Director of Public Prosecutions v Kandel

[2021] VCC 2183

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00783

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAM PRASAD KANDEL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2021
DATE OF SENTENCE:	30 November 2021
CASE MAY BE CITED AS:	DPP v KANDEL
MEDIUM NEUTRAL CITATION:	[2021] VCC

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:             Dangerous Driving Causing Death; Sentence Indication; Mitigatory   Factors; Additional Factor; Excessive Speed of Victim; Lower Moral   Culpability; Delay; Community Corrections Order.

Cases Cited:            Director of Public Prosecutions v Currie [2021] VSCA 272; Worboyes v   R [2021] VSCA 169; 96 MVR 344; Boulton v The Queen [2014] VSCA 342; 46 VR 308;

Sentence:                 Community Corrections Order for a duration of two years and four   months; Licence cancellation disqualification for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecution
For the Accused	Mr S. Gillespie-Jones	Joseph Burke Law

HIS HONOUR: 

1Ram Kandel, following a favourable sentence indication hearing on 21 October 2021 you have today formally pleaded guilty to one charge of dangerous driving causing death.  At the sentence indication hearing I made clear that if you pleaded guilty I would not impose a custodial sentence.  This was urged by your counsel.  Importantly, the prosecution did not contend otherwise.  My conclusion that a non-custodial sentence was the just and appropriate sentence was due to an array of factors, including the circumstances of your offending, which involved you making a risky decision.  However, there were other factors that mitigated the offending or reduced your moral culpability. 

2As to those circumstances, it is notable that it was as long ago as October 2017 when you were driving on Mount Alexander Road at around 9pm.  Traffic heading in your direction was in my analysis heavy.  I have watched the dashcam footage from a car behind you.  You came to a stop in the line of traffic some 50 or so metres from a street called Addison Street.  You wanted to turn right into Addison Street to avoid the congestion at the Moonee Ponds Junction.  You were familiar with the area.

3After coming to a stop you allowed a vehicle on the other side of the road to pass by before you pulled into that opposite lane to pass the stationary cars as you headed the short distance before making a right-hand turn.  Driving on the wrong side of the road over the solid line was dangerous and totally unnecessary.  You would have just got to the intersection in a matter of minutes if you had just waited patiently in the line of slow moving traffic in front of you.

4As you went to make your right-hand turn the deceased came along Mount Alexander Road on his motorbike.  Unfortunately for him, and for you, he for some reason, had decided to drive at a bewildering speed of at least 100 kilometres in a 60 kilometre zone.  I note that some knowledgeable witnesses put the speed of the motorcycle at up to double that, that is nearer to 200 kilometres, but on any measure he was going at an extraordinary speed and he had been observed by other drivers in the approaching kilometres driving at these colossal speeds and in a reckless fashion.

5The victim was not licensed.  His motorbike was not registered, there were no numberplates.  He had consumed an amount of methylamphetamines prior to driving.  In short, he should not have been on the road at all;  however, he was, and notwithstanding his frightening speed you had a responsibility to him like you did to all other road users. 

6As he sped along Mount Alexander Road you commenced your right-hand turn, not anticipating or seeing him as he approached at this enormous rate of speed.  He stopped at the last moment but the motorcycle under heavy braking lost control and it struck the lower part of your driver's side bumper bar.  The deceased slid on the road, separated from his bike.  He ultimately died at the scene.  Subsequent testing revealed that you had no drugs or alcohol in your system. You were in shock but cooperative at the scene and afterwards with investigators.  You were charged and bailed.  Your case has had a very interrupted pathway through the criminal justice system.  As I say, the delay is now an extraordinary over four years. 

7Any offending that takes another person's life is self-evidently serious.  It gives rise to the need for the courts to condemn the risk behaviour and in particular send a message of deterrence to all other road users.  All drivers have a responsibility to all other road users and the saving of a minute in congested traffic, of course, is not worth it.  But more than that, decisions in the moment that involve risk must be seen as serious because on the road the consequences of a collision are likely to be death or at least very serious injury.

8However, the Court of Appeal has in a series of cases explained that a driver's moral culpability can be lowered if the collision or circumstances involve factors outside the control of an accused driver.  The most recent expression of that was in September this year in the DPP v Currie.[1]  What was said by the Court of Appeal was the following at paragraph 180:

In Spanjol, this Court held that, in cases of the present kind, if an offender is able to establish that there was an additional factor — outside the offender’s control — which was also a material cause of the relevant injury or death then there may be a reduction in the penalty to be imposed on the offender ‘within the sound limits of the sentencing judge’s discretion’.  This principle does not necessitate the passing of any moral judgments on the victims of crime for the purpose of arriving at sentence.  As expressed by the Court in Spanjol, it is a principle which concerns issues of causation.

[1]Director of Public Prosecutions v Currie  [2021] VSCA 272.

9The relevance of this in this case is that the excessive speed of the victim was a factor outside your control.  It was a very significant factor contributing to the causation of the victim's tragic death.  I say no more about it and, like the Court of Appeal, do not wish to be heard as blaming the victim.  Rather, in the circumstances of the speed of the victim your moral culpability is much lower in my assessment of your conduct in this spontaneous decision to drive over the solid line to get to your right-hand turn a bit quicker. There were no other aspects of your driving that could give rise to concern.

10In all the circumstances your level of moral culpability opens up consideration of a merciful sentence and, as I said, one the prosecution did not argue against.  Your personal circumstances and a number of important policy considerations also add to the array of mitigatory factors making a community corrections order a just and appropriate sentence.

11You are now 37, married and the father of two young children.  You migrated to Australia from Nepal in 2005 to study hospitality.  You have worked in that industry as a chef at various hotels and restaurants solidly until the COVID pandemic caused great difficulty for the hospitality industry.  It seems you have been away from work for now nine or so months, causing financial strains.  Your work history is to your credit.

12The long delay in this case getting resolved has been stressful, mainly because you confronted significant risks of imprisonment and as a consequence serious further risks of deportation due to your migration status.  I consider that your mental burden that you carried through this time as mitigatory.  Delay, however caused, is always relevant to sentence, however more so in the current environment.  The adverse impact on the criminal justice system of the COVID pandemic cannot be overstated.  The Court of Appeal in the important decision of Worboyes,[2] gave clear guidance to sentencing judges as to the increased utilitarian value of a plea of guilty in COVID times.  I will not recite the principles set out in Worboyes but rather ensure what I apply, that is I apply them, in terms of the benefits being palpable and the discount for your plea of guilty being that much more significant.  In this case it means not merely a sentence of lesser duration but it means a sentence of a different kind.

[2]Worboyes v R [2021] VSCA 169; 96 MVR 344.

13You are someone who, apart from a drink driving traffic infringement notice conviction in 2011, are without prior criminal history and, from the testimonials tendered from your employers, you are of general good character.  You have expressed appropriate remorse, feeling much affected and apologetic for causing the death of another person by your dangerous driving.  As the Court of Appeal in Boulton v The Queen made clear,[3] the new community corrections order regime changed the sentencing landscape and as a consequence offences that previously saw the imposition of suspended sentences, or partially suspended sentences, or sentences of imprisonment of up to medium length, could now be appropriately punished by targeted community corrections orders.  You do not have any concerning addictions or overly fragile mental health, thus there is no need for particular programs to be delivered by the Office of Corrections.  You have some health concerns that are currently under investigation and as a consequence you have not resumed work as yet.

[3]Boulton v The Queen [2014] VSCA 342; 46 VR 308.

14Your community corrections order or the order that I intend to impose needs to focus on punishment because you did the wrong thing and it has serious consequences and you must be seen now by our community to be giving back, in this instance by unpaid community work.  Given the gravity of the crime and the need also for deterrence as well as punishment, the community corrections order must be an onerous one.  There will also be a cancellation and disqualification of your licence and your entitlement to drive.  This is a matter that is mandatory under the provisions of the Act.  It will have an impact upon you given your employment, that is in the hospitality industry, usually long hours and late at night, but it is necessary.

15Committing the crime of dangerous driving causing death, I impose upon you a community corrections order with a duration of two years and four months.  It is with conviction.  The only program condition that I impose is that you must do 240 hours of unpaid community work.  There are other conditions which I will go through with you, Mr Kandel, separately, but I move on to say that had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years and four months with a non-parole period of 16 months.

16As to your licence, I am persuaded that in all the circumstances at the minimum that mandatory period of disqualification is just and appropriate and your licence is cancelled and you are disqualified from driving for 18 months.

17Any further or other orders required?

18MR HUTTON:  No, Your Honour, but if I might just raise one matter, and I wish to tread lightly and I say that because I've been looking for the transcript of the sentence indication hearing and have been unable to find it.  I have a note from my instructor that says that the prosecution submission on the sentence indication hearing was a combination sentence was appropriate.

19HIS HONOUR:  All right.  I might have overlooked that.  Are there some summary charges, apparently?

20MR HUTTON:  They are all to be withdrawn, Your Honour.

21HIS HONOUR:  I will mark that as all withdrawn. 

22MR HUTTON:  So Your Honour says you must have, I'm not sure that's right, that's why I'm treading lightly.

23HIS HONOUR:  Yes, thank you.

24MR HUTTON:  I've been unable to find - - -

25HIS HONOUR:  It impacted upon the sentence but it is an important thing that the prosecution contended that a community corrections order was within range but it ought be combined with some period of imprisonment.

26MR HUTTON:  As Your Honour pleases.

27HIS HONOUR:  Anything that you wish to say about that, Mr Gillespie-Jones? 

28MR GILLESPIE-JONES:  As I recollect, Your Honour, my friend is correct in that regard but there was also - I can't, of course, make an application for a sentence indication unless the prosecution consents.

29HIS HONOUR:  Yes, I think they encouraged it.  Sometimes it is consent but it is a formality, but this was not one of those cases so they very much encouraged a resolution in these terms.  Thank you.

30MR GILLESPIE-JONES:  Thank you, Your Honour.

31HIS HONOUR:  Mr Kandel, what has to happen now is that I need to explain some aspects of the community corrections order to you and ordinarily they would all be in a document, you would talk to your lawyers and sign the document, but that does not happen online, you just give consent orally and I will make a note of that on the order I make.  So community corrections order, two years and four months.  There are a number of conditions that apply to every community corrections order and they apply to you.

32The first is very important.  You must not commit an offence for which you could be punished by imprisonment during the course of that time.  Now let us put it simply.  Almost every offence you can think of is punishable by imprisonment. Whether a magistrate would do that or not is neither here nor there, it is a breach of my order and you come back before me.  Do not doubt for a moment that driving while your licence is disqualified is an offence punishable by imprisonment; do not do it.

33What follows on from that is a number of conditions that are really about cooperation.  You have to let the Office of Corrections know if you change jobs, if you get a job and you start a new job.  You have to let them know if you change your address.  You have to get permission from them if you wish to travel interstate, perhaps just over the border.  You just have to get permission, it will probably be forthcoming but you have to ask them and let them know.  You have got to follow all lawful directions.  You have also got to report to them within two clear working days of the order being imposed, so tomorrow and the next day.  That is by phone, and I think it is the Coolaroo Corrections Centre that is the appropriate corrections centre for you in Roxburgh Park.  So you have to get in touch with them by telephone and get this all started or they will ring you.  Your solicitors might help you in that regard but do not miss that, so they will take you through the induction.

34They are all the conditions that apply to everyone, the standard ones.  The program condition that applies to you is that you have to do these hours of unpaid community work within that period of time, just get that done.  They will make it clear to you what they want done.  It is not voluntary, it is not whatever hours you want, it is to do when they tell you to turn up, turn up and do it to the end and then turn up the next time till it is done.  I am sure you will be able to get this work done fairly quickly in your circumstances.  If there are health concerns just raise it with them.  Get the medical certificates, keep them informed about your circumstances.

35If you understand all that, the question for you is do you consent to doing this Corrections order?  You will answer that, do you consent to that.  Hopefully you are online such that I can hear you.  Do you give your consent?  Tell me if you do not understand what I am talking about.

36OFFENDER:  Yes, my - yes, Judge.  Yes, my Honour.

37HIS HONOUR:  All right, so I will put that on the order and the form.  You will be sent all those things by your solicitors and take them up straightaway.  Is there anything else required?

38MR HUTTON:  No, Your Honour.

39MR GILLESPIE-JONES:  No, Your Honour.

40HIS HONOUR:  Thank you very much for your help, Miss Mahady and yourself, Mr Hutton, and of course, Mr Gillespie-Jones and your instructor.  I reiterate that we have situations of people with limited capacity with technology and we do not often get a lot of help from the solicitors.  We did today, in spades, so thank you very much.

41OFFENDER:  Thank you, Judge.

42HIS HONOUR:  All right, everyone can head away, I need to just talk to my staff briefly.

43COUNSEL:  Thank you, Your Honour.

44OFFENDER:  Thank you, Your Honour.

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