Director of Public Prosecutions v Husnu

[2019] VCC 1061

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00581

DIRECTOR OF PUBLIC PROSECUTIONS

v

HASAN HUSNU

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2019
DATE OF SENTENCE:	10 July 2019
CASE MAY BE CITED AS:	DPP v Husnu
MEDIUM NEUTRAL CITATION:	[2019] VCC 1061

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Reckless conduct endangering life – Cause injury recklessly – Drink driving – Exceed the prescribed concentration of alcohol.

Legislation Cited: s145 Criminal Procedure Act 2009, s.5(4)(C) Sentencing Act 1991.

Sentence:Total effective sentence of three-and-half years imprisonment with a non-parole period of two-and-half years imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan (To Plead) Ms G. Hersch (Sentence)	Office of Public Prosecutions
For the Accused	Mr C. Marshall	C Marshall and Associates

HIS HONOUR:

1At the County Court at Melbourne on 3 July 2019 Hasan Husnu, you pleaded guilty to the following charges on Indictment No.J12529652:

Charge 1,  was conduct endangering life.  This charge has a maximum sentence of 10 years' imprisonment; 

Charge 2, was recklessly cause injury to Melody Akses.  This charge has a maximum penalty of five years' imprisonment; and

Charge 3, recklessly cause injury to Catherine Yokana.  This charge has a maximum penalty of five years' imprisonment.

2Pursuant to s.145 of the Criminal Procedure Act a related summary charge of exceed the prescribed alcohol content was transferred to this court. You consented to the summary charge being heard and pleaded guilty to what was summary charge No. 11.  The alleged blood alcohol content reading was .238 from a blood analysis.  This reading is almost five times the legal limit.   

Circumstances of your offending

3The prosecution tendered a summary of prosecution opening for the plea dated 6 June 2019.  This was Exhibit A on the plea. 

4On 22 September 2018 you had been drinking with your casual friend, Ms Melody Akses at her home.  You drank vodka with orange juice.  You prepared the drinks yourself. 

5Just before 3 am on 22 September 2018, you were taking Ms Akses to play the pokies on Barry Road, Pascoe Vale.  Initially, you travelled in your car from Tamboon Court, around Shankland Boulevard, to the intersection of Pascoe Vale Road in Roxburgh Park.  The route taken by your car is set out in “Appendix 1” to Exhibit “A”. 

6Your car was fitted with a dash-cam which was activated for the whole of the fateful journey.  A seven minute and 48 second video of the journey was played in the course of the plea.  It was Exhibit “B” on the plea. 

7The first part of your driving set out in “Appendix 1” was relatively uneventful, but obviously showed that you were driving in a reckless and erratic manner.  Your passenger, Ms Akses, was yelling at you in this part of the trip. 

8You have then stopped your car at the traffic lights at the intersection of Shankland Boulevard and Pascoe Vale Road in Roxburgh Park.  Your car is in the left hand lane for eastbound traffic.  You are stationary for 62 seconds.  The lights changed to green for you and you execute a right hand turn into the right-hand turning lane for traffic travelling, in a northerly direction on Pascoe Vale Road.  In the two northbound lanes of Pascoe Vale Road, to your right, were oncoming vehicles at the intersection.

9Despite this earlier and proximate warning and the screaming from your passenger, Ms Akses, you either failed to realise you were travelling in the wrong direction on the wrong side of Pascoe Vale Road, or you did not care. 

10You then travelled south in the northbound carriageway of Pascoe Vale Road for 2.3 kilometres to the point of collision with Ms Yokana's vehicle. Over the total distance you travelled at extremely high speeds, recorded as high as 162 kilometres per hour on your dash cam.  

11In that short trip, no less than eight separate vehicles travelling north along Pascoe Vale Road had to take evasive action to avoid colliding with your car.  This is all shown in frightening detail in Exhibit “B”. 

12At the time of your collision with Ms Yokana's vehicle, you were travelling at 98 kilometres per hour.  At the time of the collision Ms Yokana was making a legal turn in a very slow manner. 

13Ms Yokana had to be cut out of her car.  She was taken by ambulance to the Royal Melbourne Hospital.  That is the basis of Charge 3. 

Ms Yokana’s injury

14Ms Yokana's injury was eventually and fortunately clinically identified as a right clavicle fracture which is the collarbone, minimally displaced.  The CT Scan conclusion was, 'Oblique minimally displaced distal right clavicle fracture.'

15The CT scan results further noted that no traumatic abdominal or thoracic injury was identified, while CT scans of the head and spine showed no acute intercranial or cervical injury identified. 

16Longer term effects noted by Ms Yokana's local Coolaroo Clinic dated 6 February 2019, were that her clavicle fracture did not heal and that she was in persistent pain in her right clavicle area and right shoulder.  The report noted the possibility of her needing future reconstructive surgery. 

17In the course of the plea, the prosecution stated Ms Yokana was due for further surgery to her right shoulder in September 2019.   

18Ms Yokana's vehicle was completely written-off as a result of the damage caused by your driving.  After watching the dash-cam video, Exhibit “B”, and seeing the photograph of Ms Yokana's damaged car after the collision, which was part of Exhibit “A”, it is difficult to see how Ms Yokana was not more seriously injured or worse still, killed. 

19Your passenger, Ms Akses was also injured in the collision.  I note that you left your car after accident with Ms Akses trapped in the vehicle.  Ms Akses was also taken to the Royal Melbourne Hospital by ambulance.  That is Charge 2, recklessly cause injury.

Ms Akses Injuries

20Ms Akses's injuries were found to be as follows: 

(a) The top of her head, a scalp laceration with blood oozing from it, requirement debridement and a closing in theatre by stapling;

(b) A large left head bruise, subgaleal haematoma;

(c) A neck injury involving occult compression fracture through the T3 vertebral body with marrow oedema extending into the right pedicle.  This required Ms Akses to wear a neck brace for some six weeks;

(d) Chest injuries involving minimally displaced fractures of the left lateral 4th, 5th and 7th rib; and

(e) A fracture to her left wrist, that is a scaphoid fracture which required surgery involving the implantation of a screw. 

21Longer term effects noted by Ms Akses's medical centre, dated 14 February 2019, were features of reactive depression and adjustment disorder.

22Following the police arrival at the scene, they attempted a preliminary breath test on you on approximately 15 occasions, but were unable to obtain a sufficient sample.  You were then transported to the Northern Hospital where a blood sample was taken from you at 4.45 am which ultimately yielded a blood alcohol reading of .238. 

23In the course of an interview which was conducted at the Broadmeadows Police Station on 22 September 2018, at 8.11 am in the morning, your responses were as follows:

(a) You said that you were just driving along Pascoe Vale Road and someone pulled out in front of you causing a collision during which you smashed right into him;

(b) That you had been at work that day between the hours of 8.15 am and 4.30 pm and then you went that evening after 10 pm to Ms Akses's house in Meadow Heights and that you were on your way to play the pokies on Barry Road in Pascoe Vale when the collision occurred;

(c) That before the collision, that is, between 9 and 10 pm, you brought a bottle of vodka from Roxburgh Park Hotel and drank a couple of vodka's mixed with orange juice which you had prepared yourself; 

(d) That you admitted that you were the registered owner of the vehicle and that you were driving at the time the collision occurred;

(e) That at the time of collision, Ms Akses was in the front seat passenger seat of your car;

(f) That you used Pascoe Vale Road on a daily basis which has a speed limit of 80 kilometres per hour;

(g) That at the time of the collision you estimated you were driving at a speed between 75 and 80 kilometres per hour and that you tried to brake and avoid the collision but it just happened;

(h) That after the collision you got out of the vehicle to check if everyone was okay, and as far as you were aware, no-one was injured;

(i) You claimed that you remained with your vehicle after the collision and denied attempting to leave the scene; and

(j) That you didn't help Ms Akses get out of the vehicle, but you were asking her if she was okay, but got no response and that you thought Ms Akses was faking an injury.

24I accept your counsel's submission with your high blood alcohol reading, you were undoubtedly still under the influence of alcohol at the time of the interview by police.  Nevertheless, the answers given by you clearly indicate you have no empathy or idea of the impact of your spontaneous offending on this evening.

25In summary you were .238 blood alcohol level travelling at speeds up to 162 kilometres per hour in an 80 zone, for 2.3 kilometres in the wrong direction on a main arterial road.  That, on its own, is the working definition of reckless conduct endangering life. 

26Your counsel submitted that the dispute or argument that prompted you to drive in this manner arose from a disagreement you had with Ms Akses over the winnings at the pokies on a previous occasion. 

27The whole offending episode defies rational explanation.  It is fortunate for you, and others, that the consequences were not more serious. 

28You have spent 291 days in pre-sentence detention, not including this day. 

Victim Impact Statements

29In this hearing, both Catherine Yokana and Melody Akses prepared Victim Impact Statements.  Exhibit “C” was the Victim Impact Statement of Catherine Yokana dated 31 October 2018, and Exhibit “D” was the Victim Impact Statement of Ms Akses  dated 7 March 2019. 

Ms Yokana’s Victim Impact Statement

30Ms Yokana's Victim Impact Statement was read in court by the prosecutor.  Ms Yokana set out the effect of the pain and damage to her right shoulder.  She has reduced use of her right arm and shoulder. 

31Ms Yokana relies on her family members to do most of her domestic tasks for her as a result of her injury.  She stated how she doesn't feel safe to leave the house.  She is expecting further surgery in September 2019 to repair the fracture to her right clavicle. 

Ms Akses’s Victim Impact Statement

32Ms Akses sets out the severe pain she suffered in her left hand.  Her sleep is interrupted due to the neck pain.

33Ms Akses is also now suffering anxiety as a result of her experience at your driving and the accident as a result.  She states she has been unable to work due to her decreased ability to remember things.  She states that her short term memory problems affect her capacity to return to her singing career.  Ms Akses says she is easily fatigued. 

34No medical reports were tendered on behalf of Ms Yokana or Ms Akses. 

Personal circumstances 

35You are now 44 years old.  You are the youngest child of your family.  You are single and have lived in the family home until your incarceration for these offences.  Your older brother is married and works as a storeman. 

36Your second brother has learning difficulties and works in a factory.  He lives with you and your family in the family home.  Your father was injured in an industrial accident.  He committed suicide in 2017.  Your mother cares for you and your brother in the family home. 

37You completed your education to Year 10 level.  You initially worked as a casual labourer.  You began using cannabis at that time.  You have findings of guilt for the offences of possession and use of cannabis in 1994 and 1997.  You had stable employment as a storeman for some 18 years.  You have been in the same job as a storeman since 2011. 

38From the age of 35, your alcohol intake increased as your cannabis use reduced.  Your drinking increased after your father's death in 2017. 

39You have been assessed by Michael Bilyk, psychologist, for the purpose of the plea hearing.  Mr Bilyk's report dated 20 March 2019 was Exhibit “4”. He notes you suffer from a level of anxiety and depression.  He assesses you to be a socially-isolated individual.  Mr Bilyk does not set out a psychological diagnosis.

40His opinion is that you expressed genuine remorse for your offending.  You have motor traffic prior convictions but they are not directly relevant to the offences before the court. 

41I accept that you have suffered a direct financial loss in respect of your motor vehicle which was only weeks old.  No doubt it was your pride and joy. You are ineligible to collect insurance for your loss as a result of your blood alcohol reading.  That is a separate punishment that I take into account, together with all the other sentencing factors I will refer to later in these reasons.   

42You have a history of driving offences which resulted in court hearings in 1994 and 1995.  Those offences were careless driving, failing to display a P plate and other minor traffic offences. 

43Your VicRoads demerit points extract which was handed up, shows you have been detected for speeding offences on three occasions in the past ten years prior to these offences.  None of this offending resulted in court hearings.

44Whilst you do not have an exemplary driving record, there was nothing in your prior driving history that would indicate a propensity to commit the current offences. 

Sentencing Considerations

45The basic purpose for which this court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  

46I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

47I am also required to take into account current sentencing practices in fixing your sentence.  That is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for the sentences at the time. In your case, that was a difficult exercise.  There is not much history around this type of offending. In any event, with respect to current sentencing practices, many cases are different from one another, as indeed your case is from any of the cases that I was referred to.  Ultimately current sentencing practices are only one of the factors I have to take into account.

48I am mindful of the provisions of the Sentencing Act, in particular s.5(4)(C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

49Your counsel submitted that a combination of imprisonment and a community corrections order was the appropriate sentence in this case.  I do not accept that a community corrections order is an appropriate sentencing option in this case, due to the seriousness of the charges and the level of seriousness your offending is in respect of each charge.

50You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community. 

51Your plea also is a clear acknowledgement by you, that you acknowledge responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.   

52Your plea of guilty also obviates the need for Ms Yokana and Ms Akses from giving evidence in a trial.  This necessarily spares them the trauma of reliving what could only be described as a very frightening experience for both of them.

53I accept you are remorseful for your offending.  You have indicated an early plea of guilty, you have expressed your empathy and shown some remorse in your discussion with Mr Bilyk. 

54The seriousness of the charge of conduct endangering life is indicated by the following factors:

(a) You had a blood alcohol reading of .238 per cent whilst driving;

(b) You drove your car at speeds of up to 162 kilometres per hour in an 80 zone;

(c) Not only was your driving extremely fast, you were driving on the wrong side of the road on a major arterial road.  This particular road is separated with a median strip in the middle;

(d) Your driving caused no less than eight oncoming vehicles to take evasive action to avoid a collision with your vehicle;

(e) You continued driving on the wrong side of the road for a distance of 2.3 kilometres;

(f) You continued driving when your passenger was screaming at you about the danger; and

(g) The driving was at night when visibility for all drivers, including yourself, was impaired. 

55It is only due to good luck and good fortune that some more serious consequences did not occur as a result of your driving on this night. 

56The seriousness of your offending in respect of the recklessly cause injury charges, that is, Charges 2 and 3, are informed by all of the above factors and the fact of injury set out to each of your victims in these reasons.  The injuries to Ms Yokana are properly conceded to be at the higher level of “injury” by your counsel. 

57In a case such as this, there is a considerable overlap in the criminality relating to the conduct endangering life charge and the two charges of recklessly cause injury, which resulted from the collision at the end of this driving escapade by you.  The court needs to be careful when assessing the appropriate amount of cumulation in respect to the individual sentences, so as not to transgress the principles of totality in sentencing. 

58I regard your prospects of rehabilitation as good.  You have a long and consistent work history. You have strong family support.  I note that you asked your mother not to come to your plea hearing. 

59You have engaged positively in courses whilst on remand in Ravenhall and they were set out in Exhibits “2” and “3” on the plea.  All of these matters indicate a positive rehabilitative path for you. 

60The principles of general and specific deterrence are important factors in this sentencing process.  The denunciation of your conduct and the protection of the community dictates that the only just sentence is a sentence of imprisonment with a non-parole period. 

61Would you stand please?

62On Charge 1, you are convicted and sentenced to 30 months imprisonment, that is the base sentence. 

63On Charge 2, you are convicted and sentenced to 12 months imprisonment;

64On Charge 3, you are convicted and sentenced to 12 months imprisonment.

65I order that six months of the sentence in Charge 2 and six months of the sentence in Charge 3 are to be served cumulatively on each other, and on the sentencing in Charge 1. That is a total effective sentence of 42 months. 

66I fix a non-parole period of 30 months imprisonment.  I declare that you have served 291 days pre-sentence detention. 

67On the summary charge which is Charge 11, the exceed .05 charge, you are convicted and fined $1000.  In respect of that charge, your licence is cancelled and you are disqualified from obtaining a licence to drive a vehicle in Victoria for a period of two years from this date, that is, 10 July 2019. 

68Pursuant to s.6AAA of the Sentencing Act, but for you plea of guilty, I would have sentenced you to a term of imprisonment, a total effective sentence of five years imprisonment with three and a half years non-parole period.  I order that you supply a 464ZF sample, and I will just explain to you what that is.

69That order means that the authorities can take from you, a swab from inside your mouth in order to obtain your DNA.  Do you understand that?

70OFFENDER:  Yes, I do.

71HIS HONOUR:  Thank you. 

72HIS HONOUR: So to clarify the cumulation on the sentence.  Charge 1, 30 months or two and a half years; Charge 2, 12 months; Charge 3, 12 months, the cumulation from Charge 2, is six months, from Charge 3, is six months.  On each then, that's a total of 42 months' total effective sentence.  Do your numbers add up to both of you?

73MR ALEXANDER:  Yes, Your Honour.

74HIS HONOUR:  Thank you.  Is there anything further required?

75MS HERSCHE:  No Your Honour.

76MR ALEXANDER:  No, Your Honour.

77HIS HONOUR:  Thanks everyone.  Remove the prisoner.  Thanks. 

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