Director of Public Prosecutions v Contacolli

[2022] VCC 32

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

CRIMINAL JURISDICTION

CR-20-01208

DIRECTOR OF PUBLIC PROSECUTIONS

v

JODIE ANN CONTACOLLI

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Wodonga
DATE OF HEARING:	16 February 2022, 28 January 2022, 21 January 2022, 17 December 2021.
DATE OF SENTENCE:	18 February 2022
CASE MAY BE CITED AS:	DPP v Contacolli
MEDIUM NEUTRAL CITATION:	[2022] VCC 32

REASONS FOR SENTENCE
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Subject:   Dangerous driving causing death

Catchwords:             Drove into the rear of a slowing car ahead – distracted by child passenger – prolonged inattention – no alcohol, drugs, fatigue or excessive speed – low end offending – Category 2 offence – consequent PTSD would substantially and materially increase the burden and risks of imprisonment (S 5(2H)(c)(ii) – substantial and compelling reasons established, (s 5(2H)(e) – sentencing purposes met by CCO.

Legislation Cited: Sentencing Act 1991 (Vic), Road Safety Act 1986 (Vic).

Cases Cited:DPP v Neethling [2009] 22 VR 266; DPP v Oates (2007) 47 MVR 483; Arron Bell v The Queen [2018] VSCA 281; Andrew Farmer v The Queen [2020] VSCA 14; R v Teh [2003] VSCA 169; Farnan Fariah v The Queen [2021] VSCA 213; Amber Peers v The Queen [2021] VSCA 264.

Sentence:Three-year community corrections order with conditions of supervision and 300 hours unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Hutton	Office of the Director of Public Prosecutions
For the Accused	Mr P Dunn QC	Clancy Solicitors

HIS HONOUR: 

1On 18 October 2021, a jury was empanelled for a trial on two charges of dangerous driving causing death. At the conclusion of the evidence, and before closing addresses, the jury was discharged without verdict.

2Following the discharge of the jury, you, Jodie Ann Contacolli, applied for a sentence indication.

3On 28 January 2022, I indicated in the event you pleaded guilty to the two charges on the indictment I would likely not impose a sentence of imprisonment.

4On 16 February 2022, you pleaded guilty.

5The circumstances of the offending emerged in the course of the evidence. They are summarised in the prosecution opening.[1]

[1] Exhibit A.

6On the morning of 13 June 2020, you drove, in your Nissan Navara SUV, from your home at Markwood to Wangaratta to collect your mother to take her shopping. Your then two-year-old daughter, Lilly-Anne, was a rear seat passenger in your car.

7Shortly before 10:00 AM, while you were driving along Greta Road, which has a 100 km/h speed limit, a blue FJ Holden, was travelling ahead of you. You failed to observe the Holden slow down, as it approached the turnoff to Wangaratta airport, and drove into the rear of it.

8Tragically, the Holden driver, Jamie Drummond, and his front seat passenger, Peter Turner, both died as a result of injuries they suffered in the collision.

9Mr Drummond’s son, Trevor, had gone to the airport with his father. While he was standing at the airport entrance gate he saw the Holden slowing as it approached. He saw your car travelling behind and thought it must have been in a passing lane. He said the collision occurred “only a few seconds later…it happened so quickly.”[2]

[2] Trial transcript, T 69/26; T 68/23.

10A passing motorist, Joan Makrikostas, helped you after the accident. The first thing you said was, “How are they?”, referring to the occupants of the Holden. While Ms Makrikostas was comforting you, you said your daughter had distracted you.[3]

[3] Ibid T 111/8.

11When a paramedic, Nathan McDonald, was treating you for your injuries he asked you what happened. You said, “I looked up and they were just there… It happened very quickly… I was distracted by my daughter in the back seat.”[4]

[4] Ibid T 120/10.

12Your daughter and you were taken to Wangaratta Hospital for treatment. You had a suspected broken arm; your daughter had a laceration to her chin.

13Police interviewed you two days later. You told them the same thing you had told Mrs Makrikostas and Mr McDonald.

14You said, “I actually remember seeing a car in the distance. I don’t remember how far it was in front of me. I thought it was quite – quite a bit in front of me… And then we were talking about Lily’s beanie and I looked in the mirror – the rear vision mirror, and then all of a sudden I looked down and I don’t even know if I braked.”[5]

[5] Record of Interview, Q 85 – 87.

15You said you were travelling at “about the hundred K mark”[6].

[6] Ibid Q103.

16When police asked for how long you had taken your eyes off the road, you said,  “I didn’t feel like it was that long. It was – it just happened so quick.”[7]

[7] Ibid Q134.

17The prosecution case is the time for which you her eyes off the road was so prolonged that your driving was dangerous.

18Your guilty plea is an admission of that fact .

19At trial, a police accident reconstruction expert, Melanie McFarlane, stated it is not possible to establish when, prior to the collision, you first saw the FJ Holden or the respective locations of your car and the Holden on the roadway at the time you did. She said it was not possible to know for how long you were distracted.[8]

[8] Trial transcript, T 158/19.

20In her opinion, it is possible you took your eyes off the road for a period between 1.4 seconds and 14 seconds.[9] She could not say whether it was 1.4 seconds or 14 seconds.[10]

[9] Ibid T 180/17.

[10] Ibid T 180/23.

21She estimated, allowing for recognised driver emergency response time, the maximum period of your inattention was 10 seconds.[11]

[11] Trial transcript, T 157/7.

Victim impact statements

22Mr Drummond was a loving and loved husband, father and grandfather. So was his friend, Mr Turner. Both men had a passion for the restoration of old cars. Neither of them contributed to the collision in any way.

23Mr Drummond’s widow, Yvonne,[12] and daughter, Emma,[13] read their victim impact statements to the Court. Jenny Turner read a statement made on behalf of her brother, Andrew, and their respective families.[14]

[12] Exhibit C.

[13] Exhibit D.

[14] Exhibit E.

24Victim impact statements of Mr Drummond’s second daughter, Tracy Drummond,[15] and son, Trevor Drummond,[16] were read to the Court.

[15] Exhibit G.

[16] Exhibit F.

25Trevor Drummond gave evidence at the trial. He bravely kept his emotions under control as he gave his account of the tragic accident.

26Chillingly, Tracy Iliff recounted how her husband, a local policeman, came home early from a rostered shift to inform her of her father’s death. They then drove to her mother’s house to tell her and then called her sister, Emma, who was residing interstate, to tell her.

27Emma is a perioperative nurse who works at the Queensland Children’s Hospital where she cares for critically ill children. Treating road trauma victims triggers “intense” painful and distressful thoughts of her father’s death.

28Trevor works at the airport. He has to drive down the Greta Road to the intersection where his father died, daily. It is a constant reminder of the tragedy and, as he said, “… it’s taking its toll”.[17]

[17] Exhibit F.   

29They have suffered immense sadness and loss. It has burdened them, emotionally and financially; emotionally, in anxiety and depression, and the need for professional help; financially, for daughters and son, in being unable to work because of the psychological impact, and for mother, because she had to sell her home and re-establish herself in another one.

30Mr Turner’s son and daughter described their father as “a genuinely good bloke to be around – someone people were drawn to”.[18]

[18] Exhibit G.

31They received the devastating news of their father’s death by telephone. As their father raced historic cars they guessed he’d had a racing accident; something he had joked about during his lifetime. It took them time to process the concept that he was an innocent victim.

32They described their father as a “… dad (who) loved life, loved his family, (and who) was a generous and fiercely loyal friend to so many, a great storyteller, wise counsel, a legend.”[19]

[19] Exhibit E.   

33As Jennifer Turner said, “… your decision to take your eyes off the road is something that perhaps we have all done while driving – but you robbed (her father) of the chance to spend time with the people he loved and robbed two families of their dad, brother, uncle and grandfather… It is a hurt that will stay with (them) for a long time.”[20]

[20] Exhibit E.

34I turn to your personal circumstances.

Criminal record

35You have no criminal record.

Personal Circumstances

36You were born in March 1975. You were 45-years’ old when you offended.

37You are the middle of three siblings. You grew up in Wangaratta and attended local schools.

38After you left school you held various retail jobs and obtained a certificate of training in personal care which enabled you to obtain work in aged care facilities.

39You have three adult children.

40In 2015, you met John Contacolli and, in 2019, you married him.

41On 4 November 2017, your daughter, Lilly-Anne, was born, premature at 26 weeks’ gestation. She weighed 460 g. She required hospital care for more than 4 months’ before being discharged home.

42Lilly-Anne’s paediatrician, Terry Stubberfield, wrote:

“Being so premature and requiring hospital care for such an extensive period was a very difficult time for Lilli-Anne’s parents, with ongoing anxiety around Lilli-Anne’s well-being and development after going home. As part of such experiences parent/child attachment can be impacted on. Attachment being a most important component of early childhood development, with complex, lifelong, mental health issues, for both parent and child, if significantly impaired. The preschool years are an essential time for healthy attachment to occur for all children, but particularly so for vulnerable families, such as the situation of extreme prematurity, and any additional prolonged period of parent/child separation for Jodie and Lilly-Anne at the present time would give me considerable concern.”[21]

[21] Exhibit 13.

43After the accident, your GP referred you to Ms Roberts-Jacobson for psychological treatment for stress and anxiety.[22]

[22] Exhibit 11, Exhibit 12, Exhibit 15.

44According to Ms Roberts-Jacobson you are acutely aware of your responsibility for the accident and, “because of the full and horrifying realisation” of what you did, you feel overwhelming “guilt, remorse and self-blame” for the loss of two innocent lives.[23]

[23] Exhibit 11, Exhibit 12, Exhibit 15.

45She has diagnosed you with PTSD, caused by your involvement in the fatal collision.

46In a recent report,[24] Ms Roberts-Jacobson wrote:

“Mrs Contacolli has reported hypervigilance in her daily activities including sleep disturbance, difficulty concentrating and being super-alert when in the car with her husband driving. She has only recently been able to drive herself again and admits to being extremely cautious, slow and hyper-alert to other drivers. Jodi described avoidance of the accident site, persistent muscle tension, daily depressed mood, constant tearfulness and feeling “cut off” from other people. She has been unable to return to her previous work in “age care” as she is caring for her seriously ill mother while supporting her grieving father. Her resilience currently is severely depleted.”[25]

[24] Exhibit 15.

[25] Exhibit 15, paragraph 4.3

47In her opinion, “(your) current PTSD symptoms would be adversely impacted by a custodial sentence as it would very likely exacerbate (your) current fragile mental health condition by increasing the risk of depression, disassociation from reality, heighten (your) already elevated anxiety, and compound the pressures around (your) family situation.”[26]

[26] Exhibit 15, paragraph 7.1

48She continued, “It is clear that a custodial sentence will weigh more heavily on Jodie than it would on a person in normal mental health due to her current condition of chronic PTSD”[27]

[27] Exhibit 15, paragraph 7.2

49According to her GP, your mother has early-onset dementia and is deteriorating rapidly. She needs significant care due to her memory decline and behavioural problems.[28]

[28] Exhibit 10.

50Your father gave evidence before me.

51He lives with your mother at Laceby.

52She requires full-time care. Her memory has failed her although, at times, she recognises your voice and his. He works two and a half days a week as an operator and gets NDIS assistance for his wife on those days.[29]

[29] Confirmed by Exhibit 2.

53He relies on you to cook meals, shower and toilet your mother and clean the house. He has asked you, with your husband and daughter, to come to live with his wife and him because he is finding it difficult to cope with his wife alone.

54I received letters from your husband,[30] adult children,[31] and three friends,[32] which confirm your role as the primary carer for your daughter and your mother.

[30] Exhibit 3.

[31] Exhibit 5, Exhibit 8 and Exhibit 9.

[32] Exhibit 4, Exhibit 6 and Exhibit 7.

55They also confirm your deep contrition for the loss of Mr Turner’s and Mr Drummond’s lives.

56Your husband wrote you know “… (You have) destroyed two families and its (sic) something (you) will have to learn to live with.”[33]

[33] Exhibit 3.

Defence Submissions

57Mr Dunn QC, who appeared on your behalf, in comprehensive written[34] and oral submissions, submitted I should not jail you but release you on a community corrections order.

[34] Exhibit 14.

58He submitted, considering the relatively short duration of your inattention, in the absence of speed, alcohol, drugs or phone misuse or any untoward driving prior to the collision, your culpability falls to the lower end of the range for an offence of this type.

59He acknowledged your offending is inherently serious, as the mandatory imprisonment laws demonstrate.

60However, he submitted two of the statutory exceptions to mandated incarceration apply.

(a)   Firstly, relying on Ms Roberts-Jacobson’s opinions, he submitted, because of your PTSD, you would suffer “substantially and materially greater than the ordinary burden or risks of imprisonment”[35] ; and

[35] Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).

(b)   Secondly, he submitted:

(i)your lower-end offending;

(ii)an absence of any criminal record;

(iii)your remorse;

(iv)family hardship if you are jailed; and

(v)your PTSD, which will make prison harder for you, and worsen in jail

in combination, demonstrate “substantial and compelling circumstances that are exceptional and rare”[36] and which justify a non-custodial disposition.

[36] Sentencing Act 1991 (Vic), s 5(2H)(e).

Prosecution Submissions

61The prosecutor, Mr Hutton, in forceful written[37] and oral submissions submitted the offending requires a sentence of immediate custody to adequately address general deterrence, denunciation and just punishment.

[37] Exhibit A, Exhibit B.

62He submitted neither the impaired mental functioning exception nor the substantial and compelling circumstances exception are made out.

63He did not challenge Ms Roberts-Jacobson’s diagnosis of PTSD or her opinions of the likely detrimental impact of incarceration if you are imprisoned. However, he submitted those opinions do not meet the threshold requirement of “substantially and materially greater” burden or risk.

64He submitted the combination of circumstances relied on by you do not meet the stringent test of “substantial and compelling reasons that are exceptional and rare”.

65He submitted this is a case of more than momentary inattention. He submitted  you failed to pay sufficient care and attention when you knew there was another vehicle ahead. He submitted, in the circumstances, your moral culpability is mid-high level and the objective gravity of your offending is high.

66He submitted, even if I am satisfied that one of the statutory exceptions are made out, this is not a case of low moral culpability where a non-custodial sentence may be open.

Consideration

67The taking of a human life by driving a motor vehicle dangerously is a serious crime. The substance of the offence is not just dangerous driving; it is the dangerous driving in association with the taking of a human life.[38]

[38] DPP v Neethling (2009) 22 VR 466, at [28].

68As the Court of Appeal said in Neethling:

'The legislature has always placed a premium upon human life and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness'.[39]

[39] DPP v Neethling (2009) 22 VR 466, at [28].

69In your case, two innocent people died.

70I am conscious of the terrible consequences of your crimes for the Drummond and Turner families. They spoke bravely and powerfully of their intense sadness, loss and grief.

71Ordinarily, a sentence of imprisonment should be imposed.

72However, the sentence must take account of variations in the moral culpability of the offender.[40]

[40] DPP v Oates (2007) 47 MVR 483, at 486, [21]

73In cases where the offender’s moral culpability is relatively low a non-custodial sentence may be open.[41]

[41] Oates, at 487 [as above], [22]; Neethling at 471 – 472, [28] – [31], Arron Bell v The Queen [2018] VSCA 281.

74Your car was in good order. You had not been speeding. You were not affected by drugs, alcohol or fatigue. You driving was neither erratic nor aggressive. Your daughter distracted you. In a lapse of judgement, you took your eyes off the road, with dreadful consequences.

75Your inattention was more than momentary but it is not possible to quantify how much more. The accident reconstruction expert gave an estimate of somewhere between 1.4 and 14 seconds. Considering Trevor Drummond’s observations, that the accident happened within a few seconds,[42] and your own, that it happened quickly, it was likely you were distracted for a time closer to the lower figure than the higher.

[42] Trial transcript, T 68/23.

76Accordingly, I assess your moral culpability to be at the lower end of the range for a crime of this type.

77It is to your credit you have lived an otherwise good and decent life. 

78While you ran a trial, you did not dispute the circumstances of the accident and, indeed, the prosecution case was founded on your frank admission your daughter had distracted you.

79I accept, from the outset, you have been deeply remorseful and I take into account the grief and guilt you carry for the grave consequences of your actions.[43] 

[43] R v Teh [2003] VSCA 169, at [20] and [21].

80In my view, you almost certainly will never reoffend. 

81I accept you are the primary caregiver for your vulnerable child and incapacitated mother.

82Your incarceration would significantly harm your daughter’s important preschool development. It would also substantially impact the quality of your mother’s care.

83I am satisfied your incarceration would cause very substantial hardship to your family.

84I also accept you suffer PTSD, caused by your involvement in the fatal collision, and, because of it:

·        the burden of imprisonment would weigh more heavily on you than it would on a person in normal health (Verdins limb 5); and

·        there is a serious risk imprisonment will have a significant adverse impact on your mental health (Verdins limb 6)

85Nevertheless, the law directs a term of immediate imprisonment must be imposed unless I am satisfied one of the statutory exceptions is met.[44]

[44] Sentencing Act 1991 (Vic), s 5(2H).

86I accept Ms Roberts-Jacobson’s opinions your PTSD symptoms are significant and chronic.

87Accordingly, I am satisfied your PTSD would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.[45]

[45] Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).

88In considering whether there are substantial and compelling circumstances that are exceptional and rare in the justify not making an order I must, and do, have regard to the matters set out in ss 5(2HC) and 5(I).

89It is a stringent test.[46]

[46] Andrew Farmer v The Queen [2020] VSCA 140, at [51] – [52].

90Section 5(2H)(e) requires me to make an evaluative judgement.[47]

[47] Farnan Fariah v The Queen [2021] VSCA 213, at [24].

91I am satisfied the combination of:

·        your relatively low moral culpability;

·        the absence of any convictions or findings of guilt;

·        your remorse;

·        the impact of your PTSD; and

·        the great hardship to your family;

meets the ”substantial and compelling circumstances” test.

92Having found exceptions under paragraphs 5(2H)(c)(ii) and (e) made out, it is not the end of the matter.[48]

[48] Amber Peers v The Queen [2021] VSCA 264.

93I must decide whether, in all the circumstances of your case, a term of imprisonment is required.[49]

[49] Sentencing Act 1991 (Vic), s 5(1).

94I have had regard to a number of appellate decisions and sentences of this Court for the offence of dangerous driving causing death.

95I have used them for guidance as to the applicable sentencing principles and practices. 

96I have also had regard to the maximum penalty, 10 years’ imprisonment, for the offence and the other matters set out in s 5(2) of the Sentencing Act.

97This is a very difficult sentencing exercise.

98While the cause of the collision was your lapse in judgement it had devastating consequences for two families.

99General deterrence is a primary sentencing consideration. Imprisonment is the legislative norm.[50]

[50] Sentencing Act 1991 (Vic), s 5(2H).

100However, there are other relevant factors, which I have identified, which serve to moderate your sentence.

101Overall, I am satisfied a community corrections order can meet all sentencing purposes in your case.

102I have had you assessed for a community correction order and you have been found suitable. 

103You were assessed as a low risk of reoffending and I accept the assessing officer's recommendation that minimal order conditions are an effective way of maintaining your low risk of recidivism.

104The mandatory conditions of the order include terms that you must not commit an offence punishable by imprisonment, you must report and receive visits when directed and you must not leave Victoria without permission.

105As a punishment, I will direct you also perform unpaid community work.

106To advance your rehabilitation, I will also direct you undergo mental health  treatment.[51]

[51] In accordance with the MHARS Assessment recommendation, 16 February 2022.

107Please stand Mrs Contacolli.

108By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

109Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the two charges of dangerous driving causing death you are convicted and ordered to undertake a community corrections order which will commence today.

110The duration of the order will be three years’.

111In addition to the mandatory conditions, which the assessing officer explained to you, I order you complete 300 hours of unpaid community work.

112I direct that up to 80 hours of your mental health program be credited towards your community work.

113While there is some artificiality in the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to 2 years’ and 8 months’ imprisonment and imposed a minimum non-parole release period of
one year and 4 months’.

114As s.89(1A) of the Sentencing Act requires me to do, I order all licenses and permits held by you under the Road Safety Act be cancelled and you are disqualified from obtaining any further license or permit for the statutory minimum period of 18 months from today.

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