Director of Public Prosecutions v Koukoulis

[2019] VCC 620

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00835

DIRECTOR OF PUBLIC PROSECUTIONS

V

GEORGIOS KOUKOULIS

---

JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2019
DATE OF SENTENCE:	3 May 2019
CASE MAY BE CITED AS:	DPP v Koukoulis
MEDIUM NEUTRAL CITATION:	[2019] VCC 620

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW
Catchwords:              Dangerous driving causing death
Legislation Cited:
Cases Cited:

Sentence:12 months imprisonment, 2 year CCO and 3 year licence cancellation and disqualification

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Hutton	Office of Public Prosecutions
For the Accused	Mr M. Dempsey (plea) Mr S. Pica (sentence)	Pica Criminal Lawyers

HIS HONOUR: 

1Georgios Koukoulis, you have pleaded guilty to one charge of dangerous driving causing death.  This has a maximum penalty of 10 years' imprisonment and I am required to cancel and disqualify you from driving on Victorian roads for a minimum period of 18 months.

2Tendered on the plea hearing was a prosecution summary of the circumstances of your offending.  This was marked as Exhibit A, in conjunction with CCTV footage from both inside and outside of the vehicle that you were driving.  Having regard to the fact that these exhibits exist, I will summarise the circumstances of your offending somewhat more briefly.

3You were a bus driver, having commenced your shift at around 7.30 am on 7 September 2017.  You were rostered to drive a bus which ran along the Mordialloc Shopping Centre to Mentone Railway Station and you were ultimately due to cease your shift at about 7.30 that evening.

4At around 4.40 pm, you arrived at the Mordialloc Shopping Centre on the Centreway, Mordialloc.  Two passengers left your bus and shortly afterwards you drove off in a westerly direction towards Beach Road.  As you were driving along Centreway you were using your left hand to touch what is known as a destination board, namely a control panel which is used to control bus information signs.

5At around this time your victim, Mr Jing Ge, who was aged 67, was walking along the northern footpath of Centreway and was approaching the intersection with Beach Road.  When he reached the northeast corner of the intersection he stopped at a red traffic light.  He was intending to cross Beach Road towards the beach, that is in a westerly direction.  At this time he was standing on the northeast corner of the intersection.

6Beach Road runs in a north-south direction with two marked lanes provided for travel in each of the northerly and southerly directions.  The Centreway terminates at Beach Road.  The intersection is a crossroad, controlled by traffic lights, which allows for a continuation of Centreway to be used by vehicles travelling into a beachside car park to what is known as the Peter Scullin Reserve.  You drove the bus to the intersection with Beach Road and you were facing the same red traffic control signal as Mr Ge.  He was situated on the footpath on the opposite side of the intersection to you, not a great distance from where your bus was stationary.

7You had been stopped for about five seconds after Mr Ge stopped at the same intersection.  You were intending to turn right to travel north along Beach Road towards Mentone.  Whilst the bus was stationary, you used your right hand to pick up a document which is known as the shift bat, which is a summary of your shift duties for the day.  You looked at that document for a short time.

8The traffic light you were facing turned to green and at the same time the pedestrian signal facing Mr Ge also turned to green.  He then started walking across Beach Road towards the beach.  After a few seconds, you started driving and commenced your right-hand turn into Beach Road.  CCTV footage shows that the bus starts moving while you are still holding the paper known as the shift bat in your right hand and are using your left hand to touch one of the onboard control systems of the bus.  You ceased touching the control system almost immediately after the bus commences forward motion and are then controlling the bus with both hands available to you;  however, in your right hand is the shift bat.

9The CCTV footage indicates that having the shift bat in your hand would not really impede your ability to drive or control the bus.

10At around this time you can be seen on the CCTV footage looking to your right, that is looking toward the direction from which Mr Ge was crossing the pedestrian crossing.  You continued driving the bus and then shortly after stopped at the time at which you impacted with Mr Ge.  At this time you opened the passenger door and got out of the bus and rendered appropriate assistance.

11Your victim, Mr Ge, had crossed the first half of Beach Road and was about three-quarters of the way across the road when he was struck by you.  He suffered serious head and chest injuries which proved fatal and he died that night.

12Forensic evidence indicates that at the time of collision your bus was travelling between 18 and 25 kilometres per hour in a 60 kilometres per hour zone.  You were both breathalysed and drug tested and these indicated that you had a zero blood alcohol concentration and there were no drugs present in your system.  At the time of travel the bus was in a safe and roadworthy condition, the road was dry, and it was daylight.  You were arrested at the scene and later interviewed by police.  During that interview, you confirmed that you were the driver.  You said you did not see Mr Ge and you hit the brakes as soon as you saw him. 

13Mr Ge's widow has been present in the court with the assistance of an interpreter, and whilst initially she did not submit a victim impact statement prior to the plea hearing, she has done so now prior to my sentencing of you.  The consequences of your driving are profound and ongoing for her.  Her husband of many years, with whom she planned a transition to retirement, is now deceased.  Her life has been changed forever as a result of your conduct.  She states, amongst other things, 'After my husband died, my life is hell.  There is no light in my life, there is no happiness'.  I will have appropriate regard to the relevant and admissible portions of her victim impact statement.

14My task in sentencing you in no way involves me placing a value on Mr Ge's life.  That is a task that would prove impossible.  It is clear that he was a loved husband who had led a productive life.  My role in sentencing you involves me considering and balancing a number of at times competing sentencing principles.  In sentencing you, I must impose a sentence that is just having regard to the circumstances of this case, and in doing so I must address fundamental sentencing aims which include punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.

15I must balance matters such as the seriousness of the offence, your culpability for it, your personal circumstances, the community's interest in deterring and denouncing your conduct, along with the community's interest in ensuring that so far as possible you are rehabilitated. 

16So far as your background is concerned, you are now 43 and were 41 at the time of the collision.  You have no prior convictions nor any other outstanding charges.  You were supported in court by a number of referees and extended family members.  In summary, you were born in Greece and your family returned to live in that country in the 1970s from Australia.  As a result of the economic collapse of the Greek economy, you came to Australia in 2014.  In Greece you had variously worked as a driver and labourer whilst in the employ of the family business.

17Since arriving in Australia in 2014 you worked with a marble benchtop manufacturer and were a bus driver for Transdev from 2015 to 2017.  More recently you have worked as a shopfitter.  You are single and have no dependants.

18Various references were tendered on your behalf and, amongst other things, they speak of your commitment to hard work and endeavour.  Your offending is out of character and you present as a man now reaching his mid forties without prior criminal history.  To your credit, you have pleaded guilty.  Your plea arose after a contested hearing and then a sentence indication hearing before me on 28 February 2019.  At that hearing I indicated that if you pleaded guilty I would probably impose an immediate custodial sentence on you.

19Your committal hearing involved the cross-examination of the police informant and an accident reconstruction witness.  I accept that given the forensic reality of your situation this was necessary to resolve aspects of the case against you.  Whilst not at the earliest opportunity, your plea nonetheless has facilitated the course of justice.  Your plea of guilty has saved the community the cost and time of a contested trial and has avoided the need for witnesses to attend court to give evidence.  In addition, your plea of guilty evidences your acceptance of responsibility for your wrongdoing. I also accept that you are appropriately remorseful for your offending conduct. 

20Your plea of guilty itself demonstrates some remorse, and in conjunction with other material, as well as submissions made on your plea, I am of the view that you are appropriately remorseful for your conduct.  Whilst the consequences of your driving were unintended and unforeseen by you, your plea of guilty to the offence of dangerous driving causing death accepts that your driving was dangerous to the public by way of your failure to keep a proper lookout, such that it involved a serious breach of the proper management and/or control of your vehicle, which created a real risk that members of the public in the vicinity would be killed.

21In your case, this risk crystallised with the tragic death of Mr Ge, an innocent pedestrian who was well advanced in crossing the road at a pedestrian crossing controlled by lights.

22Your offending is not accompanied by many of the aggravating features often seen in prosecutions of this type.  It occurred in circumstances where you were appropriately licensed to drive the bus, this vehicle was roadworthy, you were not alcohol or drug-affected, you were not fatigued or speeding or disobeying a traffic control signal.  Nonetheless, you were in charge of a large vehicle on a significant arterial road where your attention was not fully on the task that you were undertaking. 

23You exhibited a level of inattention whilst the bus was stationary, and this was compounded once the vehicle got underway.  This is evidenced by your use of onboard control panels and your holding and looking at the shift bat shortly before the collision.  Whilst I do accept that you can be observed with your head facing in the direction of Mr Ge as the bus commenced forward motion and prior to impact, you apparently did not, however, see him.  Your failure to see Mr Ge when you were looking in the direction from which he was crossing the road is inexplicable.  It is indicative of your failure to keep a proper lookout.  The fact that you can be observed looking in his direction does indicate that you did make endeavours to keep a proper lookout, however these were inadequate.

24Your driving is to be contrasted with the sort of case where no such effort has been made and aggravating features such as those which I have earlier listed accompany the offending.  Notwithstanding this, however, as I have earlier said, you were in charge of a large vehicle on a significant arterial road and your attention was not fully on the task that you were undertaking.  This has led to the profound and ongoing consequences which flow from the death of Mr Ge.

25Defence counsel submitted that a combined term of imprisonment to be followed by a community corrections order was an appropriate disposition of your case.  The Sentencing Act provides that in appropriate circumstances a term of up to 12 months' imprisonment can be imposed to be followed by a community corrections order.  Prosecuting counsel agreed that this was in range.  In order to explore this, I had you assessed to determine your suitability for such an order and you have been found to be eligible.

26Independently of the submissions of both prosecution and defence counsel I have come to the conclusion that a combination order is appropriate in your case.  In the somewhat unusual circumstances of your offending this disposition will appropriately express the court's denunciation of your conduct and the need for deterrence.  Having regard to the circumstances of your offending, your lack of a prior criminal history and your response to the charge, I am of the view that your rehabilitative prospects are very good.

27Balancing all matters, on Charge 1, I sentence you to a term of 12 months' imprisonment to be followed by a two-year community corrections order.  The only special condition of the community corrections order is that you perform 150 hours of unpaid community work over the duration of that order.  I cancel any Victorian drivers licence held by you and I disqualify you from driving on Victorian roads for a period of three years from today's date.

28I understood there was a DNA sampling order, was that right?

29MR HUTTON:  That is sought, Your Honour, yes.

30HIS HONOUR:  That was not opposed so I will make that order.  It is necessary that you understand that if you breach the community corrections order by either further offending or failing to comply with its conditions, that of itself constitutes an offence.  The result of a breach of the order would be that you would be brought back before this court, most probably me, and amongst a range of powers that I have available I could resentence you for the offence of dangerous driving causing death.

31It is also necessary that you understand that if you do not provide a DNA sample voluntarily, reasonable force may be used to obtain this.  Shortly I will have my associate provide you with a document which by signing you agree to enter into the community corrections order.  To the extent that it is necessary, I will permit Mr Pica to assist in this process, but before I do, on the assumption that you are agreeable to enter into the order, I will indicate the sentence that I would have imposed but for your plea of guilty.

32I note that this is a highly artificial exercise as it involves selecting one matter in isolation and seeking to ascribe a value to it.  This is in fact far removed from sentencing in practice.  For example, it is unlikely that I would have found that you were remorseful if you had taken your matter to trial.  Nonetheless, doing the best I can, but for your plea of guilty I would have imposed a sentence of three years' imprisonment and fixed a non-parole period of 20 months.

33I will have the community corrections order document generated.

34MR HUTTON:  Yes, Your Honour.  There should be a declaration of I think it is seven days pre-sentence detention.

35HIS HONOUR:  All right, I will make that declaration.  Mr Pica, to the extent necessary, if you would assist in that process.

36MR PICA:  Certainly, Your Honour.

37HIS HONOUR:  Thank you.  Anything further required?

38MR HUTTON:  No, Your Honour.

39MR PICA:  No, Your Honour

40HIS HONOUR:  Thank you.  If you could take Mr Koukoulis into custody, please.  Thank you for your assistance, Madam Interpreter, and thank you both.

---