Director of Public Prosecutions v Fetalaiga

[2019] VCC 1695

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-18-00284

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERASOMA FETALAIGA

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Fetalaiga
MEDIUM NEUTRAL CITATION:	[2019] VCC 1695

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

Catchwords:  Culpable driving causing death; blood alcohol concentration of .076; excessive speed; failure to keep proper lookout; alcohol a contributing factor although not predominant factor; objective gravity of offending assessed as tending toward the lower end of the range; early indication of acceptance of responsibility for accident and causing death; plea facilitating the course of justice and of substantial utilitarian benefit; genuine remorse; delay of 30 months; no prior convictions; excellent work history; diagnosis post-dating collision of PTSD and adjustment disorder; prospect of deportation; excellent prospects of rehabilitation

Legislation Cited:                   Sentencing Act 1991 (Vic)

Cases Cited:Guseli v The Queen [2019] VSCA 29; DPP v Anand [2017] VCC 1878; DPP v Chadwick [2017] VCC 1692; DPP v Bosman [2016] VCC 1689; DPP v Hollands [2016] VCC 1113

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Regan	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Balmer & Associates

HIS HONOUR:

1       Kerasoma Fetalaiga, you have pleaded guilty to a charge that at Dandenong on 7 April 2017, you did by the culpable driving of your motor vehicle cause the death of Vishal Mahant.  The form of culpability to which you have pleaded guilty, is that you drove your motor vehicle negligently, that is to say you failed unjustifiably and to a gross degree to observe the standard of a care which a reasonable person would have observed in all of the circumstances.  On the plea, the prosecutor Mr Regan relied on the summary of prosecution plea opening which was tendered as Exhibit A.  That opening details the factual basis for imposing sentence upon you and may briefly be summarised as follows.

2       At about 5.38 pm on Friday 7 April 2017, you were driving a white 2013 U.D. tray truck, registered number ‘FASTA 4’, south along Frankston-Dandenong Road, just past the intersection with Kirkham Road.  At that time you were employed by a company known as FASTA PLASTA Pty Ltd, hence the name on the number plates of that truck.  The road consisted of three lanes for south travelling vehicles, however the left lane was a parking lane which commenced immediately to the south of the Kirkham Road intersection.  There was a median strip separating southbound and northbound traffic. The speed limit on that section of the road was 60 kilometres per hour.  At the time of this incident, you had finished work and you were driving your truck to your residence in Pakenham.  There was no load on the tray of the truck, nor were there any passengers. 

3       Vishal Mahant was a 19 year old student who, as you approached in your truck, was standing next to the driver's side of his white Toyota Camry, that was legally parked in that left-hand southbound lane in front of his workplace at 17-21 Frankston-Dandenong Road.  He had just finished work and had placed a few items in the backseat of his car. He was about to get into the driver's seat, when he was struck and killed by your truck.

4       Shortly before this collision, your truck had been observed by a number of witnesses to be travelling in the centre of the three lanes of that road.  Three witnesses observed you to be driving the truck very close behind a Coles semi-trailer.  You were approaching the rear of the semi-trailer quickly and attempting to overtake it.  The trailer was enclosed and because you drove your truck so close to the rear of that vehicle, you were unable to see into the left-hand lane to assess whether it was clear and safe to move into that lane.  Witnesses observed you to move from the centre lane into the left lane in an attempt to overtake the semi-trailer.  Very shortly after you moved into that lane, it must have become apparent to you that Mr Mahant and his car were ahead of you.  You applied the truck brakes with sufficient force to activate the ABS, leaving a 16 metre skid mark before the impact.  Investigators established that the left side of your truck struck the right side of the Camry, indicating that at the time of impact you were unsuccessfully attempting to move to the right, back into the centre lane and away from Mr Mahant and his parked car.

5       

Expert analysis of the gouge marks, the skid marks and the CCTV footage established that at the time of impact, your truck was travelling at approximately 83 kilometres per hour in that 60 kilometre per hour zone.  The CCTV footage depicting this incident was played in court.  Investigators also established that no mechanical failure in the truck would have caused or contributed to the collision.  As a result of the impact, Mr Mahant was thrown 29.1 metres south along that road and his vehicle was pushed forward and lifted up onto the nature strip and rotated counter-clockwise, coming to rest against a power pole.  You stopped and waited for emergency services.  A number of witnesses including an off duty nurse, Ms Sandra Marshall, stopped to assist Mr Mahant. 

Ms Marshall was unable to detect a pulse.  Paramedics were at the scene by 5.43pm but unfortunately, attempts to resuscitate Mr Mahant were unsuccessful.  He died at the scene as a result of injuries received from the impact of the truck driven by you.

6       At about 5.58 pm on that evening, police arrived and conducted a preliminary breath test.  That test was positive.  A search of the truck located five empty cans of Woodstock Kentucky Style bourbon and coke in the refrigerated centre console of the truck, the sixth open can was found in the cabin of the truck.  Subsequent analysis determined that the lowest possible amount of alcohol in the sample obtained from you was .076 grams in 210 litres of air.  It was accepted for the purposes of the plea that your blood alcohol reading was .076 at the relevant time.  Having regard to the fact that you were driving a truck, you were not permitted to drive unless you had a zero blood alcohol reading.  Your plea of guilty to this charge acknowledges that the way in which you drove this truck, having regard to all of the circumstances, fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or serious injury, that it constitutes gross negligence.  Those circumstances encompass the totality of your driving at this time, but specifically include the excessive speed of which you drove this truck, your failure to keep a proper lookout and your driving whilst having an excessive level of alcohol present in your system.

7       

Investigating police conducted a record of interview with you on Saturday,

8 April 2017.  During that interview, you said that you regularly drove this truck, that you believed on the day of the collision the truck was in a roadworthy condition, that you were driving the truck home for the night in order to start work directly from your residence the following morning, that you believed you had proper control of the truck just before the collision, and when it was put to you that you were driving the truck faster than 60 kilometres per hour, you replied, 'Serious.'

8       Turning to the impact that this offending has had.  Two victim impact statements were tendered on the plea.  One from Mr Mahant's father, the other from his mother.  The poignancy of those statements is self-evident.  His father states:

“Vishal was the most amazing child a father could have asked for.  He was responsible, mature, loving, caring and kind in nature.  When we finally sent him to Australia from Patiala, his mother and I were very sure that we had taken a vital step towards a better future for him.  He had dedicated all his energy into his studies and was excelling with good grades.  We were all very proud of him.  Every time I would talk to him, he told me that he felt excited about his course at the University, since he was learning new things and concepts with each passing day.  He was a dedicated student and had big ambitions about his life after university.  He dreamt of being a successful businessman one day. I always encouraged him to follow his heart and his dreams. 

…

Losing him in such a sudden manner is probably the worst way that fate has dealt its hands.  He was our only hope of taking the family forward and he was the kindest soul we have ever known.  We shared a deep relationship and he shared everything with me. 

…

His absence has left me with profound grief and initially I found it extremely hard to cope with.  He has left a big gape in my heart and that void can never be filled by anyone else.  He was a valuable part of our family and our lives and his sudden death has left me shocked and saddened.  I miss him with each passing day and I hope wherever he is, he is happy.”

9       His mother states:

“Vishal was an integral part of our family.  I have three children and he was the apple of my eye.  In order to ensure a bright future for him, we decided to send him to Australia, where he started studying and was learning a lot from university.  His family immensely loved him and we have all been devastated by his untimely death.  He took care of all of us and our every little need.  His departure has left a hole in our hearts that can never be filled again.  There will always be a part of our lives that will be missing. As a parent, it's the most traumatic thing, seeing your child die without having a chance to say goodbye to him.  Vishal and I shared a very close relationship with each other.  He would call me up on a daily basis to ask how I was.  I was always very close to him emotionally.  Our first child's disability left my husband and I devastated but Vishal ensured that I would not lose hope and that I would stay positive through the difficult times that we would face with Jeetan.  Jeetan has passed away now and I pray to God each day that he is happy wherever he is.

… 

According to the Indian culture, a son is supposed to carry on his father's work once he grows up.  In Vishal's case, our entire future depended on him taking over his father's responsibilities.  We are beyond devastated at losing such a hardworking and responsible son.  Our hopes and dreams were shattered the day we lost him forever.”

10      It is important that you understand, Mr Fetalaiga, that the impact your offending has caused will be a substantial consideration to be taken into account in formulating the sentence that must now be imposed on you.

11      

Turning to the procedural history associated with this matter, it has taken quite some time for this matter to be finalised.  You were charged on the day after the collision, on 8 April 2017.  You formerly offered to plead guilty to a charge of dangerous driving causing death on 16 August 2017. That offer was rejected and the matter proceeded to a contested committal on

7 and 8 February 2018.  Thereafter, further expert evidence was sought by your legal representatives and further discussions as to the resolution of the matter took place.  On 28 March 2019, you were arraigned in this court and pleaded guilty to the charge of culpable driving causing death.  The plea hearing proceeded on 1 August 2019.

12      I take from that chronology that at an early stage in the proceeding you indicated that you were prepared to accept responsibility for causing the collision and for causing Mr Mahant's death.  At issue was what charge appropriately reflected your criminality.  Experience suggests that the distinction between culpable driving causing death and dangerous driving causing death can in certain cases, be quite fine.  It is significant in my view that you chose to plead guilty to the offence of culpable driving and in so doing elected not to contest the most serious charge.  Although your plea of guilty cannot be characterised as an early plea, in the circumstances I have outlined, it should nonetheless merit significant weight.  It has facilitated the course of justice.  It confirms your preparedness to accept responsibility and is indicative, in my view, of your remorse.

13      Accordingly, your plea of guilty will substantially reduce the sentence that would have otherwise been imposed.  It is also appropriate, in my view, that I should take into account the delay of the 30 or so months it has taken for this matter to be finalised.  Over that time, it is clear this case has weighed heavily on you and your family, and the lengthy state of uncertainty in which you were placed has been punitive.  That delay will also mitigate the sentence that would otherwise be imposed.

14      

Turning to your personal history, you were born on 27 August 1985 and are now 34 years of age.  You were 31 years of age at the time of the collision.  You have no prior convictions. You have been in a de facto relationship with

Ms Touloula Poula for most of your adult life and there were four children of that relationship, three sons and a daughter, aged 10, seven, five and three.  You are of Samoan heritage and were born in Auckland.  Your father is deceased, whilst your mother and most of your siblings still reside in New Zealand.  Your elder brother Moses, however, resides in Sydney and provided an impressive personal reference which was tendered on the plea, where he described you as “really deeply sorry, heartbroken and remorseful for what [you have] done”.

15      You grew up in South Auckland, your family was quite poor and your siblings were disciplined harshly.  Your family was religious and would attend church regularly.  You describe yourself as an average student at school and you did not have any particularly difficult social problems, although you were teased because your hair turned white.  You would not react to such comments because you were shy and somewhat introverted.  You completed Year 13, being the last level of secondary school, and although you entertained hopes of going on to study law, you did not do so because you say that at that time you tended to hang around with the wrong people. 

16      You appear to have had an excellent work history.  You started working at McDonalds were you stayed for about a year and you next worked at a spray painting manufacturer for approximately nine years. 

17      You then worked as a truck driver for different companies, before bringing your family to Australia in 2015 in the hope of providing them with a better environment, in your words, “a better upbringing”.  You settled in the Dandenong area where a cousin of yours resided and you found work again as a truck driver.  It was when you were working as a delivery driver for a plasterboard company that this incident occurred.  You told your assessing psychologist, Ms Carla Lechner, that on the day of this collision, once you finished your last delivery job, you decided to stop at Dan Murphy's where you bought a pack of mixed drinks.  You told her that you had a difficult day because you were working with a new and inexperienced jockey and the jobs had taken much longer than usual.  You were returning to your home in Pakenham and because the Monash Freeway was at a standstill, you took a detour.  Whilst you were on the Frankston-Dandenong Road, you explained that you were driving at the back of Coles semi-trailer and you “pulled out in the left lane to overtake and unexpectedly a car was there and it was too late”.

18      You were aware that you were not supposed to drink in your truck and that you should have had a zero alcohol level in your system.  However, you say on this particular day you were tired and somewhat frustrated.  After this collision, you did not work for four or five months and thereafter you undertook some agency work driving trucks, but more recently you have ceased all employment and have been caring for your children whilst your partner financially supports the family, that is, up until the time of your remand. 

19      Seven personal references were tendered on the plea.  Each of them provide valuable insights into your character. 

20      The president of the Pakenham Eels Rugby League Club described you as a dedicated, valuable, reliable member and volunteer of that club.  He would see you regularly and states:

“This is a serious charge and one that has weighed significantly on him since this incident, and I have noted a very distinct change in his usually outward personality.  There has been a real sense of sadness, remorse and an inward focus that I have seen in Kerasoma, and there is no doubt that the incident has impacted greatly on both him and his family.”

21      Likewise the grounds manager of the Rugby Club, Robert Stewart, described you as an asset to the club and an outstanding father to your three boys and daughter.  As I have already mentioned your older brother provided a reference, as did your brother-in-law.  They both emphasise your dedication and loyalty to your family.  Two pastors provided references which attest to your Christian values and dedication to your local church.  Finally, your partner of 17 years, Ms Pula, confirmed in her reference that she regards you as an honest, hardworking and trustworthy person, who has been deeply affected by this event.  She clearly remains supportive of you.

22      

In her report of 16 July 2019, Ms Lechner formed a view that you had no symptoms of an underlying psychological or psychiatric disorder pre-dating this offence, nor did you have any history of substance abuse disorder or personality disorder.  However, since this collision you have developed symptoms of post-traumatic stress disorder and adjustment disorder with depressed mood. 

Ms Lechner states:

“He is currently evidencing symptoms of depression at a clinical level with a score in the “extreme” range on the Beck Depression Inventory.  He continues to be plagued by flashbacks, nightmares and avoidant behaviour, fulfilling the criteria of a diagnosis of PTSD. 

…

…[H]e is likely to find his time in custody particularly difficult in the knowledge that his family will be struggling financially and emotionally and that he potentially faces deportation at the expiration of his sentence.”

23      Counsel submitted that you have expressed sincere and profound remorse for causing the collision that killed Mr Mahant.  It was clear that you were genuinely shocked at what you had done at the scene and, having regard to the references that have been provided, together with Ms Lechner's report, you have developed a good deal of insight into the wrongfulness of your conduct and the impact it has had on the family of the deceased.  It was submitted your plea of guilty reflected your remorse and that there was substantial utilitarian value in not contesting the culpable driving charge, albeit it would have been open to you to do so on the basis of arguing that your conduct amounted to no more than dangerous driving causing death.  As I have already indicated, I accept that submission.

24      On behalf of the prosecution Mr Regan submitted that the objective gravity of this offence should be assessed as falling within the mid-range or perhaps, as he refined the position in oral argument, to approaching the mid-range of seriousness.  He referred to particular aspects of your driving, such as the tailgating behind the semi-trailer, the speed, the alcohol and the sudden movement of the truck into the left lane in order to pass the semi-trailer whilst your vision was obscured as supporting that submission.  I was provided with four cases from this court for comparative purposes.  They were DPP v Hollands[1], DPP v Bosman[2], DPP v Chadwick[3] and DPP v Anand[4].

[1] [2016] VCC 1113

[2] [2016] VCC 1689

[3] [2017] VCC 1692

[4] [2017] VCC 1878

25      I was also referred to Guseli v The Queen[5] as to guiding principles, and to the Sentencing Advisory Council Sentencing Snapshot No. 225 of April 2019 on culpable driving causing death.  It must be said these decisions did not greatly assist, as it seems they involved offending which was subjectively more serious than this offending, and tended to be characterised as sitting within the mid to upper-mid range of seriousness.  In that limited sense, those cases assisted in locating the relative seriousness of this offending. 

[5] [2019] VSCA 29

26      

As to the gravity of your offending, you knew that you should not be driving with alcohol in your system and that is a concerning feature of your conduct.  Given the blood alcohol reading of .076, and the circumstances of your driving as

I have described them, I have formed the view that you should be sentenced on the basis that alcohol contributed to your offending, but that it could not be said to be the determinative or predominant factor in causing the collision.

27      In this instance, whilst I must have regard to the totality of your conduct, the significant features of your driving which make out the gross negligence, being the speed of 83 kilometres per hour in a 60 zone, the blood alcohol reading of .076 and the failure to keep proper lookout, do not persuade me that your offending should be characterised as sitting within the mid-range of seriousness.  In my view, it is more accurately characterised as tending toward the lower end of the range for the offence of culpable driving.  However, that characterisation should not in any way be taken to unduly minimise or undervalue the fact that a young man who was loved and who was cherished has lost his life as a result of your gross negligence.  Any offence of culpable driving is serious and will merit the imposition of a substantial term of imprisonment, and this case is no exception.

28      That said, the delay in resolving this case, and the prospect that you may be deported despite establishing your family in this country, has and will continue to weigh heavily on you.  Together with your plea of guilty, those matters will mitigate your sentence.  Moreover, I do accept that your prospects for rehabilitation are excellent.  You retain the support of your immediate and extended family, and you have four young children that you wish to help raise.  You have no prior convictions, you have a good work history, you are remorseful and have taken responsibility for what you have done.  Those factors mitigate generally, but particularly support the fixing of a non-parole period, which would render you eligible for release at an earlier point than might ordinarily be the case.  Would you please stand Mr Fetalaiga?

29 On the charge of causing the death of Vishal Mahant by culpable driving, you will be convicted and sentenced to a term of imprisonment of six years. I will fix a period of three years and three months before you will become eligible for release on parole. I will declare, pursuant to section 18 of the Sentencing Act 1991 (‘the Act’) that you have already served 78 days of that sentence by way of pre-sentence detention, and I will cause that declaration to be noted in the records of the court. I will further declare pursuant to section 6AAA of the Act that if not for your plea of guilty, you would have been sentenced to a total effective sentence of seven years and six months with a non-parole period of five years. Further, by reason of the fact that this is a serious motor vehicle offence to which section 89(2)(b) of the Act applies, I will cancel all driver's licences held by you and disqualify you from obtaining a further driver's licence for a period of 24 months. I make no finding with respect to section 89C of the Act. You may be seated Mr Fetalagia.

MR GOODFELLOW:  As Your Honour pleases.

MR REGAN:  May it please the court.

HIS HONOUR:  Counsel, are there any other matters arising out of those sentencing remarks that require any clarification, Mr Reagan?

MR REGAN:  No Your Honour.

HIS HONOUR:  Mr Goodfellow?

MR GOODFELLOW:  No Your Honour.