Director of Public Prosecutions v Mabika

[2018] VCC 274

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01161

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR MABIKA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2018
DATE OF SENTENCE:	14 March 2018
CASE MAY BE CITED AS:	DPP v Mabika
MEDIUM NEUTRAL CITATION:	[2018] VCC 274

REASONS FOR SENTENCE
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Subject:
Catchwords:  Dangerous driving causing serious injury, failure to stop after an accident,   drive an unregistered vehicle, unlicensed driving
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Godleman	Office of Public Prosecutions
For the Accused	Mr D. Gibson	Frankston Victoria Legal Aid

Pages 1 - 7

 

 

HER HONOUR: 

1Victor Mabika, you have pleaded guilty to a two charge indictment, dangerous driving causing serious injury and failing to stop after an accident. 
The maximum penalties for these offences are five and ten years respectively.  You have also agreed to have dealt with by me and pleaded guilty to the following related summary offences, driving an unregistered car, maximum penalty, 25 penalty units for a first offence then 50 penalty units, and unlicensed driving, maximum penalty three months.

2All of your offending arises from a car accident that occurred in December 2014, the details of which are set out in the prosecution opening, Exhibit A.

3Soon after midnight on 10 December 2014, you were driving the Nepean Highway in Mount Eliza.  The car you were driving was not registered and you did not have a licence.  The victim, Roldan Flores Son was also driving his car along the highway towards Mornington after he had finished work.  On this portion of the highway, the speed limit is 80 kph and you were both travelling on a straight stretch of the road, visibility and conditions were good.

4Mr Son's car was struck heavily from the rear by your car causing his car to slide and rotate for over 50 metres before colliding with a power pole.  The impact with the pole was on the rear driver's side door and caused significant damage to the car as depicted in photos, Exhibit C.  Witnesses described a loud crash followed by screeching.  Mr Son has recalled that he felt like his car was rolling with his body turning, then shortly thereafter that he woke up lying on the centre console.  He touched his head and felt blood all over his hands.  He described feeling his fingers going inside a hole in his head and in thinking he was going to die.

5Various witnesses and emergency workers soon came to his aid.  He was cut loose from the car wreckage and airlifted to the Alfred Hospital with serious head injuries.

6You continued driving for approximately 1.4 kilometres before stopping. 
Your car also had significant damage to the front.  Police soon located your car unattended on the road and it was towed away.  Subsequent tests did not reveal any mechanical defects in your car which could have contributed to the collision.

7A police accident reconstructionist calculated the speed in which you were travelling at a minimum of 114 kph.  As a result of the impact, you slowed to
91 kph.  There was no evidence detected of any pre-impact braking by either driver.

8Police attended at your flat in the early hours of the morning but you were not there.  You went to the police station late that day.  You left and arranged to attend again later that night.  Ultimately, police arrested you at your flat and you participated in a record of interview.  You admitted you were the driver and you maintained that you were not affected by alcohol when you had been driving.  You said you were familiar with the road, that it was windy and foggy. 
You said that you had been in Australia for six years and that you were still driving under a Zimbabwean licence.

9You could not explain how it was that you went in the back of the other car.  You said it was just in front of you and you could not see it clearly.  You did not have time to brake as it was too close when you saw it.  You said it was strong impact.  You thought that you blacked out after the collision, that you were in shock and you could not concentrate and you panicked.  You said you got a lift home and went passed where the collision had occurred and did not see anyone.  Much of the detail you provided in your interview was not consistent with the independent evidence.

10Mr Son suffered a large facial laceration around the crown of his head and other lacerations on his limbs.  A CT scan revealed bilateral parietal temporal subcutaneous haematomas.  He was required to undergo left ear canal surgery and has experienced loss of hearing in his left ear.  He continues to suffer high levels of pain, tinnitus, hearing loss, sleep disturbance, increased irritability, stress, anxiety, depression and symptoms of PTSD. 

11I received victim impact statements from Mr Son, his wife and another family member.  They eloquently set out the significant impact that your offending has had on all of their lives, particularly the change in the family dynamics and the drastic effect on Mr Son.  He no longer enjoys the pleasures he used to get from normal recreational activities such as fishing, boating, gardening, walking and cooking.  The family's social lives have changed with Mr Son not comfortable anymore around people and conscious of his difficulties with walking and his changed appearance.

12His recovery has been very slow.  His wife still fells that he cannot be left alone and he has become very moody and angry.  She states, "This incident has totally affected and changed the life of my husband and my family. 
It's very stressful for me and my three daughters that my husband and their father is now unable to enjoy life and suffers such emotional impact."

13Mr Son states, "It is terrible.  I can't sleep, I'm in physical pain, my back, head, ears, my scar is sore.  I have pain behind right ear, I'm partially deaf in my left ear.  It feels like it's full of water.  My left and right ear no longer match and I'm very aware of the scar on my face.  I have headaches.  When I eat, there's pain in my jaw.  The hearing loss in my left eat is great.  My balance is affected and I get dizzy when I stand up or lie down.  I miss being a father.  I can't do anything with them now, I used to play with them.  I can't do it.  We used to do lots as a family, I don't like to leave the house.  I'm scared to go out.  I just prefer to stay at home.  I'm so scared when I go out in the car."  As noted by his daughter, "The whole vibe at home became negative."

14I received a report from Carla Lechner, clinical psychologist, dated
31 January 2018.  You are currently aged 32 and your parents live in Zimbabwe.  You have five siblings with one sister in Australia.  Your grandmother lives in Flemington and she currently cares for your son, Jeremiah, who is aged six.

15You were born and raised in Redcliff, Zimbabwe.  You completed the equivalent of Year 12 and after leaving school, you worked as a teacher's assistant for about 12 months.  You came to Australia in 2007 on a student visa and were later granted permanent residency.  Your brother in law was in court to support you.

16In Zimbabwe, you were politically active and part of the moment for democratic change.  When you were aged 19, you were severely assaulted, resulting in you being hospitalised with a range of injuries.  You, at this time, developed symptoms of PTSD and were not treated for this condition.  It was soon after your release from hospital that you came to Australia and began living with your sister.  You sought and were granted asylum on political grounds.

17Whilst in Australia, you have worked in the disability sector for about three or four years, then worked in a warehouse. 

18You commenced using cannabis when you were aged about 17 in Zimbabwe and continued your use in Australia.  You have also used drugs, including ice, GBH and Valium.  You also regularly consumed alcohol prior to you going into custody.

19Ms Lechner reports that you suffer residual post-trauma symptoms, experiencing flashbacks, hypervigilance, anxiety and bad dreams. 
You indicated to her that you saw a counsellor when you were at the Asylum Seeker Resource Centre on about three occasions.

20Ms Lechner recommended that you undergo a neuropsychological assessment, questioning if you have suffered a brain injury given your reasonably good education history and the results of testing that she has carried out.  You reported that your depression and anxiety has increased since you have been in custody.

21Ms Lecher is of the view that the post-traumatic symptoms contributed to your drug and alcohol use and that you tried to self-medicate.  Further, your situation was worsened with the breakup of your relationship with Jeremiah's mother and subsequent limited or no contact with your son.

22Ms Lechner notes after the accident, your life continued to spiral downwards on account of the stress and guilt associated with your actions and the pending court hearing.

23You have been diagnosed with clinical depression and moderate anxiety whilst in custody.  I accept that custody is more burdensome for you than others not suffering such conditions.  You are currently medicated and have been seeing a psychologist every three weeks whilst in custody. 

24Additionally, your immigration status may be under threat given these matters.  I was informed that you cannot return to Zimbabwe.  You suffer a significant level of anxiety regarding your future after your release.  You have established yourself in this country, fleeing the problems in your homeland.  The prospect of deportation adds to the burden of your imprisonment.

25I was also informed that you have been placed in protection whilst in custody and that you are likely to remain there for the duration of your sentencing, with you experiencing difficulties with other prisoners.  I take this into account.

26There has been some delay in the prosecution of these matters.  Some of the reasons for the delay were not attributable to you.  I take the fact that you have had these matters hanging over your head for a period of time into account.

27You have a number of prior convictions.  These are for dishonesty matters, but more relevantly, driving offences including drink driving.  There are also other offences including a drink driving offence which occurred after these events. 
I understand you have no outstanding matters.  This is the first time that you have been in custody.

28I take into account your plea of guilty.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit. 
I was informed that the evidence at the committal related to the accident reconstruction and that Mr Son was not required to give evidence and relive the traumatic incident.

29I accept your plea is also indicative of remorse.  Ms Lechner notes that you feel shame and regret for your actions and empathy for your victim.  You voluntarily went to the police and admitted being the driver of the car, though you did not accept full responsibility for dangerous driving. 

30As to your rehabilitation prospects, they are difficult to assess, given your prior and other criminal matters, alcohol and drug issues and other psychological difficulties.  Clearly, you require treatment and counselling in respect of the latter.

31You have the support of your family members in this country and you have shown that you are capable of being gainfully employed.  The deportation issue clearly complicates matter.  I regard your rehabilitation prospects as fair.

32There were some aggravating features of your offending.  The effect on the victim and his family has been significant.  A serious accident occurred as a consequence of your driving.  You left the scene, abandoning your car. 
You must have been aware at least of the potential, if not the high likelihood, of serious injury to the other driver.  The dangerous driving was you were travelling at a speed significantly over the speed limit.  You were unlicensed.

33General deterrence has particular relevance.  Those who do not drive in a safe manner place other road users at grave risk.  It is important that those who speed or drive in a dangerous manner then leave the scene of an accident caused by such driving will be severely punished.

34Taking all relevant sentencing considerations into account, including those outlined in mitigation, I sentenced you as follows.  In respect of Charge 1, dangerous driving causing serious injury, you are convicted and sentenced to a term of imprisonment of 18 months.  In respect of failing to stop or render assistance, you are convicted and sentenced to a term of imprisonment of
30 months.  In respect of driving an unregistered car, you are convicted and fined $200.  In respect of unlicensed driving, you are convicted and sentenced to a term of imprisonment of one month.

35Six months of the sentence imposed on Charge 1 will be cumulative on the sentence imposed on Charge 2, giving a total effective sentence of three years.  I set a non-parole period of 20 months before you are eligible for parole. 
I declare pre-sentence detention of 461 days. 

36Pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years if you had not pleaded guilty to this matter and in respect of all licences, I disqualify you for a period of two years from seeking a licence.

37Are there any other further matters I need to deal with?

38MR GODLEMAN:  No, Your Honour.

39MR GIBSON:  No, Your Honour.

40HER HONOUR:  All right, thank you.

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