Director of Public Prosecutions v Saheem, Niloofar Mohamed
[2015] VCC 107
•11 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01995
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NILOOFAR MOHAMED SAHEEM |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2015 | |
DATE OF SENTENCE: | 11 February 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 107 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Harris | OPP |
| For the Accused | Mr Rattray | Leanne Warren & Associates |
HIS HONOUR:
1 Mr Saheem, you have pleaded guilty to one charge of negligently causing serious injury. The maximum penalty for this offence is 10 years imprisonment.
2 You have also consented to this court dealing with a summary charge of drive whilst disqualified. Because this is a subsequent offence the maximum penalty is 240 penalty units or two years 'imprisonment.
3 The prosecution has presented a summary of your offending. I do not intend to repeat the whole summary. It is Exhibit A in these proceedings.
4 Briefly, at about 10.55 pm on 18 August 2014 you were driving in a southerly direction along the Princes Highway Dandenong. You were in an 80 km/hour speed zone as you approached the CFA headquarters at 120 Princes Highway. You braked suddenly and skidded for 27 metres. It is estimated that you were travelling at 101km/hour when the car began to skid. You took your foot off the brake and then shortly after applied the brake again. The car rotated clockwise, mounted the centre median strip and eventually crashed into a light pole.
5 The victim, Ismail Ismail, was the front passenger in your car. He was seriously injured. He was taken to the Alfred Hospital and placed in an induced coma. He remained in intensive care until 29 August 2014 when he was transferred to the Orthopaedic Ward. His injuries included:
· Extensive and multiple areas of bleeding within the brain and brain injuries;
· A skull fracture;
· Multiple spinal neck bone injuries;
· Atlanto occipital dislocation with a soft tissue injury to the neck;
· An injured neck disc;
· Narrowing of the spinal canal;
· Injuries to the lungs;
· Multiple rib fractures;
· Fractured teeth; and
· Multiple complex fractures and dislocation to the lower leg, ankle and mid-foot.
6 These injuries required extensive medical interventions from a number of different specialists.
7 After an operation on his cervical spine on 22 August 2014, the victim was required to wear a brace for three months and to remain non weight bearing on his left leg.
8 On 8 September 2014, Mr Ismail was admitted to the Victorian Rehabilitation Centre. He was managed in the High Dependency Unit. He was an inpatient until 23 December 2014. It is clear from the report of Dr Vaidya Bala (Exhibit C) that the victim has suffered very serious injuries that profoundly impact on his quality of life. In addition to the physical injuries, Mr Ismail suffered a severe traumatic brain injury as a result of your criminal behaviour. He has been prescribed anti-depressants for his “mood and behavioural issues.” He was assessed as being unable to return to driving “due to his severe cognitive impairment secondary to his traumatic brain injury”. He was discharged into the care of his uncle and he is still undertaking outpatient treatment at the Victorian Rehabilitation Centre.
9 You were very fortunate. You only suffered a minor abrasion. A blood sample was taken from you that revealed a blood alcohol level of .188. With a reading at that level you would have been incapable of safely controlling a car.
10 You told police that you had been drinking Jack Daniels and coke and a “beer or two” before driving. You told the police that you decided to go for a drive and you did not feel affected by alcohol.
11 Mr Saheem, this is a serious example of this type of offence. You chose to drive your car after you had been drinking. You did not have the ability to exercise proper control of the car and you were speeding. You lost control of your car and collided with a light pole. Your passenger suffered life changing serious injuries.
12 There are two other matters to note about your offending. First, when you drove the car you were a disqualified driver. Second, in committing this offence you breached a community corrections order made on 10 December 2013. I note that the order had a condition, among others, that you undergo assessment and treatment for alcohol abuse or dependency.
13 In this case general deterrence, just punishment and denunciation are central and paramount sentencing considerations. Driving whilst effected by alcohol is a significant social evil. You drove your car in contravention of a court order, whilst significantly affected by alcohol and in excess of the speed limit. You caused very serious injuries to another person. I must impose a sentence that reflects the gravity of your offending.
14 You have relevant prior convictions. In December 2008 at the Ringwood Magistrates’ Court you were convicted and fined $1250 for a number of motor vehicle offences. Your licence was suspended for six months. In October 2010 you were dealt with in the Dandenong Magistrates' Court for driving offences. You were convicted and the hearing adjourned with conditions that you complete an accredited drink driver education program and attend and participate in a road trauma awareness seminar. In February 2012 you were convicted and fined at the Dandenong Magistrates’ Court for drive whilst suspended and exceed the prescribed concentration of alcohol. You had a blood alcohol reading of .151%. Your licence was cancelled and you were disqualified from driving for two years. On 17 September 2013 you were convicted and fined for the offence of refusing or failing to undergo a breath test. You were disqualified from driving for four years.
15 On 21 August 2013 you were arrested and remanded in custody for offences of violence. You were released into the Credit Bail program on 24 September 2013. Those offences were finalised at the Dandenong Magistrates’ Court on 10 December 2013 and you were placed on the community corrections order that I have already mentioned.
16 Given this history, specific deterrence and protection of the community are relevant sentencing considerations.
17 I now move to matters relevant to your background.
18 You are a 30-year- old man.
19 You were born in Sri Lanka and your parents and two of your brothers live there. Your youngest brother lives in Malaysia. You immigrated to Australia in 2005 and you are a permanent resident. You married in 2007 and you have a six-year-old daughter. You are Muslim and your wife is Buddhist. These religious differences caused divisions within your respective families - neither family supported the marriage.
20 You have always worked. You have also endeavoured to improve your circumstances by completing various courses and diplomas in accountancy, business administration, cookery and meat handling and processing. In recent times you have been working as a cook.
21 Alcohol has been a significant problem in your life. You commenced drinking shortly after your marriage. I was told that you and your wife found it difficult to cope with the loss of support from your respective families and you felt socially isolated. The drinking eventually affected your relationship with your wife and daughter, and in early 2014 they left you.
22 This was apparently the catalyst for an escalation in your drinking. At the time of the offending you were drinking heavily most nights.
23 I now move to matters in mitigation.
24 You were interviewed by the police on 19 August 2014. You made full admissions. You have entered an early plea of guilty. In addition, your plea of guilty has saved the victim from the trauma of giving evidence and avoided the costs involved in a criminal trial. You will be given appropriate credit for all these matters.
25 I am satisfied that you are remorseful for your offending. The victim was your friend and you will carry with you for the rest of your life the understanding of the great harm you have caused him.
26 Since the commission of these offences you have undergone a period of imprisonment. You were convicted of contravening your community corrections order and sentenced to three months' imprisonment at the Dandenong Magistrates’ court on 4 September 2014. You completed that sentence on 3 December 2014. No doubt this was a salutary experience. However, I do note that you spent over one month in custody on remand in 2013. That experience did not deter you from committing this offence.
27 Your counsel told me that you have not consumed alcohol since 4 September 2014. Your wife is prepared to help you but she has made it clear that her support is conditional upon you remaining alcohol free. She provided a letter to the court in which she said that she has been checking on you every day and she is confident that you are no longer drinking.
28 Whilst it is a positive development that you have not consumed alcohol since 4 September 2014, it is also true that this period of abstinence is of a relatively short duration. For three months of that period you were in custody. I note that in December 2013 you were offered the support of Community Corrections to help you address your alcohol abuse. You did not use that support. Your history of offending and problem drinking, explains why I am guarded about your prospects of rehabilitation.
29 Mr Saheem, given the serious nature of this offence the only appropriate order is an immediate term of imprisonment. The term needs to reflect the gravity of the offending. The course submitted by your counsel as being appropriate, namely a community corrections order, or a community corrections order in combination with an imprisonment term, would not adequately mark the gravity of the offending or satisfactorily address those sentencing objectives of deterrence, denunciation, just punishment, specific deterrence and protection of the community.
30 Please stand.
31 On the charge on the indictment, you will be convicted and sentenced to three years and nine months' imprisonment.
32 On the summary charge you will be convicted and sentenced to four months' imprisonment. One month of this sentence is to be served cumulatively on the three years and nine months sentence. This makes a total effective sentence of three years and 10 months.
33 I fix a minimum of two years and six months before you will be eligible for release on parole.
34 I declare that you have served two days' pre-sentence detention.
35 Had you been found guilty after trial, you would have been sentenced to a total effective term of six years' imprisonment with a minimum of four years and six months.
36 On the charge on the indictment, all licences are cancelled and you are disqualified from driving for a period of seven years.
37 I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the authorities may use reasonable force to obtain it. I make the order for the following reasons; the seriousness of the offending, your prior criminal history and the order is in the public interest.
38 HIS HONOUR: Are there any other matters?
39 MR RATTRAY: Nothing, Your Honour.
40 HIS HONOUR: You can remove the prisoner, thank you.
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