Director of Public Prosecutions v Solovastru

[2018] VCC 1157

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00673

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIVIU SOLOVASTRU

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 July 2018
CASE MAY BE CITED AS:	DPP v Solovastru
MEDIUM NEUTRAL CITATION:	[2018] VCC 1157

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Yousuff
For the Accused	Ms L. Torres

HER HONOUR:

1Liviu Solovastru, you have pleaded guilty on indictment to a charge of dangerous driving causing serious injury.  In addition, you have pleaded guilty to related summary offences which include driving a vehicle exceeding the prescribed concentration of drugs and failing to answer bail.

2The offence of dangerous driving causing serious injury carries a maximum of five years' imprisonment.  In relation to the remaining charges, you face a maximum penalty of 60 penalty units for the offence of driving a vehicle exceeding the prescribed concentration of a drug and 12 months' imprisonment in relation to the charge of failing to answer bail.

3Those penalties reflect the seriousness with which Parliament regards each of the offences.

4The circumstances of your offending were detailed in a document entitled “Summary of Prosecution Opening” and dated 24 July 2018.  The full document will be annexed to these reasons.  I note that it is an agreed document.

5In short compass, at approximately 11.36 pm on Friday 12 August 2016, a two vehicle serious injury collision occurred on Ferntree Gully Road in Ferntree Gully.  At the collision scene, Ferntree Gully Road is a divided highway that runs in a general east west direction.  There are two east bound lanes and two west bound lanes that at the time of this collision were in good conditions.  The general location of the crash site is a residential area with established housing and a business strip located on the north side of the east bound lanes.  There is an 80 kilometre per hour posted speed zone applicable to this area.

6At the time of the collision, it was a cool evening with patchy rain and the road surfaces were damp.  The primary victim and driver of the other vehicle, Candice Carter, had gone to the movies with her younger sister, Adele Jacobs and her mother, Melanie Jacobs.  The movie finished just after 11 pm. 
Adelle Jacobs noticed that the ground was wet as it had been raining.  It was not long into their drive home together when Adele Jacobs suddenly saw a blinding bright light and noticed a large formation coming towards them from the right, when at this point, she observed a car in the air, crossing over the median strip and its headlights were facing towards the ground before hitting their car and both cars came to a stop.

7This collision occurred when a blue Honda Accord sedan driven by you was travelling in an easterly direction on Ferntree Gully Road.  You lost control on a right hand curve in the road and crossed over the centre median strip into the westbound lanes when your vehicle flipped onto its side and slid along the road surface before colliding with the blue Renault Megane that was travelling west and being driven by Candice Carter.

8You held a full Victorian driver's license.  The blue Honda Accord driven by you was both registered and owned by you.

9At the time of this incident, you had your dog sitting unrestrained in the front seat of the car.  The dog was thrown from the car during the collision and died at the scene.

10Your vehicle was mechanically inspected on 25 August 2016 by police.  No mechanical fault was identified that would have caused or contributed to this collision. 

11A police reconstructionist who attended at the scene opined that your Honda sedan was travelling at a minimum speed of 101 kilometres per hour when you lost control and commenced to roll over the centre median strip.  You were travelling at a minimum speed of 56 kilometres per hour when you collided with the victim's Renault vehicle.

12There were numerous witnesses to your driving in close proximity timewise to the accident which variously described you as driving at high speed, driving in an erratic manner and having difficulty maintaining your position on the road within marked traffic lanes. 

13The basis of the plea in relation to the dangerous driving causing serious injury charge is as follows;

a)Firstly, your estimated speed of at least 101 kilometres per hour in an
80 kilometre zone. 

b)Secondly, that the weather was wet. 

c)Thirdly, it was at night time, making the manner of your driving dangerous in the circumstances where it impacted on visibility; and

d)That the manner of driving itself, which included being in the right lane and then swerving halfway over lane one and then into lane two, and swerving into a few right turn lanes as well as pulling in and out as observed by one witness.

14It is relevant to an assessment of the dangerousness of the driving to consider the extent of the risk which the driving created as well as the extent of potential harm if that risk materialised.  In this particular instance, the risk did materialise given the harm caused to Candice Carter, her sister and her mother. In addition to that, your driving occurred in what has been described as a residential area with other road users present at the relevant time.  It would have to be said that the risk you presented was high in terms of your speed and the erratic manner of your driving on a wet road.

15Your offending is aggravated by factors which include the extent and the nature of the injuries inflicted as a result of your driving, the number of people put at risk, your speed and the erratic driving to which I have referred.  I note that a number of aggravating features are not present such as allegations of you being drug or alcohol affected, escaping police, a more lengthy period of erratic driving, ignoring warnings, sleep deprivation and other circumstances which may occur in offending such as yours.  As I have already referred, you were licensed to drive at the relevant time.

16You received serious injuries in the collision including four broken ribs, fractured vertebrae, a fractured nose, a fractured eye socket, several broken teeth and multiple lacerations.  Together with the death of your dog, I accept there has been a degree of extra curial punishment which I take into account. 

17You were admitted to the Royal Melbourne Hospital where a blood sample was taken.  Analysis of that blood sample indicated the presence of methylamphetamine.  This forms the basis of the summary charge of driving whilst exceeding the prescribed concentration for a drug and reflects the fact that you had drugs in your system whilst driving.  It does not form part of the dangerousness in Charge 1 on the indictment and you will not be sentenced in that way.

18You were interviewed by police on 14 August 2016 and signed and entered bail on the same day.  You failed to appear on 1 August 2017 at the
Melbourne Magistrates' Court for a contested committal proceeding.  In accordance with your grant of bail. A warrant was issued.  This comprises the other summary charge of failing to answer bail.  Together with a history of so doing, this shows a disrespect, if not contempt for court orders.  You were subsequently arrested and remanded into custody on 27 November 2017.

19The driver of the other vehicle, Candice Carter was conveyed by ambulance to the Alfred Hospital with life threatening injuries.  She was admitted and placed in an induced coma for several weeks.  Candice Carter required treatment for a traumatic brain injury which involved haemorrhage, generalised subarachnoid haemorrhage and left front subdural haematoma.  She required intensive care admission, drainage and monitoring.  Tracheostomy and a ventilator were also required.

20Neurological recovery was slow and consistent with a very severe traumatic stop.  She required treatment for complex facial fractures requiring operative management.  She was unable to eat food until mid-September due to the severity of the facial injury and brain injury.  She also experienced a disorder of consciousness, which then improved to a state of post-traumatic amnesia. 

21Candice Carter required inpatient rehabilitation which took place for a number of months.  She required 24 hour supervision and support.  She required full assistance with all care.

22At that time and for some time thereafter, she remained in a confused state.  Her state of post-traumatic amnesia lasted for 57 days and this according to definition, placed her level of injury in the extremely severe range.  As a result of Candice Carter's injury, she has experienced changes in her cognition based on her educational and occupational performance. 

23Following the incident, Candice Carter has slower thinking speed, difficulty multi-tasking, difficulty problem solving and poor memory.  There is evidence of impaired attention, speed of proceeding, executive function and memory abilities consistent with a very severe traumatic brain injury.  Candice Carter required neuropsychological assessment to assess the degree of improvement in her cognition over time.

24These injuries had severe impact on her life.  She suffers high levels of anxiety, paranoia, visual impairment, loss of smell and taste and fatigue.  Over the course of her life, she will need lifelong medical reviews as a result of this incident.  She is still subject to ongoing treatment.

25As of August of 2016, Candice Carter was 30 years of age, married and considering having a family.  She was gainfully employed as an immunisation officer and was undertaking further study.  She is no longer able to work or study and has concerns about her ability to have a family.  Her husband is also no longer able to work as he concentrates on her daily care.  Candice Carter's injuries can be properly described as catastrophic.

26The extent of the injuries incurred by Candice Carter and her other family members as contained in the summary of prosecution opening details the tragic effect of your driving on 12 August 2016 in the purely physical sense. 

27I have had recourse to victim impact statements from Candice Carter, her husband, Michael Carter, her father, Michael Jacobs, her mother, Melanie Jacobs and sister, Adele Jacobs.  Each of these victim impact statements were read at your plea hearing on 25 July 2018.  I understand that this was the first occasion that you had accessed the contents of those victim impact statements.  It cannot be lost on you now as to the devastating impacts on Candice Carter and her family over and above those of the purely medical consequences.

28The purpose of the victim impact statements is to give those effected by your crime the opportunity to participate in the criminal justice system by informing the court about the effects of the crime upon them.  Whilst in no way doing such carefully written victim impact statements proper justice, Candice Carter spoke of her loss of general enjoyment in life, the impact on her relationships, her dependency on others and her lack of memory of her life prior to the accident.  Understandably, she wishes that everything was as it had been prior to the accident.

29In his victim impact statement, Candice Carter's husband, Michael Carter speaks of his fear of the future and the uncertainty as to what that holds given the continuing devastating impacts physically and mentally upon his wife as a result of the accident.  As I referred, he has given up his own career to care for her.

30Each of Candice Carter's parents speak of the understandable difficulty of dealing with the immediate aftermath of this accident and their continuing trauma associated with seeing the significant changes in their daughter's presentation.  Their lives have also changed considerably as a result.

31Adele Jacobs was in the car at the time of the accident, as was Melanie Jacobs.  She is the sister of Candice Carter as I have already referred.  In her victim impact statement, she speaks of the lasting images of the accident scene and the aftermath in the hospital.  She also speaks of the change in the relationship and the loss of relationship with her sister, and the difficulty the family continues to face on a day to day basis.

32I have read some of the contents of these statements to reinforce to you the impact on others of your behaviour in the hope that it can assist you to take a different path in the future. 

33I have also taken into account matters personal to you as outlined by your counsel in both written and oral submissions.  Some aspects of your personal history may well explain why drugs have come to play such a role in your life.

34You are now 41 years of age, having been born in Romania under a communist regime.  When you were three years of age, your father left the family home as a fugitive.  Your mother then took on the responsibility for your care and that of your younger brother with the assistance of your grandparents.  I am told your family were poor and often harassed by the military.

35Your father made his way to Australia when you were approximately eight years of age and you and your mother and brother were able to join him at a later stage.  You were unfortunate to suffer both physical and emotional abuse at the hands of your father who was also violent towards your mother.  Your mother suffered a range of medical conditions which meant that she was preoccupied by her own health and less so by the needs of her two children.  Ultimately, Child Protection Services became involved and you were a ward of the State from the age of approximately 11 years.  This has understandably impacted on your education.

36You have worked in labouring type positions and as a personal trainer, but as a result of motor vehicle accidents, have a damaged back and have not worked for the last six years.

37You have a long history of drug use, primarily heroin.  There have been periods of abstinence and then relapse.  Your offending history is largely related to your drug addiction, although not in the instance before me. 

38You have a nine year old daughter from a previous relationship.  I am told that in recent times, you have had positive and regular contact with her.  Hopefully this is another factor which will assist your motivation to rehabilitate.

39I am told that in the period prior to this offending, you had spent some two years under a drug treatment order which had assisted you to reduce your drug use and to reduce your criminal activity.  You completed that order in 2014.  Given the matters before me, it would appear to have some limitations on its successful input into your thinking.

40You had also found stable accommodation and a stable relationship.  You have managed to retain that relationship whilst incarcerated but have lost the public housing which had been allocated to you after some 20 years on a wait list.  At present, you are housed at Fulham Prison which has been an isolating experience for you because of its location and the inability of family or friends to visit given the tyranny of distance.  I do take all of these matters into account.

41On your behalf, your counsel has tendered two clean urine screens, one from December of last year and one from April of this year.  In addition, she has provided confirmation that you are to commence a white card course whilst in custody.  Hopefully these are also indications that you wish to use your time in custody wisely in order to place yourself in a better position for your eventual transition back into the community.

42You do have what can only be described as a significant prior history of offending, which includes relevant offences in relation to driving, failing to answer bail and exceeding the prescribed concentration of alcohol.  Your criminal history spans the period 1993 to 2014 and includes appearances in Victoria, the Northern Territory and New South Wales.  It is reflective of some 26 or so court appearances and a number of traffic infringement notices for speeding.

43Whilst the history is expansive, relevant to these matters include a conviction for driving in a manner dangerous and failing to stop after an accident in 1993, a conviction for drink driving dealt with a Box Hill Magistrates' Court in 1994, a conviction for careless driving dealt with a Heidelberg Magistrates' Court in 1995, a conviction for drink driving at the Mudgee Local Court in 1999, a conviction for drink driving at Mudgee Local Court in the year 2000 and a conviction for driving in a manner dangerous in 2001.

44You have previously served terms of imprisonment and have a history of breaching court orders.  You also have six convictions for failing to answer bail.  Fourteen days prior to this offence, you were detected exceeding the speed limit by 45 kilometres or more and were served with a traffic infringement notice in relation to that event. 

45You are not to be punished for this prior history again and some of the matters to which I have referred have occurred quite some time ago but your criminal history and the relevant criminal history is of assistance in assessing your prospects for rehabilitation, the need to give weight to specific deterrence - to put you off from further offending - and the need to protect the community from you.  I find that your prospects of rehabilitation are guarded and that there remains a need to give weight to both specific deterrence and a need to protect the community.  The charge of dangerous driving causing serious injury is one which also requires the court to give weight to general deterrence and I will do so.

46I have been referred to relevant decisions of the Court of Appeal which include the DPP vNeethling [2009] VSCA 116, the DPP v Weybury [2018] VSCA 120, Stewart v The Queen [2018] VSCA 55 and Stevens v The Queen [2016] VSCA 121.  I have had recourse to each of these decisions.

47Your degree of moral culpability for the offence of dangerous driving causing serious injury is, in my view, a significant consideration in the determination of what is an appropriate sentence.  In my view, your poor driving history is also of assistance in assessing your level of moral culpability for the offence of dangerous driving causing serious injury.

48You would have had the knowledge of the risks associated with your manner of driving.  The consequences of driving erratically at high speed and on wet roads should have been foreseen by you.  You simply had no reason for driving in this way and your risk taking placed others at risk as is now obvious by the outcome.  I have assessed your moral culpability as being at the higher end.

49You have pleaded guilty to the offences before me.  Whilst you did run a contested committal hearing, I am told that it was only the expert witnesses that were required for cross-examination and that the purpose of the contested committal was to determine the nature of the charge to which you should plead guilty as it did.  I therefore accept your plea of guilty came at an early opportunity.  It has served utilitarian value.  It has saved court time and expense.  Importantly, it has saved the trauma which would be associated for all the witnesses in this case of having to give evidence at either committal or trial and I take these matters into account.

50There is evidence before me of your remorse.  At the scene of the accident, you made constant enquiry as to the well-being of the passengers in the vehicle which you had collided into, these persons being Candice Carter, her mother and her sister.  You continued these enquiries in the ambulance to hospital and have made constant enquiries of the informant I have been told.  You also made some expression of remorse in your record of interview.

51I also accept that your instructions to resolve the matter in the way in which you have does demonstrate remorse for your offending.  I am required to reflect all of these matters in the sentence that I impose and I do so.

52The purpose of a reduction in a sentence that would otherwise be imposed to reflect your guilty plea is to encourage people such as yourself to take such a course.  This clearly cannot be done unless it is reflected in a tangible way.

53In cases such as this, the sentencing process must consider a range of matters.  It can never adequately redress the impacts on the victims and their family of your offending. 

54The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

55I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.

56I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.

57I do now turn to sentence and if you could please stand, Mr Solovastru.

58In relation to Charge 1, that of dangerous driving causing serious injury, you are convicted and sentenced to two years and six months' imprisonment.  All licenses held by you are cancelled and disqualified for a period of three years.

59In relation to the summary charge of driving whilst exceeding a prescribed concentration of alcohol, you are convicted and fined the amount of $1,000.

60In relation to the charge of failing to answer bail, you are convicted and sentenced to nine months' imprisonment.  Two months of that sentence is cumulative on the sentence imposed on Charge 1 on the indictment.

61This comprises a total effective sentence of two years and eight months' imprisonment.  I fix a period of 22 months before you become eligible for parole.  I reckon a period of 242 days as already served under this sentence.

62Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and eight months' imprisonment with a minimum of 34 months before being eligible for parole.

63If you could remove the prisoner.  Sorry. 

64MS TORRES:  If Your Honour pleases.

65MS YOUSUFF:  Your Honour, there is just ‑ ‑ ‑

66HER HONOUR:  Hang on, sorry.

67MS YOUSUFF:  There is just one matter.  In relation to the maximum penalty for the exceeding the concentration of drugs, I am not sure if it is accurate.  I have got 12 penalty units.

68HER HONOUR:  You can be seated, Mr Solovastru.  I am being told something different.

69MS YOUSUFF:  I have got 12 penalty units because it is a first offence.  I have not found this to be a second offence.

70HER HONOUR:  All right.  Is that impacted at all by the fact he has priors drink driving?

71MS YOUSUFF:  That I am not entirely certain, Your Honour.  I would need to find out.

72MS TORRES:  Without having the legislation in front of me, I do believe it does make it a second offence because of the ex-PCA if it is within the last ten years.  So I would just need to look at the dates of ‑ ‑ ‑

73MS YOUSUFF:  Exceeding prescribed concentration of alcohol was 1994.

74MS TORRES:  So it would be outside of that period.

75HER HONOUR:  All right, well I do need to reflect the financial penalty to reflect the maximum.

76MS TORRES:  Yes.

77HER HONOUR:  So that will be reduced to $600.

78MS TORRES:  Your Honour pleases.

79MS YOUSUFF:  The court pleases.

80HER HONOUR:  And thank you for bringing that to my attention.  Is there anything further?

81MS YOUSUFF:  No, Your Honour.

82HER HONOUR:  Thank you.  If you could remove the prisoner, thank you and I will stand down until three.  Thank you.

‑ ‑ ‑