Director of Public Prosecutions v Anand

[2017] VCC 1878

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01233

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUBHA ANAND

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 December 2017
CASE MAY BE CITED AS:	DPP v Anand
MEDIUM NEUTRAL CITATION:	[2017] VCC 1878

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B.F. Kissane QC	Office of Public Prosecutions
For the Accused	Mr D.A. Dann QC	Tony Hargreaves & Partners

HIS HONOUR: 

1Subha Anand, you have pleaded guilty to one charge of culpable driving and one uplifted charge of exceeding .05.  Culpable driving carries a maximum penalty of 20 years; exceed .05 a monetary penalty.  In these circumstances,
I would not fine a person, so accordingly, on the exceed .05 charge, you are convicted and discharged and any driver's licence is cancelled and you are disqualified from obtaining a licence for a period of 15 months.

2I make a declaration pursuant to s.89C insofar as the nature of the offending is concerned, and that matter will be referred to the Road Traffic Authority.

3Today is your 30th birthday.

4You pleaded guilty after forensic investigations had been exhausted, and
I accept for these purposes that the plea of guilty has been accompanied by, in the end, appropriate remorse and, indeed, on the material before me, shame.  You must also, of course, get the utilitarian benefit of that plea of guilty, not only in the sense of witnesses having to be called, but in terms of the additional anxiety and despair that trials such as these cause to the family of the deceased person.

5You have no prior convictions of any description.

6At around 2 am on Sunday 10 January 2016 you were drinking with your then boyfriend, now husband, and some others.  You became upset with him related to a conversation involving his ex-wife.  You left the premises that you were at on your own in your car.  You were apparently told, or certainly asked, not to drive.  You left and travelled for approximately 2.7 kilometres and were approaching the intersection of Palmers Road and Sayers Road in Williams Landing.  You were driving east on Sayers Road.  You drove into the right turn lane at the intersection with Palmers Road and impacted the rear of a Hyundai that was waiting to turn right.  Your speed was estimated to be in the order of 115 kilometres per hour.  That is a 70 kilometre per hour zone.

7The impact from behind caused the Hyundai to travel across the eastbound lanes, where it came to rest against a fence.  Your vehicle continued to travel into the path of an Audi which was travelling west, and your vehicle and other collided.  That caused your car to rotate and come to rest on the centre median strip. 

8The Hyundai was being driven by Natasha Piggott, a 19 year-old girl.  She died as a result of the injuries sustained in that collision.  The driver of the Audi was not injured and you suffered minor injuries.

9At the Royal Melbourne Hospital a blood sample was taken approximately two hours later, which ultimately showed a percentage of .159.  I sentence on that basis.  There is always a case in these matters, an area, or can be an area of conflict with the experts, but it is agreed that I sentence on that basis.  The charge of culpable driving is put on that basis and also the gross negligence in travelling at a speed some 45 kilometres over the limit and colliding with the rear of a stationary motor vehicle.  I have indicated I have dealt with the summary matter already.

10There is no evidence on the road itself of any braking.  There is apparently some oral evidence, or verbal evidence, from a witness that may suggest that you did, but in any event, it was of little consequence in the end if it did happen.

11Earlier that day Ms Piggott had spoken with a friend about attending a 21st birthday party.  She told that friend that she would pick her up from the party that night and drive her home, so she stayed home with her mother and younger sister accordingly.  I heard the victim impact statements from each of them.

12At about ten to 12 she told her mother, instead of her going to the party, she was going to pick up a friend and drive her home to Melton, which she did.  She was invited to stay overnight but decided to drive home, and it was on the way home that the impact occurred.

13Immediately after the impact you were spoken to and you told witnesses and police that arrived at the scene that you were not the driver and a friend named Simal Singh was driving but that you did not know his address.  Despite grave suspicions to the contrary, I will sentence - I could not be satisfied beyond reasonable doubt that that was a deliberate intended attempt to avoid detection.  You were clearly heavily intoxicated, on the materials before me, and I have to work on the basis that you were in a state of shock.  The only relevance of that is in the sense that, as counsel pointed out, on the face of it, it detracts from what is later expressed to be remorse, but I feel that in this situation I could not sentence on that basis.

14You did voluntarily provide a DNA sample and that established that the DNA on the airbag was 100 billion times more likely to be you.  I am assuming the airbag had never been inflated before.

15The Crown's submission is that this is a serious example of culpable driving and a significant sentence of imprisonment is warranted, and your counsel does not demur from that proposition.

16The offending is, in my view, a very serious example of culpable driving.  It incorporates not only the driving at a grossly excessive speed, but doing so in a situation where you must have been aware of your level of intoxication.  It calls for the application very much of general deterrence, which is often the principal sentencing purpose in these matters.  Specific deterrence is somewhat more debatable in that the prospects of your ultimate rehabilitation should be good and the risk of you reoffending in such a way, I would have thought, would be low.  However, the principles of denunciation and appropriate punishment must also play their part in the sentencing process. 

17In determining the length of that inevitable gaol sentence, one looks at the consequences to you and the consequences to the family and all others associated with the deceased young lady. 

18Her mother and her sister read out victim impact statements in this court and the victim impact statements of her grandparents were read to me by the prosecutor, and I have obviously had the opportunity of re-reading those overnight.  I will not read them in full, but I think it is important for the understanding of just how serious this offending is and the unbelievably painful consequences for the family that has arisen from it. 

19Her mother said:

"On 14 June 1996, the day my beautiful daughter Natasha was born, it was the happiest day of my life.  I swore that I would protect my baby forever, but come 10 January 2016 I feel I failed her as a mother.  The guilt I feel because I wasn't there to protect my precious daughter from the most horrific, unforgiving, selfish", I think it is, "act of another human being, I wasn't there when she needed me."  The disbelief, shock and trauma to hear those words from the police that your daughter was killed is etched in her memory forever.

20She said:

"All I wanted was to get to my daughter to hold her, to fix this and make this all go away, to change every step leading up to this devastating life-changing moment.  I felt hopeless.  Days felt like years before I got the chance to touch my baby, and when I had this chance I was scared to touch her.  Natasha was warm and full of life.  Now she lay lifeless and cold.  This is the moment I now started to believe all this wasn't a nightmare, this was real, my baby is dead. 
I wanted to die with her."

"I no longer know how to smile and really feel it.  I can't remember the last time I actually laughed or enjoyed myself.  I used to be a happy person, but now
I am full sadness, pain, anger and fear.  I have had to find the strength to get through each day, which is so exhausting."

"Family events are painful now as Natasha isn't there with us to celebrate them.  All I have is a candle that I take with me and light it so that it feels like her presence is there.  I have had to endure my 40th birthday, Mother's Day, Christmas and two of Natasha's birthdays, the last being her 21st, and the only way I could celebrate it with her was to take her favourite pink icing cake to her gravesite and singing her Happy Birthday there."

21Her sister said:

"Nineteen with a whole life ahead of her.  So many things to do, so many places to see and so many more memories to make.  Natasha was a daughter, granddaughter, sister, niece, cousin and friend.  She will not see the world, she will not fall in love, nor will she have children of her own.  I will never become an auntie and my future children will have to visit theirs at her gravesite."

22"I have seen and felt things no teenager should ever have to see or feel.  I chose songs and photos for a funeral that was never expected so soon or spoken of.  I helped choose my own sister's gravesite and watched her coffin buried into the ground.  I spend days at the grave trying to feel her presence but it's never enough."

23The victim impact statement of the grandparents, again summarised in brief form.

24Her Nanna:

"The life I used to live no longer exists any more.  My heart is forever broken. 
I will never see her grow up and mature from a teenager to a young woman, get married or have children of her own, and this hurts me very much."

25Her Poppy:

"She always had a kind heart and all she wanted to do was help people or animals in her career.  She chose nursing and was excited and happy when she chose nursing, and I remember the time she would talk fondly about how the elderly at Sunshine Hospital would look out for her when she was on external placement as work experience in hospitals.  The family was so proud of her."

"In the house we have many photos of Natasha and a little remembrance garden out of the front of the driveway, which is nice, but it can never bring back our kind, generous, loving, beautiful granddaughter."

26That is what you achieved by driving at a gross speed in a drunken state on that particular night.

27I then look to matters personal to you in determining the appropriate sentence in all these circumstances. 

28As your counsel has rightly pointed out, you have no prior convictions, which is of significance.  It is not all that unusual in such matters, but it is of significance.

29You have now put yourself in a situation where there is potential, at least, of you being deported.  You, as I say, turned 30 today.  You were born in India, raised in New Delhi.  Your parents have been living in India and married for some 35 years.  Your father, when finding out about this matter, and I accept this from the Bar table, apparently had a heart attack.  Your mother has come here to endeavour to support you.  There is a query as to how long she is going to be able to stay here. 

30In New Delhi you completed Year 12.  You went into a dentistry course but could not afford the fees.  You came to Melbourne at the age of 20 and have now become, as I understand it, a permanent resident.  That still leaves you open to being deported.

31Once arriving in Melbourne, you undertook and completed a Certificate IV in Cellar Management at the Institute of Education, and you undertook and completed a Bachelor of Hospitality and Retail Management at the Carrick Institute of Education.

32You have been employed and worked in telecommunication customer relations from 2012 to 2013.  You worked with BP Australia as a customer service representative from 2013 to 2016, and indeed, I have read references from people who worked with you.  After you resigned from that position because of these matters, you have done part-time bookkeeping.

33You had tendered on your behalf a great number of personal references, and
I have obviously read all of those and take them into account in this sentencing process. 

34You were in a relationship with a Mr Singh, who you married in 2011.  I have seen the materials in regard to that, and there would appear to have been, and I accept that, domestic violence in what was a very unhappy relationship.  That marriage was terminated and you subsequently married your current husband some months after this collision occurred.  You have one child born on 8 March 2017, who was conceived, again, some months after this action on your behalf.

35It is clear from the materials that prior to this collision you suffered from depression and anxiety in the context of that domestic violence, and I accept that that is the case.  You were prescribed medication back in 2013 and that has been referred to by Mr Newton, psychologist, who gave evidence on your behalf.  I will be quoting from his report in a moment, but I accept for sentencing purposes that you have suffered a major depressive disorder following your actions on that night and continue to suffer from it.

36In simple terms, those references indicate that you have a good work history, that you have engaged in community work and, prior to this collision, that you are essentially a religious person who has been a worthwhile member of the community up until that night.  You now have, a seven month old child.  It has been put to me that you will be separated from that child, and
I accept that that is the case and I sentence on that basis, that that will cause hardship to you.  It cannot be put to me how long that separation will be for, and I have no detail from the gaol as to if the child is allowed to go to gaol with you, which may well be the case, how long it will be allowed to remain there.

37Again, I have no evidence before me about the prospects of deportation other than that legislatively you are under threat of it if the Department so choose. 
I accept, because of a number of matters, including that fear of deportation, if that is what it is, it will be harder in gaol for you than it would be for other prisoners.  I accept that the separation from the child will make it harder as well, and I take that into account.

38A number of reports were also tendered on your behalf.  I do not need to go through the general practitioners' reports.  They say what I have already said, that you were already suffering from depression and anxiety as a result of your marriage, I am assuming, and this has certainly exacerbated it.

39Mr Newton examined you and found essentially that your responses in examination, certainly in testing, were exaggerated.  Again, for these purposes, I accept your counsel's submissions that I look at the overall circumstance rather than what might not have been a deliberate malingering.  He said that you "experienced a severe emotional response to the collision of January 2016.  She developed an acute depressive reaction dominated by significant feelings of grief, shock and guilt at having been involved in the death of another person.  As time progressed, Ms Anand also developed significant anxiety-related symptoms which have grown more intense as her plea hearing has drawn near", which is not uncommon.

40You have experienced, he says, transient bouts of suicidal ideation, and
I accept that.  You have, as he has indicated and I have already indicated, a prior history of depressive mood disturbance in 2013, and he then confirms that your current symptoms indicate a major depressive disorder of moderate clinical severity.  He has the view, and I always respect his views, that your mental state could deteriorate significantly in the time following sentencing and that ongoing treatment is clearly needed.  I have no doubt that the pharmaceutical treatment will be available in prison, but I have a deep suspicion that you will get very little psychological assistance. 

41He said that your thought processes are logical and coherent.  He estimated your intelligence to fall in the high end of the average range.  He said that your moral reasoning and reality testing are unimpaired.  He works on the basis that your level of intelligence should "augur well" for your prognosis. 

42He said further on, "Beyond this, Ms Anand's emotional response to this incident has been intense.  She is considered likely to internalise the punitive aspects of sentencing in an especially severe manner.  As a result, as I have indicated, there's a significant risk that her mental state could deteriorate." 

43He goes on to say that your risk of reoffending is low, that he bases that on your current involvement with the legal system has been very upsetting and distressing for you; you express, and I accept this, profound sense of guilt and remorse; that you do have the close support of your husband and family; that you have a stable history and engagement in work and community activities; and there is no pathology that would act as a potential criminogenic factor to precipitate further offending.

44So the situation in the ultimate is that your prospects for rehabilitation should be good if you receive the appropriate assistance, and the risk of you reoffending in this way should be low if you receive the appropriate assistance. 

45You are entitled, of course, at a plea hearing of this nature, to call into aid your previous good character, your work record, the way you have conducted this matter insofar as ultimately pleading guilty once the forensic matters had been resolved, and your remorse and shame.

46You have indicated, insofar as your own situation is concerned, that you have "self-loathing", "can't stand yourself" and "hatred for yourself."  You were diagnosed by others as having a post-traumatic stress disorder and the perceptions that you now have of yourself and your conduct are strongly indicative of that.  However, Mr Newton, and I accept his view, takes the view that your claimed amnesia in relation to the matter makes it a major depressive disorder and not, in his view, a post-traumatic stress disorder.  However, I do take those symptoms into account as matters that you will have to live with as you undergo your sentence.

47All those matters favourable to you, balanced against the dreadful crime that you committed and the dreadful consequences that that has had for so many people, also the sentence that I impose must be one which deters likeminded people from doing what you did that night.  Yours is not a situation of an alcoholic or someone who has trying to drive to get to work or anything like that.  You made a decision to drive heavily intoxicated and at, quite frankly, an extraordinary rate of speed.  Accordingly - and I will make it clear that I have read the materials put to me insofar as sentencing statistics are concerned, like cases, for what they are ultimately worth, and certainly the sentences for culpable driving in this jurisdiction over the last number of years. 

48You say, and there is no reason to doubt it, that you have your faith to deal with during all this, the family do not have their daughter. 

49Accordingly, on the charge of culpable driving, you are sentenced to be imprisoned for a period of seven years.

50Because of your personal circumstances and because of the matters that were first raised this morning insofar as deportation is concerned, and because of the circumstances involving your child, I have taken the view that an opportunity for parole should be granted at a time that would be earlier than might otherwise be the case.  Accordingly, I direct that you serve a minimum term of four years before becoming eligible for parole, and I direct that one day be reckoned as having been served under this sentence.  That is yesterday, that's right, isn't it?  Yes.

51So that you understand the benefit to you of your having pleaded guilty, I tell you that pursuant to s.6AAA, had you pleaded not guilty to these matters, or this matter, and been convicted by a jury, I would have sentenced you to be imprisoned for a period of ten years with a minimum term of seven.

52Are there any other orders I have to make, gentlemen?

53MR KISSANE:  Yes, Your Honour, there's the driving cancellation on the culpable driving.

54HIS HONOUR:  Yes, look, in this scenario, the size of the sentence, I am just going to make it 24 months and leave it at that.

55MR KISSANE:  Yes, certainly, Your Honour.

56HIS HONOUR:  That is because of the size of the sentence, this isn't - all right. 

57MR KISSANE:  The forfeiture has been done, I think.

58HIS HONOUR:  All that has been done, hasn't it?

59MR KISSANE:  Yes, it has,  Your Honour.

60HIS HONOUR:  Yes, remove the prisoner, please.

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