Director of Public Prosecutions v Fontana
[2012] VCC 1183
•10 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01192
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIM FONTANA ALSO KNOWN AS IGNAZIO FONTANA |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2012 | |
DATE OF SENTENCE: | 10 August 2012 | |
CASE MAY BE CITED AS: | DPP v Fontana | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1183 | |
REASONS FOR SENTENCE
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Catchwords: Dangerous driving causing death of learner driver and her passenger – sentencing principles – moral culpability at lower end of scale of dangerousness – mitigating factors include, good character, goods prospects of rehabilitation, genuine remorse and psychological effects.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey | Chiodo & Madafferi |
HER HONOUR:
Introduction
1 Mr Fontana please remain seated, as it will take some time for me to read my sentencing remarks. I will ask you to stand when I’m ready to sentence.
2 You have pleaded guilty to 2 charges of dangerous driving causing death, the maximum penalty for each of which is 10 years’ imprisonment.
Antecedents
3 You are 46 years of age. You have admitted prior appearances and a conviction for unrelated offending. For instance, at age 25 your were placed on a good behaviour bond for cultivation and use of cannabis offences, at age 28 you were fined without conviction for an assault offence and at age 33 you were convicted and fined an aggregate sum on failing to obey lawful direction of police and on failing to produce your licence on request.
4 I accept that the drug offences at a young age were minor and in no way indicate any long-standing association with drugs. However, I was a little surprised by the suggestion that you took the blame for your brother who was not at home when the police called and found seedlings you say belonged to him. In any event, the circumstances of this offending and the other later offences, indicate very limited engagement with the law quite some years before this unfortunate collision.
The circumstances of the offending
5 The prosecution’s opening (as amended) was read into transcript and tendered without objection. I have read the depositional material, which includes the record of interview and witness statements and I have perused the bundle of photographs tendered. These depict both the location and the aftermath of the collision .
6 It is not necessary to repeat verbatim the prosecution’s summary.
7 Friday, 22 January 2010 probably started for you and, no doubt for the Stroud family, like any other week day.
8 I was told that on the morning of the collision Christopher Stroud, aged 59, a family man with a wife and two children, planned to travel to the township of Kilmore with his daughter, Jamie, a student aged 17. Jamie was a learner driver. To gain further driving experience she was driving the family 1994 Nissan Patrol to Kilmore. Christopher was the front seat passenger.
9 You were 44, also a family man with a wife and three children and you worked as a self-employed truck driver. On that morning, you were the registered owner of a Heavy Rigid crane truck and you had contracted to carry a load of 44 concrete pipes, weighing approximately 10.5 tonne. Your truck, driving south toward Melbourne along the Northern Highway, whilst in the vicinity of Kilmore collided head-on with the Nissan travelling north in the opposite direction, causing the tragic death of the 2 occupants.
10 That you and Christopher and Jamie Stroud were, at the time, members of loved and well respected families living in the same community adds another dimension to this tragedy.
11 However, we are here today Mr Fontana because the manner in which you drove your truck was in all the circumstances dangerous and caused two deaths.
12 I was told that prior to the collision your vehicle had been travelling in the single lane carriageway behind another large truck, a Mack prime mover, driven by Matt Yanner, the weather was fine and visibility was clear. It is not suggested that either south-bound truck was travelling over the posted speed limit of 100km/h or that the condition of your truck, found to be unroadworthy on inspection after the collision, had contributed to the collision.
13 As the trucks approached the T-intersection with Wandong Road on the western side of the Highway, a Nissan tip truck with “dog” trailer, driven by Alan Day turned left from Wandong Road and travelled south. At the time Mr Day intended to turn left at the second entrance to a winery, some 400m further south.
14 Mr. Day’s entry onto the highway required the driver of the Mack prime mover, who estimated his speed at the time at about 80km/h, to slow and drop back to approximately 60km/h, a speed Mr Yanner recalled he was able to achieve gradually without sudden braking.
15 After proceeding a short distance along the highway, as he passed the first entrance to the winery Mr. Day operated his left hand indicator and moved his vehicle slightly to the left hand side of the road, apparently noting as he did that Mr. Yanner’s vehicle had slowed. Mr Day then swung his vehicle to the right crossing onto the south bound lane, braked heavily and turned left sharply into the second driveway to the winery.
16 This action caused Mr. Yanner to apply medium force to his vehicle’s brakes so that it remained some 2 or 3 lengths behind Mr. Day’s truck. You, however, were probably not aware of what Mr Day’s vehicle was doing because, when interviewed following the collision, you told police that you had lost sight of the tip truck and trailer after seeing it turn onto the highway in front of Mr Yanner's vehicle.
17 I was told that when Mr Yanner applied his brakes your vehicle was travelling at approximately 90km/h, about one length behind his truck and to avoid rear-ending Mr. Yanner’s truck you braked heavily and swerved to the right on to the wrong side of the roadway.
18 From the description of the events that followed, the Stroud’s vehicle had no chance of avoiding a collision with your truck, which caused the Nissan to spin in an anti-clockwise direction. The Nissan eventually came to rest along with your truck on the grass on the western side of the roadway. Some of the pipes, dislodged from your load due to the impact, struck the Nissan vehicle, whilst others landed on the roadway.
19 I was also told that another vehicle travelling behind the Nissan, had swerved to avoid colliding with your vehicles but still collided with one of the concrete pipes.
20 Reconstruction of the collision subsequently established that both your truck and the Nissan were travelling at around 90km/h before impact.
21 Following the accident you were treated at the Royal Melbourne Hospital for minor injuries. Analysis of a blood sample taken for this purpose ruled out the presence of any substance that may have impaired your ability to drive.
22 Mr. Fontana you have pleaded guilty to two dangerous driving causing death charges because, having regard to the circumstances alleged and the admissions made by you, shortly before the collision you were travelling far too close to the truck in front, your vision of the tip truck and trailer was obscured once it took up a position on the highway in front of Mr Yanner's vehicle and, when faced with a reduction in the speed of the prime mover, to avoid a collision with this vehicle, you had to apply your brakes and swerve your heavily laden vehicle to one side or the other. As it turns out you applied the brakes of your vehicle and swerved to the right with tragic consequences. If, as your counsel submitted, the Stroud’s vehicle also tried to swerve in the same direction, one might reasonably ask what choice did they have? They were placed in a hopeless position.
23 The prosecution alleges, and by your plea of guilty, you have accepted:
· That you had reasonable warning to slow your vehicle, as Mr Yanner’s semi trailer had slowed over some distance in response to the tip truck’s various manoeuvres; and
· That your action in swerving your vehicle to the right onto the wrong side of the roadway was inherently dangerous and was likely to place the occupants of any vehicles travelling in the opposite direction in danger of death.
24 In DPP v Neethling[1] the Court of Appeal discussed in some detail the approach to sentencing in Victoria for the offence of dangerous driving causing death. In that case the Court applied four principles enunciated in the earlier decision of DPP v Oates[2] namely that:
[1][2009] VSCA 116 [28] to [32]
[2][2007] VSCA 59 [21] to [22]
· General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
· A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
· The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
· A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
25 Any offending which results in the loss of human life cannot be described other than as very serious. However, for the purpose of sentencing you I am required to assess the level of your moral culpability for the offence of dangerous driving causing death by reference to the surrounding circumstances.
26 As your counsel correctly submitted, the sorts of aggravating features often associated with dangerous driving causing death are absent from this incident and for this reason your moral culpability for this offence, notwithstanding its terrible consequences, cannot be assessed at the same level of gravity or call for the same level of condemnation as cases also involving, for example, excessive speeding or substance abuse or hooning or driver fatigue due to lack of sleep.
27 Each case must be decided on its facts. Allowing for my summary of the facts in this case, I would have some difficulty describing, as the Court of first instance did in Oates' case, this collision as having been caused by a moment of inattention. Rather it seems to me that, among other things, you made unwarranted assumptions about the movements and behaviour of a vehicle you could no longer see, namely the tip truck.
28 I have nevertheless assessed this episode of dangerous driving to be at the lower end of the scale of dangerousness. In other words, I proceed to sentence you on the basis that your moral culpability falls at the lower end of the scale of dangerousness.
29 You have not served any pre-sentence detention and have remained on bail. You were charged on 22 October 2010 and following a committal hearing on 27 June 2011 you were committed for trial. I was told that at a Directions hearing in this Court on 3 May 2012 you indicated your intention to plead guilty and the indictment was filed.
30 For a number of reasons the indication of your plea at the directions hearing entitles you to a significant sentencing discount. It has a practical value in as much as by pleading guilty you have saved the community the cost of a contested trial and spared potential witnesses the inconvenience of attending a trial. You have also spared the Stroud family the added trauma of such a trial.
31 Moreover, allowing for the evidence and plea material I summarise shortly, in you case your plea is probably an indication of genuine remorse and has helped me accept that your prospects of rehabilitation are probably good.
Impact on the victims
32 Before embarking on my discussion of your plea material, one of the very difficult and important tasks I must perform on behalf of the community today, is to acknowledge the terrible legacy of pain and loss suffered by Andriena Stroud, a wife and mother and Dylon, a son and sibling and by the extended Stroud family. Moreover, if I correctly understood Andriena’s statement, read at her request during the hearing, Christopher’s death could also contribute to the loss of her home in the future.
33 Andriena you were right when you said that words would not return your loved ones or heal your pain. Other than allowing you and Dylan to conclude your contact with the criminal justice system, any sentence imposed today cannot achieve the former and, in the short-term it is unlikely to reduce your personal suffering.
34 A sentence, however, is more than the words spoken in Court because it can act as a salutary warning to all drivers, who rarely imagine the terrible consequences of unsafe driving until they are experienced first hand and, in addition to punishing Mr Fontana, as it must, the sentence can through a measure of mercy facilitate his rehabilitation in the community.
Personal Circumstances
35 Mr Fontana this brings me to my discussion of your personal circumstances before and since the collision. These were outlined by counsel at hearing and in the plea material.
36 Your wife, Helene Fontana, her employer and long-standing family friend, Dr Hudson and psychologist, Mr Newton whose written report was also tendered each gave evidence. The other material tendered consistented of reports from your treating general practitioner, Dr Holland and treating psychologist, Dr Bell and written references from Mr Wood, the manager of the contracting company for whom you were working on 22 January 2010 and, lastly from a long-standing friend, solicitor, Mr Rausa.
37 To summarise then, I was told that you were raised in Lalor. You have a working class background, with what you have described as a “great” childhood in a loving and supportive home. You were schooled to year 11. You married Helene in 1992 and, in recent times, the strength of your marriage has been tested and well and truly proven.
38 I was told that you worked in the automotive industry and as a truck-driver until 2003. This was when you moved to live with your wife and children on a small property outside Kilmore. The move coincided with you establishing more family friendly working hours as a contractor driving your own truck and carrying two loads per day, 5 days per week. Mr Wood’s testimonial indicates that at the time of the collision you were well-regarded as a sub-contractor and, should you remain in the industry, his company is happy to offer you more work.
39 However, based on your wife’s evidence and the various reports made by you, it seems that for the first 18 months after the collision you worked periodically, both due to the loss of your truck, which had been financed by a mortgage over the family home, and due to the severity of your psychological reaction to this tragic event. I’ll say more about your mental state shortly. I was told that you have recently purchased a new work truck financed as part of a mortgage loan that also covers your house. Moreover, your wife, it seems, has been obliged to return to work as a dental nurse to assist the family during this financially difficult time.
40 As you know irrespective of the kind of sentence imposed today, on finding you guilty of the offence of dangerous driving causing death I am obliged by s89 of the Sentencing Act 1991 to cancel your driver licence and disqualify you from obtaining one for such term as I think fit. Certainly for no less than the mandatory period of 18 months.
41 The effect of this provision is that you will not be able to return to truck driving for the minimum period or longer and, allowing for your wife’s evidence that you already have someone interested in buying this, you will probably sell the new truck and find other work until you are free to return to truck driving whether as an owner-driver or as an employee.
42 The impact of the cancellation of your licence on you as someone who drives for a living is one of a number of factors I have taken into account in determining the period of cancellation.
43 From the material before me, you were typically described as an unsophisticated man, who was hard-working and devoted to family and friends. You are now an individual who struggles to contain his distress, guilt and grief. As your wife said in her evidence not a day passed in which you did not, to use her word "beat" yourself up about what happened to Christopher and Jamie Stroud and to their family.
44 Dr Hudson who employs your wife as a dental nurse described you as a different man, withdrawn, lacking in confidence, unwilling to be seen in the community and someone who on two occasions has expressed the wish that it had been you who died. Mr Rausa, on the other hand, focussed on physical changes such as your apparent loss of weight and your gaunt and drawn appearance.
45 Mr Fontana you present as an empathetic man with a conscience who is genuinely remorseful. Apart from the evidence of the lay witnesses, the evidence from the general practitioner and the two psychologists confirms that, following the collision, you were likely deeply shocked and traumatised. Moreover, allowing for Mr Newton's evidence, whilst you have shown some real progress as a result of the counselling and therapy provided by Dr Bell since 30 January 2010, you are likely to require specialist psychological support for at least the next 1 to 2 years and possibly longer.
46 Having read the medical reports and considered Mr Newton's evidence at hearing it seems to me that, the apparent divergence in the formal diagnoses of your mental state should make very little difference to this sentence.
47 For instance, in May 2012 Dr Bell, whom you consult on a regular basis, reported symptoms of severe stress with prominent symptoms of depression and anxiety. In his view you currently meet the diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depression.
48 Mr Newton disagreed with this diagnosis, primarily because, as he explained an Adjustment Disorder is a differential diagnosis for a patient who does not meet the critieria for another disorder.
49 An Adjustment Disorder, he said, was characterised by the patient’s over-reaction to everyday stressors, whereas in your case Dr Holland and Mr Newton have both diagnosed Post-Traumatic Stress Disorder, the symptoms of which Dr Holland at first charaterised as being severe.
50 However, after undergoing what Mr Newton described as "exemplary” and appropriate treatment and, despite your symptoms which include elements of depression and traumatic anxiety involving vivid recollections of the collision, regular intrusive ruminations on its aftermath, hyper-arousal and avoidant behaviour, in his opinion you do not currently meet the full criteria for this disorder. He nevertheless believes that without ongoing treatment you are at risk of relapsing into fully-fledged PTSD.
51 I understand that your GP currently prescribes anti-depressant medication. Mr Newton has also diagnosed significant symptoms of depression and pessimism, which have contributed to the professional belief that you could self-harm. These matters are all unfortunate indicators of the level of your guilt and grief.
52 If I prefer, as I think I should, the characterisation of your more intense symptoms of traumatic anxiety as indicative of ongoing residual symptoms of PTSD, your GP and Mr Newton have not advocated any different treatment to that currently received. The impact on this sentence of having accepted their diagnosis is that I must also accept that, whilst you have made some real progress, without ongoing treatment you remain vulnerable to re-experiencing the more intense symptoms of this disorder.
53 This leads me to my discussion of the role your evident remorse has in this sentence. As I have already said your plea of guilty and the plea material I have tried to summarise are consistent with genuine remorse and an understanding of the loss and suffering caused by dangerous driving. Your response to this tragic event, your positive and ongoing engagement in appropriate treatment, the extensive and ongoing support you enjoy within your family and immediate community indicate that your prospects of being rehabilitated are likely very favourable.
Sentencing considerations
54 Of the sentencing considerations I am required to apply, denunciation, punishment and general deterrence have each played an important role in formulating an appropriate sentence for both of the dangerous driving charges and in determining the length of the period of cancellation of your driver licence and disqualification from obtaining one. On the other hand, specific deterrence and the protection of the community have had a lesser role because of your good driving history before and since the collision and your good prospects of rehabilitation.
55 Based on the assessed level of your moral culpability, your generally good character, your good prospects and evident high level of remorse, your counsel submitted that a wholly suspended sentence of imprisonment would meet all appropriate sentencing considerations. The prosecution has agreed that a non-custodial disposition is within the sentencing range.
56 As to the period over which your driver licence is cancelled, your otherwise good driving record before and since the collision and the impact on your ability to earn a living as a truck driver have helped persuade me that the penalty in this regard should not exceed the minimum mandatory period of disqualification.
57 Please stand Mr Fontana.
58 Having regard to relevant sentencing principles, which also require consideration of current sentencing practices, I was satisfied that in this case it is appropriate to impose terms of imprisonment. Where, as in this case, your dangerous driving has caused 2 deaths it is appropriate to also order some cumulation between the charges.[3]
[3]R v Towles [2009] VSCA 280 [92] to [99]
59 In this regard, I propose to impose a total effective sentence of two years and six months imprisonment comprising terms of imprisonment of two years on each charge with six months cumulation.
60 However, after allowing for the mandatory considerations contained in s27(1A) of the Sentencing Act I was also satisfied that it is desirable that the sentence be wholly suspended for a operational period of two years and six months.
61 Before I am able to impose a wholly suspended sentence, I must explain to you the purpose and the effect of such an order and the consequences that would flow if you are convicted of an offence punishable by imprisonment either in Victoria or interstate during the operational period of the wholly suspended term of two years and six months imprisonment.
62 Essentially, Mr Fontana, if you contravene the order as to the suspended sentence during the operational period, absent exceptional circumstances, and I mean exceptional circumstances, you will be required to serve that term of imprisonment. Do you understand the purpose of the suspended sentence and the consequences that may follow if you contravene the order?
63 PRISONER: Yes, Your Honour.
64 HER HONOUR: Thank you.
65 On each charge of dangerous driving causing death, you are convicted and sentenced to two years imprisonment.
66 I direct that six months of the sentence imposed on the second charge be served cumulatively on the sentence imposed on the first charge; the sentences are otherwise concurrent. The total effective sentence is two years and six months imprisonment. Pursuant to s.27(1) of the Sentencing Act, this term of imprisonment is to be wholly suspended for an operational period of two years and six months.
67 Pursuant to s.89 of the Sentencing Act, any driver licence is cancelled and you are disqualified from obtaining one for 18 months, such order commencing from today.
68 Pursuant to s.6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, a total effective term of imprisonment of four years with a non parole period of two years and 10 months would have been imposed.
69 Mr Chiodo and Mr Rose, are there any other matters I need to address or do you have anything you want to say?
70 COUNSEL: No, Your Honour.
71 HER HONOUR: Very well. Thank you for your assistance today. Please adjourn the court.
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