Director of Public Prosecutions v Ankur
[2023] VCC 1571
•31 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00925
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANKUR ANKUR |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2023 | |
DATE OF SENTENCE: | 31 August 2023 | |
CASE MAY BE CITED AS: | DPP v Ankur | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1571 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | |
| For the Accused | Mr D. Dann KC with |
HIS HONOUR:
1 Ankur Ankur, you have pleaded guilty to one charge of dangerous driving causing death. That crime carries a maximum penalty of 10 years' imprisonment. This matter has a long and complicated history which I will be going through in a moment. You are now 34 years of age. You were 27 years of age at the time of the offending. Accordingly, there has been a very significant delay through factors not your responsibility. I take that very much into account and I will be going through, as I say, a chronology very soon.
2 Your plea of guilty is accompanied by appropriate remorse. I accept that. You must also get the utilitarian benefit of that plea of guilty, particularly in these times of Worboyes. You have no prior of any significance or that in any way relate to this sort - this matter. I understand that now in the seven years since this offence was committed you have had no further offending or dealing with the police.
3 It is obvious with any charge of this nature that general deterrence would have to play a very significant part. Specific deterrence in your situation I think is probably of little weight. Denunciation has to play a part and there must be an appropriate punishment and that is really the question in this particular set of circumstances.
4 The history of the matter is - and I will go through a summary of the offending shortly, but the offence, that is of the dangerous driving causing death, occurred back in August 2016. You were interviewed in September 2016. You are of Indian descent and in April 2017 you had heard nothing and then were going with your partner to visit your parents in India. You were arrested at the airport, taken by surprise as I understand it, and taken into custody at Broadmeadows Magistrates' Court. You were then released on bail with the conditions that you surrender your passport. That was the way in which you found out about the charge being laid.
5 You then went on trial in July of 2019. The October of 2019 there was a re-trial and you were found guilty of dangerous driving causing death and remanded into custody. On 17 December 2019 you were sentenced by Judge Mullaly to five years and three months, with a minimum term of three years and six months in this court. On 4 May 2021, so some 18 months or so later, the Court of Appeal overturned that conviction. I will be referring to their decision in a moment. You were released from custody.
6 When this matter came on for trial very sensible discussions took place between your very experienced counsel and experienced counsel for the Crown, and it was effectively a situation where the time served of 454 days, as long as it was with a Community Corrections Order of some significance, would effectively be sufficient and that is a view with which I wholeheartedly agree.
7
The summary of the offending is that on 1 August 2016 you were driving your vehicle in the Geelong area. You were approaching the intersection of Breakwater Road and Barwon Heads Road in Belmont. You stopped at a
give-way sign, then gave way to a couple of vehicles. You then drove onto Breakwater Road apparently at an excessive speed. There is a dispute about the actual details, but it is alleged that the rear of the vehicle fishtailed. In any event, I accept that you were going too quickly and you were, according to eyewitnesses, seen to be speeding.
8 As you entered a slight left curve in the roadway you lost control of the vehicle and oversteered, clipped the beam safety barrier on the northern side of the road, and yawed back onto the incorrect side of the road, hitting the vehicle being driven by Mr Patrick Deagan. Mr Patrick Deagan was an 85-year-old man. I will be referring to what his son had to say in a moment. In any event, Mr Deagan lived for a couple of weeks, as I understand it, and then passed away.
9 There is no suggestion that there was any alcohol involved. There is no suggestion that there were any drugs involved. So I am well aware of all the matters contained in Neethling and take them into account. It is a bit hard to understand the nature of the driving that you were engaged in. You initially ran a trial on the basis that your cruise control had stuck. Whether that would have been successful in a retrial I do not know, but I certainly take into account that you have abandoned that and, with appropriate remorse, entered the pleas of guilty.
10 The only victim impact statement I have before me is from Mr Deagan's son, and he pointed out what a good father his father had been. He always looked after his son's sporting events, sent him to very good schools, had a lot of interest in life. He said that the biggest impact has been on his mother who has been Mr Deagan's wife of over 60 years. He said they did everything together, that she is heartbroken and essentially cannot deal with family functions or anything along those lines. She has become unwell. I take those matters into account.
11 The consequences of driving such as this, and the death of a person, always have unfortunate consequences, and I take it very much into account and certainly fully understand the feelings of Ray Deagan, his son, and also his wife.
12
I then look to matters personal to you and that can be done in pretty short compass. I have before me very succinct and very helpful outlines of submissions from your counsel. As I said, you are now 34 years of age. You were born in Chandigarh in India and came to Australia in 2009. You lived with your sister and her husband and their children for many years in Geelong.
You have a close relationship with them. Your parents remain in India. They are now in their mid-60s. Your father has bladder cancer and you have not been able to return to see them since you first arrived in Australia, but you have endeavoured to provide them with financial assistance.
13 It is clear from the chronology that I have given that you were, in fact, going back to see your father when you were arrested and taken to immigration detention. You have a partner, Alicia Strafford, and you share a daughter who is now, on my calculation, about 17 months old. I have before me a significant number of very impressive references and testimonials to your good character, that you are hardworking, that you are remorseful and the changes this has made to your life.
14 In any event, you completed a Bachelor of Arts in India before moving to Australia. Once you came here you completed Certificates in Automotive Technology and Business Management and you have apparently got a keen interest in aeronautical engineering. You have worked and continued to work in 2021 after you were released. I do not know if I put the date of that in. Yes, I do, Court of Appeal 2021. You worked as a site supervisor for Arkle Homes and, indeed, I have a strong testimonial from them as to your character and good work ethic.
15 Upon finalisation of this matter, you have employment available in Bendigo and that would assist you, as it is a week-on and week-off circumstance, in furthering your education. So far as this is concerned it is definitely an isolated event.
I have said that you have no prior - you have no prior or subsequent findings of guilt in any way related to this. I have a reference from the Gurdwara Sahib Geelong, a Sikh temple, where you have been a regular volunteer since 2009 and that in itself is impressive.
16 You are a first time offender and I have no doubt that the 454 days that you have already undergone in custody has been a very salutary lesson for you and should be a very salutary lesson for others. I have also taken into account the report of psychologist Alison Mynard who points out that your mental health deteriorated rapidly after this collision occurred, and it is obviously something that happens frequently in these circumstances, and I have always taken the view that if you do not do that there must be something wrong with you. You have clearly understood what you have done and shown extreme distress over it. She had diagnosed you with an adjustment disorder, that being a mix of anxiety and depression, at that time she saw you in custody. I accept that in custody you found it very, very difficult. Any further custody would be very, very difficult in itself.
17 The next matter that I have to look at before I go any further is the question of deportation. If you had been sentenced to a sentence of 12 months' imprisonment, even though the Act says it is automatic, the odds are high that you would have been automatically deported. I am not going to do that so it becomes a question for the Immigration Department. You are endeavouring to get yourself a visa. You are on a criminal justice visa at the moment. If and when that is cancelled you will probably go into immigration detention, so the circumstances are precarious in terms of yourself and your family and your partner and her family, who are all obviously very fond of you.
18
I take those matters very much into account. It is clear here that limbs 5 and 6 of Verdins come into play. It is not just a question of anticipation. You did find gaol very difficult and very distressing. You are not an Australian citizen, but
I think that the circumstances surrounding that are fairly obvious. I accept what your counsel says, that it has weighed heavily upon you all these matters, and you are working towards having a permanent home in this country and, of course, because of all this that will remain at risk for an indeterminate period of time, which is a significant punishment in itself.
19 Insofar as the delay is concerned, you were not charged until something like eight months after the event. When you eventually went on trial you then spent that five-hundred-fifty-four days in custody and you were then released. Accordingly, there has been another delay of an excess of two years because of judicial error and that can hardly be said to be your fault. It will be my view that after all this, after seven years of living with this and fear of deportation and all the other matters, that to return you to prison for any period of time would be unfair and verging on gratuitous.
20 The Court of Appeal upon setting aside the conviction also considered the sentence that had been imposed by His Honour of five years and three months with a three and a half year minimum. I will simply read what the Court of Appeal said because they are matters that I wholeheartedly agree with:
'Based on the jury's verdict in the trial, the judge was entitled to conclude that the applicant's offending was a very serious example of dangerous driving causing death, involving aggressive speeding in poor driving conditions in reasonably heavy traffic. Accordingly, the moral culpability of the applicant was quite significant. On the other hand, the applicant was entitled to rely on a number of important mitigating factors. Apart from a minor previous conviction, which the judge correctly discarded, the applicant had no criminal history.
'The large number of character references, tendered on the plea, testified to the fact that the applicant was a person of particularly high character. He had made good progress in Australia since arriving in the country at a young age, and he had made a contribution to the community in doing so. The applicant was entitled to rely on a significant delay in the hearing of the charge, and on his good behaviour during that period.'
21 I interpolate that that delay has now been increased by about 35, 40 per cent and the good behaviour has, indeed, continued despite the threat of all this hanging over your head. Back to the reasons:
'In addition, the judge accepted that, although the applicant had not accepted responsibility for the accident [well, I think you have] nevertheless he genuinely felt deep regret and empathy for Mr Deagan and his family.'
22 And they said:
'Further, as we have discussed, the judge accepted that the applicant was concerned about how his parents were coping, and that that concern would weigh heavily on him during his term of imprisonment. An important mitigating circumstance was the fact that the applicant faced deportation at the conclusion of his jail sentence. That consideration is relevant for two reasons. First, as the judge noted, that matter would weigh particularly heavily on the applicant.
'The applicant’s partner has a close family in Victoria. The applicant had intended to live with her here. His plans to do so would be rendered impossible if he was required to return to India. The judge accepted, correctly, that that consideration imposed a significant psychological weight on the applicant. And secondly, the deportation of the applicant, after he had lived in Australia for 10 years, and made a wide circle of friends here, would constitute an additional extra-curial punishment.'
23 His Honour - I will not read all this out. It is clear that Verdins applies. Later the Court of Appeal said:
'In a case such as this, the sentencing purposes of general deterrence and denunciation are of particular importance. However, notwithstanding the gravity of the applicant’s offending, and the importance of those sentencing principles, nevertheless we are persuaded that, in view of the combined effect of the mitigating circumstances on which the applicant was entitled to rely, the sentence imposed on the applicant was manifestly excessive.'
24 They, of course, in that situation did not give a figure. I would take the view - I would share the view with respect to the Court of Appeal the sentence was manifestly excessive even after a trial. It is over half the maximum penalty. Allowing for that being manifestly excessive, and reducing it accordingly, we then have a situation where you have now pleaded guilty, avoided the need for a further trial, giving some finality for the family of Mr Deagan and facilitated the interests of justice, that in itself gives another very significant - bearing in mind it is the time of Worboyes, another very significant mitigatory factor.
25 What I am going to do is put you, if you agree, on a four-year Community Corrections Order. It will be work hours only. I find that your rehabilitation is effectively complete and there is no risk of you reoffending. That will be with conviction, because I am not persuaded to do it without conviction is appropriate. That itself, taking into account decisions such as Boulton and Bradshaw, is a significant punishment in itself.
26
In these circumstances, bearing in mind the risk of your family being torn asunder by the Department of Immigration, I am not going to make it a combination order. It will be a straight CCO. However, I make it very clear that anyone viewing this who regards that sentence as unduly light - I am aware of the Court of Appeal decisions recently - it is done in the knowledge that you have done 554 days of very difficult custody and I simply will not be directing that that be time served. So, accordingly, that is, in a bizarre sense, an
extra-curial punishment and a very, very significant one indeed.
27
On reflection I have no doubt this is the appropriate decision. If you agree
to - the appropriate judgment, and if you agree to sign that Community Corrections Order I will make it. Sorry, 250 hours, four years.
28 MR DANN: If Your Honour pleases.
29 HIS HONOUR: You can stay seated. I know Mr Moore is now listening, I think. The only thing that was discussed, Mr Moore, was that the defence couldn't be any more specific about deportation. It's still very much up in the air. So as regards - - -
30
MR MOORE: Because I actually had a conversation with my learned friend before - this morning, Your Honour. I apologise for not coming on at 9.30.
I was ready to hop on at 9.30 and then I noticed that the invitation was for 10.30 so I thought I must have stuffed up, but some confusion anyway.
31 HIS HONOUR: Yes. No, that's all right. I appreciate that. That's fine. Are you in Warrnambool?
32 MR MOORE: Yes. I am, yes. Judge Doyle.
33 HIS HONOUR: Yes.
34 MR MOORE: But I did have that conversation with Mr Dann early this morning so I don't think I missed much and I joined just after Your Honour started.
35
HIS HONOUR: Yes. I wanted to make an end of it and it seemed to me that on reflection the overall situation pointed pretty much in the one direction.
I have no difficulty with that.
36 MR MOORE: Yes, Your Honour.
37 MR DANN: Can I approach my client for a moment, Your Honour?
38 HIS HONOUR: Yes, of course.
39
MR DANN: Your Honour, I'm just considering the licence situation and I'm
just - - -
40 HIS HONOUR: I never thought about that.
41 MR DANN: - - - perhaps giving the benefit of Mr Moore to consider it also, there was a previous order made by Judge Mullaly and I just want to try and confirm the terms of that order.
42 HIS HONOUR: I've got no idea.
43 MR DANN: Yes. Because it may be there's a mandatory licence - - -
44 HIS HONOUR: Yes, but I can - if there is I'll backdate it.
45 MR MOORE: It can be backdated.
46 HIS HONOUR: Yes.
47 MR DANN: Yes.
48
HIS HONOUR: I can backdate it to the day Judge Mullaly gave it, can't I?
I think that's - - -
49 MR MOORE: Yes, Your Honour.
50 HIS HONOUR: I don't think I can take it back any further than that.
51
MR DANN: Yes. So there was an order for - I think it's mandatory for
18 months. That's s89 of the Sentencing Act I believe. So that was
17 December 2019. But our client applied to get his licence back and has since his release, but it's very much, you know, within days either side.
52 HIS HONOUR: So what's the mandatory?
53 MR DANN: Eighteen months
54 HIS HONOUR: Right. Well, what I'll do - and that was given in 2019?
55 MR DANN: Yes, 17 December 2019.
56 HIS HONOUR: All right. Well, I'll make it licence disqualified. Do I have to disqualify it?
57 MR DANN: Yes.
58 HIS HONOUR: Yes. I can't suspend it, no. All right. Well, he may have to go get it again. That's all.
59 MR DANN: Yes.
60
HIS HONOUR: I'll disqualify it for 18 months commencing from
12 December 2019.
61 MR DANN: 17.
62 HIS HONOUR: 17 December 2019.
63 MR DANN: If Your Honour please.
64 HIS HONOUR: Mr Dann, if you wouldn’t mind or Ms Ball going down with it.
65 MR DANN: Yes.
66 HIS HONOUR: Yes. Now, this is a community corrections order. All right. It's work hours. I've given you a long time to do them. If you run into difficulty with doing them don't put your head in the sand. Talk to people about it. All right? You can always work your way round it. Right. Any have offending like obviously the results will be catastrophe. All right? All right. Well, that's done. So there's no others orders I need to make, no forfeitures, no nothing?
67 MR DANN: No, Your Honour.
68 MR MOORE: No, Your Honour.
69 HIS HONOUR: All good. Very well. Thanks, Mr Moore.
70 MR MOORE: Thank you very much, Your Honour.
71 HIS HONOUR: Thanks, Mr Dann, Ms Ball. Thank you for that.
72 MR DANN: If Your Honour please.
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