Director of Public Prosecutions v Gogo

[2014] VCC 544

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01696

DIRECTOR OF PUBLIC PROSECUTIONS

v

TALOSIA GOGO

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 March 2014
CASE MAY BE CITED AS:	DPP v Gogo
MEDIUM NEUTRAL CITATION:	[2014] VCC 544

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz
For the Accused	Mr B. Fitzpatrick

HIS HONOUR: 

1Mr Gogo, you have pleaded guilty to one count of dangerous driving causing death. You have further consented to three summary offences being dealt with by this court pursuant to s.145 of the Criminal Procedure Act.  You plead guilty to each of those counts.

2You have heard the learned prosecutor, Mr Goetz, tell this court that the maximum penalties for these offences are:  dangerous driving causing death ten years' imprisonment; driving whilst disqualified and exceeding the .05 legislation two years' maximum imprisonment; and for the first offence of having drugs within your blood, it is a fine or three months' imprisonment.

3For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

4Mr Gogo, it was at approximately 5.40 am on 17 February 2012 that you collided with a motor vehicle driven by Jamie Danielle Eddie on the Bass Highway, Bass approximately two kilometres north of the Phillip Island road.  As is contained in the summary of the prosecution opening, it is said, and I quote directly from that opening that was read to the court by Mr Goetz.

5Bass Highway, Bass is generally a busy highway, being the only major road between Melbourne and Phillip Island.  At the time of the collision, it was undergoing major road works to improve the traffic flow.  The collision occurred approximately 2 kilometres north of the Phillip Island road roundabout.  Road works signs and speed limit signs were posted and the speed limit at the time was 80 kilometres per hour.

6Bass Highway at this location is a two way carriageway with a curve in the road, divided only by a solid white line.  It generally lies in a north to south alignment.  There are only provisions for one lane in each direction and, at the scene, it is bordered by temporary concrete barriers due to road works.

7The concrete barriers were approximately 80 centimetres in height with a further metre high green mesh to separate the construction workers from the road.  The verge line runs along the edge of each lane approximately 1 metre from the concrete barriers.  Where the collision occurred there are no emergency stopping lanes or gravel verges on either side of the road.

8The traffic was very light, the atmospheric conditions were clear and I accept that the road was predominantly dry with a few scattered wet patches due to earlier rain.  It was still dark.  The ongoing road works did not alter or affect the road conditions.

9In the early hours of Friday 17 February 2012, Ms Eddie left her Wonthaggi home to go to work in her Mazda.  Her usual route to work was to drive out of Wonthaggi on the Bass Highway and travel along the same road until she arrived at McDonald's restaurant on the Bass Highway at Bass.  The trip was 25 kilometres in distance and usually took her approximately 30 minutes.

10On this occasion she left home at approximately 5.30 am and travelled along the Bass Highway.  The only witness to this dreadful event was Mr Douglas Suttie, a gardener who lives in Wonthaggi.  He left his house at about 5.20 am to go to Portsea to service a property.  He was driving a Toyota Dyna tipper and towing a trailer.  As he crossed the intersection of the Phillip Island road and the Bass Highway, he was overtaken by Ms Eddie just past the roundabout.  This was in a section of the road that had an overtaking lane.

11

Mr Suttie continued to follow Ms Eddie for approximately 2 kilometres.  As

Ms Eddie negotiated the sweeping right hand curve, you were travelling in the opposite direction.  You failed to negotiate the sweeping left hand curve and collided head on into Ms Eddie's Mazda.  Both vehicles came to rest on the road facing each other.  Mr Suttie, who was approximately 35 metres behind Ms Eddie, witnessed the collision and stopped approximately 30 metres from the collision scene.  Mr Suttie stated, and I quote what he said, he said this:

"I then noticed the headlights of a vehicle coming towards us veered to the centre of the road into oncoming traffic which is us."

Mr Suttie immediately attempted to render assistance to Ms Eddie but could     not get a response from her.  He then ran over to your vehicle and found you   still sitting in the driver's seat.  Mr Suttie called 000 at 5.43 am and had a brief       conversation with you.  From your replies, Mr Suttie stated, and again I quote him, "I thought this guy is pissed or stoned".

12Sergeant McCoy from the Wonthaggi Police Station was the first police officer at the scene.  Sergeant McCoy had a conversation with you and administered the preliminary breath test.  The result of that preliminary breath test indicated you had a blood alcohol content of .092 per cent.  McCoy stated that, and this is what he said:

"He gave the appearance of either being very tired or very affected by alcohol or drugs.  I was surprised the reading indicated in the preliminary breath test device was not higher".

Paramedics attended Ms Eddie and they confirmed that she was deceased.     Mr Gogo, you were complaining of chest pain and you were then assessed by      the paramedics.  Both paramedics stated that you smelt of alcohol and     paramedic Mark Glenton stated that you appeared to be off balance.  Glenton          had a conversation with you and stated that you said that, and this is what he     said you said, "He had driven home drunk many times and nothing like this      had ever happened before."

13When you were informed by the paramedics that Ms Eddie had died, he said this, this is what Mr Glenton said:

"Mr Gogo became very uncooperative.  He refused to provide me with his name or any personal details and I found it challenging to convince him to allow me to treat him and continually monitor his vital signs".

Whilst at the hospital, a blood sample was taken from  you at five past eight      on 17 February 2012.  This sample was later analysed and found to contain      not less than 0.118 grams of alcohol per 100 millilitres of blood.       Also on      analysis it was found to put it simply that there were two nanograms of   cannabis  detected within your blood.

14Dr Morris Odell, who is from the Forensic Science Laboratories down in the Coroner's Court in Melbourne, was requested to comment on the effects that a blood alcohol concentration of .118 and a drug concentration of 2 nanograms of cannabis would have on you.  Dr Odell formed this opinion, and I quote his opinion:

"The blood alcohol content at the time of driving about 15 minutes before the preliminary breath test was taken would therefore have been slightly lower than 0.115 and his driving skills may have been adversely affected by the effects of alcohol and possibly, possibly also by the cannabis at the time of the collision."

You have heard your counsel, in his eloquent plea on your behalf, raise       possible variables on more precise readings as there is no recall on your behalf of your consumption of liquor and/or cannabis and there is some     uncertainty on the real or exact time of the collision.

15As to the blood alcohol and the cannabis, you admit driving on this day whilst over the prescribed concentration of blood alcohol and secondly, having cannabis within your blood.  You further admit that your licence was cancelled at the time of driving when this dreadful collision occurred.

16Despite the variables that were raised by Mr Fitzpatrick that I just mentioned, you plead guilty to having both cannabis and alcohol within your system on this morning.  Police officers from the Accident Investigation Unit inspected the accident scene and among other things, report the observation of a significant gouge in the north bound lane of the Bass Highway, that is the direction that Ms Eddie was then travelling.  The gouge was approximately .68 metres in length and was approximately 1.57 metres from the centre dividing line of the road.

17Based on all of the available physical evidence, in addition to the witness evidence, that is of course of Mr Suttie, this gouge is indicative of being at or very near to the point of impact between the two vehicles.  The gouge indicates that at impact the Toyota Tarago was a minimum of 1.57 metres onto the incorrect side of the road.  The Mazda sedan was wholly on the correct side of the road within the north bound lane of the Bass Highway.

18When interviewed by the investigating police officers, you chose, as is your right, to make a no comment record of interview.  Dr Katherine Sevar, a senior psychiatric registrar from the Forensicare organisation in her report dated 13 January 2014 says this of you and I quote:

"Mr Gogo was born in Samoa and moved with his entire family to Auckland, New Zealand when aged 16.  He completed Year 12 in Auckland.  He had a number of difficulties whilst at school including frequent involvement in physical fights.  He stated he was expelled from three secondary schools.  He denied having a history of fire setting and following completion of Year 12, he attended TAFE to improve his English and to complete computer studies.  He is the second youngest of 13 siblings.  His mother was a full time housewife while he was a child and she died from cancer a number of years ago.  His father worked as an engineer and continues to live in New Zealand.  He reported his father was an alcoholic.  He reported his father was frequently violent, both towards him and that he also witnessed considerable domestic violence as a child."

Your counsel, Mr Fitzpatrick, in his plea on your behalf, accepts that you are      an alcoholic.  Your criminal history tends to confirm this admission.  In addition      to numerous convictions for indictable offences or serious offences, many of       those reflecting violence, you have four convictions for exceeding blood             alcohol content whilst driving and one conviction for refusing to accompany a     police officer to a police station for a breath analysis test.

19Further to these five convictions, you have seven convictions for driving while disqualified.  Mr Gogo, you demonstrate a wanton disregard to the law and to the court ordered disqualifications of your licence.  Most of those court ordered disqualifications are directly as a result of the mandatory provisions within the legislation so you ignore the Parliament as well.

20It is a disgrace that you have chosen yet again to drive whilst disqualified with excess alcohol within your system, possibly further compromised by the presence of cannabis, again within the system at the time of this impact.  The loss of this young woman's life is devastating to all of her family and loved ones and the community.

21Dr Sevar, in her report, records your drug and alcohol history.  I quote from her report:

"Mr Gogo first used alcohol aged 15.  He described a pattern of alcohol use where he would binge drink alcohol on several occasions during the week, drinking a slab of beer at one sitting.  He described that he first used cannabis aged 14 as well. During his adolescence he would use up to 7 grams of cannabis each week.  He began using amphetamines in his mid adolescence.  He would use ice approximately one or two times a month.  He described a pattern of alcohol dependence since his mid twenties, drinking every day.  He described symptoms of increasing tolerance and also withdrawal symptoms when not drinking alcohol.  These include physical symptoms of tremulousness, sweating and tachycardia before recommencing alcohol use.  He described frequent memory lapses associated with alcohol use.  He denied ever having had seizures related to alcohol.  His current alcohol intake before being remanded into custody was approximately four slabs of beer each week.  He denied using spirits.  He denied ever having been admitted to a drug and alcohol rehabilitation facility.  Before being remanded into custody on this occasion, he denied ever having thought that he had a problem with his alcohol use and denied that it interfered with his personal or professional life."

The doctor also says this, "I note his numerous drink and driving related      charges."

22Mr Gogo, you advised Dr Sevar that you continue to intermittently use amphetamine several times per month.  You also admit ongoing weekly cannabis use.  Mr Gogo, when aged 16, you suffered a severe head injury and skull fracture.  As a result of this injury, your family noticed that your short term memory and concentration were impaired.  You described to Dr Sevar that you are burdened with ongoing short term memory impairment.

23Prior to you going into custody, you had not had contact with Psychiatric Services.  You had never received treatment for drug and alcohol services.  You have seen several different psychiatric registrars whilst in prison.  As to this, Dr Sevar reports:

"On file review, the psychiatric evaluations state
Mr Gogo has been suffering from depression and paranoia and also substance dependence disorder, that is alcohol. They also suggest that he has antisocial personality traits.  They recognise Mr Gogo has taken drugs whilst in prison and considered this precipitated a deterioration in his mental health.  He is currently compliant with Risperidone 4 milligrams."

Mr Fitzpatrick explained how you did use, on one occasion, a drug whilst in       custody and the circumstances surrounding that.  Dr Sevar, in her report,      further observes, and I again quote her:

"On brief memory testing, he displayed mild abnormalities in his short term memory and in his concentration.  Specifically on frontal lobe testing, he displayed abnormalities in categorical and lexical fluency.  He had evidence of concrete thinking being unable to differentiate between similar objects.  He had difficulties mastering a motor sequence.  Taken together there is concern that this reveals an underlying impairment in his frontal lobe functioning.  His insight into his current set of circumstances appeared reasonable.  His judgment was not formally tested but given the presence of possible frontal lobe impairment, there is concern that his judgment could be subtly impaired."

Obviously from this report, you will have to seek ongoing treatment for your        mental health issues.  It is the opinion of Dr Sevar, that is this:

"There is a level of diagnostic uncertainty regarding Mr Gogo's current presentation.  Whilst he is currently taking the antipsychotic Risperidone, there is limited information available on the file to review that indicates the presence of sustained psychotic symptoms prior to the commencement of antipsychotic treatment.  Mr Gogo appears to be a gentleman who has a paranoid prone personality style."

As I mentioned earlier, this event has had devastating consequences to Ms      Eddie and her family.  Her mother describes in the victim impact statement      horrendous effects.  The victim impact statements have been read into the     court transcript.  There is no need for me to re-read them.  They are there for         the record and will remain.

24In 56 years of experience, it is a taxing thing to read and listen to those victim impact statements, despite the fact of 33 years' experience as a judicial officer and further as a coroner.  Mr Gogo, for you to successfully rehabilitate, it is imperative that you seek out treatment and counselling to comply with all directions given in that treatment and counselling if you have any hope of success in terms of rehabilitation.  Dr Sevar in her report says, and I again quote her:

"Mr Gogo suffers from alcohol dependence.  In addition he has abused cannabis and methamphetamines.  His alcohol dependence is currently in remission.  Whilst Mr Gogo professes a desire to remain abstinent from alcohol, given his history and current presentation, it is likely that he would resume heavy alcohol use once in the community unless measures are put in place to prevent this.  Mr Gogo appears to have minimal internal capacity to self-regulate his behaviour."

She says in other words, to put it simply, it is going to be a very tough task for    you to make it and you are going to need a lot of help.  Dr Sevar makes     several recommendations as to your ongoing treatment.  I agree with each and every one of her observations.  The Parole Board will receive a copy of Dr   Sevar's report.  I implore you to take every opportunity to comply with the     treatment regime that no doubt the Parole Board, if they parole you, would      insist that you follow.

25Would you stand up please.  Mr Gogo, I assure you that I have taken into account all that has been said on your behalf by Mr Fitzpatrick.  I take into account your plea of guilty.  This plea is an indication of your remorse.  Your counsel, Mr Fitzpatrick, again expresses to this court your remorse and Dr Sevar in her report said this and I quote:

"He described feeling guilty, in particular in relation to the charge stating that if he could, he would have died instead.  He described feeling numb and shocked that another person had died and stated, 'I wish I could bring this person back to life'.  He denied thoughts of deliberate self harm or suicide.  He was fully orientated to time, place and person at the time he said these things."

Then later in the same report, Dr Sevar again says this:

"He was unable to remember the accident itself.  He states that he remembers driving and then waking up in hospital.  He has no recall for the events in between.  He appeared shocked that at the accident, when he was breathalysed, his blood alcohol content was .09.  As stated above, he is extremely distraught that a person died in the accident."

You, as you well know, and I suspect to the distress of the Eddie family,      have written a letter of apology which was read by your counsel into the       transcript.  Your prospect of rehabilitation to say the least is guarded,       particularly in view of your mental health problems.  You are to be     commended for the various courses that you have undertaken whilst in custody.  These efforts indicate you are willing to have a genuine attempt to    better yourself and to become a good and worthwhile citizen within the   community.

26Mr Gogo, on the count of dangerous driving causing death, you will be convicted and sentenced to be imprisoned for a period of five years.

27On the summary offence of drive whilst disqualified, you will be convicted and sentenced to be imprisoned for a period of nine months.  Six months of that sentence is to be served concurrently with the count of dangerous driving causing death.

28On the count of exceeding .05 blood alcohol content, you will be convicted and sentenced to six months' imprisonment, that sentence to be served concurrently with Count 1.

29On the count of driving a motor vehicle with a concentration of a drug within your system, you will be convicted and sentenced to one month's imprisonment to be served concurrently with Count 1.

30The prisoner is to serve a minimum term of 43 months before being considered as eligible for parole.  I stop there. You must understand, although you may not know yet, from what I am reading in the press, and you cannot rely on the press, that the Parole Board do not now automatically parole you on your earliest parole date.  You have got to earn it and then perhaps they will parole you, not before then but after that but that is their decision, not mine.

31Pursuant to s.18 of the Sentencing Act, you are to be given credit for having served 760 days of imprisonment. Pursuant to s.89 of the Sentencing Act, any licence to drive held by you is to be cancelled.  You are to be disqualified from obtaining any licence to drive for a period of five years to date from 17 February 2012. And pursuant to s.6AAA, had it not been for the plea of guilty, I would have imposed a sentence of seven years with a minimum of five.  There were no other orders sought, were there, Mr Goetz?

32MR GOETZ:  No, Your Honour.

33HIS HONOUR:  Thank you.  Remove the prisoner.

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