DPP v Di Fuccio [2022] VCC 949

4 On Friday, 5 June 2020, at approximately 3:21 p.m., a two-vehicle collision occurred on the Kangaroo Ground/Warrandyte Road in Kangaroo Ground. The collision took place outside the property at number 320. The road there has a single lane in each direction, divided by double white lines. The speed limit is 80 km/h in both directions.

5 The collision occurred when a Toyota Landcruiser 4-wheel drive wagon driven by you and travelling north, crossed wholly into the southbound lane and struck a Toyota Corolla sedan head-on.

6 The front-seat passenger in the Corolla died and the driver suffered life-threatening injuries. You suffered moderate injuries.

7 You were 57 years old at the time of the collision, and you lived in Rhyll, Victoria. You were the sole occupant of the Landcruiser. You underwent a preliminary breath test for alcohol and a preliminary oral fluid test for drugs. Both tests returned a negative result.

8 You were conveyed to the Royal Melbourne Hospital for treatment of minor injuries following the collision.

9 A blood sample was obtained from you. The result did not indicate the presence of any drugs or alcohol in your blood.

10 Mary Baker was the front seat passenger of the Toyota Corolla. She was 28 years old and married to the driver, Sarosh Samuel. She suffered fatal injuries in the collision and died while being treated at the Alfred Hospital.

11 Sarosh Samuel was the driver. He was 29 years old. He was the owner of the Corolla. He suffered life-threatening injuries in the collision and was treated at the Royal Melbourne Hospital. He received a fracture to the left side of his jaw, shattered bones on the left side of his face, he lost four teeth, he suffered major internal bleeding, damage to his small and large intestines and soft tissue injuries to his knees and an injury to his hand. A blood sample was obtained from him. The result did not indicate the presence of any drugs or alcohol in his blood.

12 The vehicle driven by you was a 2010 Toyota Landcruiser wagon which was registered to your family business. It was mechanically examined by Senior Constable Brett Gardner from the Collision Reconstruction and Mechanical Investigation Unit. He was unable to identify any faults that would have caused or contributed to the collision. The vehicle driven by Sarosh Samuel was a 2001 Toyota Corolla. It was registered to Mr Samuel. It was not mechanically examined.

13 The Kangaroo Ground/Warrandyte Road is a two-way road with a lane in each direction. The lanes are divided by double white lines and are in a roughly north/south alignment. There were also 'fog' lines painted on the outside edges of each lane.

14 The road for northbound traffic leading to the scene is slightly northeast in alignment. The road has a bitumen surface which was in good condition at the time of the collision. It is generally flat. Leading to the scene, northbound traffic faces a moderate left curve in the road. There are amber and black chevron signs on the side of the road indicating the left curve. The speed limit is 80 km/h in both directions, indicated by signs.

15 The area is rural in nature, but there are a number of residential properties. There are fenced paddocks adjacent to the road on both sides. There is a wide shoulder on both sides of the road. There are also large trees adjacent to both sides of the road.

16 Subsequent to the collision, your Landcruiser stood at rest completely in the southbound lane with the driver's side wheels next to the fog line, facing north. It had extensive damage across the front and was at rest against the Corolla.

17 The Corolla also had extensive damage across the front, with the engine visible. The bonnet and engine were pushed rearward, and the windscreen was shattered. The Corolla was facing diagonally across the southbound lane in a generally south-easterly direction.

18 At the time of the collision the road was dry, the visibility was good, and it was daylight.

19 The victims were married in February of 2020. They intended to travel to the United Arab Emirates for their honeymoon in order to visit Mr Samuel's family. Due to the Covid-19 pandemic they decided to postpone the overseas trip and took a local road trip to Kilmore to visit friends. On 3 June 2020 they left their home and visited several locations in the Kilmore area. At approximately 2:00 p.m. on 5 June 2020, they left Kilmore and headed for their home in Croydon.

20 Mr Samuel recalls coming around the bend at the scene and seeing your vehicle on the wrong side of the road. He had no time to get out of the way.

21 You lived in Rhyll, on Philip Island. Your intention was to travel to your son's house in Mernda to pick up your four year-old granddaughter so that you could have her overnight. You left Philip Island between 12:30 and 1:00 p.m. You stopped at the BP service station at Officer, where you checked Google Maps for the best route from there. Google suggested that you travel via Warrandyte, Kangaroo Ground, Wattle Glen, Hurstbridge and then through Mernda. You followed the suggested route, as you had done a few times before.

22 As you approached a left-hand bend on the Kangaroo Ground/Warrandyte Road, your vehicle failed to stay in your lane and crossed into the oncoming lane, colliding head-on with the Corolla.

23 A number of uniform police attended the collision site. A highway patrol officer conducting the preliminary breath and drug tests asked you what had happened. You said you had been driving from Phillip Island towards Mernda and 'somewhere around there I got sun in my eyes, I got distracted, and all of a sudden it's just bang, and that's all I remember'. You later said the sun was in your eyes and 'I think I sort of closed my eyes, I don't know, I sort of tried to get focus, and then it was just bang'.

24 Detectives from the Major Collision Investigation Unit attended the scene. Detective Leading Senior Constable Michael Hardiman from the Collision Reconstruction and Mechanical Investigation Unit also attended. He produced a report which states, in part, as follows: 'In my opinion, based on all the available evidence at the scene, the Toyota Landcruiser was wholly in the south bound lane of Kangaroo Ground-Warrandyte Road when it collided with the Toyota Corolla. At impact, it is my opinion that the Toyota Landcruiser was travelling at approximately 58 km/h, while the Toyota Corolla was most likely travelling at 69 km/h. I am unable to say why the Toyota Landcruiser was travelling on the incorrect side of Kangaroo Ground-Warrandyte Road.'

25 You were interviewed at the Cowes Police Station on 30 July 2020. During the interview you stated: 'There's a - a left-turning corner, I'm doing what I thought was about 60 and then as I've - as I'm getting into the corner, which is just up on almost the top of the hill - or on the top of the hill, there's just this bright light. I dunno where it came from, it - and all of the sudden I had - didn't have time to react and obviously I've gone straight because - yeah, and all I remember is the - the sounds of airbags.'

26 You maintained that you were distracted by a bright light that caused you to veer over to the wrong side of the road, but could not elaborate further.

27 Police conducted a videoed drive-through of the scene travelling in the same direction as you. The drive-through was carried out four days after the collision, at 3:25 p.m. This video shows the approximate position of the sun as it would have appeared to you as you approached the scene. Police also obtained a statement from an astronomer who calculated the precise position of the sun at the scene of the collision on the relevant day. Those calculations are contained in the depositions and indicate that the sun would have been low in the sky and to your left side as you approached the collision scene.

28 The prosecution maintains that the conditions were such that they should not have contributed to the collision, however, the prosecution cannot rule out that you were, in fact, distracted by the sun.

29 The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by Parliament being 10 years imprisonment. Dangerous driving causing serious injury is also a serious offence. However, in each case the offences are capable of being committed in a wide variety of circumstances which must be assessed in order to form a view as to the gravity of the offending.

30 In this instance, the dangerousness of your driving is particularised by the prosecution based on your inattention which, while brief, was enough for your car to drift entirely onto the wrong side of the road resulting in the collision as described. The inattention as described by you at the scene and later in your record of interview was as a result of the sun shining either directly in your vision or in a way that distracted you from your driving for a period long enough for your vehicle to cross the road resulting in the collision.

31 While there was some debate about the impact of the sun and how it may have distracted you, you accept by your plea of guilty that your momentary inattention resulted in your driving being sufficiently dangerous in all the circumstances, resulting in the collision.

32 In the DPP v Neethling,[1] the Court identified the factors which may aggravate the seriousness of dangerous driving causing death as follows:

• the extent and nature of the injuries inflicted;
• the number of people put at risk;
• the degree of speed;
• the degree of intoxication or of substance abuse;
• whether the driving was erratic [or aggressive];
• was there competitive driving or showing off;
• the length of the journey during which others were exposed to risk;
• ignoring of warnings;
• escaping police pursuit;
• degree of sleep deprivation; and
• failing to stop.[2]

33 Of that non-exhaustive list, it is not disputed that none of the typical aggravating features of this offence apply in your case. Speed, intoxication, erratic driving or distraction by a mobile phone or other distraction are absent in this instance. Further, at the time you crossed the centre line, you were driving well below the speed limit.

34 Mr Hill QC, who appeared with Ms Martin on your behalf, submitted that in the circumstances your moral culpability is exceptionally low. Ms Mahady, who appeared on behalf of the Director of Public Prosecutions, submitted that while your moral culpability is low, it is not at the lowest level.

35 As noted, your driving was not attended by any of the typical aggravating features; your culpability is entirely attributable to your momentary inattention. While that inattention may have been for a few seconds at most, it was an error that led to tragic consequences. However, applying the criteria in assessing the seriousness of your offending, in my view it does fall towards the lower end of seriousness. Further, in my view while acknowledging the devastating consequences of your mistake, in all the circumstances your moral culpability also falls towards the lower end of seriousness.

36 Two victim impact statements were tendered and read at the plea.

37 The first was from Sarosh Samuel, the husband of the primary victim, Mary Baker who he refers to as Margo. Mr Samuel described the horrific circumstances moments after the accident when he came to the realisation that his new wife was critically injured. He eloquently describes his terrible loss, stating that he wishes that he had taken more of the injuries in order to spare the life of his wife and questions whether he could have done something different as the driver. I take into account the contents of Mr Samuel's victim impact statement and the fact that he too, is a victim in relation to Charge 2, suffering significant injuries.

38 The second victim impact statement was prepared by Caroline Baker, the sister of the primary victim. Ms Baker writes on behalf of herself and her parents. Ms Baker describes the loss of Margo characterizing her as a compassionate and gentle person, demonstrated through her career in palliative care. Ms Baker expresses on behalf of the family that they do not hold any animosity towards you and hope that you will come to a place of peace as they have. I take into account the contents of the victim impact statement on behalf of the family.

39 I wish to direct some further comments to Mr Samuel and the family of Ms Baker.

40 There is nothing this Court can say or do that will bring back Ms Baker or heal your significant and immeasurable grief and pain. The sentence I must impose can in no way be a measure of the worth of the life of Ms Baker. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

41 I also wish to acknowledge the comments on behalf of the family directed to Ms Di Fuccio that are expressed with dignity and grace.

42 You are 59 years of age and were 57 at the time of the offending.

43 You were born in Australia and are the youngest of four children. Your parents operated a tobacco farm near Myrtleford and you spent your first 18 years there. Your parents who are now deceased remained married throughout their lives and provided a stable environment for you.

44 You attended local Catholic schools in Myrtleford. Your first language was Italian and you took some time to acquire functional English. You report no significant behavioural disciplinary or social problems during your schooling completing the equivalent of year 11. You then studied cookery. Throughout your life you have worked in a range of kitchen related and hospitality roles including in cafes and restaurants and running your own cafe working as a cook.

45 In recent years you have devoted yourself to caring for your grandchildren and others and indeed it was while driving to pick up your grandchildren on this occasion that the collision occurred. You have, since the accident, not returned to work and you have not driven.

46 You enjoy a stable and supportive relationship with your husband whom you married in 1984. You have two children aged 37 and 35 and two grandchildren. Your mother-in-law resides with you and requires a high level of care on account of her multiple medical problems. You provide extensive care and support for your mother-in-law.

47 A report was prepared by Patrick Newton, clinical and forensic psychologist, and tendered on the plea. Mr Newton provides an extensive personal and mental health history and conducted psychometric tests with you. Mr Newton also had the benefit of reports from two psychologists, Sally-Anne McCormick and Travers Holbrook, that have been counselling you after being assigned to you via the TAC as result of the collision.

48 As a result of the psychometric testing and clinical assessment of you, Mr Newton formed the opinion that you are suffering from post-traumatic stress disorder ('PTSD') and a major depressive disorder. Mr Newton acknowledges the treatment that you have already undergone through the TAC psychologists over a substantial period. He is of the view that you have developed good insight, that you have expressed your remorse openly and that you have accepted responsibility for your conduct. He is also of the opinion that the severity of your psychological problems require that you receive ongoing mental health care.

49 Mr Newton is of the view that if incarcerated, your symptoms would become substantially and materially more severe than is typically seen, putting you at risk of a significant deterioration in your mental health. Mr Newton also notes that your experience of adjusting to the custodial setting would likely be particularly difficult.

50 The report from clinical psychologist Sally-Anne McCormick notes that she has been having weekly sessions with you throughout the last two years since the accident occurred and at the time of writing her report notes that you had attended 51 sessions. Ms McCormick also observes that you have shown high levels of remorse from the initial session, consistently expressing sadness and devastation with regard to the two victims and their families. Ms McCormick is also of the view that you would struggle greatly in prison.

51 The report that was prepared by Travers Holbrook deals more specifically with your PTSD. Mr Holbrook has been engaged in sessions with you since March 2021, which are continuing. He is of the opinion that ultimately, when sentence is delivered, your shame and guilt will remain and you will likely experience increased PTSD symptomology including suicidal ideation. However he notes that if you remain engaged with your current supports and continue your trauma therapy, your prospects are guardedly good.

52 A bundle of 14 references were tendered together with letters from your general practitioner and physiotherapist. The references represent a cross-section of family and long-term friends and colleagues who have known you for many years. The references speak with united voice that you are an otherwise loved and well respected member of the community. The letters variously described you as an honest, caring and generous person who has been always willing to help anyone in need. Many of the letters repeat what is evident in the reports tendered, that you are extremely and genuinely remorseful.

53 Firstly, I take into account your plea of guilty in this matter. You indicated your plea of guilty to Charge 1 prior to the committal and is not in dispute that the plea to both charges has been made at the first reasonable opportunity. As such your plea of guilty is an early plea and has substantial utilitarian value in that it has facilitated the course of justice by bringing the matter to a conclusion. Importantly, your plea avoids the need for witnesses to have to give evidence and relive the event.

54 Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[3]

55 Over and above your plea of guilty it was submitted on your behalf that you have shown deep and profound remorse in relation to your conduct. As noted above, it is clear from the psychological reports tendered together with the reference material, that you have consistently articulated genuine remorse and contrition. For example, in the report of Ms McCormick she states: 'Ms Di Fuccio has spent the last two years expressing and living with remorse and guilt regarding this accident. At the majority of sessions she talked about her thoughts and deep sadness regarding the families of the victims - they are never far from her mind.' In all the circumstances in my view you have demonstrated profound, sincere and appropriate remorse in relation to the impact of your conduct on the victims and their families.

56 As a result of your PTSD and your major depressive disorder, it was submitted that Verdins limbs five and six are enlivened in this instance. The submission was primarily made in relation to s 2H(2)(c)(ii) of the Sentencing Act 1991 ('Sentencing Act'), as an exception to the mandatory imprisonment in relation to Charge 1, pursuant to s 5(2H). In this instance the prosecution conceded that the exception is made out and therefore also accept that Verdins principles five and six have application both to the exception and generally in the sentencing discretion.

57 Turning to your prospects of rehabilitation, you come before the court at age 59 with no prior convictions other than a minor traffic infringement in 2009. Many of the referees speak of your care when driving a vehicle. In this instance the dangerousness of your driving is solely attributable to your momentary inattention. As such, you do not have to grapple with any alcohol or drug issues or other contributing factors that are often present in dangerous driving cases. In the circumstances while your PTSD and depression will continue to require treatment, in my view, your prospects of rehabilitation are excellent.

58 Ms Mahady submitted that the primary sentencing consideration in a case such as this is general deterrence, correctly pointing out that the driving must involve a serious breach of the proper management or control of a vehicle so as to create a real risk that members of the public would be killed or seriously injured. In the circumstances in my view this case is a clear example where an otherwise safe and competent driver has driven without the required due care and attention in circumstances where the conditions at the time, while challenging, would not be uncommon. The clear message to be conveyed is that all drivers must remain alert at all times. As to specific deterrence, for similar reasons outlined in relation to your rehabilitation, in all the circumstances specific deterrence need not carry weight in this instance.

59 In relation to the s 5(2H)(2)(c)(ii) exception, in my view as a result of your severe PTSD and depressive disorders, I accept that those conditions would result in you being subject to materially greater than the ordinary burden or risks of imprisonment and thus the exception to mandatory imprisonment on Charge 1 is made out, thereby providing the court with greater discretion.

60 While conceding the s 5(2H)(2)(c)(ii) exception has been made out, Ms Mahady nonetheless submitted that a combination sentence is open as an appropriate sentencing disposition. Mr Hill submitted that in all the circumstances the relevant sentencing considerations are able to be met by the imposition of a community correction order alone. In support of that submission Mr Hill provided the court with a number of examples of sentences in this court in relation to dangerous driving causing death where a community correction order alone has been imposed. While each case must turn on its own facts, I have taken those decisions into account.

61 I had you assessed for a community correction order and you have been found suitable. You were also assessed by the Court's Mental Health and Advice Response Service who recommended that ongoing assessment and treatment of your mental health should be made a condition of any community correction order imposed.

62 In my opinion in all the circumstances, a community correction order is able to meet the relevant sentencing considerations in this instance. As noted in Williams v The Queen:[4]

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[5]

63 Finally, as Charges 1 and 2 are founded on the same facts, and as I have formed the view that a community correction order alone is able to meet the relevant sentencing considerations in relation to both Charges 1 and 2, in my view pursuant to s 40 of the Sentencing Act, a single community correction order will be imposed. Nonetheless, I have taken into account the fact that there are two victims in this matter.

65 Ida Di Fuccio, on Charge 1, dangerous driving causing death and Charge 2, dangerous driving causing serious injury, you are convicted and will be placed on a community correction order for a period of three years. While all community corrections orders are punitive in nature, in addition to the standard conditions, you will be required to complete 300 hours of unpaid community work and you will be required to undergo treatment and assessment for your mental health conditions.

66 While it is envisaged that you will continue to be linked to your existing mental health practitioners, taking into account the view of the psychologists, you will continue to be at risk following the conclusion of this matter and your symptoms may worsen for a period of time. A such in my view the support of corrections will be of benefit to you and ultimately the community, as you continue your rehabilitation.

67 Pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.

68 Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 12 months imprisonment in combination with a community correction order.

69 Pursuant to s 89(2) of the Sentencing Act, as the charges are serious motor vehicle offences, any drivers licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 2 years from today.

[1] [2009] VSCA 116; (2009) 22 VR 466.

[2] Ibid [31], applying the decision of the New South Wales Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, [216]-[217].

[3] Worboyes v The Queen [2021] VSCA 169 at [39].

[4] [2018] VSCA 171, Priest JA and Hargraves JA.