Director of Public Prosecutions v Jani
[2019] VCC 1155
•25 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00164
Indictment No. J12928974
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAVAR JANI |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 13 June 2019 and 11 July 2019 | |
DATE OF SENTENCE: | 25 July 2019 | |
CASE MAY BE CITED AS: | DPP v Jani | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1155 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of dangerous driving causing serious injury – plea of guilty
Legislation Cited: Crimes Act 1958, s319(1A); Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v Neethling [2009] VSCA 116; Director of Public Prosecutions v Oates [2007] VSCA 59; Stephens v R [2016] VSCA 121; Director of Public Prosecutions v Woo [2016] VCC 244; Bell v R [2018] VSCA 281; Director of Public Prosecutions v Tran [2018] VCC 428; R v Noble & Verheyden (1994) 73 A Crim R 379; R v Teh [2003] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Allouch v R [2018] VSCA 244; Woldesilassie v R [2018] VSCA 285
Sentence: Convicted and sentenced to an 18 month Community Correction order together with an $5,000 fine; 6AAA declaration – 10 months imprisonment and a Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K Mildenhall | Victoria Legal Aid |
HIS HONOUR:
1 Yavar Jani, on 13 June 2019, you pleaded guilty to the offence, that you at Mount Waverley on 14 November 2017, drove a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case and caused serious injury to Brooke Grebert-Craig.
Dangerous driving causing serious injury is contrary to s319(1A) of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment. Furthermore, s.89(2)(a) of the Sentencing Act 1991 requires that any licence you may have must be cancelled and you must be disqualified from obtaining a further licence for a minimum period of eighteen months.
The circumstances of the offending
2 Counsel for the prosecution tendered a document dated 23 May 2019 and headed “Summary of Prosecution Opening” (exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
·You are thirty-five years of age. At the time of the offending, you were thirty-four years old and employed by CEC Excavations, preparing and selling concrete driveways and concrete form work.
·On Tuesday, 14 November 2017, you were working and had been sealing a concrete driveway at an address in Clayton. After finishing that job, you drove your vehicle, a Toyota Hilux, in a northerly direction on Forster Road near Glen Waverley.
·The speed on Forster Road is 50 kilometres an hour, and on that day, the roads were dry, the weather was fine and visibility was excellent.
·The complainant, Ms Brooke Grebert-Craig, was driving her vehicle, a Mazda 2 sedan, in a westerly direction on Ricketts Road, and came to the intersection of Ricketts Road and Forster Road with the intention of driving straight through the intersection to the continuation of Ricketts Road, which is then Hardner Road.
·The light was green and as she drove through the intersection you approached in the same direction from Forster Road, travelling north, and failed to observe the traffic light was red and entered the intersection against a red light.
·Your vehicle collided with the left side of Ms Grebert-Craig’s vehicle, causing her car to spin around as a result of the impact and your vehicle flipped over onto its right side. The car driven by Ms Grebert-Craig sustained significant damage.
·You were exited from your vehicle through the passenger window and transported to the Monash Hospital, where you complained of thoracic back pain and rib pain, causing you to be advised to wear a hard collar for two weeks after the collision.
·Ms Grebert-Craig was removed from her vehicle and transported to the Alfred Hospital, where she was diagnosed as having sustained a broken pelvis as a result of the collision. She remained in a hospital for four days and was released with conservative treatment. She was reviewed by a surgeon two weeks later after experiencing a high level of pain and ultimately required to undergo complex pelvic surgery at the Epworth Hospital on 29 November 2017 involving a fractured left iliac wing, and two screws were inserted in her left ilium.
·She was released three days after such surgery but had to continue to use crutches to assist her to walk until 27 April 2018 and also had to undertake rehabilitation through physiotherapy.
·At the scene, you told police that you were travelling north on Forster Road and that you had not noticed the lights and, in particular, whether they were red or green. On 20 January 2018, you were arrested and interviewed by police. During the course of that interview, you stated the following:
– “I did not see whether the light was green or, you know, red, and that's when the incident happened at that certain place.” (see Question 24 and the Answer thereto);
– “So as I was approaching the traffic light I believed it was a green light, and then as I was passing all of a sudden I just realised, you know, I bumped into another car and the car obviously turned upside down … .” (see Question 25 and the Answer thereto);
– “… because of the number of hours I was working during the day as a - you know, a painter and especially outdoor paint with smell, like, impact it had, I obviously happened to - not to be fully myself.” (see Question 29 and the Answer thereto);
– “… the exposure I had to the paint impacted my ability.” (see Question 36 and the Answer thereto);
– “I was driving, experiencing the dizziness and - and the nausea feeling … And then all of a sudden my brain … just I realised something happening, then after that I just didn't notice nothing.” (see Question 91 and the Answer thereto);
– “So all of a sudden my vision just went blank and all I heard, a bang noise.” (see Question 92 and the Answer thereto).
3 Counsel for the prosecution noted that you indicated an intention to plead guilty to the charge on the Indictment at a committal mention on 25 January 2019 and accepted that such an indication was an early plea.
4 Furthermore, counsel for the prosecution made application for the taking of a forensic sample which was not opposed.
Victim Impact Statement
5 Ms Grebert-Craig prepared a Victim Impact Statement which was declared on 31 May 2019. In that statement, she directed that she required her statement to be read aloud in court by the prosecutor. Such Victim Impact Statement was tendered (see exhibit 2).
6 In that statement, Ms Grebert-Craig sets out the physical, emotional, financial and social impact which has occurred because of your dangerous driving. In her statement, Ms Grebert-Craig describes that prior to your offending in 2017, she was a healthy twenty-one year old, regularly exercising at a gym three days a week, and had just completed a three-year Bachelor’s degree in journalism. At that time, she was looking forward to her university graduation, followed by a trip to Hawaii with her mother and sister.
7 In particular, once the accident happened, Ms Grebert-Craig could not walk without the support of a walking frame or crutch until five months after the collision. She was required to obtain a disability parking permit. In February 2018, she commenced rehabilitation to increase her hip mobility and strength because she could not walk without the aid of instructors. She transitioned into clinical Pilates classes on 27 April 2018, where she received ongoing rehabilitation once a week, and she stopped using crutches altogether in about April 2018.
8 In October 2018, Ms Grebert-Craig visited her general practitioner, complaining of experiencing pain and discomfort on her left side when sleeping, causing her to wake up during the night, and experienced pain in her pelvis. Ultimately, a medical assessment by a physiotherapist concluded that her left pelvis was still incredibly weak and unbalanced compared to her right pelvis which, in turn, limited her physical activity to the extent that she could not even squat properly. Also, as a consequence, she was having knee problems. In order to overcome these problems, she consulted an exercise physiologist in February 2019 to straighten up her pelvis and she is also currently undertaking regular clinical Pilates and sessions with her exercise physiologist.
9 Ms Grebert-Craig has scarring, which she has had to “deal with” and in the beginning it caused her a lot of issues as the wound would get infected, causing her to have to clean the wound every night with a special solution and gel. Such a course was frustrating, as swimming would have been a great method of rehabilitation for her injury.
10 Because of her injuries, Ms Grebert-Craig was unable to graduate in December 2018 with her friends, which she found “heartbreaking” and she also had to cancel her travel plans with her family, which she found “devastating”.
11 Ms Grebert-Craig considers the hardest part following the collision was dealing with the emotional trauma that occurred over the next fifteen months, and even writing her Victim Impact Statement she notes tears still fill her eyes thinking about her mental state last year.
12 Because of her injuries and resultant surgery, Ms Grebert-Craig’s search for full-time jobs was put on hold and, again, she found it “absolutely heartbreaking” to miss opportunities because she had to take time out and recover from the accident and surgery. She obtained a casual position with a media company in February 2018 but found that driving to work made her feel anxious, causing her to be constantly looking behind and next to her to ensure that no-one was going to hit her car. During this time, she had a further car accident when she drove into the back of someone because she was looking around too much to see where other cars were.
13 Ms Grebert-Craig notes, and I quote:
“I often think about whether the driver is truly sorry for what he did. I've grappled with my feelings towards him. One part of me resents him. Why wasn't he paying enough attention when he was driving? Did he realise he could of killed me? Does he think about me, the person who he hit and wonder how I'm doing? Has he changed his ways and learnt his lesson or has he carried on with his life with no care in the world? He has caused so much pain to me and my family, I just wish he knew of everything that I've been through over the past 15 months and everything that I will continue to face throughout my life that relates to this accident. For someone who has never had anxiety, I now know what that feels like. To be so scared of pain and fearing that a loved one of mine will die in a car accident is something I experience regularly. However, there's another side of me that forgives him. There's an understanding side where I feel like, in my heart, that he is sorry. That he thinks about me and has changed his ways. That he is more vigilant and preaches to his family to be safer on the roads … .”
14 Ms Grebert-Craig also notes that the vehicle she was driving was only two or three years old, and at her age she was in no position to buy a new car and became quite distressed when she was informed that her car was a “write off”. Although she had some insurance, it was not enough for her to buy a similar sort of car. She also notes that the collision has caused her to lose a few friends because they did not know what to say or what to do with her after the accident. She notes:
“This to me, felt like they didn't care. Which is hard because I wanted people to care. After all, people didn't understand the severity of the accident because it didn't happen to them. They didn't see me getting dragged out from my car when the other driver hit me or me crying in pain in the hospital bed a few hours later. They didn't see me struggling to walk in my hospital room or me panicking every night when the nurse had to inject a needle into my stomach. No one experienced exactly what I experienced … .”
Other material
15 Counsel for the prosecution tendered a bundle of photographs (exhibit 3) depicting the subject intersection, the position of the vehicles and the state of damage to the vehicles. I have perused all such photographs.
16 Counsel for the prosecution confirmed that you have no criminal record. Furthermore, there was no suggestion from the prosecution that you had a record of any prior driving offences.
Your personal circumstances
17 Your counsel tendered the following documents:
(a)a document headed “Defence Outline of Submissions on Plea”, dated 6 June 2019 (exhibit “A”);
(b)a psychological report from the clinical psychologist, Mr Guy Coffey, dated 10 April 2019, in respect to interviews between you and Mr Coffey on 2 and 4 April 2019 (exhibit “B”);
(c)a medical report of your treating general practitioner, Dr Iman Tahmasebi, dated 5 June 2019 (exhibit “C”);
(d)a bundle of documents in relation to sentencing in relation to the offence of dangerous driving causing serious injury (exhibit “D”);
(e)a document setting out various sentences for the offences of dangerous driving causing death and dangerous driving causing serious injury (exhibit “E”).
18 Partly based on these documents and partly based on various submissions made by your counsel, I note the following:
·You are the fifth child of eight children who were raised in a small rural village outside the town of Ilan, Western Iran. You were raised in the Shia Muslim Faith of Faili Kurd ethnicity.
·Your family owned a house in the village but were nomadic sheep farmers for much of the year.
·You attended the local school until Year 5, where lessons were in Persian, and you acquired basic numeracy and literacy skills. Violence at the school was frequent and prompted you to leave school at the age of twelve.
·You then became a shepherd, moving the sheep according to the seasons, spending much time away from the family home and sleeping in a tent.
·At the age of nineteen, you completed two years of national service and was a Private situated on the Turkish border but saw no military action. After national service you returned to become a shepherd for several years before moving to Tehran at the age of twenty-six to work in a metal bazaar.
·At the age of twenty-seven, you returned to llan and married a neighbour, based on love, but her family was opposed to the marriage.
·You then worked in a bitumen mine for a period of time.
·In 2009, you were involved in a motor collision in Tehran, where a person was killed. In your history to the psychologist, Mr Coffey, you assert that you were not at fault as the person killed was riding a motorbike which ran into the back of your vehicle. The family of the person killed made ongoing death threats against you, and as a result of the ongoing death threats you and your family, which now consisted of your wife and your first child born in 2012 decided to emigrate to Australia. In June 2013, your family travelled to Indonesia and then took a boat to Australia, after which you spent twenty-seven days in detention before being released on bridging visas to reside in Geelong.
·You obtained work in 2014 as a concrete labourer, and have worked up to fifteen hours a day, six to seven days a week, determined to set up the family financially. Your second son was born on 14 July 2017.
·Prior to the collision, you had never been diagnosed with any physical or psychological issues, had never used illicit substances and only rarely drank alcohol.
·Your English is very limited, and at the time of the subject offending you were the sole income earner for the family.
·You, your wife and first child are currently still on bridging visas and application for permanent visas have been rejected twice. I was informed by your counsel that there is a Federal Circuit court hearing to be heard in 2020, and this will be the final hearing of the matter subject to appeal. The basis of the protection visa is that you fear revenge killings and has no connection with any political matter. Your second child is considered an Iranian national, but maybe a dual citizen, and also potentially could be deported.
The circumstances of the offending
19 You have instructed your counsel that the day prior to the subject offending you worked approximately fifteen hours and slept approximately five hours, which was not unusual in your working life. On the day of the collision, you had left home at approximately 5.45am and had spent about five hours in the afternoon painting two driveways with concrete sealer. You did feel nauseous and dizzy when you finished, but after taking a break and washing your face with water, you felt fine to drive and got into your car.
20 For reasons that you cannot explain, you did not see the traffic signal and entered the intersection, and looking back, you struggle to understand how this happened and so made the comments about the fumes from the paint when initially interviewed by police.
Medical evidence
21 The report from Dr Iman Tahmasebi dated 5 June 2019 describes how you commenced to consult with that doctor on 17 December 2017 after being treated by another doctor in relation to your neck injury suffered in the subject collision.
22 Dr Tahmasebi reports:
“He was complaining of neck pain with: radiculopathy to his arm and hand. An MRI was arranged for him which revealed C5/6 disc protrusion on cervical spine. Accordingly NSAID was started and he was referred to physiotherapist for further management. He also developed Depression and Anxiety symptoms because of the chronic neck pain. Mr Jani was referred for pain management to Dr Kianmehr and he arranged nerve block injection which was performed for the patient but unfortunately did not help to reduce his pain and discomfort.
His current symptoms is neck pain and stiffness with radiculopathy to left shoulder and upper arm. In terms of his psychological symptoms, he is suffering from low mood, sleep problem, stress, low motivation, lack of concentration and memory impairments. His current medications are symbalta 60 mg and panadol osteo tds.
He has no capacity to work at the moment.
In terms of likelihood of future surgery needs to be assessed by a Neurosergeon (sic).
In terms of long term affect, it is hard to be predicted. I think the prognosis of returning to his preinjury work is poor.
He requires assessment by neurosurgeon and pain management specialist and also psychiatrist for further management of his physical and psychological symptoms.”
23 Your solicitors arranged for you to be interviewed by the clinical psychologist, Mr Guy Coffey, on 2 and 4 April 2019. Mr Coffey obtained a general history from you and, in particular, made a mental-status examination at both interviews.
24 In his report, Mr Coffey concluded that you were not suffering from a mental disorder or any kind of significant psychological difficulties at the time of the offending. Furthermore, when assessed by Mr Coffey, he considered that you were not mentally unwell, and although your mood was dysphoric, you were not suffering from any clinical depression.
25 Under a heading “Response to the offending”, Mr Coffey does state:
“He said the offending was contrary to everything he valued. He said he felt sorry for the victim and confused about how and why this had happened. Regarding the victim he said ‘I know it is very hard for her to get better… I haven’t hurt anyone in my life…I would never hurt a 20 year old girl’. Regarding himself he said ‘my kids need me to bring money home’.” (See exhibit “B” at page 9)
26 Also, Mr Coffey proffered the opinion that:
“With regard to the risk of recidivism, Mr Jani has no criminogenic characteristics which predispose him to general criminal offending. He does not possess anti-social personality traits, he is not reckless or impulsive, he does not abuse substances and he does not suffer from a mental disorder. With regard to the likelihood of further driving offences, this is difficult to comment on because the cause of the index offending is unexplained … .” (See exhibit “B” at page 11)
27 Given the contents of Mr Coffey’s report, your counsel expressly disclaimed any reliance on the principles enunciated in the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
Mitigating circumstances relied on by your counsel
28 It was submitted by your counsel that the following matters are relevant in mitigation of any sentence:
(a)you pleaded guilty at the “earliest opportunity”, which has had the utilitarian effect of saving the Court the time and cost of a trial and, more particularly, the need for Ms Grebert-Craig to give evidence and relive the circumstances of the collision. Furthermore, it was submitted on your behalf that the plea of guilty demonstrated an acceptance of responsibility for your offending;
(b)that you have demonstrated genuine remorse and, in particular, the following matters were referred to:
·The early plea of guilty.
·The history given to Mr Coffey as to how you have responded to the subject offending that is to say, your empathy with the complainant, knowing how very hard it was for her to get better, all in circumstances where you have not ever hurt anyone in your life, let alone a twenty-one-year-old girl.
·Your counsel also informed the Court that she read the Victim Impact Statement of Ms Grebert-Craig to you and during discussions about that, she observed you to be “truly remorseful and sorry”.
·Your general cooperation with police and relevant authorities;
(c)your counsel referred to the decision of Director of Public Prosecutions v Neethling [2009] VSCA 116 and, in particular, at paragraphs [31]-[32], wherein is described a series of factors that may aggravate the seriousness of a particular offence of dangerous driving.
Your counsel submitted that, in all the circumstances of this matter, you have low moral culpability and, in particular, the following factors were referred to in support of such submission:
·There was no excessive speed or use of alcohol or illicit substances.
·There was no evidence of poor driving prior to the collision.
·The offending does not involve a fatality or multiple victims.
·Although the injuries are conceded as serious, they are not at the top of the range.
·Although you had been working for long hours and slept approximately five hours, that was not unusual for you.
·At the time of the collision, it was a fine day and the road was dry.
·In the Record of Interview on 20 January 2018, some two months after the collision, when police asked you how the collision occurred, you spoke about feeling dizzy from paint fumes after working with paint on the day. The evidence on the brief demonstrates that the paint fumes could not have caused dizziness. You accept that the paint fumes could not have caused the dizziness. You proffered the reason to police as a possible explanation for how the collision could have occurred.
·It is submitted that the objective dangerousness of the driving should be characterised as consistent with inattention, in that you did not pay sufficient attention to the colour of the traffic light and drove into the intersection;
(d)as you and your family have been on bridging visas since arriving in Australia and, accordingly, do not have the right to stay in Australia. Reference was made to Allouch v R [2018] VSCA 244 at paragraph [30], wherein the Court of Appeal recognised that the liability to deportation is relevant to assessing the hardship of custody and the additional punishment in losing the opportunity to remain in Australia;
(e)that as a result of your neck injury, you have been on WorkCover payments since the date of the offending and that, if incarcerated, your wife and two children would lose their only current source of support, knowledge of which makes any time in custody more difficult for you.
29 Your counsel also raised the principle of extra-curial punishment. That principle reflects that where an offender suffers an injury or loss in the course of, or as a direct consequence of his or her offending, this is a matter that sentencers will generally take into account, although the courts have cautioned that this factor may not apply in mitigation of every case, including loss or injury to the offender, that they have been reluctant to describe the circumstances of limitation. Reference is made to R v Noble and v Verheyden (1994) 73 A Crim R 379 (Queensland Court of Appeal), wherein the court stated at page 381:
“We would not accept … that any injury suffered in the course of committing an offence is necessarily a factor in sentencing.
But it is easy to postulate circumstances in which an injury so suffered would be relevant. If an offender has assaulted another without causing significant injury, and the other has defended himself so vigorously as to cause the offender serious injury, it would ordinarily be right to treat the injury the offender has suffered as at least part punishment - whether or not the retaliation was within lawful bounds. That is not this case, but we are of opinion that an injury suffered by a robber as a result of the victim's defence of the property may, in appropriate circumstances, go in mitigation of penalty.”
30 I also refer to the matter of R v Teh [2003] VSCA 169 wherein Vincent JA considered the different mechanisms by which injury to an offender may impact upon sentence. He stated, at paragraph [20]:
“There are a number of respects in which the fact that the perpetrator of an offence personally experiences distress, injury or loss as a consequence of its commission can assume relevance in the determination of an appropriate sentence. Generally it will take its place as one of the matters to be taken into account in the development of an appropriate synthesis. It may assume significance in the assessment of the just punishment required, the weight to be given to expressions of remorse or to general and specific deterrence in the circumstances of the particular matter. There have been, for example, many situations addressed by the courts in the course of their daily operations in which perpetrators have brought upon themselves serious suffering and loss, sometimes involving an order of effective punishment that no civilized society could ever require as just punishment. However, there would be few who would not experience deep remorse for the death of a child as a consequence of their irresponsible behaviour, whether their own or the child of someone else. The prospects of successful rehabilitation and the weight to be given to deterrence, both general and specific, would often need to be assessed against such a background. Clearly I have not attempted to exhaust the possible ways in which loss and suffering experienced by the offender himself may be taken into account, or the weight that should be attributed to it in any given situation, but rather point out that, according to the circumstances, the personal consequences to the offender may assume significance. This simply represents an application of the principle that the determination of an appropriate sentence requires a sentencing judge to give appropriate weight to each of the relevant considerations having regard to the particular circumstances of the offence and perpetrator involved.”
31 Your counsel submitted that such a principle is relevant in this proceeding, although it should not receive undue weight.
32 Your counsel again referred to paragraph [30] of Court of Appeal decision of Neethling (op cit), which set out the following principles relevant to sentencing for the offence of dangerous driving causing death:
(a)general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury;
(b)a person who kills or injures when driving dangerously is likely to receive a significant term of imprisonment;
(c)the sentence which is imposed must take account of variations in the moral culpability of the person responsible;
(d)a custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
33 Your counsel submitted that an analysis of dangerous-driving cases in the County Court revealed that imprisonment is a common, but not inevitable, outcome and that community correction orders have been imposed in appropriate cases. Reference was made to:
·Bell v R [2018] VSCA 281 (dangerous driving causing death) – total effective sentence two years’ community correction order.
·DPP v Tran [2018] VCC 428 (dangerous driving causing death) – total effective sentence eighteen months’ community correction order.
·DPP v Woo [2016] VCC 244 (dangerous driving causing serious injury) – total effective sentence eighteen months’ community correction order.
34 Your counsel noted that the Sentencing Advisory Council statistics for higher courts for the period from 1 July 2013 to 30 June 2018 record that 54.7 per cent of cases result in imprisonment for the charge of dangerous driving causing serious injury. In the circumstances of this matter, it was submitted that an appropriate disposition for your offending is a community correction order. In support of that submission, your counsel, in summary, relied on:
(a) your low moral culpability;
(b)your personal circumstances and the effect of a term of imprisonment on your family, and risk of deportation;
(c) your guilty plea, remorse and cooperation with police; and
(d) current sentencing practices.
The response of the Prosecution
35 Counsel for the Prosecution submitted the following:
(a) it was conceded that your offending fell into the “low level of offending”;
(b) rather than a description of “momentary inattention”, it was submitted more appropriate to describe your actions as “inattention”, in that you failed to observe a red light and entered the intersection against that light. Counsel for the Prosecution did accept that it cannot be determined how long the light had been red as there were no statements as to the time;
(c) it is open to the Court to accept the submissions made by your counsel in relation to extra-curial punishment, but little weight should be placed on such factor;
(d) it was accepted that you have good prospects of rehabilitation.
36 Ultimately, counsel for the Prosecution submitted that a “combination” sentence would be appropriate in all of the circumstances, noting that the injuries suffered by the complainant has had a “profound effect” on her life. Reference was made to the recent Court of Appeal decision of Woldesiliassie v R [2018] VSCA 285.
Community Correction Order Assessment Outcome Report
37 The Court directed that you be assessed for your suitability for a community correction order. In a report dated 13 June 2019, the corrections officer, Ms Sanja Vucic, deemed you suitable for a community correction order. Furthermore, I note that the following was also reported:
(a)you were assessed as being a low risk of re-offending according to the Level of Service Risk Assessment Tool;
(b)Ms Vucic noted that you demonstrated both remorse and insight into your offending behaviour, which was “evident through [your] body language and facial expressions when asked specific questions about the offending incident”. Furthermore, Ms Vucic noted that you “affirmed [your] accountability for [your] actions”;
(c)Based on the material from your general practitioner and the complexities of your medical injuries, you would not be able to be referred to an appropriate worksite and it was not recommended that there be a condition to perform voluntary work.
38 Furthermore, Ms Vucic noted because of the low risk of general re-offending, minimal order conditions are recommended by Community Corrections. Ms Vucic highlighted that evidence-based practice finds that minimising interventions is an effective way of maintaining a person’s low risk of recidivism. This would allow you to continue with your otherwise largely prosocial lifestyle. She also noted that, given the nature of the offending, Community Corrections were not able to facilitate an offence-specific program within this context, although a condition of “programs other” was recommended to be included to enable you to be referred to any programs that would address your offending behaviour.
39 On receipt of such report from Ms Vucic, the Court arranged for the parties to attend on 11 July 2019 to address the recommendations made by Ms Vucic. Furthermore, the Court directed that Ms Vucic attend on that day.
40 Ms Vucic gave sworn evidence and described the process of looking for work when an offender carries an injury. Although accepting that people who carry injuries can be found work, very much depends on the industrial background of the person and the nature of the injury. In the circumstances of this matter, she stated that the “community work” team at Community Corrections could not identify any particular work at this time.
41 Both your counsel and counsel for the prosecution submitted, appropriately in my view, that if the Court was minded to order a community correction order, but was unable to effectively order a punitive condition of voluntary work, it cannot follow that the default position would mean a combined sentence involving a period of imprisonment. Indeed, your counsel submitted that the entry of a conviction and an order for a community correction order is punishment itself. Furthermore, it was submitted that there could be an order made for community work to be done over the period of time and over time the position may well change to permit you to undergo such work conditions.
Conclusion
42 It is convenient to refer to the legal principles associated with the related offences of dangerous driving causing death and dangerous driving causing serious injury. I refer again to the case of Woldesiliassie (op cit), wherein at paragraphs [21]-[26], the Court of Appeal (consisting of Maxwell P and Kaye JJA) set out the relevant such principles: They state:
“Before turning to the two grounds of appeal, it is convenient, first, to outline, briefly, the principles that apply to the determination of the correct sentence in respect of the two charges to which the appellant pleaded guilty.
The constituent elements of the offences of dangerous driving causing death, and dangerous driving causing serious injury, have been considered in a number of cases. In Stephens v The Queen, the Court summarised the effect of those authorities in the following way: And I quote
“Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.”
And going back to the fundamental quote:
Plainly, as the Court noted in Stephens, the offence of dangerous driving may encompass a very wide range of conduct. In the determination of the appropriate sentence, it is necessary to take into account both the objective dangerousness of the offender’s driving, and the moral culpability of the offender. In particular, it is recognised that the moral culpability of the driver is of central importance to the sentencing task.
In Director of Public Prosecutions v Oates, Neave JA (with whom Warren CJ agreed) stated the following principles that are applicable to the present case:
1. General deterrence must be given considerable weight in an offender for dangerous driving causing death or serious injury.
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4. A custodial sentence will usually be appropriate for this offence except in cases where the offender’s level of moral culpability is low.
In R v Whyte, Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) compiled a list of the following nine factors that may aggravate a sentence in a particular case, namely:
i. extent and nature of the injuries inflicted.
ii. Number of people put at risk.
iii. Degree of speed.
iv. Degree of intoxication or of substance abuse.
v. Erratic [or aggressive] driving.
vi. Competitive driving or showing off.
vii. Length of the journey during which others were exposed to risk.
viii. Ignoring of warnings.
ix. Escaping police pursuit.
In Stephens, it was noted that that list of factors should not be applied in a rigid or formulaic manner. The Court stated:
However, the factors identified in Whyte (and subsequently adopted by this Court in Neethling as being relevant) do not constitute some mere checklist nor are they intended to be exhaustive. For example, matters such as the experience of the driver, his familiarity with the vehicle being driven, the terrain over which the vehicle is being driven and the degree of protection afforded to passengers are not matters listed.”
(Footnotes omitted.)
43 Anyone who drives through a stop light at an intersection drives in a dangerous manner, given the obvious risk of injury or death to others who lawfully enter into the intersection. Furthermore, one only has to read the eloquent Victim Impact Statement prepared by the complainant, Ms Grebert-Craig, wherein she sets out the physical, emotional, financial and social impacts which have occurred because of your dangerous driving on 14 November 2017.
44 However, after a consideration of all the circumstances, I have come to the view that your lapse into dangerous driving was a result of momentary inattention. In this respect, there has been no suggestion that your driving prior to the intersection was dangerous, that you were speeding at any time, and certainly not under the influence of alcohol or drugs. In this sense, nothing was dangerous about your driving until you entered the intersection. I consider that your level of moral culpability is low.
45 You cannot explain why the event occurred, other than momentary inattention. Although there was as suggestion by you in early days that paint fumes may have impacted on your driving at the time, I accept that this was proffered by you to try to give an explanation as to what occurred when you did not know how it occurred. I accept that you take the view that it was inattention on your part which gave rise to the dangerous driving and the collision.
46 Although counsel for the prosecution accept in general terms that there was a period of inattention, she submitted that it would be incorrect to characterise such inattention to be only “momentary”. In fairness, she did concede that there was no statement from any witness as to how long you could have possibly seen the red light in all the circumstances.
47 I do note that the depositions do contain statements from a Detective Sergeant Robert Hay, Catastrophe Forensic Services Department, Collision Reconstruction and Mechanical Investigation Unit, and also from Senior Constable Steve Donlon, setting out various measurements and, ultimately, conclusions. Such material was not in the prosecution opening and seemingly not relied on by the prosecution, perhaps, understandably, given that there were a number of assumptions which almost certainly would have been challenged.
48 I also accept that you pleaded guilty at the earliest possible time and have demonstrated both to your counsel, the psychologist and the Corrections officer, genuine and sincere remorse in relation to the victim and the difficulties she has confronted as a result of your dangerous driving. Furthermore, I accept, as Ms Vucic described, you have affirmed your accountability for your actions.
49 You came to this country with your wife and first child, aged two, in 2013, having initially travelled to Indonesia and then a boat to Australia. Since 2014, you have been in constant employment as a concrete labourer, working long hours six to seven days a week, determined to set up the family financially. A second son was born on 14 July 2017. You have no prior convictions in Australia (and according to you, no prior convictions in Iran) and have nothing pending.
50 As a result of the collision, you have suffered a neck injury which has caused you to be off work since the subject offending on Worker’s Compensation. On the basis of the evidence before the Court, your work capacity in the future is uncertain.
51 Consistent with the submissions of both counsel, I consider that the principle of extra-curial punishment is relevant, although, again, consistent with both counsel, I consider only little weight should be given to such consideration in determining an appropriate sentence.
52 Again, consistent with the submissions of both counsel, I accept that you have good prospects of rehabilitation and, indeed, both the Corrections officer and the psychologist considered your chances of recidivism to be very low.
53 I also note that you, your wife and first child are still currently on bridging visas, with your applications for permanent visas having been rejected twice. Apparently there is a Federal Circuit Court hearing fixed for 2020, and this will be the final hearing of the matter.
54 The protection visa was given because of a fear of revenge killings, although there is no concern regarding any political situation. Apparently your second child is considered an Iranian national and possibly a dual citizen.
55 I accept that being convicted and sentenced for the subject offence may impact on your potential to stay in this country. Although not particularly clear, any prison sentence – particularly a sentence of twelve months or over – would likely be a significant factor in relation to the “character test” set out in the Migration Act 1958 – although a non-custodial sentence may also have impact on you being able to stay in this country. I take also that into account when sentencing you.
56 Clearly enough, general deterrence is one of the basic principles that are applicable to the formation of an appropriate sentence. By that, I mean the sentence must generally deter others from dangerous driving which could give rise to death or injury.
57 Furthermore, any sentence must reflect the denunciation of the community of this type of activity and protection of the community is also relevant. In the circumstances of this matter, although I accept that specific deterrence has some role, I consider the chances of you re-offending in a similar way is probably remote.
58 I should note and make clear to the complainant in this matter before announcing sentence, that the sentence does not and could not reflect the difficulties that you have experienced since the advent of your injuries. That is not my task. My task is to sentence the offender consistent with the circumstances of the offending and the application of the relevant principles of law.
59 In coming to a view about an appropriate sentence, I have perused various exhibits setting out previous sentences and the circumstances surrounding these sentences.
60 I came to the view that based on what I consider to be circumstances involving momentary inattention and low moral culpability, along with the aforementioned mitigating factors, that an appropriate disposition would be a community correction order which will provide a special condition for you to undertake unpaid employment to reflect a punitive element in the sentence.
61 However, given the circumstances of your inability to perform work under a community correction order, I consider that the mere imposition of a conviction and a community correction order does not reflect a sufficient punitive element in respect of your offending. To that end, I am minded to fine you and place you on a community correction order which, beyond the standard conditions, will contain conditions that you be subject to supervision, as and when required, by Corrections Victoria and, furthermore, there be a condition that if there be any programs in relation to your offending – that is, the driving aspect – they should be made available to you.
62 In determining an appropriate fine, I note that the maximum penalty of five years’ imprisonment for the offence is a Level-6 imprisonment. Section 49 of the Sentencing Act 1991 states that if a person is found guilty of an offence the Court may – subject to any other specific provision – fine the offender in addition to, or instead of, any other sentence to which the offender may be liable. Section 50 of the Sentencing Act 1991 prescribes that the maximum fine a court may impose under s.50 is either the appropriate maximum specified in the specific provision, or if no maximum is specified, then reference should be made to s.109 of the Sentencing Act 1991. Section 109 provides that a Level-6 maximum term of imprisonment equates to 600 penalty points. I was informed by counsel for the prosecution at the time of the offending, a penalty point had the value of $158.57. Accordingly, on that basis, the maximum fine would amount to $95,142.
63 Your counsel supplied various financial material pertaining to you, referred to Exhibit F, the upshot of which is that you and your family have an income of $4,168 monthly, by way of weekly payments of compensation, and a monthly expenditure of approximately $3,116.40. Total savings as at 16 July 2019 was $1,895.31 and you had a Subaru Tribeca 2008 model. You have no other debts.
64 Please be upstanding.
65 In relation to the offence on the Indictment, you are convicted and sentenced to a fine of $5,000.
66 Furthermore, you are further sentenced to a community correction order for a period of eighteen months. You must attend the Sunshine Community Corrections Service within two days from this date. In addition to the mandatory terms, there will be the following:
(a)pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed and seen fit by the Director for the Department of Justice and Regulation for the duration of the community correction order;
(b)pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;
(c)pursuant to s.59 of the Sentencing Act 1991 I order that you be allowed time to pay such fine.
67 Pursuant to s.89(2)(a) of the Sentencing Act 1991, I order that there be cancellation of any licence or permit to drive a motor vehicle, and further order that you are disqualified from obtaining any further driver’s licence for a period of eighteen months to commence from this date.
68 I also order that the prosecution may take a forensic sample (which I note was not opposed).
69 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, I would have sentenced you to a combined sentence of ten months’ imprisonment followed by a community correction order. Is there any issues arising over that?
70 MS HOGAN: No, Your Honour.
71 MS MILDENHALL: No, Your Honour.
72 HIS HONOUR: Yes, Ms Mildenhall you can speak to your client downstairs. You are permitted downstairs, aren’t you?
73 MS MILDENHALL: I can do that here Your Honour. And I can take him through the order and get him to sign it.
74 HIS HONOUR: Yes, I am sorry, I have been handing down so many sentences lately.
75 MS MILDENHALL: Yes, Your Honour.
76 HIS HONOUR: Yes, I will let you and my associate - Just go to the -Just get this signed. Just one other thing, there is provision in the sentencing act whereby I in relation to fines can order that fines be paid on a certain amount per so often. I gave consideration to that that it (indistinct) as I understand it the authorisation fines whatever it’s called these days.
77 MS MILDENHALL: Fines Victoria, Your Honour.
78 HIS HONOUR: Yes, and do we need any details from your client to see how that’s going to work out.
79 MS MILDENHALL: Yes, Your Honour, that is my understanding as well - - -
80 HIS HONOUR: Yes, thank you for your assistance both of you and I have never come across a CCO report like we got now, but there you are, first for everything. Yes, thank you, we will adjourn sine die.
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