DPP v Woldesilassie [2017] VCC 1332

60 km/hour. The bitumen road was in good condition. There is a designated pedestrian crossing that is controlled by traffic lights. At the time of the collision it was dark and it was raining. However, the traffic lights were operating and the intersection was well lit by street lights.

9. Earlier that day, Ms DiGeorgio had been picked up from the Sunshine Plaza by her good friend, Ms Dimich. They had then travelled together to visit friends who lived in McIntyre Road. There, they enjoyed coffee, cooking and talking with their friends. They left that house at around 7 pm, walking together to the eastern side of McIntyre Road.
10. At the intersection, they waited for the lights to change and then began to cross at the pedestrian crossing. You approached the intersection in the Ford utility, travelling in the far left hand lane of McIntyre Road at a speed of approximately 45 kph. CCTV captures other vehicles travelling in the same direction as you, slowing down to stop for the red traffic light. However, your speed did not alter as you continued to pass those vehicles.
11. Ms Dimich and Ms DiGeorgio had crossed three lanes as you approached them. Ms Dimich was walking on the left side of Ms DiGeorgio when they were struck by you. Both women were thrown 12.6 m from the point of impact. You stopped the Ford utility within the intersection in the northbound lane. Other bystanders stopped and assisted at the scene before emergency services arrived. However, you did not get out of your vehicle. A witness at the scene says you appeared to be in shock.
12. At the time of the collision, you were 40 years of age and held a full Victorian driver's license. The Ford utility you had borrowed from a friend was tested and found to be in roadworthy condition. You underwent a preliminary breath test at the scene which did not indicate the presence of alcohol.
13. When interviewed by police with the assistance of an interpreter at 11.24 pm that night, you said you did not see the two women crossing the road. You initially said the light was yellow but later in the interview said it was green. You said that as soon as you realised you had hit the women, you immediately braked.
14. You said you were in shock from the collision.
15. You also told police that you had been on medication for seven months before the collision for depression and stress but had ceased taking the medication four days earlier. You told investigators you had experienced difficulty sleeping over the proceeding days. You said you went to bed at 8 pm the night before the accident, waking at 5 am to go to church. On your return home, you went to sleep from 11 am until you woke at 6 pm, then walked to a nearby café for coffee. You had borrowed the Ford utility from a friend and you were driving to visit another friend in Truganina.
16. You told police you became unconscious from hitting your head on the steering wheel. However, you had no facial injuries and you were conscious when you were spoken to by witnesses at the scene.

1. The offence of dangerous driving causing death or serious injury contrary to s.319 of the Act was considered by the High Court in King v The Queen [2012] HCA 24; [2012] 245 CLR 588, where the majority stated at [47]:

"There is no doubt that s.319 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, may attract considerably less condemnation than others. The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s.319. That variety must be reflected in the sentences which are imposed."

1. The need to reflect the variations in the moral culpability of the person responsible was also emphasised by the Court of Appeal in Stephens v The Queen [2016] VSCA 121, where the Court stated at paragraphs [20]-[21]:

"Driving will be dangerous where there is 'some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively potentially dangerous to others' .... A Court's assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.

Dangerous driving thus encompasses a very wide range of conduct. But it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment. That statement of principle was qualified in Director of Public Prosecutions v Oates, by noting, that any sentence which is imposed must take account of variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence, except where the offender's levels of moral culpability is low."

1. On your behalf, Mr Gibson submitted that your moral culpability for the offending was at the lower end. In support of that submission, Mr Gibson said your culpability principally arose due to inattention which he submitted should be viewed in the context of a history of depression, withdrawal from medication and irregular sleep patterns. He noted that your speed was within the applicable limit and there was an absence of aggravating features found in other cases of dangerous driving such as alcohol or drug intoxication, erratic driving or sleep deprivation.
2. Mr Gibson accepted that your failure to get out of the car following the collision was an aggravating feature of the offending but noted the observations of witnesses that you appeared to be in shock.
3. I accept that many of the aggravating features that are sometimes associated with dangerous driving offences, such as excessive speed or drug and alcohol were not present here. However, as stated in Stephens, both the degree of dangerousness and the moral culpability in any particular case falls to be assessed by a reference to the actual conduct and the circumstances of the specific case, including the circumstances of the offender.
4. I consider this to be a serious example of a failure to pay attention on the road in dark, wet conditions as you approached a traffic controlled intersection. The intersection was well lit and the condition of the road was good.
5. According to a reconstruction expert, Detective Sergeant (Dr) Janelle Mehegan, you failed to slow and stop at the intersection despite the amber traffic signal being displayed for 13.5 seconds and the red traffic signal being displayed for 9.5 seconds before entering the intersection.
6. Based on the Ford Utility travelling at a speed of 45 kph, Dr Mehegan calculates you travelled 168 metres from the point of time the lights changed to yellow and

118 metres from the time they turned red. There is no foundation to the various statements you made to investigators that the light was either yellow, as stated initially, or green as you approached the intersection.

7. This was not a case of a momentary loss of concentration. Almost inexplicably, you continued to drive at a steady speed of 45 km/hour for over 100 metres along a well-illuminated road towards changing traffic lights whilst other vehicles in the adjacent lane ahead of you slowed to stop.
8. Whilst I accept there are factors that are relevant to the context of your driving, including having recently ceased medication for depression, I cannot categorise your level of moral culpability for your dangerous driving as low. The extended period over which you failed to keep a proper lookout and to attend to the road ahead of you in the prevailing conditions is what constitutes the most serious aspect of your conduct.
9. The manner of your driving on 18 September 2016 was a significant departure from the standard of care and attention required of a reasonable driver. It created an appreciable risk to members of the public in the vicinity, a risk that was tragically realised with the death of Ms Dimich and the serious injuries suffered by Ms DiGeorgio.
10. It is an aggravating feature of the offending that you remained in your car after the collision despite other bystanders stopping to assist until emergency services arrived. This is only explained by you being in shock.
11. The prosecutor, Mr Grant, submits that your moral culpability sits at the higher end of the low range. I accept that submission.

1. The impact of your dangerous driving on each to the victims, their families and loved ones has been profound.
2. It is clear from reading the victim impact statements that both Ms Dimich and Ms DiGeorgio were independent, full of life and enjoyed the company of friends and the love of close family.
3. Mary Ann Buttergieg is the daughter of Ms Dimich. Her victim impact statement clearly articulates the shock and anguish she has suffered as a result of the sudden loss of her mother. She speaks of the grief associated with no longer doing the things she planned to do with her mother and the anguish of not having her mother around to watch her great-grandchildren grow and her grandchildren marry.
4. The victim impact statement of Mary DiGeorgio outlines the impact of her significant physical injury: the loss of independence, dignity and a social life. The psychological impact has been equally profound. She now suffers from depression, night terrors, flashbacks, grief, guilt and frustration. She has developed vertigo and requires further periods of intensive rehabilitation following her knee surgery. She is acutely conscious of the burden she feels she is placing on her daughters, a heavy toll for one previously so independent.
5. The victim impact statements of her daughters, Diane DiGeorgio, Joanne Welsh and Rita Crinach, are moving reminders of the far-reaching consequences of offending of this nature. They are each, in different ways, victims of your dangerous driving.

1. You were born in a small village in Ethiopia on 1 October 1975. You have two younger siblings who live in Ethiopia but with whom you have lost contact. All other siblings are deceased. Sadly, your parents both died as a result of contracting AIDS/HIV; your father dying when you were 17 and your mother when you were 20 years of age.
2. At the age of 17 you began working as a long distance truck driver in Ethiopia, being away from home for days on end. You later returned to school to complete the equivalent of Year 12. You then resumed your regular work as a truck driver before coming to Australia in 2014.
3. You married your first wife in Ethiopia approximately 15 years ago, which whom you have three children, aged 16, 12 and 10 years. You were married for ten years then separated due to the strain on that marriage of your long absences through work.
4. In Ethiopia you met an Eritrean woman who had Australian citizenship and who sponsored you to come to Australia three years ago. You married in 2014. However, that relationship ended after 15 months due to religious difference between the two of you. You now have regular telephone contact with your ex-wife and your three children, with whom you hope to reconcile.
5. You were assessed for the purposes of the plea by clinical and forensic psychologist, Mr Jeffrey Cummins via video conference on 9 June 2017. The assessment was undertaken with the assistance of an Oromo interpreter. In his report dated 22 June 2017, Mr Cummins refers to medical file notes, recording occasions where you attended at St Vincent's emergency department on 25 October 2015 and 3 February 2016 for depression and were prescribed Zoloft, an antidepressant. It is reported you attempted suicide in January 2016.
6. On 25 October 2015, the records indicate you were diagnosed with an adjustment disorder (unspecified). On 13 April 2016, you were again prescribed Zoloft by Dr McKay at St Vincent's Hospital. You told Mr Cummins the repeat prescriptions for the antidepressant ran out four days prior to the collision, at which time you ceased taking the medication. You also told Mr Cummins your sleep at the time was disturbed.
7. Unfortunately, I have found the report of Mr Cummins of limited assistance. Beyond his observations, he makes no psychological diagnosis other than noting that you "presented as being mildly anxious and at least moderately depressed." Mr Cummins' generalised opinion is that your "general mental health, including daily negative ruminative thinking, concentration difficulties and the consequences of the recent cessation of medication at the time of the collision may have been a significant or even a primary cause of him failing to stop at the red light."
8. Mr Cummins says you appeared to take responsibility for your offending, stating however, that you appeared to be in a state of relative shock in terms of how you could explain your offending to yourself and to others. Although you reported suicidal thoughts upon being incarcerated, you told Mr Cummins you no longer feel suicidal, but you report continuing to see a psychiatric nurse in custody.
9. In his conclusion, Mr Cummins reports that you continue to feel isolated and depressed whilst on remand but that you report no longer experiencing acute mental health symptoms. In his opinion, your mental health state in custody will depend on the outcome of your application for a humanitarian visa, noting you fear persecution if you are to be deported to Ethiopia.

1. In sentencing you for dangerous driving, general deterrence, denunciation and just punishment are all highly relevant sentencing considerations. The sentence I impose must signal to all road users that dangerous driving that places others at real risk of death or serious injury will result in an immediate imprisonment term, particularly where the moral culpability for the offending is not regarded as low.
2. There are, however, other matters of relevance in mitigation of your sentence. Importantly, you pleaded guilty to the offences at an early opportunity. In doing so you saved the need for witnesses, including Ms DiGeorgio, from having to give evidence at a trial. Your plea has also saved the community the cost and expense associated with a criminal trial. By your plea, you have acknowledged your wrongdoing and expressed remorse. You are entitled to a sentencing discount on the basis of your early plea.
3. You have no prior criminal history and are to be sentenced as a person of otherwise good character. I have read and taken into account the character references provided on your behalf. In his reference dated 8 December 2016, Mr Dinza, the president of the south-eastern region Melbourne Oromo Community Association speaks of you as a man who is loyal and respectful to the well-being of others, one who is well-regarded by the community of a person of integrity and honesty. He expresses shock at your involvement in this tragic case.
4. A reference from the Ethiopian Evangelical Church, dated 25 August 2017, refers to you as faithful, loyal and respectful despite struggling in the community as a single man on no income, noting the psychological and emotional pressure you were under.
5. Taking into account your previous good character and the absence of many of the aggravating features often associated with dangerous driving, I find that your prospects for rehabilitation are good, noting your proactive engagement in further education and training since being remanded. Combined with your indications of remorse, I am satisfied specific deterrence has less importance in the sentence I impose.
6. Mr Gibson, appearing on your behalf, accepts that the conclusions of

Mr Cummins falls short of cogent evidence upon which I could find your moral culpability for the offending is reduced by the application of the principles in Verdins case. I accept, however, that it is relevant in sentencing you to have regard to your pre-existing depression and the fact you had ceased taking anti-depressant medication in the days prior to 18 September as being relevant to the context of your offending.

7. The prosecution accept, as do I, that your uncertain immigration status will be an additional burden of imprisonment. No issue was taken by the prosecution with the characterisation of your status as a member of a group - the Oromo community - that is persecuted in Ethiopia. You have reported that before leaving Ethiopia, the precise date being uncertain, you were arrested near the Kenyan border, imprisoned and subject to torture by being beaten with a stick over 15 days.
8. Given the sentence I am to impose, the visa of a person who fails the character test under the Migration Act (Cth) must be cancelled unless the Minister exercises a discretion to revoke the cancellation decision. The fact that you are at risk of deportation to Ethiopia means that the imprisonment term I now impose will carry with it the uncertainty of not knowing how the Minister will exercise this discretion. I accept this uncertainty will be a significant burden for you, particularly in the context of your pre-existing depression and isolation from family.
9. On your behalf, Mr Gibson submitted that having regard to the factors in mitigation, an appropriate sentencing disposition is imprisonment combined with a community correction order. However, in my view, a sentence of no more than 12 months' imprisonment would not reflect the objective seriousness of the offence or take into account the need for appropriate cumulation. In making orders for cumulation, however, I must also ensure that the total effective sentence is proportionate to your overall criminality.
10. Having regard to the circumstances of your offending, your culpability and the matters raised in mitigation on your behalf, I sentence you as follows:
11. On Charge 1, being the offence of dangerous driving causing death, you are convicted and sentenced to three years', six months' imprisonment.
12. On Charge 2, being the offence of dangerous driving causing serious injury, you are convicted and sentenced to two years' imprisonment with 12 months of the sentence imposed on Charge 2 to be cumulative upon the sentence imposed on Charge 1.
13. This gives a total effective sentence of four years', six months' imprisonment. I direct that you must serve three years' imprisonment before being eligible for parole.
14. Pursuant to s.18 of the Sentencing Act, I declare 358 days to be reckoned as already served under the sentence imposed.
15. Pursuant to s.89 of the Sentencing Act, I order that your license be cancelled and you are disqualified from obtaining a license for a period of two years on Charges 1 and 2.
16. Pursuant to s.6AAA of the Sentencing Act, I indicate that but your plea of guilty, you would have been sentenced to period of five years' and nine months' imprisonment with a non-parole period of three years, eight months.
17. Finally, the prosecution made application pursuant to s.464ZF of the Crimes Act for the taking of a forensic sample, arguing the order was justified having regard to the seriousness of the offence and the public interest in expanding the database available for the detection of crime generally. I have not granted that application as I am not satisfied the criteria are met. Having regard to your absence of priors, your previous good character or being satisfied that the circumstances of the offending in your case justified the making of the order.
18. Are there any questions in relation to the sentence imposed?
19. COUNSEL: No, Your Honour.
20. HER HONOUR: No. Thank you. Thank you, counsel. I will adjourn.