Director of Public Prosecutions v Navaratnam

[2020] VCC 922

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02438
Indictment No: K11549669

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAVATHEEPAN NAVARATNAM

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF SENTENCE:	25 June 2020
CASE MAY BE CITED AS:	DPP v Navaratnam
MEDIUM NEUTRAL CITATION:	[2020] VCC 922

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Reckless Conduct Endangering Life; Exceed Prescribed Concentration of Alcohol within three hours of driving; offending comprised of driving at high speeds over an hour while intoxicated; first time offender; offender of Tamil ethnicity and witnessed conflict as a child; high moral culpability; good prospects of rehabilitation; general deterrence, just punishment & denunciation loom large
Legislation Cited: Road Safety Act 1986 (Vic); Crimes Act 1958 (Vic)[; Sentencing Act 1991 (Vic)
Cases Cited: Director of Public Prosecutions v Stead [2017] VCC 161; Director of Public Prosecutions v Tate [2017] VCC 415; Sadiq v the Queen [2017] VSCA 64; Lima Da Costa v the Queen [2016] VSCA 49; Hutchinson v the Queen [2015] VSCA 115.
Sentence: Two years imprisonment with non parole period of one year; $3000 fine on related summary charge; license cancelled and disqualified for two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Office of Public Prosecutions
For the Accused	Ms I. Skaburskis	Doogue and George

HER HONOUR:

Introduction

1Navatheepan Navaratnam, over the course of an hour in the early morning of 18 February 2019 you drove back and forth on the Western and Metropolitan Ring Road Melbourne, at dangerously high speeds.  You also drove through a red light on another road at more than twice the speed limit.   You did all this whilst intoxicated.  Your driving only came to a halt when you collided with the rear of another vehicle driving in the same direction on the Western Ring Road.  At that time you were travelling at 217 kph in a 40 kph zone.  A sample of your blood taken less than two hours later was found to contain more than five times the legal limit.

2You and the driver of the other vehicle, Gerald Grear, were conveyed to hospital.  Mr Grear suffered lower back and neck pain and was discharged the next day.  Your injuries were more severe.  You sustained fractures of your left upper arm, ribs and vertebrae, scalp lacerations, a small pneumothorax and post traumatic amnesia.    You spent 10 days in hospital and one month in a rehabilitation facility.

3On 14 June 2019 you attended Mill Park Police Station by appointment and elected to make a no comment interview.  Your licence was suspended by notice under the Road Safety Act 1986 (Vic) and you were charged and bailed. The matter resolved on 17 October 2019 and on 3 December 2019 you were committed by way of straight hand-up brief to this court.

4On 4 June 2020 you pleaded guilty before me to a single charge of reckless conduct endangering life contrary to s.22 of the Crimes Act 1958 (Vic) and a related summary offence of exceeding the prescribed concentration of alcohol within three hours of driving contrary to s.49(2A(b) of the Road Safety Act 1986 (Vic). The maximum penalties are 10 years' imprisonment and 180 penalty units (‘pu’) or 18 months' imprisonment respectively. The maximum penalty for the summary offence takes into account the fact it is your second offence and your reading was over 0.15 grams of alcohol per 100 millilitres of blood.

5After a plea on your behalf, it now falls to me to sentence you for your conduct.  Your counsel, Ms Skaburskis, submitted that a community corrections order was within range and appropriate in your case.  The prosecutor, Ms Holmes, submitted that only a term of imprisonment would be within range, either with a non-parole period or in combination with a corrections order.

6In arriving at an appropriate sentence I am required to have regard to, at the very least, all the factors set out in s.5(2) of the Sentencing Act 1991 (Vic). These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

Circumstances of your offending

7The circumstances of your driving as outlined in the agreed Summary of Prosecution Opening were gathered from a mixture of traffic camera and laser speed measurements, police and witness observations and expert accident reconstruction.

8At approximately 1.24 am on Monday 18 February 2019 you sent two text messages to the same friend.  The first read, 'o free way 150kkm or .bmorr ..i Will not anyone'.  The second simply said 'bye'.

9At 1.26 am your Toyota Aurion sedan activated a traffic camera whilst you were driving south on the Western Ring Road, Ardeer towards the Western Freeway.  Your speed was 169 kph in a 100 kph zone.  You next activated a traffic camera at 1.39 am whilst you were driving in the opposite direction on the Western Ring Road Broadmeadows between the Tullamarine and Hume Freeways.  Your speed was 155 kph in a 100 kph zone.   It is not known where you turned around.

10At 2.19 am police observed you drive through a red light at the intersection of Plenty Road and University Drive, Mill Park at a speed they estimated to be
150 kph in a zone designated as 60 kph due to road works.  You were driving south on Plenty Road towards the Metropolitan Ring Road and only narrowly avoided other vehicles waiting at the intersection.  It is not known how you came to be on Plenty Road.

11At 2.23 am a laser speed device detected you driving in a westerly direction along the Metropolitan Ring Road, Thomastown, at 205 kph in a 100 kph zone.  This means you turned right from Plenty Road onto the Ring Road to travel in your original direction.   One minute later a traffic camera further West on the Ring Road detected your speed at 204 kph in a 100 kph zone.

12As you approached the Tullamarine Freeway the speed limit on the
Western Ring Road reduced to 40 kph due to night road works and the road swept to the left.  At approximately 2.26 am you were observed by other road users weaving through traffic at an excessive speed as you approached the left-hand bend.  At that time Gerald Grear was driving ahead of you in the far right lane.  As he noticed the overhead flashing 40 kph signs he looked in his rear view mirror and saw you approaching at a fast speed.  You attempted to change out of his lane, but in Mr Grear's words 'slammed' into the rear of his car pushing it forward into the centre concrete barrier before it rotated and collided into the concrete barrier again.  Mr Grear's car came to rest approximately 110 meters southwest of the point of impact.

13Your car spun out of control before coming to rest against the centre concrete barrier approximately 147 meters southwest of the point of impact.  You were not wearing your seatbelt and were thrown around inside your car.  Accident reconstruction determined your speed to be 217 kph immediately prior to impact.

14A sample of your blood taken at 4.10 am was found to have 0.256 grams of alcohol per 100 millilitres of blood.  As the holder of a full Victorian Driver's licence you were required to have a blood alcohol concentration of less than 0.05 grams of alcohol per 100 millilitres of blood.

Objective Gravity of your offending and moral culpability

15Objectively your driving was very dangerous and your offending very serious.  You drove at life threatening speeds for an extended duration at night.  You swerved around traffic whilst driving at over 200 kph.  You drove through an intersection against a red light at high speed.  You ignored road works speed restrictions.  You did all this whilst intoxicated.

16Ms Skaburskis, relied on a number of matters which she said reduced the objective gravity of your offending including that you were driving on major freeways designed for high speed travel and free from pedestrians; that you were driving at a time when few cars were on the road; that you did not drive into oncoming traffic and that there was no evidence of actual road works.

17Envisaging worse case scenarios may help to illuminate where on the scale of seriousness for this offence your conduct sits, but it does not detract from the gravity of what you did.  Moreover, it is difficult to regard the fact you were driving on major roads as mitigating when it is only because you were driving on such roads that you were able to reach the extreme speeds that you did.  I accept the traffic would have been less between 1.30 and 2.30 am than at other times, but there was traffic nonetheless.  You narrowly avoided other cars when you went through the red light on Plenty Road, you swerved around cars on the freeway and you ultimately collided with a car travelling in your direction.

18Similarly, the fact, which I accept, that the high concentration of alcohol in your system would have affected you less than someone else who did not have your degree of tolerance is hardly mitigatory.  On any view you had an extremely high reading and were clearly intoxicated, matters which Ms Skaburskis accepted.

19Ms Skaburskis further argued that it could not be established that you were driving at high speed for the whole of the time you were driving on this night.  Whilst this is true, it cannot be mere coincidence that you were driving at high speed on six different occasions over one hour.  Clearly your speeding was sustained.

20By your plea of guilty you accept that you foresaw that your driving created an appreciable risk of death to other road users and yet you carried on regardless.  Even if your original decision to drive was impulsive, you continued driving dangerously for an hour.

21Whilst not relying on Verdins, Ms Skaburskis submitted that your moral culpability must be assessed in light of your mental health and your motivation for the offending.  She submitted that you did not intend to harm or place other people at risk, rather you intended to commit suicide.  In that regard she relied primarily upon your account to clinical and forensic psychologist Patrick Newton whom you saw on three occasions.  She also suggested that your text messages might be suicide notes.

22You told Mr Newton that after an argument with your wife you became distressed, drank to excess and decided to end your life by driving into an inanimate object at high speed.  You also told him that you had no recollection of the actual collision and could not explain why you drove on the freeway and Preston Road in the manner that you did.

23Your wife, from whom you had been separated for some years, confirmed in evidence on the plea that you did discuss ending your marriage over the telephone earlier that night.  She described two prior occasions of suicidal behaviour and said that upon hearing of the collision she immediately 'knew' that it was a suicide attempt.

24It is understandable that upon learning that you had been involved in a motor vehicle collision the next morning your wife believed it was a suicide attempt.  However, when the circumstances are analysed it is clear that you were not actually attempting to kill yourself during that one hour of driving.  The most that can be said is that you were highly distressed and ruminating upon the idea.  Such a state of mind may explain but in no way excuses your behaviour or lessens your culpability for exposing innocent people to risk of serious injury or death.

25For completeness I note that in my view your text messages demonstrate that you were well aware of your actions, but are otherwise ambiguous.

26When he saw you in November 2019 Mr Newton diagnosed you as suffering from chronic mild clinical depression and severe alcohol use disorder, both of which were present at the time of your offending.  He considered you to be of average intelligence.  Mr Newton believed your childhood experiences of conflict during Sri Lanka's civil war and social dislocation upon migrating to Australia left you vulnerable to anxiety and less able to cope with stressors.  He noted that your depressive symptoms started in the context of marital difficulties in either 2010 or 2014, as did your heavy drinking.

27Mr Newton considered that your depression would have had only a mild effect on your reasoning and decision making on the night, however your consumption of a large quantity of alcohol would have greatly exacerbated the effects of your depression and led to significant impairment of your mental functioning.  Importantly, Mr Newton said your prior experience of alcohol, including at emotionally upsetting times, meant that you were well aware of the potential effects of drinking as you did on this night.  Even taking into account the effects of alcohol, he had no doubt that you were capable of forming the intention to commit the offending acts and that you were well aware of the nature and likely consequences of your conduct.

28I accept that in a general sense your difficult childhood and depression are relevant to your moral culpability.  You are not to be treated the same as someone without those experiences or in perfect mental health.  However, in light of Mr Newton's opinion, I do not consider those matters significantly reduce your culpability.  Indeed, given your awareness of the effects of alcohol upon you and the fact you have previously received a traffic infringement notice (‘TIN’) for drink driving, I regard your moral culpability as high.

Current Sentencing Practices

29One, and only one, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.

30The maximum penalty for the offence of reckless conduct endangering life is
10 years' imprisonment.  The most recent Sentencing Advisory Council Statistics of the higher courts indicate that 85 per cent of people charged with this offence over a five year period received an immediate term of imprisonment, with a community corrections order being the next most frequent sentence imposed.  The sentences imposed were usually between one and four years and most commonly between three to four years.

31Whilst no two cases are ever the same, of more use than statistics are sentences imposed in comparable cases, which may provide a convenient yardstick against which to measure any sentence proposed in the instant case.

32By its nature the offence of reckless conduct endangering life encompasses a wide variety of circumstances.  It is not uncommon for the offence to involve driving but my investigations have not revealed any case directly comparable to yours.  Ms Skaburskis referred me to two driving cases in which corrections orders were imposed[1], but I do not consider either case to be sufficiently similar to be of much assistance.  Ms Holmes referred me to two other cases[2], which were more similar in that they involved a combination of speeding and intoxication, but were still distinguishable.  In both cases sentences of imprisonment were imposed.

[1] Director of Public Prosecutions v Stead [2017] VCC 161; Director of Public Prosecutions v Tate [2017] VCC 415.

[2] Sadiq v the Queen [2017] VSCA 64 which in turn referred to Lima Da Costa v the Queen [2016] VSCA 49; Hutchinson v the Queen [2015] VSCA 115.

33I have had regard to the cases to which I was referred but ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.

Impact of your offending

34A victim impact statement from Gerald Grear was tendered on the plea without objection, however I am cognisant of the fact you have not been charged in relation to the injuries you undoubtedly caused him.  I therefore take into account his statement only in the sense that it is representative of the danger you posed to the community at large.

35As well as speaking of his ongoing back pain and the loss of enjoyment of life that has caused him, Mr Grear said 'I feel very emotional sometimes because I [c]ould have lost my life and not be here with my wife and kids.  I have fears on the road when driving because I'm afraid to go through the same situation again'.

Plea of Guilty, co-operation and remorse

36You are to receive a significant discount in your sentence for the fact you pleaded guilty to the offence at an early stage.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  Moreover, I accept that your plea is accompanied by genuine remorse which entitles you to an even greater discount on sentence.  In this regard it is notable that at the scene of the collision you enquired as to the welfare of the other driver and told an attending police officer that you were sorry.  You have expressed similar sentiments to members of your family and Mr Newton.

Background and personal circumstances

37Your background and personal circumstances were set out in detail in the Outline of Defence Submissions and Mr Newton's first report tendered on your plea and marked as Exhibits 1 and 2 respectively.

38Briefly, you are now 39 years old.  You were born in Sri Lanka and are of Tamil ethnicity.  You lived in Sri Lanka with your mother and six siblings during the civil war and were exposed to serious conflict.  You remember running from gunshots aimed at civilians and witnessing 'extreme' violence and suffering.

39Your father sponsored you, your mother and siblings to move to Australia in 1990 when you were about eight.  Your father was already here.  Your migration was difficult as you did not speak English and were unfamiliar with Australian cultural practices.

40During your childhood, your father and older siblings worked hard to provide for the family.  You were also expected to contribute when you were old enough, by assisting at your father's white goods shop in Brunswick.

41You learned English when you started school in Grade 2.  You completed school without academic difficulty but were subject to bullying and racism.  You commenced a civil engineering degree in 2000 but left after two years to pursue work.  Later, you started a Masters in Banking and Finance but left to work at a bank.

42You have an extensive employment history and take pride in your work.  As well as working for your father, you have worked in sales and banking and also owned your own business in white goods.  For several years, you worked for the Commonwealth Bank whilst also running your white goods business.

43Since the offending, you have assisted your brother in the family white goods business on Sydney Road.  Your assistance has been appreciated by your brother who has told the court that sales have increased by 20 per cent since you began working there.  You now also work in a full-time position as a home-loan specialist with the Commonwealth Bank.

44As a consequence of your hard work, you purchased your first home when you were only 21 years old.

45You married in 2010 when you were 29.  Although you and your wife are both from traditional Sri Lankan families, there was difficulty convincing your respective families to accept your relationship and marriage.  Your parents did not attend your wedding and you were estranged from them for several years.  You reconnected with your parents after the collision.

46You began drinking more heavily after your marriage and this put a strain on your relationship, as did pressure from parents, your work and social engagements.  Your relationship deteriorated to the extent that you separated in 2014.  This exacerbated your depression and lead to several apparent attempts at suicide.  You are currently undertaking marriage counselling with a view to reconciling with your wife and starting a family.

47You have a close relationship with your siblings, and now with your parents, all of whom are supportive of you.

Your character and risk of reoffending

48You have no prior criminal convictions.  You do however have a TIN for drink driving in 2016 with a reading of 0.69 grams of alcohol per 100 millilitres of blood.

49You have a good employment history although you told Mr Newton that you found it difficult to sustain employment after your marriage in 2010 due to your drinking and emotional instability.  You have many letters of support from your siblings and your wife attesting to your good nature and values, which I accept.

50At the time of his first report in November 2019 Mr Newton described you as a man with significant rehabilitative needs.  He was concerned about your lack of insight into your use of alcohol, which he considered to be the most potent criminogenic factor in your case.  At that stage, you had not received any structured alcohol focused counselling or education and were sceptical about the benefits of same.  You declined information about treatment services and preferred to address your issues by participating in a religious fast.  Mr Newton considered you to be a very high risk of relapsing into further alcohol use problems of severe to extreme proportions.  He also considered that you needed psychiatric care for your depression and training in living skills.

51By the time he saw you again in May 2020 your situation and attitude had completely changed.  You were no longer depressed and were no longer drinking.  You were re-establishing your relationship with your wife and had obtained employment in the home loan section of a major bank.  You had participated in the religious fast but had also undertaken treatment with a psychologist for your depression; partly completed a men's behaviour change program before it was suspended due to corona virus; and importantly, attended weekly alcohol counselling since January.  As mentioned, you and your wife had also participated in relationship counselling.

52It is obvious you have embarked upon a serious program of rehabilitation over the last six months and Mr Newton was impressed with your progress.  He believed you displayed insight and described the changes you had made as significant, albeit, at an early stage.  He considered there was some risk of reversal if the treatment and supports you currently have in place were to be removed.  Your wife has also noticed your improvement.

53Your future is largely dependent on your ability to remain abstinent from alcohol.  You are to be commended on your efforts at rehabilitation thus far even though they have come at a late stage.  Whether you can remain alcohol free remains to be seen, however I think it likely that the consequences of your conduct on this night have been salutary.  Overall, I consider your prospects of remaining crime free to be reasonably good.

The burden of imprisonment

54Apart from inferentially noting the potential adverse effect of prison on your rehabilitation, Mr Newton did not avert to prison posing an additional burden on you for any reason.  However, I do take into account the effect of corona virus.  Whilst the chance of contracting the virus in prison is speculative, I accept that the worry is an additional burden for prisoners.  Further, I take into account that any term of imprisonment during the pandemic will be harder due to the suspension of visits to prisons, the curtailment of various programs and activities and the imposition of lockdowns.

Extra curial punishment

55I take into account as a mitigating factor the fact that in addition to any punishment that I impose you have suffered as a consequence of the injuries you sustained in the collision.  You experienced extreme pain from your injuries and were prescribed opioid medication for some months.  You weaned yourself off that medication but still suffer neck and back pain which affect your enjoyment of daily activities.

Purposes of Sentencing

56In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort.

57In your case general deterrence, just punishment and denunciation loom large in the sentencing process.  You displayed a serious disregard for the safety of other road users.  People tempted to drive in a manner that endangers the public, for whatever reason and in whatever manner, must be dissuaded from doing so by the knowledge that if caught they will receive condign punishment.

58Although not as important, specific deterrence does have some role to play given your prior drink driving matter and the uncertainty surrounding the reason for your driving in this manner on this night.

59I accept that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and deterrence, however I consider your offending is just too serious for anything other than a term of imprisonment.  Further, after careful consideration I believe that nothing other than a term of imprisonment involving a non-parole period is appropriate, notwithstanding your significant mitigating factors.

60I accept that rehabilitation is also an important sentencing principle, indeed it is the best way to protect the community from you.  However, the courts have repeatedly said that in cases of serious offending, rehabilitation may have to take a back seat to other considerations.  To facilitate your continuing rehabilitation as best I can whilst imposing a sentence that satisfies the other sentencing principles I will impose a relatively short non-parole period.

61During the plea hearing I raised with counsel the best way to avoid double punishment given your intoxication was a feature of your dangerous driving.  Having regard to the authorities I have decided against imposing an aggregate term of imprisonment, even though a term of imprisonment is arguably within range for a second offence of drink driving with your reading.  Rather, I will take into account the fact of your intoxication on the reckless conduct charge and sentence you on the exceed prescribed concentration of alcohol charge without regard to your manner of driving.  In other words, I will sentence you on that charge only on the basis of your reading and the fact it was a second offence.

Sentence

62So, if you could stand please, Mr Navaratnam.

63On charge 1, the reckless conduct charge I convict and sentence you to two years' imprisonment. I fix a non-parole period of 12 months. That is the earliest time at which you can be released. Pursuant to s.89A of the Sentencing Act 1991 I cancel your licence and disqualify you from obtaining a further licence for two years effective from today.

64You have spent no time in custody so there is no presentence detention.

65On the related summary charge, Charge 5, I convict and fine you $3,000.  I also cancel and disqualify you from obtaining a further licence on that charge for the statutory minimum of two years back dated to 14 June 2019.

Section 6AAA

66If you had not pleaded not guilty to these charges and been found guilty by a jury of the reckless conduct charge, I would have sentenced you to a term of four years with a non-parole period of three years.

Psychological reports

67I direct that Mr Newton's two psychological reports be provided to the prison authorities for their assistance in managing Mr Navaratnam.

Ancillary orders

68Are there any other matters that I need to attend to?

69MS HOLMES:  No, Your Honour.

70MS SKABURSKIS:  No, Your Honour.

71HER HONOUR:  All right, thank you.  If you could remove, Mr Navaratnam, thank you.

72MS HOLMES:  As Your Honour pleases.

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