Director of Public Prosecutions v Joveski
[2021] VCC 2022
•6 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00882
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GORAN JOVESKI |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 16 November, 3 December 2021 | |
DATE OF SENTENCE: | 6 December 2021 | |
CASE MAY BE CITED AS: | DPP v Joveski | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2022 | |
REASONS FOR SENTENCE
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Catchwords: Subject: Criminal law - sentence
Plea of guilty to one charge of dangerous driving causing death – category 2 offence – general deterrence of prime importance - moral culpability and dangerousness at mid-level of seriousness - faulty stabiliser leg on truck collided with cabin of vehicle driven by deceased – offender aware of fault but failed to rectify –- previous good character – genuine remorse.
Legislation Cited: Sentencing Act 1991 s.3(1); s.5(2H); s.87P; s.89(2)(a)
Cases Cited:Singh v R [2021] VSCA 161, Peers v R [2021] VSCA 264, DPP v Borg [2016] VSCA 53 [74], Pan v R [2020] VSCA 42, Bell v R [2018] VSCA 281
Sentence: 3 year CCO with 300 hours unpaid community work
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | OPP |
| For the Accused | Mr L. Gwynn | Theo Magazis Lawyers |
HER HONOUR:
1Goran Joveski, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty for this offence is 10 years' imprisonment. It is a category 2 offence which attracts the provisions of s5(2H) of the Sentencing Act.
2For reasons which I will explain, I will not be imposing a prison sentence but will impose a Community Correction Order.
The offending
3On 19 December 2019, you were driving your vehicle, an articulated truck with a container on the rear. For the purpose of loading and unloading containers, the truck was equipped with a crane and extending stabiliser legs, which are retracted when not in use.
4A fault occurred preventing the retraction of the rear stabilising leg and as you drove away from a depot that day, south along Miller Street, Epping, the stabilising leg was protruding about 2 metres out and at a height of about 2 metres.
5Peter Howard was driving a compactor garbage truck north along Miller Street. As the two trucks passed, the protruding stabilising leg impacted the cabin of the garbage truck, causing Mr Howard to be ejected from the cabin onto the roadway. Tragically, he was fatally injured.
6The truck Mr Howard was driving was a 2013 Isuzu truck fitted with a refurbished compactor unit, in good condition and fully registered. Mr Howard was working for a company called Trash 'N' Stash and was driving on a regular route.
7Neither he nor you were found to have any alcohol or illicit drugs in your systems. The cause of death reported by the Coroner's Office was 'multiple injuries sustained in a motor vehicle accident.'
8You had been driving trucks for about seven years and have a full Victorian driving licence with a Heavy Combination Endorsement. The registered company operating the prime mover you were driving was GJT Logistics Pty. Ltd., of which you were director and secretary. It had full and current registration and was in good condition with no faults which contributed to the collision.
9The prime mover was attached to a skeleton-type container trailer which was fitted, as I have already described, at each end with a crane and an extending stabiliser leg. The trailer was owned by Tarantino Investments Pty Ltd and was in poor overall condition. An inspection after the collision revealed that the rear stabilising leg had faulted and did not fully retract when you operated it remotely just before the collision.
10Earlier that morning you had carried a full shipping container from Brooklyn to a depot in Epping. You unloaded the container by extending both stabilising legs, to make firm contact with the ground, which provided a stable platform to ensure the truck and trailer remained level during the process. The operation of the cranes and stabilising legs is by either manual levers at the front and rear of the trailer or via a remote controller box attached to the rear of the trailer with a long cord.
11After unloading the first container you noticed that the stabiliser leg had not retracted using the remote control, so you then used the manual lever to retract it. You then reversed a short distance within the depot and immediately began loading an empty container using the handheld remote controller. The container was loaded onto the trailer and secured. The cranes were retracted and folded and then the stabilising legs. The rear stabilising leg raised but failed to retract and remained extended about 2.1 metres.
12You can be seen on CCTV footage moving around the rear of the trailer, securing the container and at one point walking under the still extended rear stabilising leg, which is about 2 metres from the ground. It was painted black and had no markings to make it plainly visible. You failed to use the manual lever to retract the stabilising leg. The only possible explanation must be, that in the seconds it took before getting back into the cabin of the truck, you forgot about the extended stabiliser leg.
13Without checking the position of the stabiliser leg, you drove away from the depot. Nor did you make any further checks as you drove. The still extended rear stabilising leg narrowly missed hitting the entrance gates. While travelling south in Miller Street a passing car travelling north narrowly missed the stabilising leg by swerving to avoid it.
14Near the intersection of Miller Street with Wedge Street the stabilising leg impacted the garbage truck. Mr Howard did not appear to have braked or taken any evasive actions before the collision and was travelling at a speed of 50-60 kilometres per hour at the time of the impact. It can be inferred that he did not see the stabiliser leg as he approached your truck.
15The stabilising leg impacted the cabin of the garbage truck near the base of the windscreen, causing Mr Howard to be ejected onto the road. The stabilising leg travelled through the cabin and impacted the heavy steel compactor where it was torn from the rear of the articulated trailer and fell to the road. It remained attached by a single hydraulic hose and was dragged along Miller Street for a short distance.
16You slowed and then stopped and got out of your truck. You called emergency services and were told they were already on their way. You remained at the scene until police and emergency services arrived.
17After the collision, the garbage truck had continued to travel north along Miller Street without the driver. It veered across the oncoming lanes and mounted the footpath, coming to rest against a power pole about 105 metres from the point of impact.
18Later, you went with the police to the police station where you were interviewed, and following legal advice you made a no comment record of interview. You were reportedly very upset during the interview.
19In May 2020, you were interviewed by a WorkSafe officer, and you explained as best you could what had happened. You stated that in the weeks before the collision you had noticed some damage to the remote-control housing box, but there were no issues with the function of the cranes. This damage appears consistent with that found by WorkSafe officers when the trailer was examined in February 2020.
20During the investigation the service history of the trailer was obtained which showed that in October and again in November 2019, two electrical issues were detected and repaired on the trailer and the remote-control operation. The officers concluded that the fault with the remote-control storage box was intermittent and had been present for some time. The manual lever could have been used to retract the stabiliser leg, as you did on this occasion when you dropped off the full container at the depot. However, you said that when you picked up the empty container at the site, you did not notice the unretracted stabilising leg, even though it was in plain sight.
21You said in your statement made to WorkSafe that you never would have driven off knowing there was a component that had not retracted.
22From watching the CCTV footage obtained from cameras in the area and taking into your account your statement to the WorkSafe officer, it is apparent that you were aware of the fault, but at the crucial time you did not notice the extended leg.
Objective gravity of the offending
23In determining the gravity of the offending in a charge of dangerous driving causing death, I am required to assess your culpability. In other words, the level of your criminality, and also to assess the level of dangerousness of your driving.
24Because general deterrence is to be given considerable importance in such a case, it follows that a significant sentence of imprisonment is usual, although the decision must take into account the offender's moral culpability. There are very limited circumstances where prison might be avoided.
25Under s5(2H) (e) of the Sentencing Act, if I find that there are substantial and compelling circumstances that are exceptional and rare, a sentence of imprisonment might be avoided. Under sub-section (2I)(b), I must also have regard to whether the cumulative impact of the circumstances of the case would justify departure from a sentence of imprisonment.
26In determining whether such circumstances exist, I must have regard to the greater importance of general deterrence and give less weight to your personal circumstances, than to the gravity of the offence. Only in cases where the offender's moral culpability is low, might there be the possibility of a custodial sentence being avoided.
27The law has identified over the years the factors which raise the level of culpability in cases like this. They include many factors which are frequently present but do not apply in this case, such as driving at speed, intoxication, erratic or aggressive driving, sleep deprivation and ignoring traffic signs such as red lights.
28In this case it was submitted on behalf of the prosecution that your culpability cannot be assessed as being at a low level. This is because you were on notice that there was an issue with the remote-controlled operation of the stabiliser leg, of which you had become aware when you dropped off the first container, and you failed to check the state of the leg before driving.
29In some cases there might have been what is called ‘momentary inattention’ or ‘misjudgement’, leading to a tragic outcome. The prosecution submitted that this is not such a case because of the notice you had.
30Dr Rechnitzer is a specialist collision investigator who provided a report as to his findings following his investigation into this collision. He raised the issue of what he called 'inattentional blindness' referring to the human factor in incidents.
31Mr Gwynn on your behalf adopted the phrase 'inattentional blindness' in searching for an explanation for your failure to notice and to manually raise the extended leg. Mr Gwynn submitted that this was not a case where you were alerted to the risk and disregarded it.
32I infer that the alternative characterisation of what happened was that the ‘inattentional blindness’ could be regarded as a form of momentary inattention. That has been recognised as a factor reducing moral culpability.
33As I have already mentioned, you had been alerted to the intermittent fault only minutes earlier when you had to manually retract the stabiliser leg after you unloaded the first container at the very same depot.
34This arguably puts you on a similar footing to a driver, who as in the case of Singh[1], for example, continues driving even after becoming aware that the vehicle's brakes are not operating properly.
[1] Singh v R [2021] VSCA 161
35The difference is that the driver in that case knew that the brakes had ceased functioning and drove on nonetheless, whereas you, although alert to the fault, drove your truck not realising that the leg was still extended.
36There is a difference in culpability in that you have stated that you would never have driven if you had known the leg was still extended. The question is whether this difference is sufficient to distinguish your case from that of Singh, to characterise the level of culpability as being low.
37In the case of Singh, the level of seriousness, in terms of moral culpability was said to be somewhere in the middle of the range[2].
[2] Ibid at [38]
38My conclusion is that while the danger of your driving was at a high level, your moral culpability was low. Clearly, driving the truck with the leg extended was objectively very dangerous on a public road, but it is inherently less dangerous than high speed or high levels of intoxication or other forms of dangerousness.
39The importance of general deterrence when considering the dangerousness of speeding and driving while intoxicated is obvious. But in a case of an extremely unusual hazard, such as an extended stabiliser leg, general deterrence should play a less significant role.
40One of the matters I must take into account is the impact of the offending on the victim's family. Mr Howard's mother, Margaret Howard, read her statement to the court. She described a man who was popular in his community to which he devoted a lot of time in numerous ways. He was a church-goer, a team player, who played sport and umpired junior games and he was a long serving member of the CFA. He was her much loved son and had in recent times become her primary carer. She believes that at the age of only 50 when he died, he still had the best years of his life to come. His death left her ‘gutted’, she said, with her world turned upside down.
41Mr Howard had been married to his wife, Jodie, in a long and happy marriage for some 30 years. They had two children, Stephen and Courtney. Ms Howard explained in her statement that they were a close couple and because she does not drive, she depended on him and is now severely restricted in getting around and to see her family. She described her husband as the glue that held their family together. She has suffered depression and anxiety, nightmares and an inability to sleep. She is angry and upset that her husband was killed by someone else's actions. She is lonely and misses her husband very much.
42Stephen Howard described in his statement the grief he has suffered over his father's death. He had been estranged from his father and his death has deprived him of the opportunity to mend the rift, causing him enormous heartache. He has suffered depression and anxiety and was unable to work for a time. It has placed strains on his relationships. He now has an infant son and feels the pressure of being present for him, in the absence of the baby's grandfather.
43Courtney Howard states that she too has been affected with depression and anxiety following her father's death and struggles to focus on the positive factors in her life. She has found it hard to concentrate on her studies and finds that she ‘closes over’ in social situations.
44The severe impact of Mr Howard's death on his family is an important factor in assessing the seriousness of the offence. At the same time, it should not overwhelm the overall assessment of the appropriate penalty, which is the approach I shall adopt.
Mitigating factors
45There are a number of mitigating factors which must also be taken into account. The first is your plea of guilty. You were charged on 3 September 2020 and after a number of committal mentions, you pleaded guilty to a straight hand-up brief, in other words, without any witnesses having to give evidence. You were prepared to plead guilty to a charge of culpable driving, but the charge was changed to dangerous driving causing death.
46Your willingness to plead guilty to the more serious charge suggests you were prepared to face your responsibility squarely, without trying to minimise your culpability, and that attitude should be acknowledged. It is consistent with your genuine remorse and sorrow and the fact that you live with your guilt every day, as you and others have reported.
47Separately, your plea means you are entitled to a discount on your sentence for having avoided a trial and for sparing the witnesses from that experience. The plea not only assists the criminal justice system in this way, but at the present time when COVID-19 restrictions have created an enormous backlog of trials, such a plea is of even greater value, and I take that into account.
48Turning now to your personal circumstances, you are a married man, aged 44, working until now in the business you have been running for some seven or eight years. You have been married for 25 years and you and your wife, Suzie, have two daughters aged 20 and 15. Your wife worked until about two years ago when she retired owing to a heart problem.
49You suffer from Behcet's disease, through which you have lost the sight in your left eye. VicRoads requires you to have an assessment of your sight every 18 months. You are reported to have excellent sight in your right eye, and you have regular treatment every fortnight to retain this, to control the inflammation. You also require regular appointments at the Royal Victorian Eye and Ear Hospital with both the ophthalmology and rheumatology departments.
50A consultant ophthalmologist at the hospital has advised as follows and I quote, 'Should he be unable to access his medication and review appointments, it is difficult to say how quickly his Behcet's would flare. The condition is known to have severe acute episodes of inflammation which can be blinding.'
51Your legal advisors provided this information to Justice Health, the unit responsible for overseeing the delivery of healthcare services to prisoners. The advice received was that the prison GP would make the necessary referrals to the two hospitals involved in your care and that any necessary medications would be prescribed as clinically indicated.
52Although you are treated as a public patient now, it is unclear from the Justice Health advice whether you might be placed on a waiting list, which is not the case now. Mr Gwynn submitted that any deterioration in your condition is regarded as urgent because total blindness could occur, and anxiety about that will impose an additional burden on you, should you be imprisoned.
53Although there is no evidence of the incidence of Behcet's disease in the community, it has the hallmarks of a condition which would not be frequently encountered in custody, particularly where the prisoner has lost sight in one eye already. It is speculative to consider how Justice Health might manage the problem, but a prisoner's likely anxiety over it is much less speculative. I take this into account and place considerable weight upon it.
54You have a solid working history since leaving school and completing an apprenticeship in diesel mechanics. You then worked for the same company for 20 years. You worked for a subcontractor for seven years and started your own company. That company has two trucks in operation, which undertake short route deliveries from the docks in Melbourne to various localities. One has been driven by you and the other by a paid driver. The leases over the trucks are for $113,000 and $118,000 respectively. You are also paying the mortgage on the family home.
55The likely consequences of imprisonment would be the sale of the trucks and the house. If you were imprisoned, your anguish over this because of its impact on your family, would add to the burden of serving your term of imprisonment and I take that into account.
56You were assessed recently by a psychologist, Mr Simon Candlish, who reports no serious mental health issues or personality impairment. Nor have you ever had any problems with drugs or alcohol. Mr Candlish considers you have taken your offending seriously, expressing regret and acknowledging the significant impact of your offending. Indeed, Mr Candlish said you are 'consumed with guilt' about your offending.
57You have virtually no criminal history, having failed to wear a seatbelt on one occasion and incurring some speeding fines. You are a pro-social person, very well regarded by friends and family members, who have provided references. All of them speak of your remorse and the heavy toll Mr Howard's death has had upon you.
58Your letter addressed to the court and to Mr Howard's family, expresses your deep apologies for his death and the pain caused to them. You state that you did your usual checks that day, as you do every time you operate any work vehicle, especially when a trailer is attached. (I digress here just to add that you told the psychologist, Mr Candlish, that you did not see the extended leg).
59You stated that not a day goes by when you do not think of Mr Howard. You wrote that you know that your apology will not mend the Howard family's pain, but your knowledge of their loss is pain that will remain with you forever.
60I take into account your genuine remorse and sorrow and that you have done your best to express it to Mr Howard's family and to the court. I accept that you are unlikely to offend again and that there is no need for the sentence I impose to reflect the need for specific deterrence.
Other cases
61Mr Sonnet, for the prosecution, referred me to a number of cases concerning the same charge, but as he indicated, all have differing circumstances. In addition to the case of Singh, I have had regard to several others including the recent case of Peers v R[3]. It contains a discussion of the application of s5(2H), where it is noted by the court that each case is to be determined according to its own facts[4].
[3]Peers v R [2021] VSCA 264
[4] DPP v Borg [2016] VSCA 53, [74]
62In Pan v R [5], the driver failed to stop at a stop sign at an intersection with tragic consequences. He saw neither of the signs warning of an intersection ahead, nor the stop signs themselves. He noticed but misinterpreted the rumble strips on the roadway. There was nothing else untoward about his driving and he was genuinely remorseful. In that case, the poor design of the intersection was an important factor reducing the moral culpability of the offender to a low level. Taking into account other factors, the court found that overall, the driver's culpability fell just below the mid-level and in the upper regions of the lower levels for such offending.
[5]Pan v R [2020] VSCA 42
63In your case, Mr Joveski, the faulty stabilising leg, painted black and with no warning signal to alert you to its position, also has the hallmarks of an external circumstance which contributed to the cause of death, but one so rare that it is hitherto unknown.
64Finally, I have had regard to the sentence in Bell v R[6]. In a case of momentary inattention, a driver was sentenced in this court to nine month's imprisonment with a two-year Community Correction Order. On appeal he was sentenced to a two-year Community Correction Order without imprisonment. His driving was classified as true momentary inattention, giving rise to low level moral culpability despite the seriousness of the offence. It was also noted that there were powerful mitigating circumstances.
[6]Bell v R (2016) 77 MVR 336
Sentencing discussion
65The analysis I have undertaken is necessary because of the requirements of the Sentencing Act, as I have already set out in discussing the objective gravity of the offending.
66In determining the circumstances of your offending, I have to give less weight to your personal circumstances than to the nature and gravity of the offence and the need for general deterrence.
67A submission made on your behalf was that I would be justified in imposing a Community Correction Order or a sentence combining such an order with a term of imprisonment of a year or less.
68The prosecution submission was that none of the exceptions in s5(2H) apply, so that only a term of imprisonment is appropriate.
69In accordance with s5(2I)(b), in determining whether there are substantial and compelling circumstances that are exceptional and rare, I must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
70Although the level of dangerousness was inherently high according to one test, the very unusual driving risk in this case brings that consideration into focus, and reduces your moral culpability to a low level. It allows for the conclusion that the cumulative impact of the circumstances of the case justify a departure from a custodial sentence.
71The need for general deterrence remains of great importance and underpins the fundamental importance of the need for great care to be taken in the operation of potentially dangerous machinery and components.
72Normally, a prison sentence would be imposed for this type of offence, but I am persuaded that your circumstances can be classified as substantial and compelling circumstances that are exceptional and rare. Accordingly, a prison sentence will not be imposed.
73I have not left out of my consideration that Mr Howard's death was a terrible tragedy which has bought untold grief to his wife, his mother and his children.
74In determining the appropriate sentence after having considered the application of s5(2H), I have taken into account your deep remorse, your hitherto excellent character and your equally excellent prospects for rehabilitation. I have also taken into account the additional heavy burden of anxiety about the very serious threat to your remaining sight, which you would likely experience if imprisoned.
75You have been assessed as suitable for a Community Correction Order and I now impose that order with a conviction being recorded. It will begin today and will last for three years. You will be required to perform 300 hours of unpaid community work. Consistent with the recommendations by the correction's officer, there will be no other conditions other than the usual core conditions which will have been explained to you.
76HER HONOUR: Do you agree to be bound by those conditions, Mr Joveski?
77OFFENDER: Yes, I will be, Your Honour.
78HER HONOUR: I just need to explain that if you were to breach the order, you would be bought back to court to be re-sentenced.
79You must contact the Werribee Corrections Office by telephone by 4 pm on Wednesday and the order will be sent to you straight after this, for you to sign and to return to the court.
80A declaration under s6AAA is not required because of the imposition of a Community Correction Order, but I have given appropriate consideration to the guilty plea and its value to the court and the community.
81Mr Sonnet, are there any other matters?
82MR SONNET: Yes, Your Honour, in relation to licence interference.
83HER HONOUR: Is that under s28 of the Road Safety Act?
84MR SONNET: Yes, Your Honour. I can do a double check.
85HER HONOUR: Is there a mandatory period?
86MR SONNET: Not less than 18 months. The minimum period is 18 months and it's s89 sub-s2.
87HER HONOUR: Thank you. I will make a further order that Mr Joveski's licence to drive be cancelled, and he be disqualified from obtaining a further licence for a period of 18 months.
88MR GWYNN: If Your Honour pleases.
89MR SONNET: If the court please.
90HER HONOUR: Any other matters, Mr Gwynn?
91MR GWYNN: No. Thank you, Your Honour.
92HER HONOUR: Thank you. I'll leave the Bench. I'll leave the link open so that my associate can make the arrangements for the sending of the order to Mr Joveski.
93MR GWYNN: Thank you, Your Honour.
94HER HONOUR: Mr Sonnet and Mr Gwynn, thank you for your assistance in this matter.
95MR SONNET: Thank you, Your Honour.
96MR GWYNN: Thank you, Your Honour.
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