Director of Public Prosecutions v Matiszak

[2014] VCC 743

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -12-02254

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATHRYN ELIZA MATISZAK

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April, 2014, 8 May 2014
DATE OF SENTENCE:	19 May 2014
CASE MAY BE CITED AS:	DPP v Matiszak
MEDIUM NEUTRAL CITATION:	[2014] VCC 743

REASONS FOR SENTENCE
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Criminal Law - Sentencing - Dangerous Driving Causing Death

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APPEARANCES:	Counsel	Solicitors
For the Offender	Mr P. Morrissey S.C. & Mr S Tovey	Galbally & O'Bryan
For the Director of Public Prosecutions	Ms E. Broadbent (sentence) Mr K Gillighan and Ms J Warren (Plea)	Office of Public Prosectuions

©The Crown in right of the State of Victoria.

This work is copyright. No part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission of the Authorised Officer.

HIS Honour:

1Kathryn Eliza Matiszak, you have pleaded to two counts of dangerous driving causing death.  The victims in this matter were Fernando Marino and his spouse, Karen McGovern.  The offence carries a maximum penalty of ten years' imprisonment.

THE CIRCUMSTANCES OF THE OFFENCES

2The circumstances of the offences were set out in the Crown opening which was read in open court on the plea and which I incorporate by reference.  In brief summary, the offences were committed around 7.05 pm on Saturday 13 August 2011.  You had dropped your then partner at the airport in your Astra station wagon and had returned to the city.  His two year old child was a passenger.

3You were driving east along Queensbury Street, Carlton, in the direction of the Exhibition Building.  You were passing through the intersection of Queensbury and Lygon Streets when your car hit the two pedestrians.  Your vehicle struck Fernando Marino and Karen McGovern as they were walking south along the eastern side of the lights on Lygon Street heading towards the city.  They were in the middle of the eastern bound carriageway of Queensbury Street.

4It is not in dispute that at the moment of the collision you were travelling at no less than 65 km/h.  The speed limit in that area was 50 km/h.  It is also undisputed that traffic lights at Lygon Street, applicable to your vehicle in Queensbury Street, had turned from green to amber approximately 9.79 seconds prior to impact and turned red 6.79 seconds prior to impact.  It is further undisputed that at the moment of impact the victims in this matter were approximately five metres south of the curb.

5

Immediately after the impact you stopped your vehicle and sought to render assistance.  Mr Marino was taken to hospital and died soon after. 

Ms McGovern was taken to a different hospital with very severe injuries and as a result of the injuries died on 16 August 2011.

6When you were questioned at the scene you stated "I was driving, I don't know what happened".  You stated that you feel so bad for the families, that you were not speeding and you were not tired and had not been drinking.  You also indicated that you had a two year old sleeping in the car and you were not in a hurry to get anywhere.  You were tested for drugs and alcohol and these tests were negative.  You later participated in a "no comment" record of interview.

7You were charged with culpable driving in March 2012 and at the committal mention you offered to plead guilty to dangerous driving causing death.  You were committed for trial and on the day of the trial the prosecution dropped the culpable driving charges and the matter proceeded as a plea. 

ASSESSING THE SERIOUSNESS OF THE OFFENCES

8The offence of dangerous driving causing death is a serious offence and the offence can be committed in a wide variety of circumstances.  In order to assess your moral culpability it is necessary to assess the objective dangerousness of your driving.

9First, you were travelling on a Saturday night.  You were in a pedestrian zone in the restaurant district of Carlton with a 50 km/h speed limit.  Such a speed limit is the default speed limit.  A lower limit is now common in heavily pedestrianized commercial streets in the metropolitan area.  Further, you were travelling east on a street with a number of controlled intersection.  Before the collision with the two victims in this matter you must have crossed Swanston Street, then Cardigan Street before entering the Lygon Street intersection. 

10You are to be sentenced on the basis that the traffic lights applicable to your Holden Astra turned amber 9.79 seconds prior to the impact and turned red 6.79 seconds prior to impact.  The estimated speed at impact was no less than 65 km/h which is approximately 18 m/s.  At that speed a vehicle could stop in 24 metres.  There was no braking evident.  At such a speed you would have travelled at least 176 metres from when the Lygon Street lights amber and 122 metres from when they turned red.  You also ignored, or did not see, that there was a motorist stationary in Queensbury Street in obedience to the traffic signals in the right hand turn lane as well as other vehicles and pedestrians crossing with the lights on Lygon Street. 

11You have little memory of the collision and have been unable to explain why you failed to see the traffic lights or the two victims in this matter.  There is just an evidentiary vacuum as to why you were not paying attention as you drove nor any explanation as to why you were exceeding the speed limit. 

12While common aggravating circumstances of dangerous driving such as the presence of drugs or alcohol or fatigue or the use of a mobile phone are absent in this case there are aggravating circumstances which must be taken into account.  First driving at the speed of at least 65 km/h in a 50 km/h zone puts at risk a large number of people including your own passenger, drivers in Lygon Street and pedestrians on a Saturday evening.

13The combination of speed and significant inattention puts your culpability for this offence at a high level.  There has been a concerted media campaign to see to have motorists "Wipe of 5" and not engage in inattentive driving.  Your counsel did not dispute that this was a case beyond momentary inadvertence.  To adopt the words of Justice of Appeal Nettle in a case involving an inattentive driver of a truck driving through an intersection against the lights:

"As I see it, any reasonable driver in the position of the respondent would be bound to realise that to drive such a vehicle in that manner involved a serious breach of the proper management or control of the vehicle, that it was potentially dangerous to others who, as members of the public, might at the time be upon or in the vicinity of the roadway and that it created a considerable risk of serious injury or death to members of the public which significantly exceeded the risk ordinarily associated with being on or near a highway.

In the circumstances of this case the respondent's lapse of attention of some ten seconds duration amounted to a most remarkable failure to keep a proper lookout and the nature and gravity of the respondent's offending are to be assessed accordingly".

14In another case the Chief Justice said:

"There is a fundamental principle of driving the vehicle that the driver will remain attentive, alert and focused on where he or she is travelling.  To deliberately divert attention to the viewing of text messages is a serious breach of acceptable driving behaviour". 

15While as I have said there is no suggestion of the use of a mobile phone the fact is that for a period of ten seconds you were inattentive to the road conditions and traffic signals applicable to you and exceeding the speed limit to boot.  As your counsel put it your driving was egregious and thus your moral culpability is, I find, high.

IMPACT OF THE OFFENDING

16Adding to the seriousness of the offending here is the seriousness of the impact of your offending on the families of Fernando Marino and Karen McGovern.  Fourteen victim impact statements were tendered and a number of them were read aloud on the plea.  Many family members travelled from New South Wales for the plea hearing.  Your conduct has resulted in the death of a loving couple, the building block of our society and left two young children orphaned.  It has severely impacted on two families and their circles of relations and friends.  The two victims had travelled from the Wollongong region in New South Wales to enjoy a weekend break and watch the AFL.  They did not return to their families. 

17The impact of your offending was poignantly outlined in the victim impact statements.  In her statement the mother of Fernando Marino, Ms Maria Marino said:

"Words cannot describe how I truly feel.  The pain has and continues to be too intense.  Losing a child at any age for a mother is the most horrendous of all.  Fernando was so full of life with so much to live for.  A young family, a beautiful life partner in Karen and now it is all gone.  My grief at times is so unbearable I can hardly breathe with such heaviness on my chest.  I can honestly say that while my life will continue, it will certainly never be the same.  It cannot.   A piece of me has gone from this world, my sweet sunshine".

She says "a mother losing a child is the most unbearable grief of all.  I have no more words to articulate my feelings".

His brother, Miguel Marino said:

"I felt I need to begin by saying how inadequate any words I can assemble in this statement will be to address the profound loss, grief and destructive impact that the death of my brother, Fernando and his partner, Karen have had on not only my life but also the lives of those whom I love and care for so dearly as I am also deeply affected at seeing their pain, their grief and their loss".

He goes on:

"I am often struck with a depressing guilt that I have 33 years of memories with my brother and his own children will only come to know him through photos and stories.  It strikes me as being so incredibly unfair.  Cooper and Jaylee are such a blessing to all of us but I feel much grief for them due to their ages.  I feel they will only come to realise the extent of their loss long into adulthood.  I feel they will, in some ways, bury their parents for the rest of their lives as these events occur and this makes me so sad and frustrated as it should not have happened".

18In a powerful statement, Mr Peter McGovern, the father of Karen McGovern said:

"Karen and Fernando were a terrific couple but they were given a death sentence for no fault of their own and our family were given a life sentence as well as their two cherished children, Cooper and Jaylee.  Karen had just landed her dream job as a hairdresser, she had been trying to achieve and was over the moon.  I cannot imagine the pain that Cooper and Jaylee must go through as they talk about their mum and dad.  This was two precious lives taken too soon as they will not be able to be around to see their children grow up and be able to have the privilege of becoming grandparents and have the love and happiness as we had".

19Mrs Elizabeth McGovern, the mother of Karen said:

"My world has changed forever on that Saturday night when I got a phone call no parent should receive, to tell me that my beautiful daughter, Karen, and Fernando had been hit by a car and that Fernando had lost his fight for life and Karen was on life support".

She goes on:

"Through one reckless act of one person that will happen - "

20Being the pleasure of having being grandparents.

"They will never see their parents again and we will never see our beautiful daughter or hear their voices again.  My life and heart is broken to think I will never be able to enjoy the days of shopping, lunches or talk to her again". 

21Karen McGovern's older sister, Sheree McGovern, said:

"Not a day goes by that my family don't miss them.  We talk about them all the time.  Karen was a very big part of my life.  She was always there for me as I was there for her in looking after the children when one of us was working or had to go somewhere.  Now that part of my life is destroyed forever.  My heart is so broken.  It is like a piece of a jigsaw with a part missing that I can never put together again". 

22Similar sentiments of loss and grief are contained in the other statements before the Court, which I have closely considered.  Quoting from the statements cannot fully do justice to the raw emotions of parents testifying to the shock loss of a daughter and son and siblings and relatives expressing their loss.

23Similarly it is difficult to convey the anguish of family members as they record how they steeled themselves to break the news to the two newly orphaned young children as they ponder and grapple with the blighted lives that you have left for them.

24Your dangerous driving as disrupted the natural order.  Parents should not be burying their children.  Children should be raised by their parents, not grandparents and aunties and uncles.  All the continuing heartbreak and loss to family and friends is as a direct consequence of your actions.  Their loss and grief is permanent is qualitatively different from the pain you might feel due to the separation from your child and family during any period of imprisonment.

25It is important that the emotional impact of your offending, as evidenced in the statement, does not swamp the sentencing process but the consequences they so eloquently outline go to increase the gravity of your criminality.  It is important to record and applaud that the family of Karen McGovern were able to donate her organs before she passed away. 

PERSONAL CIRCUMSTANCES

26I turn first to your prior convictions.  You admitted two prior appearances.  On 7 April 2004 you were before the Heidelberg Magistrates' Court on a charge of careless driving and were fined $500 and your license was suspended for a period of a month.  Given that this appearance was some seven and a half years prior to his event and you were not yet 22 at the time I regard it as only having some minor significance on the issue of specific deterrence.

27You have also admitted you were placed on a good behaviour bond for three counts for obtaining a financial advantage in July 2005.  That is not relevant here.

28Turning to your personal circumstances.  You are now aged 31.  You are the second of four children, were born in Australia but your parents are of Ukrainian extraction.  Your family were in court to support you on the plea.  You had psychological difficulties during your school years but were able to achieve the VCE.  You then enrolled in a nursing course at RMIT and were also working as a personal care assistance in a nursing home.

29The most significant event in your teenage years was that you feel in love with a young man, Mark.  Unfortunately during the relationship each of you became involved in the use of drugs including heroin.  Between the ages of 18 and 21 you were a significant drug user.  In 2004 at the age of 21 you gave birth to a son, Kai.  Thereafter the relationship with Mark became fraught with drug use by each of you and domestic violence. 

30In 2007 Mark died as a result of a drug overdose, leaving you as a single mother with a three year old child.  Thereafter you sought, with the assistance of your family, to get your life in order.  You were able to study and graduate as a nurse in 2010.  You were then accepted into the graduate nursing program at St Vincent's hospital and were in that position at the time of these offences. 

31A significant aspect of the plea on your behalf has been the impact on your psychological health as a result of this accident.  You have had a longstanding problem with anxiety and depression but, as I have indicated, were able to function within the workforce and were living with your son and a partner at the time of the accident.  That relationship has now ended.

32Soon after the accident you suffered a psychological breakdown and a CAT team had to be called.  You were admitted to a psychiatric facility but discharged yourself after about a week.  Upon your release you became addicted to some of the medication that had been prescribed.  Around that time you also had an admission into another hospital with pneumonia.  You attempted to return to heroin use but with the help of your family, resisted that and were placed on a heroin substitute. 

33In late 2011 you attempted a return to work program at St Vincent's working two days a week for six hours a day but in early 2012 were unable to continue.  In March 2012 you were found to have an adjustment disorder with emerging PTSD symptoms and were not responding to medication.

34You had a further short admission to a psychiatric facility where attempts were made to stabilise your condition and medication.  You were found to be someone with stable substance abuse who possibly goes into periods of dissociation.  You also had symptoms of PTSD.  Media publicity about this case was also impacting on you at that time. 

35You were treated by a psychologist from February 2013 and in July 2013 were referred to Mr David Leonard, psychiatrist.  He found you had PTSD in the context of longstanding anxiety and a past history of drug dependences.  He was of the view that you will gradually improve but that as you have longstanding anxiety symptoms, some of the symptoms will continue and you need ongoing help.

36In his evidence on the plea he indicated that you have marked anxiety and depression and you will always be scarred by your part in this accident and that your remorse was genuine.  He also stated that this sentence may give you the certainty to move on and that there was something almost healing in you facing the consequences of you actions.  In his view you will be given the chance to do some restorative work, become again a productive member of society and make restitution.

37The psychological consequences of this action for you are matters that I take into account.  They are a form of extra-curial punishment.  Further they do make imprisonment more burdensome.

38Dr Leonard indicated that  your psychological fragility makes you particularly vulnerable in prison setting.  Dr Bath makes the same point in his report.  Any moderation in sentence under the Verdins principles invoked on your behalf must, however, be modest having regard to the seriousness of your offending. 

39I have also taken into account that you will find imprisonment more burdensome due to your separation as a single mother from your ten year old son and your inability to care for him.  Your child has been having psychological problems as a consequence of your own problems and no doubt this is also weighing upon you.

40Your counsel conceded that the family hardship as a consequence of imprisonment did not rise to the exceptional level that would lead to a non-custodial disposition.  But he submitted, and I accept, that those same matters do make a sentence more burdensome for you and can be brought into account. 

41The burden of imprisonment and your need for medication and psychological treatment are such that a longer than usual period of parole eligibility is called for.  I will also have these sentencing remarks and the relevant reports forwarded to the Office of Corrections to ensure that, in accordance with your obligations, you are provided with appropriate care while in prison.

42I turn now to other matters that I have taken into account in mitigation.  I have taken into account your plea of guilty.  I accept the submission of your counsel that this was at an early stage at the first available opportunity.  You have accepted responsibility for your conduct and saved the need for a trial.  You have facilitated the course of justice and you are entitled credit for that.

43Your plea is also indication of your remorse.  I accept that you are remorseful for your conduct.  You expressed concern as to the victims and their families immediately after the collision and your remorse is confirmed in the report of Dr Matthew Bath, psychologist, and the evidence of Dr Leonard as well as in a letter to the court from your father, Andrew Matiszak, Exhibit 6.

44I have also taken into account that there has been some delay in dealing with this matter.  That must have weighed heavily on you in addition to the psychological impact set out in the medical reports in evidence. 

45I must also have regard to your prospects of rehabilitation.  You have strong family support.  Your family will be caring for your son.  He provides an incentive for you to reform.  You have also shown that, notwithstanding a past history of anxiety and depression and drug addiction and the tragedy of the death of the father of your child, you have been able to move on and develop your career.

46With this sentence the uncertainty of the last nearly three years has been removed and you will be able, upon your release, to concentrate on your role as a parent and re-establish your nursing career.  All these matters are such that I regard your prospects of rehabilitation as reasonably good.

SENTENCING CONSIDERATIONS

47In sentencing you I am required to take into account current sentencing practices.  The Crown provided a digest of a number of recent cases from the Court of Appeal where this offence has been considered.  I have considered these authorities as evidence in current sentencing practices.  Each case has its own features and I consider the sentences imposed in the various cases as something as a yardstick to be considered along with all the considerations pertinent to this case in sentencing you.

PURPOSES OF SENTENCING

48The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims. 

49I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into society. 

50The authorities make clear that general deterrence is a most significant sentencing factor for this offence.  People who kill others in motor cars by their dangerous conduct need to know the severe consequences of their actions.  These sentiments particularly apply where there are vulnerable victims such as pedestrians and cyclists.  The courts must uphold the value of human life.

51Yours was not a case of momentary inattention.  You were speeding and you were significantly inattentive.  You put a number of people at risk and the risk came to fruition.  This is a bad example of a serious offence. 

52In DPP v Jansen, Justice of Appeal Nettle said, at paragraph 34:

"The need for general deterrence of any particular type of offending is informed by the prevalence of that type of offending.  From time to time different views have been expressed as to the sort of evidence, if any, which is required to establish prevalence and thus the need for general deterrence". 

53But there is no suggestion in this case the defences of dangerous driving causing death resulting from deliberate decisions to flout the road laws are any more relevant than offences of dangerous driving causing death the result of unthinking negligence of the kind here exhibited. 

54Nor does there appear to be any basis in the evidence, or otherwise, for the judge to be sure that there are.  It follows in my view it would not have been open to treat general deterrence as less important simply because the offences were the consequence of unthinking negligence.  Subject to proportionality and other relevant considerations, general deterrence is an important sentencing consideration in all cases of dangerous driving causing death. 

55Another important consideration is denunciation.  The sentence must record society's condemnation of your conduct.  In doing so it assists social rehabilitation.  President Maxwell in DPP v Neethling [2009] VSCA 116, when discussing denunciation referred to sentencing and social rehabilitation and said:

"The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour by limiting the occasions on which if occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. 

The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.  Sentencing forms an important function of social rehabilitation.

As per  Justice of Appeal Vincent in DPP v DFJ,

"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable, underlying concern of the criminal justice system.  It seems to me that the process of social and personal recovery, which we attempt to achieve in order to ameliorate the consequences of a crime, can be impeded or facilitated by the response of the courts. 

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted, painful period.  It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator.

If the balancing of values and consideration represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty is capable of being perceived by a reasonably objective member of the community as just.  The process of recovery is more likely to be assisted.  If not there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed.  Indeed, from the victim's perspective an apparent failure of the system to recognise the real significance of what has occurred and the life of that person as a consequence of the commission of the crime may well aggravate the situation".

"In our view those remarks apply with particular force to an offence of this devastating kind". 

56Similar concerns appear to have formed the statement of Hunt CJ at CL Musumecia that:

"The sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime persuasive subjective circumstances must not lead to inadequate weight being given to those objection circumstances".

57Similar sentiments were expressed by Justice Spiegelman in Jurisic as:

"It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process.  In the course of such denunciation courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment.  Courts are, however, aware of the requirements of justice and the requirements of mercy, which are often in conflict but that we live in a society which values both justice and mercy".

58When taking into account all of the submissions made on your behalf, applying these comments in this case is a difficult task as matters personal to you, which invoke the principle to parsimony compete against the objective seriousness of your offending which calls for general deterrence and denunciation. 

59It is important to record that in 1970, a time when many in this court were not born or do not recall, there were 1034 Victorians who died on the roads that year.  As a result of a concerted and continuing campaign, including media advertising, road design, car design, drug and alcohol testing, changes in road rules including speed limits, more enforcement and higher penalties by the courts, this state is a world leader in road safety and less than 300 people died on the roads last calendar year.

60Over the years parliament has increased penalties for driving related offences, particularly those involved loss of life and injuries.  The legislature has always placed a premium upon human life and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. 

61The maximum penalty for this offence increased to ten years' imprisonment in 2008.  The courts have to play a part in this continuing campaign as explained by President Maxwell.  The sentence of the court has to send a signal that, notwithstanding compelling personal circumstances, motorists will be held responsible by way of significant penalties when their driving results in the death or significant injury to others.  The community and those like the that families impacted in this case expect nothing less.

62Although both offences here arose out of a single incident, subject to considerations of totality and proportionality, substantial cumulation between the counts is called for given the separate impact on each family and on the two children who have lost their parents.  There is mandatory licence cancellation for this offence.  The period of that cancellation is further punishment and I have sought to fix a period that facilitates your rehabilitation.  Could you please stand.

SENTENCE

63On Count 1, you are sentenced to four years imprisonment.  On Count 2, you are sentenced to four years imprisonment.  I direct that two years of the sentence on Count 2 be served cumulatively on the sentence on Count 1, making a total effective sentence of six years' imprisonment. 

64I direct that you serve a period of three years and three months' imprisonment before being eligible for parole  I order that all licences you hold are cancelled and you are disqualified from driving for a period of four years from the date of your imprisonment. 

65I declare that you have served 11 days of pre-sentence detention.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have imposed a total effective sentence of eight years imprisonment and a non-parole period of six years.  Could the prisoner be removed.

66I thank counsel for their attendance and others and we will stand down temporarily.

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