Director of Public Prosecutions v George Varghese

[2023] VCC 1570

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00893f

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE VARGHESE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023
DATE OF SENTENCE:	1 September 2023
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2023] VCC 1570

REASONS FOR SENTENCE
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Subject: Criminal law - sentence 

Catchwords: Pleaded guilty to driving charges -   fail to assist – fail to stop – death – obtain financial advantage by deception – attempt to obtain financial advantage by deception – summary charge – fail to give information as to driver -  deceased walking on highway in darkness -  intoxicated – early plea of guilty – good prospects of rehabilitation -  general deterrence -  just punishment and denunciation

Legislation Cited:

Cases Cited:Neskovski [2022] VSCA 86 – Vasilevski v R [2018] VSCA 7 - R v Chhatre [2014] VSCA 280

Sentence:                   12 months imprisonment 3 year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L. Gurry	Office of Public Prosecutions
For the Accused	Mr A. Halphen	Galbally & O'Bryan

HER HONOUR:

1George Varghese, you have pleaded guilty to two charges arising from the death of a person, Darrin Pierce. The first charge is failing to render assistance after a motor vehicle accident, while you were driving, when you knew or ought to have known that an accident occurred.

2The second charge is failing to stop after an accident, expressed in the same terms as Charge 1. You have also pleaded guilty to one charge of obtaining a financial advantage by deception and one charge of attempting to obtain a financial advantage by deception.

3You have also pleaded guilty to a summary charge, that of failing to give information to the police, as the owner of the vehicle used on 26 November 2022, which may have led to the identification of the driver.

4Indeed, you were the driver of that car, a 2017 black BMW 420i sedan, registered number ANI 975, in your name. In tragic circumstances Mr Pierce died when the car driven by you struck him as he walked home from an evening out. You have not been charged with causing his death, but with failing to stop and assist him after he was struck.

The circumstances of the collision

5In the very early hours of Saturday 26 November 2022, a few minutes after midnight, in clear and dry weather conditions, you were driving your car in a north west direction on Princes Highway, Berwick. At around the same time Mr Pierce was walking along the southern edge of the first northwest-bound lane of Princes Highway, against the flow of the traffic driving northwest.

6You were travelling in the left of two lanes when you struck Mr Pierce with your car, approximately 400 metres north-west of the intersection with Bryn Mawr Boulevard. The front passenger corner of your car struck Mr Pierce while he was walking or standing upright and facing your car. He was thrown about 25 metres and suffered life-threatening injuries. He died at the Alfred Hospital later that morning.

7The southern border of the Princes Highway at the point of the collision had a border of a solid white fog line, and the edge of the road extended to a narrow grass verge and a spoon drain running parallel with the road. The shallow drain led to a wide grassed shoulder containing a footpath and intermittent mature trees. This area, extending from immediately adjacent to the bitumen edge of the road, was a wide level space providing ample room for pedestrians.

8The northern border of the road was somewhat similar but had a limited gravel shoulder leading to a grass nature strip and a service road, but no footpath.

9There was no street lighting, with intermittent street lights located on the service road to the north of the collision scene.

10That Friday evening Mr Pierce had attended a local football presentation event in Dandenong. He drank alcohol there and later went to Bar EightyOne on Princes Highway in Berwick, where he continued drinking.

11His wife, Ms Kati Yaworn, joined him there soon after 10 pm. From the text messages exchanged between them that evening, this would not appear to have been planned, as Ms Yaworn stated she was going to bed, but Mr Peirce encouraged her to come.

12At about 11.40 pm they left the bar together, heading in a westerly direction. Some minutes later Ms Yaworn was seen walking on the footpath in a southeast direction, followed by Mr Pierce approximately 20 seconds later. According to a witness he appeared to be smiling and holding a take-away coffee cup.

13Witnesses observed him to be intoxicated but to have good balance and coordination.

14Ms Yaworn walked on the footpath and Mr Pierce walked on the road in the left lane of the northwest-bound lane in the direction of oncoming traffic. Ms Yaworn believed he was walking behind her as she could hear him talking.

15A witness travelling in an oncoming vehicle in the right northwest-bound lane saw Mr Pierce walking on the road in the left lane going in the same direction, talking on his mobile phone. He was not well illuminated, even for the driver in the right hand lane travelling north west as well. She was only able to see him as she drove past. Another vehicle travelling in the same direction but in the left lane swerved around Mr Pierce, narrowly avoiding colliding with him.

16At this time Ms Yaworn, who was walking at a faster pace, could hear the sound of car horns but did not think at the time that they related to Mr Pierce as she believed he was still walking behind her on the footpath.

17When Ms Yaworn arrived home she found Mr Pierce’s son was on the telephone. He told her that Mr Pierce had been in an accident. She then returned to the area of the collision.

18Earlier on the evening of 25 November 2022, you, Mr Varghese, had made an arrangement to meet up with an acquaintance shortly after midnight.

19At around midnight on 26 November you drove your car from your home in a south easterly direction towards the meeting location. As you were driving you received an SMS message indicating that the meeting location had changed to Noble Park.

20At 12.08 am you changed direction and drove towards Noble Park. At 12.09 am you collided with Mr Pierce in your BMW car.

21Following the collision, you continued to drive towards the Noble Park meeting location. That is Charge 1, failing to assist and Charge 2, failing to stop.

22At 12.31 am an Uber driver with two passengers was passing through the location and noticed a man lying on the side of the road. He also noticed car parts on the road, and that it was dark there. He did a U-turn and stopped his car near Mr Pierce and turned his car's hazard lights on. One of the passengers in the Uber called the emergency services. Mr Pierce was observed to move his head and body slightly, with significant injuries to his lower left leg and was heard making sounds of distress. Further passers-by stopped their cars to assist, including telephoning Ms Yaworn, who arrived at the scene, as did Mr Peirce's son.

23Police attended and Paramedics transported Mr Pierce to Casey Hospital at 1.00 am. He was then flown to the Alfred Hospital at about 3.40 am. He died at 8.35 am, from his injuries.

24At the scene police officers observed debris which appeared to be part of a vehicle headlight, bearing a serial number and the letters BMW.

25At 12.25 am you arrived at the Sandown Heritage Hotel in Noble Park, and sent a message to your acquaintance stating: 'Hey, I am here'. You remained at that location until 1.11 am. At 1.22 am you returned to your home in Narre Warren.

26On 28 November a post-mortem CT scan and external examination was conducted of Mr Pierce. Significant injuries to his pelvis and lower leg were noted. A blood sample taken from him at 1.44 am on 26 November revealed a blood alcohol concentration of 0.19 per cent per 100 millilitres. The cause of death was stated as 'Multiple injuries'.

27Members of the Victoria Police Major Collision Investigation Unit (MCIU) attended the scene. The police Collision Reconstruction Unit also attended. A large area of debris, measuring over 40 metres in length, was seen and included sections of a front bumper and a passenger side wing mirror. No braking tyre marks were found, indicating that you did not see Mr Pierce before the collision. The opinion was formed that Mr Pierce was at the time of impact on the bitumen road surface inside the fog line, approximately 0.38 metres to 0.5 metres from the bitumen edge. He was thrown approximately 25 metres from the area of impact.

28The injuries and the damage to the car together indicate that Mr Pierce was upright and moving towards the vehicle when he was struck, with contact between Mr Pierce's left side, and the left front of the car. This was described as a side swipe impact when you were driving at a speed not less than 61 to 69 kilometres per hour, in a 70 kilometre speed zone. You drove away from the scene immediately after the collision.[1]

[1] Following discussion, as the alleged speed of leaving the scene was not relied on, it has been deleted from the sentencing remarks.

29From the debris found at the scene police were able to narrow the type of BMW to a few models, painted black. On 3 December police attended your home and located your car, with damage consistent with the debris at the scene. You were not at home but arrived soon afterwards in a Kia Cerato. You told police the BMW had been damaged when a branch fell on it, at that address.

30You were taken to the police station where you were interviewed and said that on 29 November you had been in your driveway and had mistakenly accelerated instead of braked, causing the BMW to hit another car in the driveway, and to then hit a branch that had fallen in the driveway. You said you had called your insurance company and reported the incident. You said you had no idea why damage to your car was consistent with debris and car parts found at the scene of the collision.

31Inquiries with the insurance company revealed that following your report a claim was generated and you were provided with a replacement vehicle, the Kia Cerato vehicle. This is Charge 3, obtaining a financial advantage by deception.

32You also attempted to organise for the tow and repair of the BMW, based on the false story you had told the insurers. The towing and repair did not take place. This is charge 4, attempting to obtain a financial advantage by deception.

33On 5 December you contacted the insurers and requested that the claim be cancelled and said you would pay the costs of the replacement vehicle, a sum of $230.

State of mind of Mr Pierce

34The investigation into the collision included an analysis of mobile phone messages between Mr Pierce and his wife that evening, beginning with those in which he persuaded her to meet him at the bar where he was socialising. At the end of the evening, having left the bar together at about 11.40, to make their way home, they walked separately. At 12.06 am he sent a message to his wife saying: 'Ok I tried'. At 12.07 he sent her a message saying: 'I'm going to kill myself'. These two messages were immediately followed by two further messages from him to her, one saying 'Good luck' and the other 'And thank u'.

35Mr Halphen who appeared on your behalf submitted that this evidence indicated Mr Pierce's state of mind at the time, which is consistent with him walking on the road rather than on the verge or the footpath, and moving towards the car, and consistent with the observations of  other drivers who said they narrowly missed him.

36Mr Halphen submitted that a finding should be made that Mr Pierce made a decision at that moment, placing you, Mr Varghese in the wrong place at the wrong moment, but of course, even more importantly, deeply affecting the lives of many other people.

37Ms Gurry for the prosecution opposed the making of any finding regarding that message, on the basis that you are not charged with driving which caused Mr Pierce's death, but you are charged with omissions after it had occurred, so the message is not relevant. She added that Ms Yaworn does not believe her husband would have acted on that stated intention, and there is no other evidence that he was walking erratically or trying to put himself in harm's way. Additionally, the collision was a side swipe, not a frontal impact.

38Because the messages are not relevant to the charges against you, I decline to make a finding as to Mr Peirce's likely state of mind. It had nothing to do with your obligations to stop and assist him.

Your culpability

39At the plea hearing you conceded, through your counsel, that you did hear a sound at what would have been the point of impact, and although there may have been room for doubt as to the possible explanation for the sound, it was such as to raise a suspicion, rather than actual knowledge, so that you ought to have known that you had hit a pedestrian.

40This gave rise to your obligation to stop and assist, and Mr Halphen submitted on your behalf that good people sometimes do the wrong thing, in what he described as extraordinary and unprecedented circumstances.

41Mr Halphen added that given the time and the location of the collision it was not a place to expect pedestrian traffic, with no footpath shown in the photograph in the depositions[2]. It is not reasonable, he submitted, to expect you to know that someone would be walking on the road where Mr Pierce was, and so I should conclude that your state of mind was short of actual knowledge.

[2] P.238

42The contrary position submitted by Ms Gurry for the prosecution, was that the sound and observable damage to the car should have alerted you to the need to stop, on suspicion, such that you ought to have known that you had hit a person.

43My conclusion is that the sound you heard was enough to have alerted you to the high possibility that you had hit a person, and should have stopped.

44Nevertheless, your culpability is somewhat reduced by the fact that your driving did not warrant any criticism, and in that sense you did not contribute to the death of Mr Pierce.

45The question arises as to whether your culpability in leaving the scene is increased by the deception of the insurance company, that is, whether the deception and the attempt are aggravating features in regard to Charges 1 and 2. The deception behaviour brings the charges of failing to stop and assist into sharper focus, and if they had not been charged separately those actions could arguably have been treated as aggravating factors. But by the time you decided to deceive the insurance company, the first two offences had already been completed, so according to that logic aggravation cannot apply.

Victim impact Statements

46Victim impact statements were provided by several people close to Mr Pierce.

47His wife, Tidarat (Kati) Yaworn described her sadness and how much she misses her husband, who was a gentleman, friendly and generous to everyone. She relied on him to help her with understanding and speaking English, and in looking after their 4 year old son, who has a disability. She is now dependent on other people to help her with practical things. With no previous experience she now has the responsibility of managing the business he used to run, and she worries about the future. She is now in somewhat straitened circumstances financially, which was not the case when her husband was alive.

48She has nightmares about the way he died and grieves about not having been able to say goodbye to him.

49Her psychologist reports that the trauma and loss will have long-lasting psychological effects on her and her ability to function.

50Andrew Pierce, the brother of Mr Pierce, states that he lives interstate and was not close to his brother for many years, but this had changed more recently and they had developed a close relationship. He had the task of informing his mother of the death of her son, and he continues to console her. He was particularly angry that his brother was left fatally injured by the side of the road, and that you then tried to cover it up. He made the valid point that your failure to stop meant that other people had to be the first on the scene, and have that traumatic experience, which you avoided.

51Mr Pierce's daughter Tayla, who is 17, described her grief at losing her father, and not having him there for important milestones in her life. It had an immediate effect upon her efforts towards her Year 12 studies, with loss of motivation and reduced attendance at school, and the risk of failure when previously she was excelling. She has found the tragedy overwhelming.

52Ms Jamie Pierce is Mr Pierce's former wife. In her statement, which she read aloud to the Court, she described the grief felt by her children, her parents and herself, at having lost such an important person in their lives. She struggles with sleeping problems, and increased stress and anxiety. She endures the pain at seeing her children grieve for their father and struggle with their emotions.  Ms Pierce and her son Hayden still had strong connections with the business run by Mr Peirce, and this has ended.

53Victim impact statements, in general, serve to inform the court and the community of the impact of a tragic death upon those close to the deceased. In this case Mr Pierce's family members have performed that service movingly and eloquently.

54At the same time I am conscious of the need to not allow other sentencing requirements to be overwhelmed by these moving expressions of grief.

Personal circumstances

55I turn now to your personal circumstances, Mr Varghese.

56You are a person with no previous convictions of any type, who has never been in trouble before. There was nothing untoward about your driving when the collision occurred. There is no evidence to suggest that you may have been under the influence of drugs or alcohol, although of course your failing to stop removed any opportunity for these matters to be tested.

57You are a man of previously good character, with professional qualifications and a good employment history.

58You are aged 32, and you are generally in good health.

59You were born in Kerala, in India, where you were brought up in a stable family. Your mother is a teacher and your father is a priest in the Syrian Orthodox Church. You completed a Bachelor’s degree in Accounting, before coming to Australia in 2016 to study for your Master's degree. In 2018 upon your graduation you began working with the Catholic Education Melbourne organisation, where you have remained.

60You married in 2019, and your wife, Angel Raju works as a doctor. She came to Australia as a child. You have bought a house together and plan to start a family. You have applied for a partner visa, which, if granted, would lead to temporary residency and later permanent residence. You are heavily involved in church and charitable activities.

61You are supported by seven people who have written references on your behalf, as well as your wife, who described your offending as being out of character with the man she knows. She says that you have made considerable contributions to your new community. She described you as being distraught and remorseful, and that you understand the importance of learning from what happened. She referred to your attendance at the Road Trauma Awareness Seminar run by VicRoads last month, and indeed I have been provided with a certificate confirming that.

62Your father, Palayil Varghese, who is a priest in Kerala, wrote describing your generous and compassionate qualities in helping others by donating to charitable causes in India. He said your demeanour has changed since the collision, and you feel deep remorse and sorrow about it.

63Mr Denni Elias has written that he is your cousin, but you grew up together and are like brothers, now both living in Melbourne. He is also an accountant and mentored you in your first job here. He regards you as responsible and law-abiding, and says it is extremely unusual for you to be in this situation. He says you are remorseful and have taken responsibility for the consequences of what happened.

64Dr Jacob Joseph is also a priest and a university lecturer in Melbourne. He knew you and your family in India and regards you very highly. He stated that you genuinely understand the gravity of your actions and profoundly regret your involvement. He said that through counselling you have sought to address the underlying issues that may have contributed to what you did.

65Your wife's mother, Lilly Puravath Paulose, who has known you for many years, has written expressing views about your high integrity and responsibility, similar to the views expressed by others, including your sister, Susmitha, who refers to the profound pain and grief she observed in you after the offending.

66Your work colleague Ms Michelle Kahler, writes that you are a valued and   respected member of the team, and that she believes you are devastated, with great sadness and remorse, about the collision.

67There is no doubt that you are very well regarded and have excellent personal attributes, all of which I accept and take into account in sentencing you.

68Your psychologist, Ms Barbar Lach, has reported that you have attended 7 psychology sessions, in which you have demonstrated empathy towards Mr Pierce, and that you are acutely aware of the seriousness of your current situation. You have symptoms of Panic Disorder and Adjustment Disorder, with anxiety and mood symptoms, with the possibility of further deterioration into a Major Depressive Disorder and Post Traumatic Stress Disorder.

69Ms Lach reported that you have stopped driving, and you and your wife have become quite isolated, as you have been affected by judgment and stigma coming from some members of your religious and cultural community.

Mitigating factors

70I turn now to the mitigating factors which apply in this case.

71Your plea of guilty was entered at the earliest possible opportunity, and nine months having passed since the offending, which is an unusually short time for the finalisation of a case. That is of importance for the system of criminal justice, and deserves a discount on your sentence. The fact that witnesses were spared having to give evidence is also very significant, and your plea indicates your remorse and responsibility. I take all those matters into account.

72As for your remorse, there are a number of objective indications of it, as I have set out. Your letter of apology to Mr Pierce's family endorses those indications, and has every appearance of being humble and sincere.

73The other matters I have set out in these sentencing remarks indicate that you have very good prospects for rehabilitation, and it is most unlikely that you will offend again.

74That leaves little role to be played by the need for specific deterrence in this case, but general deterrence is very important, together with just punishment and denunciation.

75I take into account that you are not a permanent resident in Australia, but have applied for a partner visa, as your wife is, I believe, an Australian citizen, and is hoping to sponsor your residency. The possibility of your deportation to India will weigh heavily upon you in custody, and with the prospect of not being able to make a life with her here in Australia.

76The maximum penalties for these offences are an indication of the seriousness with which they are regarded by the legislature. Failing to assist and failing to stop each attract maximum sentences of 10 years' imprisonment. Obtaining a financial advantage by deception is punishable by 10 years, and attempting to do so, by 5 years. For the summary charge the maximum is 4 months imprisonment or a fine.

Current sentencing practice

77I was referred to several cases where the offender had received prison terms of various lengths, in circumstances where the offender's driving had caused the death, and additional charges included failing to stop or failing to assist. There are relatively few cases where the charges were limited to failing to stop or to assist.

78I shall refer to three of them.

79In Neskovski v R[3] the offender was sentenced after a trial to 3 years imprisonment with a two year non parole period for failing to stop and failing to assist, after hitting a pedestrian who died.

[3] [2022] VSCA 86

80The case of Vasilevski v R[4] involved one deceased victim and another who was seriously injured. There were two charges of each of failing to stop and failing to assist, resulting in a sentence of 9 years and 7 months with a non-parole period of 7 years and 6 months. This sentence included cumulation of parts of some of the sentences.

[4] [2018] VSCA 7

81In DPP v Chhatre[5] a driver hit and killed a pedestrian who was standing in the middle of the road, at night, wearing dark clothes, and was significantly intoxicated. The driver did not see him, but after hitting him he failed to stop and drove to a friend's house where he told his friend a false story to explain the damage to his car.

[5] [2014] VSCA 280

82Until he failed to stop after the collision that driver had done nothing wrong. He had no reason to flee and he had an exemplary driving record.

83The driver in that case was found to be truly and deeply remorseful, suffering great personal distress and self-reproach.  He was held in exceptionally high regard in his religious community and in the broader community, and was a very hard working, sincere, and family-oriented person.

84The sentence imposed after the hearing of that appeal was a 2 year Community Correction Order and a fine. There were no charges in relation to any of his conduct involved in hiding his involvement, unlike in your case where you committed the further offending. In almost every way, the circumstances were very similar to your case. While Mr Pierce was not standing in or near the middle of the road, he was walking towards the traffic, with a relatively high blood alcohol reading on the bitumen in the dark when an alternative area was available to him.

85Each case is different, and the high level of your culpability in knowing you should have stopped does warrant a term of imprisonment, but it shall be combined with a Community Correction Order.

86Such an order is capable of adequate further punitive elements together with conditions imposing obligations on you to continue attending to your rehabilitation. Those obligations which effectively compromise your liberty, together with the period of imprisonment, provide for general deterrence as well.

87The sentences are as follows; would you stand now please Mr Varghese.

88For each of Charges 1, 2 and 3, I sentence you to 12 months' imprisonment. For Charge 4, 6 months, and for the summary Charge 1 month. All sentences are to be served concurrently, resulting in a total effective sentence of 12 months.

89You have been assessed as suitable for a Community Correction Order, which will begin immediately upon your release, and will last for 3 years. Convictions will be recorded. You must perform 300 hours of unpaid community work. You must take part in any further driver education programs to which you might be directed, and you must abide by all the core conditions of the order, which include not being able to leave Victoria without permission from the Corrections case manager.

90Within two days of your release you must report to the Corrections office at 46-50 Walker Street, Dandenong.

91If you were to be found guilty during the period of this order of any offence which attracts a prison sentence, you will have breached the order and will have to return to court to be re-sentenced.

92Your driving licence is cancelled for a period of four years, commencing today.

93Pursuant to s6AAA of the Sentencing Act, if you had pleaded not guilty I would have sentenced you to 3 years' imprisonment with a 2 year non -parole period.

94MR HALPHEN:  As Your Honour pleases.

95HER HONOUR:  There were no pre-sentence detention days were there?

96MS GURRY:  There's no pre-sentence detention, Your Honour.

(Discussion ensued re the alleged speed of the accused leaving the scene was not relied upon by the Prosecution and consequently deleted from the sentencing remarks.

Discussion ensued re the date of licence cancellation and disqualification.  Licence cancelled and disqualified  for 4 years from today.)

97HER HONOUR:  Now before I leave the Bench, in the usual way the recording of this morning's sentence will be available on the Court's media portal so that members of the media can have access to it straight away, but because of that happening and as I say, it's done in almost every case, it's an opportunity for me to clarify what you raised with me about the alleged speed at which Mr Varghese was apparently leaving the scene in his car.  That, as you said to me a moment ago, Ms Gurry, that was not relied on in the amended prosecution opening.

98MS GURRY:  That's correct.

99HER HONOUR:  And so it will be deleted from these sentencing remarks. So that needs to be clear to the media who may use the portal for any purposes.

100MS GURRY:  Thank you, Your Honour.

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