Director of Public Prosecutions v Spitalieri

[2014] VCC 110

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-04132

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN SPITALIERI

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2013
DATE OF SENTENCE:	4 February 2014
CASE MAY BE CITED AS:	DPP v Spitalieri
MEDIUM NEUTRAL CITATION:	[2014] VCC 110

REASONS FOR SENTENCE
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Subject:         
Catchwords:                 Drive manner dangerous; cause serious injury.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S. Ballek	OPP
For the Offender	Mr D. Sala

1Brendan Spitalieri, you have pleaded guilty to four charges of dangerous driving causing serious injury.  You also pleaded guilty to the summary charge of driving whilst a prescribed concentration of drugs were present in your bloodstream.  The facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts therein contained.

2Very briefly stated, on Sunday 21 May 2011 you drove a motor vehicle at speed approximately 10 kilometres per hour in excess of the speed limit of 60 k per hour in a southerly direction along Sunbury Road, Bulla.  You drove on the incorrect side of a road around a blind corner in that room and collided head on with a vehicle driven by Meredith Bell, also containing a female friend and two young children.  Meredith Bell and each of the passengers in her car suffered serious injury.  Meredith Bell sustained a fractured sternum, facial lacerations, injuries to her eyes, elbow and knees, bruising, temporary loss of consciousness and other injuries.  Her passenger, Donna Pastinack, sustained a laceration to her scalp, whiplash injuries, abrasions to her knee and elbow, a broken tooth, bruising, temporary loss of consciousness.  Imogen Bell was then 8 years of age.  She sustained ligament injury to the cervical spine and was required to wear a neck brace for several months.  She sustained abdominal bruising and other injuries.  Amy Bell, her sister, then 10 years of age, suffered a 15 centimetre deep full thickness degloving injury to her head and required surgical repair and subsequent plastic surgery.  She sustained facial scarring and nerve damage to her forehead, bruising to her right hip, pain, soreness and tenderness.  Those injuries you can see were all very serious.

3You were observed to be acting in a confused and strange manner shortly after the collision, although you had sustained a cut to your head.  A breath test by police was negative for alcohol, however, a blood sample taken at 4.40 pm at hospital was subsequently analysed and tested positive for the presence of the subscribed drug delta-9 tetrahydracannibinol with a level of 6 mgs per ml. 

4You were interviewed by police on 2 June 2011 and said that you remembered having an accident but could not remember the details.  You said you were stressed and anxious and did not remember driving erratically prior to the collision.  You confirmed that you suffered a cut to the forehead, broken ribs and lacerations.  You have admitted one prior court appearance on 14 November 2007 at Werribee Magistrates Court where you received a bond without conviction for possession of a controlled weapon and assault.  I regard that prior matter as irrelevant to the sentencing process for these offences. 

5Victim impact statements were filed by Meredith and her children, Imogen and Amy.  In each Exhibit B Meredith Bell outlines the injuries she sustained and the fact that she lost her job from being unable to work.  She was unable to drive a motor vehicle for some time and outlines the trauma of seeing her daughter's head being cut as it was.  She suffered chest pains from that stress.  She outlines in subsidiary victim impact statements the effects she has observed the collision had on her daughters.  Imogen Bell says in Exhibit D how she felt scared when she saw her sister's head bleeding and how she hated being in hospital.  She outlines the headaches she suffered and how she was unable to go to school for a substantial period and how the injuries she sustained has limited her physical capacity.  Amy Bell in Exhibit E says that she felt upset, scared when the accident occurred and when she was in hospital.  She asks herself why did it happen to her, to her mother and her sister.  She outlines the difficulties she has had sleeping, was unable to attend school for a term and could not participate in sport because of the injuries she sustained to her pelvis and hip.  She has been bullied at school because of the scarring to her face and been made to feel ugly.  I take the victim impact material into account in sentencing you.

6The prosecution tendered a document from the Roads Corporation outlining your prior traffic infringement notice history.  You have been intercepted speeding on two occasions, firstly on 11 December 2009 and then on 17 March 2011.  On each occasion you were exceeding the speed limit by more than 25 kilometres per hour and your license was suspended.  Unfortunately in relation to the offence on 17 March 2011 your license was not suspended until 29 May 2011 because of the way the Vic Roads system operates.  It follows that you had been intercepted and booked by the police in March shortly prior to these offences.

7Turning to matters personal to you, you are now 29 years of age being born on 12 May 1984.  Your father was French, being born in Tunisia, your mother was Australian but they separated many years ago.  You attended primary school in Hoppers Crossing, then Mackillop College until Year 10.  You subsequently completed Year 11 at VUT.  You then completed an apprenticeship as an electrician and in 2012 obtained qualification to work with Smart Meters.  You were self-employed for three years as a contractor but in 2012 obtained installing those smart meters. 

8In April 2011 at the age of 25 you married your long-term girlfriend at a stage when you were still operating your own business.  That business failed and the combination of business factors and personal issues saw you attempt suicide in March 2011.  Then in May you committed these offences and your wife subsequently left you.  In mid-2011 you were referred to Dr Kumar and diagnosed with bipolar affective disorder.  Dr Kumar provided you with appropriate medication.  He provided a report to this court, Exhibit 5, which was tendered upon your plea outlining his involvement with you.  He reports, "Mr Spitalieri's engagement with treatment has been quite good.  He attends the appointments regularly and takes medication regularly.  He has been diagnosed to having bipolar affective disorder.  He has made more improvement in his mental state after he's been put on two different mood stabilising medications." 

9You were seen by Dr Danny Sullivan, psychiatrist, on 24 August 2012.  Dr Sullivan provided a report focusing on whether or not you had a defensive mental impairment and such report was Exhibit 4 upon your plea.  Dr Sullivan outlined your personal history and psychiatric history before dealing with your history of substance abuse.  You have used cannabis since 17 years of age, smoking up to quarter of an ounce a week.  You have also used amphetamine and methamphetamine, tried cocaine and Ecstasy.  You told Dr Sullivan that you had abused Benzodiazepines until about a month before May 2011 and you said that your drug abuse had been one of the factors that led to your wife leaving you.  Dr Sullivan concluded in paragraph 42, "He has had a long history of mood disorder with symptoms of anxiety, obsessive compulsive ruminations and depressed mood.  He has in the past made a serious suicide attempt.  The recent diagnosis is of a recurrent major depressive disorder, mild to moderate in severity.  It is clear that he has marked anxiety symptoms and these were likely associated with depression rather than reflecting a separate disorder.  More recently he has been diagnosed with bipolar affective disorder Type 2.  This diagnosis is generally manifest in depressive episodes and at least one hypermanic episode.  It indicates a propensity to mania rather than a manic illness.  I was not able to elicit details of a hypermanic episode and would regard this as a differential diagnosis but could not corroborate it.  Mr Spitalieri has a history of polysubstance abuse or dependence involving cannabis and Benzodiazepines.  He is by his own report abstinent from these substances.  It is likely that both of these substances were associated with the alleged offence."

10In dealing with your mental state at the time of the offences, Dr Sullivan concluded, "His behaviour is most likely to have been associated with intoxication, certainly with cannabis and possibly with Benzodiazepines or alternatively withdrawal.  For this reason I do not consider that Mr Spitalieri has a mental impairment defence.  At the time of the alleged offences I consider that he was unable to think clearly or make calm or rational choices, as evidenced in his observed behaviour before and after the alleged offences.  His driving is suggestive of marked disinhibition.  His judgement was clearly impaired.  The cause of these issues relate to acute intoxication with withdrawal." 

11Your counsel submitted that the principles in R v Verdins, Buckley & Vo [2007] VSCA 102 were applicable to you.  In particular, your counsel argued that because of your bipolar condition your moral culpability was reduced and denunciation is the less relevant sentencing consideration.  Your counsel also argued you were not a suitable vehicle for general and specific deterrence.  Finally, your counsel contended that because of your psychiatric illness any further period of imprisonment or any period of imprisonment would weigh more heavily upon you than it would for someone without your condition.  There is a risk that your imprisonment would adversely affect your mental health. 

12Much debate took place upon your plea as to whether or not the first limb of Verdins has application to you.  Although you were diagnosed with bipolar disorder subsequent to the offending I accept that on all the evidence you would have suffered from that condition at the time of the collision.  As the Court of Appeal said in Arthars v R, Plater v R [2013] VSCA 258 para 15, "Whenever the offender's mental impairment can be said to have contributed to or has a real connection to the offending, Verdins principle 1 is enlivened.  There can be no justification for a reduction in moral culpability unless the mental impairment at least has that degree of relationship with the offending." 

13Earlier in that judgment the Court referred to earlier decisions of the Court and said, "(those decisions) are said to have created some uncertainty as to the requirements under the first principle stated in Verdins which we consider to be quite clear, namely there must be some real connection between the mental disorder and the offending behaviour, the subject of the charge, before it can be suggested that any reduction in moral culpability and consequent mitigation in sentence ought to flow from that disorder."

14Later, "The disorder was operative at the time of the offence and that it contributed to in some way is connected to or explains the offending."  

15Your counsel contended that the explanation for your driving on the day comes from the fact that you were intoxicated by cannabis.  He argued that you were using cannabis to self-medicate for your own psychiatric condition.  He said that you drove the way you did because you were ill.  To deal with this illness you took cannabis and that distorted your judgement and therefore he submitted there is a Verdins point in your case.  He sought to distinguish your use of cannabis from someone who may use drugs in a recreational way rather than for self-treatment.  As is clear from the discussion I had with your counsel I did not accept this submission entirely.  Dr Sullivan is of the view that your conduct is explained by the influence of drugs.  Your counsel accepted as much.  As a matter of law the disinhibiting effect of illegal drugs voluntarily taken cannot be used to mitigate conduct whilst intoxicated from the use of those drugs. 

16In R v Martin [2007] VSCA 291 the Court of Appeal discussed whether or not psychosis induced by illegal drug taking could be a mitigatory factor.  At paragraph 19 the court indicated that the general proposition that psychosis or other mental illness which is drug-induced can never be a mitigating factor because the results of the offender (indistinct) cannot be endorsed.  The court gave examples where a psychotic reaction induced by drugs may be mitigatory.  The court referred to the decision of Reddenback where it was stated, "Nowadays it frequently occurs that those who attack or kill or seriously injure someone are affected to some extent by drink or drugs.  Where the condition itself is induced it is not generally to be regarded as mitigating the effect for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence." 

17However, in my view it is significant in your case that on the evidence before me it was your illegal drug use that caused you to drive the way you did.  You chose to take illegal drugs; you had been using those drugs for over years and can be assumed to have knowledge of the effect the drugs have on you.  It is also clear that you should not have driven a motor vehicle whilst under the influence of those drugs.  That said, you clearly suffered from an underlying mental illness.  Whether or not you were self-medicating with drugs is unclear.  Because of the difficulties of reconciling the report of Dr Sullivan with the submission of your counsel and the report of Dr Kumar, I requested that a report from Forensicare be obtained in relation to you.  That report has been obtained and is now Exhibit G.  Dr Galinski, the author of that report, gave evidence before me this morning. 

18In his report Dr Galinski concludes:

19"After the index offence Mr Spitalieri received a diagnosis of bipolar disorder.  He suffered subsequently a manic episode, seemingly with psychotic symptoms for which he was involuntarily hospitalised.  Mr Spitalieri denies the use of substances around the time of this episode which may be verified by urine drug screens.  I think that Mr Spitalieri very likely has a bipolar disorder which has been evolving throughout his adolescence and young adulthood.  Mr Spitalieri also used cannabis throughout much of his late adolescence and early childhood and reports recent abstinence.  It is notable that he suffered a significant manic episode when he was unlikely to have been using significant amounts of cannabis.  I think that it is quite likely that Mr Spitalieri was suffering from symptoms of bipolar disorder before and around the time of the index offence.  Prescribed substances and cannabis were also likely influencing the cause of his illness and his behaviour around the time of the offending.  I agree with Dr Sullivan's opinion that cannabis in those blood concentrations is associated with impaired driving capacity.  It seems unlikely, however, that cannabis and Benzodiazepines would be a complete explanation for Mr Spitalieri's behaviour around the time of the index offence.  It appears to me, however, that his ability to make rational and reasonable choices concerning his behaviour were significantly impaired at the time of the offending with mood symptoms being a contributor to this impairment."

20At the conclusion of his report Dr Glowinski said that you would be more likely than the average prisoner to suffer whilst incarcerated and that there would be a significant risk of relapse of your bipolar illness if you were in custody. 

21The issues surrounding your bipolar diagnosis and the question of the application of the principles of Verdins case are complex in your case.  Clearly I have struggled to reconcile your driving, your drug use and your illness.  On balance I accept that you were suffering from bipolar disorder on 21 May 2011 and that therefore all of the Verdins points are enlivened in your case.  When combined with other mitigatory features the application of Verdins principles in your case are highly significant in the sentencing exercise for your crimes.  I accept that you are not a suitable vehicle for the exercise of principles of general deterrence and yet your moral culpability is reduced because of your relevant psychiatric illness.

22There has been a significant and unexplained delay in your case.  It took nearly 11 months for you to be charged in relation to this matter.  I was given no explanation as to why it took so long.  Thereafter, the matter proceeded normally and unremarkably until you were listed for a plea hearing in this court on 14 March last year.  The court was unable to deal with your plea on that day and the matter was further adjourned.  You were admitted as an in-patient in a mental health ward subsequently and were unable to be dealt with until 4 October when I heard the plea on your behalf.  It is thus two and a half years since your offending.  During that time you have been diagnosed with bipolar disorder, undergone further hospitalisation and obtained appropriate medication.  You have had this matter hanging over your head throughout that period of time.  I can see no reason why you could not have been charged at an earlier time and it is certainly not your fault that this court was unable to hear your plea in March last year.  I take the delay in bringing this matter before the court into account in your favour in sentencing you.  I obviously take into account your pleas of guilty.  I treat those pleas as being made at an early opportunity and regard any exploration and time delay because of an investigation of your mental health condition to be an appropriate delay. 

23By pleading guilty you have spared the community the time and expense of a criminal trial but more significantly your victims the need to give evidence in court.  This is particularly important as two of your victims are young children.  I accept that you have displayed genuine remorse for your conduct and when your pleas of guilty are combined with that genuine remorse you are entitled to a significant reduction to the sentence I would otherwise impose to reflect those pleas of guilty.  I am obliged to state the effect of that reduction and I will return to that matter subsequently.  I take into account as I said the effect that your mental health issues will have upon you whilst you are in custody.

24Reference material has been tendered upon your plea as Exhibit 3.  A reference from your brother outlines the remorse you have expressed and describes you as a highly respected and generous man.  Your brother acknowledge the effect diagnosis of your condition and medication has had upon your life.  Your mother, Lynette Carter, also provided a reference and gave evidence on your plea.  She outlines the positive effect, diagnosis and medication have had for you and how counselling has assisted you.  She describes the family support you enjoy from your extended family and from your friends.  A reference from your sister, Nicole, endorsed the matters attested to by your mother and brother. 

25I take the reference material into account in sentencing you and I accept that you enjoy strong family support, have a solid work history and have now been medically stabilised.  In those circumstances I accept that your prospects for future rehabilitation are good.  Would you stand up please?

26On the four charges of dangerous driving causing serious injury you are convicted on each charge.  On Charge 1 you are sentenced to be imprisoned for 12 months.  On Charge 2 you are sentenced to be imprisoned for 12 months.  On Charge 3 you are sentenced to be imprisoned for 12 months, as with Charge 4 you are sentenced to be imprisoned with 12 months.  I order that four months of each of the sentences imposed on Charges 2, 3 and 4 be served cumulatively on Charge 1 which I declare to be the base sentence.  That is an effective sentence of two years' imprisonment.  Because of the matters to which I have referred in mitigation, significantly your mental health issues, I order that the sentence I impose be suspended totally for a period of three years from today's date.

27You understand what that means, if you commit any offence punishable by imprisonment in the next three years you will be brought back before me and you will be liable to go to gaol for two years.  On the summary charge of driving with a prescribed concentration of drugs present in your system, you are fined $700.  I order that any license you hold be cancelled and you be disqualified from obtaining a license to drive a motor vehicle for 18 months from today's date.

28Pursuant to s.6(aaa) of the Sentencing Act that but for your pleas of guilty I would have imposed a term of imprisonment of 30 months with a non-parole period of 12 months.

29COUNSEL:  As Your Honour pleases.

30HIS HONOUR:  Any other orders required?

31MR BALLEK:  No sir.

32HIS HONOUR:  You can leave the dock.  Mr Sala will explain to you in no uncertain terms that you do not want to come back here, all right.

33COUNSEL:  As Your Honour pleases.

34HIS HONOUR:  I'll stand down while the other mob come in.

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