Director of Public Prosecutions v Seletto
[2014] VCC 1802
•31 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01317
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN DAMIEN SELETTO |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2014, 24 October 2014 | |
DATE OF SENTENCE: | 31 October 2014 | |
CASE MAY BE CITED AS: | DPP v Seletto | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1802 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Hayward | OPP |
| For the Accused | Ms M. Tittensor | VLA |
HIS HONOUR:
1 Brian Seletto, you have pleaded guilty to one charge of Dangerous Driving Causing Serious Injury. The maximum penalty for this offence is 5 years' imprisonment.
2 You have also consented to this court dealing with a summary charge of exceeding the prescribed concentration of alcohol. The maximum penalty for this offence is 120 penalty units or 12 months' imprisonment.
3 The Prosecution has presented a summary of your offending. I do not intend to repeat it. It will be attached to these sentencing remarks as Exhibit A.
4 Briefly, at about 6.20 pm on 31 August 2012, you were driving south along a service road on the Nepean Highway. The victim, Daisuke Totsuka was riding his bicycle along the same road. You ran into the back of Mr Totsuka’s bicycle. He was thrown from his bike and suffered serious injuries. His injuries included:
· A subdural haemorrhage;
· A laceration to the left side of his head;
· A laceration to his left cheek;
· Fractures of three ribs on his right side;
· Fracture of a rib on his left side;
· A fracture to three of his vertebra in his spine;
· A large haematoma on his scalp;
· Pneumothoraxes'; and
· Multiple fractures to the metatarsal bones.
5 Mr Totsuka has provided two victim impact statements to the Court detailing the harm he has suffered. Fortunately, it appears that he has now made a good recovery from his physical injuries. Apart from some scarring to his face and body, there does not appear to be any other permanent physical disability. However, he does suffer ongoing stress and anxiety.
6 Police attended the scene of the collision. You underwent a preliminary breath test that produced a positive result. A subsequent breath test produced a reading of 0.116 per cent. Professor David Wells has provided an opinion that a breath alcohol concentration of 0.116 per cent renders a person incapable of safely controlling a car.
7 In addition, it is estimated that you were travelling at between 60 and 73 kilometres per hour in a 50-kilometre speed zone at the time your car hit Mr Totsuka.
8 You told police that you had consumed a bottle of wine before driving your car. You decided to drive to get some food and on the way home from the shop, you hit the cyclist. You saw him at the last moment and did not apply your brakes.
9 Mr Seletto, this is serious offending. You chose to drive your car after you had consumed a bottle of wine. You clearly did not have the ability to exercise proper control of the car and you were speeding. You hit a cyclist and caused him to suffer serious injuries. Although he has made a good recovery from his physical injuries, he still suffers psychologically.
10 General deterrence, punishment and denunciation are highly relevant sentencing considerations in this case. Driving whilst affected by alcohol is a significant social evil. If you choose to drink and then drive and while doing so cause serious injury to another person, you must expect to pay a heavy price for that criminal behaviour.
11 You have relevant prior convictions. In 1997 you were convicted and fined in the Magistrates’ Court for drink driving and unlicensed driving. Your alcohol reading at the time of that offence was 0.180 per cent. In 2000, you were fined again for drink driving and drive whilst disqualified. In 2001, you were imprisoned for one month on two charges of driving whilst disqualified. Your former wife states that you found the experience of gaol harrowing. Notwithstanding your history and the experience of gaol, you made the decision on the day of this offence to again drink and drive. On this occasion you hit a cyclist and caused him to suffer serious injuries. Given these circumstances, specific deterrence and protection of the community are also relevant sentencing considerations.
12 You will be given credit for your plea of guilty.
13 The matter was initially listed for trial on 29 July 2014. The matter resolved with the Crown withdrawing a more serious charge. You entered a plea of guilty to the charge on the current indictment. Your counsel indicated that initially causation was going to be an issue in the trial. Although the prosecutor would have called evidence to address the issue, he concedes that it would have been a “difficult trial”. In circumstances where the cyclist cannot recall anything about the collision and the witnesses did not see the prelude to the collision, your plea of guilty is significant. I accept that your plea of guilty is an important matter in mitigation.
14 I am also satisfied that your plea is indicative of true remorse. In addition, the plea has avoided the costs and expense associated with a criminal trial.
15 I now move onto matters relevant to the issue of rehabilitation.
16 You are a 64-year-old man. You have suffered from anxiety and panic attacks from a young age. Mr Ives, psychologist, has made a diagnosis of Generalised Anxiety Disorder. In a report to the court, he indicates that the intensity of the disorder has fluctuated over the years but that it “would burst out of control from time to time.”
17 The collapse of your marriage in 1993 appears to have been a profoundly destabilising event in your life. It culminated in a period of intense anxiety, unstable accommodation and unstable employment. You started drinking more heavily and between 1997 and 2001, there were four separate appearances in the Magistrates’ Court; two for drink driving, one for theft and one for offences of driving whilst disqualified.
18 After your release from prison in 2001, you received some assistance from your brother Terry and you worked with him in his business for 12 months or so. You then established your own advertising publication business but that failed after four years. In 2010, you were placed on a disability pension because of your anxiety condition. You remained offence free until the commission of this offence in August 2012.
19 I accept you have significant health issues. In addition to your Generalised Anxiety Disorder, you suffer from diabetes, a gastric ulcer, gout and hypertension. Given your age and health issues, I am satisfied that the sentence should be moderated to acknowledge the fact that gaol will be harder for you than it would be for a person without these conditions.
20 Your counsel submitted that your moral culpability should be reduced because of the Generalised Anxiety Disorder. I do not accept that submission. Whilst I am satisfied that you suffer from the disorder, the evidence presented does not establish an appropriate connection between the disorder and the offending.
21 I am guarded about your prospects for rehabilitation. Clearly, alcohol has been a major issue in your life. It seems that the heavy use of alcohol has been a way for you to deal with your entrenched anxiety disorder. Past attempts to address that disorder have met with mixed success. Your rehabilitation is dependent on your willingness to undergo effective treatment for both the anxiety disorder and your alcohol abuse.
22 I accept that you do have positive support from Ms Davis, your siblings and your adult children. However, this support did not stop this offence from occurring.
23 Mr Ives indicates that you have been in a companionable relationship with Ms Davis for the past decade. After the commission of this offence Ms Davis became very concerned about your welfare and invited you to move into her home. She has been providing you with support and this seems to have been of benefit to you. I note that you have completed two courses during this time and there has been no further offending.
24 It is now more than two years since the commission of the offences. The delay is not inordinate but given your anxiety disorder I do make some allowance in my sentence in acknowledgement of the uncertainty and anxiety you have suffered waiting for this matter to be finalised.
25 The Sentence - Mr Seletto, given the serious nature of this offence, the only appropriate order is an immediate term of imprisonment. The matters raised in mitigation have not persuaded me that the course submitted by your counsel – namely a community corrections order - is an appropriate order. Put simply, such an order would not adequately mark the gravity of the offending.
26 Please stand.
27 On the charge on the indictment, you will be convicted and sentenced to 21 months' imprisonment.
28 On the summary charge you will be convicted and sentenced 6 months' imprisonment. I order that this sentence to be served concurrently with the 21 month sentence.
29 I fix a minimum of 12 months before you will be eligible for release on parole.
30 I declare that you have served 8 days by way of pre-sentence detention.
31 Had you been found guilty after trial, you would have been sentenced to a term of two years and nine months' imprisonment with a minimum term of 24 months.
32 In fixing the period of disqualification of licence, I take account of the one year and 26 days' suspension that you have already served pursuant to a notice of suspension. However, I must also have regard to the seriousness of the offending and your prior poor driving history. On both charges, all licences are cancelled and you are disqualified from driving for a period of three years. The order will not be back dated.
33 Mr Seletto, I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the authorities may use reasonable force to obtain the sample. This order is made pursuant to Sections 464ZF (2) and 464ZF(2)(a) of the Crimes Act 1958. I make the order for the following reasons; the seriousness of the offending, the order is in the public interest and the order is consented to.
34 Are there any other matters?
35 COUNSEL: No, Your Honour.
36 HIS HONOUR: Thank you. I will just sign the orders now. Mr Hayward, I notice that the order that has been presented is dated 24 October. I would ask your instructors to prepare a new order with today's date and once it is forwarded through, I will sign it.
37 MR HAYWARD: As Your Honour pleases.
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Exhibit A:
Indictment No: D10496900.1
Court Reference: CR-13-01317
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. BRIAN DAMIEN SELETTO |
| Date of document: | 25/09/14 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions | G Hayward Solicitor’s code: 7539 Reference: 1303049:TS |
Charge one: Dangerous driving causing serious injury
- At about 6.20pm on Friday the 31st of August 2012 Daisuke Totsuka was riding his bicycle south along a service road that runs next to the Nepean Highway. Mr Totsuka was a Japanese student, on his way to the Southland Shopping Centre.
- Mr Seletto was driving a car, a silver Ford sedan. He also drove south along the service road and as he did so, the front of his car collided with the back of Mr Totsuka's bicycle.
- The impact caused Mr Totsuka to be thrown from his bike, and he suffered serious injuries. The injuries included:
ñA subdural hemorrhage (bleeding in the layer of tissues that separate the skull from the brain
ñA laceration (a cut) to the left side of his head
ñA laceration to his left cheek
ñFractures of three of his 'right hand side' ribs
ñFracture of a rib on his left hand side
ñA fracture to three of the vertebra in his spine
ñA large haematoma (build up blood within the skin) on his scalp near the back of his head
ñPneumothoraces (build up of gas between the lungs and the chest wall)
ñMultiple fractures to the metatarsal bones (the long bones of the feet)[1]
[1]Statement of Dr Ponsford page 17; hospital records (see pages 210 - 211)
- Mr Totsuka doesn't remember being hit by the car.
- Shortly before the collision, Carmen Maskell and her boyfriend Brendan Leal were in a car driving south on the Nepean Highway itself – next to the service lane. She saw Mr Seletto pass her as he drove along the service lane to her left. She saw Mr Totsuka hit the Mr Seletto's windscreen and get 'thrown' into the air[2].
[2]Statement of Maskell page 4 paragraph 2.
- Mr Leal also saw Mr Seletto's car driving behind the bicycle and then collide with it[3]. Ms Maskell and Ms Leal turned into the service station and stopped to try and help. Mr Leal called 000.
[3]Statement of Leal page 7 paragraph 4.
- Two police officers – Leading Senior Constable Quinert and Senior Constable McDonnell arrived at the scene within minutes. An ambulance arrived very shortly after they did. Mr Seletto had gotten out of his car. Quinert gave the him a 'preliminary' breath test. That was done at 6.27pm
- The data from the preliminary breath testing device was later obtained. A forensic officer with expertise in relation to that type of device formed an opinion that the breath alcohol content was not less than 0.104%[4].
[4]Statement of Papavasiliou page 15
- As a result of the 'positive' breath test, Mr Seletto was taken to the Moorabin police station. At 8.21pm Senior Constable McDonnell had him blow into a breath analysis machine. The results showed a breath alcohol content at that time of 0.116%[5].
[5]Statement of McDonell page 40 paragraph 2; certificate of analysis page 61
- The area of the collision was investigated by police officers from the Major Collision Investigation unit. Photographs and measurements of the scene were taken. Their observations are consistent with Mr Totsuka riding his bicycle on the service road, and Mr Seletto driving into the back of the bike. The bicycle itself was extensively damaged. There was a dent in the front bumper bar of Mr Seletto's car under the number plate. The windscreen had been shattered. There were scrapes and dents on the bonnet[6].
[6]Statement of Frith page 21 paragraph 1
- The service lane was a 50 kilometer per hour zone. Detective Senior Constable Jenelle Mehegan is an expert in reconstructing the events surrounding motor vehicle collisions. In a report dated the 18th of July 2014 she provided an opinion as to the minimum speed that Mr Seletto's car was traveling at, at the time of impact. One of the factors she took into account was "There is no physical evidence of emergency braking by the driver of the Ford. There are no visible skid marks..."[7]. Detective Mehegan calculated that Mr Seletto's vehicle was traveling at between 60 kilometers per hour and 73 kilometers per hour when it impacted with Mr Totsuka.[8]
[7]Statement of Mehegan - (not in depositions) dated 18 July 2014. This report was provided by her in response to a report obtained by the defence)
[8]Statement of Mehegan - (not in depositions) dated 18 July 2014. This report was provided by her in response to a report obtained by the defence)
- An inspection of the car by a properly qualified police officer showed that Mr Seletto's car was roadworthy – that there was nothing about the car itself that caused or contributed to the collision[9]
[9]Statement of Ackland page 36
- Mr Seletto was interviewed by Leading Senior Constable Quinert. She said “...I put it to you that you were involved in a collision on the 31st ...and that you hit a cyclist, and that when we tested you for alcohol you blew over the legal limit. Do you agree with that?”. He said “I do”[10].
[10]ROI page 325 Q&A 134
- Professor David Wells is an expert on the effects of alcohol upon driving. He provided an opinion that a breath alcohol concentration of 0.116% significantly reduces the skills required for safe driving – that such a breath alcohol concentration renders a person incapable of safely controlling a car[11].
[11]Statement of Wells page 13
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G Hayward Trial Prosecutor.
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