Director of Public Prosecutions v Husseini
[2023] VCC 1496
•22 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FATIMA HUSSEINI |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2023 | |
DATE OF SENTENCE: | 22 August 2023 | |
CASE MAY BE CITED AS: | DPP v Husseini | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1496 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death – Category 2 offence – Presumption of mandatory order for imprisonment – Substantial and compelling circumstances exception enlivened – Sole-carer of daughter – Community Correction Order
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Lee v The Queen [2021] VSCA 156; Worboyes v The Queen [2021] VSCA 169; DPP v Dalgleish [2021] HCA 41; Buckley v The Queen [2022] VSCA 138; Markovic v R [2010] VSCA 105
Sentence:3 year Community Correction Order – s 6AAA declaration – 9 months’ imprisonment with a 6 month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Ms P. Marcou | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Fatima Husseini, in this case the court heard your counsel's sentencing indication application and on 9 August 2023 I indicated that if you pleaded guilty to one charge of dangerous driving causing death (DDCD), the court would be likely to impose a sentence of no more than a three-year Community Correction Order. After a brief adjournment your counsel informed the court that you accepted the indication.
2 You were arraigned on the one charge on the indictment and the case was adjourned so that you could be assessed for suitability for a Community Correction Order. On 14 August 2023 the court received a report from Corrections Victoria in which you were assessed as suitable for a community based sentence. You were described in the report as a low risk of re-offending and undoubtedly very remorseful, a matter to which I will return later in these reasons.
3 Taking into account the submissions of the parties at the sentence indication hearing, as well as the further submissions I have heard today, the following are my detailed sentencing reasons and the orders I make.
4 By way of background, you have pleaded guilty to one charge of DDCD contrary to s 319 of the Crimes Act 1958 (Vic), an offence which carries a maximum penalty of 10 years' imprisonment. The basis upon which you are to be sentenced is agreed between the parties to be a document entitled Summary of Prosecution Opening for Plea dated 8 June 2023.[1] The following summary of the circumstances of your offending is drawn from that document.
[1] Exhibit P1.
5 At the time of the offending, you were 37 years of age and residing in Dandenong. You are currently 39 years old. At the time of the collision on
23 February 2022 you were driving a blue Toyota Altis sedan and held a full and current Victorian driver's licence, with a condition that you must wear corrective lenses while driving. At the time of the collision, you were employed as an Uber driver and also worked in aged care.
6 The victim in this matter is Ashraf Hamdan. He was aged 38 years at the time of the collision and lived in Mentone. At the time of the collision Mr Hamdan was riding a red Vespa and was the holder of a Victorian learner rider permit which he had obtained on 18 July 2021. As the holder of such a permit, he was required to display L-plates and wear a high visibility garment as part of his clothing.
The Offending
7 On 23 February 2022 at approximately 6:50 am, a collision between a motor vehicle and a Vespa occurred on Charman Road at the intersection of
Sydney Street, Cheltenham. The Toyota was driven by you and the Vespa motorcycle was driven by Ashraf Hamdan. The collision occurred when the Toyota, driven by you, travelling in a southerly direction along Charman Road, commenced to execute a right‑hand turn into Sydney Street and in doing so crossed into the path of the Vespa driven by Mr Hamdan.
8 Mr Hamdan had been travelling in a northerly direction on Charman Road when the collision occurred. It is the prosecution case that the Toyota driven by you failed to give way to the Vespa driven by Mr Hamdan. This manner of driving by you is dangerous to the public having regard to all of the circumstances of the case.
9 On this morning you were working as an Uber driver and were enroute to collect an unknown passenger in the Cheltenham area. You were being navigated to the pick-up location via the Uber application on your mobile telephone. The application was providing audio commands along with mapped directions from your mobile phone, which was secured to the right side of the driver’s steering wheel, within a phone cradle.
10 You were travelling in a southerly direction on Charman Road when you slowed and indicated to perform a right turn into Sydney Street. You commenced turning into Sydney Street, at which time Mr Hamdan was riding in the left-hand side of the north-bound lane.
11 The front of the Vespa driven by Mr Hamdan collided with the front passenger corner of the Toyota, causing the Vespa to fall to the road surface. Mr Hamdan’s torso and head heavily impacted the bonnet your vehicle.
12 Mr Hamdam came to rest near the dividing line between the north-bound traffic lane and the secondary lane. The red Vespa came to rest within the north-bound lane, closest to the centre dividing line.
13 Your vehicle continued forward for several metres before coming to a controlled stop facing a south-west direction, partially in the north-bound bicycle lane and north-bound traffic lane. The impact took place wholly within the north-bound lanes of Charman Road.
14 Following the collision, you immediately stopped the Toyota prior to exiting the vehicle, rendering assistance and stopping other motorists to assist you.
15 A nearby resident who had heard the collision from inside her residence attended the scene and called the emergency services. A passer-by performed CPR on Mr Hamdan for approximately six minutes until Ambulance Victoria arrived. Victoria Police members also attended the scene.
16 At the commencement of CPR on Mr Hamdan by both the passer-by and paramedics, there were no signs of life. After continued attempts, a pulse was achieved; Mr Hamdan was then transported to the Alfred Hospital by road in a life-threatening condition.
17 Upon emergency service and police arrival, you furnished a sample of your breath for the purposes of a Preliminary Breath Test. There was no alcohol detected on your breath.
18 You were visibly upset and appeared emotionally distraught by the collision. While you were being comforted, you stated of the male on the Vespa: “He’s speed so high”.
19 Members of the Victoria Police Major Collision Investigation Unit attended the collision scene shortly after the accident, and took photographs and video footage. A Victoria Police collision reconstruction expert estimated that your vehicle was travelling at 43 kilometres per hour in the 60‑kilometre speed limit zone prior to impact, and between 16 to 18 kilometres per hour when it impacted with the Vespa. It was also determined that the Vespa was travelling between 54 and 67 kilometres per hour at the time of impact. The Victoria Police collision reconstruction expert could not provide an opinion as to why you did not observe the Vespa driven by Mr Hamdan.
Objective Gravity
20 As the Court of Appeal has explained in relation to offences of dangerous driving, the degree of dangerousness depends upon the extent of the risk which the driving creates and the extent of potential harm which would be caused should that risk materialise.[2] An assessment of the offender's moral culpability will always be important to the sentencing task.
[2]Lee v The Queen [2021] VSCA 156, [18] (‘Lee’).
21 In Lee, the Court held that:
The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road. Compliance with that obligation is essential to community safety.[3]
[3]Lee, [20].
22 I have watched the footage of the accident at the invitation of the prosecutor. It is apparent from that footage that you had about five seconds to see the oncoming vehicle ridden by Mr Hamdan. Although he was not wearing a high visibility vest, he was clearly visible as his headlight was illuminated. You misjudged his distance from you and executed a right‑hand turn without stopping in very dangerous circumstances. You were not in control of your vehicle at the relevant time and this has had tragic consequences for a fellow road user. I do not accept your counsel's characterisation of this as a case of momentary inattention. Although your moral culpability for this offending is not significant; nor is it low.
Victim Impact
23 As is so often the case in such matters, the death of Mr Hamdan has caused great suffering. That suffering is abundantly clear from the victim impact statements that have been provided to the court. The court received in evidence, and heard read out, a victim impact statement prepared by Ms Jasmine Littlewood.[4]
[4] Victim Impact Statement of Jasmine Littlewood dated 16 August 2023 (Exhibit P2).
24 Ms Littlewood eloquently expresses the tragic loss she has suffered as a result of the death of her partner of 11 years, Mr Hamdan. She explains that she and Mr Hamdan were planning to start a family and that he was to support her financially in making a planned career change. Ms Littlewood explains:
As a result of Ashraf's death, I'm devastated at not only losing my best friend and soul mate, but am left grieving all the plans we've made together that will no longer become reality. I now have to face a future without Ashraf, something I have never imagined, and will miss out on growing old and starting a family with my best friend
25 In her victim impact statement Mr Hamdan's sister, Yasmine, explains that:
Ashraf was the light in the dark of our once close knit family. He was unbelievably kind, thoughtful, funny, a great friend, sibling, son, partner, uncle, nephew, grandson, colleague and confidante[5]
[5] Victim Impact Statement of Yasmin Hamdan dated 18 August 2023 (Exhibit P3).
26 Ms Hamdan explains that Mr Hamdan's death has left behind a world of trauma, grief, depression and conflict.
27 In fixing an appropriate sentence in this case I have taken into account the impact of your offending on Ms Littlewood, Ms Hamdan and Mr Hamdan's broader family.
28 It goes without saying that nothing this court will do in this case can undo their pain. The sentence I will impose should not be seen as in any sense the value of Mr Hamdan’s life. His life was of course priceless.
29 As I will try to explain, sentencing is a complex task which occurs in accordance with a number of legal rules set down by parliament and superior courts. It requires a sentencing judge such as me to take into account a wide range of factors one of which is the impact of your crime on Ms Littlewood and on Ms Hamdan.
Personal Circumstances
30 As noted, you are a 39 year old Afghan citizen with Hazara ethnicity and
Shia Muslim religion. When the Taliban first came to power in Afghanistan in 1996 you were 13 years of age. You witnessed your grandfather and father being rounded up for execution. Your grandfather was decapitated.
31 You were married in 2007 and in 2009 gave birth in Iran to a daughter, Yeganeh Mohseni, who is now 13 years of age. You returned to Afghanistan but had to flee to Dubai with your daughter and uncle as the circumstances in your homeland had become so oppressive. You and Yeganeh travelled overland with the help of so-called “people smugglers” and eventually made the perilous journey by boat to Australia from Indonesia. You arrived here in April 2013 and were processed on Christmas Island. Your husband had been deported back to Afghanistan and you have not seen him since 2013.
32 You were released from immigration detention in September 2014 and in 2016 you were granted a safe haven enterprise visa. You and your daughter remain in Australia pursuant to this visa with uncertain futures.
33 As the various references provided to the court on your behalf attest, you have contributed to the local community through your involvement in a number of Afghani community organisations. I accept that you are a valued member of the community. You clearly have excellent prospects of rehabilitation.
Matters in Mitigation
34 Your counsel relies on your plea of guilty which is early and therefore has a high utilitarian value. Because your plea is made while the pandemic continues to have an effect on this court's backlog, it is a plea that entitles you to an additional substantial discount on sentence.[6]
[6]Worboyes v The Queen [2021] VSCA 169.
35 I accept that you are genuinely remorseful. This is evident from the Corrections Victoria assessment, as well as what I have seen in court. It is clear that the collision and the death of Mr Hamdan have had an enormous effect on you and I accept that you are genuinely sorry. You have no prior convictions and are generally of good character. I will deal with other mitigating matters when I address whether I am required to impose a term of imprisonment upon you later in these reasons.
Current Sentencing Practices
36 The court was referred by your counsel to a number of cases which I have read and taken into account.[7] Because no two cases are identical each case must be approached having regard to its unique circumstances.[8] The principal question in your case is whether exceptional circumstances are present such that the court is not required to sentence you to a term of imprisonment.
[7]Sentencing Act 1991 (Vic), s 5(2)(b) (‘Sentencing Act’).
[8]DPP v Dalgleish [2017] HCA 41.
Exceptional Circumstances?
37 DDCD is a category 2 offence under the Sentencing Act 1991(Vic.).[23] As a result, a court is required to sentence a person who pleads guilty to a charge of DDCD to a sentence of imprisonment unless one of the exceptions in s 5(2H) of that Act is applicable. The exception relied upon by your counsel in this case is the one in s 5(2H)(e).
38 Section 5(2H)(e) provides that a court is not required to impose a sentence of imprisonment if there are ‘substantial and compelling circumstances that are exceptional and rare’ that justify not imprisoning the person.
39 In determining if there are substantial and compelling circumstances that are exceptional and rare, the Act relevantly states that a court must:
a) regard general deterrence and denunciation of the offender’s conduct as having greater importance than other sentencing purposes such as rehabilitation of the offender;
b) give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
c) not have regard to—
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation.
40 The Sentencing Act 1991 also provides that in determining if there are substantial and compelling circumstances that are exceptional and rare, the court must have regard to:
a) the Parliament’s intention that a custodial order should ordinarily be made; and
b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
41 The net effect of these various provisions is that the court's otherwise broad discretion to impose a sentence that is appropriate in the circumstances of the case is circumscribed quite significantly in your case. The Court of Appeal has recently observed that these provisions mean that the court is effectively compelled by law to impose a custodial sentence and to fix a minimum term of imprisonment.[9]
[9]Buckley v The Queen [2022] VSCA 138, [1].
42 Ms Marcou, on your behalf, submitted that the test of substantial and compelling circumstances that are exceptional and rare is satisfied in the circumstances of this case. She relied on the following circumstances in combination:
(a) your background as a refugee who fled the Taliban and the circumstances in which you arrived in Australia;
(b) that your moral culpability is low;
(c) your lack of prior convictions;
(d) the utility of your plea of guilty;
(e) hardship and the knowledge of deportation; and
(f) family hardship.
43 For the reasons I have explained earlier, I do not accept that your moral culpability for this offending is low. While I accept that you have no prior convictions, this is not a matter that I consider to be exceptional and rare. It is relatively common in cases of dangerous driving. I consider that the most significant of the matters on which your counsel relies is the final one, family hardship.
44 You gave evidence at the sentence indication hearing, which
I accept, that you are your 13 year old daughter's sole carer. You are obviously very close as you sleep in the same bed. Not surprisingly, given her traumatic childhood, she has received treatment and I accept that stability of care arrangements is of the utmost importance to her given her tender age and background.
45 In response to questions asked of you by the prosecutor you explained that you have explored alternative arrangements for your daughter's care if you were to be imprisoned. I accept, based on your evidence, that there are no suitable alternatives as you have no other family in Australia. I also accept that the hardship that would be caused to your daughter if you were imprisoned would be very onerous. This satisfies the test of exceptional third party hardship.[10]
[10]Markovic v R [2010] VSCA 105
46 Further, when combined with the other considerations upon which your counsel relies, I am satisfied that the onerous and demanding test in s 5(2H)(e) of the Sentencing Act is satisfied. I note that after hearing your evidence, Ms Gurry, who appeared on behalf of the prosecution, informed the court that the prosecution accepted that the test is satisfied on the evidence in this case.[11]
[11] In written submissions dated 7 August 2023, filed before Ms Husseini gave evidence, the prosecution had submitted that a sentence of imprisonment was ‘the only appropriate sentence in this case’ – see at [3].
47 It follows that I am not required to impose a term of imprisonment upon you and I do not do so. The only real alternative sentence that meets the relevant sentencing purposes of general deterrence, just punishment and the promotion of your rehabilitation is a Community Correction Order. Such an order is a sentencing option which can be both punitive and rehabilitative at the same time. I consider it to be the appropriate sentence in this case.
I therefore make the following orders.
Orders
48 On the charge of dangerous driving causing death, you are convicted and sentenced to a Community Correction Order of three years’ duration.
49 I am required by law to explain to you the conditions of the order.
50 Firstly, the following general conditions apply to all Community Correction Orders in Victoria:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must comply with any obligations or requirements prescribed by the regulations;
(c) You must report to and receive visits from the Secretary or their delegate during the period of the order;
(d) You must report to the Community Corrections Centre specified in the order within two clear working days after today;
(e) You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change;
(f) You must not leave Victoria except with the permission of the Secretary or their delegate, either generally or in relation to a particular case; and
(g) You must comply with any direction given by the Secretary or their delegate
51 In addition to these general conditions, I impose the following special condition on the order: that you must perform 300 hours of unpaid community work. I note in this regard that you have a back injury which limits you physically. I note that Corrections Victoria has requested that you provide it with a medical report so that it can allocate you with appropriate and safe community work.
52 As discussed with your counsel, I have not included a compulsory mental health treatment condition based on the advice contained in the report dated 14 August 2023 from Forensicare.
53 By law I can only impose a Community Correction Order on you if you agree to such an order being imposed and I will tell you a little bit about the consequences of breaching such an order before asking you if you agree.
54 If you contravene the order by not fulfilling the conditions, or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed. You can also be resentenced for the offence that is before me now and, of course, one of the options available would be a term of imprisonment.
55 So you have to make sure that while you are on this order, you do not commit any further offences during the term of the order that might incur a term of imprisonment, otherwise you would almost certainly be back before the court and resentenced on the charge that is before me. You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice given by a Community Corrections officer a substantial fine can be imposed. Mrs Husseini, do you understand the conditions and the consequences of breaching the Community Correction Order?
56 OFFENDER: (Through Interpreter) Yes.
57 HIS HONOUR: Thank you. In those circumstances I make the order with the conditions I have set out and Mrs Husseini will be provided with a document to sign shortly.
58 Completing the orders that I make, pursuant to s 89(2) of the Sentencing Act, all your licences to drive motor vehicles are cancelled and you are disqualified from obtaining a licence for 18 months from today.
59 Finally, pursuant to s 6AAA of the Sentencing Act, I indicate that if you had pleaded not guilty and had been found guilty after a trial, I would have sentenced you to nine months' imprisonment with a non‑parole period of
six months.
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