Director of Public Prosecutions v Miatke
[2023] VCC 308
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01240
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Dean MIATKE |
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JUDGE: | Dalziel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2023 | |
DATE OF SENTENCE: | 28 February 2023 | |
CASE MAY BE CITED AS: | DPP v MIATKE | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 308 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Negligently cause serious injury – driving a motor vehicle
Cases Cited:Harrison v The Queen [2015] VSCA 349
Sentence: Convicted and sentenced to a total effective sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years.
Section 6AAA declaration: Conviction and total effective sentence of 6 years imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue & George Criminal Lawyers |
HER HONOUR:
1On Saturday 20 June 2020, at around 5.10 pm Silvana Hammer was carefully reversing her Honda sedan from a driveway on Melbourne Road, Newport. The lanes into which she was reversing were the northbound lanes. The northbound traffic had stopped at a red pedestrian light, some 30 metres south of the driveway, so that it should have been safe for her to reverse out, and drive north.
2At that point Melbourne Road has two lanes in each direction. On the northbound side cars were permitted to park in the left lane. At this time a white car was parked outside the house just south of where Ms Hammer was reversing.
3When Ms Hammer’s car was around half-way out of the driveway, you collided with her car. You were driving a red Nissan X-Trail, which struck the right front side of Ms Hammer’s Honda. The force of the collision impelled your vehicle, Ms Hammer’s car and the parked car several car lengths towards the pedestrian crossing. Ms Hammer suffered serious injury from this collision.
4You had been driving home to Wallan, from Moe. You had missed the turn off onto the Bolte Bridge and took the exit at Williamstown Road, intending to get back onto the freeway to head north.
5Having turned south from the exit, into Melbourne Road, you stopped at the first red light after the freeway exit. When the light turned green your car did not move, despite the driver behind you sounding his horn. He overtook your stationary car and noticed that you were slumped over the steering wheel.[1] This was around 1.3 kilometres before the collision.
[1]Depositions 55
6You continued to drive south down Melbourne Road. Another driver noticed you swerving erratically in and out of traffic, speeding and travelling very close to the vehicle in front of you.[2]
[2]Depositions 67
7Having driven over the railway overpass, behind some other cars, there was then a pause or gap in the northbound stream of traffic. You drove over the raised median strip, running over two advisory signs on the median strip, and then drove south on the wrong side of the road.
8After you crossed the median strip, your Nissan’s front right hand side tyres hit the kerb near the corner of Ross Street. You corrected and continued to drive south down Melbourne Road, in the far right lane in your direction of travel. I have inserted a photograph from the dash camera footage and your vehicle is the one on the far left of the image.
9Whilst no speed is alleged, you were driving considerably faster than the traffic in the south bound lane which was slowing in the approach to the pedestrian crossing. This can be seen in the footage tendered on the plea. Your line of travel, having corrected from the impact with the kerb, was straight, as you travelled south. There was nothing obstructing your view down the lane in which you were driving. A witness who saw the collision did not see your brake lights activate before the collision.
10The distance travelled from where you struck the signs on the median strip to the collision was approximately 96 metres. From the footage it can be determined that between the time you crossed the median strip to the impact with Ms Hammer’s car, you were on the wrong side of the road for approximately 5 seconds.
11Your car, Ms Hammer’s and the white parked car all sustained significant damage from the collision. Other people in the area called 000 and went to assist. When the ambulance arrived Ms Hammer was alert, but suffering from loss of memory. She was trapped in her car for around 40 minutes, before the Metropolitan Fire Brigade cut her free. She was taken to the Royal Melbourne Hospital where she remained for 10 days.
12Ms Hammer suffered the following injuries:
(a) Multiple fractures of her pelvis;
(b) Fractured L5 vertebra;
(c) Free fluid in part of her liver;
(d) Symptoms of concussion;
(e) Lacerations to her scalp and tongue; and
(f) Grazes on her right hand and ankle.
13Treatment included a general anaesthetic for surgical repair of the pelvis, requiring screws and wires to repair the hip sockets. She needed a 24 hour pelvis-stabiliser. The scalp lacerations required stitches, and the other cuts and grazes were dressed.
14Follow up treatment included a 10 day rehabilitation admission, as well as occupational therapy, physiotherapy, psychological assistance, social work and dieticians.
15Ms Hammer provided a Victim Impact Statement which was read in court. She describes the very significant changes to her life as a consequence of your actions. The initial recovery process was intense and hard. She had to learn to walk again, and needed help with her self-care. This was difficult for her, and her family.
16She still experiences ongoing pain, headaches, joint and muscle pain, and is unable to stand or walk for long periods of time. Her ability to enjoy and participate in life is reduce by her physical injuries and the psychological trauma response. She still requires ongoing medical treatment.
17Due to her injuries she cannot care for and play with her grandchildren as she would have liked. She is less sociable. She has had to resign from her job, which has led to a sense of loss and purposelessness.
18A witness who spoke to you at the scene of the collision said you told him “I’ve fucked up, I’m sorry. I am under the influence, I’m sorry, I’m going to jail.” A blood test taken at the hospital at 6.30 pm showed the presence of Methylamphetamine 0.15mg per litre, Amphetamine 0.03mg per litre, and also medication given to you by the ambulance officers.
19A medical doctor provided an expert opinion stating that the observations of you slumped over the steering while, veering, speeding and disregarding the road conditions were in keeping with the effects of methylamphetamine, both in the stimulation and waning phases.
20You were also injured in the collision, suffering a fracture to a vertebra in your lower back, and an injury to your neck. You were in hospital for four days. Each spinal injury was treated conservatively, you needed to wear a neck brace for a time, and you were off work for around a month.
21You were interviewed by the police approximately 6 weeks after the collision. You were cooperative and answered all the questions put to you. You said you were driving home from Moe, having been there visiting friends. You had smoked methylamphetamine with them on the Thursday night, and then slept for around 6 to 7 hours on the Friday night, before heading home on the day of the collision, which was Saturday. You said you felt “normal” and fit to drive. It did not occur to you that you may still have drugs in your system. You had eaten lunch and felt fine to drive. You had not been feeling sleepy before you turned off the freeway.
22You told the police you had missed the Bolte Bridge exit, and were annoyed by this.[3] You said you recalled taking the Williamstown exit, and then the next thing you recalled was the jolt of the collision. You said there was no excuse for what you had done.
[3]Record of Interview A 159. 161, 171
Prior Driving Matters
23You have one prior court appearance, for driving whilst suspended in 2010. You received traffic infringement notices, including:
(a) Exceeding the speed limit by more than 25 kph, but less than 30 kph on 31 August 2007;
(b) Driving whilst drugs were in your blood on 1 October 2014;
(c) Exceeding the speed limit by more than 25 kph, but less than 30 kph on 3 September 2019.
24The infringement notice for 1 October 2014 related to a single vehicle accident on the evening of 30 September 2014. You were driving near Donnybrook when your car drove across the road and collided with a telephone pole. You were transported to the Alfred in a critical condition. A blood test taken at that time showed more than the prescribed concentration of drugs in your blood but the nature and quantity of the drug is not known. The police considered that you probably fell asleep, and you do not recall that car accident.[4]
[4]Record of Interview A 231, 232
25Your counsel submitted on the plea that you did not recall receiving the traffic infringement notice for the drug driving in 2014, but accept that the records show it was issued to you.
26These prior driving matters are relevant to assessing your prospects of rehabilitation.
Gravity of the Offending
27The prosecutor relied on the following factors as establishing that your driving was grossly negligent:
(a) In the lead up to the collision you drove at speed and in an erratic manner;
(b) You veered over the median strip and collided with two road signs;
(c) You swerved onto and crossed over to the wrong side of the road and continued driving;
(d) You collided with the victim’s vehicle at speed without slowing; and
(e) The presence of methylamphetamine in your blood impacting your ability to maintain proper control of your car.
28It is apparent from the prosecution opening that the negligence is put not on the basis of fatigue, but rather on your erratic and risky driving leading up to the collision.
29In her initial written submissions the prosecutor referred to you losing control of your vehicle, but this was clarified in the oral discussion. She submitted that what was intended to be expressed was that you did not intentionally drive into Ms Hammer’s car. She submitted that taking into account your crossing on the wrong side of the road, striking the signs and the kerb, and then continuing to drive without braking or evidence of evasive steering to avoid the collision, you displayed a high degree of negligence.
30The prosecutor also noted the degree of Ms Hammer’s serious injuries, and that her recovery was still in progress.
31Your lawyer accepted Ms Hammer’s injuries were serious, there was a period of erratic driving prior to the collision and that it occurred at speed. In terms of your driving and the injuries, she accepted that it fell in the mid range of gravity for this type of offending.
32She also submitted that there was a degree of substance use and sleep deprivation and that there was no evidence that you intentionally drove in an erratic manner, after you had been seen slumped over the wheel. She submitted that it was possible that a combination of fatigue and the waning phase of the methylamphetamine meant you could have been coming in and out of consciousness.
33Having carefully reviewed the statements, and the rear-camera footage, I cannot accept the submission made by Ms Parsons. I have had regard to
(a) the observations of the witness who saw you driving fast, tailgating, and swerving in and out of traffic, well before you crossed over the median strip and hit the signs, and
(b) the manner in which you drove as captured by the rear-camera footage,
34The rear-camera footage is particularly useful on this issue. It shows that you crossed the raised median strip immediately after the last cars in the oncoming traffic had passed you. Those factors point strongly to intentional steering in-put. You then corrected into a straight line of travel, having hit the kerb. Neither action is consistent with lack of control of your car.
35I therefore do not consider that it is reasonably possible that you were driving as you did because you were coming in and out of consciousness.
36Furthermore, you had methylamphetamine in your blood which the expert witness said would negatively affect your ability to drive safely.
37I accept that prior to turning off onto the Williamstown there is no evidence your driving was affected by fatigue, the drugs in your system, or that it was in any way out of the ordinary. Whilst a witness saw you slumped over the steering wheel there is no evidence you understood your driving might be affected, either by fatigue generally or by the drug in your system. On the other hand, to the extent that the drugs may have impacted your driving, this is not mitigatory. You were not a first time user of the drug.
38Your culpability is high. You had a clear line of sight to where Ms Hammer’s car was coming out of the driveway ahead of you. You steered your car onto the wrong side of the road, and drove in that lane for nearly 100 meters. This period of driving was preceded by other erratic and risky driving.
Personal Circumstances
39You are now 40 years old. You were 37 at the time of the offending.
40You were born in Craigieburn and raised there and in Wallan. You have two younger sisters. Your parents were together for your childhood and teenage years. Your father was a long haul truck driver, which meant he was often away from home, so your mother was your primary carer. You say your parents had a good relationship, and your family had good times together. On holidays you sometimes joined your father on long trips.
41You had no difficulties at school, and played tennis and were in Scouts. Your family was hard working and you were all normal members of the community.
42You, consistent with the work ethic of your parents, worked part time whilst at school, and once you finished Year 12 you worked full time at a supermarket distribution centre 7 years, as a packer and leading hand.
43You then took up a full time position at a factory in Broadford in 2017 and have been working as a packer there ever since. You are a valued, steady employee. Your consistent work history is a factor in your favour. Your current employer randomly tests its workers for drugs and alcohol, and you have not tested positive. This is in an incentive to not use drugs or alcohol, but in any event neither are a troublesome issue in your life, generally.
44Aside from one relationship in 2007 to 2009 you have lived at your mother’s property in a bungalow. One of your sisters also lives with your mother. You provide practical and financial support to your mother, and have a good relationship with her, your sister and your nephew who lives with you all.
45You have a daughter who is now a teenager. For around 5 years she lived full time with you and your mother, but there is now a shared custody arrangement, which is amicable. You are a loving father, and have a good relationship with your daughter. You are described as a quiet man who loves spending time with family and friends.
46You are a social drinker, only, and whilst you have used illicit drugs in the past, you do not have a habit which causes you difficulty.
47In the months leading up to this offending you had been in a relationship for around 10 months. You say there was a bad break up about a month before, and you were a mess. It had been an emotional time for you and you had been feeling suicidal. Your mother was so concerned she called the police and you were assessed at the Northern Hospital.
48As part of your recovery you visited a friend in Rosebud, and then went to Moe. It was there you smoked the methylamphetamine.
49You were driving the Nissan, which belonged to your father, because around three weeks earlier you had damaged your car trying to avoid hitting a kangaroo when you were driving home from work.
Factors in Mitigation
50I take into account the following factors which were raised on your plea hearing:
(a) You pleaded guilty at an early stage in the proceedings. This gives rise to a real discount in your sentence, for the utilitarian benefits which follow a plea of guilty. Time in court is saved, and the witnesses are spared giving evidence. The value of your pleas is significant in the context of the effect of the pandemic on the court lists;
(b) I accept that you are remorseful. Your plea of guilty indicates this, as do your admissions and immediate acceptance of responsibility at the scene. I also take into account the letters from you, your mother and Ms Berezny, in which they describe your distress and sorrow for the harm caused to Ms Hammer, and her family. Your letter of apology is appropriate and contrite;
(c) There was a delay in filing charges, despite your admissions, and then a further delay while the matter was re-considered and put into the indictable stream. I accept that during that time you have been anxious and stressed about the proceedings and likely outcome;
(d) I accept that you have good prospects for rehabilitation. You have a job, good employment prospects, a strong connection to your family, no other criminal matters, and no drug or alcohol problems.
51I also take into account that you have not been in custody before, and that it will be a difficult and stressful experience for you. Custody conditions, whilst improved since the pandemic, are still affected by that from time to time.
Parsimony
52Your lawyer submitted that in all the circumstances it would be open to the Court to impose a sentence that does not require imprisonment. The prosecutor argued that a sentence of imprisonment, with a non-parole period, was required.
53In the matter of Harrison the Court of Appeal said:[5]
[T]he likelihood that a CCO alone or in a combination sentence will be appropriate necessarily diminishes as the degree of negligence and the seriousness of the injuries increase. As the Court recognised in Boulton, a point will be reached at which such sentencing options cease to be capable of satisfying sentencing purposes of punishment, denunciation and deterrence.
[5]Harrison v The Queen[2015] VSCA 349; (2015) 49 VR 619, 622 [12], 648–9 [130] (citations omitted).
54Prison is a sentence of last resort, and must only be ordered where no other sentencing option is open. As I indicated on the plea hearing, I consider that a sentence other than imprisonment would be wholly inadequate. Whilst describing offending as falling within a particular range, for the offence type, is fraught with difficulty, I consider that your offending was at least of mid range gravity for this offence.
Other matters
55Negligently causing serious injury carries a maximum penalty of 10 years’ imprisonment. The objective gravity of the offending is a significant matter in the sentencing exercise. General deterrence and just punishment, as well as denunciation of your conduct also carry weight. In view of your driving history specific deterrence is also relevant.
56I have had regard to the sentences noted by the prosecutor, which have provided considerable assistance as to the range of sentences imposed for similar and more serious offending.
Licence orders.
57I am required by the Sentencing Act and the Road Safety Act to cancel your driver’s licence and disqualify you from driving for 24 months in respect to Charge 1 and 12 months in respect to the summary offence. It is not necessary to “cumulate’ the periods of disqualification.
58Therefore on Charge 1 your licence is cancelled and you are disqualified from obtaining a licence for a period of 24 months from today. On the summary charge the period is 12 months.
59I make a finding under s 89C(1) of the Sentencing Act that Charge 1 was committed whilst you were under the influence of a drug, which contributed to the offence.
Sentences
60I sentence you on the basis that you, by conscious and voluntary actions, drove onto the wrong side of the road and continued to drive down that lane for a distance of approximately 90 metres, failing to see an obvious hazard directly in front of you. You did so in the context of prior erratic driving, and with methylamphetamine in your system. Ms Hammer’s injuries were very significant. The had and continue to have many adverse effects on her life and wellbeing.
61The sentence on Charge 1, is four years and six months’ imprisonment.
62On the summary charge, because I have taken the drug use into account in assessing the gravity of a charge of negligently causing serious injury, I find the charge proved but impose no other penalty.
63I set a non-parole period of three years.
64I declare, pursuant to s18 of the Sentencing Act, that you have served 15 days as pre-sentence detention not including today and direct that that declaration be entered into the records of the court.
65Pursuant to s 6AAA of the Sentencing Act, I state that if you had not plead guilty I would have sentenced you to six years imprisonment’ with a non-parole period of four years.
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