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." OBJECTIVE SERIOUS/MORAL CULPABILITY 1. On the issue of moral culpability in R v Khatter [2000] NSWCCA 32 Simpson J stated at para 31; "Offences under S 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different incidences of the offences and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability." 1. In R v Gardiner [2004] NSWCCA 365 Smart AJ (with whom Spigelman CJ and Grove J agreed) state at para 41; "In determining the degree of moral culpability regard is had to all the circumstances. On occasions it is the combination of a number of circumstances which leads to the conclusion that there is a high degree of moral culpability. It is erroneous to take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability". 1. There are a number of aggravating factors indicative of typical offences referred in the guideline judgment of R v White [2002] 33 NSWLR 202 that relate to moral culpability. However, as was commented in R v Errington [2005] 147 A Crim R 553 those aggravating factors were not meant to act as a checklist but as a guide. Accordingly they remain illustrative not definitive. 2. Looking at the photographs of the Offender's van at the collision scene I am satisfied that from that slightly elevated position his view of the road would not have been obstructed in any way. He would have been able to see over the Holden sedan that was in front of him. The driver of that vehicle, Mr Sheppard Granger, believed that the Offender was travelling too close to the rear of his vehicle before attempting to overtake. 3. At the time the Offender was living in Kanahooka which is only a short distance away from the collision site. It is difficult to accept any suggestion that he thought there were two lanes for southbound traffic. Of course, if that were true, there would have been no need for him to drive up so close to the rear of the car in front of him. If he was having a "brain fart" as claimed and was confused about the road's lane configuration then surely the only rational inference would be his affectation by drugs. As Dr Pearl said, there was some impairment of his driving ability due to the methylamphetamine. 4. He brought his vehicle from its correct side of the road onto the incorrect side of the road and head-on into a collision with the victim's vehicle. Where such a manoeuvre occurs the potential for devastating injury and/or loss of life is extreme. 5. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Perhaps it might be said that one of the most significant obligations is that all drivers must keep their vehicle on the correct side of the road owing to the potential of devastating and often fatal consequences. 6. The frequently recurring case of innocent persons being either seriously injured or losing their lives is invariably the result of a driver causing his car to go onto its incorrect side of the road. To describe such occurrences as unfortunate accidents is totally inappropriate. They constitute nothing less than serious criminal conduct. 7. Accordingly, when assessing the Offender's dangerous driving in deliberately moving his vehicle to its incorrect side of the road and head-on into the approaching vehicle which had absolutely nowhere to go, I am satisfied that he has abandoned his responsibility to other users of the roadway and therefore his moral culpability is high. 8. I have received and considered Victim Impact Statements from Mr McNamara and Ms Sparks. Indeed both statements were read to the Court. The impact of the crime upon Ms Sparks has been truly devastating. The account of the impact upon her is detailed. I will not repeat it here. However, she did state as follows; "My womb had catastrophically ruptured upon impact. The surgeons had to remove all the surrounding organs to clear out the remains of my womb and my body was stitched back up from pelvis to chest. I have lost my daughter, my womanhood and my chance to ever become a mother naturally." 1. She also recalled that when a doctor was reciting her list of injuries to a nurse he referred to "the loss of my 32 week foetus". She said; "I remember the anger at those words as she was so much more than that to so many people and to me she was my angel, my ultimate life blessing, the first of many we had hoped..." 1. The seriousness of injury to a surviving victim is relevant to the Court's consideration of the objective gravity of the offence of dangerous driving causing grievous bodily harm. Of course, the seriousness of injuries may come in many different forms. For example, persons may suffer a brain injury that may incapacitate them for the rest of their lives or injuries that may confine them to a wheelchair. The fact that Ms Sparks lost her unborn child is a matter that the Court can have regard to along with Ms Sparks other injuries in assessing the grievous bodily harm occasioned to her. Every case must be assessed on its own merits and I am satisfied that in Ms Sparks' case the seriousness of her injuries fall at the very top end of the range. 2. Of course it was not possible for the Offender to be charged with dangerous driving causing death as the law at this stage does not recognise the death of an unborn child in these circumstances. 3. I would be surprised if any member of the community would be able to comprehend the sheer inadequacy of a maximum penalty of seven years for a criminal offence that involved extinguishing the life of an infant. Lest there be any doubt about my use of the phrase "life of an infant", one only has to look at the photograph of Ms Sparks in the hospital bed looking down at her perfectly formed, although dead, baby daughter in her arms. 4. However, the Court must work within the parameters set by the legislature. SUBJECTIVE CIRCUMSTANCES 1. The Offender is now 42 years of age. There is only one, what might be termed, minor criminal conviction dealt with by way of fine back in 2007. The Court has been provided today with an update of that record which shows that in 2012 he was dealt with for resisting an officer in execution of his duty and a charge of intimidation and that he was discharged conditionally under S32 of the Mental Health Provisions. That matter I only regard as relevant because Mr Whitby, who appears on behalf of the Offender, has provided a report that was prepared in relation to those proceedings and I will refer to that report shortly. 2. There are matters on his motor traffic record but it could not be described as a bad driving record. He has worked on a full-time basis as a night supervisor for the past 14 years for BHP Billiton at the Dendrobium mine. Exhibit 4 is a document dated 24 September 2014 under the hand of Mr Malcolm Waterfall, Manager of Mining Engineering, confirming the extreme competency he displays in his work environment. He was described as reliable, conscientious and unflappable. 3. He has four children from a previous marriage that ended two years ago. He informed Ms Gutjahr, Community Corrections Officer (PSR Exhibit B) that following the breakdown of that relationship he commenced binge drinking as a coping mechanism. He reported that he also used illicit substances on a recreational basis between the ages of 20 and 25 noting that he also resumed his drug use two years ago. He claimed to have used illicit substances the night prior to the offence. 4. He has also attended some sessions with a psychologist following his marriage breakdown. Exhibit 1 is a report of Ms Branka Veleski, Consultant Psychologist, confirming that the Offender had attended her service since June 2012. He was apparently treated for depression. 5. Exhibit 6 is a document under the hand of Dr Tan Ahmed, Consultant Psychiatrist. It is dated 6 November 2012. As earlier indicated I was advised that this report was prepared for his court appearances back in December 2012. Dr Ahmed in that report indicated that because of his marriage breakdown he was experiencing ongoing difficulties. When attempting to cope with those difficulties he was prone to suffering bouts of depressed mood and irritability. He ultimately diagnosed Mr Silvestri at that time as satisfying the criteria for a major depression. He commented that he was prone to self‑medicating with alcohol. 6. The contents of that report were obviously crucial to the Local Court's decision to discharge the Offender under S 32. 7. Referring back now to the report of Ms Veleski she has noted that since the commission of the present offence he has presented with symptoms consistent of post trauma. Ms Veleski noted the Offender's progress was deteriorating and he was experiencing a relapse of depressive symptoms. She stated; 8. "Mr Silvestri has been provided with cognitive behavioural therapy techniques to assist in managing his current symptoms as well as to formulate a treatment plan to accompany his anti-depressant medication...to date Mr Silvestri has consistently made encouraging progress with regard to managing his symptoms of depression and anxiety. Mr Silvestri is maintaining a stable mood, his sleep has improved, he is maintaining a healthy life balance and continues to function adequately in the workplace...he has consistently been attending therapy on a monthly basis." 9. He has been in another relationship for the past 18 months. He currently resides with his parents along with his partner and her daughter. 10. Exhibit 2 is a letter to the Court under the hand of Ms Danielle Fletcher, the Offender's sister. She says she has enjoyed a very close relationship with the Offender. She said; "He is deeply saddened and deeply regrets the accident. He has told me on many occasions that if he could change what happened he would." 1. She also stated; "I constantly hear and see the sorrow on his face and in his voice. He would do anything to change what occurred on that tragic day. He has told me that he is reminded everyday of what happened through flashbacks of driving the car, even getting into a car and seeing his own children. He said it sickens him that a life has been taken away in this way." 1. She concluded saying, "I know that he is filled with remorse and self-loathing over this incident." 2. Exhibit 7 is a bundle of documents. Each of those documents attests to what the writers refer to as his prior good character, to his good work record, to his devotion to his family, in particular his children and to the considerable remorse he has indicated to many of those persons since the commission of the present offences. Those documents also refer to the considerable impact on the Offender himself concerning the realisation of a loss of life of Ms Sparks' child. Those documents also refer to his having suffered depression in the past and that there has been an exacerbation of those symptoms since the present offence. 3. From my consideration of that material I am satisfied that he is genuinely remorseful and also that he has good prospects of rehabilitation. It should be said that from my consideration of this material I am satisfied that he does come before the Court as a person of prior good character. However, owing to the class of offence, in my view, this factor is usually of limited significance. PLEA 1. The Offender is entitled to have his pleas of guilty taken into account in mitigation of penalty. The pleas were entered in the Local Court. Accordingly they are pleas at the earliest opportunity and ordinarily, in the exercise of the Court's sentencing discretion, would attract a discount of about 25% for the utilitarian benefit. 2. The benefit of the pleas in respect of the charge involving Mr McNamara and that involving Mr Sparks will be reflected by a discount of about 25%. In respect of the plea involving Ms Sparks, in the exercise of my discretion, that benefit will be reflected by a discount of about 20%. To attribute any greater discount would have the effect of reducing the sentence to be imposed to a level below that which will be required to accurately reflect my assessment of the objective gravity of the offending conduct. 3. I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence must be a very significant factor on sentence in respect of offences of this type. The community needs the message delivered loud and clear that those responsible for criminal conduct on our roads that devastate the lives of so many families should expect stern punishment. Sentences must be seen to have a reasonable proportionality to the objective circumstances of the crimes and strong subjective circumstances must not lead to inadequate weight being given to those objective circumstances. 4. In R v Janceski [2005] NSWCCA 228 at para 33 the principle was reaffirmed that where a court is dealing with one action by the offender that causes a number of people to be injured and separate charges laid, separate sentences should usually be fixed which are made partly concurrent and partly cumulative. Each sentence should be appropriate to the existence of only one victim and the aggregate of sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be overlap in the accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. 5. Owing to the structure of the proposed sentences, fixed terms of imprisonment will be imposed in respect of the offences involving Mr McNamara and Mr Sparks. That will involve partial accumulation but owing to the proposed structure non parole periods will not be specified. The sentence involving Ms. Sparks' will be cumulative. Accordingly I will make a finding of special circumstances and vary the statutory ratio. 6. Mr Silvestri would you mind standing. Having been convicted of these offences in respect of count 1, that is in respect of the injuries to Mr McNamara, I sentence you to be imprisoned for a fixed term of two years to date from 1 October 2014 and to expire on 30 September 2016. 7. In respect of count 2, the injuries to Mr Sparks, I sentence you to a fixed term of imprisonment of two years to date from 1 October 2015 and to expire on 30 September 2017. 8. In respect of count 3, the injuries to Mrs Sparks, I sentence you 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, I sentence you to an additional term of two years to expire on 30 September 2022. 9. That is a total head sentence of eight years with an effective non-parole period of six years. You will be become eligible for release to parole on 30 September 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2015