Director of Public Prosecutions v Gurovski
[2017] VCC 179
•2 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -16-01973
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN GUROVSKI |
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| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 February 2017 |
| DATE OF SENTENCE: | 2 March 2017 |
| CASE MAY BE CITED AS: | DPP v Gurovski |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 179 |
REASONS FOR SENTENCE
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Subject:Negligently causing serious injury
Catchwords: Heavy vehicle – mid-level offending
Legislation Cited: Heavy Vehicle National Law 2013; Road Safety Rules 2009
Cases Cited: Harrison & Rigogiannis v The Queen [2015] VSCA 349
Sentence: 3 years imprisonment; 2 year non-parole period---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Hoare | |
| For the Accused | Mr S. Moglia |
Pages 41 -51
HER HONOUR:
Charges
1John Gurovski, you have pleaded guilty to one charge of negligently causing serious injury for which the maximum sentence is a term of imprisonment of ten years. You have also pleaded guilty to a number of summary charges, nine charges of making false or misleading entries in your logbook in breach of your obligations under the Heavy Vehicle National Law 2013 for which the maximum penalty is $10,000, one charge of failing to record required information immediately after starting work, under the Heavy Vehicle Law, for which the maximum penalty is $6,000, four charges of using a handheld mobile phone while driving and one for using it whilst stationary but not parked, in breach of the Road Safety Rules 2009, for which the maximum penalty is ten penalty units.
Circumstances of offending
2The circumstances of your offending are set out in some detail in the summary of prosecution opening, which will form part of this sentence. On Tuesday 23 February 2016, you were driving a Freightliner prime mover in B-double configuration in a northerly direction on the Calder Highway towards Mildura. Chloe Martin was driving her Mazda 6 sedan on the Calder Highway in a southerly direction, away from Mildura.
3At approximately 2.45 pm, the two vehicles collided, approximately 500 metres south of the Mittyack rail crossing. The collision resulted in serious and life threatening injuries to 18 year old Chloe Martin. The collision occurred on a sweeping left hand bend, where the Calder Highway changes from an approximately northerly direction to an approximately westerly direction. You had begun to navigate the bend, but for reasons unknown, you failed to navigate the entire curve and crossed the centre of the road, into the south east bound lane which Chloe was travelling in her Mazda sedan.
4An offset head on collision occurred causing massive cabin intrusion into the Mazda sedan which rotated 180 degrees on impact. The truck, which was fitted with a front bull bar steered back into the north bound lane before over correcting and sliding to where it came to rest on the road facing northeast and covering both northwest and southeast bound lanes. The bull bar was torn from the truck on impact and Chloe Martin was trapped with serious injuries to both legs, pelvis and both arms.
5Investigations carried out after the accident revealed the following information:
·that it was not possible to drive into the corner without steering and reach the point of impact, driver steering was required;
·that the truck crossed so far into the oncoming lane that it deposited skid marks over the fog lane in the opposite lane;
·that the truck was over the double lines on the wrong side of the road, travelling at approximately 90 kph for over three seconds;
·that the impact occurred approximately 900 metres south of the eastbound fog lane;
·that there was no fault with the road affixation or road that contributed to the collision;
·that the truck was in good condition prior to the impact and there was no mechanical failures or issues that would've caused or contributed to the collision.
6After the collision, you were arrested and conveyed to the Ouyen Hospital where a sample of your blood was taken. An analysis of your blood revealed no illicit substances. You were then conveyed to the Mildura police station where you participated in a recorded interview. In this interview, you informed the police that you were not suffering from any medical conditions or illnesses and you did not suffer from sleep apnoea. You were unable to give a reason as to why your truck had gone onto the wrong side of the road.
7However, it is relevant that on this day you started work at 5.26 am and you had driven from Noble Park North to the point of the accident, approximately nine hours and 20 minutes with no continuous break greater than seven minutes.
8In his expert report, Professor Matthew Norton, a respiratory and sleep disorders physician was of the opinion that you had a delayed reaction rather than true sleepiness prior to the collision. You had regularly performed significant periods of work after having interrupted, insufficient or irregular sleep, including on the day of the collision. The delayed reaction was likely due to your relative sleep deprivation.
The Injuries
9Following the collision, Chloe Martin was transported by air ambulance to the Royal Melbourne Hospital. There were no drugs or alcohol detected in her blood at the time of the collision. She sustained extensive orthopaedic injuries, including a fractured pelvis, multiple fractured vertebrae, multiple fractures to both arms, a partial finger amputation, multiple fractures to both legs, a fractured right foot and ankle and a lung contusion. Chloe was placed in an induced coma for 17 days after the accident and underwent a number of operations followed by rehabilitation. Medical reports were tendered to the court from Dr Tom Tressler, her treating orthopaedic surgeon at the Royal Melbourne Hospital. Dr Kerry O'Meara, the rehabilitation consultant who treated Chloe when she was an inpatient at the Epworth Hospital. Her current physiotherapist, Thomas Anderson, and Roz McCallum, her GP.
10These reports reveal that despite her severe injuries, due to her compliance with treatments and focus on rehabilitation, Chloe made good progress. However, she has ongoing persistent pain, problems with mobility and psychological issues due to the accident. In a report dated 10 February 2017, Dr Roz McCallum stated, "Chloe has major ongoing problems that affect her on a daily basis, not only her physical self but also her psychological self, her sense of self and her capacity to follow her chosen career path."
11In his report, Thomas Anderson stated that, "Unfortunately, some of Chloe's deficits are likely to be lifelong and this will undoubtedly impact on her career choice and social participation. Chloe will need long term medical management and physiotherapy for her injuries, current and future. Chloe makes frequent trips to Swan Hill and Melbourne for treatment which is an additional burden for Chloe and her family members."
Victim Impact Statements
12It was apparent from Chloe's victim impact statement which was read out in court that the collision has greatly affected her quality of life. Her injuries have limited her work options and her ability to engage in recreational activities which she previously enjoyed such as netball and tennis. Chloe describes every day as being a constant struggle because of the collision, which she is always thinking about and she wishes that none of her family and friends had to go through this terrible time with her. As well as her ongoing physical issues, she has been mentally scarred and feels stressed, lonely and worthless.
13Victim impact statements from Chloe's parents and her partner, Dylan, were also read out in court. They revealed that the collision has had a domino effect and that her family and friends have all suffered with her. Her mother and father attended the scene of the accident and saw their daughter in the mangled remains of her car. They were terrified that she was not going to make it. Chloe's mother stated that, "The emotional impact of this crime has been quite significant, not only on myself but my whole family, causing major upheaval of all our lives. The collision occurred just a few kilometres from home, so we raced to be with my daughter immediately before the ambulance arrived on that fateful day. To witness Chloe trapped and bleeding profusely and falling in and out of consciousness in extreme agony, complaining of her legs burning and begging for my husband and I to get her out of there and us not being able to help, will haunt me for the rest of my life."
Summary Charges
14The summary charges brought against you are as a result of an investigation conducted by the informant into the 20 day period prior to the collision at Mittyack on 23 February 2016. The investigation revealed that there were discrepancies between the work and rest hours recorded in your diary and your actual work and rest hours. Summary charges 6, 14, 19, 23, 29, 32, 26, 43 and 47 relate to the fact that on nine occasions in February 2016, you had breached the standard work and rest hour requirements as defined by the Heavy Vehicle National Law.
15Charge 11 relates to one occasion where there was a journey in excess of 100 kilometres from your driver base that was not recorded.
16Charges 10, 13, 34 and 41 relate to four occasions in February 2016 when you used your mobile phone while driving and Charge 46 to one occasion where you used your phone while you were stationary but not parked.
Personal Circumstances
17Turning to your personal circumstances, you are 45 years old and you live with your parents who are advanced in age. You assist in the care of your father, who is wheelchair bound. Since finishing high school after Year 12, you have been a consistent worker. You have worked in the meat industry, as a courier, in sales and operating machines. However, your main line of work since 2002 has been driving trucks for various delivery companies. Most recently, you have been employed driving heavy vehicles and you are the holder of a current full drivers licence with a multi combination endorsement, expiring on 14 June 2021. At the time of the collision, you were employed as a truck driver, subcontracting to ETA, a small transport business located in Lysterfield.
Defence Submissions
18In his plea on your behalf, your counsel informed the court that you were extremely remorseful for your offending and that you accepted that your driving had fallen below the expected standard. At the time of the collision, you repeatedly told Chloe Martin that you were sorry and you had enquired as to her welfare on a number of occasions since then.
19It was submitted by your counsel that the collision was due to momentary inattention and misjudgement. As aggravating features such as speed or use of drugs or alcohol was not present, your offending was submitted to be in the lower range for offences of negligently causing serious injury by driving. In view of the lack of these aggravating features, it was submitted that a community corrections order or a combination sentence was appropriate, also that that the mandatory disqualification period from driving which applied in this case would be a significant penalty for you, given your occupation as a truck driver.
20The mitigating factors relied on in support of this submission were as follows:
·your early plea of guilty and the utilitarian benefit associated with that plea;
·Your remorse;
·your co-operation with the investigation into the circumstances of the collision;
·your lack of prior criminal history, other than one prior in 2003, which was not related to your driving;
·your background of being a consistent hard worker;
·your excellent prospects of rehabilitation.
21A number of character references were tendered in your favour. These included a written reference from your family, friends and employer. They variously described you as an honest, gentle and remorseful person with strong family ties and work ethic.
Prosecution Submissions
22The prosecution submitted that your offending was in the mid-range for the offence of negligently causing serious injury by driving for the following reasons:
·you had had no more than 5.5 hours of continuous sleep the night before the collision;
·you had driven for nine hours and 20 minutes after you started work at 5.26 AM with no continuous break greater than seven minutes prior to the collision;
·your delayed reaction was likely due to relative sleep deprivation and shift work;
·as a driver of a heavy vehicle, you had a responsibility to safely navigate your vehicle and you were expected to be knowledgeable about the early signs of fatigue or sleepiness.
Sentencing Remarks
Negligently Causing Serious Injury
23In sentencing you, I have given you a discount for your plea of guilty. I have accepted and taken into account all the mitigating factors referred to by your counsel. While I had you assessed for a community corrections order, and you were found to be suitable, taking into account all the circumstances of this case, I consider that the only appropriate sentence is one where you will serve a period of actual imprisonment. I accept the prosecution's submission that your offending falls into the mid-range for offences of negligently causing serious injury, albeit at the lower end of that range.
24As an experienced driver of a heavy vehicle, you should have been aware of the dangers involved with lack of sleep and inadequate rest periods. Heavy vehicles such as yours weighing up to 85 tonnes are a lethal weapon if not properly controlled. Your truck did not simply momentarily cross the line dividing the lanes, it crossed so far into the opposite lane that your vehicle deposited skid marks over the fog line of the opposite lane. At this point, the side of your truck was approximately 3.5 metres outside your lane. The investigation concluded on the basis of your skid marks that your truck was over the double lines on the wrong side of the road, travelling at approximately 90 kph for over three seconds.
25Due to your negligence, Chloe Martin's life has been changed forever. At the age of 19, she can no longer enjoy many of the recreational pursuits enjoyed by young people. Her career prospects are adversely affected and she has to face up to the prospect of long term physical deficits.
26General deterrence is an important consideration in a case such as this. It is important that those who drive heavy trucks on our roads for a living are aware of the dire consequences of inattention and of their responsibility to make sure they get adequate sleep and take appropriate rest periods. If they fail to do so, they must face the consequences not only of potentially ruining someone else's life, but also facing a term of imprisonment.
27In carrying out the sentencing synthesis, I have taken into account that in Harrison v The Queen,[1] the Court of Appeal said:
"We have reviewed sentencing practices for negligently causing serious injury by driving both before and after the increase in the maximum penalty to ten years. We have concluded that current sentencing for offences at the upper end of seriousness is inadequate and needs to uplifted. Inevitably, such a change will have a flow on effect on sentencing for mid-range and low-range instances of negligently causing serious injury by driving."
[1] [2015] VSCA 349
28With respect to the applicability of a community corrections order or a combination with a sentence of imprisonment, they said at Paragraph 39:
"But the likelihood that a community corrections order alone or in combination sentence will be appropriate necessarily diminishes as the degree of negligence and seriousness of the injuries increase. As the Court recognised in Boulton, a point will be reached at which such sentencing options ceased to be capable of satisfying sentencing purposes of punishment, denunciation and deterrence."
29For the reasons I have already enunciated, I consider that this is such a case.
Summary Offences
30With respect to the summary offences, your counsel submitted that these offences were merely examples of poor record keeping and that there was no intention to mislead. In addition, that some of them were only minor breaches.
31With the charges relating to your use of the mobile phone, it was submitted that your conduct could not be said to have given rise to any specific risk to road users. With respect to the risk resulting from the days of inadequate rest periods, it was submitted that the most that could be said was that they may have resulted in dangers to others.
32The prosecutor however, submitted that these offences were deliberate false entries, intended to mislead ETA Transport and the authorities. As such, they were serious examples in the upper range of offending.
33I accept that the entries were intended to mislead and hide the fact that you had been driving in breach of minimum rest hours. I denounce your conduct in providing false and misleading work records. The purpose of keeping such records is to ensure that the drivers of heavy vehicles do not drive when they are impaired by fatigue. The dangers of doing so are obvious.
34I also condemn your use of the mobile phone while driving. On one occasion, when driving between Wedderburn and Macedon, you sent and received 15 text messages. While there is no evidence of specific risk to road users, as a matter of common sense, every time you made a call or text, you risked being distracted from having your attention only on the road. As you should be well aware by now, a moments' distraction can have dire consequences.
Sentence
35On the charge of negligent driving causing serious injury, you are sentenced to three years' imprisonment with a non-parole period of two years. Your licence will be cancelled and you will be disqualified from obtaining a licence for 24 months.
36On the nine summary charges of making false or misleading entries in your log book, you are convicted and fined $9,000.
37On the five charges of using the mobile phone, you are fined $1,600.
38On the charge of failing to record information immediately after starting work, you are fined $500.
39The total amount of fines is therefore $11,100.
40But for your plea of guilty, I would have imposed a term of imprisonment of four years and six months, to serve three years. I would have also imposed a fine of $17,000.
41There are a number of remarks before we finish that I intend to make. I have already given my sentence, these remarks have been made after I have given my sentence. This is a very difficult case. A young girl with her life before her has suffered serious injury and a hardworking man has gone to gaol. There are some aspects of Chloe Martin's victim impact statement which I need to comment. Is Chloe there?
42VOICE: Yep.
43HER HONOUR: Chloe, you think back with regret of the things you could have done to avoid the accident. Given the position of the truck on the wrong side of the road, and the speed of both vehicles, there was absolutely nothing you could have done other than brake and I stress this. You refer to being ashamed and embarrassed about relying on everyone so much, all your family and friends, that is what family and friends are for. I am sure that you would do exactly the same if it had been your dad or your mum had been injured and I stress this.
44You talk about feeling worthless, you are not worthless. You are a remarkable and brave young woman. Your orthopaedic surgeon says that your compliance with rehabilitation was remarkable. Also that largely down to your determination and positive outlook, your outcome from the injuries has been outstanding. I have never read that in a medical report before. I want you to keep all those things in mind.
45Now, is there anything arising from the sentence?
46MR HOARE: Nothing arising, Your Honour. Pre-sentence detention is agreed at two days.
47HER HONOUR: I declare two days' pre-sentence detention.
48MR HOARE: The prosecution has made an application for a forensic sample under s.464ZF.
49HER HONOUR: That is refused.
50MR HOARE: Yes. Nothing further.
51HER HONOUR: All right, thank you.
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