Court Determines Sentence for Dangerous Driving
DPP v Di Fuccio [2022] VCC 949 (27 June 2022)
Di Fuccio pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury. The Court, in determining the appropriate sentencing, considered Di Fuccio's lack of criminal history, low moral culpability, and genuine remorse.
Facts:
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.
The collision occurred when a Toyota Landcruiser 4-wheel drive wagon driven by Di Fuccio and travelling north, crossed wholly into the southbound lane and struck a Toyota Corolla sedan head-on. The front-seat passenger in the Corolla died and the driver suffered life-threatening injuries. Di Fuccio suffered moderate injuries. Di Fuccio was 57 years old at the time of the collision, and he lived in Rhyll, Victoria.
He was the sole occupant of the Landcruiser. He underwent a preliminary breath test for alcohol and a preliminary oral fluid test for drugs. Both tests returned a negative result. He was conveyed to the Royal Melbourne Hospital for treatment of minor injuries following the collision.
Mary Baker was the front seat passenger of the Toyota Corolla. She suffered fatal injuries in the collision and died while being treated at the Alfred Hospital. Sarosh Samuel was the driver. 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, lost four teeth, suffered major internal bleeding, damage to his small and large intestines and soft tissue injuries to his knees and an injury to his hand.
Di Fuccio maintained that he was distracted by a bright light that caused him to veer over to the wrong side of the road, but could not elaborate further. The prosecution maintains that the conditions were such that they should not have contributed to the collision, however, the prosecution cannot rule out that Di Fuccio was, in fact, distracted by the sun. Di Fuccio accepts his r plea of guilty that his momentary inattention resulted in his driving being sufficiently dangerous in all the circumstances, resulting in the collision.
Issue:
Whether or not a Community Correction Order for a period of 3 years, with conviction, is an appropriate sentence for the offender.
Applicable law:
Crimes Act 1958 s 319(1) - provides that a person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
Sentencing Act 1991 s 6AAA - provides that in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence.
Sentencing Act 1991 s 48CA - provides that the court may determine that some or all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Sentencing Act 1991 s 89(2) - provides that the court must not specify a period of disqualification under subsection (1) that is—
(a) for an offence to which paragraph (d) of the definition of serious motor vehicle offence in section 87P applies, less than 18 months.
DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466 - where 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.
Worboyes v The Queen [2021] VSCA 169 - where 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.
Williams v The Queen [2018] VSCA 171 - held that 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.
Analysis:
None of the typical aggravating features of this offence applies in his case. Speed, intoxication, erratic driving or distraction by a mobile phone or other distractions are absent in this instance. Further, at the time he crossed the centre line, he was driving well below the speed limit.
His driving was not attended by any of the typical aggravating features; hiss culpability is entirely attributable to his 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 his offending, does fall towards the lower end of seriousness.
He indicated his 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 his 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. It is clear from the psychological reports tendered together with the reference material, that he has consistently articulated genuine remorse and contrition.
Conclusion:
Ida Di Fuccio, on Charge 1, dangerous driving causing death and Charge 2, dangerous driving causing serious injury, he is convicted and will be placed on a community correction order for a period of three years. He will be required to complete 300 hours of unpaid community work and he will be required to undergo treatment and assessment for his mental health conditions.
