Director of Public Prosecutions v Mahmood
[2021] VCC 997
•23 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00633
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAYYEB MAHMOOD |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2021 | |
DATE OF SENTENCE: | 23 November 2021 | |
CASE MAY BE CITED AS: | DPP v Mahmood | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 997 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – one charge dangerous driving causing death – one charge dangerous driving causing serious injury – prior good character – delay - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991
Cases Cited:Adem Arpaci v The Queen [2020] VSCA 81; Bell v The Queen [2018] VSCA 281; Doherty v The Queen [2017] VSCA 215; DPP v Neethling 22 VR 466; Loftus v The Queen [2019] VSCA 24; R v Skura [2004] VSCA 53; Stephens v The Queen [2016] VSCA 121.
Sentence: Total effective sentence of 2 years and 9 months’ imprisonment with a minimum non-parole period of 18 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Greg Thomas Barrister & Solicitor |
HER HONOUR:
Introduction
1On 11 September 2018 Mr and Mrs Devisser, aged 85 and 80 years old respectively, called a taxi to take them to the shops to buy a birthday present for Mrs Devisser. After picking them up just before 11 am, the taxi driver attempted to do a U-turn on the street outside their house, this required him to cross an unbroken line down the middle of the road. While he contemplated the U-turn, a truck was driving towards him in his direction of travel. The taxi driver saw it but failed to properly calculate its speed and distance from him. He started the U-turn. The truck was unable to avoid the taxi. Mrs Devisser died from her injuries in the early afternoon. Mr Devisser suffered a range of injuries including spinal fractures and a minor traumatic brain injury. The truck driver and taxi driver were essentially unharmed.
Pleas of guilty and maximum penalties
2Tayyeb Mahmoud, you have pleaded guilty to one charge of dangerous driving causing death, the maximum penalty for which is 10 years’ imprisonment, and one charge of dangerous driving causing serious injury, the maximum penalty for which is 5 years’ imprisonment.
Circumstances of the offending
3The circumstances of your offending are summarised in the Prosecution Opening dated 3 November 2021 which was tendered and became Exhibit D on the Plea. That document forms part of, and is attached to, these reasons; I will not repeat all those facts here, but refer to just some of what happened.
4At the time of these offences, you were the holder of a full Victorian Driver’s Licence. You were also the registered owner of a Toyota Camry sedan, which you drove as a taxi.
5On 11 September 2018 the Devissers were your first passengers of the day. Audrey Devisser was 80 years old at the time of the accident and her husband Walwin Devisser was 85 years old. They had been married for 59 years. They were travelling to Springvale to buy a birthday present.
6The collision occurred outside a block of units where Mr and Mrs Devisser lived in Clayton South. The surrounding area consists of homes and businesses.
7Clayton Road is a single, undivided, flat, bitumen road, running north to south. There are two lanes in each direction, each lane separated by broken white lines, but the centre of the road is marked by a solid white line.
8The speed limit in the area is 60 kilometres per hour.
9At about 10.40am you arrived at the Devissers’ unit and drove your taxi up the driveway running alongside the units.
10The Devissers got into your taxi. Mr Devisser sat in the front passenger seat and Mrs Devisser sat behind him.
11You reversed out of the driveway of the units to re-enter Clayton Road in reverse; it was put that this act, which required you to back into traffic, was unnecessarily risky, because there was driveway space for you to turn around to re-enter traffic facing forwards.
12You then paused in the furthest left of the north facing lanes, with your car partly straddling the driveway. You waited in that position for about 10 seconds. At some stage during that wait, you made the decision to do a U-turn. To do this, you would have to cross the two north bound lanes and cross the unbroken white line in the centre of the road, in order to drive south.
13While you waited on the side of the road, Dennis Smith was driving his large tipper truck north in the right hand of the two northbound lanes. You saw this truck but misjudged its speed and distance from you; you attempted the U-turn in the path of Mr Smith’s truck, which was travelling at approximately 64 k/p/h. The truck veered to the right but struck your taxi on the driver’s side of the car. This can be seen on CCTV footage later taken from a business across the road. There is also footage from the internal security camera in the taxi from before, during, and after the collision.
14Emergency services arrived, as well as people from the local area. Mr and Mrs Devisser were treated at the scene and taken by ambulance to the Alfred Hospital.
15Mrs Devisser's condition deteriorated and she died at 12.42pm. A post-mortem examination found that Mrs Devisser’s death was caused by multiple injuries sustained as a result of the collision. This constitutes Charge 1: dangerous driving causing death.
16Mr Devisser suffered the following injuries
· a minor intracerebral haemorrhage/traumatic brain injury;
· severe right chest wall injuries, including two rib fractures and a small pneumothorax;
· a left fibula ankle fracture; and
· L/12 transverse process fractures in his lumbar spine.
17On 21 September 2018 Mr Devisser was discharged from the Alfred and admitted to another hospital where he underwent inpatient rehabilitation. On 16 October 2018 he was discharged, and his rehabilitation continued through outpatient services. This constitutes Charge 2: dangerous driving causing serious injury.
18Mr Smith was uninjured.
19You suffered minor injuries, consisting of small cuts and abrasions over your arms and torso. You were also taken by ambulance to the Alfred and discharged on 15 September 2018.
Record of Interview
20On 18 September 2018 you attended the Dandenong Police Station by arrangement with police. You took part in an interview and admitted to attempting the U-Turn, in circumstances when it was not permissible to do so. When answering questions, you said:
“Yeah, I think it’s – it is my fault, the accident … yeah, I know.”[1]
[1] Record of Interview Answer to question 185 (page 140 of the depositions).
Procedural History
21I pause here to note the procedural history of your case. As I’ve said, this collision happened on 11 September 2018 and a committal conducted on 2 April 2019. Three witnesses were cross examined; two police and one civilian, though I note that Mr Devisser was not among them. You were committed to stand trial in this Court that day. There were procedural hearings at the beginning of 2020 but a trial due to commence on 13 July 2020 was vacated in the context of the pandemic. It was not until 15 and 26 April 2021 that your case was back in Court, this time for a sentence indication hearing. By 13 July 2021, your case resolved to these pleas of guilty. Further delay unfolded in the circumstances of Covid -19 lockdowns, and the plea hearing was finally conducted on 4 November 2021, over three years after the accident. I will return to the legal significance of this delay later in these reasons.
Prior criminal history
22You come before the court as a 33-year-old man with no prior convictions. On your plea, your counsel tendered evidence from your country of birth, Pakistan, which establishes that you have no prior criminal history in that country either. It was put on your plea that you have, until the date of your offending, lived a blameless and unimpeachable life. In reply to this submission, the prosecution tendered a ‘demerit point extract’[2] and a ‘PINS’[3] record which show that between 2013 and 2017 you accrued 23 demerit points in the course of the commission of eight driving offences, committed in the course of your work as a taxi driver. In her submissions, the prosecutor said that ordinarily offending at this level is not alleged, but it is put before the Court in this case as some context for the submission about your blameless history. I make it clear that I do not treat these matters as prior convictions, and I find they are of very limited relevance. The prosecutor submitted, and I accept, that the existence of those minor driving offences might qualify, to some very limited extent, how I understand the submission that you come before the court with an ‘unblemished history.’ But it is clear that you are, and will be sentenced as, a person of prior good character.
[2] VicRoads Complete Demerit Point Extract dated 3 November 2021.
[3] LEAP- VicRoads PINS History dated 3 November 2021.
Nature and gravity of the offending: Culpability and Degree of Responsibility
23I will now address the nature and gravity of your offending, your culpability, and your degree of responsibility.
24The prosecution case on the dangerousness of the driving required for each charge is brought on the basis that you:
· attempted to perform an illegal U-turn across a continuous single dividing line; and
· failed to properly check whether there was oncoming traffic before attempting the U-turn, in circumstances where a large truck was a short distance away and clearly visible to you; and
· drove your car into the path of that oncoming truck and caused the collision.
25I note that the prosecutor did not press the inclusion of the decision to reverse onto Clayton Road (instead of using the driveway to enter the traffic forwards) as part of my assessment of the dangerousness of this driving. I have set those matters aside. Nor did defence counsel attempt to make anything of the fact that Mr Smith was travelling approximately 4 km over the speed limit of 60 kph.
26Other matters that were advanced as relevant to my assessment of the gravity of the offending are :
· driving the taxi over two lanes of traffic while attempting to undertake the U‑turn; and
· placing the truck driver at risk; and
· because the road was relatively busy at the time, placing a range of other road users at risk.
27I have reviewed the footage from the business across the road from the accident contained in Exhibit A. It shows your taxi reversing out of the driveway and pausing between approximately 11.39.58 until 11.40.10[4] at which point your taxi commences the U-turn. This time, when you paused in advance of attempting the U-turn, was the subject of submissions from both prosecution and defence. Your lawyer submitted that it is not possible to determine when during that period you made the decision to make the illegal U-turn, suggesting perhaps that you made the decision late in that period and it was a momentary, completely unpremeditated decision. The prosecutor submitted that there was some premeditation of the decision to turn across the lanes of traffic, within a range of approximately 10 seconds.
[4] I infer that these times on the CCTV are one hour later than the true time.
28Having reviewed the footage, it appears to me that the only reason to wait on the side of the road where you did was to allow for all four lanes of traffic to be clear before attempting the U-turn. So it appears to me that the decision to do the U-turn was made at some point fairly early on in that timeframe and the rest of the time you were waiting for the opportunity. Which, in any event, is a matter of seconds, some time less than 10 seconds, where you might have made a decision to do something differently.
29It is clear that many of the indicia present in some forms of dangerous driving were absent in your case: you were not speeding, intoxicated, driving aggressively or competitively nor avoiding police pursuit nor were you sleep deprived.[5] You were not using your mobile phone.
[5]DPP v Neethling 22 VR 466 at [31].
30Your lawyer described your driving as ‘a brief lapse of judgment’ and ‘not a premeditated manoeuvre’. But Mr Mahmood, you were carrying passengers to whom you owed a duty and a responsibility to care for their safety and wellbeing.[6] You failed to properly attend to the speed and distance of the truck driving towards you. That failure arose in the context of your undertaking an unlawful U-turn across an undivided white line.
[6]Adem Arpaci v The Queen [2020] VSCA 81.
31The fact that you failed to read the oncoming truck’s speed and distance is compounded by the fact that you were simultaneously undertaking an unlawful driving manoeuvre. This is not a case of momentary inattention in its purest form.[7]
[7]Bell v The Queen [2018] VSCA 281.
32Your driving caused both fatal and serious injuries. You put other road users, such as Mr Smith the truck driver, and other passing cars on a relatively busy thoroughfare at risk. You put yourself at risk.[8] Considering all these features of your driving, I must conclude that this is not offending at the lowest possible end of the spectrum, nor is it though, by reference to the matters not present that I have already identified, in the higher ranges of dangerous driving.
[8]Stephens v The Queen [2016] VSCA 121, [20].
Personal circumstances
33You are now 33 years old. You committed these offences when you were 30 years old.
34It was accepted by the Prosecution that you are a man with a successful and responsible family life and have a good work history. You were a taxi driver at the time of the offending; you lived only 500 meters from the scene of the collision.
35You are a citizen of Pakistan. You were born in Mandi Bahauddin, a province in the Pakistani part of the Punjab, about 162 km from the capital Islamabad. Your mother and father remain in Pakistan; your father has a government job and the family’s life is comparatively comfortable. You have eight sisters between the ages of 19 to 35, all of whom live in Pakistan.
36In Pakistan you completed 12 years of school education and then commenced a Bachelor of Arts in Gujrat. You left tertiary study to join the Punjabi police force; you served for two years and became disaffected by the breadth of corruption you saw there. You came to Australia in 2012 on a combined student visa/spousal visa with your first wife. That marriage dissolved and you later met your current wife Javeria, back in your hometown in Pakistan. You married Javeria in 2014, came to Australia and the relationship has been immensely successful. You are now parents of two children Subhan (6 years) and Bilal (4 years).
37Your time in Australia has been characterised by consistent hard work and study. Evidence of a wide range of educational and vocational achievements were tendered on your plea. You started working in a car wash, got your taxi driver’s licence and volunteered at the Bonfire Café Pakistani restaurant in Springvale. You have gone on to complete courses in hospitality management, English, and business.
38You now live with your wife and sons in rented accommodation in Hoppers Crossing.
Impact on victims
39I must have regard to the impacts on the victims of your offending. The Devisser family elected not to write any victim impact statements. But even so, I must take into account the impact of the offending on them. Mrs Devisser lost her life in traumatic circumstances. Mr Devisser lost his wife of 59 years. He has spent a long time recovering from his injuries while in his grief. I am sure that he has suffered enormously. Mr and Mrs Devisser lost the chance of seeing out their later years together in peaceful good health. Their family (children, grandchildren, and great grandchild) have felt the strain not only of their loss but also the practical reality of caring for Mr Devisser in his recovery. I bear all these things in mind in arriving at your sentence.
40On the plea, it was submitted by the prosecutor that the Devisser family have arrived at a position of forgiveness of you, Mr Mahmoud. Sometimes such expressions may lead to matters that might mitigate sentence, such as forgiveness supporting rehabilitation or that forgiveness might lead to an assessment that there were no or reduced ongoing consequences for the victims. [9] No such submissions were made here, nor could there have been. The fact that the Devisser family has been able to arrive at this position simply establishes their fortitude and kindness; without, in the circumstances of this case, any legal consequences for this sentence.
[9]R v Skura [2004] VSCA 53 [48]; Doherty v The Queen [2017] VSCA 215 at [39] and following.
Matters in Mitigation
Plea of guilty
41You entered a plea of guilty to these charges and by doing so saved the community, but most importantly, the witnesses, from the costs, both human and financial, of conducting a trial. At any time this acceptance of responsibility commands me to impose a much lower sentence than if you had been found guilty after trial. However, at this time, while this jurisdiction is burdened with an unprecedented backlog of cases on account of jury trials having been paused on and off for the last 18 months, authority now makes it clear that an additional actual and palpable discount of sentence is to be imposed on sentences for people pleading guilty at this time.
42Further, you went through the sentence indication process, when it was indicated that a term of imprisonment to be served immediately would be imposed, you instructed your lawyers that you would plead guilty, nevertheless. Moreover, in those circumstances, that is, knowing that you would be taken into custody very soon, there were further delays as hearings were adjourned in the context of further lockdowns in the health emergency. I take all that into account too.
43Originally, I was going to sentence you on 17 November 2021. However, because your bail was revoked at the plea hearing, you were still serving your quarantine period in custody on that day and my chambers was advised that no video link could be arranged. As a result, there was a further delay in my delivering this sentence - adding to the already lengthy period of uncertainty for you. I take this into account too.
Character references
44I have already mentioned your previous good character. This was also attested to by several character references whose letters were tendered on your plea and who speak of you as being ‘reliable, honest, hardworking, and down to earth’.
45You’re clearly a hard-working and enterprising person. You are enrolled in a diploma of business course, a diploma of hospitality management, and certificates in commercial cookery.
46You are described in one of the references as a wonderful employee possessing confidence, technical skill, reliability and trustworthiness, among other qualities. You come from a good family where no one has been in trouble with the criminal law. You do not use alcohol or drugs. You are a practicing Muslim.
Psychological Material
47On your plea, your lawyer tendered a psychological report authored by Ms Gina Cidoni.[10]
[10] Exhibit 2.
48In Ms Cidoni’s opinion you currently suffer from an ‘Adjustment Disorder and comorbid depressed mood’, a ‘condition tied to acute and chronic stress’. It was submitted, and I accept, that ‘all of Mr Mahmood’s current psychological symptoms flow inexorably from the impact that the collision has had upon his psyche’.[11]
[11] See Exhibit 2 at [37].
49I accept that you feel profound and genuine remorse for what you did, and that the grief and self-blame you experience have haunted you daily and will be there for some time to come. In some cases, the forgiveness of victims allows a court to make certain findings about rehabilitation. However, I expect the forgiveness of the Devisser family is probably not to be applied in this way in your case given there was no past or future relationship between you. I expect that most of your suffering is now self-imposed. However, I do find that you have very good prospects for rehabilitation, excellent really, and are most unlikely to come before a court again.
Burden on family
50You have worried about the impact of your absence due to incarceration upon your wife and children.
51Your wife speaks very little English and does not work. You are the sole breadwinner and have the responsibility for banking and managing your children’s schooling. Your entire extended family is in Pakistan and there is no social support for your wife and children here. All these features will make your imprisonment weigh more heavily upon you.
52Currently, protective quarantine and other restrictive conditions persist in the custodial environment. Although Victoria is now emerging from a time of heavy restrictions, the transition to ‘living with Covid’ is still tentative and incomplete. The anxieties and inconveniences of this time persist. It is to be expected that at least in the short term your ability to have in-person visits with your children will be, at best, in doubt. Your access to work, space, education, and other normal entitlements in custody is very likely to be reduced. It was submitted, and I accept, that the Court should take into account this additional stress for you.
Migration status and consequences
53You are now living in Australia on a bridging visa.[12] Your hope for making a life in Australia appears now to be forlorn. Offending leading to a ‘substantial criminal record’ as defined in the Migration Act 1958 will engage the provisions requiring your deportation. Although the system includes provision for challenge to any such decision, you are, at best, going to be subjected to the cancellation process with all its uncertainty, and at worst you will be deported. I won’t speculate about how your migration case will conclude.
[12] Exhibit 11.
54What I do know is that these consequences will mean the loss of your certainty of making a life in Australia, as well as the additional burden you will carry during your imprisonment of the worry about it, and how it will affect your young family.
55Obviously, I must not artificially depress the sentence by reference to the possible migration consequences for you and your family,[13] but I will take into account those additional burdens of worry about it that you will have to endure while serving sentence.
[13]Loftus v The Queen [2019] VSCA 24 at [81].
Delay
56I have already referred to some of the chronology in your case. The collision happened over three years ago. I accept that for that whole time, you have been thinking about not only the consequences for your family but in a state of uncertainty and no doubt dread about the consequences for you. This aspect of the delay constitutes an additional punishment and I take it into account. Moreover, the fact that you have been in the community for three years working, studying, and raising your family is demonstrative of your excellent prospects for, and achievement of, rehabilitation.
General deterrence, specific deterrence, just punishment and community protection
57I must impose a sentence that punishes you for what you did and that denounces your offending, but general deterrence is the principal sentencing consideration in dangerous driving cases. I must give that principle considerable weight even where matters in mitigation, such as good character, pull strongly in the other direction, as they do here. The authorities are clear: a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. I add that I regard the role for specific deterrence to be of minimal importance, or even absent in this case.
Totality, Concurrency and Cumulation
58I have had regard to the principle of totality in arriving at your sentence. Your barrister urged me to impose two sentences that are wholly concurrent, however I must recognise the two separate victims with some degree of cumulation.
Regard to current sentencing practices
59I have had regard to current sentencing practices in this area. Helpfully, I was provided with a range of cases that involve dangerous driving causing death. These cases do not define the range, but I’ve had regard to them and other cases in this area, and I sentence you in the landscape.
60Mr Mahmood, I am now coming to the part of the sentence where I will tell you the actual numbers.
Disposition
61On Charge 1: dangerous driving causing death, you are convicted and sentenced to two years’ and four months’ imprisonment.
62On Charge 2: dangerous driving causing serious injury, you are convicted and sentenced to 12 months’ imprisonment.
63Five months of the sentence on charge 2 will be served cumulatively on the sentence on charge one, making a total effective sentence of 2 years’ and nine months.
64I direct that you are to serve a minimum of 18 months before becoming eligible for parole.
Pre-sentence detention
65Pursuant to s 18 of the Sentencing Act, I declare that you have already served 19 days as part of this sentence, to be deducted administratively.
Section 6AAA reduction
66Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that, had you not pleaded guilty, but been found guilty after a trial, I would have sentenced you to a total effective sentence of three years and eleven months’ imprisonment with a minimum non-parole period of two years and four months .
Ancillary orders
67Your licence is cancelled, and you are disqualified from driving for a period of 18 months.
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