Director of Public Prosecutions v Sahlan
[2015] VCC 522
•30 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00261
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Nazaruddin SAHLAN |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2015 | |
DATE OF SENTENCE: | 30 April 2015 | |
CASE MAY BE CITED AS: | DPP v Sahlan | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 522 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Gibson | OPP |
| For the Accused | Mr P. Allen | Robert Stary Lawyers |
HER HONOUR:
1 Nazaruddin Sahlan, you have pleaded guilty to one charge of dangerous driving causing death.
2 Just before 6.30 am on 1 November last year, Maria Gaglioti was on her usual morning walk. As she crossed Pascoe Vale road, she was struck by a car driven by you. She died as a result of her injuries four days later.
3 This was an entirely avoidable death. Mrs Gaglioti was walking across the road at a well-marked pedestrian crossing, controlled by traffic lights. There were solid white lines across the whole road, defining the area where pedestrians could cross. There were two solid white stop lines across the north and southbound lanes, the furthest 6.7 metres away from the pedestrian crossing lines. There were traffic lights mounted on poles, painted red and white. There were traffic lights ahead, warning signs 40 metres from the crossing. That section of Pascoe Vale Road is a 60 km/h zone. It is two lanes in each direction, with tram lines in the inner lanes and provision for parking in the outer lanes. It is a flat stretch of road with good visibility in each direction for a considerable distance. It is a built up area with a combination of houses, shops and commercial premises. There are side streets and cross street running into it at regular intervals. It is a well-used busy suburban thoroughfare.
4 It was a grey, drizzly morning, but visibility was good. If anything, the greyness would have made the traffic lights shine more brightly. Mrs Gaglioti was carrying a pink umbrella. In the photographs taken a short time later, it is being held up by someone, and its colour and brightness make it clearly visible at over-head and car roof height, that is the height at which umbrellas are carried.
5
When Mrs Gaglioti was struck by you, the lights were red for cars travelling in both directions and it had been so, it is estimated, for a minimum of seven seconds. Your car was at least 96 metres from the crossing when the lights turned red. The light had turned to amber ten seconds before you hit
Mrs Gaglioti. At that time, your car would have been a minimum of 138 metres from the crossing.
6 Your driving had been observed by the driver of the car immediately behind you for some distance before the collision. Mr Susau, the driver, had noticed that you turned right at the intersection of Mt Alexander Road into Kellaway Avenue, with the traffic lights, but without indicating. You had then turned left from Kellaway Avenue into Pascoe Vale Road, again with the traffic lights, and again, without indicating. You travelled at a steady speed of about 50 km/h along Pascoe Vale Road. Mr Susau, travelling behind you, saw the red light and saw Mrs Gagloiti’s pink umbrella over the roof of your car, as she moved from the kerb, across the left lane and into the centre lane where you were travelling. As well as the pink umbrella, he could see her torso through the front window of his car and the rear and front windows of yours. You did not slow down and went straight through the intersection, striking Mrs Gaglioti as she was crossing the centre lane. According to Mr Susau, you did not brake at all, that is, he did not see your brake lights go on at any stage before your car struck Mrs Gaglioti.
7 After the collision, you stopped and remained at the scene. You returned a negative result to a preliminary breath test. You were interviewed that morning and again on 19 November. It would appear, from your account, and consistently with the eyewitness accounts, you did not see Mrs Gaglioti until moments before you hit her, that it was too late to brake, that you were travelling at approximately 50 km/h, and were not racing the red light.
8 This is a tragic case. Mrs Gaglioti was 85, still vigorous, fit and healthy and still actively engaged in a wide range of activities with her children, grandchildren and her many and varied circles of friends. Her death has caused deep grief to her three children, her grandchildren and her friends.
9 She was the pivot of her husband’s life. They had been married for more than 60 years. He suffered from dementia, but with her full-time devotion and care, was able to remain living with her and to be cared for by her, surrounded by all that was familiar to him in the family home. The consequences for him are heart rending in the extreme. He does not always recall that she is dead. He constantly asks where she is and when she is coming home. In his lucid moments, appreciating she has gone and that he is now in care, he says it is time for him to go, too. Without her full-time care, he was unable remain in their home and is now in care. The family face having to sell the home they had hoped to keep in the family to fund that. They grieve too over the loss of the physical space which held so many memories for them.
10
You, I accept, are struggling with the burden of responsibility for taking
Mrs Gaglioti’s life. You are 46 and you too have lived a good and blameless life. You grew up in Sri Aman, a rural area in the Sarawak province of Malaysia and worked for 20 years, from the age of 20, in the Malaysian National Bank. You rose from office boy to assistant manager. Apart from a six month period when you were transferred to a different branch in a larger city 200 km away, you have lived at home with your parents, even after your marriage. You met your wife during the time of your secondment. You married and she remained lecturing at the University of Malaysia, Sarawak, while you returned to your work in Sri Aman. You would travel the 400 km round trip to join her, and after she was born, your daughter as well, each weekend. This went on for four or five years after your daughter's birth.
11 Then in 2012, your wife was offered the opportunity to do her PhD on a Malaysian government scholarship, on the topic of social housing in Sarawak, through the geography department at Melbourne University. You resigned from the bank and in September 2012, you, your wife and your daughter arrived in Melbourne on temporary visas, that is, a student and accompanying family visas.
12 Since your arrival, you have been the primary carer for your daughter, whilst your wife pursues her doctoral studies. Your daughter has settled well in primary school. The family has made friends and contacts, primarily with the expat and immigrant Malaysian community in Melbourne. You have found part-time employment, preparing newspapers for home delivery. That was a job which started at 3.30 and finished at 6 am, hours which did not interfere with your ability to care for your daughter whilst your wife was at university.
13 You were on your way home from your job when this collision occurred. You were driving a route well familiar to you. You must have been well aware of this pedestrian crossing. Thus, although there was no speeding, alcohol or drugs involved and that you were not running a red light or breaking any other road rules consciously, this is not a case of an inexperienced driver, or of driving on an unfamiliar road, or in an unfamiliar locale. Nor is it a case of a moment’s inattention.
14
You were an experienced driver. Your driving, whilst not characterised as erratic, was marked by inattentiveness or carelessness. You turned twice, once right, once left, without indicating, in the one kilometre or so when
Mr Susau was following you, before you struck Mrs Gaglioti. The light controlling the pedestrian crossing was red for at least seven seconds and had turned amber at least ten seconds before you hit her. Your car covered a distance of at least 138 metres. The red lights and Mrs Gaglioti’s pink umbrella were clearly visible to Mr Susau driving behind you.
15 This was not and cannot be characterised as a momentary lapse in concentration. It is a case that is more comparable to the circumstances in Janson[1] than those in Angel.[2] Angel was discussed in some detail in the decision of the Court of Appeal, on the appeal from the sentence imposed in Janson. In Angel, although the accused had failed to heed rumble strips and signs warning he was approaching an uncontrolled railway crossing, the fact that he had braked and slowed to almost a stop, and so was travelling at only five kilometres an hour when he struck a train at the crossing, clearly justified the Court of Appeal’s description of that as a momentary lapse in concentration. By contrast, a failure to see a traffic light for a period of ten seconds, when travelling at or under the speed limit, in a built-up area, where it is known there are traffic lights and controlled intersections, was described by the Court of Appeal in Janson as offending, the nature and gravity of which was of a considerably higher order than Angel’s momentary lapse of concentration.[3]
[1] DPP v Janson [2011] VSCA 19 (‘Janson’).
[2]DPP v Angel [2010] VCC 0582 (Unreported, Judge Parsons, 25 May 2010) (‘Angel’).
[3]Janson at [8].
16 In Janson, the court found the accused was distracted. The court described him as having diverted his attention form the road ahead, because he was looking for a business on the left of the road. He was travelling at 70 km/h, ten kilometres under the speed limit, in a built-up area. Although unfamiliar with the area, he knew that there were controlled intersections in the vicinity. Here, you were inattentive, your attention diverted from the road ahead for unexplained reasons. You were travelling at 50 km/h, ten kilometres under the speed limit. You were very familiar with the area, as you drove it every morning at that time for your work. You knew the pedestrian crossing was there.
17 Although you were driving a car, not a truck as Mr Janson was, and travelling at 50 km/h, not 70 km/h as Mr Janson was, this is driving of which it can equally be said, your vehicle was of a weight and travelling at a speed and driven in circumstances which, coupled with your inattention to the road, created a serious risk of death or injury. That was the way the Court of Appeal characterised the driving in Janson.[4] At the speed at which you were travelling, in that area of Pascoe Vale Road, and with a car, not a truck, the serious risk was perhaps more so to pedestrians than cars, but this was a pedestrian crossing that you went through.
[4]Janson at [28].
18 Even in cases of unintentional dangerous driving, that is inattention, as opposed to a deliberate driving through a red light, deliberate speeding, a deliberate trying to avoid apprehension, or other deliberate flouting of the road rules, factors which in Neethling[5] and again in Janson, the Court of Appeal reaffirmed as aggravating factors for such an offence, this is nonetheless the sort of case where the Court of Appeal said, "Subject to proportionality and other relevant considerations, general deterrence is an important sentencing consideration in all cases of dangerous driving causing death.”[6]
[5]DPP v Neethling (2009) 22 VR 466.
[6]Janson at [35].
19 Many of the mitigatory features applicable in Janson also apply in your case. You too co-operated with the police from the start and you too indicated your intention to plead guilty at an early stage. I accept that you too are genuinely remorseful. It is clear that you are a person of good character and you have no previous convictions, in this country or, it would appear, in Malaysia. You have good prospects for rehabilitation. You are suffering from post-traumatic symptoms of depression and anxiety. Although they are notable, they are not of the extent suffered by Mr Janson. As Neave JA characterised Mr Janson's suffering at [48], she said:
The respondent's life has been irreparably changed as a result of the accident. He has given up truck driving and his marriage has broken down because of his psychological condition arising out of the accident. He continues to suffer from considerable guilt and remorse and has become socially isolated. However, as he has himself recognised, the painful effect of the accident on him, is much less significant than its effects on the bereaved victim's families who will suffer grief as a result of the loss of their children for the rest of their lives.
20 Without diminishing your suffering or the impact on you, you have these things counting in your favour. You continue to have the support of your wife and a supportive circle of friends here in Australia. You do not appear to have become socially isolated, your marriage endures and you have been able to return to your work and to continue to be a primary carer for your daughter. Your treating psychologist, Ms Noor, reports what she described as a diagnostic impression of acute post-traumatic stress symptoms, which have responded well to treatment. You have engaged well in counselling with her and you express what she describes, and I accept, as deep regret. She says, and I accept, that you are genuinely sorry, that you feel sadness and loss towards Mrs Gaglioti and appear genuinely empathetic to her family. That is borne out by the letter that you wrote to the family.
21 Mr Newton, the psychologist who provided a forensic report for the purposes of the plea, notes that you are suffering from noteworthy symptoms of anxiety and depression, but considers that the early intervention with Ms Noor has so far avoided the onset of post-traumatic stress disorder. Nonetheless, you are still acutely distressed by the consequences of the collision and he considers that you are at risk of development of post-traumatic stress disorder if treatment does not continue. It is very much a product of the good and genuine man you are, that you suffer so deeply from the symptoms or the consequences, the appreciation of causing the death of a good and innocent woman.
22 These cases of dangerous driving causing death, where a good and blameless person is killed by the driving of a person who has otherwise led a good and blameless life, and whose driving is characterised as careless, but culpable inattention, are properly cases where it is said, there are no winners.
23 If your remorse, previous good life, and prospects for rehabilitation were the only, or the paramount sentencing considerations, there would be no cause to consider imposing a term of imprisonment. But as the Court of Appeal has repeatedly made clear, in such cases, denunciation and deterrence are the paramount sentencing considerations and it is only in exceptional cases that a non-custodial sentence, or when they were available, a fully suspended sentence is appropriate. Janson was such a case. That is, it was not so exceptional as to justify a non custodial or fully suspended sentence.
24 Board,[7] another case which was discussed in the plea, was also a case considered by the Court of Appeal, following a sentence imposed by me. It was a case of worse driving, a conscious decision to continue driving when aware he was tired. But there, the exemplary character and history of the accused still did not justify the imposition of a non-custodial sentence. Janson was a case where a suspended sentence, coupled with a community based order, with conditions of supervision, unpaid community work and psychological treatment, which in effect are replicated because of the flexibility afforded by the number of charges, the type of sentence now available under a community corrections order was considered by the Court of Appeal to be manifestly inadequate.
[7]Board v The Queen [2013] VSCA 190.
25 The question posed therefore here is, has the position changed since the introduction of community corrections orders and the delivery by the Court of Appeal of the guideline judgment in Boulton?[8]
In Boulton, the court affirmed that s.36(2) of the Sentencing Act1991 makes it clear that parliament expressly contemplated the imposition of a Community Correction Order where previously a suspended sentence might have been imposed.[9] It referred to the punitive elements of the conditions attached to a Community Correction Order. Conditions such as treatment for drug and alcohol abuse, non-association orders, orders requiring a person to live or not to live in particular place, restricting freedom of movement by prohibiting access to places, be they geographic areas or venues such as bars or casinos, or the imposition of curfews.[10] Those, conditions are punitive conditions, but none of them are appropriate or necessary as punishment or rehabilitative purposes, or for rehabilitative purposes in your case.
[8] Boulton and Ors v The Queen [2014] VSCA 342 (‘Boulton’).
[9]Boulton at [85].
[10] See particularly Boulton at [95]
26 Later, the court said:
At this early stage, it is difficult for sentencing courts to assess the punitive effect of a community corrections order. Whereas the seriousness of deprivation of liberty is well enough understood, it is hard to know how onerous it will be for a particular offender to comply with conditions requiring, for example, attendance at treatment; supervision; separation from acquaintances; exclusion from clubs and bars; and the obtaining of permission from the Secretary for interstate movements.[11]
[11]Boulton at [99].
27 Later:
The challenge for sentencing courts in the early years of the community corrections order regime will be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment. For the reasons which follow, such a re-examination is essential if the community corrections order is to fulfil its potential as a sentencing option, in accordance with the legislature’s clearly-expressed intention.
For so long as imprisonment has appeared to be the only option available for offending of any real seriousness, sentencing courts have had no occasion to reflect, either on the severity of imprisonment as a sanction, or on its ineffectiveness as a means of rehabilitation. As to the first, imprisonment is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty. But imprisonment has a number of other punitive features, apart from the loss of physical freedom."[12]
The court then went on to set out what those are and I adopt that without reading it into the transcript here.
[12]Boulton at [103] – [104].
28 Having done that, it went on to say this:
Axiomatically, imprisonment is a sentence of last resort. As s.5(4) of the Sentencing Act makes clear, such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s 'just deserts' for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of the punishment to be served simultaneously, in a coherent and balanced way, in preference to an option, imprisonment, which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender that he or she take personal responsibility for self-management and self-control and, depending on the conditions, that he or she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers a sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender, and of those who are dependent on him or her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor or a judge to say, ‘How could a CCO be appropriate, given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.[13]
[13]Boulton at [111] to [115].
29 In a powerful passage, the court sets out the case for reconsidering the previous conceptualisation of sentencing options:
The views we have expressed are reinforced by the recent insertion into the Act of s 5(4C). This provision came into force on 29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows:
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.
The new provision is a companion provision to s 5(4), referred to above.
According to the Director’s supplementary submission, this new subsection is
a declaratory tool, intended to ‘highlight’ the punitive potential of a CCO that includes the named (and under-utilised) restrictive conditions, without diminishing the punitive potential of CCOs that do not include these conditions.
The submission drew attention to the following passage from the Explanatory Memorandum accompanying the 2014 amending Bill:
The purpose of this provision is to highlight that a community correction order can have a punitive effect and may be an appropriate sentence to address serious offending. It is not intended to suggest that a community correction order without the above listed conditions may not be punitive, or that the sole purpose of attaching the above conditions is to punish the offender.
VLA’s further submission also quoted this passage, and emphasised that the particular conditions identified in the subsection had so far been used very infrequently. At the same time, VLA submitted, the specification of particular conditions in the subsection should not be construed as implying that one or more of those conditions had to be attached to a CCO in order to justify a conclusion that imprisonment was not necessary.
These submissions of the Director and VLA should be upheld. They capture correctly, in our view, the intention of the new subsection. What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which sentence is to be imposed on the offender; and
(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.
The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[14]
[14]Boulton at [117] to [121].
30 In Janson, the Court of Appeal was unanimous in holding that a suspended sentence, even with a community based order, accompanied by the sorts of conditions imposed on Mr Janson, and having regard to his personal circumstances, were so disproportionate to the seriousness of the crimes, as to constitute sentencing error.
31 Nettle JA held that the imposition of a suspended sentence in that case was so manifestly inadequate as to shock the public conscience. Such manifest inadequacy, he held, was so clear and egregious as to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.[15]
[15] See in particular Boulton at [38] and [40].
32 In my view, unless and until the Court of Appeal considers these observations no longer apply to a case with so many similarities to Janson, I consider I would fall into the same error the court held I did in Janson.
33 As the Court of Appeal said in Boulton, it is early days and there is still much to be assessed as to the punitive aspect of a Community Correction Order. In my view, this is a case, therefore, where notwithstanding Boulton, the features of this offence of dangerous driving causing death require the conclusion that imprisonment with all of its disadvantages, is the only option.
34 I have considered whether a combination of imprisonment and a Community Correction Order, or imprisonment, with the fixing of a non-parole period, is the appropriate step to take, having reached the conclusion that imprisonment, with all of its disadvantages, is the only option.
35 There is, in my view, no need to impose conditions under a Community Correction Order as additional punishment or in order to encourage your rehabilitation. Therefore I have come to the view that the appropriate sentence is one of a head sentence with a non-parole period being fixed.
36
In fixing on the term, I bear in mind, in addition to the mitigatory matters I have already referred to, the likely impact of imprisonment on your psychological wellbeing, having regard particularly to the reports of Ms Noor and of
Mr Newton, and the hardship imprisonment is likely to cause to you because of your limited command of English and the impact on your wife and child, as your wife finishes her studies and shoulders the burden of caring alone for your daughter. I also take into account the fact that the family's visas all expire in just over a year. If your wife and daughter's visas expire whilst you are still serving a sentence and they have to leave Australia, you will be further isolated, notwithstanding the support groups that you forged in the community here.
37
Your personal circumstances are such as to reduce the head sent and the non-parole period below what would otherwise be appropriate for driving of this nature. Again, I have looked at Janson for guidance. In re-sentencing
Mr Janson, Nettle JA took into account the fact that he had been subject to the suspended sentence and community based orders that had been imposed on him, for a period of eight months, between the imposition of the sentence by me and the disposition of the appeal. He had complied with his community based order during that time and had completed all of the unpaid community work ordered, as well as complying with the other continuing conditions.
38 In order to avoid double punishment, rather than to take into account the risk of double jeopardy, which had by then been abolished by statute, the court reduced the sentences imposed on Mr Janson for the individual charges of dangerous driving causing death, to take into account the service under the community based order and the time that had elapsed, between the imposition of the original sentence and the resentencing by the Court of Appeal. Nettle JA said expressly that the sentence imposed on Mr Janson therefore had to be considered as one lower than what otherwise be appropriate, having regard to the nature of the driving and Mr Janson's personal circumstances.
39 I consider myself therefore to take guidance from that, not to regard it as a straightjacket, but as guidance from a case that has many parallels.
40 Mr Sahlan, can you now please stand.
41 One the one charge of dangerous driving causing death, to which you have pleaded guilty, you are convicted and sentenced to be imprisoned for a period of two years and nine months.
42 I fix a period of 12 months as the time that you must serve before being eligible for parole. All licences held by you are cancelled and you are disqualified for driving for a period of two years.
43 Pursuant to s. 6AAA of the Sentencing Act 1991, I declare that but for you plea of guilty, I would have sentenced you to a term of imprisonment of five years, and fixed a period of two years and six months as the period you would have had to have served before being eligible for parole.
44 Pursuant to s.464ZF of the Crimes Act 1958, I make an order that you undergo a forensic procedure, which is a scraping from your mouth, what is called a buccal sample. I do so because of the seriousness of the circumstances of the offending. And I must inform you that if you do not consent to the taking of that mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken may well be a blood sample, a more invasive form of taking the sample, and the police may use reasonable force to obtain that sample.
45 Are there any further orders that are required?
46 MR GIBSON: No, Your Honour. As Your Honour pleases.
47 HER HONOUR: Do the orders that I pronounced reflect what I said I intended to do?
48 MR GIBSON: As Your Honour pleases.
49 HER HONOUR: Thank you. Can you please remove Mr Sahlan.
50 Adjourn.
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