Director of Public Prosecutions v Harvey

[2017] VCC 1591

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

AT MELBOURNE
CRIMINAL JURISDICTION  Revised 8/11/17

CR-15-01673

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARYN HARVEY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 October 2017
DATE OF SENTENCE:	2 November 2017
CASE MAY BE CITED AS:	DPP v Harvey
MEDIUM NEUTRAL CITATION:	[2017] VCC 1591

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:  Negligently cause serious injury, fail to stop, fail to render   assistance after an accident
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Hoare	OPP
For the Accused	Mr A. Swanwick	Alan Swanwick

HER HONOUR: 

1Daryn Harvey, you have pleaded guilty to two charges of negligently causing serious injury and one charge of failing to stop and another of failing to render assistance after an accident. Each of these offences carries a maximum penalty of ten years. See s.24 of the Crimes Act and 61(3) of the Road Safety Act.  There is also a mandatory disqualification period of four years, in respect of your driver's licence.  These charges all arise from an episode of you driving along the Esplanade in the Altona beach area.  At about 9 pm on 19 February 2015, you were driving a white Hyundai SUV with a passenger, Tarek El Houli.  Your car was ultimately involved in a collision with the white Mitsubishi ute, driven by Samir Haddara.

2As a consequence of that collision, two pedestrians, Michael and Doris Xerri, were struck by the ute and both suffered serious injuries. 

Background and agreed factual basis of the plea.   

3The prosecution summary, Exhibit A, deals with details of both your driving and that of Haddara during this episode, from the Point Cook Road/Central Avenue roundabout, to the start of the Esplanade, a distance of about three kilometres.  (See Exhibit B, Melways map.)

4The inclusion of this material provides a context for your driving that immediately followed, which amounts to the criminal conduct, the subject of the charges. 

5I do not propose to detail all of the driving, prior to you travelling on the Esplanade, save to say that your SUV and the ute were driving in an extremely dangerous manner.  The distance in relation to this driving can be observed on Exhibit B, extending from the roundabout at Point Cook Road and Central Avenue, then along Queen Street, past the Kooringal Golf Club to Maidstone Street and then the short distance along Maidstone Street to the Esplanade. 

6Both your SUV and the ute were observed by witnesses as speeding, driving erratically and swerving in and out of traffic. 

7The details of the agreed facts are contained in paragraph C to F of Exhibit 9.

8Your plea was accepted on the agreed factual basis, that at the time of this driving, that is, immediately before you were travelling along the Esplanade, you believed you were under imminent threat of death or serious injury from
a member of or people connected to the Haddara family.  You had that belief and gave evidence to that effect, that you thought you were being followed by a car, thus causing a sandwich kind of effect, (2) You could see headlights behind you, and (3) Tarek El Houli was yelling at you to speed up to get away.

Negligent driving amounting to criminal conduct.

9Both the ute and your SVU turned left at the intersection of Maidstone Street and the Esplanade.  It is the driving after this time along the Esplanade that constitutes criminal negligence.  Both your SUV and the ute were observed by witnesses, for portions of that road, being driven on the wrong side of the road, travelling well above the speed limit and in close proximity to each other.  The engines of both your vehicles were revving loudly and were being driven in such a manner and speed, they were fishtailing as they drove along. 

10The prosecution tendered a DVD video with the relevant portion of the journey, or the Esplanade, commencing at approximately 11.23, through to approximately 14:43, covering about a two kilometre stretch of road.  (See
Exhibit D.)

11The recording captures the surrounding areas and the view that a driver experiences on that stretch of road, heading in an easterly direction towards the pier. 

12From the corner of Maidstone Street and the Esplanade, to the corner of Millers Road and the Esplanade, there are six speed humps, most with a pedestrian crossing positioned next to it.  There are a number of centre structures in the middle of the road, dividing the lane of traffic in each direction and ten side streets that run off to the left of the Esplanade.  I note there is also a parking area for angle parking on the side of the road that runs along G H Ransom Reserve.

13As you both travelled around a slight bend on the road and were in a straight section of the Esplanade, between Bayview Street and Millers Road, you collided with the rear of the ute on the driver's or right-hand side.  This action caused the ute to veer to the right and cut straight across the footpath that runs next to the beach retaining wall.  You, however, were able to maintain control of your SUV and continued driving towards Miller Road. 

14As the ute crossed over the footpath, it collided with Mr and Mrs Xerri, narrowly missing their adult daughter, Jessica.  The impact propelled them over the retaining wall and onto the beach.  The ute landed on its roof on the beach.  Passers-by assisted Mr and Mrs Xerri on the beach.  The four occupants of the ute crawled out through the windows, though none of them appeared to be injured.

15You drove up onto the nature strip at the Esplanade and Millers Road intersection and stopped for a moment, before reversing off the nature strip and driving north up Millers Road.  You stopped outside an address in Altona about three kilometres away from where Mr and Mrs Xerri were hit, where police located you and Mr El Houli.  This is the conduct constituting failing to stop, Charge 3 and failing to render assistance, Charge 4. 

16Mr and Mrs Xerri, both aged in their late-50s, were taken to the Alfred Hospital via ambulance in a serious condition.  Ms Doris Xerri suffered a fractured pelvis, fractures to her lower spine, internal bleeding and severe bruising to most of her body.  She was required to stay at the Alfred until 27 February, then transferred to the Epworth Rehabilitation, where she remained until 12 May.  She has required follow-up assistance. 

17Mr Michael Xerri suffered from fractures to his lower limbs, including a badly broken knee requiring surgery, internal bleeding, back pain and severe bruising to most of his body.  He was transferred to Epworth Rehabilitation on 5 March and was also an inpatient until 5 May.  He also has required follow-up assistance. 

18When police located you, you were still in the SUV with Mr El Houli, outside his address in Altona.  The SUV was damaged, with black circular tyre rubbing marks across the entire length of the left-hand side, from the rear bumper bar, through to the front guard.  The whole left-hand side exterior metal was rippled.  The part of the vehicle that had sustained significantly more damage than the rest of the vehicle, was the front passenger corner.  Both front tyres were flat and the left-hand tyre was completely gone.  The main tyre came away from the rim at an unknown location.  The rim of the left wheel showed score marks, consistent with being driven on and the left strut was bent back.  There was significant damage to the entire front end of the vehicle and both headlights were broken and parts missing.  There was ripping damage to the bonnet, at an approximately 45 degree angle, consistent with an impact with the rear end of Haddara's ute. 

19You told police that earlier you had been dropping Tarek, or Mr El Houli home and there was a white ute, a blue Astra and two bikes waiting for you in the street; that you were rammed by the white ute and that was how this had started.  You said no firearms were involved and that it was ramming and driving.  In your record of interview, you said you did not know the others who were involved and that you had not seen the vehicles or the bikes involved before; that Tarek had told you to get the hell out of there; you maintained that your driving was because you were trying to get away from the other vehicles and that you had possibly driven on the wrong side of the road. 

20By your plea to Charges 1 and 2, you have accepted that a reasonable person driving the SUV would not have driven in the manner in which you did along the Esplanade.  By this stage it was apparent to you there was no car behind you; that you had other options than trying to pass the ute to get away. 

21You are currently aged 48 and are separated from your partner, though you had been together for 23 years.  You continue to provide support for your step-child. 

22You have consistently been employed since you left school, completing a spray painting apprenticeship and working in that field most of your life. 

23You successfully overcame issues that you had with ice, seeking assistance from your employer, Boeing, to engage in rehabilitation and treatment over
a three month period.  I was informed that you have been clean since this occurred in 2014.  (See Exhibit 3.)

24You are in reasonable health, though you require use of a CPAP machine on
a nightly basis to assist with sleep apnoea and to prevent possible cardiac issues.  You are also on medication for depression.  (See Exhibit 4.)

25You became friendly with members of the El Houli family and because of that connection, became embroiled in a familial dispute between them and the Haddara family.  You have not otherwise been involved in any feud between them. 

26You have limited prior history for minor drug offences in December 2012 and
I accept that you are otherwise of good character. 

27I take into account your plea of guilty.  Your offer to plead was accepted by the prosecution, just before your trial with your co-accused, Samir Haddara, the driver of the ute, was due to commence.  I was informed by your counsel and the prosecution accepted that you made a similar offer to plead approximately 12 months ago, but that that was not accepted by the prosecution at that time.  It was an early plea.  There is a significant utilitarian benefit in the pleas, saving the community the cost and inconvenience of a trial. 

28I accept your plea is indicative of remorse.  Delays in resolving this matter were not due to a reluctance by you in taking responsibility, rather the delay related to negotiations regarding the factual basis of your plea, particularly relating to the period prior to you travelling on the Esplanade.  You offer of assistance to police is also indicative of remorse. 

29Upon acceptance of your plea offer, you indicated you would make a statement to the police and also a preparedness to give evidence against Mr Haddara. 

30Counsel for the prosecution indicated that they did not propose to call you in the trial, though accepted that it was a matter in mitigation that I should take into account and I do so.  Further, it was accepted by the prosecution that given you had made a statement and given this willingness to give evidence, that any period in custody is likely to be more burdensome for you, with the likelihood of such time being in protection.  I accept that submission and take it into account.

31Given your limited criminal history, your good work record and lack of any current drug issues, I accept you have reasonably good rehabilitation prospects. 

32As to the objective seriousness of this offending"

(1)   Speed.  Lay witnesses estimated the speed the ute and the SUV were                travelling, as between 90 to 100 kilometres.  The speed limit along the        Esplanade varies between 60 to 40 kilometres in the more pedestrian
         built-up areas. 

(2)    Other options.  As noted above, there were a number of other alternatives          available to you whilst travelling along the Esplanade, such as pulling over,       calling the police, turning around, or turning up one of the side streets,            rather than continuing to follow or try to overtake the ute. 

(3)   There were two victims and the ute narrowly missed a third. 

(4)   You did not stop or render assistance, though these are the subject of          separate charges and do not aggravate the circumstances of Charges 1         and 2.

33Your counsel submitted that the unusual circumstances of this case were such that your culpability was at the lowest possible level for an offence of this kind, submitting it was to be characterised as even less than the more common momentary inattention cases involving driving; that you were in such a state as a consequence of the events prior to travelling on the Esplanade, that you, as noted in written submissions, were continuing to run on the adrenaline of the emergency for a short while after the emergency, which to the objective observer, had faded or could be dealt with in a safer manner. 

34The prosecution submitted that the circumstances of your offending were significantly more serious than that submitted by your counsel, on the basis that your driving involved a conscious decision to continue along the Esplanade.  You had a number of other options, but travelled for approximately two kilometres in a pedestrian or built-up area, travelling with portions on the wrong side of the road and at around twice the speed limit.  Your offending fell within medium range. 

35"In general, an assessment of the seriousness of this offence is made by reference, both to the degree of departure by the offender from the standard or reasonable care expected of an ordinary driver and by the seriousness of injuries occasioned by the driving.  In turn, an evaluation of the degree of departure by the offender from the requisite standard of care is informed by
a variety of factors, including the degree of risk and potential harm involved in the manner of driving by the offender and the foreseeability of risk created by the offender's driving." See paragraph 34, Papachristodoulou, [2017] VSCA 284.

36I accept that drugs, alcohol or sleep deprivation issues, aggravating features commonly that arise in cases such as these, are not present in your case.  However, given the distance travelled, the duration and the manner of driving, including speed, the nature of the area in which you travelled and the available alternatives open to you, even taking into account your level of distress at the time, I regard this conduct as more serious than that submitted by your counsel.  Your continued driving along the Esplanade involved significant risk of injury to other users, including pedestrians of the road. 

37The prosecution submitted the objective seriousness of this offending involved the nature of the driving over that particular stretch of road and seriously injuring two people and your conduct immediately thereafter, warranted a term of imprisonment.  It was submitted on your behalf that I should place you on a community corrections order.  I had you assessed for a corrections order and you have been deemed suitable.  The prosecution disputed the most appropriate disposition was a community corrections order, whether on its own or in combination with a term of imprisonment. 

38Road users have a duty to others to drive in a safe and responsible manner.  You deliberately drove your car, with the ute, along the Esplanade, in a manner that significantly departed from the standard of care that would be expected of drivers.  You deliberately pursued that course over a considerable stretch of the road, speeding and travelling on the wrong side in a built-up pedestrian area. 

39General deterrence and denunciation and protection of the community have
a significant role to play in sentencing you.  Specific deterrence has more limited application, given your previous good character and the context in which this offending occurred. 

40I take into account all matters in mitigation, including your personal circumstances, plea of guilty, remorse and more onerous conditions in custody.  These must, however, be balanced against the objective seriousness of your offending and other sentencing considerations. 

41After careful consideration of all the relevant matters, I have determined the only appropriate penalty is a term of imprisonment.  In sentencing you, there should be some cumulation, given there were two victims and your conduct after the collision occurred.  Though I am mindful of the principle of totality and have taken that into account. 

42If you could please stand, Mr Harvey. 

43In respect of Charge 1, negligently cause serious injury, you are convicted and sentenced to a term of imprisonment of two years. 

44In respect of Charge 2, negligently cause serious injury, you are convicted and sentenced to a term of imprisonment of two years.

45In respect of failing to stop, you are convicted and sentenced to a term of imprisonment of one year.

46In respect of failing to render assistance, you are convicted and sentenced to
a term of imprisonment of one year. 

47Six months of the sentence imposed in respect of Charge 1 and three months in respect of the sentence imposed on Charge 3, will be cumulative, thus giving a total effective sentence of two years and six months. 

48You will be required to serve a term of imprisonment of 16 months before being eligible for parole.

49Pursuant to s.61(4) of the Road Safety Act, your period of mandatory disqualification in respect of your licence will be four years. 

50I understand the application, pursuant to s.464 for a sample, is not opposed. Pursuant to s.464ZF(2) of the Crimes Act, I order you undergo a forensic procedure for the taking of a scraping from the mouth, until a sample of sufficient standard is obtained for the placement on a database.  I must inform you, that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of a police officer, then the sample will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted. 

51Pursuant to s.6AAA of the Sentencing Act, if you have not pleaded guilty,
I would have imposed a sentence of four years', six months' imprisonment, with a non-parole period of three years. 

52I will just sign that 464.  Are there any other matters, Mr Hoare?

53MR HOARE:  Just, Your Honour, when I took a note of Your Honour's orders,
I noted that you announced six months of Charge 1 and three months of Charge ‑ ‑ ‑

54HER HONOUR:  I meant six months of Charge 2 and three months of
Charge 3. 

55MR HOARE:  To be served ‑ ‑ ‑

56HER HONOUR:  Cumulative on Charge 1.  So Charge 1 is the base.

57MR HOARE:  Yes.  So would that make a total effective sentence of two years and nine months, Your Honour?

58HER HONOUR:  That is right.

59MR HOARE:  Sorry, I thought Your Honour - yes, two years, nine months, yes. 

60HER HONOUR:  Thank you.  Yes, I will stand down.  

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