Director of Public Prosecutions v Pastuszka

[2012] VCC 2197

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT SHEPPARTON

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYAL WALTER PASTUSZKA

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2012
CASE MAY BE CITED AS:	DPP v. Pastuszka
MEDIUM NEUTRAL CITATION:	[2012] VCC 2197

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Fitzgerald	Office of Public Prosecutions
For the Accused	Mr C. Morgan

HIS HONOUR:

1       You, Kyal Walter Pastuszka, have pleaded guilty before me to one count of dangerous driving causing serious injury and two summary matters which are before me pursuant to the appropriate sections of the Criminal Procedure Act.  They are one count of exceeding the breathalyser reading and one count of driving at excessive speed. 

2       These crimes arise out of circumstances which were opened to me by the Learned Prosecutor, Mr Fitzgerald, and concern your driving on Sunday, 12 December 2010.  At 7 am, you were driving down Sydney Road, Benalla in your Holden Commodore utility.  Present in the passenger seat was your friend, Phillip Gilfillin.  You were driving under the effects of alcohol with an underlying presence of baseline traces of cannabis and methylamphetamine and you were driving at a very high speed.  You lost control of your utility and it broke in half, the circumstances of which are graphically described in the series of photographs which are tendered. 

3       The measurements and the significance of the vehicle breaking in half and the distances the various objects travelled all indicate the horrific nature of the accident.  Equally, of course, you suffered physical injuries yourself, with a broken wrist and ribs as well as bruising, and of course your friend, Mr Gilfillin, sustained a number of injuries which are all set out in the opening and which required him being taken to Melbourne for medical assistance.

4       Mr Gilfillin was offered the opportunity of making a victim impact statement but chose not to do so although it is clear that he did suffer very much as a result of your actions on this day. 

5       As was pointed out by your counsel, however, there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has obviously been saved the time and cost of a trial and the inconvenience of bringing people before a jury and I can tell the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

6       Further, I take into account that, whilst you were hardly forthcoming to the police when first interviewed, you nevertheless, in due course, admitted your part in the crime and, in the circumstances, I accept that in your case your plea indicates true remorse for your actions. 

7       I have been told something of your personal history and your circumstances and indeed that is set out in the report that has been helpfully provided by Mr Jago.  You are 25 years of age and your parents are with you in court, as is your sister and your girlfriend.  You have reported to him that you have good relationships with your family, save perhaps your older brother with whom there seems to be a problematic relationship.  You were very active in sport during your childhood and obviously quite a successful squash player in the local pennant competition. 

8       You had normal schooling and left in Year 11, since that time you have been employed in the ways described as a labourer and in a local abattoir and you are currently employed with your parents.  It is your ambition, once you get your licence back, to head off to the mines but obviously you hope your relationship continues.

9       You have admitted before me to some prior convictions and I must admit they occasion some disquiet although it is clear that you seem to have hit a bad patch in 2007 and 2008 when most of those matters arose.  Since then, apart from this rather dramatic incident, you seem to have been relatively clear of problems. 

10      The report, which I find most helpful, from Mr Jago reflects what I think is the fact and that is that during the last almost two years since this accident you have really done all you can to effectively remedy your situation and clearly the accident has had the salutary effect of causing you to take stock of your own life. The daily memory of what happened on that occasion will hopefully do it's work in the sense that it will continually remind you  of that which everybody in the community understands and that is the combination of alcohol, drugs and speed in motor vehicles can have disastrous consequences. You are extraordinarily lucky, as is Mr Gilfillin, that you are both alive today.  I am sure that will stand with you for the rest of your life, clearly you need to make decisions which make sure that never happens again.  It is the report of Mr Jago which gives me the confidence that you have, indeed, reached that situation in your life as he pronounces your prognosis for a healthy, functioning adult in society is positive.

11      As he says though, some future testing situations likely in family scenarios may well see you need to develop some stronger self regulation strategies, but nevertheless I am sure you will, as you mature, develop those strategies and continue on the path that you have embarked on at present. 

12      I also note and take into account the two other reports and particularly the one from Mr Murphy, the local vet, who is very supportive of you and clearly sets out that you understand the seriousness of your mistake and you are, as he says, repentant and you have moved back to the family unit.

13      I am, on balance, satisfied that the chances of your rehabilitation are very good, particularly in view of that material that Mr Jago sets out. 

14      Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I need to take into account general deterrence, that is always of importance in cases such as this involving significant road accidents as a result of alcohol, speed and drugs.  Although, of course, the DPP Summary eschews any reliance on the drugs as causing the accident, it was simply the alcohol and the speed. 

15      Specific deterrence remains of some importance given the prior convictions although, as I say, they were some time ago in the main.  I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest in view of those matters. 

16      Clearly, since you committed these offences, as Mr Morgan said, there has been a delay of almost two years in the matters coming before me and I have not doubt that the passing of those two years has served as a daily concern for you that the possibility of you going to gaol has been a very anxiety-causing thought that has remained with you all of that time and according you are entitled to a sentencing discount for that. 

17      Equally, you are entitled to a sentencing discount that flows as a result of the fact that you have utilised the passing of that time to effect your rehabilitation in a very significant and meaningful way and it is that which has convinced me in your circumstances, whilst I do not believe I have any alternative to imprisonment with respect to the first and second counts, I have given the matter some thought and come to the conclusion that whilst, in all the circumstance, I consider I have no alternative to the imposition of a term of imprisonment, I have decided that a suspended sentence is appropriate in this case. 

18      The purpose of imposing a sentence of imprisonment is to indicate how serious these offences are.  The purposes of suspending it is to allow you to demonstrate your commitment to your rehabilitation.  You must not, during the period of suspension, commit another offence punishable by imprisonment in or out of Victoria.  If that occurs, you will be in breach of the terms of the suspended sentence and should expect to be brought back before the court and be ordered to serve the sentence that was suspended.  Do you understand the consequences of committing an offence during the period your prison sentence is suspended?

19      PRISONER:   Yes.

20      HIS HONOUR:  With respect to Count 1, you are convicted and sentenced as follows:  nine months' imprisonment;  on Count 2, three months' imprisonment.  Those sentences are to be served concurrently.  That results in an effective sentence of nine months and I direct that all of that sentence be suspended for a period of two years. 

21      With respect to the other summary matter, I order a fine of $1000.  What about a stay of six months on that, Mr Morgan?

22      MR MORGAN:  Yes, Your Honour.

23      HIS HONOUR:  Six months stay with respect to the fine of $1000. 

24      With respect to your licence, you are disqualified from obtaining a licence for the minimum term of 18 months on Charge 1 and that is to date from 24 August 2011.  Do I also need to suspend the licence on the other charge?

25      MR FITZGERALD:  You do, Your Honour, on the exceed (indistinct) that can run concurrently though.

26      HIS HONOUR:  Very well, on that charge I also cancel your licence and disqualify you from obtaining another licence for 16 months which is to date from 24 August 2011.

27      But for your plea of guilty, if you had not pleaded guilty to these matters I would have ordered an actual gaol term of nine months.

28      Anything further?

29      MR FITZGERALD:  No, Your Honour.

30      HIS HONOUR:  Very well.  Thank you, Mr Pastuszka, hopefully you will keep up the good work so far and you will have learned your lesson, which is a much better thing for all of us than having to send you to gaol.

31      PRISONER:  Thank you, Your Honour.

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