Director of Public Prosecutions v Gardezi
[2023] VCC 1082
•26 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-02165
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SYED GARDEZI |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2023 | |
DATE OF SENTENCE: | 26 June 2023 | |
CASE MAY BE CITED AS: | DPP v Gardezi | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1082 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - GUILTY PLEA
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Crennan | Ms G. Daniel |
| For the Accused | Ms T. Bolton | Ms Z. Garde-Wilson |
HIS HONOUR:
1 Mr Gardezi is now 29. He was 27 at the time of this accident. He pleaded guilty to the charges in this indictment before this Court on 19 June 2023. On that day, Ms Crennan appeared on behalf of the Director as she does today, as did Ms Bolton appear on behalf of Mr Gardezi.
2 The plea of guilty at that hearing was to two charges in indictment no.M12321279. Charge 1 was dangerous driving, by way of speeding, in a manner which was dangerous to the public and, in fact, caused serious injury. The injury I will come to, but the victim was Mr Grafanakis. The appropriate definition for serious injury, applicable to such crime, is under s15. Essentially in these circumstances concerns the aspect of endangerment of life. Mr Grafanakis was 18 at the time.
3 The offence is an offence under s319(1A) for which the maximum penalty imposed is five years imprisonment. The offence is also designated a serious motor vehicle offence for which pursuant to s87P(d) a minimum period of 18 months loss of licence by way of cancellation applies.
4 Charge 2 under s23 was reckless conduct which places people in danger of serious injury. The maximum penalty prescribed is five years imprisonment. The prospective victims in this matter were George Mihailidis and Christina Villaflor.
5 On the basis of the amended prosecution summary filed today, Exhibit A(i), the dangerous speed and reckless conduct are respectively, given the circumstances that I will recount, placed at between medium-high as to objective gravity. I, therefore, reject the defence prosecution of middle range of objective gravity or objective culpability.
6 I come to the circumstances of the driving.
7 Remarkably in this instance given the computer on board, as described in Exhibit G, which the Mustang owned by Mr Gardezi carried with an infotainment and a navigation system, information was available as to hard braking, acceleration, wheel spin and driver alerts, see [41] of the forensic car examiner’s report.
8 From this information a timeline was extracted from which I will distinguish the data available prior to 12.29 am on 6 July, except to say like behaviour, as exhibited in this accident, was present in some form and not maybe to this degree, but certainly present for some 10 hours prior on that day. That is accelerations and wheel spins in the driving of this car. As I say, however, and confirm that is not behaviour which makes up either of these charges.
9 The track log which is at p23 and is called Track Log 38 which is shown in the collision report, Exhibit G, has been utilised to create a simulation of the driving. As now detailed in the amended opening, Exhibit A1, in particular paragraph 7 and 8, such track log demonstrates, as was accepted at the last hearing, that Mr Gardezi came over the bridge at 102 kilometres, in a 40-kilometre zone.
10
Mr Gardezi then had to traverse a tricky double intersection into Golf Links Avenue, where at some 83 to 86 metres from the accident, he was then travelling at 49 kilometres per hour as he entered the 50 kilometre zone. In the next four seconds, he accelerates four times at full throttle. He moves from
49 kilometres per hour to 82 kilometres per hour in one second when he began to fishtail and then brakes to effect a speed drop back to 78 kilometres. He then applies full‑throttle acceleration, again moving to 89 kilometres. Given the distance involved and the evidence of the driver of the other car, as detailed again in the amended prosecution summary, at this stage, he must have passed or been trying to pass on the wrong side of the road, the car in which the potential victims, that I have referred to were travelling as involved in Charge 2.
11 It is clear that such heavy acceleration and braking caused the wheels to slip. In this regard, I refer to the opinion at p14 in Mr Grulke's report, Exhibit G and at paragraph 83B of Exhibit F, Detective Leading Senior Constable Hardiman's report. Mr Gardezi completed the overtake despite the presence of an oncoming car. As a result of the totality of his driving, he then impacted at 93 kilometres per hour a gutter, before impacting the tree.
12 Remarkably, with such lack of control and speed, the persons in the car the subject of Charge 2 were not involved in any accident with the Mustang being driven by Mr Gardezi. Indeed, the driver of that second car managed to swerve and avoid Mr Gardezi's car, which had come around him and gone in front of him.
13
When one places such driving in context, that is that it was occurring at approximately 12.30, or shortly thereafter, at night on a narrow road in a
tree-lined residential street, I have no qualms as to the culpability assessment I have made in regard to both charges.
14 In such circumstances, the prosecutor submitted that a combination sentence under s44 was in the range given the mitigating factors, but maintained that the defence submission of a community correction order alone was not within the range and, indeed, would not be an appropriate sentence given the totality of the circumstances of this case.
15 If I then come to the injuries occasioned to Mr Grafanakis in regard to Charge 1. I am satisfied beyond reasonable doubt the injuries as detailed in paragraph 15 of the prosecution opening meet the definition of serious and, indeed, the plea was made on that basis. Such, of course, is obvious from the hospital reports and from the need for a transfer from Monash Hospital to Alfred Hospital for a traumatic laparoscopy and a traumatic laparotomy, where immediate mobilisation of the descending colon, rectum and the ureter was required, with resection of the colon. See, in particular, p155 of the Alfred Hospital notes, Exhibit C, and as described in Exhibit D by Dr Bolt as a life-threatening traumatic bowel perforation, with blood loss and risk of rectal infection into the abdomen, see page 2.
16 If I may be so bold, both the victim in regard to Charge 1 and indeed, Mr Gardezi can thank such skilled surgeons that such injuries were able to be repaired. I note from Exhibit D, that Mr Grafanakis had a two-week admission in hospital following such surgery. There is no further information as to the ongoing progress of the victim. I am advised that the victim has disengaged from the Director although I will refer later to information which indicates that Mr Gardezi has been in touch with the victim and the family by way of concern.
17 Coming then to Charge 2. The risks of danger of a serious injury from Mr Gardezi's driving are obvious. Again, Mr Gardezi and the occupants can be particularly thankful of the steps taken by the driver, Mr Mihailidis, which allowed him to swerve and avoid contact with the vehicle being driven by Mr Gardezi. Contemplation of the consequences had Mr Mihailidis’ car connected with Mr Gardezi's car can only be imagined.
18
Coming then to the plea of Ms Bolton on behalf of Mr Gardezi. I note that a written submission was filed, Exhibit 1, and Ms Bolton spoke to such plea. She put the following matters by way of mitigation to the Court, the first of which was the mitigatory effect of the early plea, which I accept. As I said, during the hearing, this was a plea made at the earliest possible time.
I accept that it was utilitarian and indicated remorse on behalf of Mr Gardezi.
19 The second matter she relied on was the principles set out in Worboyes [2021] VSCA 169, [39]. Such principles make it clear that a plea effected at this time, given that we are still dealing and have been dealing with for some time the pandemic, has greater mitigatory effect and attracts a greater amelioration of sentence, given the difficult circumstances that the justice system itself is encountering. I accept those principles.
20 The third matter of importance is that Mr Gardezi has no priors.
21 The fourth matter put by way of mitigation was his personal circumstances. He comes from a loving and supportive family in Pakistan. He was able to obtain his first degree at the Lahore University which is a Bachelor of Economics. His achievements, again with support of his family, since his arrival in Australia at the age of 19 have been excellent. He has obtained another two degrees. He has particular success in the hospitality industry, where he now works full-time. He obtained a Masters of Accounting and Management in 2017. At that stage, he was working up to three jobs. He obtained permanent residency in 2018.
22 His success in the hospitality industry is such that he was able to obtain financial stability by early 2021, which of course, enabled him to purchase the Mustang car involved in these charges. As I have said to Ms Bolton today, I take into account the payments still owed that he has to pay on this car and the extra‑curial losses effected by the accident. In particular, I note that Exhibit 5 is a letter from AMMI which indicates a refusal of payment of the insurance that he had at the time. Actually, he did not satisfy the requirements of the insurer, no doubt because of the circumstances of this accident.
23 The next matter I was taken to was the issue of genuine remorse. It was put, in particular, in the report of the psychologist, Mr Armstrong, Exhibit 3 at p4, that Mr Gardezi has been consumed by guilt as a result of these matters, by shame for himself and that this has brought on his family, albeit, that he, obviously, has not told his father to date I understand. He has effected an apology to the victim and has had contact, and maintained contact, with the victim and his family as reported to Mr Armstrong.
24 The next matter was that as a result of this accident and the post-traumatic stress disorder which produced nightmares since the accident. The depression which he had suffered earlier in his life, in particular during COVID time caused by his inability to be able to go back to see his family, has been elevated again, unfortunately, and is still with him and requires treatment. I refer in his account in Exhibit 3, that is the report of Mr Armstrong at p5.
25 It was accepted by the prosecution that the totality of the circumstances as to the PTSD and the recurrence of depression was such as to engage principle 5 of Verdins. I note, in particular, in the psychologist's report at p8 the evidence as to the risk of such deteriorating. Mr Armstrong also is concerned with access to treatment should Mr Gardezi be imprisoned and I take that matter into account. The MHARS report received, which is part of Exhibit I, seems to be consistent with the report of Mr Armstrong.
26 The next matter that Ms Bolton submitted to the Court was that Mr Gardezi is a good candidate for rehabilitation, which I accept. Certainly, this was a catastrophic mistake in his life. The Court’s observation is that this crime is usually committed by younger men. However, in his instance, no doubt, the allure of a red Mustang has played some role. I have already referred to the fact that he has no priors. There is no evidence that he has conducted himself in any way since but in an appropriate manner and in this regard, I take into account the letter of his partner, tendered as Exhibit 4.
27 The next matter is the issue of delay. There has been some delay in this matter, no doubt brought about by the circumstances that I have referred to as to the administration of justice. However, the matter did resolve to a plea in November 2022 and, in the circumstances, has come before the Court in a not inappropriate amount of time. But I do take into account that there has been some delay since the accident, not caused by Mr Gardezi.
28 Given the totality of the matters put to the Court, Ms Bolton asked the Court to obtain a community correction report in support of her submission which the Court did, that has been tendered today as Exhibit I. I thank the officer, Mr Zdaavkovic, for the report dated 20 June 2023, which, as I have already said was a positive report for Mr Gardezi and assessed him as suitable for a community correction order.
29 I come then to the issue of disposition. As I indicated to counsel at the last hearing, the issue in this matter is whether a period of imprisonment should be imposed and, in that regard, the submissions from both counsel were as to either a community correction order on its own as submitted by the defence, or as submitted by the prosecution, a combined jail order and CCO.
30
Ms Bolton referred me to a number of authorities and submitted that a community correction order was possible on the basis of Boulton [2014] 46
VR 308. There is no dispute that such an order can be made. She further submitted that there are a number of examples in the County Court of such orders being granted. That is obvious from the sentencing statistics that have been tendered today, which show that 25 per cent of such sentences end up with a CCO alone.
31 In the cases that were referred to, I note that Bell [2018] VSCA 281 and Lombardo [2022] VSCA 204 were both actual death cases which take them into a category higher than this matter. Indeed, in Lombardo, the appeal revolved about the operation of s5(2H) of the Sentencing Act, upon which the Director was successful. However, what happened thereafter was that the Court of Appeal decided to exercise the discretion [105] and not interfere with the community correction order which had been granted. However, I point out that the Director was successful as to the operation of s5(2)(H) in that matter involving a higher charge.
32 Bell was not only a death case, but occurred before the amendment or the introduction of s5(2H) into the Sentencing Act, and as such, is not of much assistance in the circumstances to this Court. I do accept the relevance of the determination put to me by Ms Bolton of the matter of Lennon v The Queen [2017] VSCA 85, [49], where the Court of Appeal said in regard to these offences as follows:
'For offences of this kind, a sentence involving immediate custody is generally to be expected. The judge was also right to emphasise the need for general deterrence in sentencing of this kind of offence. Offences of this kind are frequently committed by young offenders with otherwise good character who have no criminal history and good prospects for rehabilitation. The applicant meets that description. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance and youth must be given relatively less weight'.
33
In regard to the Lennon case, it is to be pointed out that the driving there was assessed to be in the low range of culpability, albeit the driver was driving
at .08, [40], and that the impairment to one of the victims caused profound and permanent injury. The other case referred to of Bausch v The Queen [2019] VSCA 235, on the other hand, involved grave inadvertence with grave injuries to the victim where gaol clearly was the only option. In that case, the appeal was simply about how much gaol. In Bausch at [36] it was stated that the essence of a s319(1A) offence is objective. Further, at [38], the Court of Appeal said this:
'General deterrence constitutes a fundamental public policy imperative with respect to offences of this type. The need for such deterrence is informed by the very serious harm which is occasioned to innocent victims and the community as a whole by offending of this type'.
34 As I have said today, I have looked at the relevant sentencing statistics. They are probably not far off from what one could have imagined. They, as tendered, relate to the period July 2016 to June 2021.
35 During such period, as I indicated, 64 per cent of such sentences resulted in gaol. However, upon further analysis, imprisonment, without a CCO, was imposed in 43.1 per cent of cases. A combined sentence was passed in 21 per cent and as I have said a community correction order alone was passed in 32.8 per cent.
36 If I say generally insofar as such submissions as to previous cases and sentencing statistics, one notes apart from the general principles that I have referred to as to particular sentences, such are of limited use. See Hasan v The Queen [2010] VSCA 352, but of course, are yardsticks that may serve to illustrate, although not define, the possible range of sentences available. See R v Pham [2015] CLR 550, [29].
37 I must, in the end, apply the principles expressed in Dalgliesh [2017] 91 ALJR 1003 by the High Court, in particular at 1075. That is, in sentencing, Mr Gardezi he is entitled to a just sentence which involves individual justice based upon the particular facts of this case.
38 As I have said, the balancing process, in this case, has not been easy. However, unfortunately, given the type of driving and the serious injury caused in Charge 1 and the creation of the grave risk of serious injury in regard to Charge 2, I have decided that the driving is such that a straight CCO would not serve the required purposes of sentencing in this case.
39 I would, therefore, reject the submission of Ms Bolton that the appropriate sentence, in this case, can be delivered by way of a community correction order alone. As was said in Bausch, to which I have referred, Mr Gardezi is entitled to have put in his favour all of the particular matters submitted as matters in mitigation by Ms Bolton and I, of course, take such into account.
40 Mr Gardezi, if you would stand up, please.
41 Insofar as your offending in this matter if I take the first charge first; that is the breach of s319(1A). You are convicted and sentenced to a period of imprisonment of eight months gaol combined with a Community Correction Order of two years.
42 In regard to the s23 offence, Charge 2, you are convicted and sentenced to a period of imprisonment of four months. I order that one month of this sentence be served cumulatively upon the sentence imposed in regard to Charge 1, making a total effective period of imprisonment that you will serve of nine months and, thereafter, you will undertake a Community Correction Order for two years.
43 The Community Correction Order will have with it an obligation to complete during the period 100 hours community work under s48C; to undergo treatment and rehabilitation in regard to mental health under s48D(3)(e); to undergo supervision under 40A(d). I specifically do not impose 48CA. That is, I require you to do the full amount of work. Such CCO will commence upon the completion of the gaol term that has been imposed
44 I am required by the law to impose a minimum loss of licence for a period of 18 months.
45 HIS HONOUR: Ms Bolton, I am not sure if he's been off his licence or had his licence suspended. That is sometimes - - -
46 MS BOLTON: Can I just confirm that - - -
47 HIS HONOUR: Yes.
48 MS BOLTON: No, he has been driving.
49 HIS HONOUR: He has been driving?
50 MS BOLTON: Yes.
51 HIS HONOUR: Yes. Well, that period of 18 months will commence today.
52 MS BOLTON: Thank you, Your Honour.
53 HIS HONOUR: Pursuant to s6AAA, Mr Gardezi, I am required by the Parliament to indicate to you what would have happened had you not pleaded guilty. It is somewhat difficult because of the number of factors that were put in mitigation on your behalf, apart from the plea itself. However, doing as best I can, the total effective sentence that I would have imposed had you not pleaded guilty would have been a period of 14 months gaol, with no community correction order. Are there any other matters that I need to attend to?
54 MS CRENNAN: Not from our perspective, Your Honour.
55 MS BOLTON: No, Your Honour.
56 HIS HONOUR: Your client indicated he was prepared to undertake the community correction order in the report. Is that still the position?
57 MS BOLTON: It is, Your Honour.
58 HIS HONOUR: Yes.
59 MS BOLTON: Thank you, Your Honour. He'll have to sign - - -
60 HIS HONOUR: I'll have him sign that.
61 (Community-based order signed and acknowledged.)
62 (Recording malfunction11.33.31-11.35.36)
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