Director of Public Prosecutions v Koko

[2023] VCC 2115

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00386

DIRECTOR OF PUBLIC PROSECUTIONS

v

MADIBU KOKO

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2023
DATE OF SENTENCE:	3 November 2023
CASE MAY BE CITED AS:	DPP v KOKO
MEDIUM NEUTRAL CITATION:	[2023] VCC 2115

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — guilty plea. Charges – dangerous driving causing serious injury (1 charge), recklessly causing injury (1 charge).

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Neethling (2009) 22 VR 466

Sentence:                  Total effective sentence of 2 years and 7 months imprisonment with a non parole period of 1 year and 6 months.

Section 6AAA declaration: But for the plea of guilty to these offences, would have imposed a sentence of 4 years imprisonment with a non parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr McCarthy	Solicitor for the Office of Public Prosecutions
For the Accused	Dr Alexander	Janice Quan and Associates

HER HONOUR:

1Madibu Koko, you have pleaded guilty to one charge of dangerous driving causing serious injury for which the maximum penalty is 5 years' imprisonment. One charge of causing injury recklessly for which the maximum penalty is also 5 years' imprisonment and one charge of possession of a drug of dependence for which the maximum penalty is a term of imprisonment of one year in circumstances where the court is satisfied on the balance of probabilities that the possession is not for trafficking purposes, which is the case here.

2You have also pleaded guilty to the summary charges of driving without a licence for which the maximum penalty is 60 penalty units or 6 months imprisonment and driving with a prescribed concentration of a drug in the blood for which the maximum penalty in your case is 12 penalty units.

3Tendered on your plea as Exhibit 1 was a summary of prosecution opening which sets out fully the agreed facts and circumstances of your offending.

4Also tendered was CCTV footage depicting the moment of collision.

5In brief terms your offending was as follows.

6On 14 December 2021 you were driving. You had three passengers. You were unlicensed. Sometime shortly after 6 pm you were observed by police travelling at a fast speed on Gordon Street, Maribyrnong and driving in a dangerous manner. Police made the decision to follow your vehicle. When you saw the police vehicle you increased your speed. You travelled at a dangerous speed up Birdwood Street to an intersection at Merlyn Street and Allara Avenue.

7At this time Ms Mai To who had just moments earlier left her home in her vehicle with her 5 year old daughter restrained in the back seat, entered the intersection. You entered the intersection at speed, without giving way and driving over a raised concrete roundabout and collided into the rear driver's side of Ms To's car.

8The impact of the collision caused Ms To's car to rotate in a clockwise direction, slide over the nature strip and collide into a fence.

9Your vehicle rotated counter clockwise and struck a parked car which was 16 metres from the intersection.

10The speed limit was 50 kilometres per hour in an urban residential area. It is estimated you were driving at a speed of around 102 -110 kilometres per hour at the point of impact.

11The particulars of your dangerous driving are you were unlicensed, you were driving at speed, and you failed to give way in the intersection, and you failed to maintain proper control over your vehicle.

12Police attended the scene. You were in possession of 45 pills of Xanax branded Alprazolam. (Charge 3 – possess a drug of dependence).

13A blood sample was taken from you. Subsequent toxicological examination detected 8 nanograms per millilitre of Delta-9-tetrahydrocannabinol in your blood. (summary Charge 8)

14Ms To and her daughter, Emilia were both injured. Emilia was seriously injured.

15Ms To suffered the following injuries.

·A fractured sternum – that was managed non-operatively with pain relief;

·Bruising to the right side of the head, swelling to the left eye and right knee;

·Lacerations to the right side of the head and abrasions to the central chest and right hip.

16Ms To was released from hospital on 15 December 2021 with pain medication. The pain from the sternum injury was expected to last 8 -12 weeks. Ms To reported pain on heavy lifting as at January 2022.

17Emilia was admitted to the intensive care unit at the Royal Children's Hospital on 14 December 2021 and was transferred to rehabilitation on 22 December where she remained until she was discharged on 13 January 2022.

18She suffered the following serious injuries.

·Traumatic brain injury requiring intubation

·Impaired consciousness.

·Multiple haemorrhages.

·Paralysis to the left side of the body.

·Swallowing difficulties which required her to be treated with a feeding tube.

·Ligamentous cervical spine injury (abnormality without a fracture) which required Emilia to wear an Aspen collar for 3 months.

·A laceration to the right cheek which required plastic surgery.

·Abdominal bruising.

·Cognitive Impairment (she suffered post traumatic amnesia for 2 weeks).

19Emilia required treatment including physiotherapy, occupational therapy, speech pathology and neuro psychology. At the time of discharge from hospital Emilia continued to have cognitive fatigue, memory, concentration, and attention difficulties.

20Updated medical material concerning Emilia was tendered.

21A report from the Royal Children's Hospital dated 2 February 2022 – 13 months post injury – states that Emilia was experiencing ongoing cognitive and emotional issues but had returned to school full-time although she was experiencing fatigue. Emilia had made a good physical recovery but was still experiencing anxiety. Her facial scarring was being treated with silicone gel. She was still experiencing some weakness to the right side of her body. There were still some issues with her speech, and speech pathology was recommended. She required ongoing monitoring and support, including neuropsychological monitoring, and monitoring of her emotional regulation. A review was recommended for mid-2023.

22You were interviewed by the police on 17 December 2021. You told police you panicked when you saw the police car because you had no licence. You told police your mother had cancer and had had an operation that day and that you were not 'in a right state of mind'.

23I turn now to the victim impact statement.

24Ms Vo has made a statement about the effects of Emilia's injuries on Emilia and her and her husband. She says, 'Seeing my 5-year-old daughter on life support with cuts and bruises all over her body was the most painful moment in my life. Emilia's suffering from her life-threatening injuries, caused tremendous pain, distress and grief to our family'.

25She says at one point she and her husband feared that Emilia may be confined to a wheelchair. She says Emilia's journey to recovery has been slow and hard especially for a 5 year old child. She says, 'Because of her brain injuries, Emilia experiences cognitive difficulties, impairing her ability to learn and function at school and at home. She suffers from a dysfunctional fear of being left alone even just for a few seconds. Every day I see Emilia struggling with her emotions, she displays outbursts of uncontrolled anger, sadness and anxiety'.

26It is clear that although the updated medical material shows that Emilia has made a better than originally anticipated recovery and is back at school, her recovery is far from complete, and she and her parents have suffered considerable anguish because of your offending, and I take that into account in the sentence I will impose.

27I turn now to your personal circumstances and in outlining your background and current presentation I rely on the submissions of your counsel and also to the report of Dr Paul Grech, consultant clinical psychologist, dated 12 October 2023. You were assessed by him on 18 September 2023.

28You were born in January 1995. You are from Sudan. You arrived in Australia with your parents in 2002 after spending time in Egypt waiting for your refugee visas. In Australia your father worked as a pastry chef and your mother worked as a home keeper.

29You are the eldest of a siblingship of four. You have a younger brother and two younger sisters.

30You started school in Australia when you were 7. You completed your schooling in 2018 when you completed Year 12 at the Simonds Catholic College in Fitzroy where you did the VCAL, which is the vocational equivalent of the VCE.

31You completed a 6-month certificate in carpentry after you finished school. You got an apprenticeship with a carpentry business and completed your first year of your apprenticeship.

32In August 2014 you went out with friends. You were at this time 19 years old. You started feeling unwell and you went home early. You took some Panadol and went to bed. You woke up at 4 am and collapsed. Neither you nor your parents knew what to do. An ambulance was called at 8.00 am. You collapsed before the ambulance arrived and went into a coma. You were in a coma for 7 days. You had contracted a meningococcal sepsis infection. When you awoke from your coma you were told you required a left leg below the knee amputation. You have suffered further very serious health problems secondary to the meningococcal sepsis in 2014. You have end stage renal failure and require dialysis three times a week for 5 hours at a time. You had a kidney transplant in 2018 which greatly improved your quality of life, but the transplant failed and the kidney was removed in 2020.

33You have heart disease and experienced cardiac arrest in September 2022. You have an automated implanted cardioverted defibrillator, which I understand is a pacemaker, inserted in October 2022 which prevents sudden cardiac death but you are still at risk of worsening heart function.

34You require ongoing specialist care for your heart and kidney function. You had an episode of pericarditis secondary to a COVID-19 infection or vaccination. You require a suite of medications.

35Your psychiatric history is limited to a single episode of psychosis in 2020 in the context of using cannabis during a COVID infection. You use cannabis intermittently. You told Dr Grech you did not particularly enjoy it, but you used it as well as Valium and Xanax to manage your phantom pain and stress.

36After you became unwell you were able to obtain some employment in security. You are currently working 3 days a week doing traffic control. You have an NDIS plan in place which started on 29 August 2022 and will be reviewed on 28 August 2024.

37Your mother died of cancer on 27 March 2022. She had been seriously unwell since around October 2021. You were understandably distraught.

38You told Dr Grech that you had driven on the day in question because your mate who had been driving became ill with food poisoning. You said you panicked when you saw the police. You said you felt sick when you saw the young girl taken to the ambulance and you thought she had died.

39You wrote a letter of apology to the victims and to the Court. You said, 'I know that words alone cannot undo the harm I have caused, and I do not expect forgiveness from Ms To or her family. However, I wish to say from the very bottom of my heart, I apologise to the family for what I have done.'

40You have a criminal history for unlicensed driving and speeding. You have further driving matters pending. I am told apart from your poor driving history you are otherwise a decent and good-natured young man who has faced with considerable braveness the shocking deterioration of your health and all its associated consequences which occurred when you were only 19.

41I received character references to this effect from Mr Omar Mohammed, Markarius Harik and Ikhra Wasame who have all known you for some years.

42Dr Grech gives the opinion that a term of imprisonment would be onerous and extremely challenging for you with your serious health problems. He notes the significant interruption that would occur to the continuity of your care. One of your treating doctors, Dr Daniel Wong, also wrote a letter on your behalf in which he says:

'I believe it would be very difficult for him to receive the same level of care in custody. First, it would mean a loss of access to my clinic and the GPs here who have known him many years (particularly Dr Karen Linton). Secondly, I believe there is a high risk it would interrupt his continuity of care with his long-term dialysis and nephrology team. Most importantly for his prognosis I believe him being incarcerated would mean he would be extremely unlikely to be waitlisted for a renal transplant'.

43Dr Wong says on your cardiac issues:

'In general someone with this condition would have a very high 5 year mortality, but he is protected from sudden cardiac death by the presence of his implantable defibrillator. Even with the defibrillator, there is a risk of worsening heart function which can subsequently be very life‑limiting'.

44I turn now to the submissions of the parties.

45And I begin with the submissions of your counsel, Dr Alexander. He relied on the following matters in mitigation.

46First, he relied on your plea of guilty. You indicated your preparedness to plead guilty as early as 29 July 2022 and you entered your plea of guilty on 20 October 2022. Dr Alexander submitted your plea of guilty has significant utilitarian value and represents a genuine expression of contrition and remorse on your part, in conjunction with your other statements of remorse.

47He submitted your plea entitles you to a sentencing discount as discussed in the case of Worboyes.[1]

[1] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)

48Secondly, he relied on your ill health and the increased burden of imprisonment occasioned by your ill health. He submitted the medical material established the continuity of your care would be disrupted which, as well as causing you considerable anguish, would place you at risk given the complexity of your various conditions. You may also lose the opportunity to go on the wait list for a further renal transplant while you are in custody.

49Dr Alexander acknowledged the gravity of your offending and the serious nature of the injuries suffered by Emilia and also the injury to Ms To. He acknowledged that your poor driving history was an aggravating circumstance.

50In his written submissions Dr Alexander submitted that all the various sentencing objectives could be met by a lengthy correction order. However, in oral submissions he accepted that the only appropriate sentence was a term of imprisonment.

51Mr McCarthy for the Director submitted that the only appropriate sentence for the driving offences was a term of imprisonment consisting of a head sentence and a non-parole period. He submitted there is a significant need for general deterrence for driving offences of this type and referred me to the authorities which discuss how the message of general deterrence is importantly directed at young drivers who have the tendency to drive dangerously, and consequently the youth of an offender must be given relatively less weight.[2] 

[2] DPP v Neethling (2009) 22 VR 466, 477 at [55]

52He submitted in accessing the objective gravity of your offending the salient features were your high speed in a residential area, that you were unlicensed, your dangerous driving was over a period of time from when police observed you in Gordon Street until the point of collision and that your victims suffered significant injury, especially Emilia.

53I turn now to my own assessment of the objective gravity of your offending and your moral culpability.

54This was serious offending. You were observed to be driving dangerously by police prior to the collision. In response to being followed by police you drove at a very high speed in a residential area. You entered a roundabout without giving way. You injured two people including a 5-year-old child who suffered serious injury. It is fortunate the Emilia has made a good recovery, but she still suffers the ongoing effects of your offending and her parents I am sure will remain profoundly affected by the shock of and distress of Emilia’s injuries and her initial prognosis which included concerns that she may be confined to a wheelchair. All this could have been avoided if you had just accepted that you could not drive when you were unlicensed. I accept the submission of your counsel that apart from your driving history you are otherwise a decent young man who has endured your own very serious setbacks and sorrows, but this cannot excuse what you have done and the fact that you continued to drive unlicensed is an aggravating circumstance of your behaviour and your moral culpability is high.

55The sentencing principles of general and specific deterrence, denunciation, just punishment and community protection are all engaged in sentencing you.

56I take into account your plea of guilty. Although we are of late in a position where the backlog of cases which accrued during COVID has cleared, your plea was entered before this and therefore I sentence you in accordance with the principles set out in the case of Worboyes.[3]

[3] ibid

57I accept you are deeply remorseful and ashamed of your offending. Hopefully now you will realise that you simply cannot drive unlicenced and you will never behave in this way again. I regard your prospects of rehabilitation as good.

58I take into account your very significant health issues. Although as I discussed with your counsel at your plea, I am satisfied you will be able to receive the care you need in prison, given the prison system operates on the principle of community equivalence where prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health system. I accept however that you will suffer some distress by the disruption of the continuity of your care by practitioners you know and trust. I take that into account in sentencing you. Whether you will lose the opportunity to go on a wait list for a kidney transplant remains in my view speculative and I disregard that matter.

59Taking into account all the matters I am required to under the Sentencing Act 1991 (“the Act”) and matters personal to you I intend to sentence you as follows. You need to stand now, Mr Koko.

60You are convicted on all charges indictable and summary.

61On Charge 1 you are sentenced to 2 years' imprisonment.

62On Charge 2 you are sentenced to 1 year imprisonment.

63On Charge 3 you are convicted and discharged.

64On summary Charge 7 you are sentenced to 2 months' imprisonment.

65On summary Charge 8 you are fined $200.00.

66Charge 1 is the base charge. I make the following orders of cumulation upon that charge and upon each other; 6 months of the sentence on Charge 2 and 1 month of the sentence on summary Charge 7.

67The makes a total effective sentence of 2 years and 7 months' imprisonment.

68I direct that you serve a non-parole period of 1 year and 6 months.  You can sit now, Mr Koko.

69Pursuant to s18 (4) of the Act, I declare you have served nil days of the sentence I impose.

70Pursuant to s6AAA of the Act, but for your plea of guilty I would have imposed a sentence of 4 years with a non-parole period of 3 years.

71In terms of orders on your licence, Charge 1 is a serious motor vehicle offence and requires a minimum disqualification of 18 months. I disqualify you from driving for a period of 2 years commencing today.

72On summary Charge 8 has a requirement of a licence disqualification for a minimum period of 6 months for a first offence, which is the case here. I disqualify you for a period of 6 months from today.

73The effect of this Mr Koko is that if you obtain parole at the earliest opportunity there will be a period of disqualification after your release from custody.  That is not an order I normally make as I understand the importance of holding a licence in the community, particularly when you have serious health issues such as you do, but your history of unlicensed driving is simply too serious and there needs to be some punitive effect in terms of your licence.

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