Director of Public Prosecutions v Khaled

[2015] VCC 994

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAMDOUH KHALED

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2015
CASE MAY BE CITED AS:	DPP v Khaled
MEDIUM NEUTRAL CITATION:	[2015] VCC 994

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr B.J. Bourke	Koutsantoni & Associates

HIS HONOUR: 

1Mamdouh Khaled, on Saturday 7 September 2013, you were driving your Volvo tipper truck towing a trailer, or as it was described, a dog trailer.  You were working shifting soil it seems from a development site in the Armstrong Creek area, to a dumping site which I take as somewhere in Freshwater Creek or Paraparap.

2Other truck drivers or contractors were doing the same.  You took one load and returned for another.  You were driving along Mt Duneed Road in a westerly direction.  Mt Duneed Road eventually meets the Cape Otway Road, which, of course, has a bitumen surface.

3However, the train line from Geelong to Warrnambool goes over the
Mt Duneed Road.  The bridge is a low one and there are signs along the
Mt Duneed Road with warnings to truck drivers about the low bridge.

4As you drove along Mt Duneed Road, you saw the low bridge signs, so too it seems had a driver in front of you, and you and he turned right into Pettavel Road, heading north.

5Pettavel Road is a dirt road, it crosses the Warrnambool train line about,
I think, in estimate, about a kilometre or so after the Mt Duneed Road.  It is in a rural setting.  There are signs advising of the approaching railway crossing.  The railway crossing is not controlled by gates or flashing lights.

6Your first trip that morning was uneventful.  On your second trip you were following another truck.  Around 9.20 you drove up to the railway crossing.  It seems, without altering your speed or distance between you and the other driver, you drove across the railway crossing.  Unfortunately, the morning train to Warrnambool was travelling at its usual speed towards the railway crossing.

7Your vehicle did not make it fully across the railway line.  The train struck your trailer, dog trailer, causing it to detach from your truck.  The trailer became wedged under the train and was dragged for over 300 metres down the train line.

8Ultimately, the train derailed.  The derailment of a major inter-city V/Line service only has to be said for the seriousness of this event to be evident, though the potential was for catastrophe, and that is obvious.  In the end the overall impact on the 95 passengers and staff on board that train was, thankfully, relatively limited.

9The experienced train driver, Mr Dowdy, did all he could to warn you of the impending collision with his train whistle used twice as he came over a slight rise towards the crossing.

10He applied his emergency brakes.  His skills, I think, need to be acknowledged, as it seems, but for his clear-headed immediate response to the emergency situation, a much more of a disaster could have unfolded.

11Mr Dowdy suffered injuries to his knee.  In his Victim Impact Statement he refers to this, as well as the psychological impact, he wrote, that initially he had flashbacks and anxiety.  He spent time thinking about the accident.  He said, "I don't want to, but I do, and sometimes I get angry and I'll have an argument with my wife that's really over nothing."

12He went on to say, "Lately I've been having nightmares and flashbacks again.  I have some reason to remember the accident at least once a week."  These thoughts obviously intrude.

13He explains that he has been involved in other serious accidents with fatalities that have not had such an effect on him.  He says, "But this one, for the sake of five seconds, and better look out, it could have been avoided."  He says, "We were lucky really, it could have been so much worse.  People could have been killed, me included.  I get wild about this accident.  I know I shouldn't, but it was so unnecessary."

14He had five months off work and knee replacement.  His mobility is not as it used to be.  It seems he is a man who does a lot of physical work on his property and he is not able to do as much as he wants without pain.

15Twelve other passengers suffered bruising, abrasions, or minor lacerations, and five of those went to the Geelong Hospital and were later discharged.  A 67 year old female passenger suffered three or four fractured ribs, a most painful injury.

16There was nothing about the weather that contributed to any difficulty in seeing the approaching train.  The truck in front no doubt caused some dust to rise, but, apart from that, there was nothing that could have caused any difficulty with seeing the train as it approached.

17All road users have a responsibility to be aware, to take care, when approaching uncontrolled rail crossings.

18Professional drivers in charge of large vehicles have a particular responsibility to take care. 

19The police, and then following a committal, the Director of Public Prosecutions, charged you with reckless conduct endangering life and reckless conduct endangering person.

20On legal advice you were always prepared to accept responsibility for your poor driving and thus sought to resolve this case with a plea, I would expect, to an offence under the Road Safety Act.

21Ultimately, you made it clear that you would resolve the matter for a charge preferred by the Director of Public Prosecutions, if a sentence indication was given.  The submissions put in support of your application for a sentence indication carefully made the case that while you may have a viable defence to the mental state of recklessness, you did not wish to press the point.

22Rather you sought to emphasise the significant matters that you could raise in mitigation that ought lead to a sentence less than immediate imprisonment.

23Of course, the sentence indication requires the prosecution to consent which was forthcoming.

24Having considered the matters, I was prepared to give an indication that
I would not impose immediate imprisonment.

25It was then made clear that you would plead guilty on arraignment and you have done just that today to the single charge of reckless conduct endangering person.  The maximum term for that offence is five years'

26I have already made clear that your offending was serious with injury and shock caused.  It could have been much worse.  However, given all the circumstances, your plea of guilty is a very significant matter.  Sentencing authorities make it clear that a plea of guilty where the prosecution case is problematic is of greater value than ordinarily would be the case.

27Thus, in your case I give very significant weight to your plea of guilty.  In addition to all the important utilitarian benefits of a plea of guilty, I also accept your plea is an important expression of remorse.

28It is not the only expression of remorse.  The letters and testimonials tendered on your behalf from people who know you well, make it plain that you are contrite and remorseful in an authentic way.  This is the sort of remorse that prompts the community to be more comfortable if you are to be given a second chance.

29You are now 35.  You are a married man with five children under ten.  Your circumstances are not easy.  You owned the truck, but since the collision in which you suffered an injury to your back and psychological problems, you have been unable to work as a driver, indeed, work at all.

30You have had to sell the truck as you could not meet the loan repayments.  You have been on WorkCover payments and financially things are difficult.

31It seems all of your children suffer from chronic asthma and one has particularly poor respiratory health and is far too often in or at the Royal Children's Hospital.  The burden on you and your wife is significant.

32Subsequent to the collision you have struggled to cope with the fact that you could have caused serious injury to passengers and to yourself.  You are under the care of your doctors whose letters I read, and Ms Toohey, a psychologist; her report of 4 February was very helpful.  She wrote this, that you are attending counselling with severe anxiety symptoms, including flashbacks, intrusive thoughts and irritability and insomnia.  You have hypervigilance and avoidance behaviours and repeat the accident over in your mind. 

33She concluded that you fit the diagnostic criteria of post-traumatic stress disorder.

34She said that you have been diligent in completing all tasks set for you in respect of therapy to try and assist you to a speedy recovery.  She thought that you were replaying in your mind the accident, and more so with the court processes, as you have to re-tell the story again and again.

35She thought you were coping much better as time went on and many of your symptoms have alleviated.  You were concerned, of course, because you, as the breadwinner, has caused financial strain to your family, of course, you being the breadwinner and providing for your family is important to you.

36In summary, she said that you are experiencing some severe symptoms of post-traumatic stress disorder and it is highly recommended that you continue with psychological counselling to assist in your recovery.

37I was told today that you have embarked upon a training course that will lead you to be able to be employed, hopefully, in the building or construction industry; you do not wish to take up driving again.

38Your family is very important to you and they would struggle far more than they are already if you were incarcerated.  Although you are not back to full physical or mental health and a full recovery may be some time off, your prospects of rehabilitation in terms of offending are excellent.  In truth you will resume your law abiding ways.  You have no prior criminal convictions and, consequently, you can call on your prior good character in seeking mercy.

39Importantly, you were considered a good professional driver from the accounts that I read in the letters, as well as being a man of integrity. 

40Your counsel submitted that a community-corrections order would meet all sentencing purposes. 

41The Court of Appeal in the important case of Bolton gave guidance to sentencing judges as to the flexible use of properly directed community-corrections orders. 

42In short, I could only consider incarcerating you if I am sure that notwithstanding the availability of a long onerous and targeted community-corrections order, a gaol term is the only option that is appropriate for the offences committed by a particular offender.

43So in this case I say that I am sure that the community would understand that even though the driving was seriously bad, gaol is not the only option.  It is just and appropriate in this case to simultaneously impose a long and taxing punishment with programs directed at your continued rehabilitation while you are in the community, supporting your family, rather than being warehoused in a gaol.

44Community-corrections orders are no soft option.  They are directed by their work and their programs towards punishment and rehabilitation, which achieves the ultimate aim of sentencing and that is protection of the community and the reduction of crime.

45The last few sentences that I have just announced, Mr Khaled, are really precis-ing what was said by the previous Attorney-General when introducing the regime of longer community-corrections orders.

46I am fully aware of the role of Victim Impact Statements and the requirement not to cede the sentencing discretion to those who write Victim Impact Statements, whether they advocate leniency or the opposite.

47However, in this case, the man who was most directly involved, Mr Dowdy, the train driver; what he wrote does capture what I consider is the right balance and I am sure that well informed members of the community would adopt or at least accept his sentiments.

48He wrote this.  "I do not want to see him go to gaol.  I think he needs more than a slap on the wrist.  He has probably lost is licence and taken a hit on insurance.  For endangering our lives he should have to pay the appropriate fine and partake in some sort of community service.  He still needs to be able to work and earn an income to look after his family.  His family should not have to suffer because of his actions.  People need to understand how serious this court have been.  It was lucky no-one died, has been plenty serious for me."

49Your offending needs to be denounced.  It put many lives in danger, or at least serious injury to them.  Deterrence to others is important.  Our road rules must be obeyed, and those who do not, will face certain punishment, in particular the road rules relating to train crossings.

50Your rehabilitation must be facilitated if that is achievable, and in this case
I consider that it is.  With these purposes to the fore, in my view, the just and appropriate sentence is a community-corrections order in the following terms.

51Can you stand up please, Mr Khaled. 

52You are convicted and sentenced to a three year community-corrections order.  In addition to the ordinary conditions mandatory that apply to everyone, I impose the following program conditions upon you.

53You will be under the supervision of a community-corrections officer.  You will be required to do unpaid community work, 300 hours, over the three year period, and you are to engage in assessment and treatment for mental health problems.  I point out that the Office of Corrections consider that your current regime of attending at the psychologist and your own doctors could meet that end.

54Oddly, as I read it, s.6AAA of the Sentencing Act does not require if I impose a community-corrections order to indicate what I would have done had you pleaded not guilty to these offences and been found guilty of them.

55But I intend to explain to you and to the community that had you pleaded not guilty and been found guilty, I would have imposed a sentence of two years with a minimum non-parole period of one year; points out the value given to you in these circumstances, your plea of guilty.

56The difficult consideration is, what, if anything, to do about your driving licence.  I am well aware that a person in your position needs a licence to do the training that you have set yourself and to look after your family.

57However, considering all the matters, I have concluded that this is an offence for which your licence must be affected and what I do is cancel your licence and disqualify you from driving for a period of eight months.

58Is there any other orders?

59MR GIBSON:  I do not think so, Your Honour.

60MR BOURKE:  No, Your Honour.

61HIS HONOUR:  Mr Khaled, a document has to be produced.  One it is I will go over it again and if you consent to the making of the order you sign it, take a copy and you are free to go.

62MR BOURKE:  We're grateful to Your Honour.

63HIS HONOUR:  Mr Khaled, the community-correction order is three years and will start 15 May and finish on 14 May 2018.  These are the mandatory conditions that apply to everyone.  You must not commit another offence for which you could be imprisoned during the time this order is enforced.  So that is for the next three years.  Of course, the way through that is just never commit any offence from now on.

64You must comply with any obligation requirement under the regulations of the Sentencing Act.  That means they are going to take your photograph or somehow identify you, you have just got to comply with that.

65You must report to, and receive visits from, the Office of Corrections.  You must report to the community corrections centre within two clear working days of this order.  I will get back to that.

66You must let the community corrections folk know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so, and you must obey all lawful instructions from, and directions, of the Secretary.

67The community corrections centre that you have to report to within two clear working days is at Broadmeadows.  Broadmeadows Community Corrections Centre, that is at 25 to 27 Dimboola Road in Broadmeadows.

68The conditions that apply to you, in addition to those mandatory ones, are these.  Three hundred hours of unpaid community work over the three years as directed by the Regional Manager.

69You must be under the supervision of a Community Corrections Officer for that period, and you must undergo a mental health assessment and treatment, including psychological treatment as directed by the Regional Manager.

70If you sign this document, I will sign it, that will be the community-corrections order.  But I just emphasise that you must do, each and every hour that you are required to do; comply with each and every condition.  If you do not, there are consequences such as it more than likely being brought back here and a merciful outcome will not necessarily be repeated.

71I will be forced to sentence you again for this offence.  Do you follow?  Just do it all.  No expectation that you will not, but I just emphasise it.  If you sign that, that brings it to an end.

72Can your instructor go down the back with him?  We have signed that,
Mr Khaled, and so too I, and you will get a copy and you are free to go.

73Just as a matter of formality, the indictment that Mr Khaled pleaded guilty to was the .1 after; it is the indictment, all other indictments have been filed as stayed, and the charges, summary charges having been withdrawn, there is nothing further I need to do or say about them.

74I thank counsel, including Mr Morrissey, I suppose, for their considerable assistance in this matter.

75MR BOURKE:  Yes.

76HIS HONOUR:  And Mr Gibson for making the effort to be involved in this throughout.  It is always very helpful.

77MR GIBSON:  As Your Honour pleases.

78MR BOURKE:  We did thank Your Honour.

79HIS HONOUR:  Feel free, Mr Khaled can leave the dock and feel free to leave the Bar table and I will adjourn.

80(Offender released.)

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