Director of Public Prosecutions v Belhadj
[2021] VCC 994
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-00366
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED BELHADJ |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2021 |
DATE OF SENTENCE: | 22 July 2021 |
CASE MAY BE CITED AS: | DPP v Belhadj |
MEDIUM NEUTRAL CITATION: | [2021] VCC 994 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Harper | Office of Public Prosecutions |
For the Accused | Mr M. McGrath | Stary Norton Halphen Lawyers |
HIS HONOUR:
1Mohamed Belhadj, following a favourable sentencing indication given on 8 July 2021, you pleaded guilty to a charge of dangerous driving causing the death of Daniel Nikolovski.
2Mr Nikolovski was the much-loved son of Dragi and Mena Nikolovski. As was made clear in their victim impact statements, they deeply miss their son. I will say more of their profound grief later during these reasons, but it is important to set out just how Danny Nikolovski lost his life, as will be easily and tragically seen, his death was completely unnecessary and so easily avoided.
3It was over nine years ago on 4 February 2012 when you and your friend, Danny Nikolovski, were on a motorbike together heading along Gillwell Road in Lalor. You had been repairing the motorbike that belonged to another friend. You were the one driving the motorbike and Mr Nikolovski was the pillion passenger. You were wearing a helmet; unfortunately, Mr Nikolovski was not. You should not have driven the motorbike with Mr Nikolovski as the pillion passenger when there was only one helmet.
4As you headed along Gillwell Road, you reached a speed of 80 kilometres an hour or thereabouts which was significantly in excess of the speed limit on this suburban street. As you drove along Gillwell Road, in front of you was a ute. That vehicle slowed and indicated that it was to turn right.
5As it began to move into its right-hand turn, you manoeuvred the motorbike to pass the ute on the right-hand side. The motorbike hit the ute on the driver's side causing both you and Mr Nikolovski to be flung off the bike at speed onto the road and the footpath of Gillwell Road.
6Mr Nikolovski sustained fatal head injuries and sadly died at the scene. You suffered serious life-threatening injuries that have had an ongoing impact on you. I will say more of this later.
7The manoeuvre you made in the moment that the ute in front of you went to turn right was totally unnecessary and one that would and did inevitably lead to tragic consequences. You could have and should have ridden the bike within the speed limit and then, with proper observations of what was occurring in front of you, simply passed the ute on the left-hand side and kept going safely.
8In terms of the gravity and moral culpability of this set of circumstances it is clear that this was a particularly dangerous manoeuvre, and the risks of very serious consequences were, as I have said, inevitable.
9However, as I said at the sentence indication hearing, the decision to head to the right was a decision in the moment. There was nothing else in the evidence regarding the preceding driving conduct that elevates your moral culpability or the dangerousness, save for the excessive speed.
10A motorcyclist has responsibilities to all road users, but particularly to a pillion passenger given that any impact is highly likely to be catastrophic, if not fatal, as it was here.
11As the Court of Appeal has outlined in dealing with these offences, the sentencing judge must consider the level of risk taken or created, that is, the dangerousness of the particular episode of driving and also consider the likelihood of death or serious injury from that driving.
12In the end, taking into account all aspects of this sad and unnecessary example of dangerous driving, I would not assess the gravity or your moral culpability as being especially high. On the contrary, it falls more towards the other end. That said, I make clear it is not at the same level as the momentary inattention cases or category. In my assessment I am fortified that both your counsel and the prosecution came to the same view that this was not at the momentary inattention level, but it was towards the lower end of gravity and moral culpability.
13A further factor in the assessment of your moral culpability flows from the Court of Appeal decisions in Spanjol[1] and other cases that have followed that case.
[1] Spanjol [2016] VSCA 317
14That is, the moral culpability is somewhat or slightly lowered by the fact that Mr Nikolovski did not take the usual and required step for his own safety of wearing a helmet. If there was only one helmet, he should not have got on the bike and importantly, you should not have let him.
15This aspect of the case ought not be taken as blaming the victim. Rather, it is part of my duty to apply the law as articulated by our Court of Appeal.
16The impact on his family of the death of Danny Nikolovski has been profound. I do, as I must, take into account, the impact on the victim's family of your crime which had the irreversible consequence that Danny Nikolovski did not come home. He is no longer there to share family moments, to love and be loved by his parents and siblings. The sanctity of human life is to the forefront in these cases. The value of every life must never be forgotten. That was brought home in the powerful victim impact statement read with dignity and enduring sadness by Mr Dragi Nikolovski, the father of Danny Nikolovski. He wrote:
'Since my son was killed, my life has completely changed. My son died at the age of 26, and I cannot bring him back. After my son was killed, I would have to find a private room to cry every day at work.'
17He expanded on the deep loyalty and ongoing love of himself and his wife, that is, to the memory of their son. He wrote:
'My wife and I no longer have a life. We used to visit our son's grave every day. We now visit our son's grave at the cemetery at least once a week without exception. We no longer celebrate or do anything we used to. We used to celebrate weddings, Christenings, birthdays almost weekly. Now our lives are finished.'
18He says:
'We have brought plots on top of our son's so that we can be buried with him when we die.'
19Mr Nikolovski explained the enormous effect on his wife, especially on her mental stability. He wrote:
'My wife became very unwell because our son was killed and she needed psychiatric support ever since. After he was killed, my wife attempted suicide because she was suffering too much.'
20He wrote:
'It has been very hard to watch my wife to become so unwell.'
21Mr Dragi Nikolovski battled on at work as best he could but caring for his wife was ever present. He wrote:
'I worked at St Vincent's Hospital for 38 years. After using all my personal and long service leave, I had to quit work in 2015 to become my wife's carer.'
22He points out his other children live far away so he is the main carer. He concluded:
'My life completely changed. I don't feel like I exist.'
23I move to other aspects of this case that make clear that this is a most unusual, indeed exceptional case warranting a merciful, but still appropriate and just sentence.
24The most important feature and one that looms over all other aspects of this case is the extraordinary amount of time that has passed since the death of Mr Nikolovski on 4 February 2012, that is over nine and half years ago.
25This length of time between the commission of the offence and the day of sentence is unprecedented in a case which is not one where the offender is unknown or deliberately absconds.
26Investigation into the circumstances of Mr Nikolovski's death commenced immediately in early 2012. The prosecution provided to me a comprehensive chronology of the complex investigation undertaken which concentrated on identifying who was the driver.
27It was not, in effect, conceded by you until your sentence indication and plea of guilty, that you were the driver as opposed to Mr Nikolovski.
28This type of investigation to determine the identity of the driver involved an array of experts who required significant amounts of evidence to be gathered and analysed in the areas of DNA, accident reconstruction and materials science.
29An undercover operation was authorised and embarked on. It was far from straightforward. The investigation was methodically and professionally undertaken and no doubt, its quality ultimately played a role in the plea of guilty that came forth. The patience and professionalism of the investigators is to be commended.
30Charges were laid in 2016. Thereafter the resolution of the case was held up by late changes in legal representation. Trial dates were fixed that had to be adjourned in 2018 and 2019, and finally, in August of 2020, the last of course as a consequence of the pandemic where all jury trials were suspended.
31A new trial date was fixed for 19 July 2021, but the application for a sentence indication hearing sensibly brought the matter to an end.
32Delay is always a mitigatory consideration in sentencing. It can, as is the case here, be a very weighty matter in mitigation due to the exceptional length of the delay.
33I do not propose here to delve deeply into the sentencing jurisprudence of the effect of delay on penalty. What is well understood by both parties in this case is that the delay here is at the very outer limits of what is seen in these cases and thus warrants very considerable weight in mitigation.
34Another important policy consideration that in this case warrants considerable weight to be given in further mitigation is the impact of the pandemic on the criminal justice system, both in terms of the courts and the prison system.
35In June of this year, the Court of Appeal in the principal case of Worboyes[2] v The Queen made clear that a plea of guilty in COVID times warrants greater mitigatory value than in pre-pandemic times.
[2] Worboyes [2021] VSCA 169
36Further, the significant benefits that ought flow to an accused who pleads guilty in these pandemic times must be made palpable to that accused and others. The facilitation of justice by a plea of guilty is to be seen in the context, or the reality of the criminal justice system now being under enormous pressures due to large backlog of cases and consequential unacceptable delays.
37Each example of the facilitation of justice must merit great perceptible benefit to the accused and to be appreciated by the community.
38This aspect of a plea of guilty that lightens the burden on the system, is of even further weight in your case because you had something of a viable defence. Your plea of guilty relieves the prosecution of a considerable burden of proving your guilty beyond reasonable doubt.
39This was, in my view, a heavy burden as far that it fell to the prosecution, heavier than in cases, or that may arise in many cases, of death on the road or in many other crimes that come before the courts to be determined by a plea.
40But further, as pointed out by the prosecutor in the sentence indication hearing, the importance of a plea in this case is to give final relief, after so many years, to the family of Mr Nikolovski. The plea acknowledges that it was not the deceased himself that was the cause of this tragedy, but it was you.
41The other aspect of the effect on the criminal justice system as a whole, is that an accused's time in prison on remand and without any real idea when his case will be heard is, at times lengthy and, there are intermittent and further suspensions of jury trials that have occurred and can be sensibly predicted. What that means is that time on remand is very different in pandemic times to those before.
42Again, Court of Appeal decisions have made clear that the onerousness of prison on remand and when sentenced has increased by reason of the isolation from family and friends as visits are curtailed and also rehabilitation programs are altered during the course of someone's time in prison.
43Further, there was always, and it remains the case of fear of an accused and of you during the time you were on remand that the virus might get into the prison, exposing prisoners to serious illness in the environment where preventing the infectious spread would be near-on impossible.
44Your counsel in a powerful and comprehensively prepared plea made the following submission in respect of this matter. He said:
'Prisons are very different now and the ordinary concepts of the heavy burden or punishment is much multiplied.'
45I agree with that concise and accurate submission.
46As to your personal circumstances. You were at the time of the dangerous driving causing the death of your friend in February 2012, 25, nearly 26 years of age. You are not far from turning 35 and in my view, you are a different man and one much affected by what happened in February 2012, in particular by reason of the loss of your friend's life.
47You were born overseas and migrated with your family to Australia when you were five. You have two brothers and a sister, who are all younger than you. You reached Year 12 level at school. You started but did not complete a full apprenticeship as a motor mechanic.
48At the time of the collision, you were not employed as a mechanic though you had been for a number of years before after leaving school. You were doing motor mechanical work for friends such as occurred with the motorbike that was involved with this collision.
49Due to your own injuries, but also due to periods of incarceration, you have not had paid employment since February 2012.
50By way of your prior criminal history up to 2012, you had had five appearances at the Magistrates' Court resulting in four of those appearances the imposition of fines.
51Another matter saw a partially suspended sentence of three months in gaol and three months suspended and a community based order imposed. You were the subject of that suspended sentence and a community based order at the time of the collision. This is relevant to my conclusions as to the appropriate penalty for this offending.
52Following the collision, you were sentenced in late 2014 to 23 months' imprisonment with a non-parole period of 15 months. Other sentences have been imposed in late 2016 and 30 days' imprisonment in May of 2020.
53Your criminal history does you no credit and the fact that you breached your suspended sentence and a community based order within a month of the imposition of those weighs against you. But overall it is not a situation where specific deterrence or protection of the community become primary sentencing considerations.
54Your later crimes are troubling, and they have meant that you were returned to custody with your bail revoked for these matters. You have remained in custody for over 580 days as a consequence of the bail being revoked.
55The injuries you sustained are also relevant and mitigatory of sentence. You sustained or suffered serious and complex fractures, or multiple fractures to your pelvis, right femur, ankle, foot and toes.
56There were also multiple and complex fractures to four ribs with a punctured lung and contusions in the lung. There were major skin wounds, cuts and blood loss and a mild traumatic brain injury with a Glasgow Coma Score on admission to hospital of 10 over 15.
57There have been a range of operations since with pins and screws required and there have been significant mobility issues that have troubled you for years. There were consequential mental health problems of anxiety, depression and post-traumatic stress disorder that arose from the injuries and the death of your friend.
58This level of extra-curial punishment warrants mitigatory weight. As explained as far back as Barci and Asling[3], even when an accused act in a way that requires a police response that causes injury, that an accused's injuries can mitigate as a form of extra-curial punishment. This concept has regularly played a role in these driving cases and rightly does so in this case, adding to the catalogue of mitigatory matters.
[3] Barci and Asling (1994) 76 A Crim R 103
59You had, in the past, had difficulties with drugs but that it seems in the past. That is, you have been drug-free it is said for over five years. Your mental health is far from robust as you still deal with anxiety, depression and post-traumatic stress.
60All these things considered, your future or your prospects of remaining crime-free are, in my view, guarded or at least I am guarded on whether you will permanently stay out of trouble. It is for you to commit to reform and genuine rehabilitation upon your release.
61Sentencing is guided by the individual circumstances of what you did, who you are, and what the future holds for you.
62Taking into account the gravity of your offences and the level of moral culpability, as earlier discussed, together with those matters that require significant mitigation in penalty, I formed the view in the sentencing indication hearing and I remain firmly of the same view, that your time in custody on remand for this crime committed in 2012, that is, the 583 days is sufficient as a just and appropriate punishment and no more imprisonment is required.
63It was obvious and properly conceded by your counsel that a term of imprisonment was warranted. That is, only a term of imprisonment of the length of your current remand could meet the important sentencing purposes of denunciation of your crime, punishment for taking the life of another member of our community but also importantly, that time on remand could meet the paramount sentencing purpose in these cases of deterrence to others.
64The courts, the government and the road authorities have for years repeated the message that all motorists must act with proper responsibility and care for all others on the road and further, if a person falls below what is required and expected and takes a life, then serious punishment involving imprisonment will almost inevitably follow.
65The sentencing purposes, as I have said, of specific deterrence and protection of the community are also of some importance in this case and all that said, your rehabilitation is not overlooked.
66Your crime is so old that sentencing options that are still available include a suspended sentence including a partially suspended sentence. Your counsel urged that I impose a partially-suspended sentence with what has been served on remand as the only part to be served and the remainder to be suspended.
67In the alternative, he put that a combined sentence of gaol, that is, what you have done together with a community corrections order would satisfy all sentencing purposes.
68The prosecution's fair and well considered submission was that your time served was sufficient, but there ought be no further suspended imprisonment, but rather a community corrections order.
69I had you assessed for a community corrections order and you were found to be suitable. The most important aspect of a community corrections order in my view would be supervision with the community.
70It was, further recommended by the report writer that there be a rehabilitation condition targeting drug abuse to assist you from any risk of relapse on release, notwithstanding the evidence of, and your commitment to abstinence for some years. The evidence flows from the urine analyses that have been undertaken in the prison.
71Your capacity for unpaid work is problematic, given the ongoing impact of your injuries and disability. Also, your incarceration and COVID times is such that further explicit punishment by way of unpaid work is not, in my view, warranted.
72In the end, I am of the view that in the circumstances of the delay, the other mitigatory matters that have been raised and the nature of your offending and your history on a suspended sentence in the past, that a sentence which is partially suspended is not appropriate or to use the terms of the Sentencing Act at the time, it is not desirable to suspend part of a term of imprisonment.
73Rather, in my view, a further supervisory and rehabilitative community corrections order is just and appropriate. It is well warranted by the principles that were articulated by the Court of Appeal in Boulton[4] v The Queen. They are well understood, and the principles are, in my view, set out in the reasons for sentence. I do not intend to go through the provisions of Boulton v The Queen here.
[4] Boulton [2014] VSCA 342
74Thus, in the end, I impose the following sentence for causing, by your dangerous driving causing the death of Danny Nikolovski, you are sentenced to be imprisoned for 583 days, together with a community corrections order for nine months. The community corrections order will have conditions of supervision and drug treatment.
75What I make clear is, that your time on remand having been reckoned as 583 days, I declare that that period of time is part of the sentence that I have just imposed. In fact, it is every single day of the sentence that I have just imposed. I will ensure that this declaration is noted on the records. That will make it clear to the prison authorities that you have served every day of the sentence that I have just imposed and are eligible for release.
76Had you pleaded not guilty to this offence and been found guilty of it, in which I would have imposed a longer sentence, so to conform with, in my view, what was said in Worboyes to make that clear as to the general value of a plea in COVID times although precise calculations are not required, I would have imposed a sentence of four years and four months with a non-parole period of three years and two months.
77Your licence must be affected by reason of the crime that you committed back in 2012. What I order is that your licence be cancelled, and you be disqualified from driving or holding a licence for a period of 18 months. Is there anything further required, Ms Harper?
78MS HARPER: No, Your Honour. May it please the court.
79HIS HONOUR: Thank you. Mr McGrath?
80MR MCGRATH: No, Your Honour.
81HIS HONOUR: All right. I will sign that order immediately that it is put before me. It will be forwarded to the prison immediately. There are conditions that I will now outline to Mr Belhadj that he needs to understand.
82The community corrections order that I placed you on is for nine months. What is required of everyone on a community corrections order are a number of core conditions as they are described.
83I can summarise them and make sure that you understand them. Ordinarily you would have a document in front of you. We cannot do that in the current environment, but the most critical of the core conditions is that you must not commit a further offence during the nine months that you will be the subject of a community corrections order.
84Any offence that you commit that is punishable by imprisonment and you should consider that almost every offence is punishable by imprisonment, if you commit an offence you will come back before me, you will have breached the community corrections order.
85I will be called on to determine what to do. It could be that I am called upon to re-sentence you for these offences. It will not be the same level of mercy will not be shown - just do the community corrections order.
86The other conditions are about your cooperation. You have got to contact the community corrections office by phone and it will have to be as soon as you are released, at least within 48 hours. Just make sure you do that.
87You have got to tell them where you live and where, if you go to work, where you work and if there is any change. You have got to let them know of those changes within 24 hours. Do you understand?
88You cannot leave Victoria without getting permission. You have got to obey all lawful directions of the community Corrections office. I will just find which community Corrections office we are talking about. It is just on another document. I will get to that in a moment.
89So, they are the core conditions. They are about cooperation; do you understand all that? Yes. The other conditions that are program conditions more unique to you, that you must be under supervision. They will set up a process whereby you will report by phone or in some other way. It is absolutely essential that you do that. This is not a voluntary matter that from time to time you will keep in touch with them one week and miss the next and get back to them the next. That is not how it works. You are under supervision in the community, and it is strict.
90The other things are that you have to undergo assessment and treatment for drug issues. Now, you have heard what I have said about the likelihood that you have drugs behind you, but you might need some assistance and take it up please, as to the risks of relapse, 583 days in prison and then released, the risks are there. Do you understand? All right.
91Just let me see whether I can discover the ‑ ‑ ‑
92MR MCGRATH: Your Honour, if it's of any assistance, the assessment outcome report referred to the relevant CCO location at the Melbourne Justice Service Centre at 50 Franklin Street, Melbourne.
93HIS HONOUR: All right, well that will be the commencement point. Your lawyer, Mr McGrath, will help you with it. They will need your number; you will need theirs. That is how it works. I leave it to you to sort that out. You have got 48 hours to do it.
94Now do you consent to this – doing this community corrections order, Mr Belhadj?
95OFFENDER: Can you hear me sir?
96HIS HONOUR: Yes, I can, yes.
97OFFENDER: Your Honour, I consent Your Honour. Can I say one thing sir?
98HIS HONOUR: Is it a ‑ ‑ ‑
99OFFENDER: It is an apology to the family.
100HIS HONOUR: ‑ ‑ ‑ generous thing towards the family of Danny.
101MR MCGRATH: Yes, it is. I think he – I think he just indicated he wants to apologise, Your Honour.
102HIS HONOUR: Yes, thank you. You can.
103OFFENDER: Um, I just want to say to Dragi and his wife that I'm really sorry for being responsible for your son's death, and the reason I didn't come to see youse wasn't – I just – I didn't know how to explain myself due to such a – such a loss – so I hope youse can forgive me and I mean that from – from the bottom of my heart and I do regret heavily taking him as a passenger without a helmet and I ask of you to forgive me, but I understand if youse don't. Thank you.
104HIS HONOUR: Thank you. Thank you Mr - just bear with me. If there is nothing further?
105MR MCGRATH: There is nothing further, Your Honour, but perhaps if I could seek the indulgence of Your Honour's tipstaff.
106HIS HONOUR: Yes, you can do all that.
107MR MCGRATH: Just to have a brief moment with my client.
108HIS HONOUR: Yes. I will sign the order as soon as possible and that aspect of the community corrections order will note that Mr Belhadj consented to the community corrections order in the virtual hearing. Yes, if there is nothing further, I will leave.
109I thank everyone for their assistance, considerable assistance, and the dignity shown by everyone, thank you.
110MS HARPER: May it please the court.
111HIS HONOUR: Thank you.
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