Director of Public Prosecutions v Mica

[2021] VCC 1876

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
(Not) Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS	CR-21-00037
v
PATRICIA MICA

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 NOVEBMER 2021
DATE OF SENTENCE:	19 NOVEMBER 2021
CASE MAY BE CITED AS:	DPP v Mica
MEDIUM NEUTRAL CITATION:	[2021] VCC 1876

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence

Catchwords:              Dangerous driving causing death – Early plea of guilty – Evidence of remorse – No prior convictions – Non-custodial sentence – Community Correction Order (‘CCO’) – Mental illness present at the time of sentencing

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] 16 VR 269; Worboyes v The Queen [2021] VSCA 169;

Sentence:                  Community Correction Order for 3 years, with conviction.

Driver’s licence cancellation and disqualification from obtaining a licence for 18 months.

Section 6AAA declaration: Conviction and total effective sentence of 2 years and 6 months imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. HUTTON	Office of Public Prosecutions
For the Accused	Mr P.SMALLWOOD	Lewenberg & Lewenberg Solicitors

HER HONOUR:

1Patricia Mica you have pleaded guilty to one charge of dangerous driving causing death.  The offence occurred on 5 July 2019 when you were driving along Riversdale Road, in Camberwell.

2On that day it was clear and sunny. You had been cleaning your old home having moved to a new address.  You were driving at or under the speed limit, and were not affected by drugs or alcohol.  As you were driving you took your eyes off the road for a short time to deal with a vase that was falling over on the front passenger seat.

3The victim of the offence was Astrid Yvonne Norman.  She lived nearby with her daughter and two grandchildren.  She was at around 1.50 pm that Friday afternoon, walking from her home, intending to cross Riversdale Road. At that point Riversdale Road had two lanes for traffic in either direction.  There were tram tracks in the centre of the road, with vehicle traffic lanes over the tracks, and to the left on each side, so that cars could travel in both lanes if no cars were parked along the road. 

4Ms Norman approached Riversdale Road, and slowed down to look to her right, to check for oncoming traffic.  Having waited to allow a car to pass she walked to the centre of the road, close to the centre line, to wait for the traffic travelling in the other direction to pass.  Whilst she was standing there, another car passed behind her, travelling in the same direction as you. You were driving some distance behind that car.

5The right hand front of your car struck Ms Norman, throwing her into the air and forward.  She suffered fatal injuries, particularly to her head, and did not recover consciousness.

6You stopped your car, as did others who had been driving by.  Those who observed you at the scene described you as extremely upset, having realised that you had killed Ms Norman.

7Ms Norman had been on the roadway for around 11 seconds.  The prosecution accepted that your ability to see her was potentially blocked by the car driving in front of you, and thus that you had around 3 seconds of unobscured opportunity to see her on the road and avoid her.  Whilst you had the capacity to see Ms Norman on the road for a period of around 3 seconds you did not see her, presumably because you were distracted by the vase next to you, or by simple error. 

8You were not speeding.  You were not affected by drugs or alcohol and there was nothing raised about your driving before the collision to indicate poor attention or driving.

9Victim Impact Statements were read by Ms Norman’s daughter, Ms Emma Smith and best friend, Ms Susan Ledwidge.  Ms Norman’s daughter Emma has suffered the loss of both her brother and now her mother due to the driving of another person.  Ms Norman lived with her daughter and two granddaughters, and was close to them all. They are all deeply hurt by her death.  The girls suffer from anxiety and all three of them are constantly reminded of this event when passing the location of the collision, which is near their home.  Ms Smith ended her statement saying:

This was her time to enjoy life without the pressures of trying to fend for herself, it was her time to have peace, to watch the life of her granddaughter’s blossom. It was her time to see her daughter, me, go through a positive life experience, to be the woman that she knew lived inside of me. It was her time to laugh, go to the theatre, to art galleries, go to church and to be surrounded by all the love she so deserved.

My mum is not another faceless statistic, she was one of a kind, she had great compassion and empathy for others that I have never seen in another person. A real beautiful soul put on this earth. I miss her terribly.

10Susan Ledwidge told me of the long and deep friendship she had with Ms Norman, and of the great support that Ms Norman provided to her when her son died, three months before Ms Norman was herself killed.  Ms Ledwidge wrote:

I feel so very cheated having my best friend taken from me and in this most dreadful way, I have suffered greatly by her death.

I have also seen how the effect of Yvonne’s death has had on her daughter Emma and granddaughters ….

We too are suffering depression, anxiety and mental health issues, we all are still or have been receiving counselling and with this we try as best as we can to continue living without Yvonne. Her love, understanding, her gentleness, her generosity and her great wisdom are just a few things we miss every day that have been taken from us but mostly just the physical, very precious being of just her.

Personal Circumstances

11At the time of this offence you were 35 years old, and you are now 38.  You were born in Romania and grew up during the communist control of that country.  Your family struggled financially and had little freedom.  Your father was a heavy drinker, and whilst he was not violent his drinking habit caused further financial hardship for your family.

12When you were still a child the communist regime was toppled, with the civil conflict sometimes involving fighting near your home.  This was very frightening for you, causing what Mr Newton has described as fear and dread.  Another frightening experience occurred when you were young teenager, which left you feeling powerless and confused.

13You were a very good student and completed a degree in economics in Romania.  After you immigrated to Australia, in 2010 when you were around 27, you completed a master’s degree in accounting, and worked in finance related positions.  Prior to this incident you had a solid work history, but since you have not worked in the area which you studied and have worked  irregularly in less skilled jobs.

14Your older sister and your parents still live in Romania, and your younger sister lives in the US.  You remain in regular contact with your family but at the time that you were assessed by Mr Newton for the purposes of the plea hearing you had not told them of the charges against you.

15You have been in a stable relationship for around 9 and a half years, with your current partner.  You report a strong bond with your partner, and that he is supportive of you in the face of the prosecution of this matter, and the psychological consequences upon you and your way of life.  Prior to this collision you were discussing marrying and having children, but both plans have been put on hold. 

16You have no prior or subsequent involvement with the criminal law.  You are a light social drinker, and do not use illicit drugs.

17You describe yourself as growing up in an environment that valued respect towards others and helping those in need, and that you have endeavoured to live by such principles throughout your life.  You are religious and attend Mass weekly.  You say that you pray for Ms Norman’s soul each night, and for God’s forgiveness for your actions.[1]

[1]Exhibit D3, Letter dated 10 November 2021 from Patricia Mica

18Your friend Mr Martin, who has known you for 17 years, described you as always positive and helpful to others.  He says that you, more than once, went out of your way to help him when he needed you.  You remained close until this event, but since then you have distanced yourself from him.  It was only in the middle of this year that he learnt of the charges you were facing, when you told him you were crying uncontrollably and inconsolable.  He said, in his letter of support:[2]

I know she is deeply sorry about what has happened. She expressed her profound regret to me, particularly about the family of the victim and her own family. She told me she feels she has caused a lot of unintentional hurt to a lot of people, and she is deeply remorseful about that.

[2]Exhibit D1, Letter dated 10 November 2021 from Bodgan Martin

19Your sister Maria also provided a letter of support for you, describing you as responsible, helpful and as a wonderful person who puts others needs above your own.  She says that since this offence you have changed significantly. You are fearful, full of regret, communicating less, anxious, and that you report having nightmares and other signs of depression.[3]

[3]Exhibit D2, Letter dated 10 November 2021 from Patricia Mica

Mental Health

20Despite the traumas you suffered as a child you had not, before the offence, sought assistance regarding your mental health, to deal with both those past events, and other life stressors.

21Since the death of Ms Norman, you have suffered profound emotional distress, including significant depression, suicidal ideation and post-traumatic stress symptoms.[4] Your symptoms have grown worse and more pervasive as time has passed.

[4]Exhibit D4, Report of Mr Patrick Newton, clinical and forensic psychologist, dated 16 October 2021, [28]

22Whilst you consulted a psychologist in March 2021, you felt unable to continue with treatment at that time.  When Mr Newton interviewed you in September and October 2021 you had not sought further treatment.  At the time of the plea, you had recently made contact with a psychologist, and were in the process of getting a Mental Health Care Plan from your GP to participate in counselling.

23Mr Newton articulated your state as follows:

Ms Mica’s depression focuses upon her sense of distress for having been involved in the death of another person and is magnified by her recognition that, regardless of her own behaviour now, nothing can restore the deceased woman to life. Adding to her sorrow, Ms Mica regularly reflects on the suffering of the deceased woman’s family. This intensifies Ms Mica’s pain but also inspires compassion and empathy for their anguish. She continues to be burdened by an intensely negative and self-recriminatory inner dialogue. Some aspects of this are considered a positive indicator of insight and maturity on Ms Mica’s part; others have undermined her self-esteem and impaired her capacity to participate in work, relationships and other day-to-day activities.[5]

[5]Exhibit D4, [33]

24You have ruminated on suicide and attempted suicide at least once, although you say you do not currently plan to act on such thoughts.  Mr Newton considered it imperative that precautions be taken to protect you from impulsive acts of self-harm.[6]

[6]Exhibit D4 [36]

25Mr Newton diagnosed you as suffering from a major depressive disorder of moderate clinical severity.[7]  Your distress is exacerbated by anxiety, and re-living the collision with associated post traumatic symptoms such as hyper-arousal and re-experiencing the emotional responses you felt at the time of horror, sadness and powerlessness.[8]  Mr Newton also considered that your symptoms met the diagnostic criteria of Post Traumatic Stress Disorder.[9]

[7]Exhibit D4 [37]

[8]Exhibit D4 [38]-[41]

[9]Exhibit D4 [46]

26You report becoming fearful of being alone, and that you are increasingly dependent on your partner for support which places strain on that relationship.  Your picture of yourself has changed, impacting how you felt you could interact with your friends and family, and leading to alienation such as was described by Mr Martin in his letter.

27Mr Newton considered that in view of the severe psychological problems you are having that it was urgent for you to receive ongoing mental health care.  It is positive that you have now started steps to get such help.  He anticipated that it would take some time for you to recover to a more normal state.  He was concerned that you would experience a significant increase in your symptoms in the period associated with the resolution of the proceedings against you.[10]

[10]Exhibit D4[55]-[57]

28Importantly he said:[11]

The risk of a complicated trauma reaction would be increased in Ms Mica’s case if she were to be required to serve a term of imprisonment. Not only is she naïve to the prison environment and demographically diverse from most inmates, but the disruption to her already fragile social supports and the increase in the level of stress surrounding her would both contribute to a substantially increased experience of anxiety and depression. … while experiences of distress are, of course, an almost universal aspect of incarceration, in Ms Mica’s case the impact of them would be substantially and materially more severe than is typically seen because of her pre-existing trauma and depression, intensified by her cultural dislocation, social alienation and the unresolved challenges from her developmental period.

As a result of such factors, I would anticipate that Ms Mica’s experience of adjusting to the custodial context would be likely to be particularly difficult. It would be likely that she would require intense professional support during any period in custody, and that she would remain vulnerable throughout any time in prison to both more regular and more intense bouts of clinically intense anxiety and mood disturbance than would a prisoner who did not suffer her pre-existing conditions. To this extent the effect upon Ms Mica of any term of imprisonment which the Court might see fit to impose would be likely to be substantially more onerous than is ordinarily the case. Given this, the risks to her mental health would also be substantially greater than is typical.

[11]Exhibit D4 [58]-[59]

Category 2 offence – Sentencing Act 1991 s 5(2H)

29The offence of dangerous driving causing death is a category 2 offence so that a term of imprisonment, not combined with a CCO, must be imposed unless one or more of the exceptions set out in the Sentencing Act 1991 are met.

30In view of the opinion of Mr Newton I have set out above regarding the impact of the diagnoses of major depression and post traumatic stress disorder upon your likely experience of prison, it was not disputed that the exception provided by s5(2H)(c)(ii) was made out. The prosecution submitted, however, that a sentence involving a term of imprisonment was still appropriate.

31That being so, I will consider what sentence ought to be imposed, according to the normal principles applicable to the sentencing discretion.

Matters in Mitigation

32I take into account the following matters raised on your behalf:

(a)   Your plea of guilty gives rise to significant mitigation of your sentence.  It carries with it real utilitarian benefit, has facilitated the administration of justice and reflects your remorse.  The weight in mitigation is greater in view of the effect of the pandemic upon the operations of the Court;[12]

(b)   You are sincerely and deeply remorseful for having caused the death of Ms Norman. You have suffered significant mental health issues in consequence, so that it would be unfair to place the full load of general deterrence upon you;[13] and

(c)   You are a person of otherwise exemplary character, and there is little or no prosect that you will come before the courts again. I consider that there is no need to give weight to the principle of specific deterrence. 

[12]Worboyes v The Queen [2021] VSCA 169, [35]-[39].

[13]R v Verdins [2007] 16 VR 269, [14]-[24]

33Your counsel accepted, very properly, that the offence of dangerous driving causing death is serious, and that the taking of a life, even unintentionally, is a grave matter. You are to be sentenced for what you did, and the consequences of that.  You have accepted, by your plea, that your driving involved a serious breach of the proper management of a vehicle, creating a real risk that a member of the public would be killed or seriously injured.  Whilst it is true that factors which would have made your culpability higher are not present, this case highlights the level of care and attention required by drivers, and the tragic consequences that can follow when a driver is distracted or inattentive, even for a short time.

34In considering the circumstances of the offence I do not lose sight of the loss suffered by Ms Norman’s friends and family and that her life has been cut short.  But I must also take into account that the period during which you were inattentive and did not keep a proper look out was very short, and that there are no features of aggravation which would make you more culpable than you are.

35In most cases it would be appropriate to impose a term of imprisonment for a charge of dangerous driving causing death, and I acknowledge the clear indication from Parliament that such a sentence is normally to be imposed. Nevertheless, individualised justice requires each case to be considered on its own facts. 

36To someone uninformed of the facts of this case it may seem that a sentence which does not include jail is inadequate in the face of the death of Ms Norman, and the loss suffered by those who loved her.  I consider, however, that in view of:

(i)your plea of guilty;

(ii)your very real remorse and contrition;

(iii)that the dangerousness of your driving was near the lowest end of the range; and

(iv)your parlous mental state,

that it is unnecessary to impose a sentence of imprisonment. 

37I do give weight to the principles of general deterrence, denunciation and just punishment.  In your case I consider that these factors can be appropriately met by the imposition of a significant Community Correction Order.

38The terms of the order that I will be making are, you will be convicted and ordered to serve a Community Correction Order for a period of three years.  The conditions in addition to the normal core conditions will be that you must perform 400 hours of unpaid community work within the three year period of the order and that you must undergo assessment and treatment in respect to your mental health.  I will direct that 50 hours of time spent in treatment and rehabilitation can be counted as unpaid community work hours.

39In addition to the Community Correction Order, pursuant to s89(2)(a) of the Sentencing Act, your driver's licence is cancelled, and you are disqualified from obtaining a licence for a period of 18 months from today. 

40Pursuant to s6AAA, I declare that if you had not pleaded guilty, I would have sentenced you to two and a half years imprisonment with a non-parole period of 18 months.

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