Director of Public Prosecutions v Ali
[2024] VCC 1417
•4 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00712
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAJAB ALI |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2024 | |
DATE OF SENTENCE: | 4 September 2024 | |
CASE MAY BE CITED AS: | DPP v Ali | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1417 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Dangerous driving causing death – Category 2 offence – no need to evaluate s 5(2H) – no criminal record – good prospects of rehabilitation – out of character – inattention – remorse –
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Sentence: Total effective sentence of 10 months imprisonment. 303 days of pre-sentence detention declared as time already served under this sentence – licences cancelled and disqualified for 20 months from today.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Ms C. Marcs | Stephen Andrianakis & Associates |
HER HONOUR:
Introduction
1Rajab Ali, you have pleaded guilty to one charge of dangerous driving causing death, which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances in which you came to commit that offence are set out in the summary of prosecution opening for sentence indication dated 9 August 2024, which was read into evidence and marked as Exhibit A. The prosecution also relied on prosecution submissions for sentence indication dated 12 August 2024, (Exhibit B), and the victim impact statement of Sainthiray Sriskantharajah dated 27 August 2024 (Exhibit C).
3In addition to the matters developed in oral argument, your counsel relied:
· Brief Outline of Submissions dated 9 August 2024 (Exhibit 1);
· Screenshots demonstrating your involvement with the Hazara Democratic Party (Exhibit 2);
· Letter from Abdul Khaliq Hazara, Chairman of the Hazara Democratic Party, dated 31 July 2024 (Exhibit 3);
· Application for a protection visa dated 2 August 2024 (Exhibit 4);
· DFAT country report for Pakistan, with focus on pp 18 to 19 of that document (Exhibit 5);
· Certificates of courses completed whilst in custody (Exhibit 6); and
· Character references (Exhibit 7).
4I have had careful regard to all exhibited documents, and to the extensive list of cases cited therein, as well as considering carefully the matters developed by each counsel in oral argument.
Circumstances of your offending
5On 6 November 2023, Mr Thiagarajah Sriskantharajah was 77 years of age, and had lived in the Mount Waverley area for approximately 35 years. He was accustomed to going for a walk in the mornings, and would usually take the same route, which involved him crossing High Street Road at the pedestrian crossing between Charles Street and Leeds Road in Mount Waverley.
6At that location, High Street Road is a four lane, two-way carriageway oriented in a general east-west direction. Two lanes run in each direction, separated by a solid white line. Each lane within those two lanes is separated by a broken white line. The outside edge of each lane is boarded by rolled concrete gutters, and beyond the rolled concrete gutters is a narrow nature strip and footpath. The posted speed limit of the crossing is 60 kilometres per hour, which was displayed on posted signs.
7The relevant pedestrian crossing, located between Charles Street and Leeds Road, is in a generally north-south direction. I have been provided with photographs of the crossing, in the defence outline of submissions. Whilst on his morning walk, Mr Sriskantharajah approached the pedestrian crossing and pressed the call button to cross from the north side of High Street Road to the south side. The traffic light applicable to him turned amber and then red, and he stepped out onto the road, where he was unfortunately struck by a utility driven by you. Unfortunately, you had failed to appreciate that the light controlling your driving was red, and that he had right of way.
8At the time of this incident, you were 42 years of age and were living in Doveton. You were born in Pakistan and were present on a working visa which was due to expire on 12 December 2023. You were the holder of a Pakistani driver's licence, which entitled you to drive in Australia. You were working as a renderer, and you were also working as a bookkeeper in a warehouse. You were driving a silver 2008 Ford utility vehicle that belonged to your employer, and you were then travelling from your first rendering job of the day to your second job along High Street Road in an easterly direction. As you approached the intersection, there were two cars stopped at the red light in the right-hand lane at the eastbound carriageway of High Street Road, who were already stationary at the lights, when your utility proceeded past them in the left-hand lane and into the crossing against the light.
9The occupant in the front seat of the first car in the right lane observed Mr Sriskantharajah wait until the green man was displayed on the pedestrian crossing, and then step out onto the roadway, then the driver of the second car noticed your utility passing, and he heard the sound of the collision between your utility and the deceased gentleman. The collision occurred at 9.34 am.
Investigation and interview
10You were questioned by police at the Glen Waverley police station regarding the circumstances of the collision, and you told police that the utility that you were driving belonged to your employer, and it was a company car that you frequently drove. You told police that you were employed as a renderer and had started work about 7.30 am that morning, and that at the time of the collision you were driving from one job in Glen Waverley to another job.
11You told police that at the time of the collision, you were using the iPhone app on your phone to get directions to the second job, and your phone was in the cup holder in the centre console. You told police that the light applicable to you was green, and that you recalled seeing a man standing at the lights, and the man hit the side of the car breaking your side mirror.
12After the police told you that witnesses had told them that the light applicable to the pedestrian was green, you told the police that you were absolutely confident that your light was green. When the police asked you if you had noticed that other cars around you had stopped at the pedestrian crossing, you replied that you had not noticed the stationary cars, and you later told police that the cars travelling in either direction were moving.
13Investigators later obtained a report from the Department of Transport and Planning outlining the sequence for the traffic lights at this pedestrian crossing, which revealed that the light applicable to traffic turned amber for four seconds, before turning red. After the traffic light turned to red, there was a further three second gap in the sequence before the light applicable to pedestrians turned green.
14Police expert, Detective Sergeant Robert Hay from the Collision Reconstruction and Mechanical Investigation Unit, attended the scene and concluded that your utility hit the victim in a sideswiping or glancing motion. This left Detective Sergeant Hay unable to calculate the pre-impact speed of the utility. From Detective Sergeant Hay’s assumptions and calculations, you were possibly 116 metres away from the pedestrian crossing when you first had the opportunity to see that the light applicable to you had turned amber. He interpreted a faint tyre mark, consistent with an ABS skid mark, and your utility was fitted with ABS brakes, and this mark in combination with his interpretation of the position of the load in the tray of the utility may have meant that you applied emergency braking approximately 6.6 metres before the stop line at the pedestrian crossing.
Effect on the victim
15As a result of your offending, you killed Thiagarajah Sriskantharajah.
16I received a victim impact statement in this case, from Mr Sriskantharajah’s daughter, Sainthiraya Sriskantharajah, which was read aloud to me. She spoke of the profound loss and grief that you have cause her and others. It is difficult to do justice to the way in which that loss is articulated without reading directly from the statement itself, which is what I intend to do.
17Ms Sriskantharajah told me:
My father's passing isn't felt by just my immediate family but the whole extended family and a wide circle of friends. He was an elder brother, uncle, grandfather, granduncle to his sisters, in-laws, many cousins, and all their children and grandchildren. My father had a close relationship with all of us and we are all dealing with his passing differently. There is anger, disappointment, regret, sorrow, fear, frustration and immense grief. But most of all we simply miss him. We wish he was still here.
But what is done is done and cannot be undone. As a family we are, all of us, doing our best to move forward and channel our grief to honour him and his principles.
Thinking back to that day, I think most about the witnesses who called emergency and stopped to assist. They also have to deal with this trauma. To them I am immensely grateful. Because of them and the quick response of the paramedics we had a chance to say goodbye to my father. I am also grateful Mr Ali didn't leave the scene but stopped to assist. That Mr Ali didn't leave has helped us process our grief better. Had he fled the scene, I know my family and I would be trying to navigate much more negative and pessimistic emotions.
Mr Ali made a mistake. We have all had momentary lapses in concentration when driving. But we have been lucky there were no serious consequences. Here, the consequences are immense, not just for our family but also Mr Ali and his family.
My father was a compassionate man who believed anyone who took responsibility for their actions and subsequent consequences deserved another chance to do better. He believed it was important to learn from your mistakes. I hope that we do.
18She has lost a cherished and extremely dear family member and has experienced grief as a result of your criminal conduct. I will foreshadow that I agree with Ms Sriskantharajah’s wise and compassionate analysis, in the context of her significant grief, that you made a mistake by your momentary lapse in concentration. The consequences for the victim's family are immense, but it is apparent that you understand what you have done, and the sorrow that you have caused, and you are deeply remorseful for your significant mistake.
Plea of guilty, timing, remorse
19You were charged after your arrest and were remanded into custody. In the meantime, your visa permitting you to remain in Australia lapsed, which is a topic to which I will return. The matter proceeded in the committal stream in the Magistrates’ Court, and after a committal proceeding, which involved the cross-examination of witnesses, you were committed to stand trial in this court on 6 May 2024. In ensuing months, you sought an indication as to the sentence that I would be likely to impose were you to plead guilty to the proceeding charge. The matter resolved promptly as a plea of guilty upon your acceptance of that indication.
20I accept and take into account that your plea of guilty was entered at a mid-point of proceedings, prior to this court listing your matter for trial, and well prior to any jury being empanelled to try the issues in this case, which has saved the court, the witnesses and the community the time and expense of a trial.
21Your plea is of considerable utilitarian significance and, moreover, I consider that your plea is accompanied by considerable remorse and insight. I mitigate sentence on each of these bases.
Personal circumstances
22You were 42 years of age at the time of your offending and you are now 43. You were born in Quetta Balochistan, one of six siblings born to your parents. You are of Hazara Shia ethnicity and religion. One of your younger brothers lives in Australia and is employed as a renderer, and your other siblings reside in Pakistan.
23Your father worked in the coal industry, and he unfortunately passed away in 2000, and your mother was a homemaker, and she unfortunately passed away in 2007.
24You completed high school in 1995, and obtained a master’s degree in Economics in 2004 to 2005 from the University of Balochistan in Pakistan. You worked as an accountant in Pakistan from 2008 to 2022, and, more recently, you owned and ran a retail stationery shop.
25In 2008, you became engaged to your wife, and you married the same year in an arranged marriage. You have three children together, two daughters born in 2012 and 2014, and a son born in 2018. Recently, your safety was threatened as a result of your position in the Hazara Democratic Party, and you came to Australia in July 2023 without your wife and children, on a temporary short stay specialist visa, which was in your view the most expedient way of leaving Pakistan.
26This visa expired after you were remanded into custody, and in August 2024, you applied for a protection visa.
27Since you have been remanded into custody, you have been unable to earn a wage, which you had previously remitted to your wife to help in her care and that of the children, and the effect of the time in custody has weighed heavily upon you by reason of your concern as to the impact on your family of your failure to be able to provide, which I take into account in mitigation of sentence.
28At the time of your offending, you had no prior criminal history, and were a person of good character, evidenced by your long history of hard work and professional success. This offending is deeply out of your character, and I attach considerable mitigatory weight to your prior good character.
29I have been told that your application for a protection visa depends upon the relevant government department's assessment of not only the merits of your application, but also its assessment of your character, and your future prospects of being granted permission to remain in Australia are uncertain, which has also weighed heavily upon you, and which I also take into account in mitigation of sentence.
30I have been provided with material which assists me to understand the fears that you experienced in Pakistan as a result of your cultural and political association, and I have also been provided with references from others who help me to understand your character, as well as being provided with a significant number of certificates of completion of courses whilst in custody.
Objective seriousness of the offence, moral culpability
31You have pleaded guilty to a charge of dangerous driving causing death, and the dangerousness of your driving is characterised by your failure to pay proper attention to the roadway, and your failure to observe and stop at the red light applicable to you, when you had ample time to do so. As a result of these failures, your vehicle sideswiped the victim and caused his death. If you had observed these standards, you would not have killed him, as he was able to be seen, and had the benefit not only of a green man, but of the right of way that the green man signalled to him.
32I accept the view as submitted by defence, and substantially accepted by the prosecution, that your failures to take appropriate care as a driver were brief and momentary and out of your general character, and the objective gravity of your offending falls towards the lower end of matters coming before the court on this charge, as does your moral culpability.
33This case lacks some of the features that mark more serious instances of the offence, in that you were not speeding, you were sober and not affected by drugs, there was no allegation of any erratic or aggressive driving, there is no evidence that anyone other than the deceased gentleman was put at risk by your driving, and it is not suggested that you deliberately ignored any warnings. You immediately stopped and rendered such assistance as you could to the victim at the scene and co-operated with police in their attendance upon you at the scene. You understand what you have done, and I infer that you will reflect on your actions and their devastating consequences for a long time.
Purposes of sentencing
34In cases of this nature, the need for general deterrence is high; in other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and to punish you for your offending.
35On the other hand, the sentencing exercise also obliges me to have regard to other purposes of sentencing, specifically, specific deterrence, that is the need to deter you from other similar conduct, and also to allow for your rehabilitation. In my view, the need to specifically deter you from other similar conduct is very low.
36I also accept that you have excellent prospects for rehabilitation, as a result of the combination of the following factors:
· the fact that this is an offence involving only momentary inattention by you, followed by reflection upon your misconduct ever since;
· your lack of any criminal history, in the context of an otherwise blameless life, of industry, and of your general character of providing considerable support to your family and friends; and
· that you are genuinely remorseful and contrite for the severe pain and profound loss suffered by others as a result of your offending.
Relevant sentencing principles
37The offence of dangerous driving causing death is a Category 2 offence under the Sentencing Act 1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a) to (e) can be established. A sentence involving a combination of custody and a community correction order is not permitted.
38In my view, it is unnecessary to undertake this evaluation. There are practical difficulties with you being able to comply with a community correction order owing to uncertainty as to your future eligibility to remain in Australia. In any event, in all of the circumstances, after careful evaluation and reflection, I consider that the proportionate sentence is one involving a short period of immediate imprisonment. I was assisted in my evaluation by counsel providing numerous sentences imposed by other judges on this offence, and I am of course aware of current sentencing practices.
Sentence
39On the charge of dangerous driving causing death, you are convicted and sentenced to 10 months’ imprisonment. Were it not for your plea of guilty to this charge, had you proceeded to jury trial but been found guilty, I would have imposed a sentence of 18 months’ imprisonment. I reckon and declare 303 days' pre-sentence detention.
Ancillary order
40All licences will be cancelled and you will be disqualified from driving for a period of 20 months from today.
41Are there any other orders that I need to make?
42MR BROWN: No, Your Honour.
43HER HONOUR: Thank you. Anything else?
44MS MARCS: No.
45HER HONOUR: Yes, thank you, I will adjourn briefly.
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