Director of Public Prosecutions v Crabbe

[2013] VCC 1617

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00117

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEFFAN ALAN CRABBE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 22 October 2013
DATE OF SENTENCE:	24 October 2013
CASE MAY BE CITED AS:	DPP v Crabbe
MEDIUM NEUTRAL CITATION:	[2013] VCC 1617

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P.L. Bourke	Office of Public Prosecutions
For the Accused	Mr J. Rutherford	Harwood Andrews

HIS HONOUR:

1       On 27 October 2011 Mr Gurwinder Singh and his friend, Mr Harjinder Singh, drove to Colac in Mr Gurwinder Singh's Daewoo sedan to clean windows at the local Woolworths store.  Each of the men were students who had come to Australia for better opportunities.  Each also were the hardworking cleaner willing to travel distances to do their job. 

2       The job finished late and it was in the early hours of 28 October 2011 that they set off back to Melbourne.  Mr Harjinder Singh would have turned 27 the very next day.  Mr Gurwinder Singh was 26.  They drove their car from Colac along the Princes Highway.

3       Mr Steffan Crabbe, in the early hours of 28 October 2011, you were driving your unladen log truck  back from Geelong towards Colac.  You had already taken two loads of logs from the Colac area to Geelong.  You were heading home, as it were, along the Princes Highway.  You had travelled about 40 kilometres from Geelong through Mount Moriac and on to the area known as Buckley. 

4       At approximately 1.55 am you approached the left hand bend in the road.  There was a road sign indicating the bend was ahead but it was not a sign with any advisory lower speed on it.  Accordingly, the speed limit was 100 kilometres an hour.  You were and had been driving within the speed limit. 

5       I add that later testing revealed there was no alcohol or drugs in your system.

6       For some time during the previous day and the evening there had been rain in the area leaving the road wet with some puddles.  It was still lightly raining as you drove back towards Colac.  As you approached the left-hand bend you failed to steer the truck so that it took the bend and remained on the correct side of the road.  Your truck crossed over the double white lines which had an audible tactile strip as well.  Your truck continued on to the bitumen shoulder on the incorrect side of the road.  You applied emergency manoeuvres steering back towards the correct side of the road.  As you lost control of your truck the Daewoo sedan, driven by Mr Gurwinder Singh, and Mr Harjinder Singh, as his passenger, was approaching at or on the bend.

7       As you steered towards the correct side of the road the driver, Mr Gurwinder Singh confronted your truck with nowhere else to go.  Mr Singh did what he could but his car collided with your truck with catastrophic consequences.  Your truck continued on to and beyond the correct lane; down a grass embankment where it overturned.

8       The extent of the tragedy quickly made itself clear.  Mr Harjinder Singh suffered major and multiple injuries and died at the scene.  Mr Gurwinder Singh sustained serious life threatening injuries and was air-lifted to the Alfred Hospital, the major road trauma hospital in Melbourne.  He survived but has permanent debilitating injuries.

9       I wish to take some time to outline and comment on the extent of Mr Gurwinder Singh's injuries and the affect of them on him and his family and also the impact of Mr Harjinder Singh's death on his family and on his friend who survived, Mr Gurwinder Singh.

10      Mr Gurwinder Singh sustained a femoral shaft fracture which required surgery and the insertion of, what I understand to be, a pin.  Also his femoral nerve was damaged causing significant ongoing problems with managing his injured left leg.  He sustained a complex injury to his left knee.

11      Recent surgery revealed severe advanced post-traumatic osteoarthritis. 

12      There is little that can be done to relieve the ever present pain.  A total knee replacement is likely, but now at the age of 28, Mr Singh is far too young for such a procedure. 

13      The injury to his left leg and its ongoing deterioration means that Mr Singh has lost a great deal of his mobility.  He walks now aided, always, by crutches.  His right knee is also injured with evident post-traumatic osteoarthritis. 

14      He has constant pain and long-term problems with both shoulders.  His surgeon advised it is Shoulder Impingement Syndrome in the report that I have read and Mr Singh may need surgery in due course.

15      His use of crutches exacerbates his shoulder problems and has the cyclical effect of reducing his mobility and increasing his pain and distress.

16      He has lower back and neck pain. 

17      The effect of experiencing the traumatic collision, together with his constant pain, his loss of mobility and loss of independence, to name but a few aspects, has resulted in Mr Singh also suffering very significant psychological injury.  His doctors describe this as severe depression with recurrent suicidal thoughts. 

18      Mr Singh's Victim Impact Statement is heart-wrenching.  He has gone from a young man who left his homeland and family for opportunities here in Australia. 

19      He studied and was working hard looking forward to a bright future with a young woman, Neriman Ali, who he married in early 2012.

20      Most things that gave him pleasure, work, socialising, playing cricket, moving around to when and where he pleased are now gone. 

21      He requires constant care with some of the most basic aspects of his life.  His wife provides this but at great cost to them both emotionally and financially.

22      Mr Singh wants to provide for his wife and contribute as a man to their life together and is frustrated that he cannot. 

23      His self esteem is low.  He feels isolated, angry and worthless.  He writes in his Victim Impact Statement and I quote, "I cannot do anything any more.  All the pain and limitation has marked life changes in my life.  I'm reluctant to live as I am living now.  I'm virtually giving up on my life.  I feel constantly depressed spending every day at home surrounded by walls as though I am in prison..  I feel helpless and hopeless.  Motivation level is diminished".

24      There is a great deal more Mr Singh wrote in his Victim Impact Statement.  It was read out in full in court on Tuesday afternoon.  I have re-read it.  I appreciate the effort made by him at too short a notice to write such a helpful Victim Impact Statement.

25      The courts, and certainly me in this case, are coming to appreciate the importance of Victim Impact Statements and indeed the effect of trauma.

26      The same can be said about the Victim Impact Statement of Mr Singh's wife, Neriman Ali.  The burdens on her are almost overwhelming.  Her efforts to look after Mr Singh are taxing.  She appears as a stoic, impressive young woman through her Victim Impact Statement, but she too has lost a lot.  She considers the future for her and her husband as grim.  She, too, has had to have psychological counselling.

27      Mr Gurwinder Singh wrote of the sadness of his own parents who came to Australia to see him.  It pained him to see their sadness and anxiety when they saw his plight.  No doubt they remain anxious about their son. 

28      The economic loss because Mr Singh can no longer work means that he cannot visit his parents and that also pains him. 

29      Mr Gurwinder Singh also spoke of the pain he saw in the parents of his friend, Mr Harjinder Singh, when they too came to Australia for the soul destroying task of taking the body of their dead son back to India.

30      Mr Harjinder Singh's parents wrote a Victim Impact Statement, or a letter, which was also read out in court.  They spoke of the mental agony of losing a loving and obedient son who would have been willing and well able to look after them as they grew old.  With simple words they conveyed a great deal.  They wrote, and I quote, "We have lost our gem, my son at the prime age of 27".

31      Mr Crabbe, I have taken time to recount the impacts of these crimes on the victims because it is important that I do so.

32      The law is clear, I must have regard to the impact of the crimes on the victims. 

33      It is always fraught to compare one tragic situation with another, but offences of this kind involving the trauma of collisions on the road, have particularly profound lifelong consequences.  This case is a sad example of that. Importantly, there can be no doubt that you well appreciate these matters.

34       Before I move on to elaborate on that I, firstly, note the growing importance of what has been called the social rehabilitation of victims which can be advanced by the proper recognition by the courts of the affect of the crime on them and by the finality brought about by the imposition of a just and appropriate sentence. 

35      This was first articulated by a very experienced and wise judge, Mr Justice Vincent in these terms and I quote.  "This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlining concern of the criminal justice system.  It seems to me that the process of social and personal recovery, which we attempt to achieve in order to ameliorate the consequences of a crime, can be impeded or facilitated by the responses of the courts.  The imposition of a sentence often constitutes, both a practical and ritual completion, of a protracted painful period.  It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrong-doing to the perpetrator.  If the balancing of values and considerations represented by the sentence, which of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, then the process of recovery is more likely to be assisted.  If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed.  Indeed, from the victim's perspective an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of a crime, may well aggravate the situation".

36      Mr Crabbe, by your plea of guilty, you have taken full responsibility for the consequences of your crime.  This is no small matter. 

37      In your case you have accepted you were responsible for driving in a manner that was dangerous by reason of a momentary lapse of care, vigilance or concentration, however it is described. 

38      The conditions were not easy for you but you were in command of a large and thereby, potentially, dangerous vehicle.  Any lapse would likely have catastrophic consequences for other road users, as indeed, happened here.

39      You were a professional driver expected to concentrate the whole time.  Apart from your momentary lapse there were no other aggravating factors. 

40      Your plea of guilty, in all the circumstances, is one of real value for a number of reasons.  As just mentioned, your criminality arose from a momentary lapse, and given other circumstances mentioned, such as the weather and matters relating to the mechanics of the truck, your plea relieved the prosecution of the considerable burden of proving a difficult case against you. 

41      Your plea of guilty and your acceptance of responsibility, not only relieved the victims of giving evidence or re-living the tragedy, but it allows them to move forward.  This is always difficult especially when the responsibility for the resolution of a case lies with a jury if you do not plead guilty.  

42      Your plea of guilty is plainly an expression of remorse and no doubt the decision to plead guilty was in large part driven by your remorse. 

43      You have expressed your remorse and genuine feeling for the victims to many people.  It shows in your own psychological turmoil including your own suicidal ideation. 

44      The deterioration of your own mental health is because of the burden you carry and will continue to carry, that is, that your driving caused such sadness and disability to the victims and their families.

45      Your own personal circumstances are as set out by Mr Rutherford in his plea, and in his comprehensive written submission, which included written references supplemented by oral evidence.  All this reveals that you have grown to be a law-abiding, respectful, quiet but impressive man.  This is not surprising given that you come from a hard-working and decent family.

46      You are now 29 and after school, to Year 11, you commenced and have continued with solid employment. 

47      You moved from the local abattoir into the timber industry.  Your employer at the time, Clearwater Logging and Transport thought sufficiently highly of you to keep you on after the collision, notwithstanding that you made it clear that after the collision you could not and did not want to drive trucks again.

48      Your work now is on other machinery involved in the timber industry.

49      Your decision not to drive trucks again is no small matter either.  You have had, it seems, a lifelong interest in cars and trucks.  You pride yourself on your maintenance of your vehicles and on your skills as a driver.

50      I was told, in the evidence of Mr Leary, that you have never had any driving infringements, a matter that borders on remarkable, given that you were a professional driver. 

51      Mr Leary, who gave evidence, is a long term family friend who wrote an impressive letter and gave, likewise, impressive evidence.  He told me about you and included in that was your interest in cars and the like.  You knew his son and his son also had interest in cars.  He wrote this, "The tragic event has had a marked affect on Steffan personally, and being a meticulous owner of his own vehicle and driver thereof, together with his experience with rural machinery, that to have an accident with a vehicle has weighed heavily as he takes care and pride in his vehicles in his control.  He feels inherent disgrace to himself, his family and he struggles to understand the events that have caused so many lives to be affected". 

52      He said here before me this afternoon that you feel shame and that is no doubt the position.

53      You are entitled to call upon your good character in seeking a merciful sentence.  You have never been in trouble with the law in any way before or since this matter. 

54      Your impressive work history is to your credit and is an important factor in your favour.  So, too, your involvement and contributions to your local community. 

55      You continued to contribute to your family, helping on the family farm, a matter of growing importance given your mother has serious health concerns. 

56      You have, yourself, your own family.  You have a solid and long-term relationship with Ms Nicole Gill.  You now together have a one year old child.  You also have a 12 year old step-child that is part of your family. 

57      In the end, your responsibilities as a father and partner, have kept you from taking any dire action in relation to your suicidal ideas. 

58      You have the significant benefit of much support from your family and friends.  Notwithstanding this, your mental health remains fragile as you try to cope with this tragedy. 

59      I have taken a great deal from the very substantial number of helpful testimonials tendered on your plea.  As your lawyer submitted, the evidence establishes that you are an honest, gentle, hardworking man who has been significantly affected by the collision.

60      The medical evidence relating to you establishes that you have depression and aspects of post-traumatic stress disorder.  Dr Connor, who treats you, wrote as follows.  "That you saw a counsellor who visits the clinic on 28 December 2011 who reported mood depressed, effect flat, but reactive, some suicidal ideation without plan or intent.  Risk of suicide, moderate.  Recurrrent nightmares about the accident.  Focus on the loss of the man who died and the impact on his family whilst thinking about them at Christmas time.  He avoids the accident site.  Went there with his mother driving but shut his eyes.  His distress focuses on the loss to the family of the person killed and his distress was about feeling helpless and to make things better for the man who died.  Mr Crabbe has the symptoms of repeated, unwanted cognitive intrusion about the accident with avoidance of the site suggesting some features of post-traumatic disorder".

61      As referred to earlier, your conduct had catastrophic consequences, but it was a momentary lapse without any aggravating features.  It is, in that sense, that I assess your moral culpability as low.  Thus the need for denunciation in the sentence itself is not as high as it would ordinarily be in cases of this kind. 

62      The key sentencing consideration is deterrence.  The courts must join, if not lead, the campaign to reinforce that not concentrating fully when driving has to be eliminated.

63      The court's role is to ensure that the punishment for these offences deters drivers from being too casual or allowing lapses.  That is especially so for professional truck drivers. 

64      The penalty for this crime must involve a sentence of imprisonment so as to recognise the sanctity of life and the gravity of taking a life and also the serious consequences for the seriously injured, Mr Gurwinder Singh.

65      However, given the weight to be attached to your plea of guilty, and the catalogue of mitigating matters, including those arising from your personal circumstances, I was persuaded on a sentencing indication hearing, to wholly suspend any term of imprisonment.  The prosecution did not contend otherwise.

66      In my view, a wholly suspended term of imprisonment is proportionate and just.  It facilitates rehabilitation while expressing appropriate denunciation and deterrence.  The authorities have long said that a term of imprisonment, wholly suspended, does send a message of deterrence.  There is no call for deterrence to you personally.

67      As indicated, the importance of deterrence and denunciation, would ordinarily see a substantial sentence of actual imprisonment imposed for crimes of this nature.  However, as was said by Tadgell J in R v Scholes:

"The concept of instinctive synthesis is pre-eminent in cases of this kind".

That means all of the matters in mitigation cannot be given mere lip service because the consequences for the victims were so grave.

68      In the unusual circumstances of this case a sentence of imprisonment can be justly suspended.  I

69 I have considered all the matters set out in s.27(1)A of the Sentencing Act.  Having done that and then generally reconsidered all the relevant factors I am of the view in this case that it is, to use the words of the Statute, desirable to wholly suspend the sentence. 

70      There must be some cumulation in order to acknowledge the separate impact on each victim. 

71      Mr Crabbe, can you please stand. 

72      In relation to Charge 1, committing the offence of driving in a manner dangerous causing the death of Harjinder Singh, you are sentenced to be imprisoned for two years and three months.

73      In relation to Charge 2, committing the offence of dangerous driving causing serious injury to Gurwinder Singh, you are sentenced to be imprisoned for 18 months. 

74      I order that nine months of Charge 2 be served cumulatively on the sentence I have imposed on Charge 1.

75      That gives a total sentence of three years.

76      I suspend that sentence wholly for the operational period of three years.

77      I should indicate, Mr Crabbe, that that is the longest term of imprisonment that can be suspended and the longest operational period. 

78      I will explain to you the full consequences of the imposition of a suspended term of imprisonment and your respo0nsibilities to ensure that you are not required to serve any of that sentence.

79      Before I do that, I order that your licence to drive be cancelled and you be disqualified from driving for a period of 18 months.  In that regard I have taken into account the aspects of your profession.

80      Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of five and a half years with a minimum term of three years. 

81      I must explain to you the law that relates to a suspended sentence and it is this.  That I have imposed a term of imprisonment of three years and have suspended that for an operational period of three years.  You must not commit any offence punishable by imprisonment within that operational period of three years from today.

82      If you do, then you will be required to establish that exceptional circumstances have arisen since the imposition of the sentence from today, and that it is in the interests of justice.  If you cannot establish those exceptional circumstances, and that it is in the interests of justice, then you will be required to serve each day of the three years in prison. 

83      The way through it, of course, Mr Crabbe, is to return to what you have done lifelong and that is commit no offences. 

84      You should consider that almost every offence that you can think of is a crime punishable by imprisonment unless it is extremely minor. 

85      If you do breach the suspended sentence you will return back before me.  It is unlikely I will forget a case of this kind. 

86      Is there anything further required?

87      MR BOURKE:  No, thank you.

88      HIS HONOUR:  Mr Rutherford?

89      MR RUTHERFORD:  No, sir.

90      HIS HONOUR:  Mr Crabbe, you can be seated and there is no documentation required in relation to this.  However, what I have said will be transcribed and shortly made available to your lawyers and anyone else that wishes to have it, either online on the sites in which our sentences are placed, or in a hard copy. 

91      Mr Singh that also applies to you.  You are entitled to have available to you the sentence that I have pronounced.  It may well be that the Police wish to have it so that they can, perhaps, forward it to the family of Mr Harjinder Singh in India but that is all a matter for them.

92      There will be a website in which decisions of this court are placed which are available to the public anywhere in the world. 

93      The final thing that I need to do is to finish the phone call and adjourn the court.  They will more or less happen at the same time, so it is clear to you, Mr Singh, the proceedings here are now concluded.  We will end the phone call and the matter will conclude. 

94      Thank you.  I am grateful to counsel for their considerable assistance in this matter.  Thank you.

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