Director of Public Prosecutions v Khallouf

[2015] VCC 408

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02389

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN KHALLOUF

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 April 2015
CASE MAY BE CITED AS:	DPP v Khallouf
MEDIUM NEUTRAL CITATION:	[2015] VCC 408

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 A. Grant
For the Offender	Mr J. Lavery

HIS HONOUR:

1Steven Khallouf; you were found guilty by jury verdict of dangerous driving causing death.  The fact of the case can be briefly stated for the purposes of this sentence.

2At about 5.30 pm on Sunday 12 May 2013 you were driving a Mazda 3 north on Lygon Street in Brunswick, past the intersection with Blyth Street, approaching the Abruzzo Club at 377 Lygon Street.  Your vehicle collided with two other vehicles, which were parked in front of the club along Lygon Street and hit an elderly man, who was waiting to get into his car and was standing next to it.

3This man - a man his 80s, Mr Kayafa - had just exited the club with his wife a few moments earlier.  He was struck by your car and suffered serious injuries, and although promptly treated, he unfortunately died.  Your vehicle was in good condition.  There were no mechanical or system faults which led to this collision.

4That section of Lygon Street is a dual carriageway, constructed of bitumen with a concrete inlay containing tram tracks that run in both directions.  At this point there is provision for parking on each side of the street which, when taken up, take up much of the left lane, and on this night four vehicles were parked in front of the club.

5A solid white line separated the north and south bound lanes.  The speed limit at the time was restricted to 40 kilometres per hour and signs indicating that speed were visible, and located along the road.  The road was dry, the weather was fine.  The traffic at that location was light to medium, with some pedestrian traffic along Lygon Street, and in particular, related to the adjacent club.  You were alone in the car.  At the time of the driving your licence had been suspended for three months as you had accrued demerit points.  You were returning home, having been to the Chelsea area to provide quote for excavation works.

6As you crossed Blyth Street what can be ascertained with any certainty is that your vehicle collided with the rear driver's side and tyre of a RAV4 Toyota parked second in line of four parked cars outside the club.  The RAV4 was the first car after a white van parked outside the club.  It is probable, on the evidence, that your left mirror came into slight contact with the side of that van, leaving a rectilinear rubber black mark on its right front portion as you travelled north.

7But irrespective of whether it did or not, your vehicle then collided in a sideswipe movement with the very next car - the RAV4 - pushing it onto the footpath.  Your car then struck an old Datsun, into which Mr Kayafa was about to enter.  It is again probable he had just opened the driver's door slightly, or had yet to do so, but in his position immediately outside that door this meant that he was then struck by your car, and effectively pinned and trapped by the metal wreckage, causing extensive injuries to his legs and pelvis.

8One witness was seated on a bench immediately next to the Datsun on the footpath and rendered assistance.  Another man who was in the car driving south along Lygon Street went to assist when he noticed the collision and saw Mr Kayafa pinned.  There was some evidence that efforts were made by you to reverse your car to free Mr Kayafa, on one view, but that effort was short in duration.  Paramedics who were driving an ambulance north along Lygon Street saw the injured victim, and a very short time after the collision rendered their assistance.

9There was some heated exchanges at some point thereafter between you and at least one of the witnesses when they heard you deny that you were the driver, and it was perceived that you were about to decant the scene.  A small crowd gathered in the vicinity of the collision, and outside the club, and about nine minutes after the collision CCTV footage from outside the club shows you leaving the scene on foot, heading south at a quick pace.

10As you left the scene you called your wife by mobile phone.  She picked you up by car and afterwards you told her the fabricated story which involved the car you were driving having been stolen.  At about eight at night your wife reported this as fact to the police at Fawkner Police Station by way of a signed statement alleging the car had been stolen.  She told police that you were across the road from the police station in a hotel.  Your wife then contacted you and you attended the police station, where you were arrested.

11You were interviewed, and asserted your vehicle was obscured by another vehicle in front of you as you approached the collision scene.  You said you looked down for a brief moment and then looked up to see an elderly man standing "half out on the road with his door open".

12You said you initially attempted to assist the victim but you panicked and left the scene and you admitted trying to distance yourself from the collision by your leaving and by the story told to the police.

13Investigators and reconstructionists conducted an examination of the scene.  It was not possible to reconstruct the speed of the vehicle driven by you prior to the impact but nothing in effect indicated that you had driven at an excessive speed in the period leading to the collision.

14Detective Senior Constable Hay, an expert reconstructionist, posited at trial that you have failed to properly attend to the road for at least 2.9 seconds, which is greater of course, it was said, than the accepted 1.5 perception reaction time of "average drivers" in urban conditions.

15An expert called on your behalf doubted some of the conclusions reached by Mr Hay, in particular the period of inattention involved but more centrally about the prosecution theory of a slow drift or divergence by your vehicle over a distance which led you to collide with the parked vehicles.  This theory was based on a number of assumptions, in particular the initial position of your car when such slow divergence commenced.  This became a point of contention which the evidence highlighted before the jury, as your expert Ms Gaffney reached a different conclusion about this divergence as to where it began, how long it took and the reason for it.

16What was significant however in her findings was found at p.44 of her very comprehensive report in which she opined that:

"Given that Mr Khallouf's vehicle could have diverged from wherever he was travelling initially to the point where he first impacted the RAV4 in less than 1 second, it is highly probable that he simply had insufficient time to perceive the hazardous diversion of his vehicle and to avoid the impact with the RAV4."

17Which, as I have described above, was really the catalyst for what followed involving your car and the victim.

18Despite the difficulties in the evidence, the jury considered all the circumstances of the driving and considered that your driving involved a serious breach of the proper management and control of your vehicle which created a real risk that members of the public in the vicinity could be killed or seriously injured. The degree of dangerous had to be assessed by reference to all the circumstances.  In my view the jury must have considered all the factors to come at this verdict and the question for this court upon the sentence is to determine the degree of moral culpability which attaches to this driving.

19The area was one which was busy with vehicles and people.  As against this, moral culpability in my view is reduced when the accident is caused by a momentary inattention or misjudgement.  There is here no evidence or material to take this case out of the realm of perhaps what could be described as momentary inattention or misjudgement, even by the description which you gave to the police in the interview.

20There is here no impact on the driving or aggravation by alcohol or speed and many other aggravating features which are outlined by authorities mentioned in the course of the plea.  The number of people put at risk may be considered one such feature but none of the other matters which are enumerated in Needling following the New South Wales case of Whyte are relevant here.

21There is of course the result of the dangerous driving.  General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death.  Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.  Such an outcome will usually be appropriate for an offence of this kind except in cases where the level of moral culpability is low.

22There is here in my view a reduction to be assigned to your moral culpability because it cannot be demonstrated adequately that it was due to much more than momentary inattention or misjudgement.  Quantifying that momentary timeframe was a task resolved by the jury in this case, having considered the circumstances and the directions of law given.  They considered your driving dangerous and producing real risk.  The level of your moral culpability may be relatively low but despite the fact that this assessment derives from a balance assessment of the evidence, the mechanics and dynamics of the series of collisions demonstrates that you simply did not take sufficient care, exposing many people to unnecessary risk.

23This conduct may not have been deliberate or an election on your part to perform a dangerous manoeuvre but it nevertheless represents an abandonment of your responsibility at a busy part of Lygon Street. The legislature has always placed a premium upon human life and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.  In the end, even absent aggravating features, save for the extent and nature of the injuries inflicted and the number of people put at risk, these being the enumerated factors in R v Whyte in features 1 and 2, I consider your level of moral culpability towards the lower end of the scale but nevertheless one deserving of a custodial sentence.

24In my view, apart from this conclusion, I am fortified in this assessment by some other matters.  Unlike in DPP v Oates, specific deterrence is relevant here because of your prior history.  There it was said that the rehabilitation of the accused would not be facilitated by a custodial sentence.  I am not persuaded that this is the case in your circumstances.

25Further there is in your case a criterion of community protection because of your priors to be applied in your case. These features distinguish Oates from your case.  I have also considered the judgment in Needling and a number of other authorities and their reasons in examining sentencing in the cases of dangerous driving causing death.

26As confirmed in Jansen general deterrence remains an important consideration in sentencing for all forms of dangerous driving including lower level forms of the offence such as this.  Simply because the offences are consequences of unthinking negligence, it is not open to treat general deterrence as less important.  This principle of sentencing does not apply in a hierarchy of importance related to the distinction between intentional and unintentional offences.  The charge carries a maximum imprisonment of ten years and I take that into account also.

27I now turn to the plea of guilty in this indictment for the count of attempting to pervert the course of justice, a charge which comes with a maximum sentence of imprisonment of 25 years.  This charge of course relates to the facts outlined which concern the false statement by police made by your wife at your behest.

28This offence is the culmination of a concatenation of facts which begin with your denial of the driving at the scene to your flight from the scene of the collision, to the conduct involving your wife and her false statement.  It was an effort to distance yourself from the consequences of what you had done, no doubt in part motivated by fear and panic and in part doomed to fail from the very beginning, given the witnesses, the status of the car and factors which linked you to the driving.

29In my view however this is a serious offence.  It may have been committed as the aftermath of a traumatic event but it also reflects a certain deliberation and forethought on your part, apart from the burdensome imposition upon your wife of a desire to deflect and avoid detection, even to the extent of misleading police with false information and perjury.

30Your wife pleaded guilty in the Magistrates' Court to a charge of perjury and received a suspended sentence of imprisonment.  The conduct encompassed by the denial of driving, and fleeing the scene, illuminates your attitude to, and your moral culpability for the offence and I do not consider that parity principle here plays a large role.  In my view, a term of immediate imprisonment is the sentencing option which best deals with the factors to take into account.

31The second presentment to which you pleaded guilty contained a charge of possession of a drug of dependence. This carries a maximum of one year or not more than 30 penalty units or both.  It relates to a tablet of ecstasy in the seat pocket behind the driver's seat.  There are also four related summary offences:  driving whilst suspended, which I understand is your fourth conviction for that offence and carries two years' imprisonment or 240 penalty units; fraudulently using places which carries six months or 60 penalty units; possession charges in relation to a prohibited weapon and a controlled weapon which carry two years and one year respectively or 240 and 120 penalty units respectively.  They are summary charges 5, 7, 9 and 10.

32You were not only suspended from driving at the time of the collision but the car was unregistered and bore false registration plates.  The car had been left in your possession.  The plates belonged to your stepson.  You took these plates and put them on the Mazda.  The prohibited weapon was an extendable baton and the controlled weapon was a black handled folding knife.

33There has been no victim impact statement tendered in this case but I can reasonably infer from what was said by the prosecutor about Mr Kayafa and his family, their sense of grief and loss and the tragic circumstances of the death of Mr Kayafa, that the family, and in particular his wife, have been greatly traumatised by this event.  I take these consequences and the impact on the victims and the family into account.

34You have relevant criminal history which I must take into account and which is particularly relevant to specific deterrence and to your prospects of rehabilitation.  Although I will not recite it in detail, it clearly includes many driving offences, drug offences, dishonesty offences as well as, more relevantly, causing injury offences, over a period of years.

35You also have an extensive Road Safety Act list of priors which includes exceeding the speed limit, failing to comply with no stopping signs, driving whilst your licence is suspended and a number of others, including one matter of driving in a manner dangerous.

36You are 42 years of age.  Your parents separated at an early age.  Your circumstances as a young person were set to be difficult with your father often the subject of reclusion and involvement in the criminal justice system.  He abducted you when you were quite young in breach of court orders.  You were taken away until you were recovered.  You completed Year 10 whilst living in your mother's house.  Thereafter you worked at garden supplies outlets and then for some years at a concrete business.

37You started your own business in 1999 in excavations, earthworks and concreting.  That business had been running up to the time of these events of May 2013.  When you were 19, you met your estranged wife.  She had two children of her own at that time.  You became in effect the children's father.  When you were 27, she bore you a daughter.  You have had problems with her side of the family as well as your father's brother, your uncle, of late.  There have been breaches of intervention orders, threats to kill and cause injury, careless driving charges and some of the issues involved money and the repayment of debts owed amounting to over $100,000.

38Your wife has separated from you and since that time you have been the sole carer for your daughter who is aged 15.  In July 2014 you were sentenced to six months and released in October 2014.  In December you were re-arrested and have been in custody since.  These matters pending are charges of possession of firearms and drugs, as well as car theft.

39In my view, despite the fact that these matters are pending, I am entitled to take these days into consideration in terms of the totality principle which is very important in these circumstances.  Your priors of driving in a manner dangerous in January 2013 is particularly relevant, as are the three intentionally cause injury charges in August and November of 2012 and December 2011.

40There are other priors to which I have previously referred.  During your incarceration your daughter was looked after by your new partner at Mickleham and by your mother who has MS.  Your financial situation is precarious with your wife now seeking a division of matrimonial property.

41During the course of the trial, you admitted the driving but with the denial of responsibility.  You have lost the opportunity in relation to the driving charge for a discount on the sentence for a plea of guilty, although I accept to some extent that you are remorseful and regretful of your actions.

42You plea was entered in a committal in relation to the attempting to pervert the course of justice but was only formally confirmed shortly before the trial.  I will nevertheless incorporate that particular matter into assigning a discount as for the other matters to your sentence.

43As to any order against your licence consequent upon the discussion of the plea, I intend to disqualify you for a period of 18 months.  Would you stand please, Mr Khallouf?

44In relation to the driving causing death, you are convicted and sentenced to two and a half years' imprisonment. 

45On the attempt to pervert the course of justice, you are convicted and sentenced to 18 months' imprisonment.

46On the possession of a drug of dependence, you re convicted and fined $400.

47On the drive whilst suspended you are convicted and sentenced to nine months' imprisonment.

48On the fraudulent use of plates, you are convicted and sentenced to two months' imprisonment.

49On the possession of a prohibited weapon, you are convicted and sentenced to two months' imprisonment.

50On the possession of a controlled weapon, you are convicted and sentenced to one month's imprisonment.

51I order that six months on Charge 3 be cumulative on Charge 2 and one month on the Summary Charge 5 be also cumulative on Charge 2.  This makes a total effective sentence of three years and one month.  I fix a non-parole period of 21 months.

52Your licences are cancelled.  You are disqualified from obtaining a licence for a period of 18 months.  But for your plea, I would have sentenced you to a total effective sentence of four years and three months.  I have signed the forensic sample order as well as the disposal orders prepared.

53In relation to the forensic sample, Mr Khallouf, I should tell you that I have ordered that you undergo a procedure, the taking from your mouth of a scraping so that a sufficient biological sample can be obtained and placed on the DNA data base.  If at the time that that request is made of you, you do not consent to the taking of a mouth scraping, which is not a painful procedure, the authorised member of the Police Force can use reasonable force to take from you a blood sample.  Do you understand?

54OFFENDER:  Yes.

55HIS HONOUR:  I will hand those orders down.  Are there any other ancillary orders.

56MR GRANT:  Just the pre-sentence detention, Your Honour.

57HIS HONOUR:  Yes.  I will declare that Mr Khallouf has undertaken 30 days by way of pre-sentence detention.  I will have that noted in the records of the court.  Thank you, gentlemen.

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