Director of Public Prosecutions v Agrawal
[2024] VCC 616
•10 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAKSHI AGRAWAL |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2024 | |
DATE OF SENTENCE: | 10 May 2024 | |
CASE MAY BE CITED AS: | DPP v Agrawal | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 616 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous driving causing serious injury – Failing to stop after a motor vehicle accident – Driver passing stopped tram – Boarding passenger struck and seriously injured – Driver failed to stop – Driver returned two hours later – Victim Impact – Guilty plea – Lengthy procedural history – Remorse – Mental health – Youth – Excellent prospects of rehabilitation – Sentencing principles – Weight of general deterrence – Suitability of non-custodial disposition – Term of imprisonment only appropriate disposition
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic); Migration Act 1958 (Cth)
Cases Cited:Aston v The Queen [2019] VSCA 225; DPP v Oates [2007] VSCA 59; DPP (Vic) v Neethling (2009) 22 VR 466; Stephens v The Queen [2016] VSCA 121; Wassef v The Queen [2011] VSCA 30; R v Mohamed (2009) 53 MVR 82; DPP v Weidlich [2008] VSCA 203; Bell v The Queen [2018] VSCA 281; The Queen v Towle [2009] VSCA 280; Pan v The Queen [2020] VSCA 42; Hicks v The Queen [2016] VSCA 162; Weatherburnv The King [2023] VSCA 283; Weatherburnv The King [2023] VSCA 283; Worboyes v The Queen [2021] VSCA 169; DPP v Clark [2023] VSC 220; R v Mills [1998] 4 VR 235; DPP v Anderson [2013] VSCA 45; Harrisonv The Queen (2015) 49 VR 619; DPP (Vic) v Gany (2006) 163 A Crim R 322; R v Verdins [2007] VSCA 102; Akot v The Queen[2020] VSCA 55; Abbott v The Queen [2021] VSCA 149; Stewart v The Queen [2018] VSCA 55; DPP v Wilson [2023] VCC 1988; DPP v Gioutsos [2017] VCC 695; DPP v Nguyen [2018] VCC 1297; Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41
Sentence: 9 months’ imprisonment – s 6AAA declaration – 12 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Mr N. Papas KC | McNally & Gleeson Lawyers |
HIS HONOUR:
Introduction
1Sakshi Agrawal, you have pleaded guilty to the following offences:
(a) One charge of dangerous driving causing serious injury, contrary to s 319(1A) of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 5 years’ imprisonment; and
(b) One charge of failing to stop after a motor vehicle accident, contrary to ss 61(1)(a) and 61(3) of the Road Safety Act 1986 (Vic) (‘RSA’), which carries a maximum penalty of 10 years’ imprisonment.
2Cases such as this are obviously of great public importance. As such, the Court’s published reasons will be available immediately on the County Court website after they have been read out.
3Before setting out the relevant facts upon which you are to be sentenced, it is necessary to briefly rehearse your case’s procedural history.
Procedural History
4You ran a contested committal in April 2023 at which your counsel cross-examined a number of witnesses including the tram driver. The matter was transferred to this court as a contested matter.
5Your case first came before the Court on 24 August 2023 for a sentence indication application. Unfortunately, due to the late filing of material that hearing was not able to proceed. However, your trial was listed for 17 April 2024.
6The matter next returned to court on 1 November 2023 at which time the sentence indication hearing proceeded. Following the Opening being read, evidence from a psychologist who had examined you and prepared a report, and submissions, I gave an indication of 9 months’ imprisonment.[1] I adjourned the matter for a week to allow you to consider the indication.
[1] The indication was given pursuant to s 207 of the Criminal Procedure Act 2009 (Vic).
7Following various administrative adjournments, your matter returned to court on 6 December 2023. Your counsel at the time sought further time to consider some further psychological material from India. At this point, I considered the indication to be deemed as rejected.[2]
[2] Section 209 of the Criminal Procedure Act 2009 (Vic) requires a sentence indication to be accepted ‘at the first available opportunity’.
8At a mention of the matter on 22 March 2024, an application for a ‘second or subsequent’ sentence indication was listed on the basis of the foreshadowed material representing a ‘change in circumstances’ since the previous indication that would be likely to materially affect the indication previously given.[3]
[3] Criminal Procedure Act 2009 (Vic), s 208(3A).
9At the hearing of that application on 12 April 2024, I was not persuaded that there had been such a change and I refused to provide a second sentence indication. Shortly after, your solicitor informed the Court that you would be pleading guilty and sought that an arraignment and plea be listed, bringing this matter to a conclusion.
10The significance of this procedural history is that, owing to your rejection of the sentence indication, I am not bound by the indication I gave,[4] and may impose a more severe sentence than indicated. I hasten to add that you are not to be punished for pursuing the rights afforded you as an accused person, but the procedural history of your matter serves as an important background against which this sentencing exercise will proceed and will necessarily inform my assessment of your level of remorse. I will return to this matter later in these reasons.
[4] Ibid, s 209(1).
Summary of the Offending
11You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea Hearing dated 22 April 2024,[5] which I note is an agreed document.
[5] Exhibit P1. This Opening is an amended version of the Opening that was read to the Court as part of the sentence indication hearing.
12Shortly prior to 6:29 am on 22 March 2022, Ms Nicole Lagos walked from her home on Wattletree Road in Armadale to tram stop 43, a short distance from her home. Ms Lagos was commuting to work. The tram she caught to work travelled in a westerly direction along Wattletree Road. A street light was located directly above the stop, as well as a tram stop sign and seat.
13As the tram driver approached the stop at approximately 6:29 am, he observed a female waiting for the tram. The tram driver then activated the tram’s warning lights and indicators to alert surrounding road users of its impending stop.
14The tram driver then stopped the tram adjacent to the stop and opened the tram doors. Ms Lagos started to cross the kerbside lane of Wattletree Road to board at the tram’s front door.
15Meanwhile you were also travelling to work by car. You too were travelling west along Wattletree Road.
16As Ms Lagos walked to board the tram, she was struck with severe force by the front passenger corner of a Tesla Model 3 vehicle being driven by you. The tram driver and other tram passengers heard a loud “bang” or “thud” when the collision occurred, and the tram driver could no longer see Ms Lagos in the tram’s mirrors.
17The collision was also witnessed by the driver in the vehicle behind your vehicle. That driver observed that the tram had stopped and was waiting to pick up passengers and that a vehicle kept driving, colliding with a female who was then thrown into the air as high as the stop sign. That driver then called triple-zero. Victoria Police officers and Ambulance Victoria paramedics arrived shortly after.
18You were travelling at approximately 58 km/h at the time of the collision. Wattletree Rd is a 60 km/h zone. As a result of the collision, Ms Lagos was thrown approximately 8 to 10 metres before coming to rest on the road. You had failed to stop, or slow down, once the tram’s warning lights and indicators were activated. That is the conduct constituting Charge 1 – Dangerous Driving Causing Serious Injury.
19Following the collision, you did not stop to assist as you were required by law and common decency to do. Instead you accelerated to a speed of approximately 78 km/h and continued to drive for around three kilometres before parking your vehicle in Epping Street, Malvern. That is the conduct constituting Charge 2 – Failing to Stop After a Motor Vehicle Accident.
20Whilst parked, you made a number of attempts to contact your partner and housemate in order to notify them of the collision. At 6:36 am, you eventually reached your housemate and informed him and your partner that you had been in an accident and had hit someone and that you were scared and did not know what to do. You then sent your location to your partner and requested that he come and pick you up.
21At approximately 7:10 am, your partner and your housemate arrived where you had parked your vehicle. You were unable to recall the location of the collision scene and you got into your partner’s vehicle and unsuccessfully attempted to locate it. You then drove back to your home address where you had a drink of water and changed your clothing. You then attempted to locate the collision scene again by driving along the same route that you had driven along earlier that morning.
22Meanwhile, at approximately 7:55 am, investigators from the Victoria Police Major Collision Investigation Unit attended the collision scene. The scene was analysed, and photographs and scene measurements taken.
23Upon attending the collision scene, investigators observed two white pieces of debris which appeared to be from a vehicle. On the debris was a sticker bearing the ‘Tesla’ emblem, a QR code, corresponding part numbers and a part description stating ‘SKULL CAP LH PEARL’. It was established that the debris belonged to a left side mirror covering of a Tesla Model 3.
24At approximately 8:30 am, you, your partner and your housemate located the collision scene. Your partner approached police officers at the scene and identified you as being the driver of the vehicle involved in the collision. You were then arrested.
25You provided the location of your vehicle to the officers. When investigators attended to the location of the vehicle, they observed damage that corresponded to the debris located at the collision scene.
26You were transported to hospital for the purpose of obtaining a sample of your blood for drug and alcohol analysis. These tests produced negative results. You were then transported to Prahran Police Station for interview.
Record of Interview
27You took part in a record of interview during which you were cooperative and confirmed you were the driver of the Tesla vehicle and that you had panicked after the collision and left your vehicle after being picked up by your partner. You also stated the following in relation to the collision:
(a) [Your] Tesla was on autopilot and the tram was about to stop. It was dark and the lady jumped in front of [your] car and [your] car could not detect her and it was too late to brake;
(b) [You] thought the tram was about to stop so [you] could just make it before the tram stopped;
(c) After the collision [you] got really scared and [you] parked in a nearby street and tried to return to the scene but could not find it;
(d) [Your] car has the autobraking function but did not detect the lady and [you] could not press the brakes because it was too late;
(e) [You] did not realise she was there because it was too dark and [you] could not see her and she just came in front of the car;
(f) Autopilot in [your] Tesla is when the car drives automatically and stays in the one lane and [you] just have [your] hand on the steering wheel in case the autopilot fails. The car has automatic braking and it should brake automatically if there is a car or person in front of it;
(g) As [you] turned into Wattletree Road [you] activated autopilot;
(h) As [you] were driving behind the moving tram, it was dark and it looked like it was about to stop and [you] could see the indicators were not on yet. [You] thought [you] could make it [past the tram] and [you] could not see anyone and a lady just jumped out in front of the car;
(i) [You] should not have freaked out. [You] should have stopped and helped out. [You] wanted to go back to the scene;
(j) [You] cannot provide a description of what the lady was wearing as [you] did not get to see her;
(k) [You] could not recall the lady standing at the tram stop or on the road. But when she was crossing for the tram, [you] saw her for the first time on the left side a millisecond before the collision and then it was too late to put on the brakes and [you] tried to put on the brakes and it was too late;
(l) [You] usually have a feeling about when a tram is going to stop and [you] can see from the indicators that the tram is about to stop;
(m) [You] didn’t notice any indicators nor see the tram stop sign when it was so dark so [you] did not know there was a tram stop there;
(n) It was possible that the tram indicators were on but [you] didn’t notice them;
(o) [You] couldn’t find anywhere to park after the collision and eventually found a place to park. [You] did not want to drive with a crack in the windscreen;
(p) After the collision [you] kept going as [you] did not know what to do next;
(q) [Your] car might have given off an alert of a collision but [you] did not check it; and
(r) [You’d] travelled down Wattletree Road on [your] way to work about 50 times.
Subsequent Investigations
28Subsequent investigations by Victoria Police investigators focussed on the driver inputs and telemetry of the vehicle driven by you at the time of the collision. Those investigations revealed the following.
29Immediately prior to the collision, the autosteer function of the vehicle was not active. At the same time, a vulnerable road user was detected in the path of the vehicle. An alert was then triggered by the vehicle safety system warning of a potential collision and an audio chime was sounded for one second. There was no record of a braking response during the collision event. Following the collision, the vehicle was travelling at a speed of 78.6 km/h, four seconds after the alert chime ended.
30Further investigations in the form of a mechanical inspection were also conducted on the vehicle. That mechanical inspection did not reveal any faults, failures or conditions that could have caused or contributed to the collision.
Objective Gravity of Your Offending
31In determining the appropriate sentence to impose on you, it is necessary to start by assessing the objective gravity of your offending.
Dangerous Driving Causing Serious Injury
32A driving offence that results in serious injury to another person is obviously serious; so much is clear from the maximum penalty of imprisonment for 5 years.
33The offence with which you were charged is the less serious of the two offences under the Crimes Act that may be charged where a driver causes serious injury to another road user. It requires proof that the driver drove at a speed or in a manner ‘which was dangerous to the public having regard to all the circumstances of the case’.[6]
[6] Crimes Act 1958 (Vic), s 319(1A)
34The more serious offence is negligently causing serious injury which attracts a maximum penalty of 10 years’ imprisonment.[7] Where a driver faces that charge, the prosecution must prove that the driver failed to observe the standard of care expected of road users to a gross degree.[8]
[7] Ibid, s 24.
[8] Aston v The Queen [2019] VSCA 225, [26].
35The gravity of dangerous driving causing serious injury offending is gauged by considering the offender’s moral culpability and the objective dangerousness of their driving.[9]
[9] DPP v Oates [2007] VSCA 59, [21], [31], [39] (‘Oates’); DPP (Vic) v Neethling (2009) 22 VR 466, [33] (‘Neethling’).
36The Court of Appeal has explained, in relation to the offence of dangerous driving causing death, the correct approach that a court must follow in assessing the objective gravity of a given instance of the offence, which I take to be applicable to dangerous driving causing serious injury:
Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[10]
[10] Stephens v The Queen [2016] VSCA 121, [20] (citations omitted) (‘Stephens’).
37The risk your driving created was not occasioned by inattention. You chose to pass the tram before it came to a stop. You were driving along a straight stretch of road as you approached the slowing tram. People were either going to be getting on or off that tram by walking across the path of your car. You knew the road well as you had travelled along it many times. You had ample time to slow down. Although you were not exceeding the speed limit, you did not adopt the cautious approach to driving that is necessary when you are in the vicinity of a slowing tram. You clearly miscalculated. Your instance of dangerous driving resulted from a conscious decision by you to undertake a dangerous manoeuvre on the road.
38On the other hand, I accept that the evidence does not suggest that yours was a dangerous course of driving, persisting throughout a lengthy period, exposing numerous road users to risk as is sometimes seen in such cases. You did not exceed the speed limit; you had not ingested alcohol or other drugs.
39It is also necessary to consider the extent of the injuries caused by your driving. The nature and extent of the injuries inflicted on Ms Lagos are profound and enduring. Ms Lagos was placed in an induced coma, intubated and ventilated, and presented with the following injuries:
(a) multiple areas of intraparenchymal, intraventricular and extra-axial haemorrhage;
(b) a vertical fracture running from the posterior base of the skull to the junction of the skull and the cervical spine;
(c) a 5 cm scalp laceration of the right forehead;
(d) an intra-articular right occipital condyle fracture;
(e) small left pneumothorax, a possible trace right pneumothorax;
(f) small lung contusions;
(g) minimally displaced left second and third rib fractures;
(h) a grade 2 liver laceration measuring 47 mm;
(i) left displaced tibia and fibular fractures; and
(j) a full thickness 15 cm wound to the muscle of the left distal inner thigh.
40Ms Lagos underwent an operation for in excess of four hours and remained in hospital for a period of 21 days. She was then transferred to the Acquired Brain Injury rehabilitation unit at the Epworth Hospital for treatment in relation to her traumatic brain injury. She had ongoing post-traumatic amnesia for a period of approximately 30 days from the time of the collision and has had ongoing issues with more complex tasks which has limited her ability to return to work.
41Ms Lagos’ injuries evidence the extent of the harm created by your driving. Ms Lagos could have been killed by your driving.
42Having regard to your departure from the appropriate standard of driving in the circumstances of the case, the extent of the risk which your driving created, as well as the extent of potential harm should the risk materialise, which in this case it did, I conclude that yours is a mid-range example of the offence.
Failing to Stop After a Motor Vehicle Accident
43Offences under s 61(3) of the RSA are intended to deter people from fleeing the scene of an accident in which they were involved. An offender’s excuse for fleeing an accident or failing to assist will usually carry no weight at sentence,[11] although it can be viewed as aggravating[12] or, in rare circumstances, mitigating.[13]
[11] Wassef v The Queen [2011] VSCA 30, [31] (‘Wassef’).
[12] R v Mohamed (2009) 53 MVR 82, [27].
[13] Ibid, [21]-[22].
44Mr Papas KC submitted on your behalf that you took flight after the collision out of panic and simply did not know what to do. Mr Papas KC further submitted that your return to the scene, albeit delayed, took your offending outside of the category of particularly heinous examples of the offence where a person fleas the scene to avoid detection.
45Your counsel appropriately conceded that you knew what you had done, this was not a case of a driver hearing a thump whilst driving at night and not appreciating what had occurred until some time later.
46I cannot be satisfied that you left the scene to protect yourself as is often the case. I accept your counsel’s submission that you panicked. However, it is concerning that you only returned to the scene two hours after the accident and only after first changing your clothes. Your statutory duty was to immediately stop and immediately render assistance. It seems that your decision to return to the scene and hand yourself in may have been influenced by others. By that time, an ambulance had been called by another driver and assistance had been provided by passers-by.
47Taking into account your conduct, and the submissions of your counsel, I consider yours to also be a mid-range example of this offence.
Moral Culpability
48An assessment of the objective gravity of your offending is incomplete without regard to your moral culpability. In other words, to what extent are you to blame for Ms Lagos’ injuries?
49This in turn involves a consideration of the extent to which you are ‘personally responsible for both the prohibited acts and their consequences’.[14] This assessment requires consideration of all the circumstances of your offending and the extent to which you should have foreseen the consequences of your driving.
[14] DPP v Weidlich [2008] VSCA 203, [17].
50An offender’s moral culpability will be higher if they knew the risks associated with their driving behaviour.[15] Their moral culpability will be lower if the accident occurred because of momentary inattention[16] or misjudgement[17], or where external circumstances such as the poor design of an intersection, contributed to the accident.[18]
[15] Stephens (n 10) [25]-[28].
[16] Bell v The Queen [2018] VSCA 281, [54].
[17] The Queen v Towle [2009] VSCA 280, [50]-[51].
[18] Pan v The Queen [2020] VSCA 42, [83], [85]-[86].
51The degree of dangerousness of the offender’s driving is assessed by reference to the extent of risk that it creates. The extent of risk includes both the likelihood that something will go wrong, and the extent of harm which will result if it does.[19]
[19] Ibid, [66].
52As recorded earlier in these reasons, your decision to attempt to overtake the tram cannot be equated with inattention. At best, it can be characterised as a misjudgement. You did not stop, nor did you slow down.
53The care required to be taken for tram users by drivers is well-known, particularly so in Melbourne. Stopping behind a signalling tram should be reflexive for drivers in Melbourne.
54Furthermore, I am satisfied that you knew the risks inherent in attempting to overtake a stationary tram based on the admissions in your record of interview. You also must have known that Wattletree Road was a busy, public transport laden road having regard to your frequent use of it during your commute to work.
55Therefore, the extent of the risk created, combined with the extent of the harm which will result from its eventuation, can lead to no other conclusion than that your moral culpability for the offending is considerable.
Victim Impact
56I must take into account the impact of your offending on the primary victim, Ms Lagos, as well as on her family and loved ones.
57Several victim impact statements were tendered in this matter, some of which were read by the prosecutor in court; some, even more movingly, by their authors:
(a) Nicole Lagos dated 19 April 2024;[20]
(b) Christie Lagos, sister of Ms Lagos, dated 22 April 2024;[21]
(c) Bradley Robinson, brother of Ms Lagos, dated 22 April 2024;[22]
(d) Helen Hedger, mother of Ms Lagos, dated 19 April 2024;[23] and
(e) Steve Lagos, father of Ms Lagos, dated 18 April 2024[24]
[20] Exhibit P5.
[21] Exhibit P6.
[22] Exhibit P7.
[23] Exhibit P8.
[24] Exhibit P9.
58The devastating impact of your offending on Ms Lagos is evident from the injuries recorded earlier in these reasons. However, Ms Lagos eloquently describes the all-encompassing and enduring impact the physical injuries she has suffered have had on her lifestyle and her future prospects. Ms Lagos states that she is haunted by an ever present uncertainty that she will not be able to fulfil her professional, social and romantic aspirations owing to the effects of her acquired brain injury.
59Ms Lagos’ family too, have suffered greatly in the wake of the offending. Her parents and siblings had to endure the many days of her hospitalisation and feared for her life, and what quality of life she may be left with upon release. Each of her mother, father, sister and brother have put their lives on hold to become stalwarts of this young woman’s recovery, tending to her, supporting her and loving her.
60I take into account the impact of your offending on the victims.[25]
[25] Sentencing Act 1991 (Vic), s 5(2)(daa).
Personal Circumstances
61You were raised by your parents alongside your younger brother in India. Your father owns gas stations, and your mother conducts home duties. Your younger brother works in the family business.
62At age 9, you were enrolled in a boarding school in another state, 10 hours away from home. You remained there until you were 16. You then studied Year 9 in your aunt's school, after which you moved to Delhi to complete Years 11 and 12. You returned to Kota at the age of 17 for 12 months, where you stayed in a hostel by yourself while studying.
63Around this time, you reported being in a physically abusive relationship with a boyfriend in Delhi. He was also financially controlling. You experienced depression and high levels of stress as a result. You disclosed the abuse to you parents for the first time at age 18, but they did not take significant action. They agreed to send you to Australia.
64You arrived in Australia on your own at age 19 where you initially resided in Deakin residential apartments, adjacent to the university, for six months. You completed a Bachelor’s degree in Computer Science at Deakin University.
65You initially found employment at a local fast-food restaurant. Following this, you worked as a security officer and later became the security manager at the Victoria Police building. You were suspended and subsequently terminated by the security company after this offending. You were unable to secure work for 12 months after this. Currently, you work as a casual with an IT company and undertake freelance IT projects.
66You met your partner in Australia and moved in with him in his home in Burwood. He was born in Delhi and you share similar educational accomplishments, having completed the same course at Deakin University.
67You subsequently moved to Hawthorn for 12 months and then to Mount Waverley for four years. Your partner recently purchased a home in Clyde. He invested in an IT company, which experienced significant growth during the COVID-19 pandemic but is now facing challenges. He is also involved in managing Vodafone kiosks. You reported that your offending led to tensions between you and your partner, however, he remains supportive of you.
68You are not an Australian citizen. You are in Australia on a bridging visa and are seeking to become a permanent resident.
69This means that, if I impose a sentence of imprisonment especially if it is for 12 months or more, you are at risk of deportation.[26]
[26] Migration Act 1958 (Cth), s 501(6)(a), (7)(c).
Matters in Mitigation
Delay, Plea of Guilty & Remorse
70As observed earlier in these reasons, your matter has had an unusually protracted journey through the criminal justice system for several reasons. You pleaded guilty on 15 April 2024, some two years after the incident giving rise to these offences.
71In Hicks v The Queen[27], the Court of Appeal observed:
The cases recognise that delay may be relevant to sentence in two principal ways. First, where there has been a relatively lengthy process of rehabilitation, insofar as circumstances permit, that process should not be jeopardised. Secondly, fairness dictates that the fact that an offender has been kept in suspense as to his or her fate should be taken into account in mitigation… When considering whether a delay requires an element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. In that regard, delay which is caused by the ordinary prosecutorial process or the administration of the courts will carry more weight as a factor in mitigation than any delay attributable to the actions of the accused.[28]
[27] [2016] VSCA 162 (‘Hicks’).
[28] Ibid, [23] (emphasis added, citations omitted); see also Weatherburnv The King [2023] VSCA 283, [42]-[45].
72There can be no criticism of your exercise of your right to challenge the case against you. The simple point is that a part of the delay in the finalisation of your case is attributable to your conduct.
73Turning then to your pleas of guilty. Your pleas were entered two days prior to the commencement of your trial - obviously enough, these can only be characterised as late pleas.
74Whilst there is of course a degree utility in any plea, yours exhibits a diminished utilitarian value due to its timing. To your credit, you have spared the time and resources of the Court and prosecuting authorities, as well as (quite significantly in this case) sparing witnesses the ordeal of giving evidence at trial in what would be a very traumatic experience.
75The prosecution submit that acceptance of responsibility for your actions and remorse have not been at the forefront of your mind throughout this proceeding, despite what was submitted by the prosecution to be an overwhelming case against you from the outset.
76Your remorse is a matter explicitly addressed in a psychological report prepared by Ms Gina Cidoni.[29] Ms Cidoni opines that your presentation and defensive course is attributable to ‘avoidance behaviour’. In the context of Post-Traumatic Stress Disorder (‘PTSD’), avoidance is a coping mechanism where individuals consciously or unconsciously distance themselves from distressing or traumatic memories, thoughts or emotions.
[29] Psychological Report prepared by Ms Gina Cidoni dated 17 August 2023 (Exhibit D1).
77In your case, Ms Cidoni opines that you had been avoiding confronting the full scope of the consequences of the incident, potentially as a means of self-preservation to shield yourself from the emotional distress associated with acknowledging your role in causing harm to Ms Lagos. Ms Cidoni further opined that you conveyed remorse, but also ‘openly expressed [your] anxieties about the uncertainty surrounding [your] future’.[30]
[30] Ibid, [50].
78An assessment of your remorse is also fortified by reference to a letter you penned to Ms Lagos, via the Court, that was tendered at your plea.[31] In the letter you profess to understanding the seriousness of the harm you have caused and express a willingness to do ‘anything in your power to fix this’.
[31] Letter from Sakshi Agrawal dated 22 April 2024 (Exhibit D8).
79Your remorse is also the subject of a number of the character references about you that the Court has received.
80Taking these matters into account, I conclude that you are genuinely remorseful for your conduct despite your belated acceptance of legal responsibility.
81In addition, the prosecution submit that the so-called ‘Worboyes discount’[32] does not apply in your case, your plea coming, as it did, after the Chief Judge’s update informing the profession that the Court’s criminal jury trial lists were past the point of being overwhelmed or plagued by pandemic related delays.[33] I accept this submission and I do not ameliorate your sentence in accordance with Worboyes.
[32] In accordance with the decision of Worboyes v The Queen [2021] VSCA 169, offenders who pleaded guilty during this time were entitled to an ‘actual and palpable amelioration of sentence’: [35].
[33] County Court of Victoria, Update on pending criminal jury trials, 9 October 2023. See, also, DPP v Clark [2023] VSC 220, [50].
Youth
82Your youth is also a significant consideration in this sentencing exercise. You were 23 at the time of the offending. You are now 25. You have your entire adult life ahead of you.
83In the case of R v Mills,[34] the Victorian Court of Appeal endorsed several general propositions about sentencing youthful offenders. Two have particular application in your case:
(a) First, that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises; and
(b) Secondly, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment and incarceration in an adult prison may in fact lead to further offending.[35]
[34] [1998] 4 VR 235.
[35] Ibid, 241.
84In DPP v Anderson,[36] the Court of Appeal stated that it is a ‘cardinal principle of sentencing law that, when a young offender is to be sentenced, the sentencing disposition should be tailored — so far as possible consistently with other applicable sentencing principles — to promote the offender’s rehabilitation’.[37]
[36] [2013] VSCA 45.
[37] Ibid, [49].
85However, as the Court of Appeal has recognised, serious driving offences are often ‘committed by young offenders with otherwise good character, who have limited criminal history and good prospects of rehabilitation’.[38] It is for this reason that ‘general deterrence must be regarded as of great importance and youth must be given relatively less weight’.[39]
[38] Harrisonv The Queen (2015) 49 VR 619, [115].
[39] Neethling (n 9) [55]; see also DPP (Vic) v Gany (2006) 163 A Crim R 322, [35].
86With this principle in mind, I have given due weight to your youth in determining the appropriate sentence.
Mental Health & Verdins
87Your counsel submitted that your mental health enlivens limbs 5 and 6 of the so-called Verdins[40] principles. It was argued on your behalf that:
(a) Imprisonment will weigh more heavily on you than it would on a person in normal health; and
(b) There is a serious risk that imprisonment will have a significantly adverse effect on your mental health.
[40] R v Verdins [2007] VSCA 102 (‘Verdins’).
88In support of this submission, several psychological and psychiatric reports were tendered. I will consider each in turn.
89You were assessed by psychologist, Ms Gina Cidoni, who prepared two reports dated 17 August[41] and 14 October 2023[42], respectively. Ms Cidoni diagnosed you as having PTSD and Adjustment Disorder with a disturbance of mood and anxiety. Ms Cidoni observed that these disorders exhibited shared symptoms that contribute to your emotional turmoil that significantly impairs your daily functioning. Ms Cidoni also opines that imprisonment would be challenging for you and the limited access to effective treatment could worsen your mental health. At the sentence indication hearing, Ms Cidoni gave oral evidence that was consistent with her reports.
[41] Exhibit D1.
[42] Supplementary Psychological Report prepared by Ms Gina Cidoni dated 14 October 2023 (Exhibit D2).
90You were also assessed by forensic psychiatrist, Dr Prashant Pandurangi, who prepared two reports dated 8 March[43] and 15 March 2024[44]. Dr Pandurangi is a consultant psychiatrist with the Victorian Institute of Forensic Mental Health and has extensive experience in mental health units within prisons in Victoria.
[43] Forensic Psychiatric Report prepared by Dr Prashant Pandurangi dated 8 March 2024 (Exhibit D6).
[44] Forensic Psychiatric Report prepared by Dr Prashant Pandurangi dated 15 March 2024 (Exhibit D7).
91Dr Pandurangi gave evidence at your plea that was not challenged in cross-examination. Dr Pandurangi expands upon Ms Cidoni’s diagnoses, diagnosing you with Major Depressive Disorder (‘MDD’) which is of a moderate to severe intensity, and is currently untreated.
92In his oral evidence, Dr Pandurangi explained the difference between MDD and Adjustment Disorder, being the chronic nature of MDD characterised by several symptoms including low and irritable mood, sleep and appetite disturbance, the loss of interest in day-to-day activities and potential suicidal ideations. Dr Pandurangi also explained the treatments available for MDD, which consist of psychotherapeutic interventions such as counselling, and pharmacological interventions consisting of anti-depressive medications. Dr Pandurangi opined that a course of psychotherapeutic interventions would be the starting point for your treatment and that access to such treatment in prison would be in no way equal to that available in the community. Dr Pandurangi observed that the psychotherapeutic treatments available in the custodial environment are mostly concerned with offence specific interventions. Accordingly, Dr Pandurangi opines that your underlying mental disorders would render prison more onerous for you than a personal of good mental health.
93Dr Pandurangi also diagnoses you with Alcohol Misuse Disorder.
94On the basis of this evidence, I accept that limb 5 of Verdins is relevant as the time you spend in custody will be more burdensome than would be the case for a person who does not suffer from poor mental health.
95The evidence before the Court also enables me to conclude, in accordance with limb 6, that there is a serious risk of the custodial environment adversely affecting your mental health, mostly by way of lack of access to appropriate treatment.
96I have taken both of these matters into account in mitigation of sentence.
97I have also taken into account, in your favour, the risk of deportation you face if you are sentenced to imprisonment. However, I must not artificially reduce the length of any sentence to reduce this risk.[45]
[45] Akot v The Queen[2020] VSCA 55, [34], [38]–[39].
Prospects of Rehabilitation
98I accept that the consequences of your offending, together with your experience in the criminal justice system, have had a wholly deterrent effect on you. I do not consider you to be a risk of re-offending either generally or in relation to driving offences. I note that this is also the assessment of Ms Cidoni and Dr Pandurangi, provided you engage well with mental health treatment.
99The various character references that have been provided to the Court describe the regret you that you have expressed to your friends, family and work colleagues, as well as the responsible, caring and dedicated individual you have demonstrated yourself to be.[46]
[46] Bundle of Character References from Rahul Jain dated 7 August 2023; Gautam Bedi dated 7 August 2023; Rupal Rana dated 6 August 2023; Rachin Prashar dated 4 August 2023; Vaibhav Ajmani dated 4 August 2023; Deepika Goyal dated 3 August 2023; Character Rishi Patel dated 4 August 2023; Emma-Louise Charles dated 2 August 2023 (Exhibit D3).
100On balance, taking into account your work history, your future potential, your general character and the support of family, work colleagues and friends as evidenced by the glowing character references, I accept that your prospects of rehabilitation are excellent.
Sentencing Principles
101Section 5 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all the circumstances;
(b) To deter you or others from committing similar offences in the future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
102In Oates, Neave JA, with whom Warren CJ agreed, stated that general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.[47] Serious driving offences often involve offenders who, like you, are young, are of generally good character and who have excellent prospects for rehabilitation.
[47] Oates (n 9) [22].
103The tragic reality is that this court sees far too many cases involving young people such as Ms Lagos who suffer profound injury or are killed as a result of other young people failing to drive safely.
104The sentencing principle of parsimony also important. Section 5(4) of the Sentencing Act provides that a court may not sentence an offender to imprisonment if the purposes for which sentence is imposed can be achieved by a less severe sentence. Further, where a custodial sentence is indicated, it cannot be for a period longer than is necessary to achieve those purposes.[48]
[48] Sentencing Act 1991 (Vic), s 5(3).
105I consider the principles of general deterrence, denunciation and rehabilitation to be at the forefront of the sentencing synthesis. For the reasons discussed earlier, I accept that you are unlikely to re-offend and thus specific deterrence is less important.
Current Sentencing Practices
106The Court was referred to a number of “leaving the scene cases” by the parties. In Wassef,[49] the Court of Appeal noted that the maximum penalty for the RSA offence of leaving the scene was increased five-fold in 2005 from imprisonment for 2 years to 10 years.
[49] Wassef (n 11).
107As Redlich JA explained, this was done because Parliament considered it to be a much more serious offence than was previously the case noting that the maximum penalty is now twice that available for dangerous driving causing serious injury.[50]
[50] Ibid, [30].
108In Wassef, the Court of Appeal endorsed the sentencing judge’s use of the s 61 offence as the base sentence and more serious of the charges (the other being reckless conduct endangering a person).
109In Abbott v The Queen[51], the Court of Appeal noted that ‘the section is designed to force people to stop and render assistance and the extent of the injuries is relevant to the assessment of the gravity of the offending’.[52] Breaches of s 61(3) are ‘regarded very seriously and substantial terms of imprisonment have been imposed’.[53]
[51] [2021] VSCA 149 (‘Abbott’).
[52] Ibid, [82].
[53] Ibid.
110In more recent cases similarly stern sentences have been imposed. In Stewart v The Queen,[54] the Court of Appeal upheld a sentence of 4 years for a youthful offender with a significant driving history. The sentencing judge had assessed the offending as at the higher end of the range of mid-serious – an assessment the Court of Appeal described as favourable to the offender.
[54] [2018] VSCA 55 (‘Stewart’).
111In Abbott itself, which was considerably less serious than the case of Stewart, a sentence of 4 years was reduced to 2 years and 6 months.
112Your counsel has referred me to three cases in this Court in which Community Correction Orders had been imposed either on their own or in combination with terms of imprisonment.[55] I have looked at each of these cases. Obviously the results turn on the particular facts before the Court. For example, in Gioutsos, the offender had a mild intellectual disability.
[55] DPP v Wilson [2023] 1988; DPP v Gioutsos [2017] VCC 695 (‘Gioutsos’); DPP v Nguyen [2018] VCC 1297.
113As the High Court explained in the case of DPP v Dalgliesh,[56] earlier cases are principally of assistance to the extent that they outline sentencing principles to be applied. It is the consistent application of those principles that is important. Individual results are no more than a historical record of what has occurred in earlier cases.[57]
[56] [2017] HCA 41.
[57] Ibid, [83].
Submissions of Parties
114The prosecution submit, having regard to all the circumstances and applicable sentencing principles, that a sentence of imprisonment is the only appropriate sentence in this case.[58]
[58] Prosecution Submissions for Plea Hearing dated 22 April 2024, [1].
115Defence counsel, on your behalf, submit that the needs of the community to see just punishment and general deterrence can properly be met by the imposition of a sufficiently long Community Correction Order.[59]
[59] Defence Outline of Submissions for Plea Hearing dated 22 April 2024, [9].
Consideration
116I accept the prosecution submission that the objective gravity of your offending, and your moral culpability are such that only a sentence of imprisonment will adequately achieve the applicable sentencing purposes. The need for general deterrence is of great significance in the sentencing synthesis for the reasons I have explained earlier. A message must be sent by the courts to other drivers, especially young people like you. This remains the case notwithstanding the many matters of mitigation that are available to you as detailed in these reasons.
117I have considered imposing a combination sentence[60] but have ultimately concluded that the punitive purpose of the sentence is adequately addressed by a straight term of imprisonment. The evidence before me does not suggest that you are in need of the usual forms of rehabilitation and treatment that can be provided to offenders under a Community Correction Order.[61]
[60] Sentencing Act 1991 (Vic), s 44.
[61] See Ibid, s 48D.
Orders
118Turning then to the orders I make. Ms Agrawal, please stand:
(a) On Charge 1, Dangerous Driving Causing Serious Injury, you are sentenced to 4 months’ imprisonment;
(b) On Charge 2, Failing to Stop After a Motor Vehicle Accident, you are sentenced to 7 months’ imprisonment;
(c) The sentence on Charge 2 is to be the base sentence and I order that 2 months of the sentence on Charge 1 is to be served cumulatively on the sentence imposed on Charge 2;
(d) The Total Effective Sentence is therefore 9 months’ imprisonment;
119Although I am not bound by the sentence indication I gave last year, I have decided not to impose a longer period of imprisonment.
120Consequent of your conviction on Charge 1, your driver’s licence is cancelled and you are disqualified from obtaining a further one for a period of 18 months (being the statutory minimum).[62] Similarly, on Charge 2, your driver’s licence is cancelled and you are disqualified from obtaining a further one for a period of 4 years.[63] Those periods commence today.
[62] Sentencing Act 1991 (Vic), s 89(1).
[63] Road Safety Act 1986 (Vic), s 61(6)(a).
121Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have imposed a sentence of 12 months’ imprisonment.
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