Director of Public Prosecutions v Marando

[2015] VCC 2007

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-01828

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM MARANDO

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JUDGE:	His Honour Judge Bourke MP
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2015
CASE MAY BE CITED AS:	DPP v Marando
MEDIUM NEUTRAL CITATION:	[2015] VCC 2007

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Goodenough
For the Accused	Ms E Turnbull

HIS HONOUR:

1       Adam Mirando, you are to be sentenced for one charge of dangerous driving causing serious injury.  The maximum sentence is five years imprisonment.  You pleaded guilty before me on 17 April 2015. 

2       You were interviewed  by police on the day of the motor vehicle collision which badly injured Claire Cooper on 19 August 2013.  You stated that you did not enter the collision area against a red traffic light,  which is the gravamen of the offence and the cause of the collision.  However, I accept that you cooperatively and likely candidly answered police questions about other circumstances of the collision.  You expressed remorse at the scene and to police in interview.  After that the matter was listed for a contested committal on 15 October 2014.  There had been prior discussion between the parties about resolution.  On 14 October the matter settled thereby without the need for cross‑examination of witnesses.  Committal went by hand up brief and you entered a plea of guilty to this offence.

3       Mr Edney, for you, made the point to me that Ms Cooper was not a person required for cross-examination at committal.  Mr Edney gave some explanation of the circumstances of the negotiation leading to settlement.  I was told, for example, that you had originally also been charged with the offence of negligently causing serious injury which carries a maximum sentence of ten years' imprisonment.  You also seemed, prior to committal, to maintain your denial of entering upon a red light.  At least that was not admitted by you. 

4       At your plea hearing which ran on 17 April Mr Albert for the Crown tendered a written summary of prosecution opening, photographs of the general area, scene and aftermath of the collision, the victim impact statements of Claire Cooper and her partner, Albert Pintorei.  Mr Edney tendered your letter of apology to Claire Cooper which is not dated, the psychiatric report of Dr David Weissman dated 5 December 2011, the occupational medicine report of Dr Chris Baker dated 12 August 2009.  These two reports appear to be related to a Traffic Accident Commission claim, TAC claim, made by you arising out of an earlier motor vehicle collision in November 2008.  Mr Edney also tendered a short letter or certificate by your general practitioner dated 11 April 2015 and a letter of character reference by your family friend Nick Zorzolo.  Mr Zorzolo was also called to give evidence on your behalf.  Mr Edney provided a written submission on plea document.

5       The circumstances of your offence are comprehensively stated in the tendered Crown summary which is Exhibit A.  My own summary may therefore be shorter. 

6       In short on 9 August 2013 you drove through a red traffic light in Park Street, Brunswick, struck Claire Cooper who had entered the area riding her bicycle on a green light and very badly injured her.

7       You had been travelling east along Park Street approaching railway gates, boom gates for the Upfield railway line running north and south.  Park Street, at the relevant point, has one lane each way but also a service lane essentially for residential parking to the north.  That is your left as you travelled.  A raised median strip divides that from your lane of travel.  There is also a stipulated bike lane to your left.  There are traffic control signals at or before the railway gates.  Those lights control traffic in respect of trains but also in respect of bicycle and pedestrian traffic which moves along a dedicated path beside the railway line north/south.  Pedestrians and cyclists are able to activate the traffic lights by a typical button on the traffic light pole.  There are signs indicating the presence of bicycles.  Your approach is quite heavily treed, particularly to your left, but clear vision of the crossing and of the traffic lights becomes available a significant and safe distance before the lights.

8       I find that you were not driving in any way illegally or improperly as you approached the crossing and light.  You were conversing on a mobile phone but doing so legally.  As put by Mr Edney, there was no excessive speed, no alcohol or drugs in your system and you were not driving in a reckless or erratic manner.

9       Ms Cooper was cycling north along the designated path, that is on the other side of the crossing to you.  She entered to cross Park Street on a green light, that having already been activated by a pedestrian in front of her.  There is no suggestion of any wrong on her part.

10      As stated you entered to cross the railway line on the corresponding red light.  You crossed the line and struck her as she moved into your path.  It is estimated that you were driving at about 44 to 49 kilometres per hour at the time of impact.  No tyre marks were found indicating attempt at emergency breaking or evasive action.  There is no explanation for you entering against the red light but inattention.  I do not find that it was intentional.  Consideration of the relevance or effect of your phone conversation is speculative.

11      Paragraph 15 of the Crown summary states, "Witnesses at the scene describe Marando's state after the collision as being one of shock and distress." 

12      As to Claire Cooper's injuries paragraph 21 states as follows.  There is some paraphrase on my part. 

"Clair Cooper suffered life threatening injuries.  She was taken by ambulance to the Royal Melbourne hospital where she was treated in the emergency department.  Then in the intensive care unit for 26 days and then transferred to the Epworth Hospital for four months receiving rehabilitation treatment.  Thereafter she attended physiotherapy three times per week.  She has no recollection of the collision.  She suffered a serious brain injury, multiple broken ribs and a broken pelvis.  Her injury affected her mobility and speech.  She had to learn to walk and talk again.  She will not regain full mobility.  Her vision and memory have been affected.  Claire Cooper was a concert pianist.  She will not be able to be employed paying piano again.  She is cared for by her partner who assists in looking after her on a daily basis."

13      I have also carefully read the two tendered victim impact statements.  No summary by me would adequately state the massive impact of her injuries upon her and I shall not attempt it.  Ms Cooper is present in court and I do not wish to further distress her.  I am sorry.  Shortly put, the two victim impact statements by her and her partner, Albert Pintorai, are a powerful, moving description of far reaching impact upon, I would think, almost every facet of her life.  At the time of the collision she was an active, gifted woman with much to look forward to in her life.  The injuries you have caused her have changed that.

14      The victim impact statements are also a   detailed and insightful description of the ordeal of treatment and her efforts toward recovery.  Claire Cooper presents as a decent - - -

15      I would be prepared to wait for Ms Cooper to return if she was able to do it.  Perhaps Fran you can go and tell - I am prepared to wait for as long as it takes for her to be able to - would you tell her that what I have got to say about her victim impact statement is not going very much longer.  I said - so that you heard - I am prepared to wait for however long it takes within a reasonable time, of course, and I will wait out the back.  What does she want to do?

16      MR GOODENOUGH:  I understand she wants to come back in Your Honour when she can.

17      HIS HONOUR:  Yes I am not surprised.

18      MR GOODENOUGH:  She's just composing herself.

19      HIS HONOUR:  All right well should I wait - I will wait outside.  I think I have asked - I have asked my associate, I don't think there's any problem with that, to tell her that I haven't got very much more to say about the victim impact statement.  It was required that I say something.

20      MR GOODENOUGH:  Yes Your Honour.

21      HIS HONOUR:  I'll wait out the back.

22      (Short adjournment.)

23      HIS HONOUR:  This part of it is not going to take very much longer.

24      Claire Cooper presents as a decent, resilient and courageous woman who still strives bravely toward recovery. 

25      There is also the detailed account of the impact cause to Albert Pintorei.  He presents as a loving, loyal, supportive man who has suffered painfully at the fate and situation of his partner.  These things continue for both.  I must and shall take into account the victim impact of your offence.  It has been very great indeed.

26      You are a 32 year old man.  You are unemployed and live with your father.  You are an only child.  Your mother left the family home when you were 15 and you stayed with your father, mainly raised and cared for by your paternal grandfather.  He is deceased.  You were close to him.

27      You completed Year 12 at school.  You worked consistently as a tiler until a motor vehicle accident in November 2008.  Your stationary vehicle was struck from behind.  A good detail of the evidence presented on your behalf related to the impact of that accident and the injuries caused to you.  These seem to include a whiplash injury with referred symptoms to your shoulder, back and knees.  You have continued to suffer such symptoms which appear to have little identified organic cause to explain them.  The medical opinion before me seems to state the predominant issue to be a psychological reaction both to the accident and your physical symptoms.

28      Diagnoses include post traumatic stress disorder, adjustment disorder and what is called chronic pain disorder.  Your TAC claim has settled.  You were found unable to return to your employment as a tiler.  As stated you are unemployed but have hopes of returning to work.  You present as not coping well with your injuries and situation.

29      The medical material and Mr Zorzolo's evidence states you to suffer depression.  Mr Zorzolo has stated you to be highly remorseful and that this offence and what you have caused Claire Cooper has had a strong impact on you.  I also take into account your tendered letter which expresses that remorse.

30      You have one prior court appearance and that is for driving in excess of the prescribed level of alcohol in March 2007.  You were fined without conviction.  The reading appears not to have been very high.

31      I see this as a serious example of the offence.  Despite Mr Edney's determined submissions I do not agree, to paraphrase his written plea document, that the objective circumstance of the offence are at the lower end.  Too much discussion at the plea hearing bore upon questions of so called low or high end seriousness.  I regret my contribution to that.  Best put in terms that define this offence,  this was a serious breach of the driving of your vehicle.  Driving through a red light is a serious instance of dangerous driving, in that it is plainly seen to be dangerous and capable of causing great damage.  It did so here.

32      However I do agree that the moral culpability or subjective criminality of your offence is lessened by my findings that you were not otherwise driving badly and that you did not intend to drive through the light.  This was not deliberately bad driving, which on my reading of the authorities provided can be so in relation to this offence.  These subjective factors must be measured against the great harm you caused.

33      Other mitigating factors include the following.  (1) Your plea of guilty, cooperation and remorse.  (2) Despite the 2007 offence,  which is related to driving and therefore relevant, I find you to be a person of fundamentally good record and character.  (3) Your personal history and circumstances.  This particularly includes those related to the effect of your own motor vehicle collision in 2008 as I have earlier described that.  (4) I also see you as having genuine prospects for rehabilitation.

34      Mr Edney has put that that I should not impose a sentence of imprisonment, rather sentence you to a community corrections order.  Amongst other matters he raised the principles stated in the recent guideline Court of Appeal judgment of Boulton & Ors.  Mr Albert, for the Crown, conceded that such a sentence was within the proper range.

35      This is a difficult case.  As stated I see your offence as serious.  The sentencing purposes of general deterrence and denunciation and the need for proportionate punishment apply.  I see general deterrence as of high importance in offences such as this.  The victim impact here is very high.  However, these matters must be weighed against the mitigating factors I have identified.

36      In a case such as this where there has been such high victim impact there is, as put by Mr Edney, difficult tension between that and the mitigating factors.  Here, I have decided that it can be resolved by a sentence without sending you to prison.

37      I find that a community corrections order with appropriate features of punishment can meet the relevant sentencing purposes.  It should be one though that is significantly punitive. 

38      Doing the best I can to balance and weigh the relevant and competing factors I sentence you as follows.  Stand up please, Mr Mirando.

39      I impose a community corrections order of three years duration, the usual terms apply.  I impose the following additional conditions.  That you perform 400 hours of unpaid community work, over that or a prescribed time, under s.48C.  That there be a mental health treatment condition under s.48D(e).  That you perform or engage in appropriate offending behaviour programs as directed under s.48D(f) and that there be supervision.

40      Had you not pleaded guilty to this I would have imposed a prison sentence of four months and also a three year community corrections order with similar conditions after your release.

41      I propose making no further orders and that includes the licence.  I do not think it is obligatory.

42      HIS HONOUR:  I mean I was told that.  Is that right?

43      MR GOODENOUGH:  I believe it is, Your Honour.

44      HIS HONOUR:  It is obligatory?

45      MR GOODENOGH:  Section 89.

46      HIS HONOUR:  All right.  What is the period?

47      MR GOODENOUGH:  Eighteen months.

48      HIS HONOUR:  Is it?  I will come back to that.  I will impose that if it is compulsory.  All right.  What happens now, Ms Cooper, is that we need to go through the mechanics, if you like, of Mr Mirando entering the order.  It takes five or ten minutes.  I have got nothing else to say about the matter.  I did my best to explain the competing factors that led me to my decision.  You can go now if you wish.  Before you go might I say this to you without seeking to embarrass you further?  I have admired the brave and dignified way you have participated in these proceedings before me.

49      MS COOPER:  Thank you.

50      HIS HONOUR:  Yes.  I wish you the very best.  You also, sir.  All right.  Now you can come out of the dock and stand near Ms Turnbull, please.  Just stand there for the moment.  Perhaps if you can just sit next to Mr Zorzolo?  Is it dealt with in the Crown opening?  I mean it would not be surprising if it was compulsory.  What is the - - -

51      MR GOODENOUGH:  It has been put in a Crown opening Your Honour.

52      HIS HONOUR:  Has it?  Whereabouts - in the Crown opening obviously?

53      MR GOODENOUGH:  It is.  Yes.  Paragraph 24, Your Honour.

54      HIS HONOUR:  Thank you.  Yes.  I may be confusing it with another matter.  Look,. I propose imposing the minimum period of 18 months.  I mean that is no attempt to be proportionate to the consequences of his driving on this occasion.  But I think it is in the community's interest that he be encouraged towards rehabilitation.  I think in this young man's case that he is doing his very best to get a job and move on with his life.

55      All right.  I have got the order here.  Yes.  Stand up.  I am going to read out the conditions of the order to you and ask you whether you agree to it and I will get you to sign the order.  All right?  I am imposing a community corrections order for three years.  So that starts today and ends on 23 April 2018.  You must attend at the Carlton Community Correctional Services at 444 Swanston Street within two clear working days.  You would need to do it today or Monday, I would have thought.

56      The usual terms that apply to all such orders are as follows.  You must not commit another offence for which you could be imprisoned during the period of the order.  If you did you would come back before me to be re-sentenced on this matter.  You must comply with what is described as any obligation or requirement under regulation 17 of the sentencing regulations.  That means this.  That you cannot attend any program and/or appointment under this order affected by alcohol or drugs or in possession of illegal drugs, as I understand it.

57      You must report to and receive visits from Community Corrections.  You must let Community Corrections know within two clear working days of changing your address or job.  You must not leave Victoria without first getting permission to do so from Community Corrections.  You must obey all instructions from and directions of the secretary.

58      The conditions that apply in addition are as follows. That you perform 400 hours of unpaid community work over three years as directed, that you be under the supervision of a community corrections officer for the period of three years and that you undergo any mental health assessment and treatment that may be directed and that you participate in programs or courses that address factors relating to the offending as directed by the regional manager.  Do you agree to that?

59      OFFENDER:  Yes.

60      HIS HONOUR:  Do you understand it?

61      OFFENDER:  Yes.

62      HIS HONOUR:  I will get you to sign it.  Whilst that is happening, I think I was remiss in indicating to Ms Cooper that what would happen now would not interest her.  I would be obliged if a copy of the conditions of the order be supplied to her with my apologies for not reflecting on the fact that she has a legitimate interest in knowing the detail of such an order.

63      MR GOODENOUGH:  Yes, Your Honour.

64      HIS HONOUR:  Thank you.  Perhaps that can be done through Ms O'Brien.  Thank you.  All right.  Now I will sign the order now.  Yes.  You will get a copy of that.  Is there anything else I need to do?  I have made the order about the licence.  I have indicated 18 months.  Do you follow that?

65      OFFENDER:  Yes.

- - -

66      HIS HONOUR:  All right.  Anything else for me to do?

67      MR GOODENOUGH:  Your Honour, there was a forensic sample on application on the last occasion.

68      HIS HONOUR:  This attracts a forensic sample?

69      MR GOODENOUGH:  I believe so Your Honour.  Yes.

70      HIS HONOUR:  Just check that because - I mean, I'm not saying it shouldn't.  Just take a seat.  I'm not saying it shouldn't but there are other criminal offences that don't and surprise me in the past.  It does, does it?  You are sure of that?

71      MR GOODENOUGH:  Yes, Your Honour.

72      HIS HONOUR:  Do you want to say anything about that?

73      MS TURNBULL:  It's really a matter for the court, Your Honour.

74      HIS HONOUR:  I don't know.  I might need some persuasion.  I mean I don't want to under rate the dreadful consequences of this but he doesn't present to me as a criminogenic person and that is where it all goes in terms of these orders, doesn't it?

75      MS TURNBULL:  And also given the nature of the events, Your Honour.

76      HIS HONOUR:  That's what I'm trying to say.

77      MS TURNBULL:  Yes.

78      HIS HONOUR:  So do you want to press it?

79      MR GOODENOUGH:  No, Your Honour.

80      HIS HONOUR:  You've made the application because it needs to be made by I think you need to - have to positively decide that it's necessary and I don't think I would in this case.

81      MR GOODENOUGH:  Yes, Your Honour.

82      HIS HONOUR:  All right.  Anything else I need to do?

83      MS TURNBULL:  No, Your Honour.

84      MR GOODENOUGH:  No, Your Honour.

85      HIS HONOUR:  Good.  All right.  Thank you for your assistance both of you.  You may go now.  Thank you, Mr Zorzolo.  I will remain here for the other matter.  You'll get those documents to me, the clean copies of those various things?

86      MR GOODENOUGH:  Yes, Your Honour.

87      HIS HONOUR:  For you it's the victim impact statement if you haven't got it.

88      MR GOODENOUGH:  Yes.  I've already provided a copy, Your Honour.  I provided a copy earlier, Your Honour.

89      HIS HONOUR:  Earlier today, did you?  Good.  Thank you very much.