Director of Public Prosecutions v Chhatre
[2014] VCC 1189
•25 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PURUSHOTTAM DINKAR CHHATRE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2014 | |
DATE OF SENTENCE: | 25 July 2014 | |
CASE MAY BE CITED AS: | DPP v Chhatre | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1189 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of failing to stop after an accident and one charge of failing to render assistance – defendant concealed car involved in accident and removed damaged parts from it – pleas of guilty accepted as remorseful – evidence of defendant suffering guilt, depression and anxiety – defendant had no prior convictions and excellent prospects of rehabilitation – no evidence that defendant’s driving was culpable and dangerous.
Sentence: Charge 1 – three months’ imprisonment totally suspended for two years – Charge 2 - Community Corrections Order for two years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Rose QC | Office of Public Prosecutions |
| For the Accused | Mr R Melasecca | Melasecca Kelly & Sayler Solicitors |
HER HONOUR:
1 Purushottam Chhatre, you have pleaded guilty to one charge of failing to stop following an accident, and one charge of failing to assist following an accident. Each of these charges carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). On 9 August 2013, at approximately 10pm, you were driving your vehicle in a northerly direction along Forrest Road, Forrest Hills, when you struck Colin Patterson. Mr Patterson was apparently walking in the middle of the road wearing dark clothing. As a result of the impact, he was thrown forward approximately 23 metres. He suffered multiple injuries, including bleeding to the head, significant cervical spine damage and a tear of the aorta. He died on the roadway. It appears that he had been drinking alcohol and also using cannabis prior to his death.
3 You did not stop at the accident scene and, instead, drove home. The following morning you got up early and inspected the damage to your vehicle and drove it to a friend’s house. You told him that you had collided with a fence and did not wish your family to know that the vehicle was damaged and asked to leave the vehicle in his garage. Over the next two days you removed the damaged bonnet and other parts from the vehicle.
4 Police launched an extensive media campaign to locate the driver of the vehicle which had struck Mr Patterson. On Sunday 11 August 2013 you spoke to your wife about the matter. Her statement to police revealed that you had told her that you had not been able to see Mr Patterson because he was dressed in black, and he just suddenly appeared in front of the car. Your wife told you that you should go to the police. Meanwhile, police had identified your car and attended at your friend’s address and located it in the garage. They also located the bonnet and other vehicle components, which you had removed from it, in the laundry and in the garage. Police made contact with you and you agreed to attend at your friend’s address.
5 You were arrested and interviewed by police. You told police that you were not speeding and had not consumed alcohol. You said it was pitch black and you did not see anyone prior to the collision and that it was an accident. You stated that you knew that you had hit something but were so scared and in a state of shock that you drove off because you panicked. You said that it was until not the next morning when you examined damage to your vehicle, that you suspected you had hit a person. You admitted that you had removed damaged parts of your vehicle in order to repair them and conceal your involvement. You became aware on the Saturday night, when watching TV that a person had died in the accident. You stated that you were aware that you should have stopped and rendered assistance.
6 You are presently aged 43 years and come before the Court with no prior convictions. You entered an early plea of guilty to the charge when the matter was listed for committal hearing in the Magistrates’ Court on 18 March 2014. The matter proceeded by way of straight hand-up brief.
7 In a plea on your behalf by Mr Melasecca, the Court was asked to accept that you had been shocked at the time of the accident and panicked but later cooperated with police and showed true remorse. Evidence was presented at the plea hearing from Dr Adam Deacon, forensic psychiatrist, who saw you twice, namely, on 27 August 2013 and 18 January 2014. Reports following those two examinations by Dr Deacon were tendered on the plea as Exhibit “1”. Dr Deacon also gave oral evidence.
8 In Dr Deacon’s report, following the interview on 27 August 2013, he noticed that you sobbed throughout the interview and expressed genuine remorse. He took a history from you that you recalled hitting something with your car on the right side, but initially thought it might have been a rubbish bin, and continued to drive home, but felt shocked that you had hit something. You were unable to explain why you did not stop. You stated that you did not know that you had collided with the victim at the time the incident occurred. You subsequently felt scared when you learned through the media that a man had been killed and that you were the likely driver. Dr Deacon assessed you as having entered a state of shock and grief and stated that you were experiencing considerable mental and emotional difficulties following your arrest with symptoms consistent with an acute stress disorder, mixed depression and anxious mood and grief associated with the victim’s death, with prominent elements, including disbelief, concern and despair.
9 In his later report, dated 14 July 2014, Dr Deacon reiterated that it appeared that you had understood at the time of the offence that you had collided with an object, but did not consciously consider the possibility that it could have been a human. He stated:
“At the time of impact, and immediately following, it appears that he became intensely anxious and stressed, it would be reasonable to surmise that he experienced a clinical state of an acute stress reaction, otherwise colloquially known as ‘psychological shock’ or simply ‘shock’”.
10 He described this as a stress reaction or activation of the sympathetic nervous system. He stated:
“That it was possible that (you) subconsciously realised (you) may have collided with a human but promptly unconsciously entered a state of psychological denial, effectively defending you from being able to process and therefore consciously connect with the enormity of this possibility”.
11 In oral evidence before the Court, Dr Deacon repeated this thesis but conceded that he was “not sure how much of your description was reconstruction compared with what you were precisely thinking at the time”. He agreed under cross-examination that he could not determine the precise thinking at the time. He agreed that your concealing the vehicle and removing damaged parts from it seemed odd if you thought that you had hit an inanimate object. He considered that you also were worried about an adverse response from your family if they thought that you had damaged the car. He agreed that it was also quite possible that this action occurred because you were also worried about the response of having hit a human being.
12 At the plea hearing, reports were also tendered from Mr Bernard Healey, psychologist, dated 16 January 2014 and 4 July 2014 (Exhibit “2”). Mr Healey also gave oral evidence on the plea.
13 Mr Healey had seen you on a total of nine occasions between 28 August 2013 and 11 December 2013, for one hour on each occasion. He also reviewed you on 5 February 2014 and 1 April 2014. In his first report, he noted a history that you came upon an object suddenly which was struck by the right side of your vehicle. He noted, “As it transpired, (you) feared that this may have been a person in the middle of the road and in effect (you) drove home in a state of very considerable panic”. He stated that you noted the damage to the vehicle the next day, and concealed the vehicle at a friend’s house. On the evening of that day, whilst watching television, you heard a report of a fatal collision which “confirmed in (your) mind (your) worst fears” and you disclosed the matter to your wife. Your wife told you the police should be informed and you stated that you had decided to leave it until Monday.
14 Mr Healey noted that you were in a heightened emotional state and reaction of shock and self-blame, suffering from a raised level of tension, variable concentration and with “bothering thoughts and ideas related to what had happened to (you) and the fate of the deceased, with feelings of distress and guilt”. He stated that you remained particularly self-blaming but maintained that you did not seem to know what you had hit, which he said may have been attributable largely to your shock reaction.
15 In his later report, dated 4 July 2014, Mr Healey reported that you remain apprehensive about possible separation from family, friends and work through losing your liberty. He again reiterated that the shock that you experienced at the time of the impact seemed to be something with which you were not able to cope, and you were thrown into a state of panic, such that you could not rationally manage what was happening.
16 In his oral evidence, Mr Healy stated that you demonstrate deep distress and remorse, almost at the highest level, and you have suffered a downturn in your mood and depression. He said that you suffer more than remorse. You also suffer genuine distress over the loss of the victim’s life and had wanted to write to the victim’s family, which, in fact you did, albeit that your solicitor apparently thought it preferable not to forward the letter directly to the family. He described you as quite self-punishing. He agreed that, in the first report that he had written, the history that he took was that you feared that you may have hit a person, but, under cross-examination, stated that the shock is what caused you not to cope which was most likely, because you had hit a person, but, also, you were concerned about the deprivation of your liberty and the impact on your family. However, he concluded, “I don’t think one could say with confidence that he knew he hit a person at the time”.
17 I must say that the submissions of Mr Melasecca, together with the evidence given by Dr Deacon and Mr Healey, that you did not actually know that you had hit a person at the time of the collision or maybe knew subconsciously but could not process it, does not fit at all well with other evidence in the case.
18 On Monday 12 August 2013, in a statement to police your wife stated that on the previous evening, namely, Sunday 11 August 2013, you indicated the following:
“He said suddenly this guy was there in front of the car and he got hit by the car, Puru’s car. He said that the guy was in the middle of the road when the accident happened. He said that he couldn’t see the guy because he was dressed all in black. He said he wasn’t sure what had happened but he was hit by his car. Puru was really scared so he just drove off. He drove straight home to our house. He said that he was really scared and that’s why he didn’t tell us. He said he was scared of what would happen to the kids and his parents, that’s why he didn’t stop.
At first I didn’t believe him because knowing him, he is a very good driver, a cautious driver. I said to him, ‘You should go to the police and confess’. He said that if he went to the police, what would happen to his kids and his parents. He said to me if he came in there would be charges pressed against him. That’s why he drove off after the accident. He told me that he saw the story about the crash on the news on Saturday about the hit and run and that the guy he hit was dead.”
19 Your wife went on to tell police that you showed her the vehicle, from which you had removed the bonnet and grill, and she reiterated that you should go to the police. She stated, “He wasn’t convinced that we should go to the police. I said if he went in himself (to the police) it wouldn’t be that bad. He told me, ‘I’ll think about it’.” She said that, the following day, she went to your work and told you to go and see the police. You both went to Warringal Shopping Centre in Rosanna to talk for a while and, while you were there, you received a call on your mobile phone from your mother stating that the police were at her house and that they wanted to see the car.
20 In addition to the statement of your wife, if one examines the photographs of the vehicle which you were driving when you hit Mr Patterson, there is a very sizeable dent on the driver’s side front corner, as well as on the front of the bonnet towards the middle. I find it impossible to believe that this damage could have occurred without you realising that you had hit a person, because that person must have been right in front of your eyes on the bonnet as you struck him. The fact that you concealed your vehicle once you realised the extent of the damage the next day, and removed the damaged parts from your vehicle, demonstrates to me that you must have realised that you had struck a person.
21 I found this aspect of the plea submissions on your behalf to be troubling. At one stage Mr Melasecca stated, “We do not accept that the wife’s statement is the truth”. Moreover, by your pleas of guilty you have acknowledged the elements of each of the offences. It is a key element of each offence that you knew or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury. Your pleas of guilty are an acknowledgement of this element, yet Mr Melasecca, by reason of the evidence which he presented from Dr Deacon and Mr Healey, and also in submissions, seemed to be traversing your plea on a number of occasions. When I indicated my concern, Mr Melasecca stated, “It is not my intention to say that my client had no knowledge of striking a human being, but, simply, that he was shocked and he panicked”. He stated that, by the time of your plea of guilty, there had been an acceptance of all ingredients of the offences.
22 I can only glean that, although you knew or ought to have known that you had struck Mr Patterson with your car and that this had resulted in him being killed or suffering serious injury, you somehow went into some state of denial about it. Nevertheless, I am satisfied that your plea of guilty is a truly remorseful one. I accept that you carry enormous guilt over what has occurred. On 21 August 2013, 13 days after the collision, you wrote a letter to the family members and friends of Mr Patterson in which expressed empathy with their loss and indicated that you have been praying for his departed soul and expressed sorrow (part of Exhibit “3”). Your solicitor apparently forwarded this to the prosecution. A number of references (Exhibit “10”), together with oral character evidence, leaves me in no doubt that you have suffered real remorse.
23 The evidence before me is that you are an engineer, who has been resident in Australia for approximately 20 years, after migrating from India. You have bought your elderly parents here to look after them. You are married with two children. You have an excellent work history and are clearly regarded by the Indian community as a leader. You have assisted many new Indian migrants to settle in Australia and helped them to find work and to access appropriate medical care. All of the character witnesses expressed shock and disbelief about your being involved in this offending, as you are known to be someone who always makes himself available to help someone in need. Professor Nandukar, who is the Director of Haemotology at St Vincent’s Hospital, stated that you have regularly contacted him to help obtain medical assistance for other people and your failure to provide assistance in this case was completely out of character. All other witnesses who gave evidence on your behalf stated that you are a hardworking man, devoted to your family, and very community spirited, with an outstanding sense of generosity to others. You are a practising Hindu with a strong sense of spirituality and obligation towards others, and many examples were given of your kindness to members of the Indian community, as well as your participation in charitable works generally. You had apparently been involved with Ronald McDonald House and also a number of other charitable organisations prior to the accident. Since the accident, you have volunteered with many other worthwhile foundations and charities and community organisations as a demonstration that you wish to atone for your wrongdoing.
24 It is difficult to understand, in the light of the outstanding character evidence presented on your behalf, how a tertiary educated, responsible, model citizen could have been so derelict in his duty towards a fellow human being as to fail to stop after he struck that human being with a car and failed to render assistance. There is no evidence which suggests that the incident whereby your car struck Mr Patterson resulted from culpable or dangerous driving on your part. Indeed, you have an excellent driving history, with no prior convictions of any sort, and, in the last five years, have not attracted any demerit points for your licence. I am satisfied in all the circumstances that your behaviour in committing these offences is aberrant and truly out of character for you.
25 Mr Chhatre, eight years ago Parliament increased the penalty for each of the offences to which you have pleaded guilty from two years to ten years. This was to reflect community concern about hit-run driving offences. It is plain that, by increasing the penalty, Parliament wanted to make it known how seriously these offences are regarded. Human life is precious and it is the hallmark of a civilised society that one should stop and render assistance to a fellow human being when one’s vehicle has struck a human being, even if one is not to blame for the circumstances of the collision. It is callous and cowardly not to stop and render assistance to a fellow human being in these circumstances and intensifies the consequential grief that flows from the accident.
26 A Victim Impact Statement by the brother of Mr Patterson demonstrates the grief and loss that he has experienced. He notes, amongst other things, “The only time I felt true anger was seeing the solicitor of the accused standing on the steps of the Court on Tuesday 13 August saying to the TV media that his client did not know that he had hit a person”. It is truly unfortunate that this should ever have occurred, however, you should not be penalised for such poor judgment on the part of your solicitor.
27 It is plain that in sentencing you for this offence the Court must denounce your conduct and place emphasis upon general deterrence. Regardless of whether an accident is caused by a driver, all drivers need to be aware that, if they do not stop when someone is seriously injured or killed, then they will meet with just punishment. Your concealment of your vehicle and your removing the damaged parts of it are aggravating features of your offending. Your failure to go to the police, as soon as you realised through the media that the person you hit had died and even after being urged to do so by your wife, does you no credit. This increased the police resources necessary to detect your crimes.
28 For this reason, I have concluded that a term of imprisonment is the only sentence which adequately reflects the seriousness of your offending on Charge 1. However, I consider that your truly remorseful plea of guilty, the ongoing grief and guilt which you clearly suffer, which has manifested itself in anxiety and depression requiring treatment and which would cause you to suffer a more burdensome time in prison than someone who did not have such conditions, warrant the sentence being wholly suspended.
29 The charge of failing to render assistance, overlaps to some extent with the offence with the failing to stop, but it is still a discrete offence. I consider that a Community Corrections Order is an appropriate disposition on this charge.
30 In arriving at these sentences, your remorseful pleas of guilty, your absence of prior convictions, what I regard as your excellent prospects of rehabilitation and your ongoing willingness to do good in the community to atone for your wrongdoing, have all played a substantial part.
31 On Charge 1, failing to stop after an accident, you are convicted and sentenced to be imprisoned for a period of three months. I consider it appropriate in all of the circumstances to wholly suspend this sentence for a period of two years.
32 On Charge 2, failing to render assistance, you have been assessed as suitable for Community Corrections Order. I order that you undergo a Community Corrections Order for a period two years. The following terms are attached to that order:
(a)That you must not commit, within in or outside Victoria, during the period of the order an offence punishable by imprisonment;
(b)That you must comply with any obligation or requirement prescribed by the regulations;
(c)That you must report to and receive visits form the Secretary during the period of the order;
(d)That you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e)That you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)That you must not leave Victoria, except with the permission either generally or in relation to a particular case, of the Secretary;
(g)That you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
33 In addition to the core conditions, the following conditions also apply:
(i)That you perform 200 hours of unpaid community work;
(ii)That you undergo any mental health assessment and treatment as directed by the Secretary;
(iii)That you be supervised, monitored and managed as directed by the Secretary.
34 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that the seriousness of the circumstances of the offending make this order justified.
35 Mr Chhatre, this involves you having to place a swap inside your mouth to obtain a sample of saliva. You must realise that if you do not cooperate with the police in providing such a sample, then the police are entitled to use reasonable force to ensure that it is obtained.
36 In relation to the sentence which has been imposed on Charge 1, you must realise that it is still a term of imprisonment, albeit that you are permitted to serve it within the community. In the event that, during the period of the order, you commit another offence punishable by imprisonment, either within or outside Victoria, then you will have breached the order and will be brought back before me for re-sentencing. Should this occur, it is highly likely that you will be ordered to serve the term inside an actual prison, unless you can demonstrate exceptional circumstances, which is extremely difficult to do.
37 In relation to the Community Corrections Order imposed on Charge 2, you must realise that if you contravene that order without reasonable excuse, then you will have committed an offence, which carries a maximum penalty of three months' imprisonment. This would result in you being brought back before the Court to be dealt with for such contravention.
38 I state that in accordance with s6AAA Sentencing Act 1991, had it not been for your pleas of guilty, the sentence I would have imposed would have been a term of imprisonment of two years with a non-parole period of one year.
39 Pursuant to s61(6) of the Road Safety Act 1986, I order that all licences and permits held by you be cancelled and that you be disqualified from obtaining another licence or permit for a period of four years from today.
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