Sentence: 4 years imprisonment, with 2-year non-parole period. Licence cancellation and disqualification for 4 years. Offence found to have been committed under the influence of alcohol.
[2]
Peter Tuliau, you can remain seated till I get to the end of this. It will take some time. You have pleaded guilty to one charge of negligently causing serious injury. The facts of your offending are set out in in exhibit A of the 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 sentence you on the basis of the facts set out therein.
Very briefly stated: on 5 September 2020 you left your home in Tarneit just after 10 pm. You drove in a westerly direction along Leakes Road in your Mazda CX7. You were travelling at a minimum of 147 kilometres per hour and the road had a 60 kilometre per hour speed limit. CCTV footage depicts your vehicle travelling along Leakes Road like a fighter plane taking off down a runway. A COVID-19 curfew was in place, the road was virtually deserted. To aggravate your driving, you had a blood alcohol content of between .187 and .203 per cent. You had been drinking at home before leaving after an argument with your wife.
Dr Mohammad Shah was a 45-year-old academic and lecturer at Central Queensland University. COVID-19 had reduced his academic work, so he was working as an Uber Easts delivery driver. He was driving his Mazda 2 Neo. After making his final delivery for the night, he was driving home. He drove north on Davis Road, stopping at traffic lights on the intersection with Leakes Road. He intended to turn right into Leakes Road. At 10.12 pm the lights turned green, and Dr Shah drove slowly into the intersection. You drove through the red light applicable to you. You collided massively with Dr Shah's vehicle. His vehicle split in half, spun, and collided with a pole. As I said, you were travelling at 147 kilometres per hour when you applied the brakes of your vehicle. You were travelling at 135 kilometres per hour when your vehicle hit Dr Shah's vehicle.
The photographs in the deposition depict the crash scene and it resembles a war zone. Police, paramedics, and firefighters attended the scene. Dr Shah was conveyed to Royal Melbourne Hospital where he was found to have suffered the following injuries: traumatic brain injury, post-traumatic amnesia, fracture of the lumbar third spinal bone, left interior and super fractures to the pelvic bones, left fracture to the sacrum - that's the base of the spine - extensive peritoneal haematoma, fractures to the eighth and 11th ribs, fractures to the eighth and ninth ribs, collapsed lungs on both sides and a rupture to the diaphragm, a hernia to the diaphragm, lacerations to the liver and a rupture to the dome of the bladder.
He underwent multiple surgeries to fix his injuries. The injuries were life-threatening and required a high level of medical and surgical intervention and care. You were interviewed by the police on 8 October 2020. You admitted drinking alcohol at your home prior to driving. You said you had an argument with your wife and went for a drive. You knew there was a curfew in place. You claimed to have blacked out before the collision and that you were driving normally and at the speed limit.
Either you didn't remember what had occurred or you were not honest in your answers about your driving, and I cannot determine which. You have admitted a prior criminal history. In November 2011 you were fined $600 by Kingaroy Magistrates Court for offences that contravened driving or requirement of a learner driver without appropriate instructor and failed to display L-plates.
You were previously convicted in New Zealand in 2014 of operating a vehicle carelessly and sentenced to a $400 fine. As I said you were counselled before. I regard those matters as basically irrelevant to the sentencing process for this offending. Victim impact statements were filed by Dr Shah, his wife and two children and they are exhibits D to G. Dr Shah read his victim impact statement to the court. He lives with debilitating pain, requiring constant medication. His body is held together by screws, and he has been severely affected by the collision. As he said: 'I was a fully healthy man. Now I am disabled'.
He is naturally depressed and anxious. He struggles to see a future. All aspects of his life, family, and work, have been damaged. He struggles with anger because of his limitations. His mind is slow, his body is slow, and he has difficulty sleeping. His permanent resident application has been put on hold. His wife, Samaya, was devastated at the news of her husband's injuries. She suffers medical problems, physical problems, financial problems, and social problems. She concluded: 'Our beautiful family, destroyed and devastated by this traffic accident. I am not happy at all. We always have tension and uncertainty for the future'.
The children, naturally, are afraid and sad. They struggle to see their father struggling with his pain and money worries. Their school work has been adversely affected. I take the victim impact statements into account in sentencing you. Negligently causing serious injury is a serious criminal offence. Your gross negligence is constituted by (1) driving at 147 kilometres per hour in a 60 zone, (2) driving with a blood alcohol level between .187 and .203 per cent and driving through red traffic light. In my view, your offending represents an upper-level example of gross negligence. The injuries suffered by Dr Shah are in my view mid-level examples of serious injury.
Clearly, quadriplegia, permanent brain damage and other examples of serious injury are unfortunately seen in other cases and present upper-level serious injury. The Court of Appeal has made it clear that the objective gravity of an offence of negligently cause serious injury by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injuries caused. In a recent Court of Appeal decision, the court has made it abundantly clear that the sentences imposed for serious examples of the offence of negligently cause serious injury have historically been inadequate.
In the decision of Harrison v The Queen [2015] VSCA 349_[1]_ the Court of Appeal held that higher sentences should be applied in the future. The Court stated:
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'...that sentences of six or seven years would be well in range for serious examples of the offence of negligently cause serious injury'.
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In the subsequent case of DPP v Barry [2017] VSCA 344[2], the Court of Appeal upheld an appeal by the Director of Public Prosecutions in relation to a combined sentence imposed at first instance: that is the disposition of a community corrections order and a gaol term. Such a disposition was found to be manifestly inadequate and a sentence of five years with a non-parole period of three was imposed.
In Gurovskiv The Queen [2018] VSCA 3[3] the Court of Appeal analysed the authorities and concluded that sentence of six years' imprisonment or more is open for offences of negligently causing serious injury by driving that fall within the upper range of seriousness and that a sentence of five years is open for offending in the middle range.
In the recent case of Cook v The Queen [2021] VSCA 293[4], the Court of Appeal again reviewed a sentence of five years and three months with a non-parole period of three years and eight months for negligently causing serious injury by driving. The appellant in that case demonstrated many mitigatory factors on his plea. Nonetheless the Court found that the objective gravity of the appellant's offending was very high. The Court said at paragraph 40:
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'The objective gravity of this offending is, in our view, very high. The appellant drank for hours. He made the conscious decision to drive, and then to drive with an appalling disregard for the safety of other road users. He drove while affected by alcohol (with a blood alcohol content of 0.107) and at a ferocious speed (in the range of 170 kilometres per hour) in Springvale Road - a busy, multi-lane road. The consequence of this gross negligence has been life-changing for [the victim], who was profoundly injured and lucky to survive.'
[6]
'Ultimately, however, in this and in similar cases of high objective gravity, less weight will be accorded to personal mitigating factors than would otherwise be the case. This Court has observed that this offence and the similar offence of culpable driving causing death (which differs only in consequence) are frequently committed by young offenders and/or offenders of previous good character, many of whom have excellent prospects of full rehabilitation. The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed upon mitigating factors such as youth, previous good character, and rehabilitation prospects.'
[7]
Ultimately, I am of the view that your offending should be seen as an upper-mid-level example of the offence of negligently causing serious injury. This is because the consequences of your gross negligence were not as great as they could have been.
Turning to your personal circumtsances you are now 33 years of age, being born in New Zealand in November 1988. Your history as comprehensively set out in exhibit 2, the report of psychologist Gina Cidoni and in the submissions of your counsel, exhibit 1. You were raised in New Zealand. Your father was reportedly a strict disciplinarian. You attended school to New Zealand level 13, leaving midway through that year. You've worked as a security guard and a forklift driver. In 2011 you moved briefly to Queensland and worked as a meat worker, before returning to New Zealand. In 2014 you moved to Melbourne and found work in warehousing and forklift driving. You resigned in February 2020 after being assaulted in an incident that saw a friend of yours killed.
Other members of your family have also moved to Melbourne and are supportive of you. You were married in New Zealand at age 19. You have five children aged between four months and 12 years. Your two-year-old son has suspected autism and demonstrates poor temper and self-regulation. You had just found employment again in September 2020. You were celebrating at your home before you stupidly left home in your motor car. The incident in February 2020 involving the death of your friend has left you seriously depressed and suffering from post-traumatic-stress disorder. You experience low moods, feelings of worthlessness, helplessness, fear, worry and anxiety and panic.
You binge drank alcohol to attempt to cope with these symptoms. It is in this context that your offending occurred. Ms Cidoni reports that prison will intensify your mental health issues and I accept and take into account the probable affect prison will have upon you. To your credit, you recently commenced counselling to assist with dealing with these issues.
You have expressed what I accept is true remorse for your offending, both by your plea of guilty and by your letter to Dr Shah, exhibit 4. The character references tendered as exhibit 5 all attest to your genuine remorse. You are described as a decent, gentle, honest, and law-abiding person. Your wife refers in her reference to the difficulties she will encounter when you are imprisoned. You are the sole provider for your five children, although they do receive social welfare.
In addition, your counsel pointed to the autism difficulties facing your son and he submitted that exceptional circumtsances had been established and that the court should extend mercy to you in sentencing. I have great sympathy for the plight of your wife and children. However, I do not accept that exceptional circumstances have been established. The difficulties confronted by your family are similar to those experienced by families of many husbands who are imprisoned. I do accept, however, that you will find your time in custody more onerous because of your concerns for your family and I take that into account in sentencing you.
I also take into account your early plea of guilty. You have spared the community the cost of a criminal trial and your victims the trauma of such a trial. You are entitled to a reduction in sentence to reflect your plea of guilty. The value of that plea is increased because of its increased utilitarian value in a time of COVID-19, which has had a severe effect on our legal system.
I accept and take into account the genuine remorse for your offending that I previously referred to. I take into account your previous good character, although good character has lesser weight in offences like this where tragically many offenders are of previous good character.
I take into account the delay in having this charge finalised. You were not charged until July 2021 and thereafter the matter has been adjourned on occasion and its process and progress though the system. You have had this matter hanging over your head now for two years. In that time, you have been both psychologically challenged and taken steps to rehabilitate yourself. I accept that you have good prospects for rehabilitation. Your previous good character, your strong work history, your family support, and the counselling you have undertaken all promote your rehabilitation.
Your ability to control your alcohol consumption is important for your future prospects. Your counsel submitted that a community corrections order was appropriate for your offending. After discussion about the various Court of Appeal authorities, he then submitted that a term of imprisonment less than 12 months' duration and a lengthy, punitive community corrections order would meet all the sentencing purposes. I am unable to accept either of those submissions. The authorities to which I have referred make it clear that a term of imprisonment with an appropriate non-parole period should be imposed, as recent examples of the offence of negligently causing serious injury by driving.
Your counsel referred to the probability that you will be deported if sentenced to a term of imprisonment greater than 12 months. The authorities mandate that I cannot take the probability of deportation as a mitigatory factor. That is a matter of executive function and determination. I can, however, and do take into account that your time in custody will be more onerous to you because of your concerns about your potential deportation.
Finally, your time in custody is likely to be made even more onerous for you because of the effect COVID-19 has had on our prison system. Isolation, lockdown, lack of visits and unavailability of courses and programs all affect time in COVID custody. I take that into account in sentencing you. General deterrence, denunciation, just punishment, are the principal sentencing factors for offences such as yours. Gross negligence on the roads too often kills and seriously injures innocent road users. It is vital that others are reminded that serious consequences await those who behave or drive in the way you did.
Would you stand up, please? On the one charge of negligently cause serious injury you are convicted and sentenced to be imprisoned for four years. Having regard to your prospects of rehabilitation and the fact that this is your first time in custody, I order that you serve two years of that sentence before being eligible for parole. I declare 10 days ‑ ‑ ‑
MS PARKES: Yes, Your Honour.
HIS HONOUR: I declare 10 days, not including today, of that sentence as already been served by way of pre-sentence detention. I order that any licence you hold be cancelled and you are disqualified from obtaining such a licence for four years from today's date. I also order pursuant to s89(c)(i) of the Sentencing Act that it be recorded that this offence was committed under the influence of alcohol which contributed to the offending.
Are there any other orders required?
MS PARKES: Six triple A.
HIS HONOUR: Six triple A, yes - but for your plea of guilty, I would have imposed a head sentence of seven years with a non-parole period of five.
MR CAMERON: Your Honour, I had calculated PSD at 11 days rather than 10, not including today.
HIS HONOUR: Well, you tell me what it is. I don't know. Well, okay - I declare 11 days. I'll vacate the 10 and make it 11 already served by way of pre-sentence detention. All right, you can remove Mr Tuliau. I'll stand down till 11 o'clock.