Director of Public Prosecutions v Kelso

[2014] VCC 1751

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01466

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEIRON KELSO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 October 2014
CASE MAY BE CITED AS:	DPP v Kelso
MEDIUM NEUTRAL CITATION:	[2014] VCC 1751

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Ellwood
For the Accused	Ms M. Tittensor

HIS HONOUR:

1Keiron Thomas Kelso, you have pleaded guilty to one charge of dangerous driving causing death.  That crime carries a maximum penalty of ten years' imprisonment.

2You are 33 years of age.  You pleaded guilty to a settled indictment and you must get the benefit of that.  I accept that your plea of guilty was accompanied by remorse, and indeed you have been in a state of remorse over this matter since the day it occurred.  It has had a long term effect on you.  You must also get the utilitarian benefit of that plea of guilty.  This is a situation where you could have chanced your arm, so to speak, in terms of having a contest, though then you of course may have faced a more serious charge.  You made admission in your record of interview.

3The circumstances of this plea are that you were not charged for 12 months, and I take into account that that is a long period of time to be waiting to know whether you are even going to have to face the consequences of what you did.

4In so far as prior convictions are concerned you have a lengthy criminal history, but it appears mainly to relate to substance addiction.  And whilst you do have matters of driving, including a careless driving and one significant speeding matter, the others are not such as to cause great concern.  The fact is of course though that you are no stranger to the court system, and indeed, as I think I said a few minutes ago, you have been on Community Based Orders since you were a boy.

5The circumstances of the offending are contained in the prosecution opening, which I annexe to my sentencing remarks.  I will simply read the first part of it and then very briefly summarise the balance.

6In the afternoon of 9 June 2013 Mr Alexander Nitilkowski and his wife Slovedanka Nitilkowski were driving from their home in Altona Meadows to visit their eldest daughter.  They were both aged 73 years.  They did that several times a week and would stay for half an hour or so.  After that they got into their car and commenced to drive home.

7Mr Nitilkowski was driving the route he usually took which incorporated Millers Road in Altona.  He was driving north on Millers Road in the left hand lane of a two lane northbound carriageway.  He estimated he was travelling at the appropriate speed of 60 kilometres per hour and his wife was sitting in the front passenger seat.

8At about 5 pm as he approached for what was a slight left hand curve his car was suddenly stuck on the front passenger side corner by a vehicle driven by you.  Your car had been travelling south on Millers Road on the other side of the dividing median strip when you lost control, veered across the median strip and hit Mr Nitilkowski's car.  Mr Nitilkowski told the police:

"All of a sudden I heard a bang come from the left side of my car and I remember the airbag blew up in my face.  I then looked to my wife and I could see that she was gone.  Her head was leaning over to one side.  I called out her name a few times but she did not respond.  I could see that her colour had changed and she was pale."

9Mrs Nitilkowski died at the scene despite the attempts of paramedics and firefighters.  Mr Nitilkowski was taken to the Royal Melbourne Hospital where he remained for a day.  There is no charge in relation to him.

10Your driving had been observed by a number of other road users in the minute or so - I am changing the Crown opening slightly there because of what I was told during the plea - leading up to the loss of control.  You were driving a Ford Falcon which belonged to your then girlfriend.  You had left her house in Laverton after spending the afternoon at the zoo with her and her children.  You had some alcohol but I do not take that into account in this sentencing process.

11You drove along Kororoit Creek Road, towards Millers Road.  Prior to reaching Millers Road you were observed to be speeding.  One witness said:

"I reckon he was doing 80 kph."

12You then accelerated up to 100.  That was opposed to the 60 kilometre per hour zone.  You turned right at the Millers Road intersection, heading south, and accelerated away.  The witness, Ashley, said:

"My mother went through the roundabout following this car.  She was doing about 40 k's per hour and the silver car was going about 80 k's per hour, pulling away from us very quickly."

13You accelerated past a vehicle in the left lane then crossed into the left lane and passed a slower vehicle in the right lane.  A Lauren McCarty was the driver of one of those cars overtaken and she said:

"I saw a silver car in my lane coming up fast from behind very quickly.  I was driving at about 60 kilometres per hour and could see it was approaching fast.  I couldn't tell what speed he was coming from behind, but when he drove past me I'd say he was going about 90.  What I could tell, he seemed to be getting faster and faster as he was driving along."

14You also passed a Mr William Myle.  He said:

"When the vehicle went past I estimated it was travelling in between 100 to 120 kilometres per hour.  It was driving at freeway speeds."

15You were also seen to be steering from the right lane to the left in an erratic manner, causing the vehicle to almost lose control.  It was in one such manoeuvre, steering from the left lane to the right, that you lost control, left the southbound carriageway, crossed the median strip and drove into Mr and Mrs Nitilkowski.

16The police reconstruction expert said that at the time of loss of control you were travelling at a minimum of 99 kilometres per hour.  There was nothing in the road conditions to give cause to this accident.  It was bitumen in excellent condition, it was dry, the weather was fine, visibility was excellent and it was still light.

17Your vehicle came to rest on the grass verge of Millers Road and you were helped out of the car by passers-by.  The opening says that you made conflicting statements as to what had happened to those people in the period after the collision.  Because of your state of shock, which is described later, I draw no adverse inference from that.

18You refused to go to hospital and told paramedics at the scene that you may have had a seizure or a blackout before the collision.  You were breathalysed, and as I have already said, I am not concerned about that.  You, essentially when speaking to police, said that you did not know whether you had a seizure.  You described the onset of what you said was a panic attack.  You said you had had seizures before and that you had not had your medication, and you agreed that you should not have been driving.

19You said that you remember driving along Millers Road before you had a blackout or seizure, and you thought you were driving about 60 to 80 kilometres an hour.  You, in that interview, expressed real concern about the person who had died, and I accept that that remorse is genuine, as I have already indicated.  On a number of occasions during the interview you have referred to that, and again your past, your conduct since, confirms that that was in fact the case.

20There was then a lengthy delay, and I am not being critical at all for that because I had the reasons explained to me before you were charged.  During that period of time investigations were made and a report was obtained from Dr O'Dell as to the likelihood or possibility of either a seizure or a panic attack.

21You have pleaded guilty so neither of those gives rise to a defence.  On the material before me where you were actually speeding and manoeuvring the vehicle I find that the chances of a seizure are remote, as Dr O'Dell says, and I do accept this from his qualifications; that you would not have been able to respond to the road environment.

22In so far as panic attack is concerned I am prepared, obviously in such a situation, to give you the benefit of the doubt.  You have had panic attacks before, and the material supports that, and Dr O'Dell opines as to what the consequences of a panic attack might be.  As I indicated during the course of the plea it is not, in my understanding of panic attacks, that they cause amnesia, sometimes the direct opposite where the memories are very clear indeed.

23Also, you described to the police that you thought you were driving normally.  In the circumstances of a panic attack, again I accept what Dr O'Dell says, that you would have been aware as to that and you were trying to escape, given the situation.  You, at no stage as I understand it, told the police that you were trying to get away from any threatening circumstance or anything along those lines.

24There was some discussion that took place as to whether the principles of Verdins, in so far as moral culpability, apply in your given circumstances.  The fact of the matter is that in my view they do not, per se, though the material gives rise to the argument that it is of real significance in this sentencing process.

25You were clearly aware that - if what you tell the police was correct, and this is all self-reporting - that you were in the onset of a panic attack.  You were aware of, obviously, what the consequences of that could be in terms of your capacities, and yet you continued to drive.  If it had been a seizure the moral culpability, I think if you had continued to drive, would have probably been even worse.

26The Court of Appeal has, in recent times, dealt with the question of continuing to drive in circumstances which you are aware of, or know to be dangerous, and I have indicated that I think it is a circular argument to say that therefore reduces your moral culpability.

27I have, as I will indicate in a moment, taken all those circumstances into account in general mitigation, but I have made this clear a number of times in recent times; I think that the principles in Verdins are regarded as having been fulfilled far too lightly in some situations, but it is not to say that it would have made a significant difference to this sentence.

28I do find in your particular circumstances that specific deterrents are probably not of real relevance.  General deterrence; it is to stop people driving when they are aware that they are in a dangerous situation, or a dangerous set of personal circumstances.  We discussed during the plea the concept of fatigue driving, and the like.  The general deterrents are not directed towards a person who is in fatigued driving, they are directed towards a person who is contemplating doing so, and I think that whilst we still take all these matters into account, overall I think that that particular head is not met.

29I do find, however , that you have to undergo a significant sentence of imprisonment.  You will find that, I have no doubt, very difficult with the problems that you have.  There is some variance between the medical material that is before me as to the seriousness of various matters, but I do accept that you have very significant depression.  I accept that you will undergo imprisonment in circumstances where your family will, in all probability, be far from you, and you may have less or very few visitors.  It would clearly be, I think with your anxiety disorder and depression, more onerous for you than it would be for a normal prisoner, whatever that is supposed to be.  So I do take that into account in looking at this matter.

30The offence has to be regarded as serious, and I would not have contemplated a non-custodial disposition.  I think a custodial disposition with a not token custodial element is the only disposition that is open.  Why this sort of offending is regarded as so serious, and why it nearly always calls for a gaol sentence, is really recounted in the victim impact statements of the family of the deceased lady.  One of them was read out in court, and succinctly put what has occurred to this family.  I know that this was not intended conduct but that is not who the sentences are directed at.  Having read those victim impact statements a number of times a close, migrant I assume, family, has been effectively blown apart.  An old man who had been inseparable from his wife for 50 years will now spend the rest of his life alone.  The children and the grandchildren are aware of that and they have great concerns for their father.  They now go to a house, which was once full of happiness, which is now full of memories of where their mother is no longer there, and they virtually imagine, as I have indicated, that she will suddenly come round a corner.

31The consequences of your driving have been dramatic indeed - I think it is fair to describe them as dreadful - and that is often the circumstance.  The grief, the massive sense of loss, and the anger of the family is evident.

32To their great credit, and to your credit, you have written a letter apologising for your conduct and expressing concern for how they feel.  The response has been that they are grateful for receiving the letter, but it will not bring their mother back, and unfortunately that is the grim reality of all this.  Gaol sentences are imposed in these matters to try and stop people killing each other.

33The sentence I have ultimately decided to impose will be one of custody followed by a Community Corrections Order.  I am well aware of the recent legislation that has been brought into effect in that regard.  I then look at matters personal to you.

34It is often the case with this sort of offending that the person has no prior convictions of any description at all.  It does not really avail of them a lot but I obviously have to look at your overall set of circumstances.  I have reports before me from the medical people down in Ararat, where you have now been staying for about a year, or in Stawell.  I have a report from Grampians Community Health and I have a number of references from people who know you.

35I think - and I do not say this in any way ironically - that the letter from your mother probably describes you better than any of the professionals did.  It describes your upbringing, it describes how your parents separated when you were younger, and that your biological father was a violent man.  What effect that has had is problematic.  As a boy you were very good at football and did well at school.  You then met a girl who was older than you and more worldly, and at the age of 16 you left home to live with her.  By the age of 17 you were a drug addicted father.  To your credit you have tried to support that child, and in more recent times been in more regular contact with him.

36Over the years, as a result probably of your drug use and the milieu in which you mixed, you have contracted liver disease.  Gaol can certainly handle that.  You developed what is described by your mother as anti-social behaviour, chronic anxiety and depression.  You have been placed on various medications, some you were on for years, she says, which have been prescribed over a six month period.

37She points out that from being a young person who was good at school and good at footy, you have lost most of your friends due to your habit.  You have shown intelligence over the years.  I note that Ms Lechner regards you as lower than average.  During the late 2000s your grandmother's health began to decline.  She was looking after a handicapped uncle and you spent a lot of time looking after them.

38In the time leading up to this offending you had been on many different court dispositions, you had had treatment which had been stopped and started, you were on Xanax and you had not taken that for a few days beforehand.  You knew what the effect of that might be.

39What had happened was that you had been living in a house with your grandmother.  In the months preceding this occurring there had been a dispute over the will with the state trustees.  The house was going to be sold and you could have become homeless.  You were able, however, to get a job, which you had for around two years, and that job is now gone.  You ultimately lost your driver's licence because of the circumstances surrounding this offending, and basically, as I understand it, the job went with it.

40You had reached, by August of 2013, a very low point.  Your then girlfriend rang your mother and asked her to come and get you.  She said that you were dirty, your skin was a mess, you were skinny and sick, you were not eating or sleeping, and that you were depressed and over-medicating.  I am told from the Bar table, and I think it is in the materials and I accept it, in any event, that you had also lapsed into heroin use during that period of time.

41Your mother went and collected you, as mothers do, and saw that you were visibly withdrawn, distressed and unwell.  She, being a former nurse, has put into place a - with your assistance obviously, and your intention - a rehabilitation program.  I have read the report from Grampians Community Health and you have clearly, over this period of time, endeavoured to get yourself back on track.  You have continually expressed remorse and an understanding of what the occurrences have been for the victim's family.

42I think in a situation such as this I simply say, without quotes from the medical people, that I accept that you are depressed, and those are the consequences that I have outlined, and I accept that as a result of this you have suffered a great deal emotionally, but that there is attempts for rehabilitation being put in place, and I will make it clear that I have read all the material that has been tendered.  That includes the report of Ms Lechner.

43There seems to be suggestions in some of it that this accident was caused by a seizure.  I do not, as I have indicated, accept that.  A lot of the treatment has related to a seizure, and as I say that is not something that I am taking into account other than in that you would find it more difficult in gaol, and your overall circumstances.

44In other words, as I indicated to your counsel I take into account that you have put your hand up to this when you did not have to.  You have clearly had a difficult and hard existence.  You have laboured for a long time with emotional problems and drug problems.  You would appear to be in the situation where, with your mother's assistance and the local community, it would seem in the Western district you are endeavouring to rehabilitate.

45All those things go in your favour, but they have to be balanced against a dead woman brought about by your driving, hence yours is a situation where I have sympathy for your circumstances, as unfortunately I feel I often have in these particular matters, but general deterrence demands that this cannot be left unpunished and left without warning to others to what can occur.

46Accordingly, on the charge you are sentenced to be imprisoned for a period of 12 months.  You are, if you agree, to be placed on a Community Corrections Order which will be of two years duration, and will have in it the conditions of drugs, mental health and supervision.  I think to put in work hours would be gratuitous.

47If you agree to enter into such a Community Corrections Order upon your ultimate release I will tell you this now, before you do so.  If that Community Corrections Order is breached and I am called upon to re-sentence you, you will be sentenced to years, and I make no secret of that.

48I say that pursuant to s.6AAA of the Sentencing Act - even though it is not, strictly speaking, applicable here because of the fact that there is a Community Corrections Order involved - but for your plea of guilty - just so you understand the benefit that you have obtained for yourself and your family - I would have sentenced you to be imprisoned for a period of three years with a minimum of two.

49The Community Corrections Order will obviously be with conviction, which is of no real significance in your situation.  I direct that any licence to drive a motor vehicle be cancelled and that you be disqualified from obtaining any licence for a period of 18 months, but I direct that that disqualification be backdated to 1 October 2013.

50MS TITTENSOR:  As Your Honour pleases.

51MR ELLWOOD:  As Your Honour pleases.

52HIS HONOUR:  All right.  Do you want to get him to sign that?

53MS TITTENSOR:  May I approach my client?

54HIS HONOUR:  Yes, of course.  And you'll need to get this signed.

55MR ELLWOOD:  The only matter remaining, Your Honour, is the 464ZF application that was made?

56HIS HONOUR:  Yes that's right, I forgot about that.  Sorry.  Have you got one there?

57MR ELLWOOD: No, we haven't.

58HIS HONOUR:  Got the custodial one?

59MR ELLWOOD:  We could send one through to Your Honour's associate?

60HIS HONOUR:  Yes.  I can do it in chambers but I have to warn him.

61MR ELLWOOD:  Yes.

62MS TITTENSOR:  Thank you, Your Honour.  My client's just feeling slightly ill, he was ‑ ‑ ‑ 

63HIS HONOUR:  No I realised, I was warned about that.

64MS TITTENSOR:  He was quite sick over lunch time, Your Honour.

65HIS HONOUR:  No I was warned about that, but I can't sentence him absenter, that's all.  Unless he's Tony Mokbel.  All right that order's been made.  Now, 464?

66MS TITTENSOR:  May I approach quickly again?

67HIS HONOUR:  Yes.  Well I can ‑ ‑ ‑ 

68MS TITTENSOR:  I apologise.  I don't anticipate it'll be a problem.

69HIS HONOUR:  No.  Just - it'll be saliva only.

70MS TITTENSOR:  Yes.  No objection, Your Honour.

71HIS HONOUR: Right. I order pursuant to s.464ZF of the Crimes Act that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to comply with the request for same police may use reasonable force to take it from you.  All right, nothing else we need?

72MR ELLWOOD:  No, Your Honour.

73MS TITTENSOR:  No, Your Honour.

74HIS HONOUR:  Thanks.

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