Director of Public Prosecutions v Hassan

[2017] VCC 980

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01042

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMAD HASSAN

---

JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 July 2017
CASE MAY BE CITED AS:	DPP v Hassan
MEDIUM NEUTRAL CITATION:	[2017] VCC 980

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic
For the Accused	Mr H. Rattray

HER HONOUR: 

1Mohamad Hassan, you have pleaded guilty to two charges of culpable driving.  The maximum penalty for each offence is 20 years' imprisonment.  Further, you have pleaded guilty to one charge of driving an unregistered motor vehicle; the maximum penalty for that offence is 25 penalty units.  And finally, you have pleaded guilty to one charge of fraudulently using registration plates. 
The maximum penalty for that offence is 10 penalty units or two months' imprisonment.

2The circumstances of your offending are set out in the prosecution summary which is Exhibit 1.  On Sunday 5 June 2016, you were the driver of a motor vehicle involved in a fatal collision on the corner of Mickleham Road and Alanbrae Terrace in Attwood.  You were at the relevant time aged 20 years and 10 months.  You were the holder of Lebanese driver's licence expiring in 2045.  You arrived in Australia in May of 2015 as a dependent on your mother's visa.

3The victims in this matters, Mrs Bozica Nikolic, who was aged 57, and
Mrs Subha Deumic, who was aged 62, were travelling in a red Toyota Yaris with Mrs Nikolic driving and Mrs Deumic in the rear passenger seat.  They were travelling from the Deumic house to the Nikolic house and the vehicle was stationary in the right hand turn lane at a red light on Alanbrae Terrace waiting to conduct a right turn into Mickleham Road.

4Ms Amira Deumic, the eldest daughter of Mrs Deumic, was in the vehicle directly behind the victim's car.  She observed these tragic events as they unfolded. 

5You were travelling south on Mickleham Road in a 1999 Mercedes Benz which had been purchased by your father from Pickles Auctions on 19 January 2016 unregistered.  At the time of the collision, the Mercedes was still unregistered but it was fitted with Victorian registration plates registered to your work vehicle.  It is these facts which found the summary charges of driving an unregistered motor vehicle and fraudulently using registration plates.

6The roadway on which you were travelling had a posted speed limit of
80 kilometres an hour.  You approached the intersection at a speed of approximately 140 kilometres an hour.  The traffic light applicable to you was yellow for some five seconds prior to changing to red.  The traffic light turned red four seconds before the collision, when you would have been some
154 metres from the intersection. 

7Mrs Nikolic had entered the intersection on a green traffic control signal and commenced turning right.  Your vehicle travelled into the intersection against the red light and struck the front driver's side of her vehicle.

8The speed at the point of impact was approximately 127 kilometres an hour.  The impact was such as to cause the Toyota to spin and come to rest approximately 55 metres from the point of impact.  Your vehicle was propelled forward from the point of impact and travelled approximately 75 metres and onto the median strip before you collided with a large overhead street pole. 
The force of the impact caused the street pole to collapse onto the roadway. 
Your speedometer was later noted to be locked at 135 kilometres an hour.

9Mrs Deumic was pronounced dead at the scene; Mrs Nikolic was conveyed to the Royal Melbourne Hospital where she too was pronounced dead.  You exited your vehicle and ran to the victim's vehicle to see if you could assist. 
You remained at the scene, identifying yourself as the driver of the other vehicle.

10Reconstruction concluded that if you had commenced braking at the 154 metre point when the light turned red, you could have avoided the collision, let alone had you been travelling at the applicable speed limit.  It is not put that you intentionally went through the red light having seen it.

11You pleaded guilty to the charges of culpable driving on the basis of criminal negligence in that, (a) you approached the intersection at a speed in excess of the speed limit namely 140 kilometres an hour in an 80 zone; (b) that you failed to the observed the applicable traffic light turn amber and then red; (c) that you entered the intersection four seconds after the applicable traffic light turned red; and (d) your speed at the point of impact was 127 kilometres an hour.

12You were arrested at the scene and you told police that you did not see if the light was red or green and that your front window had "stuff on it". 
You explained that you had turned the heater on and the front window had become foggy.  You estimated at that time that you were driving at 90 to 100 kilometres an hour but noted that you could not feel the speed because, as you put it, the ‘car was big’.

13You said you did not see the other car and did not brake at all and that you had gone over to see if the lady was okay.  You were conveyed to the Alfred Hospital and discharged on 6 June after treatment for shock and relatively minor injuries.  You were subsequently conveyed to the Melbourne West Police Station and you exercised your rights in relation to interview. 

14This offending is, by its nature, serious.  As drivers, we all owe each other responsibility and we rely on each other discharging those responsibilities. 
As has been said, driving is an adult task with adult consequences.  You will live with the certain knowledge that your conduct has caused the death of two members of our community.  The burden will be heavy one, as it should be.

15As regards the objective gravity of your offending, it is relevant that the speed at which you were travelling was some 60 kilometres in excess of the applicable speed limit.  It must have been clear to you that you were travelling in a built-up area with the likelihood of other vehicles.  You told police that you did not have clear visibility; indeed you said you could not see at all whether the light was red or green.  You failed to observe an amber and then red light over a significant distance which, had you been observant, would have sufficient for you to brake and avoid collision.

16You entered the intersection four seconds after the light turned red.  Your speed at the point of impact was 127 kilometres per hour.  The sad reality is that you made choices.  They were choices no doubt made in seconds, but they were choices.  It is also relevant to note that your offending did not involve racing; your bad driving was of relatively short duration.  There was nothing erratic or concerning in your driving earlier in time.  Your offending does not involve either drugs or alcohol and you immediately sought to assist the victims.

17The prosecution concede that this is not a high range offence of this type. 
The defence concede that this is not a low range offence.  There were various submissions as to where in the mid-range your offending properly falls. 
In my view, it is more important to identify the factors relevant to objective gravity than to seek to dissect the mid-range label with ever increasing precision.  It is sufficient to say that this, in my view, is mid-range offending when regard is had to the full range of circumstances which might constitute the offence of culpable driving.

18I have received victim impact statements from three daughters of Mrs Nikolic, and from two daughters and a son of Mrs Deumic.  In addition, four of the victims read their statements to this court and the two remaining statements were read by the prosecutor.  The contents of those statements are raw and compelling.  They convey the very real and ongoing impacts of this kind of offending. 
The effects have rippled through all aspects of these families lives.  For some, their physical health has been affected; for all, the loss haunts them. 
The victims have changed forever.  There is nothing that can be said or done to change their new reality.  It is to be hoped that time can help them heal from that which they should not endure.

19I accept that you are, as put by your counsel, profoundly remorseful for the very real consequences of your offending and the ongoing pain caused to the deceased families.  You have expressed this continuously from an early stage and I accept that you are sorry for what you have done and not just the circumstances in which you now find yourself. You are a young man who has made a life-altering series of mistakes.
The prosecution do not challenge the level of your remorse. 

20You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character. 

21You are now aged 21 years and 11 months.  You are the second of seven children who range in age from 23 to 11.  You are single with no dependents.  Your family all attend court in clear support of you. 

22You grew up in a village in Lebanon.  You commenced school at six or seven and continued to your education until you were about 18.  Your father migrated to Australia on a refugee visa in about 2006 in circumstances where, because of his role as a local councillor, he had to leave for political reasons.  It took some nine years before he was able to successfully sponsor the rest of the family to join him.  During those nine years, you took on considerable responsibility in caring for your mother and siblings.

23From the age of 14, you worked in your uncle's charcoal shop to earn money to help support the family.  You describe a happy life and you report being happy that the family came to Australia.  You have been employed since your arrival in this country, working in the field of demolition.  I note that I have received a letter from Nationwide Demolition which attests to your work ethic and your remorse as regard to this offending.  The author expresses confidence as regards your future.

24In recent times, you suffered serious burns as a result of a barbeque accident which saw you hospitalised.  The photographs of those injuries are part of Exhibit B.  You will require ongoing medical attention in custody to deal with this. 

25Prior to this incident, you would properly have been described as a diligent, hard-working young man with excellent prospects.  You were full of hope and those around you saw promise.  In less than a minute, that all changed forever.  For you, for the victims’ families, for your family.  The tragedy is compounded by the fact that this was all completely avoidable.

26Subsequent to your offending, you were referred to Dr Samir Ibrahim, a consultant psychiatrist by your general practitioner.  You have attended several sessions, commencing on 21 September of last year.  Doctor Ibrahim describes you as presenting as depressed, with apprehensive feelings and little reactivity of effect.  He notes that he prescribed anti-depressant medication.  I have been told that you have, in consultation with him, now ceased all medication in order to feel, as you put it, ‘more like yourself’, even though this now includes the symptoms for which the medication was originally prescribed.

27Doctor Ibrahim further notes that you attend a psychologist who monitors progress and offers supportive psychotherapy on a regular basis.  In terms of diagnosis, it is Dr Ibrahim's opinion that you suffer from an adjustment disorder with mixed symptoms of anxiety and depression following the fatal motor vehicle collision. 

28I have also received a report from Mr Ramzi Mohammad, a psychologist, dated 6 June 2017.  He says you presented with a prolonged form of insomnia and that you were apprehensive, hyper vigilant and had depressed mood trends.  He noted that testing placed you on the scale of severe intensity as regards depressive manifestation.  Mr Mohammad opines that you clearly understand the pain and anguish you have caused the family of the victims and your own family.  He says you have the capacity to feel guilt and to express remorse.  He says you have continued to require medical and specifically structured psychological support.

29You were assessed by Ms Carla Lechner, clinical psychologist, for the purposes of this plea.  Her report is dated 4 July of this year.  She says you impressed as having the capacity to reflect on the impact of your behaviour on both yourself and others and hence your immense grief about all that has occurred. 
Ms Lechner says that you currently present with symptoms of major depressive disorder and post-traumatic stress disorder and that you will need on-going psychological support in custody. 

30Given your visa status, it is likely that as a result of this sentence you will fail the character test and face the potential of being deported upon your release from custody.  Apart from this matter, you would have a reasonable expectation of settling in Australia. 

31While speculation as to the future actions of the Minister are not relevant to my task, it is relevant that the uncertainty of your status and the likelihood you will be forced to leave your entire family in this country will no doubt weigh upon you as you serve your sentence and increase the burden of imprisonment. 
I accept that your inability to assist your family financially in circumstances where you have played a significant role in this regard from age 14 will also weigh upon you. 

32Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, your plea:  you have, by your plea, saved the witnesses the ordeal of giving evidence, you have saved the community the time and expense of a trial.  You pleaded guilty at what can be described as the earliest available opportunity, having made full admissions in relation to your conduct.  I accept that you are entitled to the full benefit of an early plea. 
I further accept that your plea is properly used as evidence of your remorse which, as I have said, you have expressed on an ongoing basis. 

33You are still a young man.  You were a young offender at the date of this offending and you fall to be sentenced now as a youthful offender as you have turned 21.  The community must maintain a real interest in your rehabilitation as that is in the community's best interests.  While the weight afforded to rehabilitation is diminished by the nature of your offending, it remains a relevant sentencing consideration.

34Your prospects of rehabilitation are, in my view, excellent.  This will be your first time in custody, indeed your first contact with the criminal justice system. 
It is likely to have significant deterrent effect, whatever the duration.  As I have noted previously, you have no criminal history. 

35Sentencing is, of course, a balancing exercise and I have approached my task on that basis.  As well as matters personal to you to which I have referred,
I must also take into account other relevant sentencing considerations.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  General deterrence is of particular importance in matters such as things; I must seek to not deter not only you but other who would engage in like conduct.  I have regarded this sentencing consideration is properly given significant weight in the sentence I will impose this day.  Specific deterrence can in light of your history be given less weight.

36I have had regard to and applied principles of totality in coming to a view as to the appropriate orders for concurrency and cumulation. 

37I wish to make clear to the victim's family before announcing sentence that this sentence does not and could never reflect the value of a life.  My task is to sentence criminality, not to engage in an impossible task.

38You are convicted and sentenced as follows.

39Charge 1, culpable driving.  You are convicted and sentenced to be imprisoned for six years and six months.

40Charge 2, culpable driving.  You are convicted and sentenced to be imprisonment for six years and six months.

41I direct that two years and two months of the sentence upon Charge 2 be served cumulatively with the sentence upon Charge 1.  That is a total effective sentence of eight years and eight months.  I direct that you serve six years and two months before becoming eligible for parole.  I direct that 27 days be reckoned as served.

42On the summary offences, you are convicted and fined and aggregate amount of $700 dollars. 

43On the indicted charges, you are disqualified from driving in the state of Victoria for a period of five years effective today. 

44Pursuant to s.6AAA of the Sentencing Act, I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of ten years and nine months with a minimum of eight years and six months. 

45Have a seat for a moment, please.  Counsel, is there anything arising?

46MS MALOBABIC:  No, Your Honour.

47MR RATTRAY:  No, Your Honour.

48HER HONOUR:  Thank you very much.  Would you take Mr Hassan downstairs please?  Adjourn the court.

‑ ‑ ‑