Director of Public Prosecutions v Ratol
[2019] VCC 416
•2 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 18-00799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMENPREET RATOL |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2018; 28 March 2019 | |
DATE OF SENTENCE: | 2 April 2019 | |
CASE MAY BE CITED AS: | DPP v Ratol | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 416 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Plea of guilty – dangerous driving causing serious injury – failing to stop after an accident |
| Legislation Cited: | Transport Act 1983; Criminal Procedure Act 2009; Road Safety Act 1986; Crimes Act 1958; Sentencing Act 1991. |
| Cases Cited: | The Queen v Loftus [2019] VSCA 24; Stewart v The Queen [2018] VSCA 55. |
| Sentence: | Convicted and sentenced to 2 years’ and 6 months’ imprisonment with a minimum term to be served before being eligible for parole of 15 months’ imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. Raimondo | Solicitor of the Office of Public Prosecutions |
| For the Accused | Ms D. Lamovie | Ms Sarah Gall – Victoria Legal Aid |
HIS HONOUR:
1 Mr Ratol was born on the 11th day of May 1985. He is now 33, he was 31 at the time of the commission of this crime.
2 In this plea, Mr Raimondo appeared for the Director, Ms Lamovie for Mr Ratol.
3 Mr Ratol pleaded guilty to offences which took place on 4 December 2016, Indictment No.J10290830.
4 The first charge on the indictment is pursuant to s.319(1A) of the Crimes Act, a charge of dangerous driving causing serious injury.
5 The victim in this matter was Trent Jarrod Atkinson. Mr Atkinson was 29 at the time, he is now 31 and was a track rider at the time, in the sense of horse racing.
6 The maximum penalty prescribed by Parliament for this offence is one of five years. Section 89(1) of the Sentencing Act requires the Court to cancel the drivers’ licence of Mr Ratol for a minimum period of 18 months.
7 In addition Mr Ratol pleaded guilty to the second charge on the indictment under s.61(1)(a) of the Road Safety Act, to leave the scene of an accident. Sub-section 3, and it's sub-sections, impose a penalty of ten years for this offence, demonstrating the seriousness with which Parliament views this offence, where a serious injury is incurred, a person leaves the scene knowing that an accident has occurred and that a serious injury has resulted.
8 Section 28(1)(b) of the Road Safety Act allows this Court, if it deems it appropriate to suspend a licence for as long as the court thinks fit for this offence.
9 In addition, pursuant to s.145 of the Criminal Procedure Act, Mr Ratol asked the Court to take into account two summary charges. The first being to drive while authorisation to do so was suspended, an offence under s.30(1) of the Road Safety Act for which the penalty is a maximum 240 penalty units or two years' gaol. The second, an offence of driving a taxi without appropriate accreditation, being an offence under s.165(1)(a) of the Transport Act for which the maximum penalty is one of 60 penalty units.
10 Mr Ratol reported himself, about an hour and a half later, to the police, however remained on bail until he was remanded on 31 January 2018. Since that time he has spent, what is now agreed at, 426 days on remand. It should be noted that this is the first time that Mr Ratol has ever been in custody.
11 An application is made for a s.464ZF order, which I have agreed to sign, given the seriousness of the crimes. Whether it is to any effect is another question.
12 As to the circumstances of the two crimes in the indictment. Mr Ratol was working as a taxi driver on 4 February 2016 in Melbourne when his taxi was hailed by four passengers, Mr Atkinson, a male friend, and their two female companions. This took place at 2.30 am. Eventually the fare was determined to take the party to Cranbourne. Thereafter an argument broke out as to the appropriate route to Cranbourne. It is obvious that the passengers had enjoyed a long night, and were impacted by alcohol, indeed there does not seem to be any dispute that they were intoxicated.
13 In the argument Mr Atkinson tried, and in fact did apply the brake to the taxi. This led to the driver stopping the taxi, and asking the four passengers to get out of the taxi. Mr Atkinson asked for the driver's name, who refused to give it. Mr Atkinson then took the driver's ID card from where it was positioned in the taxi, and took it with him as he alighted and stood approximately 2 metres in front of the taxi to its left.
14 In an action which the prosecution accept was not deliberate, and I say this because it is important, because Exhibit C was the CCTV vision of the circumstances. While it is not absolutely clear, an impression could be given from a viewing of the CCTV that the driving was deliberate. The Crown accept that due to the position of the wheels when the taxi stopped and inattention of Mr Ratol, brought about by panic in the circumstances, Mr Ratol then accelerated. As a result, the rear wheels ran over Mr Atkinson's left leg and his shoulder causing the serious injuries that this Court has heard about.
15 Thereafter Mr Ratol drove off the pavement, onto the road and drove off. He contacted police thereafter, and handed himself in at the Werribee Police Station at 4 am, some one and a quarter hours later. On this date his licence was suspended and he was not authorised to drive a taxi. He states that in regard to both matters he was unaware of same, however such are basically regulatory matters and have no impact on the indictable crimes.
16 In regard to the record of interview, Mr Ratol stated that Mr Atkinson was drunk and aggressive. As the prosecution said, there was nothing about that statement which is irreconcilable with the Crown opening. Mr Atkinson had either attempted to brake the car, or stop the car, and had got out with the driver's identification. Mr Ratol said in his record of interview that he was therefore scared. The other passenger he said had moved to the front of the car and hit him, and in the circumstances he drove off as he was scared and did not know what to do. Such was the combination of his response set out in Answers 23, 88 and 112.
17 In the record of interview he said that while he acknowledged his obligation and accepted responsibility for his crimes, he believed that he committed those crimes as a result of shock and confusion brought about by his concerns. He has no relevant priors as to the charges in the indictment. He has been driving a taxi for three years. The plea was made at the earliest time, as I have said he handed himself in shortly after leaving the scene.
18 Ms Lamovie in her written submissions put that the plea to Charge 2 is very valuable. I accept that. Clearly if this matter went to trial, this would have been a matter of some consideration for a jury. To commit this offence one not only has to know there was an accident, which clearly he would have, but one has to appreciate at the time one leaves the scene, that a serious injury had occurred. I find not only is it a valuable plea, but it is a plea which assists the course of justice, in particular given the circumstances and the injuries and the psychological upset that Mr Atkinson has gone through, such plea meant he did not need to come and give evidence in this Court.
19 As to the assessment of the objective gravity of the crime, there was no issue from Ms Lamovie that clearly this was a grave offence. That it produced a serious injury to Mr Atkinson. She put, and I accept, that the actions were spontaneous and an ill judged panic reaction brought about by the issues of flight from a perceived threat from Mr Atkinson and his companion. I assess the objective criminality of Charge 1 as moving towards the mid-range.
20 I accept the prosecution's submission that the principles, given the seriousness of the crime and the penalty imposed by Parliament, of general deterrence, specific deterrence and punishment are relevant. I also accept there is a role for cumulation in the sentence as referred to in Stewart v The Queen [2018] VSCA 55, [22] and [23]. I was the sentencing Judge in Stewart. These matters are always relative, the injuries were more horrific in Stewart and the circumstances of the accident were drug induced, and insofar as the s.61 charge, there was deliberate and maintained action to try to avoid detection. Those matters are not present here.
21 The matter of grave concern to this Court of course was the consequences to Mr Atkinson. He was taken to hospital by ambulance, he had suffered an open and compound fracture to the left tibia and fibula. He had multiple closed fractures to the left spine. He required surgery whereby a metal bolt and two rods were put into his leg. He was released from hospital after three days. Thereafter he was required to spend some eight weeks on crutches. His victim impact statement, it seems to me, was a very reasoned statement. He spoke predominantly of the impact upon his employment as a full time track rider and barrier attendant, being the only employment he has had since the age of 16. As he stated,
"I can no longer run, hop, skip and all of the above injuries have had a high impact on my capabilities and of any chance of returning to working in the job I know and am passionate about. I would require a full recovery to do this."
22 It appears that he has gone back to his employer but in a similar occupation.
"Emotionally I suffer the fear of being depressed, stuck at home and constantly relying on others. Having to rely on TAC payments, pay cheques isn't comforting when you have loans, child support and a fiancée wanting to purchase a house. Such puts great strain on me. I will continue to see doctors and specialists to deal with both my physical and mental state. I now have many fears to deal with. Simply getting round as a pedestrian and fearing taxis is an everyday battle."
23
In addition to that victim impact statement which was tendered as Exhibit B,
Mr Atkinson provided an updated statement which was dated 23 November 2013 which spoke essentially of the surgery, of returning to work in a completely different role, and the issues as to his future that I have detailed, the mood swings that he is dealing with and the problems of depression and need for counselling.
24 I indeed took the opportunity, with Mr Atkinson's consent, to view his leg. Clearly from a physical point of view the surgeons have done an excellent job. However I was still somewhat concerned about understanding the full extent of his injuries, and as such the Court called for a further report. What was provided was a report of Dr Rayner which became Exhibit D. That report was dated 28 March, and Dr Rayner was a medical practitioner from Melbourne Health. Consent was provided from Mr Atkinson for a report from the Royal Melbourne Hospital and his treatment thereafter. It noted that the nail in regard to the left tibia had been removed on 22 January 2018, and that the latest clinical notes on 14 March of this year state that the patient has good function post removal of nail, he is able to walk with minimal pain and hop on his left leg. The major complaint is an inability to kneel due to anterior knee pain. The opinion given, albeit that this was not an orthopaedic surgeon, was that,
"The surgery that he underwent had healed well. The tibial nail had subsequently been removed due to knee pain and that has not completely recovered. It is difficult to say if his knee pain will ever return to normal but from the clinical notes it would appear that he now has good function of his left leg."
25
As I say those matters have to be balanced against the actual comments of
Mr Atkinson. However, that is as best as one can do because there is no orthopaedic opinion before the Court. It would appear however that not only is Mr Atkinson positive in attitude and continues with his counselling, but the medical opinion is positive as to further improvement.
26 In regard to the plea, the exhibits tendered were firstly the outline of defence submissions by Ms Lamovie and I will come back to those. However in particular from paragraphs 22 through to 41, the personal circumstances and background of Mr Ratol were set out. Also tendered as Exhibit 4 was a report of consultant psychologist Ms Carla Ferrari. It is noted at [52] that he had pleaded guilty, took full responsibility for the commission of the offences, expressed remorse and disappointment in himself for the trauma of the incident, and the impact that it had on the victim and the victim's friends who were present.
27 The circumstances that I have recounted in regard to how this incident came about and the commission of these crimes, are set out at [56] – [58]. At [79] Ms Ferrari refers to the circumstances whereby a person with pre-existing anxiety, difficulties with employment and his immigration status, his concern for his health and the flight response as the background to his crimes is reasonable. It is noted in that paragraph that the following comment was made.
"His absence of a forensic history is testament that these acts were not committed due to antisocial or criminogenic thinking style. Nor an abhorrent disregard for social conventions and laws, but rather to increased anxiety, agitation and fear in the midst of an escalating situation which he had encountered previous during his work where intoxicated passengers become argumentative and assaultive."
28 At [80] the psychologist opined that there are a number of protective factors in regard to Mr Ratol’s rehabilitation. In particular that he had expressed genuine remorse and sympathy towards the victim. At [81] it was stated that there was no evidence of any entrenched personality or, psychotic disorder or any features of mania which further mitigates Mr Ratol's risks. The following was stated:
"He recognises the seriousness of his actions though as previously outlined this was not due to any criminogenic thinking style but a response to an escalating situation where he perceived and experienced heightened anxiety, agitation and panic. He has no previous forensic history which suggests a low risk of
re-offending. However his risk will increase if he does not cope and seek to cope with his pre-existing mental health issues."
29 Exhibit 5 tendered was a personal written apology of Mr Ratol. These matters are always difficult when such serious injuries have been caused, but I accept the statements made. It seems to me that there is no issue with his comment that the decisions made by Mr Ratol on that night are the worst decisions of his life, that such decision was careless and selfish to leave the scene of the accident, and that there is not a day that goes past without him thinking of what happened. As a result he wants to change his life totally and he finally ends up with the following statement. "It was a careless mistake, I am so sorry for Mr Atkinson, please forgive me." I accept that remorse as being genuine.
30 Insofar as the submissions of Ms Lamovie, there was no issue that the seriousness of this crime would require a sentence of imprisonment. Ms Lamovie took me to his personal circumstances, in particular to the issue of remorse, that he had no priors, and to the context of the circumstances whereby these crimes came about. I have already referred to those matters. She did not in any way cavil with the gravity of the crime and that it was a serious example of the offence. She noted and submitted however, that the offending should be seen as spontaneous and an ill-judged reaction to perceived pressure from the victim and his companions, I accept that proposition. She also noted that the circumstances, although dramatic and long term for Mr Atkinson, were of themselves brief and not prolonged.
31 Insofar as the failing to stop, she noted the reference at the record of interview and in particular, Answers 137-139, of acting on panic and fear. Such as distinguishing from the more serious cases where persons take active steps to conceal identity or to hide the offence. As I said, this was most prominent in Stewart, to which I was referred to by the prosecution. She also submitted that the evasion was short lived, and accepted the relevant sentencing factors referred to by the prosecutor were appropriate.
32 Ms Lamovie submitted that the articulation of remorse to Ms Ferrari, should be accepted as genuine, that he was entitled to an appropriate discount for his plea of guilty and I accept that. In particular the valuable plea insofar as the second offence is concerned. Insofar as the plea she relied on relevant principles to stress the utilitarian benefit of the plea, the indication by such plea of genuine remorse, and the willingness to facilitate the course of justice and in particular the acceptance by Mr Ratol of responsibility for those crimes. As I said, given the objective seriousness of the offences, Ms Lamovie did not dispute that a term of imprisonment was conceded and that the requirement for cumulation must be balanced of course against the principles of totality and parsimony.
33 Further matters were that he had been now, as a result of his bail being rescinded, and I am not quite sure why that was done, but at any rate he has now been as was indicated today – I am sorry Mr Prosecutor I did not write that down, what is the days?
34 MR RAIMONDO: It is 426.
35 HIS HONOUR: 426. Now in gaol for a considerable period. I accept that this is his first incarceration, that he of course does not have the benefit of family or friends unlike others, and that the matters set out in Exhibit 5 show the positive way in which he has gone about seeking to rehabilitate himself.
36 I also note the matters as to his status. He had his student visa cancelled and as I understand the matter was in the process of seeking to have that rectified. This conviction will mean that given the policy of the present government that he will almost certainly be returned home and I am told that that is in fact his wish. So that the uprooting and loss of opportunity are not of the scale referred to in the recent Court of Appeal decision of The Queen v Loftus [2019] VSCA 24. However clearly whatever aims he had in regard to a future in Australia are now well and truly gone, and I take those matters into account.
37 I also take into account that any minimum period to serve set by this Court is not necessarily guaranteed, and that Mr Ratol may well suffer a period of detention by way of actions of the immigration authorities. Those matters can only be speculated on by this Court, but I do take those mattes into account to some degree.
38 It is the balancing of all of those matters which is necessary in order to determine the appropriate penalty and I do so as best as is possible in the circumstances, in particular trying not to be overwhelmed by the seriousness of the injuries that Mr Atkinson has suffered and the consequences to him.
39 In those circumstances Mr Ratol would you stand up please.
40 In regard to the indictment, on the first charge you will be sentenced to a period of imprisonment of two years.
41 On the second charge, imprisonment of one year.
42 I order that six months of the sentence imposed in regard to Charge 2 be served cumulatively with the sentence in regard to Charge 1, making a total effective sentence in regard to the indictment of two and a half years imprisonment.
43 On the summary offences of which I have been asked to take into account, the first one being Charge 14, I sentence you to a period of imprisonment of three months.
44 In regard to Charge 15, which is Charge 2 that I have had to consider, a fine of ten penalty units, and I grant a stay of one year in regard to that matter.
45 In regard to the total effective sentence of imprisonment therefore imposed upon you, I order that the period you must serve before being eligible for parole is a period of 15 months.
46 Pursuant to s.18 I declare that the 426 days that you have served to date be deemed service of this sentence, and a declaration to that effect be recorded in the records of this Court.
47 Mr Ratol, it is a requirement of Parliament that I explain to you the impact of you pleading guilty to these matters. Can I tell you that had you not pleaded guilty, the sentence I would have imposed on you would be a period of three and a half years' imprisonment with a minimum period to serve of 22 months. Hence by the sentence that I have given you today, that is a maximum period of two and a half years with a minimum period to serve of 15 months, you can appreciate the benefit that you have obtained by pleading guilty and expressing remorse as you have in this matter.
48 I have signed as I said the s.464ZF order. That requires you to take a body sample test. If you are asked to do it before you are deported then you must fulfil that requirement and that is effected by taking a saliva sample. It is necessary for me to tell you if you do not do it, the authorities can come back and get an order here. I do not intend to make in the circumstances any order insofar as Mr Ratol's licence is concerned.
49 Yes Mr Prosecutor, are there any matters that I did not attend to?
50 MR RAIMONDO: Your Honour, in relation to the licence cancellation it is mandatory for the - - -
51 HIS HONOUR: I thought it was when it says "may".
52 MR RAIMONDO: For the dangerous driving causing serious injury it is mandatory Your Honour. For the other, for the summary offences it is "may".
53 HIS HONOUR: All right, for the other one it is the "may".
54 MR RAIMONDO: Yes Your Honour.
55 HIS HONOUR: All right, and is there a minimum period?
56 MR RAIMONDO: Of not less than 18 months Your Honour.
57 HIS HONOUR: As a result of the conviction in regard to Charge 1 as detailed to me by the prosecutor it is necessary for me to impose a mandatory cancellation of your licence for a period of 18 months and I do so.
58 Any other matters?
59 Thank you for that Mr Prosecutor.
MR RAIMONDO: No Your Honour.
MS LAMOVIE: No Your Honour.
HIS HONOUR: Yes, well Mr Ratol, good luck in your country when you get back. I am sure the experience that you have had in this matter for which I accept you have expressed genuine remorse for the injuries caused to Mr Atkinson, will lead to you hopefully being a much better man in the future. Yes take the prisoner away. I will stand down.
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