Director of Public Prosecutions v Polizzi, Michael Luciano

[2012] VCC 1811

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-01939

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL LUCIANO POLIZZI

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JUDGE:	Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2012
DATE OF SENTENCE:	22 November 2012
CASE MAY BE CITED AS:	DPP v Polizzi, Michael Luciano
MEDIUM NEUTRAL CITATION:	[2012] VCC 1811

REASONS FOR SENTENCE

Subject:  

Catchwords:             Dangerous Driving Causing Death – inattention – concession as to danger of intersection – concession as to sentencing range

Legislation Cited:    
Cases Cited:            

Sentence:                 18 months imprisonment wholly suspended for a period of 18 months. Drivers licence cancelled and disqualified from driving for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K Gilligan	Office of Public Prosecutions
For the Accused	Mr J McMahon	Tony Hargreaves & Partners

HIS HONOUR:

1       Michael Polizzi you have pleaded guilty to one charge of dangerous driving causing death, the maximum penalty for which is 10 years imprisonment.  The offending occurred on 26 March 2010. You have no relevant prior convictions.

2       The facts of the case were opened by the prosecutor, Mr Gilligan, and are contained in the Prosecution Opening, Exhibit A in these proceedings.

3       In brief summary, on 26 March 2012 you were driving your Mazda sedan in a northerly direction along St Kilda Road. You entered the intersection of St Kilda Road and Fitzroy Street against a red traffic light. The red light camera photographs showed that you had activated your brakes and left turn indicator. The red light had been displayed for some 4.94 seconds prior to your car crossing the stop line. In the seconds before the collision, a motor scooter being ridden by the deceased entered the intersection whilst travelling in a westerly direction along Fitzroy Street. Your car and the deceased’s scooter collided near the middle of the intersection.

4       The prosecution case was put on the basis that your inattention whilst driving your car, your failure to observe the surrounding traffic conditions, your failure to comply with the red traffic light, and your failure to maintain a proper lookout for conflicting traffic, rendered your driving dangerous, and caused the motor vehicle collision which resulted in the death of the deceased.

5       Collision reconstruction evidence, indicated that your car was travelling at 58 kph at the point of impact. The applicable speed limit was 60 kph. The scooter was travelling at low speed just prior to impact. Paramedics attended and attempted to resuscitate the deceased who was pronounced dead at the scene. He was found to have suffered severe traumatic injuries.

6       You were spoken to by police at the scene and a preliminary breath test did not reveal the presence of alcohol. You were interviewed at St Kilda police station some 2 hours after the incident, at which time you made full and frank admissions, including stating that at the relevant time you were focused in the distance ahead of the intersection as you were looking for a left turn, and were preparing to merge into the left turn lane.

7       There is no allegation that you were speeding, under the influence of drugs, alcohol or medication.  You were not visually impaired nor distracted by the use of a mobile phone or other instrument.

8       A DVD and photographs of the incident were tendered, exhibit B. Victim impact statements from the deceased’s wife and sister, exhibit C, were at the request of the witnesses read aloud in court by the prosecutor. The statements were moving and recounted the devastation caused by the loss of a husband, a brother, a family patriarch and a person who was clearly a rock for his family. Both witnesses also set out the emotional, financial and psychological impacts of the loss of such a valued and significant family member and the attenuating grief which follows a tragic incident such as this.

9       The offence to which you have pleaded guilty is a serious one carrying a maximum penalty of 10 years imprisonment.  A sentence requiring immediate custody will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.

10      The requirement that drivers observe the condition of traffic lights is an essential prerequisite of a controlled and safe diving environment.  It is perhaps the most fundamental of road laws and one upon which the whole community depends to safely navigate the myriad intersections controlled by traffic lights.  Drivers are entitled to assume that they are able to safely cross with the green light in their favour.

11      Very recently the Court of Appeal in this state allowed an appeal by the Director of Public Prosecutions against a wholly suspended sentence imposed on the driver of a truck who failed to see a red light and collided with a vehicle crossing with a green light and killing two and seriously injuring three passengers in that vehicle. That driver was travelling within the speed limit and there were no other contributing or aggravating features.  He was looking for the appropriate turnoff to a nursery where he was going.  He failed to keep a proper lookout and did not see the red light applicable to him. The Court of Appeal resentenced the driver to 4 years imprisonment with a non-parole period of 2 years imprisonment.

12      I mention this case because in many respects the facts are similar to those in your case.  A significant difference was that the driver in that case was driving a large prime mover and trailer and the time during which he failed to see the red light was between 10 and 11 seconds. This fact permitted the Court of Appeal to reject the assertion that the driver was only inattentive for a very short period.  The learned Justice of Appeal pointed out that at the speed the accused was travelling he would have failed to look ahead whilst the vehicle travelled over 195 metres and that in the circumstances the drivers’ inattention amounted to a most remarkable failure to keep a proper lookout and that the nature and gravity of the offending were to be assessed accordingly.

13      Tendered on your behalf was a motor vehicle accident report from Robert Morgan, exhibit 1, biographical and job information as well as 3 certificates, exhibit 2, a psychological report of Professor Jeffreys, exhibit 3 and a bundle of character references, exhibit 4.

14      In regards to your personal circumstances, you are 35 years of age and were born in Melbourne. You had an unremarkable childhood and completed VCE, and later obtained a commercial pilot’s licence. Due to the collapse of Ansett you found it difficult to obtain work as a pilot and subsequently moved between a number of jobs for a period of 4 years. You suffered a knee injury in 2002 which put an end to your aspirations of being a pilot. Since then you have worked for insurance companies and have worked at the Toll Group for more than 12 years managing WorkCover claims. You have also taken on a second job within Toll so that you are in effect working 13 hour days in order to meet your mortgage repayments. You have a wife who recently gave birth to your first child, a son who is almost 2 months old. I note that your wife and a number of your friends and family were in court to support you on your plea.

15      Mr McMahon who appeared on your behalf conceded that your offending was serious and that a term of imprisonment was required.  He submitted that it should however be wholly suspended.

16      He submitted that your case was different from the one that I have just described, involving the truck driver.  He said that your level of moral culpability was indeed low.  He pointed out that there was nothing silly or reckless about your driving leading up to the collision. He relied upon the expert evidence contained in a report from Robert Morgan, a traffic engineering and road safety expert who was properly described as an expert on this very intersection. Mr Morgan said that prior to October 2010 this intersection was in the top 20 black spots in the Melbourne and metropolitan area.  He referenced an internal report to the VicRoads Project Review Committee of 2008 which stated that between 2003 and 2007, there had been 70 casualty crashes recorded at this intersection. The majority of these crashes were what are described as right angle crashes. The intersection as a whole was described as presenting a ‘dilemma zone’ to a driver travelling north towards the city who approaches the area just prior to the lights at which you should have stopped. You had to contend with traffic on your left entering the area from Barkly Street, the right hand only lanes leading to Punt Road as well as planning for how you would cross the lanes to your left to get into a position where you could make you way into the lanes going to Kingsway. There were seven lanes across the northbound carriageway with traffic lights only at the extreme ends. Additionally you had a largish vehicle to your immediate left in part blocking your view of the traffic light on the far left of the intersection.  This combination of these features were said to present significant visual distractions to drivers travelling in the direction you were.

17      The report contained several recommendations, the most relevant to this case were that there be new lane indication signs, improved signage and lighting and most significantly that a gantry be built over the northbound carriageways carrying traffic lights to increase the visibility of the traffic control signals especially for drivers in the central lanes where you were travelling.  Regrettably, these recommendations were not acted upon until later in June 2010.

18      The works were completed in October 2010 and since that time no right angle accidents have occurred at the intersection.  In fact, whist prior to the changes some 15 to 55 red light offences were detected daily at this intersection, that figure dropped to less than 4.86 per day after the changes - a number so low that the intersection dropped off the reporting system.

19      Mr McMahon also relied upon you good character which was attested to by a number of excellent references, your lack of prior convictions, your cooperation with police, the fact that you have suffered as a result of this accident from Post-Traumatic Stress Disorder for which you require ongoing therapy and the delay between the commission of the offence and now. 

20      A significant part of that delay is attributed to the fact that you only pleaded guilty shortly before this matter was to proceed as a trial and not before a sentence indication hearing was conducted. It is ordinarily the case that greater discounts are available for early pleas of guilty than for late ones. This is so because an early plea of guilty often evidences remorse, acceptance of responsibility and the commencement of rehabilitation as well as producing utilitarian benefits by the saving of time and expense.  That is not to say that a late plea does not also attract some discount.  In your case I accept that it was the waiting for the report from Mr Morgan and the assessment of it by the prosecution that was principally the reason for the delay in your plea. Mr McMahon said that the provision of the expert report changed the course of this case and the prosecution’s attitude to sentencing. 

21      I am satisfied that you are genuinely remorseful and have also been significantly affected by this tragic event. I am sure that you will carry the memory of it and your responsibility for the senseless death of a fellow citizen for a long time, if not forever.

22      In response to my query Mr Gilligan conceded that a wholly suspended sentence would be within the appropriate sentencing range in this case. He said that there were exceptional circumstances in this case, central among them being the nature of the intersection, and that together with the matters personal to you, and the other factors which I am bound to take into account rendered it permissible for you avoid a sentence of immediate imprisonment.

23      The basic purposes for which a court may impose a sentence are punishment, 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 with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

24      But for the fact that the intersection was complex and did present the approaching driver with a series of difficulties that had to be resolved within a fairly short compass of time and space, a fact recognised by VicRoads and by the prosecution in this case, I would have most likely sentenced you to a prison sentence to be served immediately.  As it is I do propose to suspend that sentence.

25      Please stand Mr Polizzi.

26      On the charge of dangerous driving causing death you are convicted and sentenced to be imprisoned for 18 months. I propose to wholly suspend the sentence for a period of 18 months.  Before I do that I am obliged to tell you that you have been convicted and sentenced to a term of imprisonment, but that you will not have to serve that sentence immediately.

27      However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with, and absent exceptional circumstances, will be required to serve the suspended sentence.  Do you understand that?

28      OFFENDER: Yes Your Honour.

29   HIS HONOUR: Very well, I will suspend the sentence.

30 Furthermore, pursuant to section 89(1)(d) of the Sentencing Act 1991, I cancel your driving licence and disqualify you from holding a licence for 18 months.

31 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 2 years imprisonment with a non parole period of 16 months

32   I would like to say something to the family and friends of the deceased who have conducted themselves with great dignity in these difficult times.  I know it has not been easy for you.  You understand that nothing I do will bring your loved one back.  Sometimes in cases such as these there is a great deal of emotion, anger and calls for retribution by way of stiff penalty. In many cases very severe penalties are necessary. This has not been such a case.  Whilst there was a clear obligation for Mr Polizzi to see and abide by the traffic control signals, his failure to do so in this case, whilst producing a tragic consequence for your beloved family member, was of a low moral culpability and accordingly appropriately dealt with by not sending him to prison immediately.