Director of Public Prosecutions v Spijodic

[2014] VCC 1050

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01942

DIRECTOR OF PUBLIC PROSECUTIONS

v

BERZAD SPIJODIC

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 June 2014
CASE MAY BE CITED AS:	DPP v Spijodic
MEDIUM NEUTRAL CITATION:	[2014] VCC 1050

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Harris
For the Accused	Ms C. Morris

HER HONOUR: 

1Berzad Spijodic, you have pleaded guilty to two counts of dangerous driving causing serious injury.  The maximum penalty in respect of that offence is five years' imprisonment.

2The circumstances of this offending are set out in the prosecution opening on the plea (Exhibit A).

3On Saturday 30 June 2012, at about 1.35 pm, you were driving your ute with your girlfriend's son, Alan Prasser, then aged 12, as a passenger.  You were driving from Taylors Lakes to Melton, and whilst travelling on Plumpton Road, you overtook a green Hyundai sedan.  As you approached the intersection of Plumpton Road and Tarleton Road, you failed to notice that a slow moving large tipper truck was making a left turn into Tarleton Road.  At the last moment, in attempting to avoid the truck by both braking and moving left, you steered the two left wheels of your ute onto the grass shoulder, striking a white plastic roadside post and breaking it.  You then steered your ute to the right to avoid the rear of the truck. 

4You had been observed by the driver of the truck in his passenger side mirror as appearing from nowhere and travelling quickly.  He saw you travel to the left edge of the road then swerve back to the right.  He then heard and felt a collision.  In steering your ute to the right, you went onto the other side of the road, travelling over the continuous white line at the intersection.  You then collided with the front driver's side of a Toyota van travelling in the other direction.  The driver of the van was Kathleen Fennell and her passenger was her boyfriend, Michael Bents.  I will refer to the injuries of Prasser and the injuries and impact of your offending on Fennell in the course of these reasons.

5The impact of the collision between your ute and the van pushed the van off the road, where it rolled over, resting on its side, the passenger side down.  Your ute was pushed backward and spun around. 

6The collision was observed from a distance by Wendy Lacey, a registered nurse, who was travelling along the road when she saw vehicles spinning and dust in the air.  Fortunately she was able to assist at the scene.  She observed that Fennell was bleeding profusely from her mouth and was not breathing.  Lacey was able to clear Fennell's mouth, which enabled her to start breathing, though Fennell remained unresponsive.  Bents soon regained consciousness but was covered in blood and suffering from concussion.  Soon a MICA unit and police arrived and you were still in the driver's seat of the ute.  Prasser was being attended to by another driver on the road.

7As a result of the collision, Fennell sustained serious injuries and was airlifted to the Alfred Hospital.  Bents suffered moderate injuries, though it is noted that he is not the subject of a charge in the matters before me. 

8Prasser was conveyed to the Royal Children's Hospital with a fractured left clavicle, swelling and tenderness. 

9Fennell's injuries included a fractured nose, cuts to the head, broken right collarbone, broken left wrist, broken right ankle, ruptured ligament to the right knee and broken tibia and fibula of the left leg.  She was hospitalised for two months, requiring rehabilitation and physiotherapy to regain her basic functions such as walking.  She has required multiple surgeries as a result of the injuries she sustained.

10The photographs contained in the depositions depict the disastrous consequences of the collision.  Given the damage to and the position of the van after impact, it is extraordinary the occupants survived this accident. 

11You were interviewed by police on 14 November 2012, where you stated you had a limited recollection of the accident.  You recalled the truck in front of you but did not see any indicator or brake lights on it.  The action you took was so as to avoid collision with the rear of the truck.  You said you did not notice the line or markings on the road, rather you were trying to avoid the truck.

12I have received and I take into account the victim impact statement provided by Kathleen Fennell.  It sets out eloquently the emotional and physical impact of the crime.  The journey she has travelled in terms of her injuries, surgery and rehabilitation has been long and painful.  I will read certain parts of it.

"Being involved in such a traumatic car accident becomes part of your life.  Not one day has gone by that I haven't thought about what happened.  So many things remind me daily.  My scars is one of them, particularly the one above my eye, looking at myself in the mirror as an instant reminder.  All up I have around 12 scars.  A lot are on my legs and now I am very self-conscious and I have never felt this. 

I do feel grateful that I am still alive here to tell the story and I understand how lucky I am.  However, I feel that I should not have to deal with any of this and it is going to have an effect on me for the rest of my life.

I miss my active lifestyle and hope that once all injuries have stabilised, that I can concentrate on getting back to the same old self that I was prior to the accident. 

Still, to this day, the accident is affecting my life.  I was really looking forward to a fresh new year for 2014, but this is still ongoing." 

13No victim impact statement was provided from Prasser.  However, as noted previously, he suffered various injuries and was treated at the Royal Children's Hospital.

14No doubt the injuries were traumatic and painful for the young boy.  Though both Prasser and Fennell suffered serious injuries, clearly Fennell's were more long-term and the consequences more damaging than those of Prasser. 

15You are currently aged 28 years and live with your mother and younger brother.  At the time of these offences you were aged 26.  You were born in Bosnia, Herzegovina and your family was engulfed in the Yugoslavian wars of the 1990s.  You tragically lost many of your close male relatives, including your father, in July 1995 when genocide was perpetrated against Bosnian Muslims in Srebrenica. 

16You experienced a period of uncertainty, not knowing whether your father was alive, and there were many conflicting accounts of what had happened to him. 

17I was provided with a report from Guy Coffey, clinical psychologist, who assessed you in April 2014.  In that report it was noted that despite your very traumatic childhood experiences, you have not suffered any significant psychological problems in your adult life, though some of your personality traits are explicable as a consequence of that upbringing. 

18In 2002, when you were aged 16 years, you came to Australia with your mother and two brothers under Australia's refugee and humanitarian program, and your family settled in Coburg.  You completed Year 11 at school, then commenced a carpentry apprenticeship which you successfully completed.  Since then you have been self-employed as a carpenter working as a subcontractor for building companies.  As indicated, you live with your mother and provide important support for her, as she has limited English and poor health.  Much of your spare time is occupied with caring for your mother.

19You have returned to Bosnia a number of times to see relatives and visit your father's grave.  During those visits you met your current wife and it is only recently that she has come to Australia and you have married.  You plan to build a house on a property to live with her near your mother. 

20The moral culpability of the driver in the circumstances of these offences is central to the sentencing task.  (See DPP v. Neethling [2009] VSCA 116, at paragraph 38.)

21It was submitted on your behalf that your moral culpability was low for the following reasons: 

(a)  Although speed formed part of the background to these offences, there was not sufficient evidence to say that speed played a major role in the accident itself, nor that any speeding was for an extended period.

(b)  Second, there was no suggestion of consumption of drugs or alcohol or lack of sleep. 

(c)  Three, there was no suggestion of aggressive driving or conduct on the road immediately prior to the collision to aggravate the situation.

22     These matters were relied upon as characterising your conduct as being a momentary lapse of attention.  From the photographs provided it is evident that the truck you steered to avoid was a significantly large vehicle.  The dangerousness came from the failure by you to keep a proper lookout for the brake lights or indicators of the truck travelling in front of you.  Had you maintained a safer distance or paid more attention to other road users, you would not have had to take the action you did in avoiding the truck.

23     During the course of the plea I was provided with a number of sentences from other judges of this court for this offence and for the offence of dangerous driving causing death.  These are of limited assistance as each and every case needs to be given individual consideration and distinguishing features between them are easily identified, whether that be because of the circumstances of the driving or the individual offender.

24I accept that the features highlighted by your counsel are applicable to the circumstances here, and I do place the circumstances of this offence at the lower end of the scale.  That is not to say that your offending was not serious.  It was.  The need to take care in the management of your vehicle and the movements of vehicles travelling on the road with potentially fatal consequences is the primary duty of all drivers. 

25You were travelling in a single-lane carriageway, paying little attention to the movements of the truck immediately in front of you and you were forced to the other side of the road with oncoming traffic to avoid hitting the truck.  Your conduct was clearly dangerous.

26It is unclear why there was a delay in the police interviewing you not until November, some five months after the accident.  A combination of the police investigation regarding your speed and toxicology level but also your overseas travel were some of the explanations that were proffered to me.  However, I accept that at all times you knew that you were going to be charged and had indicated a preparedness to plead guilty.

27At the earliest possible opportunity you pleaded guilty to these offences.  You have spared the community the time and expense of a criminal trial.  There has been no contested committal.  Victims, including the young boy, were not re-traumatised by reliving the accident.  Accident experts were not challenged and you conceded the accident was your fault.

28I accept that you have displayed genuine remorse for the injuries caused to your victims.  I was informed that you read the victim impact statement and had attempted via the police to apologise to the victims but were advised that wasn't appropriate.  This remorse, combined with your plea of guilty, entitles you to a significant reduction to the sentence I would otherwise impose. 

29I also take into account a number of references that were tendered on your behalf.  The support of your family and obvious hard-working nature augur well for your rehabilitation prospects; however, your driving record gives rise for concern and any assessment of your rehabilitation prospects are more guarded.  Your driving history is poor.  You have five prior convictions for driving whilst suspended and have six prior speeding-related offences.  I note in Coffey's report the following:

"His offending history indicates he has lacked an appreciation of his responsibilities as a driver.  There does appear to be in his otherwise mature approach to his responsibilities a lacuna in his moral reasoning in regard to driving with care and thinking through the consequences of failing to do so."

30I was also informed of a number of subsequent matters that had been the subject of infringement notices, one involving speeding, one disobeying a traffic signal and two regarding the use of a mobile phone whilst driving.  I was informed that you had limited recollection in respect of most of those matters and that a distinction should be drawn between the driving conduct the subject of such a notice, and those the subject of a court appearance.  Although the former are less serious, it is difficult to accept that you are, since the accident, driving more carefully as you indicated to Coffey, when you have received four further infringement notices since these offences occurred. 

31You have been afforded a number of opportunities by the court with various dispositions being imposed on you for driving offences.  Although these orders have been complied with or successfully completed, they have not deterred you from reoffending, both in respect of these offences and the other traffic matters that have occurred since.  It is noted these offences occurred only weeks after the expiration of a suspended sentence imposed for the offence of driving while suspended in December 2011.  I was informed that you had undertaken a defensive driving course and that it is only recently that you have appreciated and recognised the need to obey road laws and drive in a safe manner. 

32Given your driving record, specific deterrence is a highly relevant sentencing consideration.  As with all dangerous driving offences, general deterrence has a role to play.  Those that drive in a dangerous manner need to know they will be punished accordingly.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community, in denouncing criminal conduct, with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

33The Crown submitted that an immediate custodial sentence was the appropriate disposition, whilst your counsel submitted any term of imprisonment should be wholly suspended.  Taking all relevant matters into account, I propose to impose a term of imprisonment, though partially suspend some of it.  In respect of Charge 1 you are convicted and sentenced to a period of imprisonment of 15 months.  In respect of Charge 2 you are convicted and sentenced to a period of imprisonment of three months cumulative on Charge 1.  That makes a total effective sentence of 18 months.  I am prepared to suspend 12 months of that, which means that you are required to serve a period of six months' imprisonment.

34The operational period of the suspended sentence will be 24 months.  That means, Mr Spijodic, that on your released from gaol after six months, if you commit another offence and come before me, it means that the sentence that  impose, the 12 months that you are not required to serve, will be reactivated and it will be necessary for your counsel to show exceptional circumstances as to why I should not reimpose that 12-month period.  Do you understand that, Mr Spijodic?  Thank you.

35In addition, pursuant to s.89 of the Sentencing Act, you are disqualified from obtaining a licence for a period of 18 months.  If you had not pleaded guilty to these matters, pursuant to s.6AAA I would have imposed a sentence of imprisonment of 18 months to be served immediately.

36Are there any other matters?

37MS HARRIS:  No, Your Honour.

38HER HONOUR:  Thank you.

39MS MORRIS:  No, Your Honour.

40HER HONOUR:  You can remove the prisoner.  Thank you.  I will stand down.  Thanks.

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