Director of Public Prosecutions v Tatarskyj
[2020] VCC 1661
•1 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00085
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND TATARSKYJ |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 October 2020 |
DATE OF SENTENCE: | 1 October 2020 |
CASE MAY BE CITED AS: | DPP v TATARSKYJ |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1661 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions |
For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR:
1On the evening of 11 February 2019, you, Raymond Tatarskyj, drove to the local hotel in Donald. You ordered a shot of Jim Beam. The licensee was concerned that you were already affected by alcohol. He served you the drink and told you it was to be your last. He then left the bar to do other duties. The licensee's partner came into the bar and you asked her for another drink. Before it was served, the licensee returned and told his partner not to serve you because of your appearance, being too affected by alcohol.
2When you were refused the second drink you became abusive. You left the bar and got back into your car. You took off, plainly angry and behaving recklessly. This was quickly revealed as you turned ultimately on to the main street in Donald and indeed on to the wrong side of the main street in Donald.
3At that time, a prime mover with a fuel tanker on the back which was full of petrol and diesel was being driven carefully along the main street. You drove for about 50 metres on the wrong side of the road towards the prime mover, only moving back on to the correct side at about five metres from the prime mover. I have watched the dashcam footage from that truck and well understand that the truck driver was shocked and in fear.
4Having driven in this reckless way towards the prime mover, you then drove towards the licensee's partner, the one who had refused you a drink. That victim, who was outside at this point, had to run to a nearby driveway to ensure that she was safe. You later drove back in front of the prime mover and pulled up in the middle of the road.
5Six weeks later you were interviewed by the police. You explained that you wanted to get some sugar because of problems with your diabetes. You went first to a service station, you said, but it was closed so you went to the pub. The first shot of Jim Beam calmed you but being refused the second drink got you upset. You conceded that you were not in the right frame of mind.
6You were charged and ultimately committed to the County Court. After some issues regarding your plea of guilty, this matter resolved after a sentence indication hearing. While your offending was concerning, it did not seem the sort of case that should automatically have moved from the Magistrates' Court to the County Court without some further analysis as to whether the Magistrates' Court could adequately deal with this matter and do so promptly. In the end you have pleaded guilty after the sentence indication to one charge of reckless conduct endangering life, being the life of the truck driver; one charge of recklessly conduct endangering serious injury, being the female licensee. You have also pleaded guilty to a summary charge of unlicensed driving.
7The proof of these indictable charges can be complex. In my view, your plea of guilty is of real value because there was an arguable defence. Your plea of guilty alleviated the prosecution of the requirement to prove the offence, which would have not been straightforward. Your offending was concerning. Driving towards a truck is frightening for the driver who had to brake and swerve to avoid you: no easy manoeuvre in a large truck in the main street with parked cars. Likewise, motivated by anger, your conduct towards the female licensee was dreadful.
8You were at the time troubled by your ill health and not thinking clearly. That does not excuse what you did but in all the circumstances it does slightly lower your moral culpability. The victim, the truck driver, in his victim impact statement said that he is now much more cautious in the town of Donald and in other small like townships. He knows only too well how volatile his load was and he knows how things could have gone dreadfully wrong.
9As to your personal circumstances, you are now 47. You are on a disability pension due to chronic health problems and have been for over 12 years. You live with your mother in Donald. She raised you, along with two brothers, who you now have little contact with. In Year 10 at school you ultimately worked as a painter and decorator but have had various other jobs in spray painting, in a brickworks business and in the mining industry. You also have worked in warehouses driving forklifts and cooking in commercial kitchens. Your work history up until 2005 was solid.
10You have sadly had a lifelong problem with alcohol. You concede that you are an alcoholic. From age 30 to 40 you underwent six detoxification programs but obviously fell back into alcohol abuse. You said that your longest period of abstinence or sobriety was six months up to and following pancreatic surgery. You also have abused cannabis until about the age of 42. In describing your drinking at the moment, you say that you still drink but moderately, three or four drinks at a time or through a week or through a day. It is still a problem that needs to be seriously addressed.
11I have mentioned your poor physical health. From your doctors' accounts and other material, it is plain that you have pancreatitis as a consequence of your alcoholism. You have respiratory illnesses as well and around the time of these offences you were diagnosed with Type 2 diabetes. From my reading of your medical report it seems that you are already taking some insulin for what appears to be serious Type 2 diabetes.
12You have chronic abdominal and back pain. Your mobility is poor, and you require a walking stick. All these matters weigh very considerably in determining what level of punishment is appropriate for someone with these particular physical problems. Beyond that, your physical ailments, in particular with your pancreas, causes your anxiety and depression and outbursts of frustration and anger. As was the case at the time of this offending, your physical ill health causes problems with your capacity to think things through. The spontaneous ill-considered actions on the evening once you were refused the drink reveal how you can and did turn quickly to anger and ill-considered behaviours.
13It should be noted that you have prior driving offences, in particular in the late 90s and early 2000s when you accumulated, on my reading, four drink driving or refuse breath test offences. These are serious. There are other criminal offences, most now old and all dealt with in the Magistrates' Court.
14Your counsel has always submitted that a community corrections order is the appropriate penalty. The plea was listed before another judge but did not proceed, due first to another serious episode with your pancreas which saw you hospitalised and transferred to a large Melbourne hospital. Ultimately, I heard the sentence indication application and, as I have indicated, it was granted. I had you assessed for a community corrections order and you were found to be suitable. It was considered that you ought to have conditions that endeavor to assist you with your problems with alcohol and your mental health. It was noted that your capacity to do unpaid work was limited. Any work will have to be light and likely in the current climate to be home-based.
15What was important in the sentence indication hearing and generally in sentencing is that community corrections orders can punish and aid in rehabilitation simultaneously. That is appropriate here. Community corrections orders can appropriately denounce and separately act to operate as a deterrent. Those matters have weight in this case.
16The offending here was risky and involved endangerment by you. You simply should have obeyed the road rules and respected the safety of the other driver and the pedestrian. This sort of conduct is to be denounced. Others should know that absent the sort of mitigatory matters here, that endangerment of other road users in driving a car will ordinarily see imprisonment imposed. What I intend to do is impose an aggregate sentence for the indictable matters, and indeed the summary matter as well.
17As for the two offences, conduct endangering life, obviously the most serious charge, and the conduct endangering person which, too, is serious, I impose as an aggregate sentence a 12-month community corrections order, with conviction. The program conditions that apply to you are that you must do 100 hours of unpaid work. You must be under supervision, you must be assessed and treated for alcohol abuse, you must be assessed and treated for mental health problems. All hours performed on those programs are to be deducted from the hours required for unpaid work.
18The unlicensed driving matter, the summary matter, is also part of that aggregate sentence. In respect of that, the discretion is to cancel your licence. I consider that it is appropriate to cancel your licence and disqualify you from driving in Victoria for 12 months. Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of 10 months with a two-year community corrections order.
19Is there anything else required?
20MR BROWN: No, Your Honour. May it please the court.
21HIS HONOUR: Thank you. What we have to do, Mr Tatarskyj, is I have to explain to you what is involved in a community corrections order. You have got to listen in and in fact you have got to say something to me in response and it will be straightforward. A community corrections order, there are standard conditions that apply to everyone and they will apply to you. The most important of those is the first one which I will outline.
22You must not commit another offence for which you could be imprisoned during the time of this community corrections order. Now almost every offence you can think of is punishable by imprisonment. Certainly, driving while disqualified is punishable by imprisonment. You must not commit any offence during this 12-month period; indeed, you should never commit another offence. But should you commit an offence in the 12 months, what will happen is you will breach that community corrections order. It does not matter what the magistrate might do, if it is driving while disqualified or whatever else it is, you will come back before me for the breach of this community corrections order and the mercy that has been shown here will not be repeated, so do not commit any offences.
23The rest of the conditions that apply in every community corrections order are essentially about cooperation. You must report to the community corrections office that is nearby you. I imagine that is Horsham, is it, Mr Reardon? I have not checked that.
24MR REARDON: I believe it is. There is a direction to attend by telephone.
25HIS HONOUR: Yes, it will be. You are to report to the Office of Corrections there within two clear working days. That can be done by telephone and the numbers are all there and they have got your number. You must tell the Office of Corrections if you change your address or your employment, so you have just got to tell them if anything has changed. You have to get their permission before you can leave the state, just ask them about all that, but you have got to get it before. You have got to accept visits from the Office of Corrections and, as I say, you have to report to them within two clear working days.
26Now the conditions that apply just to you, I have outlined them in brief terms and I will just repeat them. You have to do 100 hours of unpaid community work. You have to undergo treatment and assessment for alcohol, and you have to undergo treatment and assessment for your mental health. So, they are the conditions that apply to you. As I have indicated, whatever hours you do in respect of the mental health matters and the treatment and rehabilitation for alcohol, they can be deducted away from your unpaid community work.
27What would ordinarily happen, Mr Tatarskyj, would be a document would be printed out with you in the court, it would be taken to you, you would look at all that and then you would sign it if you consent. The way it is happening in these virtual courts is I ask you if you do consent to the community corrections order in the terms that I have just outlined. If you do say that you consent orally then that will be taken as the same as consenting in writing. Do you consent to doing the corrections order as I have outlined?
28OFFENDER: Yes, Your Honour, I do consent.
29HIS HONOUR: Thank you. Is anything further required on that topic? We will get some documents forwarded to your instructors and to the Crown and to the Corrections people. Anything further?
30MR REARDON: No, Your Honour.
31HIS HONOUR: Mr Brown, nothing further?
32MR BROWN: No, Your Honour.
33HIS HONOUR: Thank you. I thank counsel for their considerable assistance in respect of this matter and sorting it out. It had a bit of a bumpy ride for a while but the outcome, we got there I think, a just and appropriate and proportionate sentence in the end. If there is nothing further you can telephone him on his mobile or whatever, Mr Reardon. If all the lawyers and others leave this hearing, I will remain on it and talk to my staff.
34MR BROWN: If Your Honour pleases.
35HIS HONOUR: Thank you.
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