Director of Public Prosecutions v Patel
[2020] VCC 1226
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 19-01224
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JINAL PATEL |
---
JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 07 July 2020 |
DATE OF SENTENCE: | 17 July 2020 |
CASE MAY BE CITED AS: | DPP v Patel |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1226 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
For the Accused | Mr F. Scully | Legoll Lawyers |
HIS HONOUR:
1Jinal Patel, on 20 October 2018 you were driving your five year old daughter home from the dancing lesson in Warrigal. Your mother-in-law, who was visiting from her home in India, was a passenger in the car as well. You were driving back to Yarragon where you and your family lived and worked, operating the Yarragon newsagency and post office.
2The most direct route between the two towns is the Princes Highway. That is your usual, familiar route. Indeed, from the dance school in Burke Street, Warragul, you only had to drive a short distance to a major roundabout at the intersection of Princes Highway. You were using your in-car GPS system and misunderstood the directions and drove not on to but past the Princes Highway. That took you on to Bona Vista Road, a country back road that eventually winds back to Yarragon. You had never been on this road before.
3The Buena Vista Road as it heads east eventually crosses the Darnum-Allambee Road. Drivers on the Buena Vista Road face a give way sign at this intersection. There were advisory signs indicating an approaching cross roads intersection, lines on the road, both back from and just before the intersection. There was the give way sign and a traffic island. I say that there were these pieces of road safety infrastructure there at the time because since 20 October 2018 the intersection has been significantly modified due to its notorious dangerousness. In fact many locals wrote in testimonials that were tendered on your plea, the removal of rumble strips which are now, or have now been returned and enhanced.
4As you approached the intersection you slowed but did not give way to a large four wheel drive vehicle driving safely along the Darnum-Allambee Road. The collision that occurred was your fault. Your mother-in-law was seriously injured and ultimately airlifted to Melbourne with life threatening injuries. Your daughter received cuts to her forehead area. The driver of the other vehicle was, thankfully, uninjured and played an important role in providing first aid until the ambulance arrived. She was, as a consequence of the collision, shocked and has less trust in other drivers. She, like other locals, became vocal in seeking improvements in the road intersection to reduce risk. You, in the collision, aggravated a pre-existing back injury.
5While speaking of injuries, your mother-in-law has returned to India now and has made a full recovery from her injuries. That included broken ribs, a punctured lung, broken arm and collarbone, ruptures and lacerations to internal organs and a bleed on her brain. These injuries were life threatening and well fit the definition of serious injury. You pleaded guilty to the charge of dangerous driving causing serious injury in relation to your mother-in-law.
6Your daughter has been left with scarring above her left eyebrow. Although you have pleaded guilty to a charge of dangerous driving causing serious injury with respect to her, her injury is at the very margins. That is at the lowest level of serious injury, as that phrase is defined in the Crimes Act. As I say, you have pleaded guilty to the offence and were very well represented throughout these proceedings. You did face another charge of reckless conduct endangering the other driver but that charge was sensibly withdrawn after interventions by the court and negotiations between the parties.
7The speeds of the vehicle at the collision point were calculated as being 64 kilometres per hour for you and 70 kilometres per hour for the other vehicle. Brakes were applied by other driver but there was not enough time. The prosecution case was that by failing to give way, as required by the give way sign at the intersection, you caused the collision. However, it was conceded by the prosecution that the road design contributed to the collision to some degree. Thus this was a case of momentary inattention on an unfamiliar country road where the design of the intersection made it more difficult for you to see other vehicles on the intersecting road.
8Your counsel emphasised the poor road design, relying on the expert evidence of Mr Shane Richardson and the considerable local public outcry over the dangers of the intersection, including, as I have said, what was written by the other driver. A public meeting held a month later in November 2018 described this as the tenth major accident at the intersection in the past 10 years. The intersection was identified as a black spot location and has now had considerable alterations to improve the capacity of drivers to see and appreciate the upcoming intersection. There are now rumble strips and blocks of colour on the road to warn of the intersection.
9All this evidence of the inherent dangers of the intersection is particularly relevant to my assessment of the gravity of the crime and your moral culpability. The Court of Appeal recently in Pan v The Queen [2020] VSCA 42 has recently made clear the importance of road design in cases of this kind. The Court of Appeal in Pan relied on earlier decisions of Spanjol[1] and George[2]. Both those cases examined the role or potential contribution of the victim in another car or some other factor such as the victim/passenger, not wearing a seatbelt. In George, Priest J relevantly summarised the principles as follows:
'(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury, but the evidence may support a qualification of one or both of these propositions; (3) as to responsibility for negligent driving, the offender may be able to establish that some other person, whether or not the victim and/or some external circumstances were partly responsible for the manner of the driving; (4) as to the causal link with the death or serious injury, the offender may be able to establish that there was an additional factor outside the offender's control which was also a material cause of the death or serious injury'.
[1]Spanjol [2016] VSCA 317
[2]George [2017] VSCA 152
10In Pan Croucher J quoted the above principles and extended the application to:
'Poor or problematic road design or inadequacy amelioration of inherent risks by the road authorities. So not just acts of others in the moment, the concept of, 'An additional factor outside the offender's control which was also a material cause of the collision and death or injury; and (b) road design. All these matters depend on the evidence, usually expert evidence'.
11As also stated though, by Croucher J at paragraph 89, that:
'Even if the design does contribute to the collision this may not lower moral culpability if the driving was particularly egregious'.
12In this case, based on the following matters: (1) the expert evidence of Mr Richardson; (2) the state of the intersection, as I viewed it from the photographic evidence and the expert and other statements; (3) the small and obvious inadequate warnings and amelioration of risks that were present; (4) the local and very public concerns and criticisms of the safety of the intersection, including from the driver of the other vehicle; (5) the number of collisions in the relatively recent past; (6) the concession of the prosecution that the road design contributed to a degree; (7) the fact of, and in particular, the extent of the remedial works carried out on the intersection since the collision.
13All these matters in combination lead me to conclude that this is a case where the road design and layout was an additional and contributing factor to the collision and the injuries and this was a factor outside your control. This conclusion, given the other circumstances, means that your moral culpability is reduced. The other factors that add to this is your inexperience or unfamiliarity with this country road and this intersection. In the end I see this as a case more akin to the momentary inattention cases such as Bell[3], decided in the Court of Appeal, and other matters such as Nicholson[4] or Calf[5] and a number of other cases dealt with by non-custodial sentences by judges in the County Court. I note that that those cases mentioned involved fatalities. Indeed, the latter two that I have mentioned involve multiple fatalities.
[3]Bell [2018] VSCA 281
[4]Nicholson [2020] VCC 1836
[5]Calf [2020]VCC
14The sum of all matters going to moral culpability is that your driving was a matter of momentary inattention in circumstances where the road design contributed to your failure to see that you had to give way to the other vehicle coming along the priority road. Where moral culpability is low and the injuries are at the lower end in the sense that there has been full recovery, then consideration of a non-custodial sentence is well open. There are, in this case, no aggravating aspects of alcohol or drugs or fatigue that might adversely have affected your capacity to drive. There are no mobile phone or other distractions. There is no excessive speed in your breach of the road rules by failing to give way has been put in context.
15Importantly also is your past driving history is good. You have never been in any trouble with the law at all. Beyond that your personal circumstances and good character are such that you are entitled to ask for a merciful penalty. Your lawyers gathered a vast array of mitigatory material. I have considered it all and it paints an impressive picture of you as a generous contributing, hard working member of your community and family.
16You turned 35 about two weeks ago. You were born in India and migrated to Australia at age 22. You became a citizen in 2012. Your husband came to Australia in 2012. Both your extended families remain in India. As discussed, your mother-in-law was visiting when she was injured in the collision. She has returned to India and wrote a letter of support for you. You grew up in a close family though your father died too young of cancer. You remained in close contact with all your siblings and mother in India and siblings-in-law.
17You gained a commerce degree in India, then a masters degree in accounting in Melbourne. You were studying for a qualification as a certified practising accountant at the time of the collision, and that has been put on hold since. Your husband is highly qualified in computer science and IT.
18Around August 2018 or perhaps a bit earlier you moved to Yarragon to operate the post office and now the newsagency. Thus you were very new to the area and that possibly explains your unfamiliarity with the road and why you did not override the car GPS and simply return home via the Princes Highway.
19You have impressed your local community in the time that you have lived and worked in Yarragon. There were many letters from organisations and individuals testifying to your good character, contributions and your remorse. Many locals also wrote, as I have mentioned, of the notoriously dangerous intersection. One example, Mr David Trewern, who operates a business nearby to yours in the Yarragon Village, as it is called. He wrote:
'I have known Jinal, her husband and daughter since they arrived in the village to operate a local business. They are all well respected members of a close-knit village, both as business operators and valuable community members'.
20He goes on:
'I am also aware that she was involved in an accident on 20 October 2018 at the intersection of Bona Vista Road and the Darnum-Allambee Road, an intersection which has been regarded as very dangerous and an, "accident waiting to happen"',
21I pause there. That is the very phrase that Croucher J used in describing the intersection in the matter of Pan. Mr Trewern goes on:
'In the time that I have known the family I have found them to be very friendly and of good moral character and I have no hesitation in writing this reference letter for them'.
22There were similar glowing letters from the local cricket club, football and netball club, bowls club and the fire brigade, all groups that you and your husband support and sponsor. Others who operate the business of the post office and the newsagency before you also wrote of your fine qualities and contributions to the community. Just as an example, Ms Shaddock said:
'I am the previous owner of the Yarragon post office'.
23She speaks of the intersection being dangerous and it is something that she saw quite often, given that she lived in the area and her husband was a previous councillor for the local government. She concludes:
'Jinal is a good person and of good character. She and her family have many local ties in the community, both with business and personal dealings and every person dealing with them are happy with their conduct. They are respected members of the Yarragon community and I have no hesitation in supporting Jinal'.
24The first lieutenant at the Yarragon Fire Brigade, Mr O'Toole, wrote that you are:
'Kind, good and valued members of the community with strong ties to both business and the community'.
25He also spoke of the intersection being a dangerous traffic spot.
26A local member of the community, Mrs Young, wrote:
'I have known Jinal and her husband since they moved to Yarragon and took over the running of the post office at a time where there was a possibility it might close. We, the residents, appreciate the time and effort that Jiran and Jinal have put into improving and maintaining the business and taking on the distribution of newspapers when the newsagency closed'.
27She said from her various interactions with you in various voluntary organisations and craft activities:
'I can see that Jinal is a kind person to her family and also to the customers at the post office'.
28She concludes, after also speaking of the dangerousness and near misses at the intersection:
'I say that Jinal Patel is a respected and appreciated member of our community and deserves consideration in this matter'.
29Your mother-in-law wrote from India saying that she has made full recovery. She spoke of you as being a careful driver and always being cautions while driving. She says that:
'This accident was a one-off, and I am told the intersection was quite dangerous and there have been a number of accidents in this intersection. Jinal was driving cautiously on this day and followed all the road rules and was driving in the speed limit'.
30She speaks in this way of you and her son:
'Jinal and my sone have made a beautiful life in Australia, doing their best to provide for their young and only daughter. Jinal is a strong and generous person and she has a lot of respect, care and lover for her young family. Jinal and Jiran have recently purchased the Australian Post business and are working and building their lives in Victoria, Australia'.
31At all points you have been deeply remorseful. The whole event has had a deep effect on you and you have not driven a car since the collision. This is no small matter in a small regional town without any public transport and the like. That said, your licence will be cancelled as it is a mandatory consequence of these offences. Although these serious driving offences are often committed by persons of good character who are remorseful and I must be wary of giving too much weight to those matters, however, remorse, good character and ongoing contributions to the community are still relevant and are particularly evident in this case. All in all I am sure that you have learnt a very hard lesson and you will resume your lawful way in exercising great care if and when you return to driving.
32The key sentencing purposes are denunciation and, in particular, general deterrence. That is always the case with these types of offences. Your counsel in his very thoroughly prepared written and oral submissions contended that a Community Corrections Order was the just and appropriate sentence. The prosecution agreed and in this case with the low level of moral culpability and the fully recovered victims, a Community Corrections Order would be within range.
33The Court of Appeal in the guideline judgment of Boulton[6] v The Queen emphasised that Community Corrections Orders do involve punishment and thus can meet the sentencing purposes of denunciation and general deterrence. Also emphasised by the Court of Appeal and also, indeed, by the Attorney General in his remarks in introducing the new Community Corrections Order regime in parliament, what was emphasised was that a Community Corrections Order can operate to keep families together. Always an important consideration.
[6]Boulton [2014] VSCA 342
34In this regard your husband has a neurological problem, although benign and well managed at the moment, causes stress. As the letters from the members of the community attest, your husband works long hours, seven days a week, and you also work hard in the business as well as looking after your school aged daughter. It would be considerable disruption if you were to be incarcerated. You have a bad back and suffer from anxiety due to these criminal charges and the overall circumstances of the collision and the impact on your passengers and the other driver.
35It is plain now since Boulton that serious offences that may have once attracted imprisonment can now be punished by a Community Corrections Order in what was, in Boulton, described as a new sentencing landscape.
36Your plea of guilty is of considerable value. In particular now that jury trials have been suspended. It is another sign of your remorse and of taking responsibility. Your sentence is much less and of a different kind because of your plea of guilty. In my view all sentencing purposes can be met by a sentence less than imprisonment and thus I cannot, by operation of the Sentencing Act, impose a term of imprisonment. Gaol is and must be appreciated as the punishment of last resort. As too the Community Corrections Order, I do not consider that there are any community corrections programs or any need for supervision. A Community Corrections Order will impose upon you work requirements only. I intend in this case to impose a single aggregate sentence of one Community Corrections Order, though plainly the injuries and the offence that relates to your mother-in-law are the most serious of the two offences.
37For Charges 1 and 2 you are convicted and placed on a two year Community Corrections Order with the one program condition, and that is that you do 180 hours of unpaid community work over the two years.
38Your licence is cancelled and you are disqualified from driving for 18 months.
39Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of 20 months with a non-parole period of 10 months.
40Is there anything, other orders, required? Ms Duckett?
41MS DUCKETT: No, they are the only orders required for the purposes of this sentence, Your Honour, thank you.
42HIS HONOUR: Thank you. Do you agree, Mr Scully?
43MR SCULLY: Yes, Your Honour.
44HIS HONOUR: Thank you. Mr Scully, what is the Community Corrections centre close to her? Is it Morwell or Moe? Where is it?
45MR SCULLY: Your Honour, if I may just quickly have (indistinct).
46HIS HONOUR: (Indistinct words) do you know?
47MR SCULLY: Your Honour, I am pretty confident I will have to put Morwell and then - - -
48HIS HONOUR: Yes, put Morwell.
49MR SCULLY: Yes, and then Ms Patel can liaise with the Morwell office after that.
50HIS HONOUR: Yes. All right. So, Ms Patel, what follows now is that a document will be ultimately produced and forwarded to you. It will set out precisely the terms of your Community Corrections Order. Perhaps ordinarily at pre-COVID times it would have been, we would pause, get the document produce, I would read it all out to you and if you signed it I would sign it and that would be the end of that, but I need to just outline to you all the terms and conditions of a Community Corrections Order and seek your oral consent to do the order.
51So a Community Corrections Order has mandatory conditions. They apply to everyone that is placed on a Community Corrections Order. So they apply to you. So your Community Corrections Order is two years. It starts today and will go for two years from today. The conditions really are all about cooperation but there is one other condition that applies that is more broad than that and more serious.
52You must not commit an offence for which you could be imprisoned during the two years of the Community Corrections Order. I am confident that you will not but understand that if you drive your car while your licence is cancelled and disqualified for any reason, an emergency or whatever you think it is, but if you drive that would be an offence punishable by imprisonment and that would breach this order and change the dynamics. You would come back before me and there would be very different dynamics that I would have to consider. So do not commit any offence, including do not drive during that period of time.
53So beyond that you must report to the Office of Corrections at Morwell. That can be done by telephone and the details for that will be provided to you in the document, but you must do that within two clear working days. So get that done early next week, if not today.
54You must undergo - there are certain regulations that apply that you must comply with, and those regulations come down to, in practical terms, they will need to take a photograph of you to identify who you are. You have just got to cooperate with that. You have got to accept visits from the Office of Corrections if they do that. You have got to follow all lawful directions from them. You have got to tell them if you change your address or your employment. So you have just got to keep them informed.
55Another important matter is, though probably very much on the back burner, you must get permission from them if you are to leave Victoria. That is to go interstate and overseas, of course. All those things are near on impossible at the moment but you understand you have got to keep them informed about all matters. All right. So they are the mandatory conditions. Beyond that you have one program condition, and that is that you do 180 hours of unpaid community work. So you must get in contact with them and work out what can be done in the current environment that suits you with your health conditions to do 180 hours of unpaid community work. They will nut that out, all right. Do you follow that? You understand that?
56OFFENDER: Yes.
57HIS HONOUR: Yes, all right. So with that outline, do you consent to doing the Community Corrections Order?
58OFFENDER: Yes, I do.
59HIS HONOUR: Thank you.
60HIS HONOUR: All right. Well, I will sign that order that your oral consent will be satisfactory for that. There being no other matters I am again grateful to counsel for their very considerable efforts in these always difficult matters. I will end the link. My associate, Mr McIntosh, will remain on if there is anything further that needs enquiries about for the documents that he is to complete. Your counsel can contact you if need be, of course, by phone, but if he needs to speak to you over this system we will allow that, but make sure that everyone else is off the link at that time. Is thank you anything further, Mr McIntosh?
61ASSOCIATE: No, Your Honour.
62HIS HONOUR: Thank you, I will leave the Bench.
63COUNSEL: If the court pleases.
64HIS HONOUR: Thanks very much.
- - -
0
5
0