Director of Public Prosecutions v Garcia

[2014] VCC 999

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00928

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLAUDIA GARCIA

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JUDGE:	Her Honour Judge Wilmoth
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2014
DATE OF SENTENCE:	24 June 2014
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2014] VCC 999

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence              

Catchwords: two charges dangerous driving causing serious injury     - two summary charges of failing to display L plates and failure to have experienced driver – accused fell asleep while driving and crossed onto incorrect side of highway, colliding with on-coming vehicle – mother and child in a third vehicle suffered serious fractures – fatigue of driver caused by combination of methadone, heroin and lack of sleep – driver unaware of level of fatigue until already driving – prospects for rehabilitation – multiple previous convictions for driving offences involving Learner’s Permit – mother of two young children – leniency applied for hardship.
Sentence:      15 months, non-parole period 6 months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N.J. Goodfellow	OPP
For the Accused	Mr S. Ginsbourg	Revill & Papa

HER HONOUR:

1       Claudia Garcia, you have pleaded guilty to two charges of dangerous driving causing serious injury, a crime for which the maximum sentence is five years' imprisonment.  At the time you were driving as the holder of a learner's permit but you were not displaying L-plates on the car as you were required to do, and you did not have an experienced driver seated beside you.  This has given rise to two summary charges which have been uplifted to this court and to which you have also pleaded guilty.  You will be sentenced to a term of imprisonment for the two charges of dangerous driving for the reasons which follow.

2       On 5 April 2012 you were driving on the Melton Highway, having come from the Watergardens Plaza, your destination being your partner's house in Melton, a distance of about 18 kilometres.  Your four year old daughter was a passenger in the back seat.

3       You fell asleep for what you described as two seconds and your car drifted over double lines on to the incorrect side of the road, colliding with the driver's side of a Toyota tray truck laden with hay.  You had tried to correct your position on the road, but it was too late.  The collision ripped the driver's side door off your car and it spun out of control and came to rest beside the road facing back towards the direction from which you had come.

4       The truck driver lost control of the truck and it slid on to the incorrect side of the road with its passenger side facing the oncoming traffic.  Several cars took evasive action to avoid colliding with the truck, but it collided with a Ford Laser being driven by Sakine Toksipahi and with four children as passengers.  These were her daughters aged nine and 12, her niece aged nine and her nephew aged four.

5       Some of the hay from the truck fell on to the Ford and it ignited causing the car to ignite as well.  The truck driver and others acted quickly and pulled Mrs Toksipahi and the children from the car.  Both the car and the truck were totally destroyed by fire.

6       Three of the children who were passengers in that car suffered minor injuries as did the truck driver.  Ms Toksipahi suffered a badly broken ankle requiring surgery and remained in hospital for a week.  She had further surgery at a later date and has been advised that additional surgery will be necessary in years to come.  Her nine year old daughter suffered a broken arm which also required surgery, but medical advice was that she was expected to recover fully.  Ms Toksipahi provided a detailed victim impact statement to which I shall return later in these sentencing remarks.

7       Both you and your daughter escaped injury of any sort but were taken to hospital for observation.  A blood sample was taken from you revealing the presence of morphine, codeine and methadone in quantities that appear to be consistent with your use of heroin some 12 hours earlier, and consistent with prescribed methadone taken that morning.  Dr Odell from the Victorian Institute of Forensic Medicine provided an opinion that these drugs would have placed you at increased risk of being sedated and falling asleep while driving.

8       You were interviewed by the police some five months later in September 2012 and you gave candid answers and expressed your remorse very clearly.  The charges were filed 12 months after the offences and you pleaded not guilty at the committal mention on 15 May 2013 and at the initial directions hearing on 16 May 2013.  However the transcripts of that later hearing disclose that negotiations were ongoing and indeed you offered to plead guilty at an early stage but your offer was not accepted for some time.  In June last year the case was fixed for trial to commence on 12 May 2014.  By 13 March the matter had resolved and a plea date was fixed.  The prosecution has conceded that you indicated as early as the committal mention that you would plead guilty to a negotiated indictment.

9       Even though the case took a long time to resolve, you are entitled to a discount on your sentence for having avoided the expense and inconvenience of a trial, in particular for having avoided the need for witnesses to give evidence.  A result of those ongoing negotiations is that you have had the matter hanging over your head for a long time for the reasons I have set out and it is conceded by the prosecution that that delay is to be taken into account.

10      In determining the level of your culpability, I have considered the answers you gave in your record of interview.  You had used heroin the previous day at three separate times -  once in the afternoon, again in the early evening and finally at about three or four o'clock in the morning.  You think you had probably had not much sleep until then, and after getting up at about 8 a.m. you took your daily prescribed dose of methadone.

11      It was only after you had left the Watergardens that afternoon when you were about 10 kilometres from your destination that you were feeling tired.  You told the police that you had felt all right when you got into the car but felt a bit tired when you were driving.  You considered stopping but you did not know where to stop and you had your young daughter with you making it difficult to stop and sleep.

12      Awareness of this kind of tiredness when driving was considered by the Court of Appeal in the case of Satalich where Justice Batt distinguished knowledge of tiredness from a realisation of sleepiness, describing the former as one of constructive knowledge of the risk rather than actual knowledge of it.  His Honour was applying the distinction in a case of culpable driving, a species of involuntary manslaughter.  However the analysis is useful in characterising the knowledge of tiredness that you had after you started driving.

13      With hindsight, you realised that the combination of medication, heroin and lack of sleep had made you tired, but you did not appreciate that you were tired enough to risk falling asleep.  You told the police that you thought you would be all right.  Your judgment was not directly affected by the drugs, nor were you speeding or driving in a dangerous manner.  The worn tread on your car tyres did not contribute to the collision, nor was there evidence that the collision was caused by any lack of experience or skill on your part.

14      Mr Ginsbourg, who appeared on your behalf, submitted that all these matters place your culpability at the low end of the range of seriousness and I agree with that.  However, I find that you were driving whilst under the influence of drugs because of their recent ingestion and the effect of tiredness they had upon you confirmed by Dr Odell.

15      The chief consideration in sentencing you is the principle of general deterrence, that is, the need for the sentence I impose upon you to be sufficiently severe to deter others from driving in similar circumstances.  The effects of the collision upon Mrs Toksipahi have been devastating, and her daughter suffered badly as well.  Mrs Toksipahi described the extensive effects upon her of being in continuous pain and requiring painkilling medication constantly, of being unable to work because of being unable to stand for long periods, unable to look after herself and her family and to help her sister with her children as she used to.

16      Because of having to use crutches for long periods, she has placed pressure on other parts of her body which has caused problems.  She has had to buy a new and bigger car to assist with her condition.  She may have to have her ankle bone fused as a last resort.

17      Her daughter's broken arm required a metal pin to be inserted and she was in a great deal of pain in hospital.  She could not go to school for an extended period and was further distressed by not having her mother at home to help her with her personal care.

18      In your case, there is a clear need for specific deterrence as well.  You have an extensive criminal history consistent partly with your addiction to heroin, and much of your prior offending is of no direct relevance to these charges, but you have a very bad driving history as well.  You have been the holder of a learner's permit on and off for a long time, with many instances in the past of your having driven without displaying L-plates and without an experienced driver beside you.

19      Another such incident occurred after these offences in December 2012 and another three weeks later in January 2013.  You were also fined in October 2012 for driving whilst your permit was suspended.  All these are subsequent matters, but their relevance goes to the poor prospects for rehabilitation that they suggest.  They also diminish the weight to be given to delay because you have offended again in the same way during that period.  I note that the offences for which I am sentencing you occurred whilst you were on a suspended sentence for shop stealing and unlicensed driving, and you appeared in the Magistrates' Court last June in relation to that with the breach found proved but no further action was taken.

20      Your personal background is that you are 32 years old and came to Australia with your family as refugees from El Salvador when you were aged seven.  You completed secondary school and set out to pursue post-secondary education, but unfortunately a boyfriend introduced you to heroin at the age of 18 or 19 and you became addicted.  At the time of the offending you were still using heroin intermittently whilst trying to maintain yourself on a methadone program.  Presently you are on a low dose of methadone and you have not used heroin for 18 months.

21      You are the mother of two children aged six and seven who live with you in the home you share with your parents.  You were in a long-term relationship with the children's father but that ended some time after the accident.  He had a drinking problem and generally could not drive, and as you live in a new outer suburb poorly served by public transport, you have often driven in contravention of your permit conditions, and so as I said you have been convicted many times.

22      You are now in a new relationship with a man who works as a courier driver and your mother assists you with driving the children.  She attended court to support you.  She also wrote a letter confirming the careful attention you give your children, and pleading for compassion on your behalf, taking into account that you made a serious mistake.

23      Your parents will care for the children whilst you are in custody, but you will experience the hardship that goes with separation from them.  That warrants some leniency which can be reflected in the length of the term of imprisonment.  I also take into account the need for a non-parole period which will give you the opportunity to address your needs for rehabilitation, particularly in terms of drug dependency.  Would you stand now please, Ms Garcia.

24      For each of the charges of dangerous driving causing serious injury, I sentence you to prison for 15 months, to be served concurrently with each other.

25      I fix a minimum period which you must serve before being eligible for parole of six months.

26      In relation to the summary charges, you are convicted and fined the aggregate sum of $500.

27      I order that you be disqualified from driving for two years from today.

28      If you had pleaded not guilty to these charges I would have sentenced you to 20 months imprisonment with a non-parole period of 11 months.

Just be seated for a moment, please, Ms Garcia.

Mr Ginsbourg, do you want me to fix a stay for the payment of the $500 or leave it?

29      MR GINSBOURG:  No stay, Your Honour.

30      HER HONOUR:  Mr Goodfellow, is there anything I have omitted?

31      MR GOODFELLOW:  No, Your Honour, thank you.

PRISONER REMOVED

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