Director of Public Prosecutions v Merhi
[2013] VCC 2147
•28 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 13-00874
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FARA-WALID MERHI |
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JUDGE: | HIS HONOUR JUDGE STUART | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 August 2013 | |
DATE OF SENTENCE: | 28 August 2013 | |
CASE MAY BE CITED AS: | DPP v Merhi | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2147 | |
EX TEMPORE REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW: Sentence: 1 charge of dangerous driving causing death, general deterrence the primary consideration, genuine remorse, 16 - 13 second distraction whilst driving, three years imprisonment - two years suspended.
Cases cited: DPP v Marcus Stephen Johnson [2006] VSCA 281; DPP v Oates [2007] VSCA 57; DPP v Brett Anthony Janson [2011] VSCA 19
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Ayres | |
| For the Accused | Mr P. Wilkins |
HIS HONOUR:
1 Fara-Walid Merhi, you have pleaded guilty today before me to one charge of dangerous driving causing death. That charge carries with it a maximum penalty of ten years' imprisonment. Offending of this kind under this provision, up until March 2008, carried a maximum penalty of five years' imprisonment. Parliament, by so increasing the maximum penalty, has manifested its view of the gravity of such offending and that is a factor that I must take fully into account and do.
2 You are a man now of 30 years of age. You are the breadwinner in your family, supporting your wife and five young children. I have read with care the six references that have been tendered as Exhibit FWM3 on your plea. They all speak with the same voice. They tell of you being a respected, generous, loving member of the community and family friend. In addition they attest to your excellent work ethic.
3 You have, other than a few relatively minor prior convictions for motor vehicle offending in 2004 and 2006, an otherwise blameless record. Leaving aside the traffic offences, which include careless driving in 2004, because of their antiquity and which are of relatively minor moment, for sentencing purposes, I will sentence you as a man with no relevant prior convictions. You are entitled to have that excellent background brought to your credit and I give full weight to those matters.
4 In addition you have pleaded guilty at the earliest possible opportunity and apart from the utility of such a plea, I accept implicitly that your plea of guilty at the earliest opportunity is further reflective of the remorse which you feel for what you have done. As I said during the course of this plea, it is often said that the offender is remorseful. In this case, it is said and it has been demonstrated to my satisfaction that your remorse is not only genuine but complete. This has been evidenced in a number of ways as reported by your referees, who have spoken to that remorse, but unusually in this case, it has manifested itself in you on a regular basis attending the grave of the deceased woman.
5 I have read with care the three victim impact statements. Sadly, those impact statements are - and I do not diminish the consequences in what I say - typical of those who have suffered the loss, through the death of a family member, out of the blue, as is the case here.
6 Yuora El-Masri was a young woman in her prime. The driving that you engaged in which caused her death is set out in the summary of prosecution opening, which became Exhibit 1 in the plea. I do not intend to rehearse the facts set out there, other than in short compass. You had been travelling in a southerly direction along the Hume Highway, and for a period in excess of some 15 minutes before the collision, you were on the phone, that phone not being held by you but utilising the hands-free equipment fitted to your truck by your employer.
7 Having exited from the Hume Highway in order to travel on the Western Ring Road, you came to be travelling in a westerly direction along a very long exit loop. I have had the benefit of a reconstruction played to me by the informant during the course of this plea. That reconstruction was conducted on another day, in similar weather conditions but dissimilar traffic conditions around the same time as your driving on the Thursday 23 August 2012. The police, for that reconstruction, used a vehicle of similar size and in terms of height of driver position, likewise similar construction. It demonstrated clearly to me the path that you took and what you should have seen.
8 The on-ramp comprised a two lane road with you in the left lane. That left lane then became an additional lane to the Ring Road at that point, raising the number of lanes for westbound traffic from three to four. The traffic at the time was moderate to heavy and a recommended exit speed of 80 km/h was advised. It is not suggested that you were travelling at an excessive speed. Your speed may either have been between 80-100 km/h. I will work on the assumption of the lower speed of 80 km/h.
9 Further to the west of the Ring Road was another exit for Sydney Road. Roadworks were in progress around that exit which slowed vehicles seeking to exit from the Western Ring Road onto Sydney Road and on this particular morning causing a very considerable bank-up of vehicles in the left lane, which was the fourth lane newly created by that entry loop.
10 The view that I saw from the police-driven truck was a clear one for a period of approximately 360 metres prior to the point of collision, albeit in that DVD there was a truck that partially obscured what would have been your view of the scene. Three hundred and sixty metres were in a direct line of sight from a point when you were on the off-ramp to the point where the deceased's vehicle was. Assuming a speed of 80 km/h, that 360 metre distance during which you would have had, as I said, a direct line of sight of the deceased's vehicle and vehicles ahead of her, was some 16 seconds at 80 km/h. The range of 16-13 seconds is based on an estimate speed between 80 km/h and 100 km/h.
11 That 16-13 seconds was, in my view, a very considerable period of time during which you could have, and clearly should have, observed the deceased's vehicle stationary in the left lane waiting to exit the Western Ring Road. You took no evasive action whatsoever to avoid the collision, whether by steering your vehicle or by braking. Your truck was then fully loaded. The vehicle in which the deceased was driving was a small vehicle, a Ford Focus. As a result of the impact, that vehicle was crushed, the deceased dying immediately.
12 In the lead-up to that collision you had been on the phone for a period in excess of 15 minutes. So distracted were you by attending to that phone call, that you saw nothing of the deceased's vehicle until at or immediately after the collision which killed her. The force of the impact on her vehicle caused it to collide with the vehicle immediately ahead of her and no less than five other vehicles were damaged, some significantly, as a result of your colliding with the rear of her vehicle.
13 No other factor, other than your distraction by that phone call, caused this collision. You were not affected by alcohol or drugs, tiredness or any other factor, as frequently is the case. This phone call was not of short duration. You were on the phone for some many minutes before you exited from the Hume Highway. It was your choice to continue that phone call. It was your choice to be distracted by that phone call and not to some minor degree. Your distraction from your duties as a driver was complete, as evidenced by the fact that you never saw the vehicle until at least a moment before, at or after the collision itself, leaving you no time to take any evasive action.
14 As Chief Justice Warren, in DPP v Marcus Stephen Johnson [2006] VSCA 281 at Paragraph 14, observed:
"It is a fundamental principle of driving the vehicle that the driver will remain attentive, alert and focussed 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."
15 Her Honour then continued to deal with the circumstances before her in relation to that matter.
16 In DPP v Oates [2007] VSCA 57, in a brief concurring the judgment of Justice of Appeal Nettle at Paragraph 38, His Honour observed:
"I agree with Justice of Appeal Neave and also with the Chief Justice. Like both of them, I consider that a custodial sentence will usually be appropriate for an offence of dangerous driving causing death, unless the offender has a low level of moral culpability, as is the case of momentary attention," - I think that should read - "inattention or misjudgement."
17 In DPP v Brett Anthony Janson [2011] VSCA 19, again in the judgment of Justice Nettle, His Honour at Paragraph 18 and 19 observed as follows:
"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 creates a considerable risk of serious injury or death to members of the public, which significantly exceeded the risks 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."
18 In that last sentence, substituting, as I have here, "lapse of attention for some ten seconds," for, "a lack of attention for a period between 13-16 seconds," what His Honour observed is precisely apt in your case. I find it remarkable, indeed quite extraordinary, that for a period of 13-16 seconds, you did not make any observation of what was ahead.
19 It was put on your behalf, in a very thorough plea by Mr Wilkins, that relying upon the extensive, comprehensive and very informative psychological report of forensic psychologist, Sandy Ray, which became Exhibit FWM2, at Paragraph 69:
"In clinical interview, it was apparent that Mr Merhi did not perceive that he was unable to engage in the two tasks of driving and talking. Indeed, the behaviour was endorsed by his employer, installing an iPhone kit in the truck. He did not believe that he was undertaking an illegal or dangerous activity. There would be many thousands of drivers who would also hold this belief, and currently engage in this same activity."
20 It is said that this state of mind reduces your moral culpability. I do not accept that. If it were a momentary lack of attention, there may well be substance to such a submission, but this was no mere momentary lapse. One needs only to look at the DVD to see how significant your lack of attention was. Even slight attention to the roadway would have revealed to you the deceased's car and cars banked up for a very lengthy distance ahead of you, you positioned high in the truck relative to other road users in other vehicles such as the deceased's.
21 As I have observed, you were a professional truck driver. The truck that you were driving was then fully laden. You had a clear duty not to be distracted at all, let alone to be so egregiously distracted.
22 There is in this case a high level of moral culpability in your conduct. You could not but have known that to be so distracted would have potential consequences for other road users in the event that there was a collision involving your fully laden truck. As I say, this was no momentary lapse.
23 General deterrence is of particular importance in sentencing in such a case as this. Those who choose to be distracted for an extraordinarily long period of time, have breached their obligation to other road users by failing to observe and be in a position to observe changes in the traffic conditions and adjusting their driving manner to suit those altered conditions.
24 You had, at the stage prior to this, been suffering from depression. The fact that the telephone call dealt with issues of moment to you in relation to family affairs provides some explanation for that distraction, but no excuse whatsoever, in my view.
25 Taking into account all of the matters which I have adverted to, you are sentenced as follows:
26 I sentence you to be imprisoned for a period of three years.
27 I direct that two years of that period of imprisonment be suspended for a period of three years.
28 That means that you will be imprisoned now for a period of one year from today's date.
29 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have imposed a sentence of four years with a minimum of two and a half years.
30 In terms of your motor vehicle licence, Mr Ayres, I cancel your driver's licence and disqualify you from obtaining a licence for a period of two years from today's date.
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