Director of Public Prosecutions v Sita
[2012] VCC 1008
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00873
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEOLILO SITA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2012 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v Sita | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1008 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence – dangerous driving causing serious injury – youthful offender – degree of moral culpability – unlicensed driver – combination of inattention, alcohol and speed contributing to accident – victim rendered quadriplegic – immediate custodial sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. I. Hutton (Plea) Ms L. Spitale (Sentence) | Craig Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Smallwood | Victorian Legal Aid |
HER HONOUR:
1 Leolilo Sita, you have pleaded guilty before me to one charge of driving in a manner dangerous, contrary to s.319(1A) of the Crimes Act (Victoria) 1958.
2 In addition, a notice of a related summary offence has been filed and upon committal, the summary charges were transferred to this court, pursuant s.145 of the Criminal Procedure Act 2009.
3 You have pleaded guilty to four charges being: Charge 3, unlicensed driving; Charge 6, use unregistered motor vehicle on a highway; Charge 8 state false name when requested and; Charge 9, state false address when requested.
4 The penalty for the offence of dangerous driving causing serious injury is a maximum penalty of five years’ imprisonment. With respect to the associated summary offences, the penalties are three months, or 25 penalty units, for unlicensed driving. 25 penalty units for driving unregistered, 5 penalty units for state false name and state false address.
5 I shall now proceed to sentence you on the basis of the Crown opening, there being no objection to that opening taken during the plea hearing.
6 Briefly the background to the charge relating to driving in a manner dangerous is that on the evening of Saturday, 4 September 2010, you attended a friend's birthday party in Cranbourne. Whilst there, you consumed about six cans of pre-mixed Jim Beam and Cola.
7 A friend, Aaron Aiesi, was also at the party. At about 4.15 AM on Sunday, 5 September 2010, you agreed to drive Mr Aiesi home. He had been drinking heavily over the course of the evening. He was placed in the rear seat of your vehicle and was not wearing a seatbelt. He was asleep. He has no memory of the time between leaving the party and waking up in hospital.
8 The vehicle you were driving was unregistered and you were not licensed.
9 At about 4.20 AM, you drove along Thompsons Road, Cranbourne North, towards Merinda Park railway crossing. You were travelling at a speed that a witness described as "giving it a bit". Your car veered hard left, and smashed at high speed into the driver's side rear of a traffic management ute that was parked on the southwest side of the railway crossing. That vehicle was stationary, it had its hazard lights operating, and an orange rotary safety light activated. The impact of the collision caused extensive damage to the front of your vehicle, and the rear of the other vehicle.
10 As a consequence of the collision, Mr Aiesi was severely injured. He received injuries, including cardiac arrest, requiring resuscitation at hospital. A CT scan showed a fractured dislocation of the left 4-5 facet joint, a subluxation on the right, with narrowing of the spinal canal, along with other serious vertebral column fractures. The cervical fracture was fixated and the victim was required to wear a collar for three months. He later suffered pneumonia.
11 Mr Aiesi had extensive hospitalisation, with extensive physiotherapy. Later examination confirmed permanent quadriplegia . He has regained some motor power in his arm, that is, he is able to bend his right elbow with only a flicker of movement in the left. He has some wrist extension and finger movement on the right, but virtually nothing on the left. Sensation is present on the upper and outer part of both arms, although diminished, particularly on the left. And there is no sensation in his trunk or legs.
12 At the time of the collision, it was dark, rainy, and windy. When police attended the scene and spoke to you, you stated falsely that your name was James Lagawa, and gave a false address. You told police that you did not have a license, and stated to them that you just wanted to get your mate home. You told police that you were driving along, and looked down to change the radio station and lost control of your vehicle. You started swerving and hit the other car. You were then required to undergo a preliminary breath test that was positive and later, you had an evidentiary breath test that showed a result of 0.086 percent of alcohol in your blood.
13 On 2 February 2011, you were arrested after being correctly identified. You participated in a record of interview, during which time you admitted to stating a false name and address, to not being licensed, and that the vehicle was unregistered.
14 You told police during your record of interview, that on several occasions during the evening, Mr Aiesi had asked you to drive him home. Initially you refused, and he was put on a couch to sleep it off. Eventually you relented, and agreed to drive him home.
15 The objective features of your offending are serious, at the time of the collision, you had a high blood alcohol reading 0.086 percent. You must have been aware of the high risks of driving when you had been drinking heavily. You were an unlicensed driver, and you were driving at a speed that was unsafe in all the circumstances, having regard to the poor conditions operating at that time, namely, it was dark, raining, and windy.
16 You were further distracted from your driving task when you were attempting to change the radio station. When looking down to do so, you lost control of your vehicle, started to swerve, and hit the stationary vehicle that was parked parallel to the road, with its orange safety lights activated, and its hazard lights operating.
17 The Crown prosecutor in opening stated that your vehicle was travelling at speed, but the actual speed alleged could not be articulated. In all the circumstances, the Crown submission was that the rate of speed was not appropriate for the particular circumstances that were operating that morning. And I accept that.
18 Overall, I consider that your moral culpability is high, but I accept that your case can be distinguished from those regarded as more serious examples of this sort of offending.
19 The effect of this accident on Mr Aiesi has been profound. His Victim Impact Statement was read to court. It sets out in graphic terms how the accident and the injuries have impacted on his life. Previously, he enjoyed a happy working life. He was in a relationship with somebody for some two and a half years with whom he had plans for the future. He described his life as being a very outgoing and social one, he was a person who regularly went to church, where he was in a youth group and a choir. He was a fit, strong, healthy man who relished playing rugby and simply enjoyed life. He had plans to become an engineer, and wanted to marry and have children. All that has come to a shattering end by virtue of his injuries. He is now totally dependent on others for all his activities for daily living, including toileting.
20 His days revolve around a roster of carers, and community activities. He has real insight into the effects of his physical disabilities. He now has more limited social life, and feels extremely restricted on what he now can do to contribute to society. In addition to his physical consequences, he has also suffered dramatic emotional and mental changes. His enjoyment of life has been severely curtailed. He misses being the person he was prior to this accident.
21 Mr Smallwood, on your behalf, made a number of submissions in relation to mitigation. He submitted that you were acutely aware of the consequences of your driving on this occasion, and its effects on Mr Aiesi, his family and friends. Previously, you enjoyed a close relationship with Mr Aiesi, whom you knew through going to school with him at Doveton Secondary College.
22 Mr Sita, you are now aged 22 years and at the time of the incident, you were aged 20. Your family is of Samoan heritage, you were born in New Zealand and came to Australia at age two. You are a member of a large and extended family, most of whom reside in Victoria. You have particularly good relationships with your cousins, your sister and half-siblings, and you have good support from your girlfriend Ms Cunningham, who has been present during the plea hearings.
23 You had two younger siblings, one brother died when young, and a sister Miela, who is aged 19 and currently living with some relatives. You come from a broken home, your parents separated shortly after their arrival in Australia, and you no longer enjoy any meaningful relationship with your mother.
24 Your father re-partnered and has had two children with his new partner, with whom you remain close. That relationship ended when you were about 12, and tragically your father died when you were aged 15. His death has, I accept, had a significant impact on your life. You were initially placed in the care of a paternal aunt, but that did not work out, and you were desperately unhappy and ran away from home. You lived as a homeless person for some time, and then you went to live with a paternal uncle, and his family.
25 You were not a very good student, and you did not complete Year 9. That was the same year that your father died. On leaving school, you started work as a tyre-fitter, and worked for a time for KFC.
26 You returned to school to try and complete Year 9 at Doveton Secondary College. It was at this time that you first met Mr Aiesi. You attended for three terms, but did not complete the year. You then re-entered the workforce. Since March this year, you have been working with Logic Australia, training as a multi-skilled operator.
27 In the past, you enjoyed a good relationship with Mr Aiesi. He encouraged you to take up rugby, and you played at Berwick Bulldogs together. You do have insight into how his current circumstances affect him. It is said that you have not spoken to him since the accident, because you were too scared to do so because of the devastating consequences that have followed.
28 Mr Sita, you do not have any prior criminal convictions. There are however subsequent convictions that were referred to by your counsel, Mr Smallwood, during the plea hearing.
29 On 30 March 2010, you pleaded guilty to one charge of theft, and one of fail to appear on bail. His Honour Judge Smallwood imposed a nine month prison term, wholly suspended for three years in respect to the theft and a fine of $500 in respect to failed to appear on bail.
30 In relation to the theft charge you were involved in a staged armed robbery at a KFC store that was being managed at that time by your girlfriend, Ms Cunningham. Sometime in 2008, you together with a cousin Mr Luago, and your girlfriend decided to stage an armed robbery in order to steal money from the store. Mr Luago went to the KFC store, pretended he was hurting Ms Cunningham, and demanded money to make it look like a robbery. Some money was taken from the safe in the store. In excess of $10,000 cash was stolen and that was the circumstances of the matter dealt with by Judge Smallwood.
31 On 16 June 2011 at Ringwood Magistrates’ Court, you were dealt with in respect to a charge of dealing with property suspected to be the proceeds of crime, refusal or fail to state name and address, driving an unroadworthy vehicle and unlicensed driving for which you were convicted and received an aggregate fine of $550 together with costs.
32 I had submitted to me three references from Logic Australia. Damien Kavanagh, National Business Manager, confirmed that you are a person who has strong and good work ethic, who is a valued employee and has real prospects for the future. Those sentiments were confirmed by Anthony Seglan, the team leader in the Mail Room department, and also a co-worker Lester Bates.
33 Mr Smallwood told me that you have never held a drivers licence. He confirmed that you could read and write at a basic level, and the reason why you had not held a licence is that you did not have any proper identification until some time in 2011, when you obtained your birth certificate from New Zealand.
34 In sentencing you, I acknowledge that you pleaded guilty at the earliest opportunity. There is real utility in your plea. You have spared the victim, Mr Aiesi, the further trauma of having to give evidence on your trial, and you have saved the State the cost and the inconvenience of a trial. You have thereby facilitated justice. Further, I accept that by your plea of guilty you have demonstrated genuine remorse, and you now accept responsibility for your actions.
35 Notwithstanding that you initially provided a false name and address, you nonetheless were very frank when interviewed by police and made full admissions about your offending. I have taken that into account.
36 I accept that you have excellent prospects for rehabilitation, having regard to your past work history and the references provided. You have not offended since 23 January 2011, and there are no outstanding charges.
37 You are a person who is still relatively youthful. Mr Smallwood submitted that a term of imprisonment was the only sentencing disposition available, but submitted that it was open to the court to wholly suspend such a sentence. He submitted that the degree of moral culpability was not as high, as some of the more serious examples of this sort of offending, and that had a bearing on the weight to be given to both general and specific deterrence.
38 In sentencing you, Mr Sita, I must impose just punishment. Overall, I consider your moral culpability to be high, but your case can be distinguished from those cases that are the more serious examples of this sort of offending. Your offending was objectively very serious and of a kind which makes general deterrence of great importance, and therefore your youth must be given relatively less weight. It has often been said by courts dealing with these types of cases that it is appropriate that deterrence be used to encourage young drivers not to drive dangerously. Sadly, this type of cases is all too common, involving as it does young drivers of good character, with limited or no prior convictions and showing genuine remorse.
39 I must also emphasise specific deterrence. You must be deterred from acting in this manner in the future. On behalf of the community, I must denounce your behaviour.
40 Mr Hutton, for the Crown, put a sentencing range between two to three years for the head sentence, and a non-parole period of between 12 to 18 months. The Crown submitted that a custodial sentence with time to serve was the most appropriate sentence, and that fines were appropriate for the summary offences.
41 In response, Mr Smallwood did not concede that a sentence of up to three years’ imprisonment was within the range. He considered two years was within the range, and therefore such sentence was open to be suspended in whole, or in part.
42 Overall, having regard to the particular circumstances of the dangerous driving offence, the objective features of which I have already highlighted, that resulted in serious injury to the victim, Mr Aiesi. I consider that a custodial sentence to be immediately served is the only sentencing disposition that is appropriate.
43 Having regard to all those matters, I shall now proceed to sentence you as follows.
44 The formal Orders of the Court are:
45 Charge 1, dangerous driving causing serious injury, you will be convicted and sentenced to two years’ imprisonment.
46 The non-parole period in respect to this sentence will be 12 months.
47 With respect to the summary charges: drive unregistered vehicle; state false name when requested; state false address when requested; use unregistered motor vehicle, you will be convicted and an aggregate fine imposed of $1500.
48 Upon your conviction, in respect to the dangerous driving charge pursuant to s.89 of the Sentencing Act (1991), any licences that you may hold will be cancelled and you will be disqualified from holding a licence for a period of 18 months commencing from today's date.
49 I make a declaration of pre-sentence detention of 21 days, and direct that that be recorded in the records of the court.
50 I declare pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total effective sentence of three and a half years, to serve two years. I think that covers everything.
51 COUNSEL It does, Your Honour.
52 HER HONOUR: Yes, all right. And I just ask that - is it Ms Spitale? Yes, if you would just explain to Mr Aiesi’s family the sentence, just take some time to explain and confirm that it in no way reflects any measurement of the harm that has occurred to Mr Aiesi.
53 MS SPITALE: We'll have a discussion, Your Honour.
54 HER HONOUR: It is the case that it is a five year maximum.
55 MS SPITALE: I just wanted to thank Your Honour for the later start this morning, there was a delay in the victim's transport to court.
56 HER HONOUR: That's all right. They're very difficult cases for everyone concerned, and I appreciate that, and I think it's really important that they were here, and that's why I was happy to allow the delay to occur. Because I think it's very important that there be an acknowledgement, firstly, of the fact that Mr Sita acknowledges what he did was wrong and for the court to explain properly what the process is in sentencing, setting out all the reasons for the sentence and then an acknowledgement of the harm that was done to Mr Aiesi as well. All right, we can adjourn the court. Thank you for your assistance, Mr Smallwood.
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