Director of Public Prosecutions v Kirpichnikov
[2016] VCC 1577
•13 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
DIVISION
Case No. CR-15-02214
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| JOSEPH KIRPICHNIKOV | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2016 | |
DATE OF SENTENCE: | 13 April 2016 | |
CASE MAY BE CITED AS: | DPP v Kirpichnikov | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1577 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Devlin | |
| For the Defendant | Mr Morrissey |
HIS HONOUR:
1 Mr Kirpichnikov, you can remain seated at the moment. I am going to state my reasons for sentence of you and then formally sentence you. I will ask you to stand then.
2 Joseph Kirpichnikov, you are to be sentenced for one charge of culpable driving causing death. The maximum sentence is 20 years' imprisonment.
3 You pleaded guilty before me on 4 April. The motor vehicle collision which caused the death of your friend, Michael Berwick, happened on 17 April 2015. Soon after, you declined to be interviewed by police, acting upon advice to exercise your right to silence. However, in December of that year, committal went by hand-up brief. After that you entered a plea of guilty. The matter was then listed for plea hearing in this court.
4 You receive the benefit of your plea of guilty and a high level of cooperation, both from an early stage. I find that you are genuinely and highly remorseful.
5 At your plea hearing, which also ran on 4 April, Mr Devlin for the Crown tendered a written prosecution opening, a folder of photographs depicting the scene and aftermath of the collision, DVD footage of isolated parts of your vehicle of journey prior to the collision and the victim impact statements of Michael Berwick's father, John Berwick, his mother, Vicki Berwick, and his sister, Alexandra Berwick. Mr Berwick read his statement to the court. Mr Devlin read the other two statements.
6 Mr Morrissey QC, for you, tendered a large number of letters of character reference. The letter of your mother, Anna Kirpichnikov, and the reports of your treating psychologist, Dr Mathew Barth, dated 1 June 2015 and 30 March 2016. Mr Morrissey also called family friends, Adam Ramanauskas and Peter Maggs, to give evidence on your behalf.
7 The circumstances leading to and of your offence are comprehensively stated in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter.
8 In April 2015 you were aged 22 and Michael Berwick 23 years. You both lived with your families in Officer and Pakenham Upper. Michael Berwick was a talented and highly promising young man, working full‑time and performing with distinction in a mechanical engineering course at university. You were good friends. In January of that year you had become the owner of a 2003 Holden HSV GTO Monaro, a V8 engine motor car.
9 On the evening and then night of Thursday 16 April you were in the company of Michael Berwick and your friend, Peter Rodgers. At about 10 pm you were at Rodgers' home in Officer. You and Michael Berwick went from there to a nightclub in Narre Warren, arriving at about 11.30 pm. Peter Rodgers was not well and stayed at home. You drove in your Monaro. You met Michael Berwick's girlfriend, Charisse Walton, at the nightclub. The three of you left at about 2.20 am. I find that you were very significantly affected by alcohol.
10 Charrise Walton had offered both of you a lift. Instead you decided to travel in your car, followed by her. Your decision to drive was a fateful one.
11 Walton saw you to accelerate and fishtail down Lauderdale Road, outside or near the nightclub. Soon after, she lost sight of the car. Exact times are not clear. However, it would seem that the fatal collision happened a little less than 20 minutes after you left the nightclub.
12 Shortly before, your car was seen to travel along Brunt Road, Beaconsfield in a northerly direction, apparently above the 60 kilometre per hour speed limit, the engine heard to be revving loudly. It was seen to fishtail and then go off the road. You had lost control and after striking the guy-wire support to a roadside power pole, your car went into the air and landed on its roof. Michael Berwick died at the scene of the collision.
13 Expert accident reconstruction evidence places your speed at about 98 kilometres per hour at or near point of loss of control (when your rear wheels first locked). Blood alcohol testing stated a reading of .171 per cent. The sample was taken at 4.30 am. It was not put to me that your reading was higher at the time of collision.
14 Markedly affected by alcohol, you were driving too fast and lost control.
15 The tendered victim impact statements are powerful expressions of loss and remembrance of a much loved son and brother. Each state in their way the overwhelming sense of grief and personal damage suffered. There are awful memories of discovery of Michael Berwick's death and then the processes and feelings that followed. As each also states, the emotional impact has been immense. It continues and those hurt see no hope of it really going.
16 These statements also, in a poignant and dignified way describe a short but vibrant life which affected and reached many other lives.
17 I am far from complete, my attempt would do little justice to the feelings and loss expressed. The victim impact of your offence has been very great, it must be taken into account of my sentence of you.
18 You are a 23-year-old man who has no prior convictions. You live with your family and are the eldest of three sons. Your family has come from Russia and are strong, active members of the Russian Orthodox Church. It seems apparent that members of your family came here in your grandfather's generation. The picture presented is one of a large, close and supportive extended family, a family which has become a hardworking, good-living part of our community.
19 You grew up in a small farming property, in that loving family. You are active and, I was told, very capable in driving and operating machinery from early teenager.
20 You graduated from school with year 11, although your results were not high. After that you completed a civil construction course and have worked successfully in that industry. You have become experienced and skilled in excavation machinery. This offence and your immediate loss of licence has meant that you have had to leave that employment. Presently you assist your uncle in construction and development of domestic units. It is your ambition to return to construction. Peter Maggs, in his evidence, spoke of your capabilities and potential to train others in heavy machinery work.
21 The evidence tendered presents you as a person of ability and strong work ethic.
22 No criminal record has been filed with the indictment. Mr Devlin made reference to being fined in Queensland in 2013 for a damage property offence. I have presumed that you were not convicted. I shall sentence you as a person of good character. There is much support for that in the wide range of character evidence tendered. There are letters by your family, family friends and younger friends, work associates and an employer, your priest and a teacher. I am perhaps not complete. You are described as reliable, good-natured, loyal, generous and hardworking in all those walks of life. You are also much loved by your family.
23 There is significant reference to the tragic loss of Michael Berwick in that material tendered. I particularly refer to the letter of your mother.
24 You have attended psychologist, Dr Barth on at least 12 occasions since the offending. Upon first attendance in May 2015 you seem to have been very candid about your substance and, more particularly, alcohol use. He states in his 1 June 2015 report a pattern of binge drinking which developed in your late teenage years. He then diagnosed alcohol use disorder.
25 He has diagnosed no other psychological condition. He points to immaturity and unsophisticated social reasoning.
26 In his 2 March 2016 report he states good progress. You have addressed your alcohol use, reporting much lower use and prolonged periods without drinking. This he found consistent with his engagement with you, and testing. He has reported, unsurprisingly, remorse and distress at causing your friend's death. At one point you have stated to him that it has destroyed Michael Berwick's family.
27 That you feel genuine remorse and have addressed your life's pattern is consistent with the character evidence tendered, for example you seem to have moved closer to your family and church.
28 It is almost unnecessary to say that this is serious, tragic offending which has left enduring impact on those close to Michael Berwick. Mr Morrissey also pointed to your immaturity. He stated that your intention on this night was to drink moderately. It is a sadly common proposition and of course, offers no negation. Culpable driving (including in such circumstances as these, committed by the young) is seen as a particular community problem. These factors make relevant the sentencing considerations of deterrence, particularly general deterrence the moral culpability of your decision to drive and how you did so, that I must sentence in a way to condemn that and the need for proportionate punishment.
29 General deterrence is a particularly important sentencing purpose. The young, especially young men, must be deterred in order to protect the community. Young men must learn at least to strategise to avoid what happened here. In my view, your car should have been nowhere near that drinking venue.
30 I have been directed to and take into account relevant mitigating and moderating factors. These include the following.
31 (1), Your plea of guilty and cooperation.
32 (2) , Your remorse, which as stated, I find genuine and strongly felt. I was told that you have written to Michael Berwick's family.
33 (3), Your good character.
34 (4), Your youth and prospects for rehabilitation. I see these as high. You have good family support, ability and a good work ethic. Your response to what you have done is also relevant.
35 It is well-established that such matters, whilst still relevant and perhaps particularly in your case to the minimum term I impose, moderate sentence to a lesser extent in this category of offence. They are not uncommon factors in what is seen to be a prevalent form of the offence. Further, such personal factors must stand against the predominant sentencing purpose of general deterrence.
36 Accordingly there must be a significant sentence of imprisonment, albeit imposed upon an otherwise promising young man. Not only do the adverse sentencing purposes I have identified such as deterrence, require that. The sentence must also reflect the tragically unnecessary loss of a young life.
37 Balancing these considerations in a case like this is extremely difficult. My sentence will not meet the loss and grief suffered by Michael Berwick's family and others who no longer have him. I recognise that.
38 Doing the best I can to balance and weigh the relevant matters, I sentence you as follows. Stand up, please.
39 On one charge of culpable driving you are sentenced to six years' imprisonment. I set a minimum term before eligibility for parole of three and a half years. Under section 18, I declare pre-sentence detention of ten days. I am required to state a disqualification period of your licence.
40 I have presumed that Mr Kirpichnikov's licence was taken from him immediately upon ‑ ‑ ‑
MR DEVLIN: Section 52 was imposed. The answer is yes.
HIS HONOUR: Yes. Is that therefore the date of the offence?
MR DEVLIN: I'll just check the date. The date of the interview, Your Honour, which I need to check.
41 I propose imposing a disqualification period, attempting to reflect the seriousness of this but also bearing in mind that I am imposing a significant sentence of imprisonment and a significant minimum term. I do not propose imposing an unduly long disqualification period. I think after serving the sentence he has, I think the community's best interest is served by Mr Kirpichnikov having access to a licence to assist his rehabilitation.
42 I therefore intend imposing - I would hear argument or submission about it, a period of four years but running from April or May of last year.
MR DEVLIN: 15 May 2015, Your Honour.
43 That four years runs from that date, he will be on my arithmetic, able to apply for a licence upon his parole release.
44 Had you not pleaded guilty, I would have imposed a sentence of eight and a half years with a minimum term of six years.
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