Director of Public Prosecutions v Graae
[2017] VCC 380
•29 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication | |
Case No. CR-16-02154
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS GRAAE |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2017 | |
DATE OF SENTENCE: | 29 March 2017 | |
CASE MAY BE CITED AS: | DPP v Graae | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 380 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Ms M. Neesham | Neesham Lawyers |
HER HONOUR:
1 Thomas Pilligard Graae, you have pleaded guilty to one charge of negligently causing serious injury. The maximum penalty for this offence is ten years.
2 On Saturday 26 March 2016 at about 4.30 am Boban Damjanovski, then aged 53, collected his friend, Kiro Savukoski, then aged 57, to go fishing. They drove to the Stony Point ramp on Western Port Bay Road and launched their vessel at approximately 6.15 am. All the lights on the vessel were turned on. They were in a 5.5 metre fibreglass vessel powered by an 85 horsepower outboard motor.
3 They took the vessel to a fishing point outside the main channels, anchored and commenced fishing, placing their rods in the water. At the time the sun was just coming up and it was starting to get light. The conditions were good for fishing with no waves and not much wind.
4 At this time you were employed full time, and had all relevant qualifications, as a skipper at Ace Fishing Charters based at the Hastings Marina, Western Port Bay.
5 Between 6 and 6.30 am that morning you had taken a group of 17 people out from the Hastings Marina on a six hour fishing charter. The tour charter vessel was a 12.8 metre by 3.8 metre wide “sea fisher”, constructed of fibreglass and fitted with a 500 horsepower inbuilt diesel motor.
6 About 15 to 20 minutes after leaving the Hastings channel you left the wheelhouse unattended and joined the deckhand, Anthony Cox, at the stern of the vessel. You were about 20 feet away from the wheelhouse. During this time there was no one operating the vessel, no one keeping a proper lookout and no navigational equipment being used to assist in the avoidance of a collision.
7 Just before 7 am Mr Damjanovski swivelled in his chair to face the front of his smaller vessel and said, "Look at this idiot coming towards us". Savukoski turned and saw your vessel about 100 to 150 metres away coming towards them. Your vessel was travelling at 13 knots or approximately 26 kilometres an hour.
8 They started waving their arms, yelling and whistling but your vessel kept coming straight at them and ultimately crashed into the front of the smaller vessel.
9 You and Cox felt the impact and thought you had hit a sandbar, but then saw the other smaller vessel. By this time your vessel had travelled 10 to 15 metres passed the smaller vessel, so you returned to the wheelhouse and reversed so as to assist Mr Savukoski and Mr Damjanovski. You helped them aboard your vessel and at 7.16 am you called 000. You and Cox both assisted them when they were on board and you returned to the Stony Point Marina with the smaller damaged vessel in tow.
10 Ambulance Victoria members met you at the Stony Point jetty and Mr Savukoski was airlifted to the Alfred Hospital. At the Alfred Hospital he was treated for seven broken ribs, broken sternum, extensive neck and left chest emphysema, (air trapped), a punctured and collapsed left lung and a cracked chest wall. The collision also aggravated an existing back and neck complaint.
11
Mr Savukoski remained in the Alfred Hospital for three weeks, with nine days of that time being spent in the intensive care unit, in an induced coma due to the seriousness and the intense pain associated with his injuries. He has been required to attend his medical centre on many occasions to receive treatment for his injuries and wounds, and also been required to attend for rehabilitation. Mr Savukoski has subsequently been diagnosed with
post-traumatic stress disorder.
12 On 12 November 2016 Dr Jason Schreiber examined the medical materials relating to Mr Savukoski and opined the injuries sustained were life threatening, and that without immediate medical intervention he would have died.
13 Mr Damjanovski was taken to the Frankston Hospital where he was treated for shock and abrasions.
14 Both of the vessels were examined by police from the Marine Investigation Unit. In the opinion of police, your vessel collided with the smaller vessel almost head on, with the force involved being akin to a heavy vehicle colliding with a stationary car.
15 At approximately 2 o'clock that afternoon you arrived at Hastings Police Station and were arrested and interviewed by police. You said you originally intended to go to French Island, but realised the tide was too fast for fishing, so you set course for Tortoise Head. You said you looked out the front of the boat and did not see anything, and so you went to tell the deckie about the change of plan, but the boat lurched over and you heard a noise and realised what had happened.
16 You considered yourself an experienced boat handler, that you knew the boat well, and had been driving it for 20 years. You considered the boat had very good seaworthiness. You said that you did not physically see the boat or lights in front of you and you made the mistake of leaving the helm. You had gone to Cox and did not think it was for a long time, but obviously it was long enough and you had checked the vessel before you did that. You said that you did not see the other vessel as you were talking to your deckie at the back of the boat and you should not have left the helm.
17 When police asked you if you thought your actions were safe, you admitted “no”, and that you should not have left the helm and should have got in touch with the deckie and brought him forward. You admitted it was a mistake that you made. You said the other vessel had right of way and you said you had noticed the damage to the other boat was extensive, but that there were just a couple of scratches on your vessel.
18 A victim impact statement was provided by Mr Savukoski and was read to the court. It is apparent your offending has had a significant impact on him with him suffering particularly serious and long lasting injuries as outlined above. Additionally, he has difficulty sleeping and suffers panic attacks. He is unable to enjoy life in the manner in which he used to, prior to the accident.
19 You are currently aged 52 and reside in Cape Woolamai on Phillip Island. As is apparent from the summary you were employed with Ace Fishing Charters at the time of this offence.
20 You were born in Denmark and migrated to Australia with your parents when you were aged two in 1966. You have always lived in Victoria. For the last couple of years you have lived permanently at Cape Woolamai in a property which was previously your parents' holiday house. You live there with your brother.
21 Your parents are both deceased. You are the eldest in the family and you have three brothers. You are a single man in reasonably good health. You have had various jobs working in different businesses, some with your father. You have never been unemployed.
22 Most relevantly in about 1996, and when you were aged 32, you commenced employment as a deckhand at Ace Fishing Charters based at Hastings Marina, Western Port Bay. Around 2000 you obtained an Australian Maritime Safety Authority certificate of competency with class master less than 24 miles coastal. You are also the holder of a current Australian Maritime Safety Authority certificate of competency with class marine engine driver grade 3 near coastal.
23 Since around 2000 you have been operating a charter fishing vessel as an employee of Ace Fishing Charters. You typically skipper a charter vessel between 100 and 150 days per year. You supplement this income by acting as a skipper for the local barge to French Island.
24 I was informed that during the winter months you also undertake some other jobs including factory work and welding work and that you also travel to the Northern Territory undertaking work there for little, if any, reward.
25 You have no prior convictions. You have an unblemished record and significantly have never had any maritime safety issues or been the subject of a relevant investigation.
26 I was provided with a report from Mr Jeffrey Cummins, consulting clinical and forensic psychologist dated 21 March 2017, Exhibit 1. You do not present with any antisocial or psychological issues. You have never had significant issues with alcohol or substance abuse. I take the material in that report into account.
27 You have significant support from your family, friends, employer and others in the local community. I received a number of character references, Exhibits 2 to 9, and also heard evidence from two witnesses attesting to your good character and standing in the community, but also as to the effect that this accident has had on you, and your genuine remorse for the situation of the two men in the smaller boat, particularly Mr Savukoski.
28 I take into account your plea of guilty. You pleaded guilty at the earliest opportunity and there is a significant utilitarian benefit in the plea saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence.
29 Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice. I accept your plea of guilty is also indicative of remorse by you and is consistent with your immediate response in assisting others when you realised what had happened, your candid responses in your record of interview with police and in interview with Mr Cummins and your presentation to friends and family.
30 As Mr Cummins notes, very early in the assessment interview you stated you felt embarrassed, shocked and guilty concerning the marine incident. In my opinion, that is Mr Cummins, Mr Graae spoke in a manner which indicated he feels genuinely embarrassed, ashamed, guilty and remorseful concerning this incident.
31 Given the impressive material tendered on your behalf on the plea, your previous good character and the impact that this incident has had on you, the principles of specific deterrence have very limited application. I accept that your rehabilitation prospects are excellent and that you are unlikely to re‑offend.
32 The prosecution conceded these matters and also accepted that the protection of the community had limited application to you. The prosecution, however, highlighted general deterrence and just punishment in respect of this offending.
33 I was referred to a number of authorities in respect of sentencing principles for negligently cause serious injury and the relatively recent increased maximum penalty. It was conceded that those authorities mainly related to incidents occurring in the context of driving or accidents on the road. Further, in many of those authorities, the level of negligence was high or at the upper end.
34 In the circumstances of this case, the prosecution accepted my description of your conduct in this instance as inattention. That you just did not see the smaller boat.
35 As to the appropriate disposition, the prosecution submitted that given the significant impact on the victim and other relevant sentencing principles referred to above, that the only option available to me was a term of imprisonment, though it was conceded that a combined term of imprisonment and community correction order was within sentencing range.
36 Your counsel submitted that all sentencing purposes could be served by the imposition of a community correction order. It was submitted that your conduct was momentary, and that it was a single unfortunate act in an otherwise blameless life, particularly in carrying out duties in your employment on the water.
37 I had you assessed as to your suitability for such an order and received a favourable report. That is the course I propose to adopt. If you could please stand up, Mr Graae.
38 In relation to the offence of negligently cause serious injury you will be placed on a community correction order for a period of two years. You will be under the supervision of the Office of Corrections and there is a work component of 150 hours that you will be required to complete in the period of the two years.
39 I need to inform you if you breach the community correction order, that is if you do not carry out the work component or you commit another offence in the period of time of the community correction order, you will come back before me and the sentencing options that I will have available to me will be much more limited.
40 Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter and it had gone to trial and you had been found guilty I would have sentenced you to a period of three years imprisonment with a non-parole period of 20 months.
41 Application was made for a forensic sample pursuant to s.464ZF of the Crimes Act. However, given your previous good character and the other matters that I have mentioned in mitigation in the course of these reasons I do not propose to make such an order.
42 Mr Graae, my associate will prepare the order now. It is Wonthaggi, the corrections order that you will have to attend.
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HER HONOUR: Is there anything else I need to do, Ms Duckett?
MS DUCKETT: No, that was the only order required.
HER HONOUR: Thanks. Yes, that's fine. If you could take the order. You don't need to read it out. Mr Graae, my associate's just going to come to you with the order that you're required to sign. Thanks. You will be provided with a copy with the order. All right. Thank you. I'll just stand down. Thank you.
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