Director of Public Prosecutions v De Cicco

[2017] VCC 1260

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00277

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS DE CICCO

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 September 2017
CASE MAY BE CITED AS:	DPP v De Cicco
MEDIUM NEUTRAL CITATION:	[2017] VCC 1260

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Offender	Mr R. Kelly

1Nicholas Thomas De Cicco, you have pleaded guilty to one charge of dangerous driving causing serious injury, Charge 1.  One charge of possession of a drug of dependence, Charge 2 and an uplifted Summary Charge 3, of driving under the influence of drugs.

2The maximum penalty for dangerous driving causing serious injury is five years' imprisonment.  The maximum penalty for possession of a drug of dependence in the circumstances where it is cannabis in a small quantity, such as here, is a fine of five penalty units.  The maximum penalty for driving under the influence is a fine of 25 penalty units or three months' imprisonment. 

3The prosecution made application for disposal of certain items and for the taking of a forensic sample from you, the making of those orders was not opposed.

4The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A.  The charges arise from a collision which occurred at approximately 9.40 pm on Tuesday 8 August 2016 on the Murray Valley Highway at Wharparilla.  It is evident from the exhibits tendered that the Murray Valley Highway at that point is a two-lane road that is flat and straight.  You were driving west in a dual-cab Nissan tray-type utility vehicle.  Your friend Jayden Phillips, age 20, was asleep in the passenger seat.  At the same time, Mr Roland Griffiths was driving a prime mover with a loaded B-double milk tanker in an easterly direction.  Mr Griffiths had his cruise control set at 800 kilometres per hour.  He saw the lights of your vehicle approaching.  Your vehicle then moved sharply across the road in front of Mr Griffiths’ truck and the two vehicles collided.

5At the time of the collision your vehicle was completely on the wrong side of the road.  The collision occurred entirely within the eastbound lane in which Mr Griffiths was travelling.  As a result of the collision the milk tanker's left wheel and steering was damaged and the tanker veered off the road to its left through a treed reservation.  The prime move and tanker were extensively damaged.  Mr Griffiths received bruising and lacerations as well as nervous shock.

6In the meantime, your vehicle had tipped onto its side and burst into flames.  Mr Phillips was partly out of the vehicle with his legs jammed under the dash.  You assisted a bystander to free Mr Phillips and drag him away from your vehicle and the fire.  Other bystanders came and assisted Mr Phillips who was having difficulty breathing.  You had become agitated about a bag in the vehicle.  You retrieved the bag.  The bag was found near the collision scene.  It contained green vegetable matter which you admit was cannabis.

7Blood samples were taken from you when you were admitted to Echuca Hospital at 2.10 am on 10 August 2016.  Later analysis showed that there was a concentration of methylamphetamine and amphetamine at 0.30 milligrams per litre and 0.1 milligrams per litre, respectively.  Your counsel's instructions are that you had used ice or methylamphetamine about an hour before the collision but had not used speed or amphetamine.  The prosecutor accepted that the presence of methylamphetamine and amphetamine could both be the result of the use of ice.  The analyst's opinion was that the amount of substances in your blood could be expected to impair driving skills. 

8Mr Phillips was taken to the Royal Melbourne Hospital by air ambulance.  He was admitted into the intensive care unit in a coma.  Mr Phillips suffered extensive injuries including multiple skull fractures, multiple and complex facial bone fractures, right rib fractures, and complex fracture to the left-hip bone, open left elbow fracture, multiple bleeds to the brain, multiple lung injuries and lacerations to the face.

9The prosecutor outlined the ongoing treatment in which Mr Phillips is engaged including ongoing reviews in respect of his neurological and orthopaedic injuries.  He continues to be engaged in rehabilitation and occupational therapy activities on a fortnightly basis.  He attends physiotherapy sessions and sessions with a psychologist monthly.  He engages in a gym programme to assist in improving his balance and coordination.  Mr Phillips is expecting a further operation in respect of his left cheek bone.

10Four victim impact statements were tendered.  In his victim impact statement, Exhibit E, Mr Phillips says that he has no memory of the collision or events after about 6 pm on that day.  He says that he is not able to drive or work.  His walking is affected and he cannot run.  He is in constant pain in his left knee.  Mr Phillips describes his dependency on his partner and family and the stresses on his relationship.  Mr Phillips is clearly upset that he cannot do what he would like to do with his baby son.  He cannot hold him or play with him unless he is sitting down.  He cannot run around with him.  Mr Phillips is clearly frustrated and anxious about the future.

11Mr Griffiths in his victim impact statement, Exhibit F, describes his fear and shock at the time of the collision.  He also describes his disappointment as he was about to retire after 30 years of driving accident free.  He says he now has reduced sleep and cannot drive heavy vehicles.  He is on light duties at work.  He is still having problems with an injured right knee.  Mr Griffiths is also still regularly seeing a psychologist.  He says he has a loss of patience and short temper.  He does say that it is a blessing that all three people involved in the collision survived.

12Mr Phillip’s mother, Fiona Phillips, in her victim impact statement, Exhibit G, describes her anxiety about her son at the time of the collision and her concern for him and his recovery.  The family were split up while Mr Phillips was in hospital and undergoing rehabilitation in Melbourne.  Mrs Phillips works for the company that Mr Griffiths was driving for and sees him, she says, every day.  She says Mr Griffiths is having a hard time.  Mrs Phillips says that one positive aspect is seeing her son improving.  Despite those improvements, she is very concerned for her son's future, especially because of the results of the neurological injuries. 

13Mr Phillips's sister, Mikayla Phillips, in her victim impact statement, Exhibit H, describes her distress at having to identify her brother at the hospital.  At that stage she was only 17 or 18 herself.  She says that she is scared and worried about her brother's future, and sad.  Her education was disrupted because she wanted to spend time with her brother in Melbourne.  She has not returned to education.  She has moved back to the country to be with her family.  Ms Phillips says that engaging in counselling has been of some assistance to her.

14In sentencing you I have taken into account your personal circumstances.  You are not 21 years old.  You grew up in a stable and supportive family in the Cohuna-Gunbower area.  You completed Year 12 and then started a carpentry apprenticeship.  The apprenticeship was completed in March 2016.  After your offending, you have engaged in some farm work and about six months' work as a glazier.  You enjoyed your work as a glazier and would like to return to that industry.

15Around March 2016 you were using ice.  You separated from your then long-term girlfriend.  You had a brief relationship with another young woman.  You have a daughter who was born in July 2017.  You see your daughter regularly and have an amicable relationship with her mother. 

16You have no prior criminal history. 

17In sentencing submissions your counsel addressed the circumstances of the offending.  Your counsel said that Mr Phillips had got a job for the two of you as labourers for a concreting company doing work in various locations around Victoria.  The day of the collision you left Echuca early.  You worked all day in Craigieburn then drove back to Echuca.  You had dinner with friends.  You smoked ice.  You were tired but your counsel says you thought using ice would assist with the tiredness.  Mr Phillips went to sleep.  A friend of yours in Gunbower wanted help with transport.  You were driving to Gunbower when the collision took place.  Your instructions are that you recall opening your eyes and seeing headlights. 

18Your counsel conceded the seriousness of your offending and its consequences.  He submitted that your youth and rehabilitation ought be significant sentencing factors although youth might not diminish the significance of general deterrence as much with this type of offending.  Your counsel relied in mitigation on:  a) your youth; b) your prospects of rehabilitation; c) your plea of guilty; d) your remorse; and, e) your lack of prior criminal history. 

19Your counsel referred to cases of dangerous driving causing serious injury wherein imprisonment had not been imposed.  Your counsel submitted that if imprisonment were required in this case then that should be a sentence of imprisonment to be followed by a community correction order.  The prosecutor addressed the seriousness of your offending including the very serious injuries that had occurred particularly to Mr Phillips.

20The prosecutor submitted that this was not a situation of very low moral culpability where a non-custodial sentence might be appropriate.  The prosecutors submitted in this case an appropriate sentence would be a sentence of imprisonment but that a combination sentence of imprisonment and a community correction order would not constitute an appellable error.

21Nicholas De Cicco, your offending on this occasion in driving under the influence of a drug and driving dangerously has, as you acknowledge, had dreadful consequences.  The consequences have been especially tragic for Mr Phillips, but what happened has deeply affected all those involved.  As the Court of Appeal said in Stevens v The Queen 2016 BSCA 121 at paragraph 21,

"Dangerous driving thus encompasses a very wide range of conduct, but it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment."

22That statement of principle was qualified in DPP v Oates by noting that,

"Any sentence which is imposed must take into account of variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence except where the offender's level of moral culpability is low." 

I do not consider your moral culpability to be low.  You were under the influence of drugs and your actions exposed at least three people to risk including yourself.  To drive at night on a long day on a two-lane road with a speed limit of 100 kilometres per hour under the influence of drugs is very dangerous.  The extent and nature of the injuries suffered by Mr Phillips also raise the seriousness of this offending.  I consider the objective seriousness of your offending to be around the median range for this sort of offending. 

23You are a youthful offender.  You have no prior criminal history. This would   be your first experience of imprisonment.  You have family support.  You were remorseful at the collision scene and continue to be remorseful.  You have family support and trade qualifications which should enable you to obtain employment.  You have engaged in trauma and substance abuse counselling and have ceased using illegal drugs.  You have very good prospects of rehabilitation.  I have no doubt that you have learned a very severe lesson from this incident especially because of the consequences to your friend and his family.  Specific deterrents need not have significant weight in your sentence.

24In other circumstances the principles set out in R v Mills 1998 4 VR 235 would apply, and your rehabilitation would be far more important for general deterrents. In the circumstances of your offending, general deterrents must remain a very important sentencing consideration. The Court of Appeal in DPP v Neethling 2009 22 VR 466 at paragraph 55 said,

"It is precisely because of the tendency of young drivers to drive dangerously that general deterrents must be regarded as of great importance and youth must be given relatively less weight."

25The court in that case noted that the victims were young people and said,

"The importance of general deterrents is to try and prevent the very kind of damage which occurred here." 

Those words have particular application in this case, especially in view of the prevalence of the use of ice. 

26In addition to your youth and prosects of rehabilitation and lack of prior criminal history I have taken your plea of guilty into account in mitigation of sentence.  Your plea of guilty has had considerable befit in saving the trauma and expense of a trial.  That plea of guilty is also an expression of your genuine remorse.

27Despite those factors, the need for general deterrence leads me to the conclusion that a sentence of imprisonment is the only sentence which could appropriately reflect the sentencing objectives of denunciation, just punishment and general deterrence.  I have considered current sentencing practices for dangerous driving causing serious injury as reflected in the cases to which I was referred and cases which are summarised in the Victorian Sentencing Manual.  I note the range of sentences imposed which includes non-custodial sentences.  Any sentence of imprisonment I impose should be kept to the minimum necessary to achieve to sentencing objectives to which I have referred. 

28In view of your youth and prospects of rehabilitation I am of the view that a sentence of imprisonment to be followed by a community correction order would achieve those sentencing objectives and support your rehabilitation.  You have been assessed as suitable for a community correction order.  The core conditions have been explained to you.  You have had the opportunity to go through the proposed special conditions with your counsel.  The community correction order that I intend to impose is a community correction order of two years with special conditions that you perform 150 hours of community work, undergo assessment and treatment in respect of drugs, undergo assessment and treatment in respect of programmes to reduce reoffending; it is anticipated that those programmes would include a road trauma awareness programme.

29Any treatment and rehabilitation hours satisfactorily undertaken are to be counted as hours of unpaid community work.  I have indicated I intend to impose that community correction order in addition to a sentence of nine months' imprisonment.  Could you please stand, Mr De Cicco?  Do you consent to the imposition of a community correction order in those terms?

30OFFENDER:  Yes, Your Honour.

31HER HONOUR:  Thank you.  On Charge 1 and Summary Charge 3 you are convicted and sentenced to an aggregate term of imprisonment of nine months to be followed by a community correction order of 24 months.  On Charge 2 of possession of a drug of dependence you are convicted and fined $340.  The total effective sentence is nine months' imprisonment.  I declare that you have served four days of this sentence by way of presentence detention to be deducted administratively.  But for your plea of guilty I would have sentenced you to a term of imprisonment of two years with a non-parole period of 15 months.

32I have made the order for disposal that was sought.  I am refusing the application for the taking of a forensic sample from you.  I do not consider that the taking of a forensic sample from you is justified in the circumstances of this case. 

33In respect of Charge 1 your driving licences are cancelled and you are disqualified from driving in the state of Victoria for a period of 18 months.  In respect of Summary Charge 3 any driver's licences are cancelled.  You are disqualified from driving in the state of Victoria for a period of two years.  You must not drive while disqualified, Mr De Cicco, it is a serious offence, so you must not do that.

34One of the core conditions which has been explained to you of the community correction order is that you must not reoffend during the period of the community correction order.  If you do reoffend or if you breach the order by not complying with the conditions you can be brought back before the court for resentencing.  So you need to make sure that the compliance with the community correction order is a priority; that is often difficult if you are able to resume work.  Even if you are able to resume work – which I hope you are – you must continue to make the community correction order a priority, once you are released, obviously.  So, whilst you are in custody it would be good if you could make plans as to how you are going to do that so that you have got a strategy in place for when you are released.  Thank you, could you take your seat.

35I thank those who've attended court today.  I note that Mr Phillips isn't here today but his family is here.  Mr Griffiths is here as well.  Mr De Cicco's family is here also.  I have no doubt that the impact of what's happened will continue to affect everybody for a very long period of time.  Nothing that the court can do can make up in any way for what's happened.  I hope, however, that at least getting through this part of the process means that this stage has been completed and that everybody's able then to concentrate as far as they are able to on their recovery from this collision.  So thank you all for attending court.

‑ ‑ ‑