a southerly direction on the Calder Alternative Highway, leaving you behind. You walked in a southerly direction, following him, down the Calder Alternative Highway. After a short time, Gavin Dunne then returned in the utility, and stopped the vehicle facing north on the highway. There was a dispute at your trial as to whether he stopped the vehicle on the northbound, or the southbound, carriageway of the Calder Alternative Highway. All of the eye witnesses described the vehicle as pulling up on the correct side of the road, that is, on the northbound carriageway. I am satisfied, beyond reasonable doubt, that the eye witnesses correctly described where the vehicle pulled up, and that it did stop on the correct side of the road.
After Gavin Dunne stopped the car, he alighted from it. An argument then took place between him and you near the driver’s side door of the vehicle. The argument was clearly heated, so much so that patrons of the hotel, who were standing on the north east corner of the intersection, were able to hear raised voices. At one stage a voice was heard to call out words to the effect, ‘Don’t be an idiot, get in the car’. Although it is not necessary for me to determine the issue, I am satisfied that it was Gavin Dunne who spoke those words. One of the witnesses to the argument, who viewed it from the Marong Hotel, stated that he saw some pushing and shoving occur, and one punch thrown. Shortly after that, Gavin Dunne walked off onto the southbound carriageway of the Calder Alternative Highway, and commenced to walk north towards the hotel. You got into the utility, revved its engine loudly, and took off in a north‑east direction at a fast speed. You drove onto the incorrect side of the road, that is, onto the southbound carriageway of the Calder Alternative Highway. There, the vehicle collided with Gavin Dunne.
There was a dispute between the collision reconstruction experts at the trial as to how the collision occurred. It is sufficient for me to conclude that the front right hand corner of the utility collided with Gavin Dunne. He then rode up onto the bonnet of the vehicle. Either his head or his elbow struck the windscreen, causing it to shatter. From there he fell onto the road surface. You did not brake, or react, at all in response to the collision. Rather, you increased your rate of acceleration, and sped off from the scene. You turned right into the slip lane on the south east corner of the intersection, which was applicable to vehicles coming in the opposite direction. You then turned east into the Calder Highway, and accelerated away at a high speed.
In the meantime, patrons at the hotel rushed to the assistance of Gavin Dunne. They attended to him, and called the ambulance. They did their best to assist Gavin, and to make him comfortable. They are each to be commended for their efforts.
After the ambulance arrived, Gavin Dunne was conveyed by air helicopter to the Royal Melbourne Hospital. He was found to have sustained a number of head injuries, including a complex fracture of the skull, and severe and profound brain injury. He died later that morning as a result of those injuries.
In the meantime, you had sped off in an easterly direction down the Calder Highway. You drove for about seven kilometres, and then turned north into the driveway of some premises. You drove down the 50 metre gravel driveway of the premises to the end of the property, and attempted to conceal your vehicle behind a caravan which was parked there. You then left the utility, and made your way to the next door premises. There you hid under a tree, the vegetation of which reached to the ground. You lay down and fell asleep there. Subsequently, after your utility was found at the premises next door, the owner of those premises contacted the police. At 5.45 am, a police tracker dog located you under the tree of the next door premises. In the ensuing scuffle, you sustained a number of bite marks to your ankle. They necessitated your admission to the Bendigo Hospital for treatment, where you remained for three days.
The principal issue at the trial was whether your actions in driving the utility at the time of the collision were conscious and voluntary. You had maintained, in your record of interview, and in statements to the police and others, that you had sustained a beating at the hands of Gavin Dunne in the course of the argument on the roadway. You maintained that you did not have any memory of what had occurred. The jury clearly rejected the suggestion that you were acting in an automatous state at the time of the driving, and, by its verdicts, was satisfied, beyond reasonable doubt, that your actions, in driving at the time of the collision, were conscious, voluntary and deliberate. Similarly, the jury was satisfied, beyond reasonable doubt, that your actions, in failing to stop after the collision, and failing to render assistance, were conscious, voluntary and deliberate.
The prosecution put its case to the jury, on the charge of culpable driving, on the basis that you had driven your vehicle with gross negligence. The prosecution made its case in two ways. The principal case of the prosecution was that you had deliberately driven the vehicle either at or near Gavin Dunne, in order either to nudge him or to frighten him. Alternatively, it was put that you had driven with gross negligence, in that you had sped off in the dark, on or onto the wrong side of the road, knowing that Gavin Dunne was in the vicinity, and failing to keep a proper lookout for him.
At the trial, your counsel, Mr C Dane QC, sensibly conceded that, if the jury was satisfied beyond reasonable doubt that you deliberately drove the vehicle at Gavin Dunne, you would be guilty of culpable driving. Accordingly, it is clear that, by its verdict, the jury was not satisfied, beyond reasonable doubt, that you deliberately drove the vehicle at, or in the direction of, Gavin Dunne, in order to frighten him or to nudge him.
On the alternative charge of dangerous driving causing death, I instructed the jury that in order to prove that charge, the prosecution must prove, beyond reasonable doubt, that the driving by you of your vehicle involved such a serious breach by you of the proper conduct of your vehicle on the roadway, that an ordinary person, in the same circumstances as you, would have realised that that driving created a real (and not just speculative) risk of death or serious injury to members of the public, who may be on, or in the vicinity of, the roadway on which you were driving. I also instructed the jury that the risk, so created by your driving, must have exceeded the risks which are ordinarily associated with being on the highway, including risks caused by persons driving with less than reasonable care and skill.
By its verdict on the charge of dangerous driving causing death, it is clear that the jury was satisfied, beyond reasonable doubt, that your driving satisfied the definition which I have just recited. It was common ground, at the trial, that the point of impact took place approximately 15 metres from where you commenced to drive the vehicle. Thus, the dangerous driving, of which you were convicted, occurred over a short distance of driving. On the other hand, you drove off at a high speed in the circumstances. It was estimated that the speed of your vehicle on impact was 24 kph to 27 kph. Leading Senior Constable Mehegan estimated that, in order to achieve that speed over that distance, you would have had to accelerate at more than twice the normal rate for a vehicle of that type and model. That assessment is confirmed by the evidence of the eye witnesses, who described your vehicle as accelerating heavily and as travelling at a high rate of speed, at or about the point of impact.
It has been put on your behalf by Mr Dane that your offending was at the lower end of the scale of cases of dangerous driving causing death. In particular, he relied on the fact that your driving occurred over a short distance, and that the speed of your vehicle on impact was relatively low. While those factors are relevant, they must be weighed against the features of your driving, upon which your conviction for the offence was based. In particular, you were clearly in an angry frame of mind when you drove off. As I stated, you drove off, at a fast speed and under heavy acceleration, onto the incorrect side of the road. You did so knowing that Gavin Dunne was in close proximity. You knew that the lighting was not good at that point. Gavin had only just walked away from the utility, and you must have known that there was a significant risk that he was close to your vehicle. On the finding of the jury, I am satisfied, beyond reasonable doubt, that you failed to keep any proper lookout at all for him.
In addition, I am satisfied that your judgment, and the conduct by you of your vehicle, at the time of the collision were adversely affected by the consumption of alcohol. As part of its case on the charge of culpable driving, the prosecution alleged that you drove the vehicle while your ability to do so had been compromised by the consumption of alcohol. In particular, the prosecution relied on your conduct at the hotel, and later in getting into two arguments with Gavin Dunne outside the hotel. In your interview, you denied that you had been drinking heavily on that day. After leaving Melbourne at about 7.00 pm, you and Gavin had purchased one slab of beer, and, it would appear, eight of them were consumed between the two of you after you had left Melbourne. The evidence of the part owner of the hotel, Mrs Lougoon, and of the barman, Mr Wakefield, satisfy me that you were not intoxicated when you were at the hotel. Certainly, neither of them saw fit to evict you from the hotel, or to refuse to serve alcohol to you there. On the other hand, the evidence of the other patrons, and the evidence of your conduct at the hotel, was such as to satisfy me, beyond reasonable doubt, that your conduct, at the time of the collision, was affected by the consumption of alcohol by you. I cannot, however, say to what extent the alcohol accounted for your aggressive and angry frame of mind, both at the hotel, and on the roadway. Nevertheless, I am satisfied that it did play a part in your conduct, including your conduct in getting into the vehicle and driving off in the manner in which you did.
In those circumstances I do not accept Mr Dane’s submission that the offending, involved in your conviction, should be characterised as falling within the lower range of offences of dangerous driving causing death. Rather, I consider that your offending fell within the lower end of the middle range of such offences.
Further, the charges of failing to stop after a fatal collision, and failing to render assistance after a fatal collision, in this case, are particularly serious. I am satisfied, beyond reasonable doubt, as no doubt was the jury, that you well knew that a serious accident had just occurred. You knew that Gavin Dunne was in the vicinity, and that it was he with whom you had collided. The windscreen of your vehicle had been broken in the collision, and thus you knew that the force of the impact was sufficient to have caused such damage. Not only did you not stop, but you accelerated away at a fast speed. Even allowing for an element of panic, that does not account for the fact that you kept driving for seven kilometres, and then took deliberate steps to conceal your vehicle and yourself from the roadway. In doing so, you thought only of yourself. You did not stop at, or return to, the point of the collision, to attend to Gavin Dunne’s welfare, notwithstanding that you must have known that he had been seriously injured as a result of the collision. Rather, you chose to leave him, injured and helpless on the road, in order to escape the consequences of your dangerous driving. Your conduct in failing to stay at, or return to, the scene of the collision, and attend to Gavin, was callous, selfish and utterly shameful. That conduct, in my view, was at odds with the protestations, which you made to the police during your record of interview, of your loyalty to and affection for Gavin Dunne.
One other factual issue, which I should mention, is the question whether Gavin Dunne struck you on the roadway. After you were found by the police, you complained of having been ‘flogged’ by him, and you said that he had belted you. You complained that you did not remember anything after the altercation on the roadway. However, your complaints as to having received such a beating were entirely inconsistent with the findings by the doctor on examination of you at the Bendigo Hospital at 6.30 am. He only found one superficial bruise to your left cheek, and an abrasion. Although, during the ensuing three days, you complained of an ongoing headache, that complaint was consistent with a number of other unrelated causes, including stress, anxiety, lack of sleep and dehydration. All of the evidence is to the effect that, on the evening in question, both at the Marong Hotel, and outside it, Gavin Dunne was acting in a passive and restrained frame of mind. It was you who was the feisty aggressor. I am satisfied, beyond reasonable doubt, that your claim, to having been beaten by Dunne, was a blatant self-serving exaggeration, devised by you to excuse your driving, and your shameful conduct in deserting your seriously injured friend. While I cannot exclude the possibility that Gavin Dunne, in exasperation, might have struck you one blow on the roadway, I am satisfied, beyond reasonable doubt, that that blow did not affect you in any way, other than to add fuel to your already high state of anger.
Each of the three offences, for which you have been convicted, are serious. The maximum sentence prescribed for each offence is 10 years’ imprisonment. By committing the offence of dangerous driving causing death, you have taken the life of Gavin Dunne, who was then only 41 years of age. The victim impact statements of members of his family describe Gavin Dunne as a likeable larrikin with a great sense of humour, and with a big heart. He clearly enjoyed his work as a truck driver, and he was devoted to his four children. Although in the months leading to his death Gavin’s life had become somewhat complicated, nevertheless he had every right to look forward to a life full of happiness and fulfilment with his children, with his family and with his work.
I have read the victim impact statements of Gavin Dunne’s mother and father, of two of his brothers, his sister in law, his former partner, and two of his children. It is clear that Gavin was a loving, and very much loved, member of his family. His death, and the circumstances attaching to it, were understandably severely traumatic for each of his family members. The victim impact statements vividly reflect the profound and lasting anguish and grief which your criminal actions have inflicted on the family members of Gavin Dunne. While Gavin was the primary victim of your crimes, each member of his family is, also, to a very significant degree, also a victim of them.
I turn, then, to matters relating to your personal background. You are 34 years of age, having been born in July 1979. You are the youngest of four children. You grew up in the Sunbury area, and your parents owned, and still conduct, a pizza business in that suburb.
You attended a local primary school in Sunbury. From an early stage, you suffered from learning difficulties. In addition, you were an obese child. Your parents had migrated to Australia from Italy, and few of the students at the school were Italian. As a result, throughout your school years, you were the subject of bullying and racial taunts. Although you remained at school until the age of 15 years, nevertheless you are functionally illiterate.
Since leaving school, you have been consistently engaged in employment, particularly as a concreter. For some time you have been self-employed in that capacity. Two of the character witnesses, who gave evidence on your behalf, described you as hard working, reliable and most proficient in your chosen trade.
You have been close to your siblings, including your two elder sisters. Tragically, when you were 21 years of age, one of your sisters died as a result of a motor vehicle accident. Your other sister was the driver involved in that accident, and she was the subject of criminal charges in respect of it. Understandably for some time, you were troubled by intrusive recollections of your sister’s death. You have told the psychologist, Mr Newton, that those recollections have returned in the wake of your involvement in the circumstances surrounding the death of Gavin Dunne.
In the meantime, when you were 20 years of age, you had become involved in a relationship with a young woman. You have a son from that relationship, who is now aged 13 years. The relationship broke down shortly after your son was born. Two years ago you commenced a relationship with your current partner, Natalie. She was present for most of your trial, and she has stood by you staunchly since your conviction.
You have come before the Magistrates’ Court on four previous occasions, for offences such as recklessly causing injury and unlawful assault. On two of those occasions you were convicted. The last occasion upon which you came before the Magistrates’ Court was in 2007. I do not regard those previous appearances as being relevant to your disposition in this case.
Your record also discloses that you have come before the courts on three occasions in respect of driving offences. The most recent was in 2002. The offences were reasonably minor, and accordingly I do not regard them as having any significance in respect of the determination of your sentence.
On the other hand, I heard evidence from four character witnesses on your plea, namely Mr Andrew Hayes, Mr Paul Lasalla, Mr Gerry O’Neill, and Mr Luke Valenti. Each of those witnesses spoke of your character in glowing terms. In particular, you have proven yourself to be very loyal and helpful to your friends. In recent times, you stood by Mr Hayes, when he suffered a serious illness, and you played an important role in his recovery.
Throughout your trial, and at your plea, you were supported by your parents, your siblings, and your partner Natalie. Given your background, and in particular the family support which I am confident you will continue to receive, I would assess your prospects of rehabilitation as being good. Those prospects are reinforced by your conduct while you have been in custody since your conviction. During that time, you have undertaken four courses, including a course to address your illiteracy. You are to be commended for taking those courses, and I encourage you to continue with your efforts to remedy your literacy deficiencies. I also note that you have been placed in positions of responsibility within the prison. As I stated, all those matters confirm my assessment that you have sound prospects of rehabilitation.
On your plea, I also received a report from Mr Patrick Newton, a clinical and forensic psychologist, who conducted a clinical consultation with you at the Melbourne Assessment Prison on 2 August 2013. Mr Newton’s assessment is that you have been suffering from significant depressive symptoms since your childhood, for which you have received no psychiatric or psychological treatment to date. As I stated, those symptoms were exacerbated by the death of your sister, some 12 years ago. They have been further aggravated by your involvement in the present case. It is a matter of concern that Mr Newton notes that you have experienced bouts of suicidal ideation. Mr Newton, understandably, has concluded that there is a pressing need for you to undergo treatment for your depression while you are in custody. It is most important that those who are responsible for you, during your term of imprisonment, ensure that you do receive appropriate treatment as soon as possible.
Mr Newton assessed your cognitive functioning as falling within the bottom range, with an intellectual quotient in the lowest ten percent of the population. It is relevant that while your verbal reasoning is very poor, nevertheless your general non-verbal reasoning is considerably better, falling in the low average range.
It was submitted by Mr Dane that the two matters, referred to by Mr Newton, reduce your culpability for your offending, both in respect of the conviction for dangerous driving, and also in respect of your convictions for failing to stop and failing to render assistance to Gavin Dunne after the accident. Mr Newton does not address the question whether your lower cognitive functioning, or your depression, affected your judgment and conduct in committing any of those offences. It is not suggested that you did not know or understand your obligation to remain at the scene, and to render assistance for Gavin Dunne, after the accident. With substantial reservation, I accept that your depression, and your cognitive functioning, may have played a minor role in your impulsive behaviour, both in driving in a manner which was dangerous, and in immediately departing and remaining away from the scene of the accident. Thus, I am prepared to accept that the matters referred to by Mr Newton do, to a limited degree, reduce your culpability.
On the other hand, I do accept that your depressive condition may render a term of imprisonment somewhat more onerous for you. That proposition must be modified by reason of the commendable manner in which you have so far managed to conduct yourself while you are in custody. However, I accept that, given your depressive state, and given your reduced cognitive functioning, a term of imprisonment might well be more difficult for you.
Mr Dane submitted that you have demonstrated remorse for your actions in causing the death of Mr Dunne, and in departing from the scene. Mr Newton’s report does not refer directly to any such expression of remorse. Rather, Mr Newton has recorded that the recollections of your sister’s death had returned following your involvement in the circumstances concerning the death of Gavin Dunne. In addition, you have expressed grief and distress at the death of your friend. However, you have not expressed any remorse for the role which you played in causing his death, or for deserting him and leaving him helpless on the roadway after the accident. I am therefore not persuaded that you have demonstrated any contrition in respect of your offending in this case.
The committal proceedings took place in May 2012. As a result of those proceedings, you were committed to trial in the County Court on a charge of culpable driving causing death, as well as charges of failing to stop and failing to render assistance. Subsequently, on the application of the Director for Public Prosecutions, the case was uplifted to the Supreme Court, and you were charged with manslaughter instead of culpable driving. Later, following a directions hearing, the Director withdrew the charge of manslaughter, and substituted the charge of culpable driving causing death.
It was put on your plea that the matters, to which I have just referred, have involved added stress to you, and have delayed the hearing of your trial. While I am not persuaded that the history of this proceeding, which I have just recited, has caused any additional delay in the hearing of the case, I do accept that the uplifting of the case, and the substitution of the charge of manslaughter against you for some time, would have been a cause of additional stress to you. I take that matter into account in mitigation of your sentence.
In summary, then, there are a number of mitigating circumstances in your case. They include your good work record, your good character, the steps which you have taken in jail to address your learning deficiencies, and your good prospects for rehabilitation. In addition, I take into account the matters referred to by Mr Newton in his report, and the additional stress occasioned to you from the uplifting of the case into the Supreme Court, and the upgrading of the charge against you to that of manslaughter.
On the other hand, the three offences, of which you have been convicted, are, as I have already stated, serious. It is important that the sentence which I impose upon you for each of three charges shall be sufficient to express the court’s and the community’s condemnation of your behaviour, and to act as a deterrent to others who might be minded to conduct themselves in the manner in which you did on the night in question.
As I stated, I regard this as a quite serious case of failing to stop after an accident. The obligations of a motorist to stop, and to render assistance, after being involved in an accident which has resulted in a person’s death or serious injury, are important obligations. That is reflected by the significant increase in the maximum sentence for each of those two offences, eight years ago, from two years’ imprisonment to the present maximum of 10 years’ imprisonment.
I agree with the submission by Mr Dane that there is a substantial degree of overlap between the offence of failing to stop and the offence of failing to render assistance in this particular case. The need to avoid imposing double punishment on you for the two offences will be reflected, first, in the sentence which I impose upon you on count 3, and, secondly, by allowing for a substantial degree of concurrency in respect of the sentences imposed on counts 2 and 3.
Taking into account the matters to which I have referred, I therefore sentence you as follows:
(1)On the alternative charge of dangerous driving causing death, I sentence you to a term of 2 years’ and 4 months’ imprisonment.
(2)On the charge in count 2 on the indictment, failing to stop after an accident, I sentence you to 2 years’ imprisonment.
(3)On the charge in count 3 on the indictment, failing to render assistance, I sentence you to 8 months’ imprisonment.
I direct that 9 months of the sentence on count 2, and 1 month of the sentence on count 3, be served cumulatively upon your sentence on the charge of dangerous driving causing death, and upon each other, making a total effective sentence of 3 years’ and 2 months’ imprisonment. I direct that you serve a minimum term of 2 years’ imprisonment before you become eligible for parole.
Pursuant to s 89 of the Sentencing Act, and s 61(6)(a) of the Road Safety Act, I also cancel your licence to drive a motor vehicle, and disqualify you from obtaining a licence for a period of four years.
Pursuant to s 18(4) of the Sentencing Act, I declare that you have already served a period of 78 days as pre-sentence detention, and I shall cause that declaration to be noted in the records of the court.
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