Director of Public Prosecutions v Mattu

[2017] VCC 95

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01320

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK MATTU

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 February 2017
CASE MAY BE CITED AS:	DPP v Mattu
MEDIUM NEUTRAL CITATION:	[2017] VCC 95

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr G. Casement with Ms A. Burnnard

HIS HONOUR: 

1Patrick Mattu, on the 15th of this month you were acquitted by a jury of one charge of culpable driving and convicted by a jury of one charge of dangerous driving causing death.  That carries a maximum penalty of ten years' imprisonment. 

2You are 31 years of age.  You are a married man with a pregnant wife.  You have no prior convictions of any description.

3I accept that the offer to plead guilty was made at a very early stage, indeed prior to committal.  During the course of the trial you changed your plea of not guilty to dangerous driving to guilty.  I accept that that is a situation where I should regard it, as I said, as a plea at an early opportunity.

4I might also say that in this scenario I do find that the continuance of the culpable driving charge in all the circumstances was somewhat surprising to me.  In any event, I accept that the situation is that you have extreme remorse, guilt and shame over what occurred, and I am satisfied of that by all the materials that have been put before me.

5The summary of the offence is contained within the Crown opening, but now I have had the opportunity of hearing all the witnesses, hearing the submissions of counsel and the benefit of a jury having given a decision. 

6In October 2015 you were a dentist living in Bairnsdale.  Your wife was living there with you and she was training to be one.  You are both from India and have been in Australia for a few years.  The deceased lady was 53 years of age and was riding to work at Sale Police Station, where she was a senior constable.

7On that morning, 6 October 2015, you got up at about 7 am and commenced work at 8 am, finishing around 4.45 pm.  It does not appear to have been a very busy day.  In any event, you and your wife had dinner around about eight o'clock or so in Bairnsdale.  Whilst at those premises, you received a phone call from a Ms Buller around about 9 pm.  She was a fellow Bairnsdale dentist who was married to a Mount Eliza man.  She was distressed and, I interpolate, suicidal and wanted to get to Mount Eliza to try and sort out some matrimonial problems.

8The evidence that was led in the trial through your record of interview and partially through your wife was that whilst at those premises in Bairnsdale you had a couple of hours of at least rest.  I might indicate at this stage, I am not going to try and make any determination as to exactly how much or how little sleep occurred.  At the end of the day it was not enough.

9In any event, a motor vehicle was borrowed, that being a Land Rover Discovery, and the party, being you, your wife and Ms Buller, left Bairnsdale around nine o'clock.  You drove to Lynbrook, having stopped on a number of occasions on the way, near Frankston, and arrived at the home of another friend, Sumit Singh, around 1 am.  He said that there was no point taking the trip to Mount Eliza because Ms Buller's husband would not be there in any event.  She, however, was very persistent and you then drove everyone to Mount Eliza, where it was discovered that he indeed, that is the husband, was not at home.  The next two hours was spent trying to persuade her to leave. 

10Again, I make no findings as to what, if any, sleep took place during that period of time.  It seems clear that you at least rested, but again I am not going to speculate.  You all left Mount Eliza.  You drove everyone back to Lynbrook.  That is where Ms Buller and Mr Singh were dropped off.  You stayed there for a period of time, had some tea and then you and your wife set out to return to Bairnsdale at approximately 4 am.  At 4.30 you refuelled at Officer, and there is CCTV footage of that, and I am not going to through all those various bits and pieces of evidence, and continued on towards Bairnsdale. 

11Importantly, in my view, at Traralgon you stopped and rested for ten minutes and then continued driving.  As the sleep expert said in this trial, that is at least what the TAC say you should do.  However, shortly before seven o'clock it was described by eyewitnesses that you were driving a relatively short distance from Bairnsdale, travelling in a straight line and the motor cycle upon which the deceased lady was riding was coming in a straight line in the opposite direction.  It is clear that your vehicle swerved suddenly into the oncoming lane and within a split second the lady was killed.  Neither vehicle was seen to brake before the impact. 

12It is clear again from those witnesses that, certainly for at least the last half an hour, you had been driving carefully, within the speed limit, no wandering, no veering, and I accept that in all the evidence, going into the other lane was a result of a micro sleep and there had been no, effectively, warning of it previously by reason of wandering over the middle lane or anything along those lines. 

13In any event, police attended.  I do not need to go through all that.  Suffice to say that you were taken to hospital.  There was no alcohol, no drugs involved.  It was a straight stretch of road.  Both vehicles were on the speed limit and there is no indication of any other type of driving. 

14What has happened is, in my view, having heard all the evidence and watched and listened to your record of interview, that I accept for these purposes, that you were not aware or did not believe that you were sleep impaired.  I am not going to go through every question and answer, I simply say that you were interviewed approximately four or five hours after the collision when you had not had any sleep, and you certainly appeared not to be sleep impaired.

15The people in the vehicle that were cross-examined during the course of the trial all said that you were not, or did not appear to be sleep impaired.  There was a piece of evidence given from Mr Singh about saying that you were tired.  It is a bit hard to interpret that.  If you were saying to him that you were tired, I cannot see why he would not have driven. but as I say, that is the situation in which we find ourselves.

16I accept that you drove to assist a friend, that you did not believe that you were in a position of danger, and accordingly, you have been acquitted by the jury of the culpable driving.  However, I sentence on the basis that the jury have found that a reasonable person in your situation should or ought to have known that what you were doing provided a real risk of you falling asleep.

17Often in these situations there is evidence that the driver said they were asleep, or someone saw them with their eyes closed, or any sum of those matters, but that is not the situation here. 

18In any event, as I have indicated, you were interviewed, and I explained to the jury that I do not find that you were telling lies at all in the interview.  I suspect that you had a micro sleep, and woke up with the motor bike so close to you, there was nothing you could do about it.  Immediately after the collision you were telling people that you endeavoured to steer away from it, and I think that that was probably your belief at the time.  In any event, Ms McLeod was killed. 

19I take into account on your behalf all those matters that I have already mentioned.  I am not going to go through the evidence in detail.  We have all heard it and everyone in the room knows what it was.  I have obviously had reference to the maps and all the other material including the photographs.

20Tendered on the plea were three victim impact statements.  Those victim impact statements express eloquently the unbelievable grief, desolation and despair that a crime such as this causes.  In this particular situation those victim impact statements were all read out aloud by Mr Moore and, from the position which I sit, had a dramatic effect on everyone in this courtroom.  I do not propose to read from them.  Everyone who is here knows what was in them and knows what they said.  I do that because I do not think I could do justice to them and I am not altogether sure I could finish if I started.

21Those victim impact statements make it very, very clear why almost invariably a person has to go to gaol for committing an offence like this.  It calls very much for the application of general deterrence, to a degree, punishment in your situation, and certainly denunciation.  People have got to understand that they must look objectively at the circumstances in which they drive, and as the jury has found, that if you have very little sleep over an extended period of time, despite your self-confidence and your capacity to drive without it, there are going to be situations where you are wrong and the consequences to many people are going to be devastating.

22However, insofar as the level of moral culpability is concerned, as I indicated, I am no longer going to talk about lower levels or higher levels, I will simply say this:  There was no speed, no drugs, no alcohol, no swerving, no wandering and none of the matters that sometimes accompany these tragic incidents and aggravate them.

23As I said, gaol is inevitable.  So far as working out an appropriate sentence, I have had the opportunity over the last few days of looking at various decisions in regard to it and counsel had no need to take me through all of those.  There are a varying range of sentences and they all depend very much on the individual situation.  Obviously, the consequences in every one of these are grave.

24Tendered on your behalf was a report from a psychologist.  It says that you have been suffering from extremely severe depression, and I accept that, though not to a Verdins' level.

25You, at 31, have been a hardworking, achieving young man.  You have a wife who is standing by you and she is pregnant with a child due to be born in about seven months.  I accept from the material before me that you come from a good, hardworking family and you and they have a strong religious background.  You have got a very good work ethic and you have no prior convictions.  You can fairly be said, other than for this, to be of impeccably good character.  That obviously assists you in this situation.  Often the circumstances that people who are convicted of this crime have very little in the way of prior convictions or prior misconduct.  You have to go to gaol for a significant period of time. 

26In an endeavour to work out that, as I have said, I take into account that you will undergo that sentence with your wife pregnant and will miss the birth of your first child.  You will undergo that sentence knowing that your wife may have to go back to India and that because her husband is in gaol in Australia for killing a person, that she may well be shunned by her own family and will therefore have to reside with yours.  Your parents, who are clearly supportive, have come out from India to be with you during this process, and that augurs well for your rehabilitation.  You will undergo this sentence, as I suspect, bearing in mind the relatively impoverished state of your wife, without much in the way of visitors.

27I also take into account that you will be undoubtedly a target in gaol.  From my own experience, being in criminal law for a long period of time, you will be vulnerable and other prisoners will take the view that you will somehow or other have access to drugs.  I would anticipate that you will have to do it in protection and even there you may turn out to be something of a target.  You will also have to undergo the sentence with the fear of your own deportation.  Because of the sentence I impose, on the face of it at least, a deportation order will be mandatory, and it will then be a matter of trying to fight it off.  There is a real, I think, probability that you will suffer a very severe detriment to your career, you will come out unemployed, and the hopes and aspirations that you and your wife had coming to this country may well be dashed.  As I said, you will undergo the sentence with all those factors weighing on your head.

28I also, as I think I have indicated, take the view that you do have appropriate sense of guilt in relation to all this and you will undergo that sentence with all the consequences that are flowing from it, not only to the family and friends of the deceased lady, but to your own family, all occurring through no fault but your own. 

29The prospects of your rehabilitation should be good.  The risk of you reoffending in this way, in my view, would be zero.  However, I have to take all those matters into account.  I have looked at, if they can be described fairly as comparative sentences, and I think I have gone through all that. 

30In any event, on the charge of dangerous driving causing death, you are sentenced to be imprisoned for a period of two years and six months.  I direct that you serve a minimum term of 15 months before becoming eligible for parole, and I direct that two days be reckoned as having been served under this sentence.  Any licence to drive a motor vehicle is hereby cancelled and you are disqualified from obtaining a licence for 18 months.

31Are there any other orders that I have to make, gentlemen?

32MR MOORE:  No, Your Honour.

33MR CASEMENT:  No, Your Honour.

34HIS HONOUR:  Take him, please.

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