Director of Public Prosecutions v Micallef
[2013] VCC 1878
•27 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01559
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHRISTOPHER ANTHONY MICALLEF |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 November 2013 | |
CASE MAY BE CITED AS: | DPP v Micallef | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1878 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Tinney | |
| For the Accused | Ms J. Dixon SC with Ms Tait |
HIS HONOUR:
1 Christopher Anthony Micallef, you have pleaded guilty to one charge of dangerous driving causing death. You have admitted your criminal record, a conviction for exceed the speed limit.
2 The facts of the matter are set out in the prosecution opening, Exhibit 1. Apart from two matters which your counsel indicated are in dispute, the rest of the facts are not so disputed. I will not now recount them, I will place that exhibit on the file and any reader of these reasons can refer to the file to place the sentence in its factual context.
3 Ms Dixon, on your behalf, took issue with paragraph 7 on p.3 of the summary in relation to how you were at the BP station shortly prior to the impact. A passenger in the deceased's car, Rachael Tingley, saw you shortly prior to the collision at the BP Service Station and said you looked tired and physically exhausted. Ms Dixon referred to the in store video of this incident and has submitted it did not show you to be in such a condition. Mr Tinney, the Crown prosecutor, agreed with this but maintained that the statement of Ms Tingley should be taken into account.
4 After discussion, I was asked not to make a finding as to these facts, as both parties submitted that it was not essential to my sentencing decision. I have watched that video a number of times and to the extent that I can come to any conclusion, I would agree with both counsels' opinions.
5
The second factual issue in dispute is a minor one, it is at p.23, p7 of the summary. Ms Dixon submitted that the answer in the record of interview revealed that you woke up that morning at 6.30 am and not 5 am as stated.
Mr Tinney did not dispute this.
6 Mr Tinney tendered six victim impact statements. Two were read in the court, one by the deceased's mother, Beverley Steart, and one by the passenger in the car, Rachael Tingley. They were indeed very moving accounts.
7 In submission, Mr Tinney made the following points:
(1) He did not concede that the facts here were at the lower end of the offending for this particular crime. He submitted that you must have been fatigued or at least aware of that. He pointed to the taking of the No Doz that you had bought at the BP Service Station. He submitted that you knew or ought to have known of your tired condition;
(2) He submitted it was a serious breach of the proper management of a motor vehicle;
(3) The facts here were not at the upper range of this type of offence;
(4) He acknowledged you made an early plea of guilty;
(5) He pointed to your antecedents, your admissions and your conduct since the offence;
(6) He accepted you had shown clear and strong remorse;
(7) That you had demonstrated good character;
(8) He referred to powerful and moving victim impact statements;
(9) He submitted that general deterrence was important here as a sentencing consideration;
(10) Specific deterrence was not significant;
(11) In relation to your age, he said your youthfulness was not a factor in sentencing for this type offending because often young drivers re involved.
8 He submitted that an appropriate sentencing range, after a consideration of all those issues, is a head sentence of three to four years with a non-parole period of one to two and a half years. He also said that a wholly suspended sentence was not outside the sentencing range in the circumstances of this particular case.
9 On your behalf Ms Dixon relied on the following matters;
(1) Your early plea of guilty;
(2) Your remorse;
(3) The circumstances of the offending;
(4) Your behaviour immediately after impact by making the 000 call at the scene;
(5) Your full admissions to police;
(6) Your age;
(7) Your good character;
(8) Some delay in the matter;
(9) The references that she tendered; and
(10) The character evidence given by Darren Skinner, Brittany Micallef and Jan Burton.
10 Ms Dixon submitted that the offending occurred when you had a micro-sleep or just dosed off prior to the collision. She said your car was roadworthy, you were not speeding, you had not taken drugs or consumed alcohol. She submitted that you took the No Doz because you were aware you might become fatigued. She submitted that retrospectively you ought to have known how tired you were. You had worked all day, but in your record of interview you told police that you were not feeling tired but physically felt a bit wrecked. You told police that there had not really been any signs before the crash that you were tired. Although, you did purchase the No Doz at the service station, a substance you had not used before, to give you energy.
Personal circumstances
11 You are a self-employed plasterer, now aged 23, 21 at the time of this driving. You grew up in the Bacchus Marsh area. You are supported in court by your family and friends. You had a well-adjusted childhood, you left school at the end of Year 10 and commenced a plastering apprenticeship which you finished in three years. At the age of 19, you started your own business and you usually have at least one employee and one apprentice. Prior to the accident, there was evidence by way of testimony from the witness box and in references. You were a happy, outgoing, independent person. Since the accident, it is said, you have changed and become despairing and appear to be in shock. You have a solid and supportive family, a relationship that you were in ended just after the accident. It is submitted you were deeply affected by guilt.
12 Mr Skinner testified that you have changed from a happy effervescent person to being morose and withdrawn, and you have shown extreme remorse. Your sister Brittany who you contacted on the night, and who attended the scene shortly thereafter, spoke of incidents of you crying in the shower. After the accident you dialled 000 and cooperated with police in a record of interview, despite receiving legal advice not to.
13 You subsequently made a plaster cross, which you took to the scene of the impact and visited that scene regularly for quite some time.
14 Ms Dixon referred me to, and handed up a number of cases and submitted that your behaviour here showed a low level of culpability. She submitted that a CCO order or a suspended sentence are in the sentencing range. I indicated during the plea that the offending was too serious for me to consider a CCO.
Sentencing Considerations.
15 I have taken into account all of the submissions made, exhibits tendered, cases referred to and evidence called, including any not specifically referred to in these reasons. I have considered and applied s.5, sub-s. 1 of the Sentencing Act. Because of the wide variety of factual circumstances involved in these types of cases, invariably the sentence imposed is in the framework of the peculiarities of the relevant facts of the driving. The following facts are clear to me:
16 (1) You were not speeding
17 (2) The car was roadworthy
18 (3) You veered left approximately 30 centimetres into the emergency lane just prior to impact
19 (4) You were not affected by alcohol or drugs
20 (5) There was no evidence of other errant driving on that night
21 (6) You either dozed off, or as your counsel described it, had a "mini-sleep" just prior to impact
22 (7) The victim was blameless
23 (8) You were aware of the possibilities of tiredness because of your long day and that was indicated by your unusual purchase of the No Doz
24 (9) You behaved appropriately and responsible after the impact by calling 000 and cooperating with police
25 (10) You have been deeply affected by what occurred.
26 Precisely assessing the moral culpability by the use of ranking terms such as low, medium and high is a difficult task for a sentencing judge. Your driving here was certainly not in the highest or worst bracket. There is no evidence of any other errant driving prior to the impact. Because of my conclusion that you were aware of the possibility of tiredness, I would place it in the low-to-middle level of moral culpability. Instead of taking No Doz, perhaps a better course would have been to pull over and have a quick sleep. I would place the objective seriousness of your driving at the same level. The basic purposes for which the court may impose a sentence of punishment, include deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct, the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society. General deterrence is an important sentencing factor here, and that the sentence should be a deterrent to others from following a similar course of driving dangerously.
27 It is important to understand that you have not been convicted of the crime of culpable driving. Specific deterrence because of your background and behaviour since the event, in my view, is not significant. The court's denunciation of such driving is also a relevant factor. I am convinced of your remorse, and believe that it is unlikely you will reoffend. I have carefully weighed all the sentencing considerations and the submissions made by both parties. I am very conscious of the fact that whatever I say and do can never replace the loss of life that has occurred, or diminish the grief and sorrow of the family members. Life is a precious thing, and in an instant it was lost here.
28 At 12.15 am on the Calder Freeway, the victim stepped outside of a car in the emergency lane, then another car verged left into her path and impacted with her. A moment's inattention cost her life.
29 Doing the best I can in evaluating the different sentencing considerations in the circumstances of this case, I impose the following sentence; I sentence you to a term of imprisonment of two years, and I wholly suspend that term of imprisonment for the period of two years. In doing so, I have taken into account the factors, including your plea of guilty.
30 It is clear under s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to a term of imprisonment, if you were convicted by a jury, of five years for a non-parole period of three years. Are there any other matters I must look at?
31 MR TINNEY: The requirement for the cancellation of the license - - -
32 HIS HONOUR: The cancellation, sorry.
33 MR TINNEY: - - - and disqualification, Your Honour.
34 HIS HONOUR: Sorry, I cancel your license and disqualify you from obtaining a license for a period of two years. Thank you, Mr Tinney.
35 MR TINNEY: Yes, Your Honour.
36 HIS HONOUR: Are there any other matters?
37 MS DIXON: No, Your Honour.
38 MR TINNEY: No, Your Honour.
39 HIS HONOUR: You can sit down Mr Micallef, and when I leave you can leave the dock. We'll adjourn until ten o'clock tomorrow. Sorry, sit down again, thank you. In relation to the suspended sentence, Mr Micallef I must tell you that if in the next two years you commit an offence punishable by law, unless you can show exceptional circumstances, you do two years gaol. Do you understand that?
40 PRISONER: Yes.
41 HIS HONOUR: And you must understand that that is a straight sentence, there is no parole period in relation to it.
42 PRISONER: Yes.
43 HIS HONOUR: So any offence that is punishable by a term of imprisonment, and that can include a lot of minor stuff. If you breach it, you come back before me and unless you show exceptional circumstances you do two years. Thank you.
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