Director of Public Prosecutions v Khan

[2022] VCC 1542

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00096

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUHAMMAD KHAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2022
DATE OF SENTENCE:	16 September 2022
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2022] VCC 1542

REASONS FOR SENTENCE

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Subject: dangerous driving causing serious injury.

Sentence: 2 and ½ years imprisonment with a non parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Kathryn Hamill
For the Accused	Campbell Thomson Tim Sackville

HIS HONOUR:

1After a short trial you have been convicted by a jury of one charge of dangerous driving causing serious injury.  The maximum penalty for this offence is imprisonment for five (5) years. 

2Although you cannot be penalised for having pleaded not guilty, at the same time you cannot expect to receive a reduction in sentence which would normally follow had you pleaded guilty to the charge. 

3The following facts must be assumed to have been accepted by the jury.  In my judgement they were clearly made out by the evidence.

4On Monday 5 August 2019 at about 1.40 am a collision occurred at the intersection of Bell Street and Albert Street in Preston between a silver grey Ford Falcon motor vehicle, being driven by you, and a truck being driven by one Frank Tripodi. ('the collision')

5The intersection is a controlled intersection, controlled by traffic lights.  Bell Street runs in approximately an east/west direction and Albert Street in approximately a north/south direction.  There are multiple lanes for vehicular traffic in either direction.  Both streets have a 60 kilometre per hour speed limit.  At the time of the collision traffic in each direction was light.

6Your vehicle was travelling east and the truck being driven by Mr Tripodi was travelling north.  It was common ground that your vehicle entered the intersection at a speed between 59 and 65 kilometres per hour when it collided with the truck in the east bound lanes of traffic travelling east along Bell Street.

7The collision was caused because you entered the intersection against a red light.  The prosecution case, which was supported by the evidence from a number of witnesses, was that you entered the intersection against a red light that had been red for some time.  The prosecution case that you entered the intersection against a red light that had been red for some time could only be inferred from the CCTV footage that was tendered in evidence, and from the fact that the truck driven by Mr Tripodi had entered the intersection in accordance with a green light without having to stop, and had time to travel about two thirds of the way through the intersection before the car being driven by you attempted to cut across his path, resulting in impact.

8You gave evidence and a formal record of interview conducted with you in the hours after the collision was also tendered in evidence.  When interviewed I accept you did your best to assist police and you were fully cooperative with them.  When interviewed you could not remember the colour of the traffic light upon entering the intersection.

9When you gave evidence, you told the jury you entered the intersection on a green or red light.  You denied it was a red light.  The jury was right to reject your evidence.  Your evidence was contrary to the evidence of Mr Tripodi, who was adamant he entered the intersection on a green light.  Your evidence was also contrary to the evidence of Mr Evans and Mr Chopra, each of whom may be properly described as completely independent witnesses. 

10Ms Wahi was your girlfriend at the time.  In many ways her evidence was unsatisfactory, but even she said you entered the intersection when the light facing you was orange or red but not green.

11Your evidence was contrary to the inferences that the prosecution properly sought to be drawn from the CCTV footage, especially from Alepat Taylor, namely that the light facing you had been red for some time.  The prosecution went to the jury submitting the light facing you had been red for some 19 seconds.  The jury may well have accepted this submission and it would have been well justified in doing so.  In sentencing you I accept that you entered the intersection travelling at between 59 and 65 kilometres per hour against a red light that had been red facing your direction of traffic for some time.  When you entered the intersection at the last second you attempted to drive around the path of the truck when the collision occurred.

12There was no issue in the trial that the impact of the collision caused serious injury to your young friend Jamil Kiani who was a rear seat passenger seated behind you in your car.  He suffered from a severe brain injury as a result of blunt force trauma to the head which had the potential to be life threatening.  Although he has survived, the injuries he suffered have been life changing and he will never make a full recovery to his pre-collision state.  He will likely remain unable to speak, move his body, swallow, eat or be in control of his bladder and bowels for the rest of his life.  The full extent of his injuries sustained in the collision are set out in an admission of fact that was tendered in evidence at trial as Exhibit H.  Jamil Kiani is a native of Pakistan and he has no relatives in Australia.

13On the evening of the collision you had been to the movies with friends, and at the time of the collision you were heading home to your home in nearby Bellfield.  There was no suggestion you had been drinking or that you were drug affected.  It was not suggested you were distracted by using a mobile phone.  Apart from Ms Wahi and Mr Kiani, there were two others in your car at the time of the collision.  One of those persons has returned to Pakistan and the other was asleep at the time of the collision.

14I received into evidence a victim impact statement from Mr Tripodi who still suffers mentally from this collision and its consequences.  Such an impact is not uncommon in this kind of offending.  In passing sentence, I have taken the victim impact statement into account, as I must.

15In my judgement this was a serious example of this serious offence, falling about upper mid-range level.  By entering the intersection whilst travelling between 59 and 65 kilometres per hour you failed to comply with the direction of a traffic light that had been red for long enough to enable you to stop.  There was no evidence of you attempting to brake.  You either decided to drive through the intersection, and attempt to pass in front of the truck, or you failed to pay attention to the lights.  I do not accept the lights were green or yellow facing you at any relevant time immediately before the collision. 

16Your moral responsibility for this offending is high.  What you did has resulted in a young man, then aged only 24 years, being effectively robbed of any further meaningful life.  Whilst I accept that you have continued to visit your friend in hospital when you could because of Covid restrictions, and I accept that you are deeply saddened by the injuries inflicted to your friend, there is no evidence of any genuine remorse for your offending.

17Your counsel Mr Thomson submitted that the objective dangerousness of your driving which caused the collision was at the lower end of the scale.  I reject that submission which seemed to be predicated on an assumption it is impossible to say how long the light had been red before the collision.  You drove through a red light that had been red for some time and this was clearly evident from the evidence.

18On the plea you admitted some relevant previous driving offences.  In 2013 and 2015 you were dealt with in the Broadmeadows Magistrates' Court charged with exceed 60 kilometres per hour by 10 kilometres per hour or more but less than 25 kilometres per hour.  You were fined $289.  You were also dealt with for doing a U-turn across a single driving line.  You were fined $300 for this.  In August 2015 you were dealt with in the Melbourne Magistrates' Court for disobeying a traffic control signal.  You were fined $369.

19In sentencing for offending of this kind the Court must have proper regard to the sentencing principles of deterrence (both general and specific), denunciation, just punishment and your prospects for rehabilitation, which in your case I assess as being reasonably good.

20I turn to some matters personal to you. Your counsel Mr Thomson filed a written outline of his submissions which I marked as Exhibit 1 on the plea.

21You are aged 37, and you were aged 34 at the time of the collision.  You hail from Pakistan and you were born in Islamabad.  You have three older siblings.  You are private school educated in Rawalpindi to Year 10.  I was told and accept you did well academically and you were good at cricket. 

22After school you studied at Rawalpindi College of Intercomputer Sciences.  Your father had a successful business but it became insolvent whilst you were still studying and you had to leave school in Year 12 to go to work.  You worked with your father and another firm in sales until aged 22.  You later worked, again in sales, for a firm Calltech BPO, rising to the rank of team manager.

23In 2005 aged 21 you holidayed in the Swat Valley, a tourist destination east of the Pakistan border with Afghanistan.  I was told that whilst there you were taken hostage by the Taliban who sought to persuade you to join them so they could use your language and computer skills.  I was told and accept that you speak five languages.  You escaped the Taliban on this occasion.

24I was told that after this episode with the Taliban you went to Saudi Arabia and Dubai in order to escape the Taliban's attention.

25You then enrolled to do a business management course in Melbourne.  You undertook this course and after one year you went back to Islamabad to visit your parents.  I was told that on this trip you were again approached by the Taliban at gun point.  You had money with you which you used as a bribe to let you go.  The Taliban apparently said to you that they would see you again soon.  Three days later you flew back to Melbourne.

26When you came back to Melbourne you undertook a course in cooking for which you showed no aptitude.

27In 2013 your parents passed away.  You returned to Islamabad for their funerals.  I was told you decided it was unsafe for you to stay.  You returned to Australia and applied for refugee status.  Your application was refused, and you have appealed, and you await a decision from your appeal to the Commonwealth Administrative Appeals Tribunal.

28There was no documentary evidence put before me that relates to your claims to refugee status.  I was told and accept you remain in Australia on a bridging visa and your refugee status is yet to be determined.  I note you returned to Pakistan at least twice before your claim to refugee status had been finalised.

29I was told and accept that you feel awful for what happened to your friend, Jamil Kiani.  I accept you have shown appropriate concern and empathy for his plight but, as I said earlier, you have shown no remorse for what you did in causing the collision.

30I heard evidence from a friend Suzannah Rahmen who hails from Bangladesh.  You have been in a relationship with her for two years.  She gave evidence she has been in a car driven by you on more than one thousand times and she has never seen you break road rules. 

31Another witness, Assif Bassi, also gave evidence.  He has known you since mid-2011.  He also has travelled in a car with you many times and he said he also has never seen you break the road rules. 

32I don’t accept this evidence which in my view was an over statement in each case.  It is inconsistent with your prior driving convictions and the way that you drove your vehicle causing this collision. 

33Ms Rahmen also gave evidence of you having adopted a child in Pakistan, which child has always lived with your sister.  I found that evidence difficult to accept.

34Mr Bassi and another witness, Mr Anwar, both gave evidence of your excellent reputation in the local Pakistani community and how you have helped others.  I accept that evidence and I have taken it fully into account.

35Mr Thomson submitted there has been delay in finalising this matter not of your making and that you have suffered having this charge hanging over your head for longer than it should have.  I do not accept that there has been unacceptable delay here.  You have been on bail up until verdict.  Apart from anything else, it took many months before Mr Kiani's injuries stabilised.

36Mr Thomson submitted that in all the circumstances of this case I should impose a Community Corrections Order with onerous conditions.  He submitted that because of your immigration status, of being on a bridging visa whilst awaiting finalisation of your refugee status, it is highly likely that a custodial sentence would result in your deportation, where he submitted your life would be at risk.  I have misgivings about your claim to refugee status and have not been shown any documentary evidence to properly explain it.  I find it strange that you would return to Pakistan on at least two occasions after arriving in Australia if your life were indeed at risk. Nevertheless, I accept that the fact that you may be deported will be hanging over your head whilst you are serving a prison sentence for this offending and that will make your time served more burdensome for you.

37Alternatively, I understood Mr Thomson to submit that I should impose a Community Corrections Order in combination with a term of imprisonment.

38The prosecution submitted this was serious offending with few mitigatory factors.  It submitted I must impose a term of imprisonment and fix a non-parole period.

39I have set out the relevant sentencing principles that must be applied here.  Having given the matter considerable thought since the plea, I have concluded I must impose a term of imprisonment and fix a non-parole period.  In my judgement the sentencing principles applicable here, especially general deterrence, cannot be properly achieved by the making of a Community Corrections Order with onerous conditions or in combination with a term of imprisonment.

40On the charge of dangerous driving causing serious injury, you are convicted and sentenced to a term of imprisonment of two and a half years.

41I direct you serve a minimum term of 20 months imprisonment before being eligible for release on parole.

42I declare there has been 16 days pre-sentence detention of the sentence passed this day and direct that 16 days be reckoned as having been already served of the sentence passed this day and be entered into the records of the Court and deducted administratively.

43The offence of dangerous driving causing serious injury is a serious motor vehicle offence enlivening s.87P of the Sentencing Act 1991. Having convicted you of the charge I must cancel your licence to drive a motor vehicle that you may hold and disqualify you from obtaining another licence for a period of at least 18 months. Accordingly, any licence to drive a motor vehicle that you may hold is cancelled, and you are disqualified from obtaining another licence to drive a motor vehicle for a period of 18 months from this date.

44Now Mr Khan, the result of all that is that I have imposed a term of imprisonment of two and a half years and I have set a non-parole period of 20 months.

45I have just been told that Mr Sackville has joined this sentencing.  Are you there, Mr Sackville?

46MR SACKVILLE:  I am, Your Honour. My apologies.  My understanding was it was listed at 10 am.

47HIS HONOUR:  Well I do not know how that arose, but in any event we could not wait, we could not wait for you unfortunately, because of the link time with the prison.  Do you understand?

48MR SACKVILLE:  I understand, Your Honour.

49HIS HONOUR:  So I have explained that to Mr Khan and you will not have heard all of my sentencing remarks, but my associate will ensure that you get a copy once they have been revised.

50MR SACKVILLE:  I only advise as much as I mean no disrespect to the Court and Your Honour.

51HIS HONOUR:  Yes, thank you, Mr Sackville.  Ms Hamill, do you have any questions arising out of that?

52MS HAMILL:  No, Your Honour.

53HIS HONOUR:  Very well.  Thank you.  Could you adjourn the Court please.

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