Director of Public Prosecutions v Rezaei

[2019] VCC 900

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑18‑01533

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAMEEDULLAH REZAEI

‑‑‑

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2019
DATE OF SENTENCE:	7 June 2019
CASE MAY BE CITED AS:	DPP v Rezaei
MEDIUM NEUTRAL CITATION:	[2019] VCC 900

REASONS FOR SENTENCE

‑‑‑

Subject:CRIMINAL LAW

Catchwords:                 Plea of guilty – plea following sentence indication hearing – dangerous driving causing serious injury – victim was pregnant at the time of the offence – serious injury was the destruction of the foetus of the pregnant victim – failure to give way to oncoming traffic – driver error – no additional aggravating features such as speed or the presence of drugs or alcohol – general deterrence is a central sentencing consideration – no prior criminal history.

Legislation Cited:  Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:

Sentence: Community Correction Order for a period of 18 months.

‑‑‑

APPEARANCES:	Counsel	Solicitors
DPP	Ms J. Cavka (Sentence) Mr D. Plumber (Plea)	Office of Public Prosecutions
For the Accused	Ms S. Crowe (Sentence)	Victoria Legal Aid
Ms E. Clark (Plea)

HIS HONOUR: 

Introduction

1Hameedullah Rezaei you have pleaded guilty to one charge of dangerous driving causing serious injury contrary to section 319(1A) of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment.

2You have no prior criminal history. 

Circumstances of the offence

3The prosecution opening was tendered on the plea and may be summarised as follows:

4On Saturday 23 April 2016 at approximately 4 pm Ngoc Thanh Pham was driving her motor vehicle, a 2007 Toyota Yaris hatchback, without passengers in the Mulgrave area along Police Road travelling towards Centre Road.

5She was not speeding and was driving carefully.  Ms Pham was familiar with the speed limit in the area.  The weather and visibility conditions were good for driving. 

6At the time Ms Pham was 19 weeks and two days pregnant. 

7As Ms Pham approached the intersection, the light facing her vehicle was green and she was doing less than the 60 kilometre an hour speed limit for the area.  She could observe the other traffic had stopped in compliance with the traffic control signals.

8Prior to approaching the lights at the intersection of Police and Springvale Roads, Ms Pham checked for traffic to her left down Springvale Road before moving into the intersection, intending to continue on to Centre Road and return home.  There were no cars in front of Ms Pham, although she was aware that there was traffic behind her.  As Ms Pham entered the intersection she was hit by the vehicle driven by you, which she saw only a second or two prior to impact.

9Your vehicle hit her car on the front right side causing severe damage to the vehicle.  At the time she was located between Princes Highway and Centre Road in the intersection.  Witnesses, Mr Ryan Shane and Mr Bruce Lang, did not hear any noise of braking.  Attending police officers at the scene of the collision obtained formal particulars from you and conducted a preliminary breath test which was negative.  The sequence of traffic control signals was observed by police and found to be working normally.

10The sequence observed was later compared to VicRoads reports of the signals of the intersection and found to be consistent with the same.

11As noted at the time of the collision, Ms Pham was 19 weeks and two days pregnant.  After the impact of the collision, she could feel that her placenta had broken and she was bleeding heavily.  She immediately phoned her husband and asked him to come to her.  While waiting, Ms Pham experienced soreness to her right shoulder and collarbone down to her waist and across her hips, as well as a sore bottom lip which continued to bleed for five or six days.

12She had bad bruising to her shoulder, waist and hip as a result of the impact.  Ms Pham was taken to the Royal Melbourne Hospital and examined by an obstetrician who explained that her placenta and cervix wall had been damaged and there was no fluid left for the child she was carrying.  She was then transferred to the Royal Women's Hospital and admitted at about 11 pm, remaining there until 26 April 2019 when she was transferred to the Monash Hospital in Clayton.

13On 28 April 2019 the decision was made to induce the birth on 3 May 2019.  However, on 1 May 2019, Ms Pham was readmitted to the Monash Hospital.  Her obstetrician, Dr Ly, induced the birth given the extreme prematurity and that there was no chance of the child's survival.  At approximately 5.40 pm, Ms Pham delivered a female child approximately 20 weeks and two days to term.  The midwife in attendance assessed the baby's heart rate through palpation of the umbilical cord and found that it was under 100 beats per minute, noting that it was slow and weak and that the baby did not take any breaths. She noted the time of death after two minutes at 17:42 hours. 

14The charge is formulated on the definition of serious injury pursuant to section 15 of the Crimes Act 1958 as the destruction of the foetus of a pregnant woman.

15On 28 June 2016 you participated in a tape recorded police interview at the Glen Waverley Police Station.  In summary you stated that you were coming from Centre Road, turning into Dandenong and the car jumped in front of you all of a sudden with high speed. The other car was probably a black Yaris and that it came from opposite you as you were intending to turn right.  That the light facing you was green and that you were unfamiliar with the intersection.  That you were the first car at the intersection but two other cars were next to you.  You thought the traffic lights facing you were green.  That you were sure the arrow was green and the light was green and that you only noticed one arrow.  You did not pay any attention to any other cars turning next to you and maintained that the other black car coming from the opposite direction was traveling fast and appeared all of a sudden. And you maintained that you felt that you had a green arrow and a green light at the same time when you entered the intersection and it was proper for you to do so.

16The prosecution case on the evidence of the other drivers and the sequence of lights in question is that your decision to turn was incorrect and that you failed to give way as you were obliged to do so to an oncoming vehicle driven by Ms Pham which was the cause of the collision in this matter.  

17In particular, the turning nature of the lane, geometry of the road marking a right turn, pavement arrows and general traffic conditions would all indicate to any reasonable road user that the lane in question was a right hand turn lane and alert a driver to their obligation under the legislation to give way to oncoming traffic. 

Objective seriousness of the offence

The charge of dangerous driving causing serious injury is capable of covering a wide variety of circumstances. In this case the dangerous driving was essentially you failing to give way to oncoming traffic when clearly they had the right of way.  You asserted in your record of interview that you believe you had a green turning arrow.  However, it was established in the evidence that that was not the case, and despite the complexities of the intersection this was a right hand turn with the use of traffic lights and you were required to give way to the oncoming traffic. 

18One issue that was raised at the committal hearing related to the complexity and general dangerousness of the intersection where you were turning.  A VicRoads witness gave evidence that the intersection where the accident occurred has the highest number of casualty accidents in the state.  Further, that a number of accidents have occurred at this particular right hand turn.  There was further evidence that VicRoads plans to remove this particular right turn lane but has not yet done so.

19The prosecution submitted that while it may be the case that this intersection is a complex and major intersection that very fact means that drivers should be on alert when approaching it, as they should be with any major intersection.  In this instance there were no additional aggravating features such as speed or the presence of drugs or alcohol.  As a result of the accident Ms Pham suffered injuries resulting in bruising to her shoulder, waist and hip.  However, the collision also resulted in her placenta rupturing causing significant bleeding.

20Following medical intervention over a number of days the decision was made to induce the birth, the baby being born extremely premature.  Ultimately the baby did not take any breaths and died a couple of minutes after birth.  The death of Ms Pham's baby was understandably a traumatic event for her.  While she did not prepare a victim impact statement, she outlined her trauma in the statement that she provided to police.  She states that while her physical injuries have resolved she has suffered psychologically.

21She has trouble sleeping and is unable to discuss the event with friends.  Further she states that the trauma has affected every aspect of her life, including her work and her relationships with her husband and daughter. 

Personal circumstances

22You are now 36 years of age.  You are married and you have three children.  You were born in Afghanistan.  Your father died in 2004 and seven of your siblings and your mother remain in Afghanistan.  You have one brother living in Melbourne.

23You were educated to the age of about 11 in Afghanistan, however you had no further schooling.  You completed an apprenticeship and worked as a mechanic in your home country until you left in 2009.  You are a Shi’a Muslim Hazara, and as you are part of an ethnic minority you were the target of Taliban activity in the province in which you lived.  You refused to assist the Taliban when they asked you to work for them as a mechanic.  In 2009 your brother was stopped by the Taliban while travelling and your family has had no contact with him since.

24It was shortly after this event that you left Afghanistan and hid in Pakistan before you travelled to Australia by boat.  The boat on which you were travelling was intercepted by the Australian Navy and you together with the others that you were travelling with were sent to Christmas Island, arriving in August 2010.  In December 2010 you were transferred to the Curtin Detention Centre in Western Australia, where you made a claim for refugee status.

You were found to be a refugee and subsequently applied for a protection visa.  In May 2011 you were granted a protection visa and released into the community.  You remain on that visa. 

25In Australia you have worked at a mechanic's shop and as a casual construction site labourer, however you do not have permanent work.  You have no history of drug or alcohol use.  You do not have any history of psychological difficulties, however since the offending you have been diagnosed with depression and are taking medication for that condition.

26Four references were tendered on the plea.  Three of those references are from family members, including your wife, and demonstrate the support they continue to offer you through this process.  They also confirm that you are a hardworking, responsible and caring father and husband.  A fourth reference was from a close friend who has known you for a number of years.  He reiterates the sentiments put by your family members in the other references and further states that you are a respected member of the community.

Sentencing considerations

27I take into account your plea of guilty.  The relevant history is that this matter came before me for a sentencing indication on 16 May 2019 in relation to the single charge that you have now pleaded guilty to.  As a result of that application the plea was conducted on 31 May 2019.  You conducted a contested committal, however it was on a limited basis in relation to expert evidence and the victim in this matter was not cross-examined.

28As such while the plea of guilty is late, in my view it still demonstrates your acceptance of responsibility and ultimately has avoided the need for a trial.  Your plea therefore has facilitated the course of justice and you are entitled to credit for that.  As to genuine remorse, I accept you have expressed your remorse.  Most notably as observed by the corrections officer who assessed you for community correction order.  

29However, you also stated to the corrections officer that although you admit some form of accountability for the accident you said that you did not consider yourself entirely at fault, which is consistent with the position you took in your record of interview.  General deterrence is in my view a central sentencing consideration in this case.  While on one view this may be considered as a simple mistake or lack of attention, it is clear that the consequences of failing to remain alert at a major intersection can have devastating consequences when collisions occur.

30The community needs to be sent a message that on busy city roads drivers must remain alert and comply with road rules.  In my view specific deterrence need not be given significant weight as you do not have any prior history and you do not have any significant issues to grapple with.  That said, in my view you have still not completely accepted responsibility for your conduct and you need to appreciate the importance of remaining alert when driving a motor vehicle.

31In all the circumstances in my view your prospects of rehabilitation are very strong.  You have no prior criminal history of any kind, you have demonstrated a good work history and you have a close family and community support.  It is self-evident as a result of the sentencing indication hearing that in my view a community correction order is the most appropriate disposition in all the circumstances.  Ms Clark, who appeared on your behalf, submitted that there should be no or very little unpaid community work. 

32In support of that submission, she relied on the matters put in mitigation and including the fact that you are a casual worker and have uncertain work hours, and the fact that the offending occurred at an intersection that is known to be dangerous and problematic.  Without repeating the matters I have raised above in relation to the objective seriousness of the offence and your insight, in my view there does need to be a degree of punishment in the form of unpaid community work.

33The correction officer is also of the view that you would benefit from some counselling and treatment in relation to your mental health, and that such condition may be able to serve as the appropriate avenue to further explore and address your offending behaviour and insight. 

Sentence

34Mr. Rezaei, please stand.

35Hameedullah Rezaei, on Charge 1, dangerous driving causing serious injury, you will be convicted and placed on a community correction order for a period of 18 months. 

36The community correction order will have both punitive and therapeutic components.  You will be required to complete 60 hours of community work and engage in treatment and rehabilitation to address your mental health.  

37Pursuant to section 48CA of the Sentencing Act 1991 I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.

38Pursuant to section 89(2)(a) of the Sentencing Act 1991, any license you hold will be disqualified for 18 months from today.

39Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to a period of three months' imprisonment, together with a community correction order.

‑ ‑ ‑