Director of Public Prosecutions v Nicolakopoulous
[2015] VCC 1498
•9 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01548
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICOLAOS NICOLAKOPOULOUS |
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JUDGE: | MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 September 2015 | |
CASE MAY BE CITED AS: | DPP v Nicolakopoulous | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1498 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | Office of Public Prosecutions |
| For the Accused | Mr B. Walmsley QC, with Mr C. Kilias | Vassis & Co. |
HIS HONOUR:
1 You can remain seated, Mr Nicolakopoulous. Jessalyn Leong was a vibrant and much loved 14‑year‑old. She had, in her short life, brightened up the lives of her parents and her two older brothers. They were a happy and contented family. It is clear her parents adored her.
2 They had gone through much leaving the turmoil of their native country, East Timor, settling as refugees in this country so as to give their children as good a chance at a safe and happy life as they could.
3 Jessalyn was born when her parents were in Australia. Her parents and brothers enjoyed every aspect of her life and no doubt looked forward to seeing her flourish into a mature young woman with so much before her and so much potential.
4 To them there is enduring, inconsolable grief when she was killed on 28 March 2013 as she waited at the tram stop on the corner of Bridge and Church Streets, Richmond; a place that now haunts her family.
5 You, Nicolaos Nicolakopoulous, were driving a work truck north along Church Street with two fellow workers as passengers. You were to drop them off and to continue on to your work depot in Kensington after another day of hard and productive work. As you approached the intersection the lights were red. A four-wheel drive had pulled out from the parking bays and into the left-hand lane, possibly shortening your time to pull up. However, the lights and the other traffic were there to be seen. You were not breaking the speed limit but your inattention meant you did not get the brakes on quickly enough. You headed for the rear of the four-wheel drive. In this situation you pulled to the left, mounted the footpath, you hit a bin and then tragically Ms Leong who just could not get out of the way quickly enough. Her friend, Ms Pang, just got away in time, as did another man waiting for the tram.
6 You were immediately apologetic and in shock. Your cooperated with the police when they arrived. Yours was a momentary loss of concentration but our community expects all drivers to be attentive to the many things happening on busy roads. A car, and more so a truck, is lethal if the driver is not concentrating so as to control and operate the vehicle to avoid avoidable collisions. This was tragically so avoidable. Falling below standards, even momentarily brings life-changing consequences for all affected.
7 Mr Nicolakopoulous, you committed and then pleaded guilty to the crime of dangerous driving causing death of Jessalyn Leong and as such the consequences are that now you must be punished.
8 The victim impact statements tendered and read on this plea were heartfelt tributes. They also set out the devastating and ongoing consequences for Ms Leong's close and decent family. There is little more I can adequately say that will make things easier for them.
9 I have taken the impact of this crime on them into account. But my sentence can never return things to the way they were before. My sentence is not the measure of the value of Ms Leong's life. Her life was immeasurably valuable. All I can do is to try to do justice by imposing a sentence that is appropriate in all the circumstances. In doing that I take into account that this was a momentary loss of attention. None of the all too common features of alcohol, drugs, excessive speed, risk taking or even deliberately making a driver distracted by talking on the phone, none of those were present here.
10 Also I take into account the very significant step you have made of pleading guilt in the circumstances of this case. Also you have always been remorseful and you will live with what you did as a lifelong burden. Those matters are of real significance.
11 You are now 39, happily married and the father of one toddler and soon to have a new baby. Your work history is very impressive and I give credit to you for that. You have very considerable support from family and a wide range of friends. These matters all indicate your good character, a prospect that you will never be in trouble again and that you yourself are well chastened and deterred so that you will never be involved in the criminal justice system again.
12 Of importance is that you have never been in trouble with the law before or since. I have not quoted or even yet referred to the many testimonials written by friends, family that were tendered on the plea. I have rarely encountered a more impressive set of testimonials. These were from people who know you well, who speak genuinely of your many good qualities as a family man, as a decent citizen, as a hard worker, a husband, a father, a brother and a friend. They speak of how devastated you are and your gut-wrenching remorse.
13 You too are haunted by the intersection, avoiding it, indeed avoiding driving if you possibly can. You are in many ways a simple, labouring man but that is no mere thing. Your success is your decency. It is up to you to continue your law-abiding ways into the future. I have been assisted by the report of Ms Lechner especially on your prospects.
14 You must be punished and others deterred from driving at less than the required standards. As indicated earlier in a hearing held pursuant to the provisions of the Criminal Procedure Act there is no need for me to use the punishment of last resort, incarceration in a gaol. No-one is ever the same once they go to gaol.
15 It would not be just and appropriate to send you to gaol. All sentencing considerations, including punishment, can be achieved by a lengthy community corrections order. Such an order is no soft option. It will involve unpaid work and so programs to assist you. There is little more I wish to say. I hope the brevity of what are incorporated in these sentencing remarks does not undermine but gives full expression to how serious this crime is, how devastating its impact has been and how the community have to understand that driving with full attention is an absolute requirement.
16 Mr Nicolakopoulous, for committing the crime of dangerous driving and causing the death of Jessalyn Leong I convict you and impose a three-year community corrections order. You must do 250 hours of unpaid community work. You must attend for treatment and assessment for mental health problems. You must do programs directed at your type of offending, road trauma, if directed by the Office of Corrections and you must be under the supervision of the Office of Corrections. There are other conditions that apply to everyone who is on a community corrections order. When a document is produced it will outline those to you. If you consent to them and sign that document that will bring the matter to an end.
17 Although oddly I am not required by the provisions of the Sentencing Act to indicate to you and the community what I would have done had you pleaded not guilty to this offence and been found guilty off it by reason of imposing a community corrections order. But I do indicate to you and to the community that had you pleaded not guilty to this offence and been found guilty of it I would have imposed a sentence of two years with a minimum of 14 months' imprisonment.
18 As a consequence of the provisions of the Road Safety Act and the Sentencing Act I must make am order affecting your licence. That is no small matter for a man like you who requires his licence, no doubt, for work. But in your circumstances I consider that the minimum mandatory term of disqualification is appropriate, thus your licence is cancelled and you are disqualified from driving for a period of 18 months.
19 MR WALMSLEY: May it please, Your Honour.
20 MS CHURCHILL: As Your Honour pleases.
21 HIS HONOUR: Are there any other orders?
22 MS CHURCHILL: No, Your Honour.
23 HIS HONOUR: Thank you. Just if I could get the document printed out and signed by Mr Nicolakopoulous, as I say, it will bring the matter to an end. Mr Nicolakopoulous, the community corrections order will be for three years commencing today, 9 September 2015, and ending on 8 September 2018. There are conditions that apply mandatorily to everyone on a community corrections order. They apply to you and they are important. I outline them and stress the first, "You must not commit any other offence for which you could be imprisoned during the time that the order is in force."
24 Now, of course, the way through that is commit no offences, as you have, ever. But if you do so in the period 9 September 2015 to 8 September 2018 you will breach this order and you will have to come back. We have cases every day, Mr Nicolakopoulous, but I will not ever forget this one. So I will remember that you promised to get through this order and if you don't, well, the mercy that's been afforded to you today won't be repeated.
25 The lawyers that assist you will explain to you that almost every offence that you can think of is punishable by imprisonment. Can I just stress driving without a licence while you're disqualified, even if the circumstances look urgent concerning your children or the like, it just must not be done. Get a taxi. "You must comply with" - these are other conditions - "any obligation or requirement under the Sentencing Regulations." That will include having your photograph taken so they can identify who you when you attend at various things. "You must report to and receive visits from the Office of Corrections. You must report to the Community Corrections Centre at the Dandenong Community Correctional Service in Walker Street, Dandenong, within two clear working days." Go tomorrow or at least by Monday.
26 "You must not leave Victoria without getting permission from the Office of Corrections." That's for any trip. "You must obey all lawful instructions from the Office of Corrections," and, "You must let the know within two clear working days if you change your address or your job." So just keep them informed of what you up to. The conditions that apply in addition to those I have just listed that apply to you are 250 hours of unpaid community work over three years. Not everyone that you see there will be as dedicated to getting the job done as you are, so don't be distracted. Do the 250 hours, turning up when you're suppose and leaving only when you're allowed to.
27 You will be under supervision of the Community Corrections officers, so they will wish to see you from time to time and report and all the rest to see how you're going. You must undergo a mental health assessment. The might be facilitated through your general practitioner, just talk to him about that. You must participate in programs that may address offending such as road trauma awareness, if you're directed to do so. If you consent to that and sign it, that will bring the matter to an end. If the instructing solicitor just wishes to get that signed. I have signed that order. Is there anything else required?
28 MS CHURCHILL: No, Your Honour.
29 MR WALMSLEY: No, Your Honour.
30 HIS HONOUR: I thank counsel for their very significant assistance throughout the course of this matter and for the sensible way that it resolved. I add to the sentiments of the family my thanks to the police officers who do a very difficult job in these very hard matters. Finally, I thank the parties, the families of both for the dignity in which the whole proceeding has been undertaken.
31 MS CHURCHILL: If the court pleases.
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