Director of Public Prosecutions v Sciberras
[2024] VCC 95
•13 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-23-00333
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN SCIBERRAS |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2024 | |
DATE OF SENTENCE: | 13 February 2024 | |
CASE MAY BE CITED AS: | DPP v Sciberras | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 95 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Negligently causing serious injury; possession of a drug of dependence; driving with child passenger without approved restraint
Legislation Cited: Crimes Act 1958 (Vic) s 24; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73; Road Safety Road Rules 2017 (Vic) r 266A(3)
Cases Cited:DPP v Oates (2007) 47 MVR 483; Gorladenchearau v The Queen (2011) 34 VR 149; Worboyes v The Queen [2021] VSCA 169; Phillips v The Queen (2012) 37 VR 594 [101]; Harrison v The Queen (2015) 49 VR 619; DPP v Barry [2017] VSCA 344; Sutic v The Queen [2018] VSCA 246; Gurovski v The Queen [2018] VSCA 3; Bell v R [2018] VSCA 28; R v Lu [2022] VSC 258; DPP V Haynes [2022] VCC 59; Cook v The Queen [2021] VSCA 293; DPP v Josevski [2005] VSCA 265; R v Duncan [2006] VSCA 239
Sentence: Total effective sentence of imprisonment of three years and eight months with a non-parole period of two years; on related summary offence convicted and fined $400
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Caust | Office of Public Prosecutions |
| For the Offender | Mr S. Ginsbourg | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1A family of five are being driven in a car on a single lane road. The driver is overtaking other cars, methamphetamine in his blood, travelling too fast. He tries to overtake a right-turning car, collides with it; he injures his wife badly. The momentum of the crash turns the car onto its roof; his three children are strapped inside.
Pleas of Guilty
2Steven Sciberras, you have pleaded guilty to one charge of negligently causing serious injury,[1] an offence which carries a maximum term of ten years’ imprisonment.
[1] Crimes Act 1958 (Vic) s 24.
3You also pleaded guilty to one charge of possession of a drug of dependence[2] which carries a maximum penalty of 30 penalty units or a year imprisonment or both.
[2] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.
4You agreed to have uplifted and pleaded guilty to the summary offence of 'driving a vehicle with passenger aged between four and seven without approved restraint',[3] an offence punishable by a maximum of 10 penalty units.
[3]Road Safety Road Rules 2017 (Vic) r 266A(3).
Factual basis for sentence
5There is a T-intersection where Bardwell Drive ends at Mickleham Road in Mickleham. Mickleham road runs north-south. Both roads are single lane in each direction. A give-way sign applies to drivers on Bardwell Drive as they meet Mickleham Road.
6An 80 kilometre per hour speed limit applies to both roads. It is a semi-rural area. On 11 December 2021 the driving conditions were good.
7About 11:15 am, Manpreet Shoker was driving south on Mickleham Road and had stopped his car, facing south, waiting for the chance to turn right into Bardwell Drive. John Brown had stopped his car behind Mr Shoker’s. Isabel Passey was slowing down her car behind Mr Brown’s car. The three cars then waited.
8You were also driving south on Mickleham Road, some distance behind. In the car with you was your wife, Prapai Detsanthia, and your three children under 12.
9Ms Passey saw your car approaching hers from behind. Your car was moving rapidly, she said, overtaking several other south-bound cars behind hers by driving on the wrong side of the road. Your car then stopped momentarily beside her car; your car half in the left side, half on the wrong side of the road. Then you accelerated. Within three cars’ length you had reached a speed of approximately 97 kilometres per hour, plus or minus one kilometre.
10As you did this, Mr Shoker, unaware of you, and watching for oncoming traffic, saw his chance to turn right and started to do so. This coincided with your attempt to overtake him. You drove into him, connecting with the right-side wheel of his car.
11The collision’s impact made your car slide off into the intersection’s south-west corner before leaving the road and rolling one and a half times before coming to rest on the roof, nearly 50 metres from the intersection.
12Mr Shoker’s car was damaged but he was, thankfully, unhurt.
13Some time during your car’s careering off the road and rolling, your wife was flung out of her seat, out of the car and onto the road. I return in a moment to a description of her injuries. You and your children escaped basically unhurt. This is so lucky given what you had done.
14Police arrived soon and described you as 'heightened and restless' in their words. You were taken by ambulance to the Royal Melbourne Hospital where a blood sample was later taken.
15Your wife was taken to hospital by air ambulance. Her injuries were complex. She had two fractured hips, two fractured vertebrae and a fractured right ankle. She also had a wounded left side, left elbow, and oedema of the bowel wall. At first, and for quite some time after, your wife was unable to bear her own weight and had to use a wheelchair.
16Your wife endured multiple surgeries in the days following the collision, without which she would have been unable to return to mobility. The surgeries involved the fixing of her bones back into place with screws and wires. She was ultimately admitted to inpatient rehabilitation before being returned home.
17In the opinion of Dr Angela Williams, a forensic doctor who prepared a medical report, it was likely your wife’s healing process would take at least six months with a reasonable likelihood of long-term pain and difficulty in movement. There was no formal medical update before me at the time of your plea but your wife was well enough to attend Court to support you.
18Originally, some speculation arose that seat belts were not properly worn in the front seats but this point was not pressed and I do not sentence you on that basis.
19Your youngest child, a six-year-old, was not in a car seat. This gives rise to summary charge 13, driving a passenger aged four to seven without approved child restraint.
20When police looked in your car at the crash scene they found a small bag of methylamphetamine in a glasses case. This gives rise to Charge 2 on the indictment, possession of a drug of dependence.
21Your blood later tested positive for methamphetamine at a concentration of 0.58 milligrams per litre. Dr Maaike Moller, a toxicologist, gave the following opinion:
· You drove after consuming methylamphetamine;
22I pause to note the observation of ambulance paramedics at the scene that you were 'alternately agitated and depressed' caused them to suspect clinical drug effect. However, I note that the prosecution did not ultimately press this.
23Dr Maaike also opined that:
· People who drive with methamphetamine levels of 0.1 milligrams per litre are 21 times the risk of being culpable in a car accident;
· The level of methamphetamine in your system was almost six times higher than that level;
· Based on that level of methylamphetamine, you were 'incapable of the proper control of a motor vehicle'.
Arrest and interview
24Five days after the collision, on 16 December 2021, you went to the Fawkner police station for an interview but when you arrived the police saw that you were unsteady on your feet. You said you had not slept much since the collision. You were found to be unfit for interview.
Nature and gravity of the offending
25The objective gravity of the charge of negligently causing serious injury by driving is to be assessed by the degree of negligence involved and the seriousness of the injury caused.[4] This offence sits between the charges of dangerous driving causing serious injury and below dangerous driving causing death.[5]
[4]DPP v Oates (2007) 47 MVR 483.
[5]Gorladenchearau v The Queen (2011) 34 VR 149, 153 [13].
26You have accepted that you ought to have known that your consumption of methylamphetamine the evening before would prevent you from properly controlling your car, and that in that state you attempted to overtake another car, and that you did so in an unsafe manner and at an unsafe speed.
27You knew that you had used methamphetamine the night before. I sentence you on that basis having regard to the level in your system and to the 'half-life' calculus advanced on the evidence on the brief and the submissions on your plea, which make good your claim that this level of drug in your system was consistent with your account of use the evening before, rather than the day of, your driving.
28But you ought to have known that your drug use would make you incapable of keeping proper control of your car. Your driving departed from the standard of care required of a motorist to a very significant degree. You drove; you drove fast, you drove aggressively, overtaking other cars, heedless of what they were doing. You paused beside Ms Passey’s car then accelerated, hard, in the moments before impact. You caused serious injury to your wife of 15 years. Nothing about what happened was inevitable; you were the author of all of it.
29I pause here to note that your explanation for not having the proper car seat was that you thought the requirement was based on the child’s height rather than age, and I accept that explanation.
30Your wife’s injuries were complex, painful and debilitating. She had to endure surgery, inpatient rehabilitation and still suffers some pain. I am very careful not to downplay her suffering, but on the scale of terrible injury the courts see in similar cases, and by good fortune and skilled medical intervention, she has emerged without the kind of catastrophic life-changing injury that is sometimes seen. Permanent loss of function is not expected.
31I regard the degree of negligence of your conduct as high; the injury caused though, thankfully, falls into a lower category than those sometimes caused, and balancing these features and making the overall assessment of the objective gravity of your offending, I arrive at about the mid-range or somewhat below.
Victim Impact
32Your wife, Prapai Detsanthia, is the victim in this case and your three children, under 12 at the time, were in the car too.
33Your wife did not make an impact statement but I infer that what you did caused your wife many months of pain, suffering, loneliness and separation from her young children while she was an in-patient.
34I am very careful not to sentence you on a basis that is uncharged but I also take into account the effect of what you did on your secondary victims, your children, who were driven by their father in a way that caused their mother to be flung from a fast-moving car in which they were passengers, their mother badly injured, airlifted to hospital where she stayed out of their reach for some months. I take your children's suffering as the result of what you did into account.
Prior Criminal History
35Your criminal history discloses a range of low-level offending for drug possession, offences of dishonesty and breach of intervention orders, mostly from a long time ago and none of which has great bearing on the sentence that I must impose. I note that some of the earlier alleged prior convictions were not admitted by you; no further information about your record of burglary and theft in 1989 was available and I set it aside. You also disputed a record of cultivation and use of cannabis recorded in 1997. I do not linger to make a finding about this; it is of little or no relevance to my task.
36Your Road Safety Act history which you have admitted, however, shows something significant. You have been dealt with in Court for driving carelessly (two Court appearances when you were 18), and for speeding in 1988, 1996 and 2004. There are also records of you having been dealt with for driving while disqualified or when your licence was suspended. This history is relevant. While much of it is not recent, it is enduring. It speaks of a failure to take seriously your obligations as a driver and of an immature and casual relationship with the safety of other road users.
Personal Circumstances
37You were 53 at the time of your commission of this offence and you are now 55. You were born in Australia; your parents are from Malta. You have two older siblings.
38You have two adult children from previous relationships. You took on the sole care of a daughter born to your first relationship when her mother was unable to do so. She lived with you until she was seven years old. A second relationship brought you a son and you stayed close with your both now adult children.
39You left school at Year 10. You have since had steady employment in automotive industries, in factory work and the construction industry, and you have had your own maintenance business for the last five years.
40You met your wife Prapai when you were on holiday in Thailand. You saw each other on and off for a while, while she lived there. She fell pregnant with your first child after about 18 months. She moved to Australia and you married and had two more children.
41Some years ago you bought a house; there is still a mortgage on it. You are unsure how this will be serviced while you are in custody. The saving you have done with this time in mind will not be enough, perhaps, for the family to keep their home.
42After the incident, the DHHS became involved with your family and you were not allowed to see your children unsupervised. You were subject to random urine screens for a time, (all clean), and your wife came home from hospital eventually, but the children remained in your sister’s care until your wife could cope physically with their return. What a lot you have put them through.
43You live near the scene of the accident and you remember it. When your daughter is in the car she remembers too and tells you so.
Matters in mitigation
Plea
44You resolved your case early to pleas of guilty, and this is very significant in arriving at your sentence. Your case settled at committal mention, which is also significant, and your plea still earns the additional and palpable discount according to the case of Worboyes v The Queen,[6] coming as it did in the period when courts had to contend with very long lists of cases on account of the delays caused by the pandemic.
[6][2021] VSCA 169, [39].
Remorse
45A police body-worn camera at the scene captured you saying, 'I nearly killed them' and 'I was driving like a fucking idiot'. 'I deserve to go to gaol', you volunteered more than once in the course of giving sworn evidence on your plea. Each of these statements, made either spontaneously or under oath, disclose that you both have insight and accept full responsibility for what you did.
46Importantly, you gave evidence on your plea and submitted yourself to cross- examination. You said, and I accept, that you are horrified by what you did, that you are a changed driver as the result (you were still driving for nine months before a notice of suspension arrived), and that you now, at 55 years old, having risked everything precious to you and brought immeasurable suffering to your immediate and extended family, you understand now what responsible driving is actually about.
47Your remorse is palpable and is a special feature of this sentence. It allows me to reduce the emphasis on specific deterrence. I was referred to the reasons of Harper JA in the case of Phillips v The Queen[7] where his Honour spoke of a very substantial reduction in sentence being owed to a person who has an accurate appreciation of their wrongdoing, of its impact on others and who will do everything they can to repair that damage. I find you fall into that category on the basis of your evidence on the plea and I will return to this feature of your sentence when I come to set a non-parole period, in particular.
[7](2012) 37 VR 594 [101].
Burden of imprisonment
48The burden of worry about your young family, the hardship and distress you have imposed on them, your worry about your elderly parents and concern for your sister, recently hospitalised with a stroke, will be of considerable torment for you while you serve your sentence and I take that into account.
Delay
49Your offending took place on 11 December 2021 but charges were not filed until nine months later on 6 September 2022. By 7 February 2023 your case resolved - this was an early and efficient plea - and another year then passes before this sentence. During that time, nine months of which you were licensed to drive, you have conducted yourself properly on bail and have lived all that time in the shadow of this proceeding and its inevitable conclusion. I take both limbs of delay into account.
Prospects of rehabilitation
50You remain close to your parents. You maintain your wife’s affection and support and you have a strong employment history. You have expressed your desire to never use drugs again.
51A psychological report was tendered on your plea. You do not present with any mental illness. You are suffering some anxiety and low mood because of this case. There is otherwise, and helpfully, nothing in your health, physical or mental, which will impede your rehabilitation.
52Character references, many of them, were tendered on your plea. You are well regarded by neighbours, work mates and friends. I give greater weight to those written by your adult daughter and your sister, as they clearly both understand the details of your offending and still both spoke of you with warmth and respect. Andrew Hill has heard you talk about the accident when he drives past the intersection. Other referees portrayed little or no real understanding of the extent of what you did but your wife’s letter speaks of her affection for you and the many difficulties she and your children must now contend with.
53You have a strong work history. You will return to family support and be capable of supporting them again after your sentence.
54Taking these things together, I find your prospects of rehabilitation are good.
Current sentencing practices
55I have had regard to a range of 'post-Harrison'[8] sentences for negligently causing serious injury by driving.[9] I have read sentences that are alike and unalike to yours. Eight years ago the court in Harrison expressed a view on the inadequacy of sentencing for negligent conduct causing serious injury by driving. I have read other sentences and what has been said about sentencing practice. My task is to do individual justice though, but I do so in that broad landscape.
[8](2015) 49 VR 619.
[9] DPP v Barry [2017] VSCA 344; Sutic v The Queen [2018] VSCA 246; Gurovski v The Queen [2018] VSCA 3; Bell v R [2018] VSCA 28; R v Lu [2022] VSC 258; DPP V Haynes [2022] VCC 59.
Purposes of sentence
56The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise.[10] The community must hear about the serious consequences for driving like you did and respond accordingly. You must be punished for what you did. I find the roles for specific deterrence and community protection are reduced for reasons that I have already described in dealing with your remorse.
[10]Cook v The Queen [2021] VSCA 293 [41].
Ancillary orders
57Given that your offending is categorised as a 'serious motor vehicle offence', the law says your licence must be cancelled and that you must be disqualified from driving for two years at a minimum, and I make that order for 24 months.
58In doing so, I have taken into account that you have been already suspended for 17 months, and so I return to that minimum period of disqualification.
59Turning now to the disposition. If you would stand up for me now Mr Sciberras.
Disposition
60On Charge 1, negligently causing serious injury, you are convicted and sentenced to three years and eight months' imprisonment.
61On Charge 2, possessing a drug of dependence, you are convicted and sentenced to seven days imprisonment to be served concurrently.
62On the related summary offence of failing to have a properly fitted child passenger seat, you are convicted and fined $400.
63So this results in a total effective sentence of imprisonment of three years and eight months.
64I fix a minimum non-parole period of two years' imprisonment.
65I have arrived at that slightly unusual relationship between head sentence and non-parole period after weighing all the sentencing factors, including your remorse and your good prospects of rehabilitation, bearing in mind that the purpose of fixing a non-parole period is to provide for mitigation of your punishment in favour of your rehabilitation through conditional freedom.[11] I am recognising your remorse and your good prospects of rehabilitation in further reducing your non-parole period after already applying those features in mitigation of the head sentence.
[11]DPP v Josevski [2005] VSCA 265 [43] per Callaway JA; see also R v Duncan [2006] VSCA 239.
Section 6AAA
66Had you not pleaded guilty and after trial been found guilty, I would have imposed a sentence of five and a half years with a non-parole period of three and a half years.
67I make the order for disposal of the methamphetamine as sought.
68You can take a seat, Mr Sciberras.
Section 89C finding
69The prosecution hasn't applied for a s89C finding, do you ask me to make that finding?
70MS CAUST: You may, yes, thank you.
71HER HONOUR: All right. In terms of the driver's licence, pursuant to s89C of the Sentencing Act I find that the offending was committed under the influence of methamphetamine and which contributed to the offence.
72Are there any orders outstanding?
73MS CAUST: There was just the – and I may have missed it, Your Honour – pre-sentence detention of five days.
74HER HONOUR: Thank you, I appreciate that. Is that the correct figure, Mr Ginsbourg?
75MR GINSBOURG: Yes.
76HER HONOUR: I note and declare as time already served pursuant to this sentence, pursuant to s18 of the Sentencing Act of five days. Is there anything else, counsel?
77COUNSEL: No, Your Honour.
78HER HONOUR: Thank you for your assistance.
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