Director of Public Prosecutions v Nita
[2023] VCC 134
•13 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01091
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NALIN NITA |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2023 |
DATE OF SENTENCE: | 13 February 2023 |
CASE MAY BE CITED AS: | DPP v Nita |
MEDIUM NEUTRAL CITATION: | [2023] VCC 134 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to three charges of conduct endangering persons, one charge of negligently causing serious injury and one summary charge of driving with more than the prescribed concentration of drugs – teenage passengers – driving at very high speed – lost control of car – lied to police and tried to persuade teenagers to do so – some insight and remorse – complex PTSD – dysfunctional childhood – good prospects for rehabilitation – prospect of deportation and its effects on prison experience.
Cases Cited: Bausch v R [2019] VSCA 235
Sentence: Nine months' imprisonment with a two year CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | Office of Public Prosecutions |
For the Accused | Mr J. Barreiro | Bowler & Co |
HER HONOUR:
1Nalin Nita, you have pleaded guilty to three charges of conduct endangering persons and one charge of negligently causing serious injury. You have also pleaded guilty to one summary charge of driving with more than the prescribed concentration of drugs present.
2Today I will be sentencing you to a term of imprisonment of nine months, combined with a Community Correction Order. I will explain my reasons for making these orders.
The offending
3The charges arose out of a serious collision on 13 December 2021, which occurred when you lost control of the car you were driving. There were four teenage passengers in the car; three of whom were injured, one seriously.
4In these sentencing remarks I have set out the facts of the incident in some detail, but for completeness the prosecution summary will be appended.
5At the time of the offending you were working as an Uber driver and had leased a 2017 Toyota Camry sedan.
6At midnight on 13 December you arrived home and joined your daughter, Alysha, who was celebrating her 16th birthday. With her were her boyfriend, Noah Colston-McMaster, also aged 16, and two friends; Rhys Barham, aged 15, and George Pandazopoulos, aged 16. They all had cake and a shot of alcohol each. You had one or two shots of Jägermeister.
7At about 12.30 you all got into the Toyota Camry to go to McDonald's at Southbank. Your daughter sat in the front passenger seat and the three boys sat in the back. All were wearing seat belts.
8You drove along the Princes Freeway and West Gate Freeway, towards the city, at a fast rate of speed, often changing lanes without indicating. Two of the rear seat passengers saw from the speedometer that you were driving at 180 kilometres per hour in an 80 kilometre per hour zone. At one point Mr Barham saw the speedometer needle at 155 kilometres per hour and he said his heart was racing, as he had never been that fast before. The passengers were worried, but felt safe because they trusted you as an adult.
9You arrived at McDonald's Southbank and on the return journey you drove in a similar manner as before; fast and changing lanes without indicating. In Point Cook Road you went around a roundabout twice, at a fast speed, and playing music very loudly. In Duncan's Road you slowed down in response to police shepherding a small black calf from the centre of the road, requiring you to drive off the edge of the road to get around the calf.
10About a kilometre further on, once out of sight of the police, you accelerated to about 200 kilometres per hour in an 80 kilometre per hour zone. The passengers saw the speedometer and saw you hold up two fingers. They took this to mean that you had reached 200 kilometres per hour. You told them to 'hold on' and they braced themselves as the car went over a hill.
Mr Pandazopoulos said later that he was terrified.11The car was briefly airborne as it went over the hill then landed back onto the road, slightly off centre, and you then lost control. The car swerved to the right side of the road, then to the left, and briefly came off the road. You accelerated and swerved onto the opposite side of the road. The car went into a dip on the side of the road and came off the road completely and collided with a concrete wall on the right hand side of the road. The car smashed through the wall at a speed of 57 kilometres per hour on impact, where it rolled and hit a fence before stopping.
12Mr Barham was able to get out of the car and was in pain from his pelvis and leg. He found that Mr Colston-McMaster was unconscious, but was groaning without being able to communicate otherwise. Mr Barham helped
Mr Pandazopoulos out, who was in pain in his back, neck, chest and abdomen, and feeling that he had no oxygen in his lungs and was suffocating. You said to the passengers:'If anyone asks, we swerved to avoid a cow that was in the middle of the road and then we lost control'.
13You rang Triple 0 and police and ambulance arrived soon afterwards. You told police you had swerved to dodge a cow and said you had not had anything to drink that night.
14A forensic examination of the car revealed that you had been travelling at about 154 kilometres per hour 4.75 seconds before the collision, and at this point you were applying maximum braking. Tyre marks on the road indicated you had tried to avoid the collision by performing both left and right steering manoeuvres. I turn now to consider the injuries suffered by the passengers and the victim impact statements they provided.
The injuries suffered by those in the car and their victim impact statements
15First, the most seriously injured was Noah Colston-McMaster. He was admitted to hospital and was found to have suffered several jaw fractures, a skull fracture which formed a haematoma in the brain, a small fracture on his forehead, a fractured left elbow, a perforation in his small bowel, a right thumb fracture and damage to his teeth. He had surgery for the bowel perforation, involving removal of part of his small intestine, and then surgery for the skull, forehead and jaw fractures.
16Mr Colston-McMaster was discharged from hospital after five days, with ongoing treatments. These included numerous appointments with the various medical teams at the hospital and ongoing treatment, such as physiotherapy and neuropsychology, and, having suffered two seizures, he had appointments with the seizure clinic. His mother, Chloe McMaster, had to take six weeks off work to care for him and take him to appointments three or four times a week. All these matters are set out in victim impact statements provided by mother and son, which include details of the effects upon them of the collision.
17Mr Colston-McMaster described having been in deep pain when he returned to consciousness after the collision. He was unable to eat properly for four months. He could not go to work, as he could not stand for long periods, and still experiences dizziness and weakness at times. He had to give up his sport of ten-pin bowling at competition level, as he lacked enough strength. He is unable to take part in any physical activities which expose him to being hit on the head because of the brain injury he suffered. He found school difficult because of short-term memory loss. His treating neuropsychologist considers he suffered a moderate traumatic brain injury, which has affected his cognition, with an overlay of anxiety and stress.
18Ms McMaster described in her victim impact statement how she felt when the police knocked on her door and informed her of her son's involvement in an accident. Having worked as a Patient Service Assistant in a hospital, she knew something about the process and she was very fearful, as she had to wait over an hour and a half before she could see him. In the course of the medical examinations taking place her experience led her to consider that her son had a bowel perforation and she insisted on a further immediate CT scan, which was done and confirmed her belief. At that point he went into theatre very quickly.
19In the days and weeks following, Ms McMaster had to arrange care for her younger son, take time off work and arrange to continue her Bachelor of Nursing studies. She had to postpone her course as a St John's Ambulance worker and may now be unable to complete the course, as the time expired. She has lost the benefit of annual leave she had saved to use during her unpaid internships.
20Rhys Barham describes in his victim impact statement the burns he suffered from seat belt injuries on his hips and chest and he acknowledged that his more minor injuries enabled him to try to help the other passengers. Afterwards he experienced flashbacks about the accident, which woke him from sleep. His mother, Lisa Barham, described the shock of seeing her injured son and the others at the scene. She blamed herself for not having taken her son home from the birthday celebration herself and was angry with you, given that she trusted you as a mother to ensure the safety of her son.
21Maria Nardo, the mother of George Pandazopoulos, explained the very considerable and deleterious psychological effects of her son's involvement on him, on herself, and on the family more generally. She did not wish her statement to be read out in court, and so it is sufficient to note that the collision you caused has had very serious ramifications for this family.
Gravity of the offending
22The gravity of your offending is to be assessed objectively by the circumstances in which it occurred. You were an experienced Uber driver, and yet you drove at very high speeds. Even after you had observed the presence of the police in the vicinity at one point, this did not deter you. You asked the passengers to lie about the cause of the collision and you lied, yourself, to the police.
23You had methylamphetamine in your system at the time of driving, which is a further indication of the risk you took as a driver responsible for four young passengers. They trusted you to drive safely and two of them described how scared they were by your driving. Charge 4 specifically charges you with negligent driving and your deliberate speeding, combined with other modes of driving that night, represented a high degree of negligence.
24An assessment of the seriousness of the injuries suffered by
Mr Colston-McMaster requires consideration of the most serious injuries that can be inflicted through negligent driving, and it must be concluded that while they were certainly serious, they were less so than in some other cases at the highest level.Mitigating factors
25There are several factors that mitigate your culpability. First, your plea of guilty and its early indication. It is accepted that a plea of guilty assists the criminal justice system in avoiding a trial and it is therefore deserving of a discount on the sentence imposed. In this case, the avoidance of a trial has spared the young passengers and their parents from having to give evidence at court.
26A particular difficulty may have been the need for your daughter to be
cross-examined during a trial. As the impact of the COVID-19 pandemic is still affecting the court, resulting in a large backlog of cases, the plea has additional value in avoiding a trial, and I take that into account. It is also generally accepted that a plea of guilty is an indication of remorse and acceptance of responsibility for the crime, and there is no doubt that you are remorseful and have taken the blame, although with some limitations.27You attempted to minimise the finding of methylamphetamine in your system, saying you believed it was 'second hand' and introduced into your body by inhalation through others using it. The prosecution submission was that this is simply not credible, and I agree. However, as your counsel submitted, the prosecution has not established any causal connection between the consumption of drugs and your driving, and so the presence of drugs in your system cannot be regarded as logically bearing on the gravity of the offending[1]. Its significance lies only in its illegality, which is covered by the summary charge to which you have pleaded guilty.
[1]Bausch v R [2019] VSCA 235 [31]
28You told Ms Lechner, the psychologist who assessed you recently, that when driving you had not looked at the speedometer, and so did not know how fast you were driving, but that is at odds with what the passengers stated. It must be concluded that you knew you were speeding and that it was deliberate.
29Although you have convictions for three driving-related offences dealt with on the same day in 2003 and resulting in fines, their age means I place no practical weight on them for sentencing purposes. Conversely, the lack of relevant driving offences indicates you have been a safe and responsible driver during the years as an Uber driver, and earlier, and you deserve some moderation, if not substantial moderation, in recognition of that.
30You are, otherwise, a person of good character, and several people have provided written references in this regard. They know you as a hard-working single mother with strong family values, whose offending is out of character and represents an atypical failure of judgment.
31Your strong work ethic is borne out by the fact that you have been working for some time in a location where you were able to get work, far from the suburb where your daughters are living, and because you gave up driving after the collision you had to move house to enable access to your job by public transport. These matters indicate that you have good prospects for rehabilitation and there is little risk of further offending.
Personal background and circumstances
32The reference to failure of judgment calls for consideration of your background, and some consequences which flow from it, and which lead to some further mitigation.
33You were born in Fiji and had a very difficult upbringing in the context of your father's serious abuse of your mother. On one occasion he stabbed her, resulting in her admission to hospital in an intensive care unit. You were told she was dead and you did not see her for several years. Your parents separated when you were 12 and at 14 you migrated to New Zealand, and your education finished at this stage.
34At the age of 15 you were married to a 53 year old man, in an arranged marriage, which lasted for a year. On arrival in Australia, at the age of 18, you formed a relationship with a man who was a heavy drinker. That lasted for five years and two daughters were born, now aged 18 and 17. After the marriage breakdown you had no stable housing and stayed temporarily with a family member until establishing a household with your mother, with whom you were still living until recently. You are now aged 38.
35You worked as a cleaner until the children were born, and later as an Uber driver. You used drugs recreationally from your mid-20s until a few years before the offending, and engaged in partying and going to nightclubs. Ms Lechner described this in her report, dated 30 November 2022, as 'essentially making up for her teenage years'.
36Ms Lechner diagnosed complex post-traumatic stress disorder and adjustment disorder with depressed mood. You told her you were 'being a teenager' and that you were reckless, and you expressed to her your deep remorse and guilt. Ms Lechner considers you have long-term problems which include low
self-esteem and emotional and behavioural dysregulation. However, you have average intelligence with good capacity for reflective and consequential thinking unless drug-affected or highly emotionally aroused.37The reference to having acted as a teenager was explained by you as trying to impress the teenagers in the car. The origins of that are not merely ephemeral, but appear to have some real credibility in that because of a minimal age difference between you and your mother you are more like sisters, and of course your daughters are teenagers as well.
38In the month or so before the collision you had argued with your mother and were not talking to her, in the context of considerable family stress. A broad consequence may be that you have been a less responsible parent to your children than usual. The theory of 'teenage' behaviour is, as your counsel put it, not an excuse, but rather an explanation. You said to Ms Lechner:
'I don't really care what the punishment is. I deserve whatever is given to me, I wasn't an adult about it'.
39Despite the attempts to minimise your behaviour you do seem to have insight into your actions, which augurs well for your rehabilitation.
40A further mitigating factor is the anguish you are likely to experience in prison if sentenced to 12 months or more, with the strong likelihood of deportation to New Zealand. You would have to leave behind your daughters and would have no family or other ties in New Zealand, where you lived for only four years. Although I cannot take into account the possibility or likelihood of deportation, I can take into account that the prospect of it would make your experience of imprisonment more difficult than for others not so affected.
41Despite these mitigating factors the need for general deterrence is a matter of priority. The maximum penalty for negligently causing serious injury is 10 years' imprisonment and five years for each of the other charges. The 10 year maximum is an indication of the seriousness which the legislature accords the offence, and that is a partial guide to penalty, however each case is different and there are many matters to be taken into account in determining an appropriate sentence.
42The gravity of this case, characterised by your deliberate high speeds and lack of regard for the safety of your young passengers, warrants a term of imprisonment modified by the circumstances I have set out, including the appropriateness of a Community Correction Order in combination. That order provides for the punitive aspect of community work and the imposing of treatment obligations to maximise the chances of rehabilitation. That, in turn, operates as a protection for the community when you eventually choose to apply to drive again, after the expiry of your licence cancellation.
43I note that you have already had two sessions with a psychologist at your own instigation, which indicates some insight on your part.
44As part of the assessment for your suitability for a Community Correction Order you were seen by a clinician with the Mental Health Advice and Response Service (MHARS). It is reported that you presented as emotionally vulnerable with unresolved trauma, self-esteem and assertiveness issues, and that learning psychological skills to manage these issues would be beneficial for you.
45You have been assessed as suitable for a Community Correction Order and I shall impose that order in combination with a term of imprisonment.
46I sentence you to six months' imprisonment for Charge 4 and one month for each of the other charges on the indictment. The sentence for Charge 4 is the base sentence and the other sentences are each cumulative upon it. That results in a total effective sentence of nine months.
47The Community Correction Order will apply to all the indictable charges. Convictions will be recorded. The order will begin as soon as you are released from custody and it will last for two years. When you are released from custody you will be required to report to the Corrections office at Coolaroo within 48 hours of your release. You will be under supervision and must perform 100 hours of unpaid community work. You must also be assessed for mental health treatment, and for drug treatment, and for any other program to which you might be directed. Any hours spent in such programs will be credited against the work hours.
48If you had pleaded not guilty to these charges I would have sentenced you to 15 months' imprisonment with a three year Community Correction Order.
49In relation to Charge 4, your licence to drive is cancelled and you will be disqualified from obtaining any further licence or permit for two years from today. I have imposed the minimum disqualification period, taking into account that you voluntarily ceased driving since the incident. Ms Hogan, are there any other matters that I've neglected or omitted?
50MS HOGAN: No, Your Honour. The only thing I would point out is in relation to the s6AAA is that that is not a sentence that could be imposed, given it exceeds the 12 months.
51HER HONOUR: Yes, doesn't fit, does it?
52MS HOGAN: Yes. So I know it's a small matter in the sentencing ‑ ‑ ‑
53HER HONOUR: In that case all I need to do is remove the CCO order from the 6AAA, so, in theory, it wouldn't apply.
54MS HOGAN: As the court pleases.
55HER HONOUR: I'll leave it there. Thanks for pointing that out. Mr Barreiro, is there any other matter?
56MR BARREIRO: No matter, Your Honour.
57HER HONOUR: Thank you. Yes. Mr Barreiro, the CCO's ready for your client to sign. Would you like to accompany my associate to the dock?
58MR BARREIRO: Certainly, Your Honour. Thank you, Your Honour.
59HER HONOUR: Officers, would you please take Ms Nita? Thank you.
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IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
Court Ref: CR 22-01091
Indictment No.M12657902
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
DIRECTOR OF PUBLIC PROSECUTIONS
–v–
NALIN NITA
SUMMARY OF PROSECUTION OPENING
Date of document: 23 December 2022
Filed on behalf of: The Director of Public Prosecutions
Prepared by: Abbey Hogan, Solicitor for Public Prosecutions
565 Lonsdale Street, Melbourne Vic 3000
Solicitor's code: 7539
Telephone: (03) 9603 7666
Background
Nalin Nita was born in August 1984. She was 37 years old at the time of the offending. Ms Nita was a full time Uber driver. She had leased a white 2017 Toyota Camry sedan, which she has used frequently in the weeks leading up to the collision.
Offending
On 13 December 2021, at midnight, Ms Nita arrived home. It was her daughter Alysha Kumar's 16th birthday and she was celebrating with her partner, Noah Colston-McMaster (born September 2005), and their two friends Rhys Barham (born February 2006), and George Pandazopoulos (born October 2005), at their home. They all had cake and a shot of alcohol each. Ms Nita had two shots of Jägermeister.
At about 12.36 am they all got into Ms Nita's Toyota Camry. They were going to the Southbank McDonald's and Ms Nita was driving. Ms Kumar entered the front passenger seat, Mr Colston-McMaster entered the rear left passenger seat, Mr Barham entered the rear right passenger seat and Mr Pandazopoulos entered the rear centre passenger seat. They were all wearing seatbelts.
Ms Nita drove along the Princes Freeway and the West Gate Freeway, towards the city, at a fast rate of speed. She often changed lanes without indicating. She was slowing down and speeding up for the affixed speed cameras and was passing other vehicles on the road with ease. At several points Mr Barham and Mr Pandazopoulos observed that she was driving at 180km/h, as they saw the speedometer hit the 180K mark. The freeway is an 80km/h zone prior to the West Gate Bridge.
The victims felt worried due to Ms Nita's driving, but felt safe enough because they trusted Ms Nita as an adult. At one point Mr Barham saw the speedometer needle at 155km/h. He stated, 'I remember my heart was racing, I had never gone this fast before'. At the time the visibility of the road was dark. All the freeway lights were functioning and there were not many other vehicles on the road.
At about 1 am they arrived at the Southbank McDonald's. They went through the drive-thru, then continued back to Werribee South. Ms Nita drove in a similar manner as she did on the way to McDonald's; driving at high rates of speeds and weaving through lanes without indicating. She was also swerving side to side within the lane she was driving. When Ms Nita was driving south on Point Cook Road she went around a roundabout twice, at a fast rate of speed. Ms Nita was playing music very loudly with the car windows down.
Mr Colston-McMaster told her to stop, as he thought this was disrespectful to the people asleep at the RAAF base nearby.At about 1.24 am the vehicle arrived at the intersection of Duncan's Road and Aviation Road in Werribee South. Ms Nita made a left turn and headed south on Duncan's Road. Several hundred metres from the intersection Ms Nita slowed down in response to police shepherding a small black calf from the centre of the road. Ms Nita had to drive off the edge of the road to get around the calf.
Ms Nita continued southbound on Duncan's Road. After about 1 kilometre, when police were out of sight, she accelerated to about 200km/h in the 80km/h zone. The passengers in the car saw the speedometer and Ms Nita held up two fingers. The passengers took this to mean that she had hit 200km/h.
Ms Nita told them all to hold on. They all braced themselves as the car went over a hill in the road. Mr Pandazopoulos said he was terrified. The car was briefly airborne as it went over the hill. It landed back onto the road, slightly off centre, and Ms Nita then lost control of the car. The car swerved over to the right side of the road. It then swerved to the left side of the road and briefly came off the road. Ms Nita then accelerated and swerved onto the opposite side of the road.At about 1.29 am the car went into a dip on the side of the road and came off the road completely and collided with a low bearing concrete wall on the right side of the road. The car smashed through the wall at a speed of 57km/h on impact.
The car rolled onto the dirt, then hit a fence before coming to a complete stop. After the collision Mr Barham was able to kick open the car door nearest to him that was jammed. His pelvis and leg were very sore. He went and checked on all the other occupants and observed that Mr Colston-McMaster was unconscious. He and Ms Kumar were talking to him but he was not communicating with them. Mr Colston-McMaster was making a groaning and moaning sound. Mr Barham stated, 'It was a very disturbing sound'.
Mr Pandazopoulos also said, 'It was one of the most heart wrenching sounds I have ever heard in my life'. Mr Barham helped Mr Pandazopoulos out of the car, as his door was also jammed. Mr Pandazopoulos stated he had a lot of pain in his back, chest, neck and abdomen. He also stated that 'it felt like I had no oxygen in my lungs and I was suffocating'. Ms Nita said to the passengers, 'If anybody asks, we swerved to avoid a cow that was in the middle of the road and then we lost control'.Ms Nita contacted Triple 0 and gave the operator the details of the incident. Between 1.40 am and 1.55 am several police and Ambulance Victoria units arrived on scene. Police spoke with Ms Nita, who told them that she had swerved to dodge a cow. She also advised police that she had not had anything to drink that night. All of the passengers and Ms Nita were taken to hospital via ambulance and Ms Nita's car was towed.
Forensic Vehicle Examination
On 28 December 2021 a forensic examination was conducted on the car by the Collision Reconstruction and Mechanical Investigation Unit. The car had sustained extensive damage to the front. There was damage to the front bumper, steering column and engine block. All airbags were deployed on collision.
The car contained an airbag control module, which was downloaded and analysed. Ms Nita was travelling at about 154km/h 4.75 seconds prior to the collision and at this point was applying maximum braking. This was consistent with tyre marks that were observed on the road shoulder leading towards impact. The car collided with the concrete wall at 57km/h. Had Ms Nita been travelling at the posted speed limit of 80km/h and performed the same manoeuvre, the car would have come to a complete stop approximately
51 metres prior to the concrete wall and would not have collided with it. Prior to impact with the concrete wall Ms Nita performed both left and right steering manoeuvres. This was assumed by the examiners to be an attempt to avoid the imminent collision.Injuries Sustained
Mr Colston-McMaster was admitted to The Royal Melbourne Hospital, where he was treated for his injuries. These injuries included several fractures in his jaw, a skull fracture which formed a hematoma in the brain, a small fracture on his forehead, a fractured left elbow, a perforation in his small bowel and a right thumb fracture. Mr Colston-McMaster also stated that his teeth were also bent and some had snapped.
On 14 December 2021, Mr Colston-McMaster had surgery to correct the perforation in his bowel, which involved surgical removal of part of the small intestine. The following day he had surgery to correct his skull and forehead fractures and screws were also placed in his jaw.
On 20 December 2021, Mr Colston-McMaster was discharged from hospital with ongoing treatments.
Mr Barham was admitted to The Royal Children's Hospital, where he was treated for a large abrasion on his chest and given a general check-up.
Mr Barham did not suffer any protracted injuries and was discharged from hospital later in the day on 13 December 2021.Mr Pandazopoulos was admitted to The Alfred Hospital, where he was treated for a minor fracture in his T4 and T5 vertebrae and for abrasions across his pelvis. Mr Pandazopoulos was discharged from hospital on 14 December 2021. Mr Pandazopoulos stated that for the next few nights after the collision he 'couldn't sleep because of my pain in my neck and the bruises I had. I kept waking up to nightmares of the crash and re-living the events on Monday morning'.
Ms Kumar was admitted to The Royal Melbourne Hospital, where she was treated for a laceration on her forehead and for a hematoma in her pelvis. Her laceration was stitched and she was discharged from hospital on 13 December 2021.
Ms Nita was admitted to The Royal Melbourne Hospital, where she was treated for a broken forearm. A blood sample was taken from Ms Nita and sent to the Victorian Institute of Forensic Medicine (VIFM). Her blood sample was analysed and tested positive for methylamphetamine (0.06mg/L).
Interview
Ms Nita was interviewed by police on 22 December 2022. She made admissions to being the sole driver of the Toyota Camry on 13 December 2021. She told police, 'I'm probably tired from work. With everything happening in the car I saw the cow way too late, so I swerved. I'm not a hundred per cent sure on what I did, but I – from my part, I'm guilty of maybe pressing the accelerator instead of braking, but I did speed up to swerve away from the cow so I wouldn't hit it. The car went flying over – there's like a hump. So it just went kind of head first and I felt something wrong with the tyres. It started, you know, sort of getting left, right'.
She told police that when she was driving she 'wasn't paying attention to the speedometer'. She stated, 'I wouldn't do reckless driving, as you call it, with my daughter in the car, and other kids in the car'. She told police that she did not have much sleep leading up to the night, as she had had 'events and birthdays to organise'. She told police that she was fatigued on the night but that 'it didn't affect my driving'. She told police that she had driven the roads of Werribee South 'thousands of times, but not recently', and that she was familiar with the roads surrounding the scene of the collision. She told police that, 'I didn't have my high beams on, I never turn them on'. She admitted that she may have been going faster than the speed limit on Duncan's Road, but did not admit to driving at 200km/h. She also stated that she 'might have been distracted' prior to the collision. She stated she had consumed one shot of Jägermeister and had not used illicit substances.
Maximum Penalties
·Negligently cause serious injury is Level 5 imprisonment (10 years maximum).
·Conduct endangering persons is Level 6 imprisonment (5 years maximum).
·Driving a motor vehicle with more than the prescribed concentration of drugs is 12 penalty units.
Licence Cancellation
If Ms Nita is found guilty of a serious motor vehicle offence, which Charge 1 on the indictment is, the court must cancel that licence and disqualify her from obtaining a further one. The relevant period of cancellation is not less than 24 months under s89(2)(b) of the Sentencing Act.
Chronology
·29 December 2021; Filing hearing.
·30 March 2022; Committal mention. Adjourned for resolution discussions.
·16 May 2022; Committal mention. Adjourned for resolution discussions.
·20 June 2022; Committal mention. Committed. Plea of guilty.
·25 January 2023; Plea hearing.
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