Director of Public Prosecutions v Khoja, Riyaz
[2012] VCC 1631
•19 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01374
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RIYAZ KHOJA |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2012 | |
DATE OF SENTENCE: | 19 October 2012 | |
CASE MAY BE CITED AS: | DPP v Khoja, Riyaz | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1631 | |
REASONS FOR SENTENCE
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Catchwords: one charge of culpable driving causing death; four charges of negligently causing serious injury; over-crowded car; excessive speed; alcohol consumption; accused suffering from post-traumatic stress disorder; evidence of remorse; sentenced to a term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 6 months; licence disqualification for 10 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G.A. Coghlan | |
| For the Accused | Mr M.D. Stanton |
HIS HONOUR:
1 Riyaz Khoja, on the evening of 16 November 2010 you went out with friends to celebrate your anticipated return to your homeland of India on the following day. Over a number of hours you socialised and drank. At between 1.30 and 2.30am on 17 November 2010 you and your five friends drove from Coburg Park to the Exford Hotel in the city. Having purchased beer at the Exford Hotel it was agreed that you would drive a friend’s Ford sedan back to your home with all six occupants.
2 As you left the city you began speeding, driving with only one hand on the steering wheel, and deliberately steering the car from side to side. Other occupants in the car were scared and told you to slow down and stop zigzagging. Their requests were ignored.
3 At about 2.40am the Ford was travelling north along Lygon Street, Brunswick about 100 metres prior to the intersection of Albion Street and at high speed when it lost control and veered off the road to the left. The car collided with a tram power pole and almost split in half. Your friend, Nihil Patel, was killed and Deepa Jagad, Saurabh Barad, Parth Patel and Pavan Bichal suffered serious injuries.
4 As a consequence, you have pleaded guilty to one charge of culpable driving causing death by gross negligence and four charges of negligently driving a car and causing serious injuries.
5 It is conceded that your culpability is marked by a combination of factors:
· Your driving of an overcrowded car containing six occupants, some of whom were not restrained by a seatbelt.
· Your driving when affected by alcohol. At the time of the collision it is estimated that you had a blood alcohol content of between 0.08 per cent and 0.108 per cent.
· Your driving in a dangerous manner by zigzagging with one hand on the steering wheel and your use of a handbrake while the vehicle was on tram tracks.
· Your driving at a high speed. It has been estimated that you were travelling at a minimum of 114 kilometres per hour before losing control of the car. The applicable speed zone was 60 kilometres per hour.
6 Nihil Patel was just 22 years old when he died. He was not wearing a seatbelt and took the full impact from the collision with the pole. He was found deceased on the road.
7 D is Mr Patel’s widow. She has provided a Victim Impact Statement which refers to the overwhelming loss she has suffered and her considering self-harm. She states:
"The effects of this crime will have such a deep and never-ending effect on my life which has emotionally scarred me forever. My future as a widow in my culture is like a sin and I may find myself on my own for the rest of my life.”
You will be haunted by her words for the rest of your life.
8 Deepa Jagad was 23 years of age and a friend at the time of the collision. She was taken to the Alfred Hospital and suffered back pain for a few days, together with a sore chest and minor scratches on her arms and a small cut on her ear.
9 Saurabh Barad was your housemate and aged 23. He was wearing a seatbelt and suffered superficial lacerations to his head, a deep laceration to the back of his right hand, pain to the right knee and a headache.
10 Parth Patel was a good friend. He was not wearing a seatbelt and suffered cuts to his face at the top and back of his head, right arm and his back. He also suffered from back pain.
11 Most seriously injured of the surviving passengers was Pavan Bichal. He was 23 years of age and your friend. He was not wearing a seatbelt and was asleep in the car when you drove from the city. He was found lying unconscious on the road and suffered head, back and rib injuries, a fractured pelvis and elbow and needed to have a small operation on his left wrist as a result of the collision.
12 Mr Bichal was treated at the Royal Melbourne Hospital from 17 November 2010 until his transfer to Epworth Camberwell for a period of acquired brain injury inpatient rehabilitation on 3 December 2010. He underwent a four week intensive stay at that institution. He undertook outpatient physiotherapy for six months after discharge and has suffered from cognitive difficulties including mood disturbance and visual hallucinations. The impact of the accident has delayed Mr Bichal’s completion of his studies and longer term plans to stay in Australia.
13 At the time of the collision you were wearing a seatbelt and received very minor injuries. An ambulance paramedic examined you and you said, “I want to die. I should be the one who’s dead”. You said, “They told me to slow down”.
14 You were formally interviewed on 18 November 2010 and you minimised your culpability. You said that the car had a problem with its brakes when you drove on the tram tracks and that when you braked, the car was travelling at about 60 or 70 kilometres per hour. In fact, the Ford had been inspected six weeks before the collision and no mechanical defects were found.
15 Subsequently you pleaded guilty at a relatively early stage of proceedings, although for reasons that need not be detailed, the hearing of the plea was not conducted for a considerable time.
16 You have admitted past driving offences. On 15 September 2009 you lost your licence for three months, having accumulated 12 demerit points over some 22 months. The most significant infringement arose from your driving at a speed of 25 kilometres per hour in excess of the speed limit on 6 June 2009. You later drove whilst your authorisation was suspended but that breach was not heard until 15 August 2011 when you appeared at the Melbourne Magistrates’ Court and placed on a six months’ Community Based Order.
17 At the time of your offending you were 24 years old. You are now 26.
18 You are of Muslim Shia background, having been born and raised in Gujarat Province in Eastern India. You were brought up in a traditional home. Your parents were hardworking and ran a small guesthouse which struggled to be economically viable. Your father died in 2009 of a heart attack. You have three sisters, the eldest of whom is living in Thomastown, Melbourne. A second sister lives in the United Kingdom, and a third in Africa. You attended a local private school at Vapi until the age of 17. You then attended a local college and completed a Bachelor of Commerce Degree. During your studies you assisted in the family business. At the age of 20 you came to Australia and lived with your sister. Your parents funded your travel to Australia by taking a loan. In Australia you have studied and worked in a variety of jobs including within the hospitality industry, and as a taxi driver. It is apparent that you worked hard and for long hours in Melbourne as a taxi driver for some two years. You also completed a hospitality course at TAFE. After your father’s death you returned to India before coming back to Australia in March 2010. Your mother was in Australia to be present at the birth of your sister’s child at the time you offended. On the day of the accident you were intending to return to India on an indefinite basis to assist your family in running the guest house.
19 On 16 April 2012 your own fiancée was seriously injured in a car accident in Gujarat. She is aged 26 and has undergone major surgery for lower limb and pelvic injuries.
20 On the plea in mitigation it was submitted that there was very strong evidence of genuine contrition and remorse on your part which reflects insight and understanding as to the harm you have caused.
21 A report dated 1 October 2012 was tendered, written by Rebecca Sullivan, psychologist. Ms Sullivan supplemented that report with oral evidence. She confirmed that you have attended 19 counselling sessions with her which commenced in January 2012. She expressed the opinion that you present with symptoms consistent with DSM-IV criteria for post-traumatic stress disorder. Ms Sullivan considers that you will have significant difficulties coping with confinement, and that incarceration is likely to lead to an exacerbation of symptoms and a high risk of self-harm. She notes that you have insight into the impact of your offending, that you express remorse, and speak about your strong desire to help others and make a positive contribution to society in the future.
22 A further report was tendered from Mr Ian Joblin, forensic psychologist, dated 2 March 2012 which was augmented by viva voce evidence. Mr Joblin interviewed you on 2 March 2012, being some 17 months after the accident. He noted that at the time of his interview you were extremely distressed and tearful. You reported that since the accident you have changed from being a happy outgoing person to one who is withdrawn and isolated, and who spends the bulk of the day sitting in a room at your sister’s house ruminating over what has happened. You stated that you can still hear the screams of those involved in the accident. Mr Joblin notes that you suffer from isolation, you feel worthless and useless, have an inability to sleep, and consider that you are a burden on your sister. He expresses the opinion that you do have an awareness of the consequences of your driving which includes appreciation of what you have done to those who were in your car, and extends to your letting down your own family.
23 Mr Joblin considers that you have an acute stress disorder which has emerged since the accident, and which is consistent with a current diagnosis of post-traumatic stress disorder. That disorder has been exacerbated as your inevitable incarceration looms closer.
24 In my view, your response is best categorised as a combination of shame and fear. It encompasses both an appreciation of how you have hurt the victims and your own family and includes the elements of uncertainty until sentence is imposed, and your fear of gaol.
25 It was submitted that both general and specific deterrence should be moderated or eliminated as a sentencing consideration because of the degree to which you currently suffer from an acute stress disorder. In my view, the nature and severity of the symptoms which Ms Sullivan and Mr Joblin have identified are more appropriately considered when assessing the burdensome nature of a term of imprisonment upon you rather than reflecting impaired mental functioning. This case is very different from Chien Trong Tran v The Queen [2012] VSCA 110 which was cited in argument. In that case the appellant had an acquired brain injury which caused him to function at a very low level and which was unlikely to improve. In your case the diagnosis of acute stress disorder is recent and closely attached to your scheduled court appearances. Your longer term prognosis is not known.
26 Your mother, your sister and other friends have written references which attest to the guilt that you feel.
27 I invited the prosecution to advance a sentencing range and, upon instructions, the prosecutor submitted that a head sentence of between 10 and 12 years’ imprisonment with a non-parole period of between seven to nine years was appropriate. As I indicated in court, in my view, the range is discordant with current sentencing practice and is an invitation to error. It would mean that in the absence of guilty pleas a head sentence of between 13 and 15 years imprisonment would be apposite.
28 The most recent sentencing snapshot for the offence of culpable driving causing death was published in May 2011. Over the period between 2005/06 and 2009/10, the average sentence of imprisonment imposed for culpable driving causing death varied between five years and two months to six years and two months.
29 It is not in dispute that the offending before this court is a serious example of the offence of culpable driving and demands the imposition of a significant term of imprisonment. In considering the length of that term I have reviewed a number of cases determined by the Court of Appeal, and which feature several aggravating factors that characterise your offending. All the cases, save for the last to which reference is made, involved guilty pleas.
30 In Brayshaw v R [2011] VSCA 233, the appellant was driving at 122 kilometres per hour in a 70 kilometre per hour zone, was under the influence of methylamphetamine, had prior convictions for drink driving and other traffic offences, had a history of drug abuse but a solid work history, and there was evidence of remorse. There was one fatality and one passenger sustained serious injuries. He was sentenced to nine years’ imprisonment with a non-parole period of six years and six months.
31 In Mok v R [2011] VSCA 38, the appellant was driving in the inner city at 125 kilometres per hour in a 60 kilometres per hour zone. He had a blood alcohol concentration of between 0.18 per cent and 0.195 per cent, a prior conviction for drink driving and was, at the time, subject to a zero blood alcohol restriction on his licence. One passenger was killed and one suffered serious injuries. The court accepted that the appellant showed genuine remorse and was suffering from post-traumatic stress disorder. He was sentenced to a term of seven years and three months’ imprisonment with a non-parole period of four years and four months.
32 In R v Franklin [2009] VSCA 77, the appellant had a probable blood alcohol concentration of between 0.117 per cent and 0.182 per cent, had been advised not to drive and was driving erratically, revving the engine and doing burn-outs. He struck four pedestrians, two of whom died, and one suffered long-term injuries. The appellant had no significant criminal history and showed genuine remorse. He was sentenced to a term of imprisonment of nine years and nine months with a non-parole period of five years and six months.
33 In R v Williamson [2009] VSCA 21, the appellant had a likely blood alcohol concentration of between 0.143 per cent and 0.176 per cent. He had twice refused offers by his passengers to let them drive and was driving at 170 kilometres per hour in a 100 kilometre per hour zone. One passenger was killed and another seriously injured. He had a previous conviction for unlicensed driving but displayed remorse and suffered from post-traumatic stress disorder. He was sentenced to nine years’ imprisonment with a non-parole period of six years and six months.
34 In R v Cowden [2006] VSCA 220, the appellant was driving at 108 kilometres per hour in a 70 kilometres per hour zone. He had been intentionally driving dangerously, drifting to the other side of the road and doing burn-outs. He had a probable blood alcohol concentration of between 0.059 per cent and 0.071 per cent at the time of the collision. Two passengers were killed and a third suffered life-threatening injuries. He had a dysfunctional childhood and psychiatric disorders. The sentence imposed was nine years’ imprisonment with a non-parole period of six years.
35 In R v Yusuf [2006] VSCA 178, the appellant was sentenced following trial to seven years’ imprisonment with a non-parole period of four years and six months. He had been drinking alcohol and was driving dangerously and collided with a pole whilst travelling at a minimum speed of about 96 kilometres per hour. One passenger was killed and another seriously injured. The accused was unlicensed at the time and showed no remorse.
36 Each case must be considered on its own merits and on its own particular facts. Sentencing cannot be reduced to an arithmetical exercise in a forlorn attempt to compare like with like. However in my view, the cases that I have cited and which contain some common features with your offending, do not support the imposition of a sentence within the range proffered by the prosecution.
37 There are several factors which must mitigate the sentence to be imposed upon you. You have pleaded guilty. I consider that the pleas which you have entered do reflect genuine remorse, as well as having utilitarian benefits. You are relatively young, although, unfortunately, all too many cases of culpable driving involve young, impetuous men taking unacceptable risks. I accept that prison will be particularly burdensome for you. You will be isolated from your family, removed from your homeland and it is uncertain when or if your depression will lift. I accept that you will experience your isolation keenly, all the more because you will feel responsible for not being able to assist your family.
38 In my view, it is appropriate in this case to impose an aggregate sentence recognising that the five victims all suffered from your one act of driving. The principle of totality must shape the ultimate aggregate sentence to be imposed upon you.
39 General deterrence and, to a lesser degree, specific deterrence are salient sentencing considerations. Hardened judges of this court are still shaken by the shocking consequences of dangerous and irresponsible driving. You did not intend to kill or hurt any of your friends but that is what you have done and you will have to live with that for the rest of your life.
40 On the charge of culpable driving causing death and the four charges of negligently causing serious injury, you are sentenced to an aggregate term of imprisonment of eight years and six months. I set a non-parole period of five years and six months.
41 Sometimes the formal declaration of a term of imprisonment hides the lived reality. The non-parole period that I have imposed can be likened to being jailed for almost the entirety of your secondary years of school or the equivalent of not seeing a child for the first five and a half years of its life. Of course, nothing will compensate for the loss of a life but you will have to serve a lengthy term of imprisonment and the substance of that term should not be masked.
42 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have already served 17 days of the sentence that I have just imposed upon you and that this be noted in the records of the court.
43 I make an order cancelling all driver licences held by you and you are disqualified from obtaining a further licence or permit for 10 years.
44 Pursuant to s.6AAA of the Sentencing Act I indicate that but for the pleas of guilty you would have been sentenced to a term of imprisonment of 11 years and six months with a non-parole period of 9 years.
45 Ms Coghlan, Mr Stanton, does anything arise from that?
46 MS COGHLAN: No Your Honour.
47 MR STANTON: No Your Honour.
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