Director of Public Prosecutions v Johal
[2013] VCC 1407
•11 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-13-01211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PARDEEP SINGH JOHAL |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2013 | |
DATE OF SENTENCE: | 11 October 2013 | |
CASE MAY BE CITED AS: | DPP v Johal | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1407 | |
REASONS SENTENCE
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Subject:
Catchwords: Sentence – culpable driving – taxi driver – sleep deprivation – excessive work hours – working to repay student loan debts – profound loss to family of victim – serious consequences for prisoner – serious injuries – permanent disability – loss of employment – reconsideration of permanent residency – loss of prospects – good character – genuine remorse
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Rochford SC | Mr M. Pitcher Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Mr P. Randles Randles Cooper & Co. |
HER HONOUR:
1 Gavin Keep was well loved by his family. He was the more precious to his parents as two brothers had died young. He was very close to his younger sister. He had worked in the family security patrol business for 20 years, since he was 17.
2 He had been married only 5 weeks, and he and his wife Joanne were looking forward to a life together, to building a home on the block of land they had purchased, and having a family of their own. Joanne’s parents, brothers, sisters in law and nieces and nephews had also come to know and love him and had welcomed him into their family.
3 At about 2.30am on 17 June last year, he was driving on the Kilmore Broadford road, to do his security patrol around there. You, Pardeep Johal, were driving your taxi in the opposite direction, on your way to collect a fare from Broadford. Each car was travelling at approximately the speed limit of 100 kilometres per hour. Your taxi veered across the double lines of the road, and collided head on with Mr Keep’s car.
4 The photographs of the wrecked cars give some indication of the force of that high speed impact. Mr Keep suffered multiple injuries to his head, abdomen and lower limbs, and died instantly.
5 Later investigations showed both cars were roadworthy and mechanically safe, the road was in good condition, the night was clear, and visibility was good for traffic in both directions. Neither you nor Mr Keep were impaired by drugs or alcohol.
6 The reason your taxi veered across the road and collided with Mr Keep’s car was because you were profoundly sleep deprived. You had, for the fourth time in as many minutes, fallen asleep at the wheel. The taxi camera showed your head slumping forward before you sat back up, on 3 separate occasions, in the 4 minutes before the collision. The first two occasions were momentary, but the third lasted for 22 seconds. You were then seen to wipe your face with your hand, before the final, fatal, lapse into sleep. On this occasion, at least 8 seconds elapsed from the time your car began to veer across the road until it collided with Mr Keep’s.
7 An examination of your activities in the 70 hours before the fatal collision showed you were awake and working for 52 of those hours, awake and engaged in non-work related activities such as accessing the internet or using your phone for another 6. That left 5 periods, ranging in length between 1 and a quarter hours and just under 3, a total of only 12 hours, where you could have had opportunity for sleep in that 70 hour period. Professor Dawson, an expert in sleep research, sleep deprivation, fatigue, and workload expressed the opinion, based on research into the relative amount of sleep obtained as a function of timing and duration of rest breaks, that the actual amount of sleep you would have had over that time would have been significantly less than 12 hours. It is not known whether you did sleep at all over the 70 hours, let alone how many sleeps you had, and their duration.
8 Professor Dawson concluded the magnitude of your sleep loss in that time was profound, and that a person in your circumstances would have been well aware that you were fatigued, and well aware of the risks associated with driving when so fatigued.
9 You, Mr Johal, suffered serious, life threatening injuries to your head, abdomen, spine and legs. You were airlifted to the Royal Melbourne Hospital, and spent 2 months there, or in other inpatient rehabilitation. You have consistently reported having no recollection of the collision, or of the period immediately before or after it. You have been diagnosed as suffering post traumatic amnesia. As a result, you were not interviewed until 3 months after the collision. When your work hours in the days immediately before the collision were put to you, you agreed they sounded excessive. You acknowledged you should definitely have stopped driving before the collision.
10 So it is you come to be sentenced for 1 charge of culpable driving causing death, based on your lack of control of your vehicle because of your state of fatigue, and your continuing to drive in that state of fatigue.
11 The victim impact statements are desperately sad. They convey the grief those left behind suffer, and will continue to suffer, and reveal suffering and tragedy well beyond that that one might expect to flow from the untimely loss of the life of a 37 year old man.
12 He is the third, and last son Mr and Mrs Keep senior have had to bury. Most parents do not have to suffer the pain of losing one child. They have now had to face it 3 times. Joanne Keep has spina bifida. Many people, and many potential partners would not see beyond the disability. Mr Keep saw the person, not the disability. Joanne Keep was 37 when she meet Gavin, and is now 40. Marriage to him gave her a promise of something she had feared would never be hers to enjoy: marriage and a family. That future has been taken from her. For Mr Keep’s parents and his wife, their loss is, by reason of those circumstances, much more profound.
13 To Mr Keep’s family I want to say this: you have conveyed to me something of the essence of the man that Gavin Keep was. Your grief, and your dignity in court honours his memory. But this case cannot bring back the husband, son, brother, brother in law, or uncle that he was and the value of his life, and the immensity of his loss, cannot be measured by reference to the sentence for the charge of culpable driving.
14 My task, in sentencing Mr Johal, is to impose a sentence which reflects the gravity of his negligence in driving when so sleep-deprived that night and which seeks to reflect the need to punish, condemn and deter, but which also takes into account Mr Johal’s otherwise good character, and the effects on him of his negligence.
15 There are no winners in a case such as this. You, Mr Johal, are now 27. You have your life, but it too is profoundly changed, and the future that you hoped would unfold before you has also disappeared.
16 You come from a farming family in Rajasthan, in northern India. The family are devout followers of the Sikh faith. You are the youngest child, and your parents and older siblings made sacrifices to give you the opportunity to get a better education than they had, in the hope of a better life. You had worked hard to live up to their expectations, and to reward their efforts to give you that opportunity. A combination of family savings and scholarships extended your education beyond that of your siblings, and sent you far from home to extend your secondary schooling, complete a diploma in hotel management and then obtain an apprenticeship as a chef in a 5 star hotel in Chandrigar. You and your family saw this as an opportunity to better yourself, although the pay was meagre and you were unable to send money home. When the family could not afford to pay others to work on their small landholding, you gave up your apprenticeship and went back to labour on the land. When things improved, you went again to Chandrigar, and again worked as a chef for 3 years whilst doing further studies. In 2009, you came to Australia on a student visa to undertake an Advanced Diploma in Hotel Management.
17 By April 2012 you had completed your diploma, and with the sponsorship of your employer, the proprietor of an Indian restaurant in Kyneton, obtained a permanent resident visa and a full time job as a chef. You had a debt of $21,000. This was mainly for your studies here, although you had also borrowed money to return to India twice, for the weddings of your two oldest siblings.
18 You had held a drivers licence in India and here, and by 2011 were on a full licence. In April 2012 you began part time work as a taxi driver, with Crown Cabs in Kyneton, in order to help pay off your debts.
19 You were living, I accept, a modest life here. You shared accommodation with a number of Indian expatriates, students, and restaurant workers like you. You had maintained your religious observances and practices. Unlike some of your peers, you had not embarked on a life of late nights, parties, drinking and smoking. You were putting all you could towards paying off your debts.
20 You had hopes of marrying. You had been committed to a young woman you met in 2007 in Chandrigar. You and she believed you needed to better yourself if her family were to agree to your marriage. Having permanent residency in Australia, tertiary qualifications and full time employment, and being debt free were, you believed, matters which would demonstrate you to be an acceptable husband for her, in her family’s eyes.
21 It was, I was told, these circumstances which led to your eager acceptance of an offer to have full time access to a taxi for a 2 week period, from 8 to 17 June 2012, when its permanent driver had returned to India for 2 weeks.
22 I was told you were given no instruction when you began driving taxis in the dangers associated with, or in identifying or managing, driver fatigue. If indeed that is the case, it is a serious deficiency in the system of employing and licensing taxi drivers, and one which should be remedied urgently.
23 However, that does not excuse your behaviour. I have referred already to the evidence which establishes your profound level of sleep deprivation, your acknowledgement of your awareness of your fatigue and your acknowledgement you should have stopped driving.
24 It is that which establishes your culpability, and for which you must be punished. That you were a professional driver, engaged, for reward, in driving others, makes the offending more serious. So too, does the speed at which you were driving in that state. Although you were not exceeding the speed limit, the risks posed to other drivers from driving on the open highway at such a speed is clearly far greater than the risk you posed if you, and other road users in your path, were driving within the speed limit on a road where a lower speed limit applied.
25 For these reasons it is clear that, subject to consideration of matters personal to you, just punishment, denunciation and general deterrence must carry considerable weight in the sentencing mix.
26 I have already referred to your background and personal circumstances before the collision.
27 I accept you are a man otherwise of good character. You have been a loyal and hardworking son and brother, and as the testimonials placed before me reveal, a good friend and role model to those you have befriended here. You have been supported by a number of people at court on the hearing of the plea yesterday, and by an even greater number today for sentencing. That too I take as a mark of the regard in which you are held by those who know you. You have no criminal record here, and I assume, none in India. Had you a criminal record there, it is unlikely you would have obtained the right to enter and stay in Australia, or to obtain permanent residency.
28 You have accepted full legal and moral responsibility for your behaviour. I accept the medical opinions you suffer retrograde amnesia, that is, a genuine post-traumatic amnesia. Despite that, when interviewed, you accepted without demur the correctness of all you were told in interview about your driving, and activities in the days leading up to the collision. I accept your expressions of remorse and regret are genuine and heartfelt. I have read the letters you have written to Joanne Keep, and to Ron and Dorothy Keep. Although it may be difficult for the Keeps to read and accept what you say, you express yourself with a humility and simplicity consistent with your religious beliefs, and with the manner in which you have expressed yourself to the investigating police, the psychologist Mr Simmonds, and your lawyers. It is consistent with the manner in which you have conducted yourself generally.
29 I accept that you will carry the burden of guilt, and of acceptance of responsibility for your actions, for the rest of your life.
30 You pleaded guilty at the earliest opportunity, and I accept in the circumstances it deserves weight not only for its utilitarian benefits, but as further evidence of remorse.
31 I have already referred to the fact that you suffered serious, life threatening injuries to your head, abdomen, spine and legs. Although the extent of the long term consequences of all injuries is not known, it is clear you will be left with considerable residual difficulties, or disabilities, for the rest of your life.
32 Your bowel was perforated, and a portion of your small intestine was removed. You are left with malabsorption syndrome. Your body can no longer absorb the necessary nutrients, you are iron deficient, and you suffer constant diarrhoea. You have lost 20kg in weight, and now weigh only 58 kg. A cervical spine injury has responded well to a bone graft from your hip and fusion, but you have limited movement as a result. Pins were inserted into the fractured bones of your left leg. The healing has been slow and painful, and you were scheduled to have surgery for their removal next week. There are no materials before me in relation to the extent or consequences of the head injury. Although Mr Simmonds wonders whether you have an acquired brain injury, and recommended a neurological assessment, Mr Newton expressly disavowed reliance on the existence of an acquired brain injury as part of the consequences of the injuries sustained in the collision.
33 You have been unable to return to work as a result of the injuries, and it would appear that at present, it is unlikely you would be able to return to your former employment as a chef, or undertake manual work.
34 Conviction and sentence for this offence will trigger a reconsideration of your permanent residency status, specifically, whether the circumstances of conviction and sentence mean you no longer satisfy the good character test.
35 Whilst that remains unresolved, you suffer the additional burden of uncertainty about your future. Even if you are allowed to remain in Australia, your career hopes are dashed. Although Workcover payments have enabled you to repay the debt, you will not be in a position to provide the support to your family you had hoped to provide once the debt was repaid.
36 Your hopes for marriage with the young woman from Chandrigar are also dashed. You both accept imprisonment will terminate the commitment you had made to each other.
37 If you are unable to stay in Australia, your residual disabilities will significantly limit your employment opportunities in India.
38 I accept you feel acutely that you have let your family down, and that the hopes they had invested in you have come to naught.
39 All of these are sufferings, or punishments, independent of any punishment the court can impose, and are burdens you will carry as additional punishment.
40 I accept that your good character, your remorse, and these additional punishments mean there is no need to place weight on specific deterrence. I also accept you have very good prospects for rehabilitation. You are unlikely to offend, in this, or any other way again.
41 I accept imprisonment will be more onerous for you than for many others. You will be isolated in prison. You have no family here, and few friends. Your visitors will be few. Whilst the prison population is diverse, it does not reflect proportionately the population in the broader community. I accept that you are likely to experience greater cultural isolation than many prisoners. I also accept you display symptoms consistent with depression, and that they are a direct result of the consequences of the collision: the responsibility you feel for having caused Mr Keep’s death, and the consequences for you of your injuries, and of the loss of the prospect for the future that you had. I accept your depressive symptoms may well worsen in custody. I accept these matters operate to reduce the sentence otherwise appropriate.
42 Mr Rochford submitted a sentencing range of between 5 – 7 years head sentence, with a non parole period between 3 – 5 years was appropriate, having regard to current sentencing practices, and taking into account the nature of the negligence, your otherwise good character, and the powerful mitigatory factors, particularly the non-curial punishments. Mr Newton submitted the mitigatory factors, particularly the non-curial punishments, justified a non parole period of less than 3 years.
43 Each case must be considered on its own facts and circumstances. No two cases are the same. There is an absence of many of the aggravating features often present in cases of culpable driving. This was not hoon driving. No alcohol or drugs were involved. The speed, although high, was within the speed limit, and would have been safe in the conditions had you been alert and awake. You have no history of bad or dangerous driving.
44 I have already identified the matters which particularise your culpability, and the aggravating features: your profound level of sleep deprivation; your acknowledgement of your awareness of your fatigue and your acknowledgement you should have stopped driving; the fact you were a professional driver, engaged, for reward, in driving others; and the speed at which you were driving in such a state. The absence of aggravating features present in some other cases, and the presence of some powerful mitigating factors, does not diminish the need to properly reflect denunciation, just punishment and general deterrence.
45 I have fixed on a sentence I know will not bring Mr Keep back, but which I consider appropriately balances these conflicting considerations.
46 Could you now please stand?
47 Pardeep Johal, on the charge of culpable driving to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of five and a half years, and I fix a period of three years as the time you must serve before being eligible for parole.
48 You have spent one day in pre-sentence detention and I direct that that be counted as part of the sentence already served.
49 Pursuant to s.89(1)(c) of the Sentencing Act 1991, I order that all licences are cancelled and you are disqualified from obtaining a new licence for a period of two years.
50 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to period of imprisonment of 8 years, and I would have fixed a non-parole period of 5 years.
51 Are there any further orders that are required to be made?
52 COUNSEL: No, Your Honour.
53 HER HONOUR: Thank you. Could you remove Mr Johal, please?
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