Director of Public Prosecutions v Aboueid

[2022] VCC 205

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

CR 20-01509

DIRECTOR OF PUBLIC PROSECUTIONS

v

RIYAD ABOUEID

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2022
DATE OF SENTENCE:	23 February 2022
CASE MAY BE CITED AS:	DPP v ABOUEID
MEDIUM NEUTRAL CITATION:	[2022] VCC 205

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW – Sentencing.

Catchwords: Plea of guilty – Dangerous driving causing death – Degree of genuine remorse Victim not wearing seatbelt at the time of the collision – Delay – Youthful offender - COVID-19 pandemic.

Legislation Cited: Crimes Act 1958 s 319(1); Sentencing Act 1991 ss 6AAA, 89.

Cases Cited: DPP v Neethling (2009) 22 VR 466; R v Whyte (2002) 55 NSWLR 252; Worboyes v The Queen [2021] VSCA 169; Guseli v The Queen [2019] VSCA 29.

Sentence: Community correction order for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn (Plea) Ms C. Teague (Sentence)	Office of Public Prosecutions
For the Accused	Mr K. McDonald (Plea) Mr G. Balot (Sentence)	Balot Reilly Criminal Lawyers

HIS HONOUR:

Introduction

1Riyad Aboueid, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment. 

2You have no prior criminal history. 

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of the offending, you were 18 years of age, studying and living at home in Brunswick.  You were the holder of a probationary P1 driver licence. 

5You were an inexperienced driver, only having been licensed for six months.  You were driving a black‑coloured 2018 Mitsubishi Triton dual-cab utility, (registration AVF767). The vehicle was registered to Regal Waste Management Pty Ltd, a business owned by your father.  The vehicle was purchased on 28 August 2018, 13 days prior to the collision.

6The deceased, Rabyh Omar, was 38 years of age at the time of the collision.  He worked in a parts and scrap metal business and lived with his partner at a rural property on Feehans Road, Wildwood.  He is the father of four children to his ex-wife, and his partner was pregnant with his child.

7Mr Omar was the holder of a Victorian driver licence which was suspended at the time due to accumulated demerit points.  He was driving a white‑coloured Toyota Landcruiser (registration 1JF6UC).  The vehicle had a dual-cab utility, which had been constructed after manufacture by cutting the cabin behind the rear seats and fitting a flat tray to the rear chassis rails.  The vehicle was registered to Mr Omar.

8The collision occurred outside 800 Feehans Road in Wildwood. 

9Feehans Road is a single-lane bitumen road that runs into a general east-west direction.  The edge of the bitumen changes to a level grass shoulder with no gutter or gravel.  Vehicles are able to travel in either direction, however, they would be required to drive off the bitumen onto the grass shoulder in order to pass one another.

10800 Feehans Road is a rural property that has boundaries on Wildwood Road and Feehans Road with driveway access on either road.  The entry to the property is set back approximately 13 metres with a gravel crossover that meets the bitumen road.  Speed limit at the scene is 100 kilometres an hour.

11At the time of the collision, the road was in good condition.  The weather was fine and clear, and the road was dry.  It was dusk, and the sun was setting. 

12At about 4 pm on 10 September 2018, you picked up your friend Nathan Ku from his home in Wellington Street, Collingwood.  You went to McDonald’s Restaurant nearby on Victoria Parade. 

13At 5 pm, you left McDonalds and drove to Brunswick, where you picked up your younger cousin, Khalil.

14You drove to your uncle Mohamed's farm at 800 Feehans Road in Wildwood to drop Khalil home.  You were familiar with the farm and the surrounding roads, having been to the property on numerous occasions. 

15You arrived at the property shortly after 6 pm and dropped Khalil at the house.  You did not turn off your vehicle and had a brief conversation with your uncle and aunt out the front of the house for a few minutes before you and Mr Ku left.

16At approximately 6.18 pm, you drove out of the property and were intending to turn right onto Feehans Road to travel back to Brunswick.  You drove slowly onto the gravel cross over on the northern side of Feehans Road.  You looked left down Feehans Road and saw that the road was clear.  You then looked right down Feehans Road and observed Mr Omar's white Toyota Landcruiser driving toward you.  The vehicle had its headlights on.

17You looked left again and drove out onto Feehans Road.  Your vehicle collided with the passenger side of Mr Omar's vehicle as it drove across in front of you. 

18Mr Omar's vehicle was impacted just in front of the rear passenger side wheel arch.  The impact caused the vehicle to yaw and rotate anticlockwise before it tripped and rolled over onto the grass shoulder on the southern side of Feehans Road.

19Mr Omar was not wearing a seatbelt and was ejected from the vehicle through the open driver's side window.  The vehicle came to rest upside down on top of him causing multiple serious injuries. 

20Your vehicle continued travelling forward and turned left onto the grass shoulder on the southern side of Feehans Road.  The front of the vehicle sustained moderate damage, and all airbags in the vehicle were deployed.  You and Mr Ku immediately got out of the vehicle.  Mr Ku called 000. 

21Mr Ku had been looking at Facebook on his mobile phone at the time of the collision and did not witness the impact between the two vehicles.  He recalls that you said loudly, 'Oh, shit', he heard a bang, and the airbags went off.

22Police and paramedics attended the scene.  Members of the CFA and SES also attended the scene. 

23Mr Omar was located by police trapped underneath his vehicle.  They were unable to find any signs of life, and he died at the scene.  It is these facts that relate to Charge 1, dangerous driving causing death.

24You and Mr Ku did not suffer any injuries. 

25At about 8.20 pm, detectives from the Major Collision Investigation Unit (‘MCIU’) attended the scene and conducted an investigation into the collision. 

26A number of photographs were taken and video recorded walkthroughs of the scene were conducted using a GoPro camera.

27At 9.05 pm, Detective Sergeant Robert Hay, collision reconstruction expert attended the collision scene and conducted a reconstruction of the collision.  Detective Sergeant Hay made the following findings:

It is my opinion that the Toyota was travelling at a minimum speed of 73km/hr along Feehans Road, Wildwood, when it was struck by a Mitsubishi. The impact to the Toyota occurred just in front of the rear passenger side wheel arch. The Toyota has yawed and rotated in an anticlockwise direction before it tripped and rolled. The driver of the Toyota was not wearing his seatbelt and was ejected during the rollover, landing in front of the rolling Toyota. The driver was found deceased under the Toyota. At the time of the impact the Mitsubishi Triton was travelling at a minimum speed of 17 km/hr. I am unable to calculate a speed of the Toyota prior to the impact with the Mitsubishi as there was no evidence to base any speed calculation on.

28On 11 September 2018, an external post mortem examination was conducted by Dr Matthew Lynch at the Victorian Institute of Forensic Medicine.  Dr Lynch found that Mr Omar's death was caused by the injuries sustained as a result of the collision.  Dr Lynch provided the following opinion in relation to Mr Omar not wearing a seatbelt at the time of the collision:

All of the injuries I observed may have occurred as a result of Mr Omar's ejection from the vehicle in combination with the vehicle coming to rest on his body. Some of the injuries may have been sustained had he been restrained and remained within the cabin of his vehicle. The chest injuries (rib fractures and pneumothoraces) were most likely sustained as a result of the vehicle coming to rest on Mr Omar's body after his ejection. The possibility that at least some of the chest injuries could have been sustained had he been adequately restrained, whilst much less likely, is not absolutely excluded.

In summary, the constellation of critical injuries could be considered not unusual in the setting of the ejection of an unrestrained occupant of a motor vehicle following a collision, with subsequent crushing by the vehicle. In my view, had Mr Omar been adequately restrained by his seatbelt and thus remained in the cabin of his vehicle, in all likelihood, he would not have sustained the fatal injuries.

29On 19 October 2018, a mechanical inspection and road rests were conducted on your vehicle by Senior Constable Nick Brickley from Victoria Police Mechanical Investigation Unit.  He determined that there was no mechanical fault with the vehicle which could have caused or contributed to the collision.

30Senior Constable Brickley also carried out a partial mechanical examination of Mr Omar's vehicle to identify any modifications to the suspension/tyres and body of the vehicle.  He also examined the headlights and found as follows:

The passenger side headlight assembly and globe had broken from the impact. The globe filament was torn however the filament poles appeared 'burnt'. This occurs when the globe is illuminated and the halogen gas rapidly escapes (ie breaking the glass) overheating the filament and poles.

31You were arrested by police and taken to the Broadmeadows Police Station.

32At 9.03 pm, a blood sample was taken from you.  It was later analysed, and no alcohol or drugs were detected. 

33You were interviewed on 11 September 2018, and, amongst other things:

·        you stated ‘I said goodbye to my auntie and uncle, and then I proceeded to drive down our driveway. And then I - I went out - I came out of the driveway - - - and I came - came out of the driveway, I came to a stop, and I looked to the left, looked to the right, I saw him coming, I looked back to the left and then bam’;

·        when asked what you meant by “bam”, you stated “I didn't even get to - I - I didn't even get to see - like, see him, and just got hit’;

·        when asked about lighting at the time, you stated “Where it wasn’t dark at night, but it wasn’t daylight anymore’;

·        you stated “I just go down the driveway. That there was - I remember going up and then there's the first gate, so we opened the gate, and I creeped up, and then there's a few pot holes in the driveway, and I remember, I just - I slowly tried to avoid one - - -and then I looked for the cars, and then we got hit’;

·        you stated “It just - like, I looked to the left. remember specifically, like, looking to the left. Then I went right, and I saw him, I looked left, and then I just remember the bags and the – and the steam and --- Like, the airbags’;

·        you stated that you saw Mr Omar’s vehicle coming down Feehans Road;

·        when asked how far away Mr Omar was when you first saw his vehicle, you stated “I’d say just prior to the tree’;

·        when asked how far away the tree was, you stated: “The gateway, the driveway to the tree is about 25, 30 metres. Yep. 25, 30, I think. Maybe a bit more’;

·        you stated that you had been driving slowly down the driveway – “I think about 20”;

·        you stated that your foot was not on the accelerator when you drove onto the road;

·        when asked what you were thinking when you saw Mr Omar’s vehicle approaching, you stated “I thought I was going to slow down and - before, let him past and then make my turn’;

·        you stated “Well, that's all I can remember. I just remember I pulled up, I looked right, left, right - left, right, left and then - I can't remember. That's all I can recall’;

·        you stated that you could not remember saying “Oh shit” prior to the collision;

·        when it was put to you “And he hit you, you didn’t hit him. Is that what you’re saying?”, you stated “Nuh, not after you’ve said that. I honestly – that’s – like, that’s just how it’s replaying in my head. I’m trying to think of another detail but that’s all I can remember’;

·        when asked how many times you had driven out to your uncle’s farm, you stated “I couldn’t count’; and

·        you stated that you could not remember whether Mr Omar’s vehicle had its headlights on.

34On 8 May 2019, detectives from the MCIU re-attended the collision scene to locate the treed referred to by you in the Record of Interview.  Detective Senior Constable Brennan Eames-Mayer and Detective Leading Senior Constable Shane Miles conducted a number of measurements in order to determine the distance from the driveway of 800 Feehans Road to the tree.  They determined that the tree was 55.05 metres from the eastern side of the driveway when measured in a straight line.

35Senior Constable Brendan Eames-Mayer made the following observations:

After locating and inspecting the tree described by the accused in the Record of Interview I determined that it would not have prevented the accused from seeing the Toyota Landcruiser driving towards him. I further confirmed that at its closest point the tree was approximately 48.75 meters away from the driveway.

36The prosecution case is that you drove in a manner that was dangerous to the public by failing to keep a proper lookout and failing to safely wait until Mr Omar had driven past you before entering the roadway.  These failures occurred in circumstances where Mr Omar's vehicle would have been clearly visible to you being a minimum of 48.75 metres away when you first saw it.

Nature and gravity of the offending

37The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being.  The seriousness of the offence is also reflected by the maximum penalty set by Parliament being 10 years imprisonment.  However, it is also an offence that is capable of being committed in a wide variety of circumstances.

38In this instance, the dangerousness of your driving was particularised by the prosecution as failing to keep a proper lookout and failing to safely wait until Mr Omar had driven past you before entering the roadway.  You simply made a decision to enter the roadway in circumstances where you had already seen Mr Omar's vehicle. It is self-evident that you miscalculated the distance or speed of Mr Omar's vehicle or the time it would take for you to safely enter the roadway. 

39In the DPP v Neethling[1] the Court identified the factors which may aggravate the seriousness of dangerous driving causing death as follows:

[1] (2009) 22 VR 466.

·   Extent and nature of the injuries inflicted;

·   Number of people put at risk;

·   Degree of speed;

·   Degree of intoxication or of substance abuse;

·   Erratic [or aggressive] driving;

·   Competitive driving or showing off;

·   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.[2]

[2] Ibid [31], applying the decision of the New South Wales Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252, [216]–[217].

40Of that not exhaustive list, it is not disputed that most of the typical aggravating features of this offence do not apply in your case.  Speed, intoxication, erratic driving or distraction by a mobile phone or other distraction are absent in this instance.

41Mr McDonald who appeared on your behalf submitted that as your conduct is an example of misjudgement in circumstances where there are no other aggravating features, your moral culpability is able to be assessed as low.  Mr Glynn, who appeared on behalf of the Director of Public Prosecutions submitted that while dangerous driving causing death is an inherently serious offence, in all the circumstances, in this instance, your offending falls towards the lower end of seriousness.

42Giving way at a roadway where the speed is 100 kilometres an hour required a significant level of attention in circumstances where you're a young driver with very limited driving experience.  Nonetheless, in my view, in all the circumstances, most particularly a lack of aggravating features, your offending does fall towards the lower end of seriousness of the offence of dangerous driving causing death. However, even in cases where the moral culpability of the offender is low, the consequences can be significant resulting in the loss of life or causing serious injury, thus demonstrating the importance of remaining alert when driving a vehicle.

Victim impact statements

43A victim impact statement was prepared by Joumana Omar, the mother of Rabyh Omar, and tendered on the plea.  Ms Omar speaks of the ongoing grief she suffers.  She refers to Omar, her eldest son, as having been her best friend and support.  While some time has passed since the incident, Ms Omar states that 'it feels like he died yesterday'.

44I wish to direct some comments to the family of Mr Omar. 

45There is nothing this Court can say or do that will bring back Mr Omar or heal your significant and unmeasurable grief and pain.  The sentence I must impose can in no way be a measure of the worth of the life of Mr Omar.  Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

46I also wish to acknowledge that the family and friends of Mr Omar have conducted themselves in a dignified and respectful manner throughout the criminal justice process.  I was told that there had been some communication between the Omar family and your family, and that the Omar family gracefully allowed you to attend Mr Omar's funeral in order to convey your condolences to Mr Omar's family.

Personal circumstances

47You are now 22 years of age.  You were born and raised in Brunswick, and your heritage is Lebanese. 

48Your father is self-employed in the waste management industry, and your mother is a homemaker.  You have three younger brothers and a younger sister.  You still live at home with your family, and you assist your mother in caring for your siblings, including driving them to and from school. You clearly have a close and supportive family network, many of whom attended the plea and sentence in person or remotely. 

49You attended Our Lady Help of Christians for primary school and completed VCE at Simonds Catholic College.  You were a keen AFL and cricket player, playing at a relatively high level in football, but persistent knee injuries led you to leaving football in 2017.

50You went on to complete a Bachelor of Commerce at ACU and then a Diploma of Finance and Mortgage Broking.  You met your fiancé Olivia Slater during university and have been together for four years.  Ms Slater is about to complete her nursing degree.  Your plans to marry your fiancé are currently on hold until this matter comes to a conclusion.

51Throughout your studies, you have worked at Dewhurst Financial Group, and you are currently employed as a Compliance and Governance Manager at that organisation.  Your supervisor and family friend Kara Klapinos prepared a letter to the court.  Ms Klapinos speaks highly of your work ethic, attitude and motivation.  In terms of her knowing you in a personal capacity, she writes that you are looked up to by others and are a family oriented and mature person.

52A number of other references were tendered.  All speak with a united voice as to your otherwise good character.  They also refer to the contrition concerning the offending and your genuine empathy towards the family of Mr Omar. 

53A report was prepared by Dr Paul Grech, consultant clinical psychologist, and tendered on the plea. Dr Grech provides a comprehensive personal and psychological history. In summary Dr Grech assessed you as experiencing anxiety and mild depression. In Dr Grech’s opinion you have demonstrated significant insight and strong evidence of regret and profound remorse. When pressed in relation to remorse, Dr Grech states that you conveyed that you refused to consider external factors, such as Mr Omar not wearing a seatbelt as being relevant to what happened, with your sole focus being on the loss of Mr Omar’s life as a result of your conduct.

Sentencing considerations

54Mr McDonald who appeared on your behalf outlined a number of matters in mitigation.  First and foremost is your plea of guilty. 

55A contested committal took place in the Magistrates' Court on 12 November 2020, and the matter was listed for trial on 3 February this year. On that date, a formal sentence indication application was made on your behalf, and I indicated that if you pleaded guilty to the charge on the indictment, I would not impose on you an immediate term of imprisonment.  You were arraigned immediately after the sentencing indication and pleaded guilty.

56Your plea cannot be considered an early plea.  However, your plea of guilty has significant utilitarian benefit, sparing the time and expense of a jury trial and saving witnesses from having to give evidence.  Further, your plea has meant the family of the deceased have not had to go through observing a trial, during which the tragic incident would be relived. The plea carries additional weight which must be reflected in a further amelioration in sentence, as a plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[3]

[3]Worboyes v The Queen [2021] VSCA 169 at [39].

57Mr McDonald submitted that you have demonstrated genuine remorse over and above your plea of guilty. In that regard, he relied firstly on the fact that you attended Mr Omar's funeral, with his family's permission, and expressed your condolences to Mr Omar's father.  Secondly, Mr McDonald read aloud a statement that you wrote and which was tendered on the plea where you express your profound remorse for your conduct. Thirdly, your remorse has been conveyed by the references tendered and was observed by Dr Grech when he assessed you.  Today, in a statement conveyed by your solicitor, you further expressed your remorse having reflected on the victim impact statement that was read at the plea.

58Mr Glynn submitted that the question of remorse is somewhat problematic in that when questioned by police, your version of events is not correct on the evidence and seeks to absolve you.  Further, that you repeated a similar version to Dr Grech.  The fact remains that up until the first day of trial, you maintained that you were not guilty of the offence and were proceeding with the trial.  That said, I was told that your remorse has been evident since shortly after the accident.  It appears from the defence response that the question of causation was going to be the central issue in the trial.  However, following a change of representation, a sensible view was taken to seek to resolve a matter.  While there is some merit in the submission of Mr Glynn, Dr Grech also notes that your sense of responsibility for the death of Mr Omar is not tempered by the fact that he was not wearing a seatbelt. In all the circumstances, I accept that you have developed insight and demonstrated a degree of genuine remorse. 

59The question of Mr Omar not wearing his seatbelt is a matter relevant to sentence in this incident.  The evidence of Dr Lynch was not in dispute that had Mr Omar been wearing his seatbelt, in all likelihood, he would not have sustained fatal injuries.

60The principles on this point were not in dispute at the plea, that is, that the fact that Mr Omar was not wearing his seatbelt does not diminish your moral culpability.  However, it is a factor that may be taken into account on sentence.  In Guseli v The Queen[4], a case not dissimilar to the facts in this case, The Court, after reviewing the relevant principles stated:

In the present case, the standard of care the appellant was required to observe in driving his vehicle was not in any way diminished by the fact that Mr Kocjancic’s failure to wear a seatbelt rendered him more vulnerable to death in the event of a collision.[5]

[4] [2019] VSCA 29.

[5] Ibid[71].

61The Court went on to say:

There does not appear to be any good reason in principle for the appellant to receive a substantial discount in his sentence based on the fact that Mr Kocjancic was not wearing a seatbelt, in circumstances where that fact only assumed importance due to a factor that was completely independent of the appellant and did not diminish his moral culpability.[6]

[6] Ibid [75].

62In my view, and in accordance with the principles outlined in Guseli, some modest weight should be given to the fact that Mr Omar was not wearing his seatbelt at the time of the collision, translating to a reduction in sentence.

63The question of delay is also of relevance in this case.  While you exercised your right to run a trial which naturally prolongs a matter, there were other factors beyond your control that has resulted in this matter taking some three and a half years to come to a conclusion.  It was some 10 months before the charges were laid, and there were a number of adjournments in this court due to the pandemic.  The delay is significant in a man of your age with the burden of the case hanging over your head for a considerable time.  I take this delay into account. 

64You are a youthful offender with no prior convictions, and thus your rehabilitation must take some prominence in the sentencing discretion. On the evidence, your prospects of rehabilitation are excellent.  For similar reasons, specific deterrence carries little weight. 

65General deterrence remains an important consideration.  While your offending was not attended by aggravating features such as drugs, alcohol, or speeding, you were still a young, inexperienced driver.  Further, this case demonstrates that failing to keep a proper lookout at all times when driving can have devastating and tragic consequences.

66Following the sentence indication and plea, I had you assessed for a community correction order.  As part of that assessment, you were also assessed by the Mental Health Advice and Response Service.  You were found to be a low risk of reoffending, and, as such, no program conditions were recommended.  In that context, the view of Corrections is that evidence-based practice finds that minimum interventions is an effective way of maintaining a person's low risk of recidivism. Having taken into account the report in all the circumstances, in my view, a community correction order is able to meet the relevant sentencing considerations in this instance. 

Sentence

67Mr Aboueid, would you please stand. 

68Riyad Aboueid, on Charge 1, dangerous driving causing death, you are convicted and will be placed on a community correction order for a period of three years. While all community corrections orders are punitive in nature, in addition to the standard conditions, you will be required to complete 150 hours of unpaid community work in the first 18 months of the order. 

69Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 12 months imprisonment in combination with a community correction order.

70Pursuant to s 89 of the Sentencing Act 1991, as the charge is a serious motor vehicle offence, any driver licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 18 months from today. 

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