Director of Public Prosecutions v Bakar

[2017] VCC 1167

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-17-00743

DIRECTOR OF PUBLIC PROSECUTIONS

v

FATIMAH ABU BAKAR

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	21 August 2017
DATE OF SENTENCE:	22 August 2017
CASE MAY BE CITED AS:	DPP v Bakar
MEDIUM NEUTRAL CITATION:	[2017] VCC 1167

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Dangerous driving causing death; passenger died; inexperience driving in region; plea of guilty and remorse; likely deportation on release from prison

Legislation Cited:            Sentencing Act 1999, s 6AAA

Cases Cited:Stephens v The Queen [2016] VSCA 121 at [21]; King v The Queen (2012) 245 CLR 588

Sentence:8 months imprisonment; disqualified from driving in Victoria for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Mandy	Stuthridge Legal

HER HONOUR:

1Fatimah Abu Bakar, you have pleaded guilty to a charge of dangerous driving causing the death of Zainab Ahmad.  The maximum penalty for this offence is ten years' imprisonment.

2This tragic incident occurred on Sunday 15 January of this year.  Late that afternoon you were driving a Toyota Corolla sedan from Shepparton towards Ararat, where you and your friend, Ms Ahmad, who was your front seat passenger, were going to take up an offer of work on a farm.  You and
Ms Ahmad had met and become friends in December last year, both being from Malaysia, of similar age, and both having come to Victoria for work - mainly fruit picking.

3Shortly before 5 pm that day you were driving along Elmore-Raywood Road, Kamarooka, approaching the intersection with Bendigo-Tennyson Road.  The maximum speed limit applicable to vehicles on both roads was 100 kilometres per hour.  At the intersection, stop signs faced traffic on the road on which you were travelling.  You failed to stop at the stop sign, entered the intersection, and in doing so, failed to give way to a vehicle being driven on the intersecting road, and which had right of way.  The driver of that vehicle had noticed your vehicle approaching the intersection, but thought it was slowing and stopping, and proceeded to enter the intersection, into which she had right of way.  The front of her vehicle collided with the passenger side of your vehicle, and tragically the impact caused serious injuries to Ms Ahmad, who died at the scene.

4From police collision investigations it is estimated that the speed of your vehicle at the time of impact was approximately 57 kilometres per hour, and that you had been travelling at a minimum of 74 kilometres per hour before commencing braking.  The speed of the other vehicle at the time of impact is estimated to have been a minimum of 66 kilometres per hour.  For vehicles approaching the direction you were, there were advisory stop signs on each side of the road warning drivers travelling in your direction that they are approaching a stop sign.  These were approximately 160 metres east of - so, for you, before the intersection.  Also on your approach to the intersection - approximately 109 metres before it, on the left-hand side of the road - was a large green Route Advisor sign, which, if understood, also warns that an intersection is ahead.  The intersection was of sealed bitumen, as was each roadway.  Each road had a single lane for traffic in each direction.

5Photographs of the scene and approaches, including an aerial photograph, show that the intersection was of two straight stretches of road, with some trees lining the roads and long, dry vegetation on either side.  At the time the weather was dry and visibility clear, and it was broad daylight, being in mid-summer.  However, photos show that the terrain is quite flat, and the intersection would have been relatively difficult to see on the approach, with long vegetation a bit below eye level for a driver of a sedan, and trees also potentially blocking your view, from a distance, of any vehicles on the crossroad.

6In pleading guilty to this charge, you admit that your standard of driving at the time should be categorised as dangerous, so there must have been some feature which involved more risk than that ordinarily associated with the driving of a motor vehicle.  You claim to have no recollection of the moments leading up to the collision, so can give no explanation of why it occurred.

7I infer from your plea of guilty that in braking too late to stop at the stop sign, you had either failed to notice, or to understand, the warning signs of an approaching stop sign and intersection, and failed to observe that you were approaching the intersection.  The investigation showed that you did apply the brakes of your car, but too late to stop.  You were not familiar with this area, and indeed, had very limited driving experience in such an area.  You did not have a Victorian driver's licence, and were driving on a Malaysian licence.  You had apparently driven from Queensland to Victoria in June last year, but had done very little further driving since then, before this day.

8As I say, being inexperienced with driving in such a flat area, on a relatively narrow roadway, it is unclear whether you simply failed to notice the warning signs, or did not understand them, or to expect an approaching intersection.

9I must assess the seriousness of this offending, including your own culpability; that means your level of personal blame for the collision.  As an element of the offence is that a death was caused, the fact of a death resulting does not determine how serious an instance of this offence this was.  Appeal courts have stated that this offence encompasses a very wide range of conduct.  Some of which instances, despite their tragic consequences, may attract considerably less condemnation than others (King v The Queen).[1]

[1] (2012) 245 CLR 588.

10As already stated, your driving seems to have reached the dangerous level due to not noticing or understanding the warnings of an approaching stop sign and intersection - probably in combination with inexperience as a driver in countryside and terrain such as this.  Of significance is that there were no aggravating features, such as being under the influence of alcohol or illicit drugs.  You were not exceeding the speed limit.  There is nothing to indicate that you were unreasonably fatigued at the time - having slept well the night before - and this point being approximately 100 kilometres from where your journey commenced, during which you either drove at moderate speed, or had stopped. There is nothing to indicate that you were engaging in any other reckless aspect of driving, or showing off.  You had one passenger; another woman aged in her late 30s, in the car. 

11I infer that you either lost concentration, or simply through not knowing the area and being inexperienced driving in Victoria, failed to notice or understand the signs warning of the approach of the stop sign governing traffic travelling in your direction.  I regard this as an instance which calls for considerably less condemnation than many others.  As I have said, there were none of the often found aggravating features distracting you or influencing your driving.

12There can be no doubt that the consequences were tragic.  Ms Ahmad was aged 38, and far too young to lose her life.  She had family in Malaysia, and although I have no statements from them, nor much detail about her life, I assume that there are family and friends of hers who have grieved for her loss, and will continue to do so.

13You yourself were injured in the collision - sustaining broken ribs and a fracture to the left side of your pelvis, and you were subsequently conveyed to hospital.  Statements from people at the scene confirm that you were very concerned and distressed about Ms Ahmad, asking if she was all right, and then extremely distressed once you learnt she had not survived.

14The driver of the other vehicle, Ms Allit, sustained lacerations to her right side and bruising consistent with a seat belt injury.  She was also taken to hospital but discharged that day, and suffered no lasting physical injury.

15I turn now to your personal circumstances.  You are now aged 39.  You are a Malaysian citizen, and that is where you grew up and lived and worked for many years.  You were married - apparently twice to the same man - and have three teenage children from your marriage, which ultimately ended.  Your children are in Malaysia, living with relatives.  I am told that you had worked for many years in a factory in Malaysia, and you gave your occupation as a trainer of other workers.

16However, I am told that that employment ceased, and as this was at about the time that your marriage ended, and you had to support your three children, you came to Australia in the hope of finding work.  I am given different information as to whether you came to Australia in 2012 or 2013, but you initially came on a three month tourist visa, which you overstayed.  You resided in Queensland for the first two or three years.  You worked there picking fruit on rural properties.  You had travelled to Victoria in search of work in June 2016, and remained until the time of this accident.

17I am told that once in Australia, you fell pregnant to a man who left you some months before the baby was born, in March 2014.  I am also told that you entered an arrangement with a Queensland man and his wife to live in their household, which gave you accommodation and board leading up to the birth of the baby, but that after the baby was born those people changed the arrangement, charging you for board, and somehow they subsequently took control of your child. The child is now aged three and you haven’t seen her since she was one.  I am told, and it is understandable, that you have been in a dilemma ever since as to how to challenge their actions to try to regain custody of your child.

18Nevertheless, you apparently formed another relationship, and it is in that man's car that you had driven from Bowen to Victoria to find work in June last year.  It seems that you had been obtaining work here, mainly fruit picking, and that you were in contact with Ms Ahmad only a week or so before the collision, for information about opportunities for work and accommodation in Shepparton.  I accept that your purpose was to earn money to be able to send some back to Malaysia for the support of your children there, and also to try to earn money to attempt to regain custody of your young child in Queensland.

19The day after the collision, when I assume you were still in hospital, you were arrested and charged, and you have been remanded in custody ever since.  That has been due to your immigration status, which has also effectively pre-empted sentencing options in your case.  I am told that you have been advised that once released from prison on this charge, you will immediately be taken into custody by Federal border security officers, who will take you to an immigration detention centre from which you will be deported back to Malaysia.  Whether any legal challenge or submissions will succeed in reversing that decision, I do not know, and cannot speculate about.

20In light of that information, sentencing options for you are limited because, in practical terms, no non-custodial sentence would, in fact, operate.

21You are aged 39 and have no criminal history in Australia.  I have no reason to believe you have any criminal history in Malaysia.  Leaving aside issues relating to your immigration status, you appear to otherwise be a responsible adult person not engaging in risk taking behaviours, and I accept focussed on working to try to support your children in Malaysia, and to regain your young child in Queensland.

22I accept that you have been deeply affected by the knowledge that your actions were responsible for the death of your friend, Ms Ahmad.  You have spent your time on remand at Dame Phyllis Frost Centre, and I have read a report from a counsellor there, whom you have been seeing fortnightly since February, due to the distress, grief and trauma symptoms you were experiencing after this car accident.  That report confirms that alongside your grief, you have shown numerous symptoms consistent with a trauma response; including nightmares, flashbacks, intrusive thoughts, panic attacks and sleeping difficulties.  You have been attending counselling on a regular basis, and the report confirms that you have expressed genuine grief in relation to the death of your friend, and great concern for the impact on her family, as well as concerns for your own family.  The counsellor also reports that you have also been suffering from the separation from your three year old child in Queensland, as well as your three older children in Malaysia.

23You are described as having a warm, caring, generous and proactive temperament, which has helped you form supportive friendships while in custody, with both staff and other prisoners.  You have engaged in opportunities for work, education and learning, while also attending daily exercise.  You have impressed the counsellor with your commitment to the therapeutic process.

24Instead of pursuing a sentence indication application before me, you decided, after it commenced, to plead guilty to this charge.  That attracts further leniency in your sentence, as the plea of guilty saves the community the time and cost of disputed hearings, and has spared the witnesses, including the other driver, the stress of having to give evidence in court and recall those events.  I also take your plea of guilty as a reflection of acceptance of responsibility, and also as a reflection of remorse, which you appear to have expressed genuinely from the time of the scene of the collision, when interviewed by police, and through the counselling you have undertaken while in custody.

25I must impose a sentence no more severe than is required to achieve relevant sentencing purposes.  Inevitably, for an offence of this nature, general deterrence is important.  That means to send a message to others that offending of this type can attract serious punishment.  As I have said, I assess your blameworthiness at the low end for an offence of this nature.  I have also taken into account that you have no prior criminal record, no prior driving offences, and nothing about your behaviour or nature indicates that there is any real risk of further offending of this, or any other type.

26You have now been remanded in custody for a little over seven months.  Having regard to the fact that a non-custodial sentence in your circumstances would be meaningless, and taking into account the time you have already spent in custody, in my view a term of imprisonment is appropriate to be imposed in this case, with its length moderated for the relatively low-level of your blameworthiness; that is, your moral culpability.

27Fatimah Abu Bakar, you are convicted on the charge of dangerous driving causing death, and you are sentenced to a term of imprisonment of eight months.  I declare 218 days of pre-sentence detention reckoned served, and that will be deducted administratively.  That means that you have approximately three more weeks of that sentence to serve.

28I would normally have made an order cancelling your driver's licence, but you have no Victorian licence and a disqualification period is academic and you are most unlikely to remain in Victoria to apply for a future licence.  I will make an order if it is mandatory, but I have not checked that.

29MR CORDY:  I'm just having that checked, Your Honour.

30HER HONOUR: All right. Now, finally, I am required under s.6AAA of the Sentencing Act to state what your sentence would have been if you had not pleaded guilty, but had been found guilty of this charge after a trial. As usual, that is an artificial decision for me to make, but I state that if all the other circumstances of this case had been the same, but for the plea of guilty I would have imposed a sentence of 15 months' imprisonment with a non-parole period of nine months.

31Now, you can take a seat, Ms Bakar.  I'll just check whether I have to make an order on the licence.  And I don't think there was anything else necessary.

32MR CORDY:  No, there were no other orders sought, Your Honour.

33HER HONOUR:  I suppose I can make the order even if it has no
 ‑ ‑ ‑ 

34MR CORDY:  Yes, it's confusing, the terms.  It seems there is a mandatory order required, Your Honour, but we're having trouble ‑ ‑ ‑ 

35MR MANDY:  It seems to say that it should be less than 18 months and ‑ ‑ ‑ 

36MR CORDY:  Yes, we just checked the hard copy.

37HER HONOUR:  Well, I can make that too.

38MR CORDY:  Yes, 18 months is the minimum disqualification period from driving in Victoria, Your Honour.

39HER HONOUR:  And that's mandatory, is it?

40MR CORDY:  Yes.

41HER HONOUR:  All right.  That is an unusual one, that.

42MR CORDY:  Yes, but ‑ ‑ ‑ 

43HER HONOUR:  But I'll cancel any - I think the wording is cancel any driver's licences.

44MR CORDY:  Yes.

45HER HONOUR:  Or any Victorian driver's licences, and disqualify Ms Bakar from driving in Victoria for 18 months.

46MR CORDY:  A period of 18 months.

47HER HONOUR:  A period of 18 months.

48MR CORDY:  (Indistinct words.)

49MR MANDY:  Can you backdate that for completeness to
16 January, Your Honour?

50MR CORDY:  (Indistinct) that's right?  She wasn't served with a s.51 notice.

51MR MANDY:  No, it doesn't matter.  It's academic.

52MR CORDY:  No?  All right.

53HER HONOUR:  I think it's academic.

54MR MANDY:  Just make the order.

55HER HONOUR:  Were she ‑ ‑ ‑ 

56MR CORDY:  Yes, it needs to be ‑ ‑ ‑ 

57HER HONOUR:  Not to be deported.  I don't think she'll remain in Victoria.

58MR CORDY:  No.

59HER HONOUR:  The obvious would be Queensland and ‑ ‑ ‑ 

60MR CORDY:  Yes.

61HER HONOUR:  ‑ ‑ ‑ I can't control the Queensland licence, or
‑ ‑ ‑ 

62MR CORDY:  No, indeed.  But Your Honour should make the order from today.

63HER HONOUR:  Yes.

64MR CORDY:  My learned friend was suggesting a backdate, but that only applies where it's a s.51 matter that's been served and ‑ ‑ ‑ 

65HER HONOUR:  Does it even when it's clear the person hasn't been able to drive because they've been in custody?

66MR CORDY:  I think that's right, Your Honour.  It's just an unfortunate corollary of it.

67HER HONOUR:  All right.  That would then have application in Queensland.

68MR CORDY:  No.

69HER HONOUR:  No?

70MR CORDY:  It's only she's disqualified from driving in Victoria.

71HER HONOUR:  Yes, all right.

72MR CORDY:  So if she goes to Queensland she may have difficulty getting a licence, or - but she may be able to drive on a Malaysian licence depending on what those authorities do, but she certainly couldn't drive anywhere in Victoria.

73HER HONOUR:  All right.  Well, so I make an order that on this charge any Victorian driver's licence be cancelled and
Ms Bakar be disqualified from driving in Victoria for 18 months, commencing today.

74MR CORDY:  Your Honour pleases.

75HER HONOUR:  All right.  Those orders will be prepared. 

Ms Bakar, as I say, you have got about three more weeks to serve of this sentence, and that means you go back to Dame Phyllis Frost Centre, and that gives you some time to seek what legal advice you may - or make what arrangements you decide to do.

76MR MANDY:  Now, can I speak to Ms Bakar, Your Honour?

77HER HONOUR:  Yes.  Well, I'll leave the Bench, but ask that
Ms Bakar be left in the courtroom so that her barrister can speak to her.  Can you stand the down court down till 2 o'clock please?

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