Director of Public Prosecutions v Leonardo
[2021] VCC 1308
•6 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00023
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN LEONARDO |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 September 2021 |
| DATE OF SENTENCE: | 6 September 2021 |
| CASE MAY BE CITED AS: | DPP v Leonardo |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1308 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of dangerous driving causing death – Category 2 offence requiring the imposition of a sentence of imprisonment – both parties contended the exception set out in s5(2H)(e) of the Sentencing Act 1991 applies – exception found to apply
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence:Community Corrections Order for a period of two years and a licence cancellation and disqualification for 18 months
S6AAA declaration: 12 months imprisonment’ and a licence cancellation and disqualification for 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Stary Norton Halphen |
Introduction
1Christian Leonardo, you have been charged with dangerous driving causing death. You sought a sentence indication on that charge. The maximum penalty for that indictable charge is 10 years’ imprisonment or a fine not exceeding 1,200 penalty units.
2Before giving my sentence indication last week, I made it clear I would only do so on the basis that the prosecution’s allegation of facts were accepted, and they were accepted on your behalf.
3After hearing from counsel and reading their written submissions, I gave a sentence indication, which was accepted by you.
4You have now pleaded guilty to the charge. The summary charges were withdrawn. I ordered the preparation of a pre-sentence report for the purposes of a community correction order. The report has been prepared.
5Since this offence is a Category 2 offence, the Sentencing Act 1991 (“the Act”) creates marked restrictions on the ability of a court in sentencing. For on sentencing, a court should impose a sentence of imprisonment unless one of several exceptions apply. Of the exceptions only that set out in s5(2H)(e) of the Act could possibly apply, and that states:
“In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).”
6In the succeeding sub-sections, that is, (2HC) and (2I), Parliament has narrowed further the application of s5(2H)(e).
7It is submitted on your behalf and agreed to by the prosecution that I could find the exception in s5(2H)(e) applied and I did so find.
8Accordingly, my sentence indication was if you pleaded guilty to the charge, I would not be likely to impose a sentence of imprisonment that commenced immediately. You pleaded guilty to the charge and the summary offences were withdrawn.
Circumstances
9At about 4.15 pm on 16 June 2019, you drove your motor vehicle along Davis Road toward the intersection with Boundary Road in Mount Cottrell. In your vehicle was your wife, your daughter and your mother-in-law.
10At that intersection, you faced a “Give Way” sign. You started braking before entering the intersection and about 4.7 seconds before the collision with another vehicle coming from your left. At the start of the braking your vehicle was about 29 metres from the intersection and travelling at about 46 kilometres per hour. When the collision occurred your vehicle was stationary. The other vehicle pushed your vehicle into a light pole. Your mother-in-law was killed. You, your wife, your child and your mother-in-law and the other driver were taken to hospital. All those bar your mother-in-law suffered relatively minor injuries.
11The two roads are sealed roads in a rural area. For a distance of 210 metres before the intersection, you had a clear view along Boundary Road. If travelling at 80 kilometres per hour, you could have seen the other vehicle for about nine seconds before reaching the intersection. Even under moderate braking, you could have stopped your vehicle before entering the intersection. In any event, as I have said, you faced a give way sign and did not stop before entering the intersection.
12At this time, you were unaffected by any substance. The other driver had methylamphetamine in his system but it is said the presence of that drug did not contribute directly to the accident.
13When later interviewed, you largely made no comment to questions.
14It is clear you failed to keep a proper lookout despite the good viewing conditions and the obvious presence of the other vehicle and trailer it was towing.
Discussion
15On the prosecution summary of the circumstances, this particular offence is at the low end of the range of offences contemplated by the charge.
(a) when you started to brake, your vehicle was travelling at well below the allowable speed limit of 80 kph.
(b) owing to your failure to see the other vehicle, you did not brake more heavily for if you had done so the vehicle would have stopped before entering the intersection.
(c) your vehicle did stop before the collision but it was sufficiently into the intersection for the other vehicle to hit it.
16Apart from the deceased, if there are victims to the death of your mother-in-law, they are your wife, your daughter and you yourself. If you are imprisoned, your family would suffer. This is a double penalty for them.
17I can take into account certain aspects of a plea of guilty. I accept it is an early plea of guilty despite the fact of a contested committal hearing. One can understand why a person contests this particular charge because of the potentially severe consequences if found guilty. It is also evidence of remorse, especially where a loved member of your family died. Apart from its normal utilitarian effect, it has the elevated effect due to the crisis faced by courts in time of the pandemic and outlined in the recent decision of Worboyes v R[1]. Clearly, your plea of guilty brings this proceeding to an end far sooner than would be the case if you had elected to seek a jury trial. The timing of such a trial would not have received any priority because you are on bail, not in custody. The plea of guilty makes a considerable contribution to the administration of justice in this Court.
[1][2021] VSCA 169.
18Overall, these factors mean that this plea of guilty deserves a very significant discount on the sentence that would have been imposed in its absence.
19The sentencing purposes of general deterrence and denunciation are important. The gravity of the offence is low. Your moral culpability for the offence is also low for there was no deliberate risk-taking by your driving.
20Much less important in this case is specific deterrence and protection of the community for I very much doubt you will ever drive in such a manner again. Your prospects of rehabilitation are excellent.
21Until this offence, you enjoyed good character. In traffic offences, generally, good character is of little or no importance. Here, its significance is to help depict the type of person you are. It is not surprising to learn that you are a member of your religious community and one of the persons listening to this proceeding, at least during the sentence indication, was a member of that community. You appear to be a solid member of the wider community.
22There is a power to impose a fine in addition to a community correction order. I would have contemplated this disposition if the punitive condition of unpaid community work was not recommended in the pre-sentence report. However, it is recommended.
Sentence
23Subject to your consent, I will convict you of the charge and make a community correction order for a period of two years with the following conditions:
(a) to perform 250 hours of unpaid community work;
(b) to undertake a programme that will address factors related to his offending, specifically, a safe driving education programme.
24The hours taken to undertake the safe driving education programme are to be counted as hours of unpaid community work for the purposes of the unpaid community correction order.
25Mr Leonardo, and I really pose this question to you through Mr Sala, do you consent to being sentenced to this community correction order?
26MR SALA: He does, Your Honour.
27HIS HONOUR: Under the legislation, I am required to advise that you attend the Werribee CCS by 4 pm of 8 September 2021. I note in their report, they recommend that you actually ring them in order to comply with this obligation.
28Any licence or permit held by you to drive a motor vehicle is cancelled and you are disqualified from obtaining another licence or permit for a period of 18 months.
Section 6AAA
29Absent the plea of guilty, I would have imposed a sentence of 12 months’ imprisonment with a licence cancellation and disqualification for the same period, namely, 18 months.
30This is a question posed to counsel: do either of you have any other matter that you wish me to address?
31MR SALA: No, thank you, Your Honour.
32MR HAYWARD: Just briefly, Your Honour. I think when Your Honour was going through the facts, at an early point – I might be wrong – but I think you referred to a car that was approaching Mr Leonardo from the right.
33HIS HONOUR: No, I do not think I said from the right. It was from the east, wasn’t it?
34UNIDENTIFIED SPEAKER 1: It was approaching from his left, from the west.
35HIS HONOUR: I will just go back and see what I have written. Yes, I did say right. I stand corrected. It should be read ‘left’. Thank you, Mr Homan.
36MR HAYWARD: As Your Honour pleases.
37HIS HONOURS: Are there any other matters either of you wishes to raise? I will give you a few moments to think about it.
38MR HAYWARD: No, Your Honour. No, thank you.
39MR SALA: No, Your Honour. No other matters.
40HIS HONUR: Mr Sala, we have got the link for another quarter of an hour. Do you want to use it to speak to Mr Leonardo?
41MR SALA: No, Your Honour. I will be able to do that directly. I do thank Your Honour for the offer, though.
42HIS HONOUR: Mr Hayward, do you wish to use the link for any purpose? Speak to the informant or anyone else?
43MR HAYWARD: No, thank you.
44HIS HONOUR: Okay. Well, unless there is anything else, I will have my tipstaff adjourn the court till 11 o’clock.
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