Regina v Vitasovic

1 THE COURT: On 14 July 2000 we granted leave to Anthony Vitasovic ("the applicant") to appeal against the severity of a sentence imposed on him on 15 October 1999 in the District Court at Penrith. We allowed the appeal and quashed the sentence imposed by the sentencing judge. In lieu thereof, we sentenced the appellant to a term of two years imprisonment with a non-parole period of twelve months. The sentence was expressed to commence on 15 October, 1999. The first date upon which the appellant will be eligible for release on parole is 14 October 2000. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act 1999 we directed the appellant's release at the end of the non-parole period. 2 We now give our reasons for making those orders. 3 The applicant pleaded guilty to one count of "dangerous driving occasioning grievous bodily harm" pursuant to s 52A(3) of the Crimes Act, 1900. This offence carries a maximum penalty of imprisonment for 7 years. On 15 October 1999 he was sentenced to a minimum term of 22½ months imprisonment to commence on 15 October 1999 and to expire on 30 August 2001. An additional term of 7½ months to date from 31 August 2001 was specified. 4 At around 7.30 pm on Friday 14 March 1999 the applicant was driving a Daewoo sedan which had been lent to him by a firm of smash repairers as a courtesy car. He stopped at a service station located on Vardys Road, Marayong where he made a telephone call. It appears that he had some dispute with the person to whom he was speaking. After completing his call the applicant got into the Daewoo sedan and pulled out of the service station quickly. He travelled along Vardys Road in an easterly direction for approximately 800 metres before the point of collision. The gradient of the road from the service station as one drives east (towards the intersection with Valediction Road) involves a rise. At this time Mrs Tina Wilson was driving a Holden Camira sedan south on Valediction Road. At the intersection of Valediction and Vardys Roads she commenced to make a right hand turn. She had three children in her vehicle, including her daughter Natalee, who was then aged eleven. Natalee was seated in the rear passenger seat on the driver's side. Mrs Wilson paused at the intersection looking to her left and right to ensure that the intersection was clear of traffic. Very shortly thereafter the Daewoo sedan driven by the applicant came over the crest at a speed which was assessed at 90 kilometres per hour. At this time Mrs Wilson's vehicle was within the confines of the intersection. The applicant applied the brakes on the Daewoo sedan abruptly causing the wheels to lock up and the vehicle to skid on the dry bitumen road for a distance which was estimated to be 33 metres. The two vehicles collided. There was severe impact damage and the child, Natalee, sustained significant injuries which required her admission to the intensive care unit at the Royal Alexandra Hospital for Children. 5 Natalee suffered severe diffuse brain injury, facial lacerations, a fractured femur, a fractured pelvis and abdominal injuries. She underwent surgery and there followed a period of prolonged intensive care and rehabilitation. The sentencing judge quoted the report of Dr O'Flaherty, staff specialist in rehabilitation at the Royal Alexandra Hospital for Children, of 23 March 1999 : "It is now two years since Natalee's traumatic brain injury and whilst some improvement is expected, it is very likely that she will remain with a severe degree of cognitive including behavioural impairment." 6 The applicant presented a strong subjective case on sentence. He was a twenty seven year old man with no criminal record and an impressive employment history. His parents are Croatian. They were living in Sydney at the time of the applicant's birth. While he was still a baby they decided to return to their homeland. Life did not prove easy for the family in Croatia and they returned to Australia when the applicant was aged fifteen. The applicant's schooling was disrupted by the move. He left school and commenced full-time employment around the age of sixteen. Thereafter he was in regular employment until the date of his sentencing. He had worked both as a labourer and a plasterer. In the three years prior to his sentencing, he had been employed by a firm named "City Rendering" as a plasterer. Throughout his working life the applicant had been accustomed to working six days a week. 7 The applicant's disrupted schooling and limited formal education had led him to feeling inadequate, particularly when in the company of women. His command of English is poor and he found it hard to express himself and often believed that he was misunderstood. Frustration over these difficulties led to him experiencing pronounced feelings of anger. He discussed these feelings with a friend, Monica Liebenow. She suggested that he consult Dr Ivor Zetler. The applicant took Ms Liebenow's advice and first saw Dr Zetler on 31 January 1997, more than two months before the accident. 8 A report from Dr Zetler was tendered on the applicant's behalf at the sentence hearing. In that report Dr Zetler set out his observations of the applicant over a series of consultations in the period between 31 January 1997 and March of 1997. At the initial consultation the applicant presented with feelings of anger and discomfort and embarrassment arising out of his poor command of English. Over succeeding sessions Dr Zetler observed that the applicant was becoming more relaxed. On 6 February 1997 Dr Zetler suggested that the applicant attend a course designed to foster self-esteem. The applicant returned a month later having enrolled in such a course. 9 On 17 March 1997 the applicant came to see Dr Zetler telling him of his involvement in the motor vehicle accident and complaining that he was unable to sleep. The applicant told Dr Zetler that prior to the accident, he had been in a bit of a fight over the telephone with a friend and that he had felt a bit upset as he had driven off however the emotion he described was not said to have been exceptional. 10 At a consultation on 19 May Dr Zetler observed the applicant to be very upset. He said that he had heard that Natalee had suffered severe injuries, including brain damage. He reported that he had cried all weekend and that he was unable to sleep and unable to think of anything else. Subsequent consultations in 1997 and 1998 showed the applicant's continuing concern over the injuries caused to the child. 11 Dr Zetler commented:- "Mr Vitasovic has had problems with control of his emotions in the past. His formative years have been marked by instability, insecurity and unhappiness. It is my opinion that considering his past, he has done well to be working full-time and making a contribution to society. … Anthony is essentially a good hearted, kind though shy person and I feel he has felt genuinely upset, remorseful and guilty about the consequences of the accident on the young child."

12 The applicant gave evidence before the sentencing judge. His Honour accepted that the applicant was remorseful. 13 Therese Becker gave evidence on the applicant's behalf at the sentence hearing. She described the applicant as feeling very sorry over the accident. She said: "he has the accident just in his head, he can see this happening in front of his eyes and he thinks about it" (p 14). She went on to describe the applicant in these terms: "I mean in my opinion is a very nice man, he's very caring about me, about other people, like his friends and - yeah." 14 The applicant's father gave evidence confirming that the applicant was a hard worker and noting that he had always treated his parents with respect. 15 The applicant was first issued with a driver's licence in New South Wales on 7 December 1990. On 7 March 1992 he was fined in respect of exceeding the speed limit by more than 30 kilometres, but not more than 45 kilometres, whilst driving a motor vehicle. A similar infringement was recorded on 31 December 1996. This was only three months prior to the subject offence. 16 A report by James Jaku, Probation and Parole Officer, stated:

"Mr Vitasovic expresses extreme remorse for his actions, fully accepting responsibility for his behaviour. … Mr Vitasovic impresses as a young man who has been seriously considering the gravity of his actions in relation to the offence". 17 In the course of his reasons for sentence the learned judge observed:- "This was not a case of momentary inattention or anything remotely resembling momentary inattention, it was a sustained course of dangerous driving, albeit over a distance of less than one kilometre. It had consequences for the young victim that I think can only be fairly described as catastrophic. There is, in my view, clearly a need for a sentence in this case which reflects considerations of both general and specific deterrence."

18 Mr Norrish QC (now Norrish DCJ) who appeared on behalf of the applicant, principally attacked the sentence upon the basis that his Honour erred in characterising this as a "sustained course of dangerous driving". Mr Norrish also submitted that his Honour erred in concluding, having regard to the antecedent background of this applicant, that it was a case which called for an element of specific deterrence. 19 Mr Norrish accepted that this was not a case involving momentary inattention or misjudgment of the exceptional class which might attract consideration of a non-custodial sentence. However, he submitted that the sentencing judge must be taken to have erred in his assessment of the objective gravity of the offence. The overall sentence of 2½ years was, so Mr Norrish submitted, consistent with a view that his Honour concluded that the facts of this case established the presence in a material degree of one or more aggravating features identified by the Chief Justice in Regina v Jurisic (1998) 45 NSWLR 209 at 231B-C. 20 His Honour emphasised on more than one occasion that the facts of this case established this to be a very serious instance of dangerous driving. It is necessary to review the factual material in some detail in order to detail with the challenge which Mr Norrish advanced. 21 Vardys Road travels in an east-west direction. It is an arterial road. There are two marked lanes for traffic heading in either direction. Aerial photographs suggest that the area surrounding the intersection of Vardys Road and Valediction Road is an industrial area. It is difficult to discern the gradient of Vardys Road as it approaches the intersection with Valediction Road from viewing the photographs. We were informed that there are no warning signs to indicate that the motorist is approaching an intersection. It would appear that although the section of Vardys Road, upon which the applicant was travelling, is subject to a 60 kilometre per hour speed limit, the flow of traffic was generally travelling well in excess of that speed. 22 Brendan Woodham was travelling on his motorbike on Vardys Road towards Blacktown and saw the applicant's Daewoo sedan pull quickly out of the service station exit onto Vardys Road. The applicant pulled out in front of Mr Woodham. Mr Woodham told police:- "I was riding slightly below 60 kilometres per hour, the white car was pulling away from me, not excessively quickly. There was other traffic going along Vardys quicker than me but the white car was going the quickest of the lot of them." (The reference to the white car is a reference to the Daewoo sedan driven by the applicant).

23 Paul Clements was driving his car east on Vardys Road towards the intersection with Valediction Road. He was travelling in the lane closest to the median strip. He observed a small white car overtake his vehicle at what he described as "very high speed" on the passenger side. At the time Mr Clements was travelling at a speed of about 80 kilometres per hour. He checked his speedo. The small white car was pulling away from his car at high speed. Mr Clements saw Mrs Wilson's white Holden in the process of making a turn. The Holden was already in the intersection as his car came over the crest towards the intersection. It was Mr Clements' observation that the driver of the small white car was going too fast to stop. 24 Mr Clements' wife, Karen, was seated in the front passenger seat of their vehicle. As they approached the intersection with Valediction Road she recalled thinking that the white Holden had plenty of time to make the turn before "we were on her". It was at this time that she became aware of the small white car coming up behind their vehicle travelling in the lane to the left of their vehicle. The white car drove past and hit the white Holden driven by Mrs Wilson. 25 As we have noted, the agreed facts were that the applicant's vehicle was travelling at approximately 90 kilometres per hour as it travelled over the crest on Vardys Road and approached the intersection. 26 In Jurisic the Chief Justice referred to the list of mitigating and aggravating factors identified by Lord Lane CJ in R v Boswell (1984) 3 All ER 353 and observed that these same considerations had been reflected in the judgments of this court. It was the presence or absence of the various mitigating and aggravating factors and their degree which would determine the appropriate penalty. The Chief Justice went on to list the following factors: "(i) Extent and nature of the injuries inflicted; (ii) number of people put at risk; (iii) degree of speed; (iv) degree of intoxication or of substance abuse; (v) erratic driving; (vi) competitive driving or showing off; (vii) length of the journey during which others were exposed to risk ; (viii) ignoring of warnings; (ix) escaping police pursuit."

27 After observing that a number of these factors were reflected in the definition of "circumstances of aggravation" for the purposes of s 52A(7) of the Crimes Act, the Chief Justice continued: "Paragraph (i) and paragraph (ii) focus on the occurrence; whereas paragraphs (iii) - (ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for the purpose of determining an appropriate sentence (231D)." …. "In my opinion this court should promulgate the following guidelines: (1) a non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment; (2) with a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn". (231E)

28 In the instant case Mr Norrish submitted that there was not "to a material degree any aggravating factor" other than the issue of speed. The evidence of speeding was said to be not such as to reflect an abandonment of responsibility for his conduct. There was absent in the instant case features such as alcohol, erratic driving, competitive driving or showing off, lengthy distance of driving in breach of the provisions of the Motor Traffic Act, the ignoring of warnings or escaping of police pursuit. Mr Norrish conceded that the driving reflected a longer than "momentary" lapse, but submitted that it reflected a "reckless error of judgment" in the circumstances of speeding towards the crest of a hill, rather than a considered course of dangerous driving. When one took into account the circumstance that the applicant was of good character, that he pleaded guilty and exhibited genuine remorse (in a case not occasioned by the fact that the victim was a close relative or friend) and that, despite the two prior speeding matters, his driving record was generally a good one then, even allowing for the flexibility to be applied in considering the "guideline" a sentence of 2½ years fell outside the permissible range. 29 We did not find this challenge an easy one to determine. As the Chief Justice observed in Jurisic consideration of whether the relevant aggravating factor manifests, in the circumstances of the case, an abandonment of responsibility for the driver's conduct involves an element of judgment upon which reasonable minds may differ. Further, as the Chief Justice explained in Regina v Mansour [1999] NSWCCA 180 two of the aggravating factors set out in Jurisic take up objective considerations in respect of which no question of abandonment of responsibility arises. Of those two objective factors the first in the instant case (the extent and nature of the injuries inflicted) is significant in the circumstances of this case. As the sentencing judge noted the injuries suffered by Natalee were catastrophic. Notwithstanding this consideration, which serves to explain his Honour's view that this was a most serious case of dangerous driving causing grievous bodily harm, we were persuaded his Honour erred in characterising the applicant's conduct as "a sustained course of dangerous driving". This seemed to us, with respect, significantly to overstate the extent of the dangerous driving demonstrated by the evidence. The course of driving from the point of leaving the service station to the point of collision was a relatively short one. The applicant was speeding. It was this which made his manner of driving dangerous. It is this driving and the serious injuries which resulted that requires the imposition of a sentence of full time imprisonment. This is not a case in which it is suggested that the applicant's speeding was associated with racing or weaving in and out of lanes of traffic or other erratic driving conduct. The road was a dual carriageway passing through an industrial area with the flow of traffic (notwithstanding the speed limit) apparently travelling safely at around 80 kilometres per hour, where the applicant had right of way. There is no basis for concluding (and the learned sentencing judge did not do so) that the applicant deliberately took the risk that, if another vehicle was placed such as Mrs Wilson's, he would not have enough room to avoid a collision. 30 Having determined that error had been demonstrated it became necessary for us to consider the matter of sentence afresh. We were of the view that an appropriate sentence, bearing in mind the observations of this court in Jurisic, was one of 2 years imprisonment. 31 We then considered the question of special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). 32 The applicant is a relatively young man who is facing his first gaol sentence. As a result of his somewhat disturbed early life he has psychological problems for which he had sought treatment prior to the commission of the offence. In his report Dr Zetler expressed some fears for the applicant's safety and well being as a prisoner within the general prison stream (given an episode in the past of sexual abuse to which he had been subject). The experience of imprisonment upon a relatively young man of past good character with the vulnerability described in Dr Zetler's report is likely to be particularly harsh. He has a creditable record of employment and is likely upon his release to make a productive contribution to the community. Inevitably he will require assistance in reintegrating into the community following imprisonment. We considered that these matters in combination constituted special circumstances justifying a departure from the proportion fixed by s 44(2) of the Act with respect to the length of the non-parole period. *****

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