Director of Public Prosecutions v Eskander

[2022] VCC 653

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-18-01670

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESKANDER, YOUSSEF

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF SENTENCE:	13 May 2022
CASE MAY BE CITED AS:	DPP v Eskander
MEDIUM NEUTRAL CITATION:	[2022] VCC 653

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Dangerous driving causing serious injury

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic)

Sentence:                  Community Corrections Order of 12 months' duration.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Parkes	Solicitor for the Director of Public Prosecutions
For the Accused	Mr N. Papas QC	Schembri & McCluskys

HIS HONOUR:

Introduction

1Youssef Eskander, you have pleaded guilty to an indictment containing one charge being dangerous driving causing serious injury.[1] The maximum penalty for this offence is five years' imprisonment.

[1]Contrary to s 319(1A) Crimes Act 1958.

Summary of Offending

2A Summary of Prosecution Opening[2] and a bundle of photographs[3] were tendered on the plea.

[2]Prosecution Exhibit 1.

[3]Prosecution Exhibit 3.

3Your offending arises out of a motor vehicle collision that occurred at approximately 8:05pm on 6 August 2016 at the intersection of Doncaster Road and Blackburn Road in Doncaster.

4You were driving north on Blackburn Road in the far left lane before you came to a stop at a red traffic signal at the intersection.  Rose Green was driving west along Doncaster Road with her mother, Cita Green, seated in the front passenger seat.

5Ms Rose Green entered the intersection.  You were stationary at the intersection. You then went into the intersection against the red traffic signal.  You told police you mistakenly believed the signal was green.  You struck the front of the driver's side of Ms Green's vehicle.  The impact forced Ms Green’s vehicle onto the median strip on the west side of the intersection where the front of her vehicle collided with a light pole.  Ms Green did not see your vehicle prior to the collision.

6Police and paramedics attended the scene.  As a result of the collision, Ms Rose Green received fractured ribs.  You did not receive any injuries beyond pain in your left knee and hand.

7Ms Cita Green was taken to Royal Melbourne Hospital by ambulance.  As a result of the collision it was found Ms Cita Green suffered the following injuries:

(a)   a right subdural haemorrhage;

(b)   a fracture to the fifth cervical vertebrae;

(c)   a fracture to the manubrium (sternum);

(d)   a fracture to the right second rib;

(e)   a fracture to the right clavicle.

8On 11 August 2016, Mrs Cita Green died due to complications arising from her injuries.

9By entering the intersection against the red traffic signal you failed to maintain a proper level of attention.  The result was that the collision caused serious injury to Ms Cita Green.

Impact on the Victim

10The Victim Impact Statement of Ms Rose Green was tendered on the plea.[4] You have pleaded guilty to a charge that does not allege your driving caused the death of Ms Green. Your dangerous driving did however, result in very significant physical injury to Ms Green and lead to a sequence of events that ended in her passing. Your actions meant that Ms Green's last days were marked by pain and suffering, and this has undoubtedly had a profound impact upon her family and specifically her daughter. I take this into account pursuant to s 5 of the Sentencing Act 1991 (Vic).

[4]Prosecution Exhibit 2.

Nature and Gravity of offending

11By its nature, the offence the subject of this indictment necessarily involves a victim suffering serious injury as the direct result of driving by an accused at a standard objectively assessed to be dangerous.  The legislature has indicated by the imposition of a maximum penalty of five years' imprisonment that it is an inherently serious offence.

12It is, however, an offence that can be committed in circumstances representing a broad range of culpability.  The gravity of an individual offence must be assessed by reference to its own unique facts.

13In this case, the injury inflicted on Ms Green was clearly and substantially above the threshold of what might be considered a, 'serious injury', if not being at the absolute upper end of what can be included within that scale.

14The dangerous driving itself is comprised of a momentary inattention whilst facing a red traffic control signal.  There is no suggestion that the driving error the subject of the charge was affected by any other action that made your error more likely, such as the use of a mobile phone or any other impediment to concentration.  It is submitted by the defence and accepted by the prosecution that this conduct and your moral culpability falls at the low end of the range.

Personal Circumstances

15You were 31 at the time of offending and are 37 at the time of sentence. You were born in Egypt.

16You have no prior convictions and nothing subsequent.

17Your parents are both living in Egypt. You spent some time in Australia whilst in primary school but then returned to Egypt and completed most of your schooling in that country.  You graduated from university with a Bachelor of Pharmaceutical Science when you were 23.

18You were employed as a medical representative and as a pharmacist after graduating in Egypt.  You returned to Australia in 2014.

19You were married in 2013.  You have two children aged seven and four.  Your wife works full-time in an administrative role.

20You have worked as an uber driver and in security after coming to Australia.  You are now an Australian citizen.

21You have undertaken further studies to re-qualify as a pharmacist and become eligible for registration in Australia.

22You are deeply involved in the Coptic Orthodox church.  The reference material tendered[5] confirms that you are a well-respected contributor to that community.

[5]Defence Exhibit 2

Plea of Guilty and Remorse

23You first offered to plead guilty to the charge the subject of this indictment in 2019. The prosecution rejected the offer at that time.  The matter was listed for a trial on an indictment containing a more serious charge due to commence in April 2022. Further negotiations resulted in the matter becoming the subject of a sentence indication hearing on 30 March 2022.

24You entered a plea of guilty to the current charge following a sentence indication on that day.  Whilst your plea was entered just prior to trial, had your plea offer been accepted in 2019, you would have saved the time and resources of three years of court proceedings.

25As it was, the trial was avoided.

26You spared Ms Rose Green what would undoubtedly have been the stressful and difficult experience of giving evidence at trial.  Your pleas of guilty have substantial utilitarian value, especially in circumstances where pandemic restrictions have resulted in extreme pressure being placed on court listings.

27I consider that your plea of guilty, in combination with the direct expressions of contrition and regret that are evident in the extensive reference material,[6] reflects that you have genuine remorse for your driving error and its consequences.

[6]Defence Exhibit 2

Delay

28The matter has been subject of a substantial delay.  The collision occurred in August 2016, which is now almost six years ago.  The matter was initially the subject solely of a traffic infringement for entering the intersection against a red light.  It was only after Mrs Green’s passing that a further investigation was conducted.  Around a year later, in 2017, you were charged with offences including dangerous driving causing death.  This charge remained until the resolution of the matter at the sentence indication hearing.

29Whilst a small portion of the delay reflects the fact that you disputed any criminal liability for the incident, the far more substantial portion of the delay can be attributed to the timing of the decision to charge you followed by the suspension of jury trials because of the pandemic.  I accept that the unfortunately elongated nature of these proceedings has in itself been a significant punishment.  The reference material reveals that these proceedings have been an ongoing and distressing burden upon you.

30You are also entitled to acknowledgement of the very lengthy period of good behaviour that has followed the incident.

Prospects of Rehabilitation

31Your prior and subsequent good behaviour, your work and educational history, your family support, and your good character as attested to by multiple referees all permits a conclusion that you have excellent prospects of rehabilitation.

Recording of Conviction

32Pursuant to s 8 of the Sentencing Act 1991 (Vic), in exercising its discretion whether or not to record a conviction a court must have regard to all the circumstances of the case. I have already noted that whilst this offence has had tragic consequences, the culpability is at the low end of the range. You are a person of previous and subsequent good character.

33You are currently in the process of seeking registration as a pharmacist.  You will be required to declare to the regulators your finding of guilt on this matter.

34It cannot be said with any certainty that the recording of a conviction on this charge would adversely affect your application to be registered as a pharmacist.  It certainly cannot be concluded that the recording of a conviction or otherwise would be the difference between the regulator's exercising their discretion to register you or not.  However neither can such a scenario be excluded, though it seems unlikely.

35I am satisfied that if the charge is dealt with without a conviction being recorded, the prospects that this matter will cause difficulty for your registration are diminished still further.

36Balancing these factors, I intend to impose a penalty without recording a conviction.  I note that Ms Parkes on behalf of the Director of Public Prosecutions conceded that such a disposition was within the available discretionary range.[7]

[7]Prosecution Exhibit 4.

Sentencing Principles

37The nature of the charge is such that general deterrence is an important sentencing consideration.  I must impose a sentence that sends a message that taking care on the roads is of fundamental importance.  I do not consider that there is any need to specifically deter you from further offending.  I must express denunciation for you offending.  I must impose a penalty that represents a just punishment in all the circumstances and reflects the excellent prospects of rehabilitation that I have found you to have.

Submissions on Sentence

38Mr Papas submitted on your behalf that a Community Corrections Order without conviction was appropriate in all the circumstances of the case.  Mr Papas submitted that the Community Corrections Order should comprise only the required conditions, and should not include any additional punitive conditions such as a requirement for unpaid community work

39He further submitted that the mandatory requirement pursuant to s89 of the Sentencing Act 1991 (Vic), that your driver's licence be cancelled and disqualified for 18 months, did not apply in circumstances where a conviction was not recorded.

40I have concluded, despite these submissions, that the words, 'found guilty or convicted of a serious motor vehicle offence' in s 89(1) does in fact mandate that the designated loss of licence applies even when a finding of guilt is not accompanied by conviction. This interpretation is consistent with s 253B of the Criminal Procedure Act2009 (Vic) which states that an accused is found guilty on arraignment when a plea of guilty is entered.

41I do note that this mandatory loss of license represents an additional punitive element to the sentence.

42Ms Parkes on behalf of the Director of Public Prosecutions conceded that in the circumstances of the case, a Community Corrections Order without conviction was open.  She further submitted, however, that there should be some punitive component to such an order whether it be through community work or a fine, and that this was ultimately a matter for the court.

Sentence

43Youssef Eskander, I sentence you as follows:

44On Charge 1, dangerous driving causing serious injury, you are sentenced to a Community Corrections Order of 12 months' duration.  Such order is imposed without a conviction being recorded.  Apart from the standard conditions, you will be subject to a special condition that you undertake 50 hours of unpaid community work.

45All licences are cancelled and disqualified for a period of 18 months from today's date.

46Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a  Community Corrections Order of 18 months' duration with conviction.

47So on Charge 1, Mr Eskander, I intend to not record a conviction and place you on a Community Corrections Order for a period of 12 months' from today's date.

48Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.

49The following Core conditions apply to all Community Correction Orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b)   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.

(c)   You must report to the Community Correction Centre at Box Hill within two clear working day's from today.

(d)   You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

(e)   You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f)    You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.

50There is one other condition attached to this order that applies to you:

(a)   You have to perform 50 hours of unpaid community work over a period of 12 months as directed by the Regional Manager (s48C).

51Now I can only impose a Community Correction order if you agree to such an Order being imposed, so I will tell you a little bit about the consequences of a breach of that order.

52If you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)). 

53You can also be re-sentenced for the offences that are before me today.  One of the options available upon re-sentence includes a term of imprisonment (s83A(s)).

54I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer or worker, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)). 

55All right, so Mr Eskander, are you aware of all of that? 

56OFFENDER:  Yes.

57HIS HONOUR:  Yes, and do you consent to the order on the terms I have just outlined?

58OFFENDER:  Yes.

59HIS HONOUR:  Okay, well I have got a print-out here.  I will get Mr Eskander to sign that.  Are there any other orders required?

60MS PARKES:  No, Your Honour. 

61HIS HONOUR:  Yes, so Mr Papas can go down and - - -

62All right, nothing further? 

63MR PAPAS:  No, Your Honour. 

64HIS HONOUR:  Thank you both for your assistance.  I will adjourn the court until 10.30. 

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