Director of Public Prosecutions v Olety-Rajashekar

[2017] VCC 1749

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01456

DIRECTOR OF PUBLIC PROSECUTIONS

V

NITHIN OLETY-RAJASHEKAR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2017
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Olety-Rajashekar
MEDIUM NEUTRAL CITATION:	[2017] VCC 1749

REASONS FOR SENTENCE

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Subject: Criminal law - sentence            

Catchwords:   Plea of guilty to one charge of dangerous driving causing death and one charge of unlicensed driving – deceased was elderly pedestrian – momentary inattention of driver –no apparent distractions – no aggravating features – genuine remorse and self-punishment – PTSD – early plea – no prior convictions – excellent character – very good prospects for rehabilitation - forgiveness by family of deceased.      

Cases Cited:    King v R [2012] HCA 24

Sentence:      4 year CCO

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Champion    With Ms L. Andrews	OPP
For the Defendant	Mr C. Heliotis	Anthony Isaacs

HER HONOUR: 

1Mr Olety-Rajashekar, you can remain seated for the moment I will ask you to stand a little later.

2You have pleaded guilty to one charge of dangerous driving causing death and to a summary charge of unlicensed driving.  I will be imposing a Community Correction Order without the need for a term of imprisonment for reasons which I shall explain.

3This offending occurred a year ago on 22 November 2016 and tragically resulted in the death several days later of an elderly pedestrian, Mrs Emily Hanna.  She suffered very serious injuries and before she died, she told her daughter, Amira Hanna that she forgave you, the driver, and asked the rest of the family to forgive you also. 

4Mrs Hanna was aged 90 and still had some independence.  She was returning from her regular coffee shop that morning and was crossing Hawthorn Road in Caulfield at the intersection with Balaclava Road to be driven home by her daughter Amira Hanna.  The victim impact statement provided by her daughter describes how Mrs Hanna is greatly missed and that the family still grieves her loss.

5It is important that I quote from her statement as follows:  "My family is not one who holds feelings of resentment or anger towards people.  We do not want revenge and if anything, would like to extend our sympathy and compassion to the driver."  Amira Hanna went on to say, "We do forgive him.  I do not want this man to suffer any more than what he has.  My mother is not someone who would get any joy from knowing that anyone was penalised as the result of an unintentional act especially someone who holds genuine remorse."

6After Mrs Hanna had left the coffee shop that morning, just before 11.30, she began to walk across Hawthorn Road from west to east assisted by her walking frame and within the marked white lines.  She was about three quarters of the way across when she was hit by your car.  Shortly before this, you had left your nearby office in order to move your car from one parking spot to another.  You had called a friend on your phone and spoke with him about social matters as you walked towards your car.  You got into your car and plugged the phone into the hands-free device, and continued talking to him without the need to touch or look at the phone. 

7You were still talking to him when the collision occurred, but you have said that the conversation did not distract you.  Nor were you in a hurry as your working hours are flexible. 

8Before turning right  from Balaclava Road into Hawthorn Road, you had stopped at a red light and proceeded slowly when the lights turned green.  You had looked for any pedestrians but had not seen any, and you only saw Mrs Hanna as you turned and when it was too late to avoid hitting her.  You have been unable to explain why you did not see her. 

9You stopped immediately and went to assist Mrs Hanna.  You stayed with her and held her hand, and others also came to assist while awaiting the emergency services.  Her daughter had been walking towards the intersection to meet her mother when the collision occurred, and she then found her mother lying injured on the road. 

10The collision occurred close to lunchtime and the intersection was busy with vehicles and pedestrians.  The intersection has a somewhat complex appearance, with tramlines allowing trams to turn from and into both streets, but there is nothing that would obviously distract a driver or impede vision. 

11In this regard, an affidavit was provided by Mr Shane Kinch, the owner of the café where Mrs Hanna was a regular customer, where she had been that morning.  He reports anecdotally that he has observed frequent “near misses” at the intersection and has also seen pedestrians struck by cars.  His observations over some 11 years are that the turn which causes most problems is the turn you were executing from Balaclava Road into Hawthorn Road, and that about three months ago a flashing sign was placed there with the words, "Give way to peds".  He said this was the only such sign at the intersection.

12Perceived problems with the intersection were also described in an article published in the local newspaper soon after the incident.

PERSONAL CIRCUMSTANCES

13I shall turn now to your personal circumstances which you have set out in a detailed document describing your family background, education and work history.

14You describe coming from a well-respected middle class Bangalor family whose values focussed on education, working hard and helping others less fortunate have, you say, very much influenced your own life.

15That is confirmed by the many references provided by your friends, family and colleagues and borne out by the contributions you have been making recently to the community by working for the Sacred Heart Mission in St Kilda, and sponsoring a child through a charitable organisation.

16You say this is partly because you perceive a need to repay society for having committed a crime.  Your friends speak of your need for redemption and your genuine sense of remorse and regret at what happened.

17You are aged 28 and you were 27 at the time.  You are a permanent resident, having come to Australia in 2012 from India.  After graduating from university with a commerce degree you had several jobs, including with Ernst & Young  where you were promoted to the role of manager, before leaving for Australia to study. 

18Here you worked in part time jobs to support yourself and to help pay your fees, and you found it difficult being away from your home and your family.

19Having completed a Master's degree at Deakin University you got a job with an organisation called Probe and you have remained there as a business analyst.  You have been helping your family financially including assisting with your younger brother's post graduate education. 

20You have met a young woman who has come here from India, and you have plans to marry. This would require the permission of both families, and you are constrained from asking her parents because of the possibility of a prison sentence being imposed. 

21The impact upon you of Mrs Hanna's death has led you to withdraw from your usual activities with friends, and to become depressed, with a diagnosis of Post-Traumatic Stress Disorder.  When your grandmother died in India recently you were unable to go to her funeral, and you have seen her death as being in some sense a reprisal for your having caused Mrs Hanna's death.

22Your friends and family have observed changes in you physically and mentally and your cousin tells of the anguish you have experienced in being unable to tell your parents what had happened initially, because of a fear of distressing them.

23Your psychologist, Ms Sherman, reports that you are responding well to treatment, which is aimed at assisting you with insight into your self-punishing behaviour.  She considers that your symptoms might improve once the court's judgment has been passed and your punishment has been imposed, but you might continue to struggle with ongoing guilt, because, as she put it, the fatal outcome of your actions was directly contrary to your values.

24The forensic psychologist, Pamela Matthews, recently diagnosed Post-Traumtic Stress Disorder as a direct result of the incident and noted your genuine remorse, guilt and distress which she said has consumed you.  She said imprisonment would likely worsen your mental state and you would serve the time isolated from your family who live in India. 

25In combination, this would amount to greater hardship than most others in prison would experience.  That is a matter I take into account.

SENTENCING CONSIDERATIONS

26It was accepted on your behalf by Mr Heliotis, who appeared for you, that the charge is a very serious one.  The maximum penalty is ten years' imprisonment, and the chief concern in sentencing in a case like this is deterrence generally, rather than specifically. 

27The Director has conceded, in his submission on sentence, that taking all matters into account, your offending should be regarded as being in the lower range of seriousness for this offence, leading to the conclusion that a sentence of imprisonment combined with a Community Correction Order would be appropriate.

28The submission of Mr Heliotis was that a Community Correction Order would be sufficient punishment and, if of sufficient length, it would also serve the requirements of general deterrence.  It is necessary to determine your level of moral culpability before deciding upon the appropriate sentence.  Dangerous driving causing death is considered to be a manifestation of negligence in the sense of carelessness[1] and it can encompass momentary inattention, which may attract considerably less condemnation than might otherwise apply.[2]

[1] King v R [2012] HCA 24 at [46]

[2] Loc Cit [47]

29In determining how dangerous your driving was, I must consider what risk it created and the resulting harm. 

30The circumstances here were as I have already outlined.  You were talking on your phone in a manner that was not unlawful.  You checked to see if there were pedestrians crossing and saw no-one but you failed to avoid striking Mrs Hanna.  It was a busy intersection with which you were very familiar.  That fact should have alerted you to the need for care.  These circumstances nevertheless allow for a conclusion that it was momentary inattention, with its concomitant risk that caused the collision. 

31You have said you were not distracted by the conversation you were having and that there were no other apparent distractions. It was raining lightly at the time but the weather conditions do not seem to have played any part.  You were not speeding or driving erratically, nor were you fatigued and there was no alcohol or drug use involved.  They are aggravating features that may often be present in these cases but are absent here. 

32You were unlicensed at the time but that fact played no part in the risk or the outcome of your driving.  Your moral culpability is intrinsically linked to the degree of dangerousness and its level is determined accordingly as low in this case.  Both the Director and your counsel were in agreement on this point. 

33The standard of your driving fell short of that required, but is best described as I have already outlined, as momentary inattention.  Most instances of dangerous driving causing death call for a prison sentence, the exception being cases such as this where the level of moral culpability is low.  Denunciation by the court of such offending is a necessary and important part of the sentence, but it must be tempered by other factors, including the personal circumstances of the offender, in order to achieve a just and appropriate sentence.

34I have referred briefly to the reduced need for a focus on specific deterrence in this case.  You have already inflicted considerable punishment upon yourself, as I am told by those who know you well and by the professionals. 

35Your prospects for rehabilitation are very good in that you are unlikely to offend again.  Your early plea of guilty has avoided the need for a trial and there was no committal hearing, so you have spared Mrs Hanna's family and other witnesses from having to give evidence.

36You co-operated with the police and immediately demonstrated remorse and for those reasons your plea entitles you to a discount on the sentence I impose.  There are a number of other mitigating factors which I take into account.  You are a person of otherwise excellent character with no prior convictions.  The only blemish on your record is an infringement notice almost three years ago for driving whilst exceeding the prescribed concentration of alcohol, with a very low reading, and it is not something which affects the orders I will be making today.

37I need not repeat the positive observations I have already made about your attitudes generally, your focus on education and employment, and your genuine remorse and wish to apologise to Mrs Hanna's family.

38In this case, a just and appropriate sentence is a Community Correction Order without the need for a term of imprisonment as well, and I will return to that in a moment.

39The charge of unlicensed driving came about because although you have a driving licence obtained in India which is still current, you should have obtained a Victorian Licence no later than six months after you became a permanent resident here.  That six month period expired in September 2016, two months before this incident.

40You told the police that you had not known you needed a Victorian Licence which, of course, is no excuse and so a conviction will be recorded.  Clearly, however, the fact that you were driving without a licence bore no relationship to the tragic collision.  I note that you have since obtained a licence but I must now cancel it and order that you not be permitted to obtain a new licence for 18 months.  That is the minimum time for cancellation and I see no need to extend that period.

41You have been assessed as suitable for a Community Correction Order and as I have said, there is no need for this to be accompanied by a prison term.  This is because of the low level of your moral culpability as well as the personal factors I have considered, and your remorse and taking responsibility for the offence, which was acknowledged by Mrs Hanna's family in their very generous forgiveness of you.  Would you stand now please?

42The Community Correction Order will begin today and will last for four years.  It will apply to both charges.  You will be required to perform 100 hours of unpaid community work over 12 months.  Corrections have not recommended any other orders beyond the core conditions which included, of course, not offending again.

43If that were to happen you would be in breach of the order and would face being resentenced.  However, I am confident that is very unlikely.

44You must attend the Corrections Office in Carlton at 444 Swanston Street no later than 4 pm on Monday, 27 November. 

45The prosecution seeks an order for a forensic sample to be obtained under 464 ‑ ‑ ‑

46MR HELIOTIS:  Not objected to, Your Honour.

47HER HONOUR:  Thank you - ZF of the Crimes Act and there is no objection to that through Mr Heliotis.  I make that order and must advise you that the police do have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

48Mr Heliotis, the order is ready for signature.  Would you like to have a look at that in company with my Associate.

49MR HELIOTIS:  I am not sure if it is necessary for Your Honour to say what you would have done but for the plea of guilty.

50HER HONOUR: No, I do not have to do that actually, s.6AAA of the Sentencing Act does not apply when a Community Correction Order is imposed so I will not be doing that.  Are there any other matters?

51MR HELIOTIS:  No, Your Honour.

52MS ANDREWS:  No, Your Honour.

53HER HONOUR:  Thank you, Mr Heliotis.  Thank you, Ms Andrews.

54MR HELIOTIS:  Thank you, Your Honour.

55MS ANDREWS:  Thank you, Your Honour.

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