Director of Public Prosecutions v Radalj

[2018] VCC 2165

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00985

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIM RADALJ

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Radalj
MEDIUM NEUTRAL CITATION:	[2018] VCC 2165

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh
For the Accused	Mr S. Lindner

HIS HONOUR:

1On 23 May 2016 you, Mr Radalj, were with the victim.  First on the banks of the Murray and then you drove with him to Renmark.  After drinking a significant amount of alcohol in Renmark you drove back to Mildura, stopping on the way to get more alcohol.  Once back in Mildura you again drank both wine and beer.  Unfortunately you then decided to drive with the victim to Melbourne to see your mother.  You drank more beer on the way.

2Just before midnight you were on the Calder Highway near Ravenswood.  The road conditions were hazardous.  It was foggy and visibility was poor.  It would have been testing for a completely sober, alert driver.  You were far from that.  You lost control of your car just after a slight curve in the road and collided at speed with a tree.  When I say at speed that is not to suggest, and there is no suggestion that you were beyond the speed limit.  In fact, you were significantly under the speed limit.  But both you and the victim were then transported to the Bendigo Hospital.

3The victim had two seizures in the hospital and was airlifted to Melbourne.  He sustained serious life-threatening head injuries.  In particular a right-frontal parietal extradural haematoma, a right-temporal skull fracture, bruising to both sides of his brain and his central brain.  Other than this serious head injury he sustained fractures to two ribs and lung damage.  As noted, the head injuries were at the time serious, life-threatening injuries.  I will speak more of what is known of the ongoing problems for the victims.

4At the Bendigo Hospital your blood was sampled and later tested.  It was found you had at that time a blood alcohol reading of 0.154 per cent.  A specialist doctor later offered the opinion that given the elimination rates of alcohol and the time of the blood testing, and the time of the collision, that at the time of the collision your blood alcohol would have been between 0.168 to 0.182 per cent.  All the readings are very high and beyond three times or more the legal limit.

5You simply should not have considered for a minute that you were fit to drive, let alone in hazardous conditions on a major highway at night.  It may be said that your long history of drinking operated on you to mask the full effects from you, but that is no excuse.

6You pleaded guilty to one charge of negligently causing serious injury.  In respect of that crime the central task for me is to assess the gravity of your offending by examination of and conclusions about your moral culpability, and also to consider and assess the extent of the injuries.  In terms of your moral culpability it is plain that it is very high due to the level of alcohol in your system at the time of the collision.

7For decades our community has been subjected to sustained campaigns to drive home the dangers of drink driving.  For most the message has been absorbed and acted upon.  It is less common now to have before these courts a serious case involving blood alcohol levels of the kind you reached.  The community would be as one in concluding you were a danger to every other road user, including your passenger, on the day and the night of 23 May 2016.  Your high moral culpability makes this a particularly serious example of the crime of negligently causing serious injury.

8Serious injury sustained by the victim was set out in the report of a forensic physician who examined the hospital notes.  He was subjected to cross-examination at the committal.  Oddly, at the time of the plea no further medical material was available.  It seems, prompted by queries, the prosecution has secured some but perhaps not all of the extensive medical reports secured by or supplied to the Transport Accident Commission.  Frustratingly the reports do not include the comprehensive or what is described as the comprehensive neuropsychological reports that are referred to in the materials provided.

9A consultant neurosurgeon, Mr Dorman, reported in June 2018 the following,

"I note the findings in Dr Dowling's comprehensive neuropsychological report.  In particular I note that Dr Dowling has found evidence of 'significant cognitive impairments in multiple domains' (p.24 of his report) which are described as 'most likely acquired and not long standing'".

10The remaining portions of the report that I just referred to themselves refer to the technical details of the American Medical Associations guidelines for assessing bodily impairment.  What can be taken from the material is that the victim has ongoing acquired brain injury that affects his functioning.

11Other reports, in particular the history taken by the orthopaedic surgeon, make it clear that he lives a simple life.  He has since the collision curtailed his own heavy drinking, his son keeps an eye on him.

12The serious injuries sustained by the victim have had an ongoing and likely permanent impact.  He now has an acquired brain injury with lower cognitive impairments in multiple domains.  Beyond that I cannot say what practical difficulties the victim has, save that he lives on his own and copes, and his son looks in on him.

13This is a serious injury and its consequences, combined with the very high moral culpability, results in this in this being a very serious example of the crime of negligently causing serious injury in the context of a motor vehicle collision.

14As was indicated in cases such as Harrison, the crime is a serious one and there is a need to consider the penalties imposed.  I will return back to this shortly.

15But as to your personal circumstances you are about to turn 60 years old.  You were born in Western Australia.  After your parents separated you were placed in state care in both Western Australia and Victoria.  Your father remained in some contact, but his influence was not as it should have been.  As an example, he gave you beer and cigarettes for your 14th birthday.  You remained at school only to Form 2 before then working in various labouring jobs.

16You have been married and have two adult sons, but it seems have little contact with them.  A later relationship produced a now adult son and daughter, but again seem to have little contact.

17You moved between Western Australia and Victoria for some time before coming to Mildura, or the Mildura district, for fruit picking.  This was about
18 years ago.  You worked in that industry for about eight years until injury forced you out.  You have been on a disability pension for about a decade or so.  Your adult life has been blighted by excessive use of alcohol.

18You have some prior convictions for minor traffic matters in Western Australia in 1977.  Though, I note there was a term of imprisonment imposed for one month.

19In Victoria you have been before the Magistrates' Court for dishonesty and assault matters in 1980 and late 1990.  They are not relevant here.  However, in 1997 you were before a Magistrates' Court for driving in excess of the blood alcohol level.  You were punished by a term of imprisonment, two months, to be served by way of an intensive corrections order.  You lost your licence for four years, and for other driving offences you were placed on a community based order for 12 months.  I have no information about the level of the blood alcohol content on that occasion, but the penalties including the length of time that your licence was cancelled and disqualified would indicate that the blood alcohol level was substantial.  I can take it no further than that.

20You later breached the intensive corrections order and served a term of imprisonment.  There have been other unrelated prior matters from 2000, including breaches of community based orders.

21In December 2017, you were convicted of breaching an alcohol interlock condition.  You were placed on a three month community based order.  There was no explanation as to why you had an interlock condition or why it came about that you were discovered in breach of it.  In any event, all relevant matters are some time ago.

22However, you are not like many who come before the courts for this type of offence.  That is you are not a person without any prior convictions or without relevant drink driving prior offending.  In other words, you cannot call on your good character in respect of asking for a merciful sentence, and deterrence to you is a relevant sentencing consideration.

23You were seen by the Medico-Legal psychologist, Mr Simmons, however reliance on some level of cognitive impairment was not pursued.

24Before touching on aspects of your plea and remorse it needs to be noted that you were arrested, interviewed and bailed within days of this collision.  However, prior to the committal you absconded and went to Tasmania.  You remained there until February 2018 when you were re-arrested and extradited.

25A committal was then conducted on the issue of the serious injury.  Sometime thereafter you indicated that you would plead guilty.  You have been in custody now for 247 days.  In all the circumstances this is not an early plea, but your sentence will be less than it otherwise would have been had you gone to trial and been found guilty of this offence, which in my view was inevitable.

26Your plea is evidence of remorse and an acknowledgement of responsibility.  It has utilitarian value.  To Mr Simmons you said your conduct was 'stupid' and Mr Simmons opined that you did not attempt to justify your behaviour, but nothing more was advanced evidencing remorse.  Your counsel ultimately conceded a gaol term was the only option.  The prosecution agreed and so do I.

27This is a particularly serious example of this offence.  The Court of Appeal in Harrison concluded that past penalties for serious examples of this crime were too low.  That was a decision in December 2015.  The maximum term of ten years, that is increased from five years, must be acknowledged.  The communities unwavering intolerance of drink driving must see the court give real weight to denunciation, and not just in words of condemnation but in practical terms of stern punishment.

28Likewise, the importance of general deterrence in offenses of this kind has been stated and restated by the courts.  I must adhere to that and ensure that my sentence operates to deter others who might be minded to drink alcohol and drive in that unsafe condition on our roads.

29Deterrence to you is of some, but limited importance.  Your rehabilitation is not overlooked, but it must yield to the other sentencing purposes.  I will allow for a period of potential parole so that if you are granted parole, that is a matter for others, not me.  That on your release you are closely supervised and supported in your return to the community.  It is hoped that the lengthy forced abstinence from alcohol may reduce or eliminate your abuse of alcohol on your release.  That would be both in the communities and your best interest.

30Can you please stand, Mr Radalj.

31Doing the best I can in respect to this matter; for committing the crime and negligently causing serious injury, you are sentenced to four years and six months, and I fix a minimum term of two years and six months before you are eligible for parole.  You have already served 247 days on remand.  That figure having been reckoned, I declare that 247 days is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 247 days of the sentence I have just imposed.

32Had you pleaded not guilty to these matters and been found guilty of them I would have imposed a sentence of five years and nine months, with a minimum term of three years and nine months.

33Is there anything further required?  What is the licence - what happens?

34MR SINGH:  Your Honour, the licence under the Act needs to be cancelled for a minimum of two years.

35HIS HONOUR:  Minimum of two years?

36MR SINGH:  Minimum of two years.

37HIS HONOUR:  Do you have anything to say about the licence?  You can be seated Mr Radalj.

38MR LINDNER:  No, Your Honour, nothing to say.

39HIS HONOUR:  In all the circumstances, it seems to me that cancellation of your licence and disqualification of obtaining a licence shall be three years and six months from today.

40Is there anything else?

41MR SINGH:  Yes, Your Honour, I believe a s.464 order is ‑ ‑ ‑

42HIS HONOUR:  All right.

43MR SINGH:  ‑ ‑ ‑ e-Lodged with the court and I believe my friend has no objection to that course.

44HIS HONOUR:  Yes, I will ‑ ‑ ‑

45MR LINDNER:  No objection.

46HIS HONOUR:  Thank you.  I will grant the application because of the seriousness of the offending, because of the prior matters and it is in the interests of justice that the 464 application be granted.

47What that means to you, Mr Radalj, is that the authorities will come to you seeking a scarping from your mouth to get a forensic sample.  They need to get your DNA, so they need to undertake that procedure.  The point you have to understand is that when they come to do you must cooperate with them.  If you do not than they are authorised to use reasonable force to get the sample.  So the way forward is to do as I have just heard from your counsel, that is you do not stand in the way of the order, just cooperate with the people who come to get it.

48Is there anything further?

49MR LINDNER:  No, Your Honour.

50MR SINGH:  No, thank you, Your Honour.

51HIS HONOUR:  Thank you.  Sign that order.  I thank counsel for their assistance in the matter.  Mr Radalj can be taken downstairs.

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