R v Silvestri [2014] NSWDC 369

District Court New South Wales

Medium Neutral Citation: R v Silvestri [2014] NSWDC 369 Hearing dates: 22 October 2014 Decision date: 22 October 2014 Jurisdiction: Criminal Before: Conlon DCJ Decision: Count 1, sentenced to a fixed term of two years imprisonment to date from 1 October 2014 and to expire on 30 September 2016. Count 2, sentenced to a fixed term of imprisonment of two years to date from 1 October 2015 and to expire on 30 September 2017. Count 3, sentenced to a period of a non-parole period of three years to date from 1 October 2017 and to expire on 30 September 2020. In respect of that offence, sentenced to an additional term of two years to expire on 30 September 2022. Catchwords: Dangerous driving causing grievous bodily harm Category: Sentence Parties: Regina (Crown) Marco Paulo Silvestri (Offender) Representation: Counsel:

Solicitors: File Number(s): 2014/00070760

Judgment 1. HIS HONOUR: The Offender Marco Paulo Silvestri appears for sentence following his pleas of guilty to three charges of dangerous driving causing grievous bodily harm contrary to S 52A(3)(c) and carrying a maximum penalty of seven years imprisonment. He has requested that one further matter be taken into account on a Form One Schedule. 2. The Crown bundle of documents contains a detailed statement of facts and my summary of those facts is as follows; at about 6.50pm on Monday 30 September 2013 the Offender was driving a white Mercedes Benz Vito van in a southerly direction on the Princes Highway at Dapto. At the same time Mr Timothy McNamara was driving his Honda sedan in a northerly direction on the Princes Highway. His sister, Ms Jacqueline Sparks, was seated in the front passenger's seat and his brother, Mr Jonathan Sparks, was in the rear passenger's seat directly behind the front passenger's seat. 3. With both vehicles on Mullett Creek Bridge the Offender, who was travelling close to the rear of a Holden sedan driven by Mr Sheppard Granger, attempted an overtaking manoeuvre. He brought his vehicle onto the incorrect side of the road and directly into the path of Mr McNamara who immediately applied his brakes. He collided head-on with Mr McNamara's Honda. The Honda was pushed backwards and the Offender's van rotated clockwise coming to rest at an angle across the northbound lane. The point of impact was wholly within the northbound lane, that is, on the Offender's incorrect side of the road. 4. Emergency services were contacted and arrived a short time later. The Offender and a number of other drivers/witnesses had gone to the aid of the injured persons in the Honda. Ms Sparks, who was about 32 weeks pregnant, was eventually extricated from the front seat by emergency services and airlifted to Liverpool Hospital. The driver Mr McNamara and rear passenger Mr Sparks were also extricated and conveyed to the Wollongong Hospital. 5. Police attended the scene. Senior Constable Avnell asked the Offender what happened and he said "I had a brain fart and thought it was two lanes so I went to overtake". 6. Prior to the arrival of emergency services the Offender said to Mr Sheppard Granger; "I thought it was double lanes". Another witness, Ms Bayliss heard the Offender say; "I don't know what I was thinking. I thought it was a double lane road". Mr Sparks heard the Offender say "I thought I could overtake. I didn't see you, so sorry". Mr Marsland heard the Offender say; "I thought both lanes were heading that way". 7. At the time of the crash the only vehicle in front of the Offender was the Holden sedan. That vehicle is lower in height compared to the Offender's Mercedes Vito van. Heading in a southerly direction leading up to Mullett Creek there is an open view of at least 500 metres. The Mullett Creek Bridge is well lit and at the northern end of the bridge, as you face in a southerly direction, there is an open view for at least 200 metres. The weather was fine, the road was dry and there was clear visibility. The applicable speed limit was 80 kilometres an hour. 8. The Offender also sustained a number of injuries. At the scene a roadside breath test indicated an alcohol consumption of 0.019. He was conveyed by ambulance to Wollongong Hospital. He suffered a broken right wrist, two broken ribs, torn biceps, concussion, cuts, bruising and abrasions. 9. A blood sample was taken at the hospital. Later analysis returned a negative result for alcohol. There was present amphetamine less than 0.02 milligrams per litre and methylamphetamine 0.18 milligrams per litre. 10. Dr Judith Pearl, a forensic pharmacologist, prepared a report in relation to the Offender's impairment. She is of the opinion that the Offender was under the influence of methyl amphetamine to the extent that there was some impairment of driving ability due to the methyl amphetamine which would have been at least a factor in the actions of the Offender. 11. On 27 February 2014 the Offender supplied a version of the collision through his solicitor. It was advised the Offender did not wish to be interviewed in respect of the matter. In para 3 of that version he stated; 12. "Immediately prior to the collision I was driving south in my correct lane at a speed of about 80 kilometres per hour following a light coloured dual cab utility. I have no memory of how this collision occurred." 13. As earlier mentioned Mr McNamara and Mr Sparks were taken to Wollongong Hospital. Mr McNamara suffered a right clavicle fracture and multiple left side rib fractures with associated pulmonary contusions. He had swelling to both ankles and right foot consistent with fractures to his left malleolus and right calcaneus. He had significant abrasions and bruising to his chest wall, abdomen and upper limbs. He was also amnesic to the incident which may be indicative of an element of brain injury or concussion. 14. Mr Sparks was intubated and ventilated (that is unconscious on a breathing machine). On 3 October 2013 he was airlifted to St George Hospital to undergo further medical treatment. He suffered multiple right rib fractures, contusion of the right lung, right haemothorax (that is bleeding into the right chest), laceration of the liver and fractures of the T12, the L1 and L2 vertebra of the spine. 15. At Liverpool Hospital Ms Sparks underwent emergency surgery. That involved a laparotomy, removal of the child from the womb, a subtotal hysterectomy, temporary closure with review in 24 hours and then full closure. Other injuries consisted of a ruptured uterus, a right ulna fracture, a fracture to the hip socket. She will experience long term effects including infertility. 16. When the child was removed it was intubated immediately. There were no signs of life, no heart rate and showed no response to ventilation. The estimated gestation period was between 32 to 34 weeks. 17. On 1 October 2013 police spoke to Dr Robert Guaram, the delivering doctor, who believed the cause of death was a result of the motor vehicle collision causing a presumed abruption/maceration of the placenta and foetal exsanguination. 18. Exhibit C is a report of Dr Robert Sidhwani, Ms Sparks' general practitioner. It sets out her ongoing medical problems. 19. Exhibit D is a report of Dr David Greening, obstetrician and gynaecologist. Ms Sparks is presently under his care and also that of Dr Swaraj an endocrinologist. Dr Greening stated that she has very low ovarian reserve which he said is almost definitely a consequence of the damage she suffered during the collision and subsequent surgery. He also stated; "We will continue to monitor her hormonal status and consider options for her fertility. I am fairly confident she will require IVF quickly and to make and freeze embryos as soon as possible irrespective of the future."